The list of employment law related Bills before Parliament and draft Bills of which details are known remains as in our last newsletter. The National Insurance Contributions and Statutory Payments Bill received Royal Assent on 13th May 2004
1. Armed Forces Pensions Compensation Bill; 2. Asylum and Immigration (Treatment of Claimants etc) Bill. 3. Carers (Equal Opportunities) Bill; 4. Christmas Day Trading Bill; 5. Civil Partnership Bill; 6. Civil Service Bill; 7. Companies (Audit, Investigations and Community Enterprise) Bill; 8. Corporate Killing Bill; 9. Crown Employment (Nationality) Bill; 10. Draft Disability Discrimination Bill; 11. Employment Relations Bill; 12. European Union Bill; 13. Fire and Rescue Services Bill; 14. Gangmaster (Licensing) Bill; 15. Gender Recognition Bill; 16. Health & Safety at Work (Offences) Bill; 17. Human Rights Act 1998 (Making of Remedial Orders) Amendment Bill; 18. Income Tax (Trading and Other Income) Bill. 19. Partnerships Bill (proposed); 20. Patents Bill; 21. Pensions Bill; 22. Retirement Income Reform Bill (withdrawn); 23. Sex Discrimination (Clubs and Other Private Associations) Bill; 24. Smoking in Public Places (Wales Bill); 25. Tobacco Smoking (Public Places and Workplaces) Bill
A unique feature of emplaw.co.uk provision of notes and thumbnail summaries or headnotes of all cases reported in the current editions of ICR law reports and IRLR law reports. Wherever possible (ie almost always) emplaw also provides direct links to the full text judgments. This is in addition to linked thumbnail summaries or headnotes of more than 1,500 other cases, new and old.
On 27th May 2004 the Court of Appeal, as promised in April, referred four questions to the European Court of Justice. Thus will hopefully lead to final answers to knotty questions about the effectiveness in law of the practice of rolling-up holiday pay. One of the important questions asked concerns whether an employee can get a windfall by effectively being paid twice if rolled up holiday pay is found to be "unlawful" by the 1993 Working Time Directive.
As is well known, new regulations outlawing discrimination in the employment field on grounds of sexual orientation or of religion or belief came into force in December 2003. The regulations provide for a questionnaire procedure similar to that available in race, sex and disability discrimination cases to help employees obtain relevant information from their employers. The DTI has now issued approved forms of questionnaire for use in cases where employees are considering making claims under the 2003 regulations.
The new legal "duty to manage" asbestos under the Control of Asbestos at Work Regulations 2002 came into effect on 21st May 2004. As from that date employers have had a specific new duty to identify, record and deal with materials likely to contain asbestos and may even be prosecuted if they fail to do so.
In considering asbestos-related matters two other developments should be noted. Firstly the Court of Appeal ruled in May 2004 that an employer's liability in respect of an employee's exposure to asbestos was not reduced on grounds that after his employment ended the employee had been self-employed in an occupation also involving exposure to asbestos. The case was Barker v St Gobain Pipelines plc [2004] EWCA Civ 545. Secondly, attempts in the USA to end asbestos related litigation by setting up a no-fault compensation fund for victims (current and future) of asbestosis related illnesses have failed, at any rate for the time being. In late April 2004 the Democrats blocked the Fairness in Asbestos Injury Resolution Bill (FAIR) in the Senate, essentially on grounds that the idea as proposed was more beneficial to insurance companies than to mesothelioma sufferers and their families.
An obvious and well-known problem in calculation of compensation in unfair dismissal cases concerns the order of making percentage reductions (for example percentage reductions to take account of contributory fault by the employee or where a dismissal is unfair because an employer used unfair procedures but the employee probably would have been dismissed anyway if fair procedures had been used). As a matter of simple arithmetic, very different cash results can follow depending on the order in which percentage reductions are made. In a recent case a tribunal avoided the issue altogether by simply aggregating the percentages, resulting in a total reduction of over 100% and an award of nil compensation. The EAT in Singh v Watch Security Ltd was quick to put this right and to draw attention to the proper way in which such matters should be handled.
Phasing out of the "Modern Apprenticeships" scheme and introduction of a new apprenticeship system was announced by the Government in May 2004, to begin in September. This follows recommendations of the Gardner Taskforce set up last year. There will be no age cap and a young apprenticeship scheme will allow 14-16 year olds time off school to learn a trade.
Two new Codes of Practice produced by the Disability Rights Commission are to come into force on 1st October 2004. These will reflect changes to the Disability Discrimination Act 1995 on the same date. Also, in May 2004 the government issued a White Paper on "A new Commission for Equality and Human Rights", the general idea being to set up a single "Equality and Human Rights Commission" to replace the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission and to have other human rights and anti-discrimination functions. Finally the Law Society, with concurrence of the Master of the Rolls, has issued new Solicitors Anti-Discrimination Rules 2004 covering solicitors in their professional dealings with their staff, partners, other solicitors, barristers, clients or third parties.
A litigant who insists on taking an action to court and refuses mediation runs the risk that the court will refuse to award him costs if he wins. The issue of refusal to take part in ADR (alternative dispute resolution) generally was recently considered in depth by the Court of Appeal (in May 2004 in Halsey v Milton Keynes General NHS Trust and Steel v Joy & Halliday [2004] EWCA (Civ) 576). A new twist was that the Court of Appeal suggested the burden of proof should be on the losing party to demonstrate that the successful party acted unreasonably in refusing ADR.
The new draft regulations are still not available, although as noted previously important aspects relating to pensions are covered by the Pensions Bill now before Parliament. In the meantime, attention should be drawn to an April 2004 EAT case showing how arbitrary the application of the TUPE regulations can be. Having successfully competed for the contract to do so, a new security company was appointed to guard a site at 50 The Broadway, Westminster, London. Although they had no way of finding out about it in advance, the company inherited responsibility for a claim of sex discrimination, bullying and harassment brought by one of the employees of its predecessor. As the EAT pointed out, the current version of TUPE thus provides commercially attractive possibilities for less scrupulous contractors engaged in tendering for service contracts.
On 20th May 2004 the government announced the beginnings of a fundamental reform of the law affecting employment of children and young persons. The main recommendations of the Better Regulation Task Force’s report "The Regulation of Child Employment" issued earlier in the year have been accepted. The changes are potentially quite radical. The fundamental proposal is that for a system of regulation whereby an employer will register with the relevant local authority as an employer of school-age children, rather than apply for a permit for each child employee. Consultation on the detail is likely to start soon.
Finally, simply because of the amount of money involved not because of any points of law, it is worth drawing attention to this ongoing tribunal case in which Merrill Lynch, the international investment bank, is fighting a massive claim by a former female employee accusing it of corporate sexism. When the industrial (later employment) tribunal system was set up in the early 1970's a tribunal had power to award compensation of only a few thousand pounds as an absolute top limit. Now, just a little over 30 years on, the Croydon tribunal is being asked to make an award of around £7.5m! The case is expected to run on well into July.