Employment Law News
January 2005

Here is our latest Employment Law newsletter . We hope you will also visit our web site at www.oxford-employment-law.co.uk which now includes a comprehensive and regularly updated free employment law section available for you to use whenever and as often as you like to find answers to basic employment law questions. We will, of course, be pleased to assist you with individual advice when that is required.

Clickable "what's new" index


1. Bills before Parliament (employment related)
2. Royal Assents in 2004 (employment related)
3. New ICR and IRLR case reports
4. TUPE and Pensions
5. Increases in tribunal compensation limits
6. Equality and Human Rights Commission
7. Smoking at work
8. Homeworkers
9. Working Hours
10. Freedom of Information
11. Costs in tribunals
12. Employers Liability Insurance

1. Bills before Parliament (employment related)

The following Bills with employment law relevance are currently in draft or before Parliament, in addition to others proposed in the Queen's Speech:-

1. Commissioners for Revenue and Customs Bill;  2. draft Corporate Manslaughter Bill;  3. Disability Discrimination Bill; 4. proposed  Fraud Bill;  5. Identity Cards Bill;  6. Income Tax (Trading and Other Income) Bill;  7.  draft Partnerships Bill


(return to top)

2. Royal Assents in 2004 (employment related)

The following Acts with employment law relevance have been enacted during 2004:-

1. Asylum and Immigration (Treatment of Claimants etc) Act 2004;  2. Carers (Equal Opportunities) Act 2004;  3.  Companies (Audit, Investigations and Community Enterprise) Act 2004; 4. Christmas Day Trading Act 2004; 5. Employment Relations Act 2004;  6. Fire and Rescue Services Act 2004; 5. Gangmaster (Licensing) Act 2004; 7. Gender Recognition Act 2004; 8.  National Insurance Contributions and Statutory Payments Act 2004;  9.  Patents Act 2004.


(return to top)

3. New ICR and IRLR case reports

A unique feature of this program is provision of thumbnail summaries and/or or headnotes of all cases reported in current editions of the ICR and IRLR law reports.   Cases reported in ICR 2004 pt 13 and in IRLR 2004 no 12 are noted/summarised in the current emplaw program.  Wherever possible there are links to full text judgments, usually on the Court Service and/or BAILII websites. This is in addition to linked thumbnail summaries and/or headnotes of more than 1,500 other cases, new and old.




(return to top)

4. TUPE and Pensions

The Pensions Act 2004 received Royal Assent on 18th November 2004.  It includes provisions which will effectively bring pension rights within the scope of the TUPE regulations,  providing employees with increased pension rights in circumstances where those regulations apply.  The details are in draft Transfer of Employment (Pension Protection) Regulations 2005,  issued in December 2004 along with draft Personal and Occupational Pension Schemes (Indexation and Disclosure of Information) (Amendment) Regulations 2005 which remove the requirement for indexing pensions derived from money purchase pension schemes.  The new rules are expected to come into force in April 2005.


(return to top)

5. Increases in tribunal compensation limits

The limits on the maximum amounts which employment tribunals can award in unfair dismissal cases (and in some other cases) are increased annually in line with inflation.  The next set of increases has been announced and is due to take effect where the "appropriate date" (typically the date of dismissal)  is on or after 1st February 2005.  The absolute maximum possible award on unfair dismissal will then rise from £63,100 to £65,200.   Discrimination cases are not affected as there is no statutory limit to the amount employment tribunals can award in such cases.


(return to top)

6. Equality and Human Rights Commission

The various "anti-discrimination" bodies (the Equal Opportunities Commission, the  Commission for Racial Equality, the Disability Discrimination Commission) are to be amalgamated into one super  "Equality and Human Rights Commission".  The new Commission will start operating in 2007, by which time rules outlawing age discrimination in employment will be added to the raft of current anti-discrimination rules -  since December 2003 these have included rules on religious discrimination and sexual orientation discrimination.  Because of its sensitive position, especially in relation to the Muslim community, the Commission for Racial Equality has negotiated special arrangements to allow it to continue as a separate body for a couple of years or so after 2007.  And while on the subject of religious discrimination, employers, especially those with both non-Christian and Christian employees, should take great care to be sure they are aware of the rules and how they might affect their Christmas parties this year.


(return to top)

7. Smoking at work

In the British Isles, Ireland was the first to ban smoking in enclosed public places, including work places.  Scotland was next to announce anti-smoking proposals, soon followed by a White Paper of 16th November 2004 making similar (but not identical) proposals for England and Wales. The intention is that "by 2006, all government departments and the NHS will (subject to limited exceptions) be smoke free" and that there will be consulation "...... on detailed proposals for regulation with legislation where necessary, so that by the end of 2008, all enclosed public places and workplaces will be smokefree except those specifically exempted".   Employers should, however, already be careful - in least one case an employer is reported to have agreed a substantial out of court settlement  for an employee who complained that his asthma was caused by years of working in the smoke-laden atmosphere of a casino.


(return to top)

8. Homeworkers

A group of homeworkers, sometimes known as "the Gosport Nine", have been fighting for some time for full employment law rights.  They have lost.  The EAT has held in Bridges & ors v Industrial Rubber plc that the absence of "mutuality of obligation" in their contracts was fatal to their cause and that they  were not "employees" within the meaning of the Employment Rights legislation.   The case did not make new law but the judgment will make interesting reading for homeworkers, for those who make use of their services and for their advisers.


(return to top)

9. Working Hours

The EAT has held in Clamp v Aerial Systems that an employee who agreed to work more than the legally enforceable maximum of 48 hours (average) a week but later exercised his right to change his mind and insist on working no more than the 48 hour maximum, could not claim that he had suffered an unlawful "detriment"  when his employer made an appropriate reduction in his pay.


(return to top)

10. Freedom of Information

As  is well known, from 1st January 2005 the Freedom of Information Act 2000 will ensure that public authorities in England and Wales, including local authorities and parish councils, must disclose information to the public on request, subject to  significant exceptions.   What is less well known is that the government is proposing a 300% extension to the time allowed for public authorities to comply with their obligations under the Act - from 20 working days to 60 working days.


(return to top)

11. Costs in tribunals

Employment tribunals are not courts.  Nevertheless they often seem to be becoming more "court-like" in their operations.   One example of this is a trend for tribunals to award costs against a losing party.  The EAT had to correct an employment tribunal in a case last month in which the tribunal awarded  costs against a losing party when it should not have done.  The tribunal had taken the view that an ex-employee acted unreasonably in rejecting an "out of court" settlement offer by his former employer and therefore had acted unreasonably in continuing to pursue his case.   The employee ultimately lost  and the tribunal ordered him to pay £7,500 costs.  The EAT quashed the costs order pointing out that  the  relevant consideration under the tribunal rules of procedure is whether the loser had had an arguable case  not whether he turned down a settlement offer (Lake v Arco Grating (UK) Ltd., EAT on 3rd November 2004)


(return to top)

12. Employers Liability Insurance

Finally, a small change in the rules requiring compulsory employer liability insurance to protect employees is worth noting. A sole trader with no employees obviously does not have to take out this insurance simply because he has no employees.  However if he incorporates his business the position changes. He then becomes an employee of his company and the company is obliged to take out ELI cover. After a full blown consultation this rather anomalous position is to be changed with effect from 28th February 2005. From that date any employer which is a company with only one employee will not have to take out ELI if the employee owns at least 50% of the company's issued share capital.


(return to top)

prepared 8th December 2004.
FINISH>