The following Bills with employment law relevance are currently in draft or before Parliament. Four new employment law related Bills have been introduced since the last update of this list, viz the Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill (12.1.2005), Health and Safety (Directors Duties) Bill (12.1.2005), Smoking in Public Places (Wales) Bill (12.1.2005) and the (Scottish) Smoking, Health and Social Care (Scotland) Bill (16.12.2004 in the Scottish Parliament).
1. Commissioners for Revenue and Customs Bill; 2. draft Corporate Manslaughter Bill; 3. Disability Discrimination Bill; 4. Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill; 5. proposed Fraud Bill; 6. Health and Safety (Directors Duties) Bill; 7. Identity Cards Bill; 8. Income Tax (Trading and Other Income) Bill; 9. draft Partnerships Bill; 10. Smoking in Public Places (Wales) Bill; 11 (Scotland) Smoking, Health and Social Care (Scotland) Bill.
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 2004 pt 14 and in IRLR 2005 no 1 are noted/summarised in the current emplaw program and short commentary is provided. Wherever possible there are direct links to full text 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.
On 14th December 2004 the government announced that: "We have ......... decided that the legislation, which will come into force in autumn 2006, will provide for a national default retirement age of 65 and a right for employees to request working beyond the set retirement age". So to that extent age discrimination in employment will continue to be lawful in GB even after the 1st October 2006 deadline imposed by the EC Equal Treatment Framework Directive 2000/78/EC
The Information and Consultation of Employees Regulations 2004 , SI 2004/3426 were made on 21st December 2004 and are in force from 6th April 2005 for larger employers (150+ employees). In 2007 the regulations will cover employers with 100+ employees and in 2008 it will cover employers with 50+ employees, Numbers will be averaged over 12 months. In some ways this will be the single most important piece of employment legislation ever introduced in Britain as it makes euro-style consultation compulsory and will no doubt lead to development of a new employee participation culture. However smaller business will not be directly affected - the DTI says that "Businesses with 50 or more employees account for about 3% of all businesses in the UK, and about 75% of UK employees".
Of interest to employment lawyers and advocates, the 2002 Employment Appeal Tribunal Practice Directions were replaced on 9th December 2004, their 2nd anniversary, by new Practice Directions. These follow from the new EAT Rules of Procedure introduced in October 2004. Changes from the previous PD include introduction of a new direction 17 (hearings) and new direction 20 (review). Other changes include an expanded version of the directions on Costs, with a specific paragraph dealing with Wasted Costs orders against representatives.
Important provisions of the Employment Relations Act 2004 came into force on 31st December 2004, significantly strengthening the protections provided to unions and to their members and prospective members against interference by employers in relation to union membership and activity. Repeal of the Thatcher government's notorious "Ullswater amendment" also came into effect. Other changes now in operation include extension to all "workers", not just "employees" of protection against employer interference with individual's trade union rights.
Part 4, the final part of this Code of Practice, was issued by the Information Commissioner in December 2004. It deals with "Information about Workers' health" (part 1 issued in March 2002 dealt with "Recruitment and Selection", part 2 issued in August 2002 dealt with "Employment Records" and part 3 issued in June 2003 dealt with "Monitoring of Employees"). Also in December 2004, there was a non-employment High Court case confirming that while Codes of Practice are influential and important, failure to abide by them does not of itself automatically result in breach of the law (see BBC News Report "Oratory school wins legal battle", 17th Dec 2004).
Is a worker whose normal pay includes a "rolled-up" holiday pay allowance and who is therefore not normally paid while on holiday nevertheless entitled to be paid during the holiday to which he is entitled under the Working Time Regulations? There have been conflicting decisions on this question and a case which should clarify the position is due for hearing by the European Court of Justice. In the meantime, in an effort to sort out the confusion and subject to anything arising from the ECJ's decision when it arrives, the President of the EAT has redrafted guidelines "for future guidance of employment tribunals". The nub of what he set out in Smith v AJ Morrisroes and Sons Ltd and other appeals is that unless there is "..... mutual agreement for genuine payment for holidays, representing a true addition to the contractual rate of pay for time worked" an employee will normally be able to claim pay while absent on holiday even though his normal pay includes what the employer regards as rolled up holiday pay. There is, of course, more in the detail and up to date expert advice should be taken in any relevant situation.
If an employee accepts a cash payment in exchange for agreeing new terms of employment, the payment will be taxable in the normal way as part of his remuneration. Or will it? What if the scenario is changed to produce the same economic effect by a different legal route? The employee might refuse to accept the new terms, claim constructive unfair dismissal, settle out of court for cash and then go back to work on the revised terms. The economic effect might be exactly the same but what would the tax consequences be? The High Court held in April 2004 that in the latter case the cash amount would be tax free under the normal "compensation for loss of office" tax rules so long as it was less than £30,000 and provided the events were genuine. The Inland Revenue took the case to the Court of Appeal, which has now given its ruling. Those interested in knowing the result are encouraged to contact their advisers and/or to look at the summary of the case on the emplaw website - the issues involved are too complex for a short summary such as this.
New rules come into force on 1st April 2005 which will require all advisers (including solicitors) who conduct publicly funded immigration and asylum work to be accredited under one of the 3 levels provided for by a new Immigration and Asylum Accreditation Scheme. The criteria and standards for accreditation at each level are set out in a "Competence Standards and Work Restrictions document" issued by the Legal Services Commission.
Finally, although this is repetition of a note from last month's newsletter, a reminder that the limits on the maximum amounts which employment tribunals can award in unfair dismissal cases (and in some other cases) will soon be increased. If the "appropriate date" (typically the date of dismissal) is on or after 1st February 2005 the absolute maximum possible award on unfair dismissal (ie compensatory award plus basic award) will rise from £63,100 to £65,200. The compensatory award element cap will rise from £55,000 to £56,800. Discrimination cases are not affected as there is no statutory limit to the amount employment tribunals can award in such cases.