There are currently 18 employment law related Bills before Parliament or known to be at draft stage, plus another 2 before the Scottish Parliament. Four new relevant Bills have been introduced in the last few weeks, namely (i) the Energy Saving (Daylight) Bill ; (ii) a Freedom of Information (Amendment) Bill; (iii) a Health and Safety (Offences) Bill; and (iv) a UK Borders Bill.
Notes on all of these (plus notes on relevant Acts of Parliament) are provided from the links below. The links below also provide an archive of recent dropped and/or lapsed employment law related Bills.
Summaries of all cases reported in ICR 2007 parts 1 and 2 and in IRLR 2007 vol 36 nos 1-3 are now noted/summarised on our website as well as ALL cases reported in ICR and IRLR since January 2000. This is in addition to summaries and/or headnotes of around 2,000 other employment cases, new and old. For most there are direct links to free versions of the full judgments on the internet.
The four Bills noted here, introduced in Parliament during January and February 2007, have direct or indirect relevance to employment law.
(i) Energy Saving (Daylight) Bill. Proposes to advance time by one hour throughout the year for an experimental period thus bringing time in England into line with the rest of Western Europe. The effect will be lighter evenings and darker mornings.
(ii) Freedom of Information (Amendment) Bill. Proposes new exemptions for Parliament and MP's.
(iii) Health & Safety (Offences) Bill. Proposes increases in penalties for Health & Safety offences.
(iv) UK Borders Bill. Includes proposals to extend power to arrest individuals who knowingly employ illegal workers.
While on the subject of Bills before Parliament, those interested in the Corporate Manslaughter and Corporate Homicide Bill may care to read the Hansard report on the debate in the House of Lords on 5th February. The government was heavily defeated when Peers of all parties passed an amendment designed to ensure that those responsible for deaths in custody would not be exempt.
A person provided by an employment agency to a 3rd party end user may be an employee of the agency or of the end-user or of neither. In the event of a dispute, the question is important not only so that the employee knows against whom to make a claim but also because a pre-condition for many employment law rights (notably unfair dismissal) is that the claimant should be, or have been, an "employee" as defined by the Employment Rights Act 1996. If he or she is not an "employee" as defined he or she simply will not have many statutory rights.
There has been a discernible trend in recent years for the courts and tribunals to imply a contract of employment with the 3rd party end user. However this is by no means automatic and in two recent cases the EAT found that the worker was not an employee of the end user. In both cases the EAT called for Parliament to clarify the position - a DTI Consultation on "Measures to Protect Vulnerable Agency Workers", issued in February 2007, may lead to legislative change. The practical message is that great care should be taken by employment agencies and their clients to ensure that they all understand the position in any particular case. It is prudent from all parties' points of view to have proper contractual documentation drawn up to ensure that everyone knows where they stand.
When deciding whether a dismissal is unfair the law requires employment tribunals to consider whether "in the circumstances .... the employer acted reasonably or unreasonably" in treating the reason for the dismissal as sufficient to warrant dismissal. On Valentine's day this year the EAT made it absolutely clear that "the circumstances" do not include an expired final warning. Thus if, as is quite common practice, an employer states in a final warning to an employee that that warning will last for a specific time then as soon as that time has elapsed that is the end of it. In particular it is no longer a "circumstance" which can be taken into account in deciding whether the employer acted reasonably at a later date in dismissing that employee.
In the case in point (Airbus UK Ltd v Webb) five employees were guilty of miconduct but only one, Mr Webb, was dismissed. He had been "guilty" of a similar offence in the past and had been given a final written warning. He won an unfair dismissal claim on the basis of inconsistent treatment. Airbus UK appealed, claiming that in deciding to dismiss him and not the others it had been permissible for it to take into account a recently expired final warning. The EAT, while accepting that it was a finely balanced point, said that expired warnings must be ignored. Airbus lost their appeal.
Both sides were represented by very experienced employment law barristers and the EAT panel was headed by the President, Mr Justice Elias, so this decision can be taken to be authoritative - unless there is a further appeal to the Court of Appeal. It is worth noting that in coming to its decision the EAT said "If employers are going to be denied the right to have regard to expired warnings in any circumstances, then they must be allowed reasonable flexibility to formulate their rules to allow for exceptional cases. This will inevitably make them more complex. Of course, whatever the rules, they must always be carefully drafted and clearly drawn to the attention of employees" (our emphasis).
As a general rule, overtime, pension contributions, expenses payments, allowances and benefits in kind do not count as payments by an employer to a worker for the purposes of the National Minimum Wage. An exception to this general rule is provision of living accommodation. This counts as pay for NMW purposes but only up to a daily amount calculated in accordance with a complicated formula and subject to a low absolute maximum (currently £3.90 per day).
In February 2007 the Court of Appeal upheld an EAT ruling that Butlins Holiday companies were acting unlawfully in charging staff for the cost of heat and light in their accommodation as part of their pay package when the result was that wages the staff actually received fell below the National Minimum Wage. HMRC, who enforce the minimum wage said after the case "This ruling is good news for all workers living in accommodation provided by their employer.........Where we suspect employers are paying less than the minimum wage we investigate and where necessary pursue cases to Tribunal."
As is well known, the TUPE regulations ensure that when a business changes ownership (as well as in various other situations) the new owner automatically becomes the employer of any employees working for the business. The terms of employment of the "taken over" employees cannot be changed, even with consent of the employee(s), if the reason for the change is the transfer or a reason connected with it - in those circumstances the general rule is that any changes to employment contracts are void. Any attempt to agree that the regulations shall not apply is also void. The regulations provide for an exception if the change is for "an economic, technical or organisational reason entailing changes in the workforce" and at the end of January the EAT ruled that there is another exception. The EAT ruled in Power v Regent Security Services Ltd that the change will not be void, regardless of the wording of the regulations, if it is to the benefit rather than the detriment of the employee(s).
This conclusion is in line with the stated purpose of the EC Acquired Rights directive which is to provide "protection of employees in the event of a change of employer". However on the face of it is a direct contradiction of what the British TUPE regulations say. It therefore requires a full explanation. A main part of the explanation provided by the EAT is that the TUPE regulations implemented that directive and were drafted "under s.2(2) of the European Communities Act and that does not permit the regulations so drafted to go beyond the purpose of giving effect to European law. To the extent that they do, it seems to us that they must be invalid". On this basis the EAT felt able, in effect, to disregard the actual wording of the UK regulations and give them a "purposive interpretation". We understand that an appeal to the Court of Appeal is pending.
Since April 2003 parents and some others responsible for looking after children aged under 6 (or under 18 if the child is disabled) have had the legal right if they have worked for their employer for at least six months to ensure that requests they make for flexible working, such as part-time work or work at home, are taken seriously by their employers. With effect from 6th April 2007 this right to request flexible working is extended to employees with responsibility for caring for (i) spouses/partners (ii) adult relatives and (iii) adults living at the same address as the employee. There are various grounds on which an employer can lawfully refuse such a request, failing which the employee can apply to an employment tribunal for compensation. Some have successfully done so.
Flexible working arrangements are part of an on-going trend. The BBC reports that in a book due to be published in May the children's minister, Beverly Hughes, will suggest that workers without children should have the same right as parents to request flexible working.
Premiums for compulsory Employers' Liability policies may increase again. New regulations came into effect on 29th January 2007 setting out amounts which an employer paying compensation to an employee for injury will be liable to reimburse to the NHS in respect of treatment and for ambulance service charges in taking the employee to hospital. The NHS charges are set initially at £159 per ambulance journey, £505 for treatment without hospitalisation and £620 per day for treatment with hospitalisation. There is an overall cap of £37,100 per injured person. In practice employers will no doubt generally seek to claim under their Employers' Liability policies and clearly insurers will want to pass the extra costs on to employers in the form of higher premiums.
A Court of Appeal judgment some eight years ago found that a Mr Tanton was not, in law, an "employee" of Express & Echo Publications Ltd. This was mainly because his contract included an express clause stating he was not required to perform services personally. The finding that he was not an "employee" meant he was unable to bring a particular claim against Express & Echo. The Court of Appeal pointed out that if the clause had been a sham it would have had no effect but also said that "if a term is not enforced that does not justify a conclusion that such a term is not part of the agreement". Since then, in appropriate situations where parties to a work contract wish to demonstrate for whatever reason that a worker is not an "employee" (as defined by the Employment Rights Act) it has been common practice to include a similar clause in the belief that it would follow, provided the clause was not a sham, that the worker would not be regarded as an "employee" for purposes of that Act.
In a case on 31st January 2007 the EAT has made it clear that in determining whether a worker is or is not an "employee" there is no rule that "a written contract is conclusive unless it is a sham or has been varied". It follows that even if his contract includes a clause providing that he is not required to perform services personally and even if that clause is not a sham it is possible that a worker will in law be an "employee". It seems that the important test in future will be to consider whether the clause is realistic rather than whether it is a sham. As many employment law rights, including unfair dismissal, can be claimed only by those who are technically employees this can be of considerable practical importance.
Finally, some good news for employers. The Court of Appeal ruled in February 2007 that if an employer has carefully considered medical and occupational health advice in deciding whether an employee who may be medically unfit to do their job can continue in their role there is no obligation in law for the employer to carry out a "formal risk assessment".
An employment tribunal had awarded a Ms Hay, an ex-employee of Surrey County Council £45,998.67 for unfair dismissal and £1,000 for disability discrimination by way of injury to feelings essentially on the basis that it was unjustifiable for the Council not to have commissioned a formal risk assessment in respect of her position. Her ability to continue doing her job as a Mobile Library manager had been severely impaired after surgery on her knee. Surrey won an appeal to the EAT in April last year. Ms Hay appealed to the Court of Appeal but has lost - the EAT's decision has now been confirmed.