There were 19 Bills with employment law relevance either already introduced or at an advanced stage of preparation, including one in the Scottish Parliament, when Parliament broke up for the summer recess. One has been added to the list since our last newsletter, the reintroduced Crown Employment (Nationality) Bill. Notes on all 19 Bills and prospective Bills are included in the emplaw program, together with an archive of lapsed employment law related Bills since 2002. Bills of current interest are:
1 - Armed Forces Bill; 2- Company Law Reform Bill; 3 - Compensation Bill; 4 - Corporate Manslaughter Bill; 5 - Crown Employment (Nationality) Bill; 6 - Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill; 7 - Equality Bill; 8 - European Union Bill; 9 - Fraud Bill; 10 - Health Improvement and Protection Bill; 11 - Identity Cards Bill; 12 - Immigration, Asylum and Nationality Bill; 13 - Incapacity Benefit Bill; 14 - Liverpool City Council (Prohibtion of Smoking in Places of Work) Bill; 15 - London Local Authorities (Prohibition of Smoking in Places of Work) Bill; 16 - Parental Rights Bill; 17 - Partnerships Bill; 18 - Smoking, Health and Social Care (Scotland) Bill 19 - Unfair Contract Terms Bill.
A feature of emplaw.co.uk is the provision of thumbnail summaries and/or or headnotes of all cases reported in the ICR and IRLR law reports since end 1999.
All cases reported in ICR 2005 pt 7 and in IRLR 2005 no 8 are now noted/summarised in the current emplaw program and short commentary is provided. For most there are direct links to free versions of the full judgments, usually on the Court Service, EAT or BAILII websites. This is in addition to linked thumbnail summaries and/or headnotes of more than 1,500 other employment cases, new and old.
Of great practical importance is the rule that EC legislation, and any British legislation implementing it, must be interpreted in a european "purposive" way. A recent decision by an employment tribunal in Aberdeen that the British Working Time Regulations should be interpreted to apply to workers employed by private companies outside UK territorial waters but within the UK sector of the Continental Shelf is a useful example of how the rule works in practice. The tribunal considered in detail the principles involved its ruling (transcript available from professional versions of www.emplaw.co.uk) is likely to be of interest to those concerned with euro/UK matters generally as well as to legal practitioners.
Regulations increasing the adult rate of the national minimum wage for those aged 22 or more from £4.85 per hour to £5.05 per hour with effect from 1st October 2005 have now been made. The youth rate, for 18-21 year olds, increases to £4.25 per hour but the £3 per hour rate for 16-17 year olds is not changed.
Imminent changes to the Sex Discrimination Act 1975 required by EC law to ensure that sexual harassment at work is unlawful will probably make little practical difference. Sexual harassment at work has been unlawful in the UK for years. More interesting is a USA (California) development. A senior court has ruled that a group of female employees could claim unlawful sexual harassment when their male manager gave unusually favourable treatment at work to a colleague who had become his mistress. While obviously not directly relevant in the UK, this case (Miller v Department of Corrections & ors, Supreme Court of California, Case S114097 on 18th July 2005) is likely to be of interest as a harbinger of possible things to come in Britain.
Newspaper reports may have made it seem that the successful sex discrimination claim by the BA pilot refused permission to work half time to look after her small child is proof that employment law has gone over the top by allowing family rights to take priority over the safety of airline passengers. This is not so. Maybe, indeed perhaps hopefully, the safety issue will determine the case when it goes to the Court of Appeal. However it it played only a small part in the quite technical EAT judgment, delivered on 21st July. As the EAT cannot take evidence and cannot reconsider factual issues already determined by an employment tribunal (save in the case of a perverse decision by a tribunal) this was perhaps inevitable. Ultimately the problem for BA is that it originally refused Ms Starmer the permission she had requested on resource grounds and did not bring up safety reasons until later. If the case goes to the Court of Appeal, and BA has indicated that it will appeal, the safety issue may well play a greater part.
The government has announced that the Green Paper promised for summer 2005 on reform of Incapacity Benefit has been postponed until the autumn. Reforms are intended to ensure that those unable to work will continue to receive benefit but to make it more difficult for anyone who is simply unwilling to do so.
As is well known, direct and indirect discrimination on the basis of age will be unlawful in the employment field (including vocational training) as from 1st October 2006. On 14th July 2005 the government issued draft regulations to flesh out the detail, together with a consultation document.
Redundancy is a potentially fair reason for dismissal but if handled wrongly a redundancy dismissal can be unfair dismissal. In that situation Employment Rights Act 1996 s.122 provides for any redundancy payment made to be offset against unfair dismissal basic award. The EAT has recently confirmed in Bowyer v Siemens plc that this offset is only permissible if the dismissal was genuinely by reason of redundancy. The result is that severance pay paid to an employee as "redundancy pay" cannot be offset against unfair dismissal compensation if it eventually transpires that there was not a genuine redundancy situation.
The Smoking, Health and Social Care (Scotland) Bill has been finally approved by the Scottish Parliament and will come into effect on 26th March 2006. From that date smoking will be forbidden in enclosed public places, including workplaces, in Scotland. Similar rules already apply in Ireland and several other countries. Consultation on proposed similar British rules expected to be in force by December 2007 ends on 5th September 2005 (and Liverpool and London have proposed private Bills which may result in them jumping the national gun).
The Occupational Pension Schemes (Equal Treatment) (Amendment) Regulations 2005 are in force from 10th August 2005. These regulations put into place the final details required to ensure that part-time employees, especially women, can have the same (pro rata'd) benefits from membership of occupational pension schemes as full-timers. The previous two-year limit on backdating claims is finally and completely removed and admission to schemes for those affected can be claimed back to 8th April 1976 subject to payment of backdated employee contributions. There is special provision for those already in receipt of pensions who hav e already had payments calculated on an unlawful unequal basis.
The 2004-2005 Annual Report of the Employment Tribunals Service (year to 31.3.2005) was published on 12th July 2005. Much of the report is concerned with internal matters and meeting of targets. From an outsider's point of view the single most interesting item is probably in the statistics section where it is noted that the number of tribunal applications in the year to 31st March 2005 was the lowest for ten years (down to 86,000, compared to the highest figure of 130,000 in 2000/01).