At 15th December 2005 there were no less than 27 Bills with employment law relevance either already introduced or at an advanced stage of preparation, including one in the Scottish Parliament. Notes on all 27 Bills and prospective Bills are included on our website, together with an archive of lapsed employment law related Bills since 2002.
Thumbnail summaries and/or or headnotes of all cases reported in the ICR and IRLR law reports since end 1999 are available on our website. All cases reported in ICR 2005 part 12 and in IRLR 2005 vol 34 no 12 are now noted/summarised and short commentary is provided. For most new cases there are direct links to free versions of the full judgments on the internet. This is in addition to linked thumbnail summaries and/or headnotes of more than 1,500 other employment cases, new and old.
The annual inflation-linked increase in limits on the amounts which can be awarded by employment tribunals has been announced. The new limits will be effective in respect of dismissals on or after 1st February 2006. Maximum compensatory award on unfair dismissal will rise from £56,800 to £58,400 and maximum amount of a week's pay for basic award calculations will rise from £280 to £290. It is worth noting that under the Work and Families Bill, the government also intends to take power to make a one-off additional, "inflation-busting", increase to these and other compensation limits.
The House of Lords ruled on 15th December that a Church of Scotland Minister's relationship with her church was "employment" for purposes of the Sex Discrimination Act 1975. She claimed that it was unlawful sex discrimination for her church effectively to force her to resign after she was said to have had an affair with a married elder in her parish when similar action had not been taken against male ministers known to have had extra-marital sexual relationships. Until now it has been taken as read that a clergyman was not an "employee", except possibly of God. This may still be the position for unfair dismissal as the definition of "employee" under the Employment Rights Act 1996 is tighter than that of "employment" under the Sex Discrimination Act, but this was not at issue and must itself now be in doubt.
This Act came into force on 5th December 2005. It provides for same-sex couples who are aged 16 or over and neither of whom is married to obtain legal recognition of their relationship by registering as "civil partners" of each other. The partners must not be within the prohibited degrees of relationship. A dissolution process, similar to divorce, will be created to deal with situations where a civil partnership breaks down. The Act covers England, Wales, Scotland and Northern Ireland. Various consequential amendments have been made to employment law.
An interesting, related, overseas development is that a few days earlier the South African Marriage Act was held to be unconstitutional on the basis that it discriminates against homosexuals because of their sexual orientation. It requires a form of words which includes "Do you AB call all here present to witness that you take CD as your lawful wife (or husband)?", thus presupposing opposite-sex partners.
The Disability Discrimination Act 2005 came into force on 5th December 2005. It makes some important changes relevant in the employment field, notably a widening of the definition of disability to cover those with HIV Aids, cancer or multiple sclerosis and it provides greater protection for people with mental illnesses by removing the requirement that their condition be clinically well-recognised. It also makes a change to the rules about discriminatory job advertisements. Although mainly concerned with non-employment related matters, the changes this Act makes will be of enormous significance for some employers, especially as there is no statutory limit to the compensation which an employment tribunal can award for breach of the rules. Expert advice should be taken in any situation where it might be relevant.
An important meeting of the multi-national EC Employment, Social Policy, Health and Consumer Affairs Council took place in Brussels on 8th/9th December. It was hoped that problems relating to on-call workers (notably doctors and nursing staff) and the continuation of the "individual opt-out" from the 48 hour maximum working week, beloved of the British but not by many others, would be resolved. They weren't - but progress was made. The "on-call" worker problem had become especially acute as just a few days before the meeting the European Court ruled more clearly than ever that on-call duty performed by a worker required to be physically present on the employer’s premises must be regarded in its entirety as working time within the meaning of the Working Time Directive (Dellas and Others v Ministre des Affaires sociales, du Travail et de la Solidarité ECJ case C14/04). Clearly changes will have to be made to the Directive even if there is no agreement yet on what they should be.
As is now well known, since 1st October 2004 there has been a general rule that employment tribunals cannot entertain claims unless there has first been a serious attempt to resolve the dispute "out of court". Minimum standard statutory dispute resolution procedures must be observed, either a disciplinary procedure started by the employer or a grievance procedure by the employee. A clutch of Employment Appeal Tribunal cases in recent weeks have shown that very little formality, beyond something in writing sent to the employer, is required for an employee to be regarded as having complied with the obligation to instigate a grievance procedure.
The normal rule is that if an undertaking is transferred from one owner to another the staff are automatically transferred and the new owner must ensure that they have all the same rights and benefits as they had when employed by his predecessor. In November, the Advocate General of the European Court recommended that the judges should hold that this normal rule is not applicable in respect of pay increases awarded under an industry level collective pay agreement to which the old employer was party but to which the new employer was not a party. Whether the judges will agree with this recommendation remains to be seen. Either way, the eventual decision will clearly have significant knock-on effects. The revised British TUPE regulations (due to be published in the very near future) will have to be read subject to the eventual decision in Werhof v Freeway Traffic Systems GmbH & Co KG ECJ case C-499/04.
The new European industrial relations dictionary, published on the web at end November 2005, is potentially so useful that it is worth mentioning here. It provides alphabetically listed entries "featuring concise definitions and relevant contextual information, with hyperlinks to EU legislation and case law". Perhaps of more use to employers or employees than to legal advisers, it is likely to be worth adding to the list of web "favourites" of many readers of this newsletter.
A White Paper "Supporting Magistrates' Courts to Provide Justice", published on 7th November 2005, proposes changes to employment law to give "..... employers and employees clear and achievable requirements on how requests for time off can be handled"
The Court of Appeal has ruled that different legal tests apply under the Disability Discrimination Act 1995 for, on the one hand, determining "reasonabless" (for the purposes of the duty to make reasonable adjustments) and "justification" (in relation to less favourable treatment). The essential point is that the test for "reasonableness" is objective while the test for "justification" is subjective. In other words, an employer's failure to make reasonable adjustments will render him liable to a disadvantaged employee who is suffering from a disability. But other less favourable treatment of a disabled employee can be justified subjectively - all that is required is that the reason for it must fall within the band of responses which a reasonable employer might have adopted. This is a quite subtle distinction and employers would do well to take expert advice in any relevant situation.