1. Bills before Parliament (employment related)

Since our December 2003 newsletter, the following new Bills with employment law relevance have been introduced in Parliament:


1. Patents Bill; 2. Gangmaster (Licensing) Bill; 3. Smoking in Public Places (Wales Bill).

These are in addition to the 12 Bills and draft Bills notes in our December newsletter, viz:-


1. Armed Forces Pensions Compensation Bill; 2. Asylum and Immigration (Treatment of Claimants etc) Bill; 3. Civil Partnership Bill; 4. Companies (Audit, Investigations and Community Enterprise) Bill; 5. Draft Disability Discrimination Bill; 6. Employment Relations Bill; 7. European Union Bill; 8. Fire and Rescue Services Bill; 9. Gender Recognition Bill; 10. National Insurance Contributions and Statutory Payments Bill; 11. Partnerships Bill; 12. Pensions Bill;

2. New compensation limits

3. Disciplinary and Grievance Procedures

Draft regulations before Parliament provide that with a few exceptions, employers must operate new obligatory procedures before dismissing an employee from 1st October 2004. Detailed changes make the regulations more precise but longer and more complicated than the original draft issued in summer 2003. There is no exemption for small employers and their current exemption from rules requiring employers to give employees details of disciplinary and grievance procedures is to end. All employers should take advice or otherwise make themselves aware of the new rules in good time.

4. Employment Agency arrangements

New regulations will come into force on 6th April 2004 (save for parts applying where people provide their services through limited companies which come into force on 6th July 2004). Important features include new rules about "temp to perm" fees charged by agencies and new rules requiring agencies which are "employment businesses" (as defined) to specify to a hirer whether a work seeker being provided is employed by the agency or is self-employed.

5. Staff dress codes

There were several tribunal cases in 2003 in which men claimed that it was unlawful sex discrimination for them to be required to wear a tie at work. Some cases went one way, some the other. In one of these cases (Thompson v Department for Work & Pensions - Job Centre Plus) which recently came before it, the EAT clarified the relevant law while still leaving each case to be decided on its own merits. The employer won in the sense that the EAT remitted the case back to a different tribunal for reconsideration in light of its clarification of the law, the original tribunal having used a wrong test when it found that the DWP's requirement that Mr Thompson should wear a collar and tie at work was unlawful sex discrimination.

6. Equal Pay

Two important cases, one in the European Court of Justice the other in the English Employment Appeal Tribunal have clarified the law on choice of comparators when women are making claims for equal pay with men (or vice-versa) for work of equal value. Both confirm that a woman will fail in an equal pay claim unless the terms and conditions of her employment and those of her chosen comparator are fixed by a "single source". The EAT case goes much further and establishes that to show a "single source" it is not enough for a woman to show that she and her chosen comparator have the same employer. In addition the organisation must be such that her terms of employment and those of her comparator are under the control of a 'single source' which has ".... central responsibility for terms and conditions. If that is absent, then comparability is not available". The EAT ruling will be welcomed by the government as employer of civil servants but may suggest a loophole for other large scale employers.

7. Sex and religious discrimination

There is scope for conflict between the new Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 both of which came into effect in early December 2003. For example, what happens if a bible fundamentalist is sacked for objecting to working alongside a homosexual? We don't yet know for sure but any one having to consider this issue might find it useful to read a January 2004 judgment of the US Court of Appeals in a case in which a similar problem arose.

8. Discrimination compensation

The Court of Appeal confirmed on 21st January 2004 that in discrimination cases the test for deciding whether an employer is liable to pay compensation for psychiatric injury suffered by an employee is NOT whether the injury was reasonably foreseeable but is simply whether unlawful discrimination caused it.

9. Common commencement dates for employment law changes.

10. Courts Martial

11. Clergymen

Ministers of Religion are, in general, "office holders" not "employees". There is no proposal to change this but the Church of England has indicated in January 2004 that it will support plans for many (but not all) employment law rights of employees to be extended to clergymen. This is likely, for example, to give Church of England clergy the right they do not have at present to claim compensation if they are unfairly dismissed.

12. Can overseas staff claim unfair dismissal?

After an unfortunate court ruling in 1999 the government repealed the part of the Employment Rights Act 1996 (s.196) which provided for how the Act applies to employment outside Great Britain. This simple solution to a problem led to more confusion. Of course the basic rule was and remains that an employee who has a wholly foreign employment does not have employment law rights enforceable here. However there continue to be grey areas. The Court of Appeal has helped a little in ruling on 23rd January 2004 that an employee does not have British employment law rights enforceable here just because his employer is incorporated in, or carries on business in, England and Wales. This removes one element of possible uncertainty but otherwise the Court's delphic statement that "The question is: what are the employments covered by the [unfair dismissal] section? The answer, in our judgment, is ......... employment in Great Britain" is hardly helpful. Expert advice still needs to be taken in any individual case.