The following Bills with employment law relevance are currently in draft or before Parliament:-
Three new employment law related Bills have been introduced since our January newsletter, viz the Crown Employment (Nationality) Bill (17.1.05), the London Local Authorities (Prohibition of Smoking in Places of Work) Bill and the Liverpool City Council (Prohibtion of Smoking in Places of Work) Bill (the last two being Private Bills, both presented on 24.1.05 in the House of Lords).
The complete list of Bills with employment law relevance is:- 1. Commissioners for Revenue and Customs Bill; 2. draft Corporate Manslaughter Bill; 3. Crown Employment (Nationality) Bill; 4. Disability Discrimination Bill; 5. Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill; 6. proposed Fraud Bill; 7. Health and Safety (Directors Duties) Bill; 8. Identity Cards Bill; 9. Income Tax (Trading and Other Income) Bill; 10. London Local Authorities (Prohibition of Smoking in Places of Work Bill; 11. Liverpool City Council (Prohibtion of Smoking in Places of Work) Bill; 12. draft Partnerships Bill; 13. Smoking in Public Places (Wales) Bill; 14 (Scotland) Smoking, Health and Social Care (Scotland) Bill (in the Scottish Parliament).
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. Cases reported in ICR 2005 pt 2 and in IRLR 2005 no 2 are noted/summarised in the current emplaw program and short commentary is provided. Wherever possible 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 cases, new and old.
The fact that an employee suffered stress at work and that his employer was in breach of duty in allowing that to occur does not automatically mean that the employee is entitled to compensation from the employer. This is not new law but has been stressed by the Court of Appeal in a series of recent cases. An employer's liability for psychiatric injury caused by stress at work is no different in principle from liability for physical injury and therefore it is only foreseeable injury flowing from the employer’s breach of duty which gives rise to liability.
The question of whether an unfairly dismissed employee who has "done the right thing" and quickly gone out and got a new job during what would have been his notice period if proper notice had been given should give credit for the appropriate part of earnings from his new job against his entitlement to pay in lieu of notice or whether he should be allowed to keep both amounts in full, is a question which, rather amazingly, is still unsettled more than 30 years after unfair dismissal law was introduced.
In January 2005 two different EAT panels, one chaired by the President and the other by HHJ McMullen, seem to have taken opposite views as to the proper answer, and as to how the relevant statutory provisions should be interpreted, in two different cases. Hopefully at least one of the cases will go to the Court of Appeal and that the question will then be finally resolved.
A "Payroll Giving" scheme enables employees to make donations to any UK charity straight from their gross salary before tax is deducted. For two years starting from January 2005, an Inland Revenue "Payroll Giving Grants programme" funded by the Home Office will reward small and medium sized businesses (less than 500 employees) which set up Payroll Giving schemes with a grant of between £300 and £500 and will match the first £10 of each employee’s monthly donations pound-for-pound for six months.
London and Liverpool readers of this newsletter may be interested to note that their cities are attempting to beat the national introduction proposed for 2008 of a ban on smoking in enclosed workplaces. On 24th January 2005 two private Bills called the London Local Authorities (Prohibition of Smoking in Places of Work) Bill and the Liverpool City Council (Prohibtion of Smoking in Places of Work) Bill had their first reading in the House of Lords. Readers north of the border will be more interested in progress in the Scottish Parliament of the Smoking, Health and Social Care (Scotland) Bill.
On 2nd February 2005 the government announced proposals for reform of Incapacity Benefit by 2008. Incapacity Benefit itself will be scrapped and instead there will be two new benefits to be called "Rehabilitation Support Allowance" and "Disability and Sickness Allowance" which will differentiate between those who have a severe condition and those with "potentially more manageable conditions". One of the ideas is to pilot placement of employment advisers in GP's surgeries so that doctor's surgeries could become the first step back to work "not the route to a life of inactivity".
The Employers' Liability (Compulsory Insurance) (Amendment) Regulations 2004, SI 2004/2882 come into force on Monday, 28th February 2005. One man companies (technically "Any employer which is a company that has only one employee and that employee also owns fifty per cent or more of the issued share capital in that company") will then no longer have to take out ELI.
The European Court of Justice has ruled that giving a notice of dismissal by reason of redundancy constitutes "redundancy" for purposes of the Collective Redundancies Directive 98/59/EC even though the notice will not expire for some time. The result is that if 20 or more employees at one establishment are to be made redundant it is unlawful under EC law for the employer to give any notices of dismissal until after the end of the 90 (or 30) day consultation period required by the directive. British rules (notably the Trade Union and Labour Relations Act 1992 s.188) will either have to be interpreted in accordance with this ruling or be amended accordingly.
In considering a discrimination claim the rules provide that a tribunal must go through two stages: The first stage is to ensure that the claimant (normally employee) establishes facts from which in the absence of an adequate explanation it can be concluded that unlawful discrimination for which the respondent (normally employer) is responsible has taken place - in other words the employee must make out a prima facie case. The second, subsequent, stage is that the burden of proof then shifts to the employer to demonstrate if he can, on the balance of probabilities, that there is an adequate explanation. If he fails to demonstrate this then the tribunal is required to assume that he is "guilty".
On 18th February 2005 the Court of Appeal provided detailed 13 point guidance, slightly changing guidance previously provided by the EAT, as to how the rules should be operated in practice.
In February 2005 the UNISON trade union announced it was on the verge of agreeing terms with the NHS in respect of work of equal value claims by female nurses, catering assistants, domestics, clerical officers, sewing machine assistants, porters and telephonists. As they can claim back pay for up to six years from the date of lodging the claim some of them will receive up to 14 years’ difference in pay plus interest, with a total bill to the NHS in the region of £300m.
Separately, on 22nd February 2005, the Court of Appeal confirmed a 2003 ruling by the EAT that civil servants cannot use colleagues of the opposite sex working in other government departments as comparators for equal pay purposes just because all of them are crown servants. Only civil servantes working in the same government department can be used as comparators.
Finally, an advance reminder that as from 6th April 2005, it will be obligatory to use the new ET1 and ET3 forms provided by the employment tribunals service when making or responding to a claim in an employment tribunal.