At 17th June 2006 there were some 28 Bills with employment law relevance either already introduced in Parliament or at an advanced stage of preparation, including a Human Rights Commissioner Bill in the Scottish Parliament. One new private member's employment law related Bill, the Sunday Trading Act 1994 (Amendment) Bill, was introduced in May 2006. In addition, the government has heeded criticism of its Legislative and Regulatory Reform Bill and has proposed amendments to water down the enormous powers which would otherwise have been given to Ministers to change the law without reference to Parliament.
Notes on all the employment law related Bills and prospective Bills (including notes on recently enacted Bills and employment law related Acts of Parliament) are provided from the link below, together with an archive of recent lapsed employment law related Bills.
Summaries of all cases reported in the ICR and IRLR law reports since end 1999 are now available. All cases reported in ICR 2006 parts 1 to 6 and in IRLR 2006 vol 35 nos 1 to 7 are now noted/summarised and short commentary is provided. This is in addition to summaries and/or headnotes of more than 1,500 other employment cases, new and old. For most new cases there are direct links to free versions of the full judgments on the internet.
Details of proposals to increase the legal right to paid annual holidays from the current 20 days to 28 days per year for full time workers (pro rata for part timers) are in a DTI consultation paper issued in June. Two main points appear from the consultation paper: (i) in spite of recent official indications to the contrary, the new right will be phased in over 3 years starting with four extra days paid holiday from October 2007; and (ii) although the proposal is inspired by the fact that workers currently do not have a legal right to paid time off on public and bank holidays, it seems that the additional 8 days paid holiday will not have to be taken on public or bank holidays.
Enabling legislation is in the Work and Families Bill currently before Parliament. The consultation ends on 22nd September 2006.
Under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034 a fixed term employment contract is automatically converted into a contract of indefinite duration once the employee has completed four years continuous employment under that contract (or renewals of it). However service before 10th July 2002 does not count. Employers should take note that therefore from 10th July 2006 any fixed-term contracts which have been running for four years or more will generally be automatically converted to indefinite contracts.
If a worker has been negligently exposed to asbestos fibre in several different employments (or in self-employment) over a period of years there is a major problem in apportioning liability for any injury he sustained. In 2002 the House of Lords ruled in the Fairhaven case that an employee could claim compensation even if he could not demonstrate which employer he was working for when he inhaled the particular fibre(s) which led to the disease. Now in May 2006 (Barker v Corus (UK) plc) the House of Lords has ruled that liability should not be joint and several amongst the employers but should be apportioned between them according to how long the exposure to asbestos lasted in each employment. As the asbestos exposure may have been many years ago and some of the employers concerned have gone into liquidation, the result can be to the detriment of affected employees.
There has been considerable criticism of this decision and there are even reports that the Prime Minister later told the GMB annual conference that he hoped to introduce legislation to, in effect, override this 2006 House of Lords judgment.
The Court of Appeal ruled on 25th May that dismissal of an employee who was a member of a racist group (in this case the BNP), and who was dismissed because of the danger that his continuing employment might lead to violence in the workplace, could properly be regarded as being for legitimate health and safety reasons. It was therefore not unlawful race discrimination. In coming to this decision the Court of Appeal reinstated the original employment tribunal decision and overruled the Employment Appeal Tribunal.
A decision of potentially huge importance was handed down by the Newcastle employment tribunal in early June 2006. Female council workers, especially in the North, have enjoyed enormous successes recently in bringing equal pay claims against their employers. One particular solicitor, Stefan Cross, and his firm Action4Equality have been behind many of the successful claims which are costing local authorities millions. Unions are concerned that much of the cost will have to be funded by job losses and/or cuts in hours and/or privatisation/outsourcing and have therefore been tempted to encourage the women concerned to settle their cases for more reasonable amounts than those which they might win if they pursued their cases through legal process. In the Newcastle tribunal case, a group of such women sued the GMB union under a slightly obscure section of the Sex Discrimination Act and have won (some reports suggest they will be entitled to around £1m from the GMB). The GMB has said it will appeal to the EAT.
Differences in pay based on length of service will generally be unlawful as from 1st October 2006 when the new Age Equality rules come into effect. However, quite apart from those rules, there can be sex discrimination implications. If most of those with longer service and more experience and therefore higher pay are men, then women in the same employment with shorter service and less experience may be able to make a sex discrimination related claim.
On 18th May 2006 the ECJ Attorney General gave his (non-binding) opinion in just such a case, to be followed later by a judgment from the full Court. The opinion was generally in favour of females employed by the British Health & Safety Executive. It was to the effect that differences in pay based on length of service which result in females generally receiving less than males are unlawful unless they are applied proportionately so as to minimize any disadvantageous impact on women and are justifed by reference to the needs of the business. Interestingly, the A-G suggested that his interpretation of the law should not be applied retrospectively.
An employer planning to make 20 or more employees redundant is obliged by law to give a formal notice to the DTI. This is separate from the obligation to have meaningful collective consultation with the employees before any redundancy termination notices are issued, failure to comply with which can involve heavy penalties on the employer. In the light of European Court decisions, new regulations will be in effect from 1st October 2006 making it clear that notification to the DTI of proposed redundancies must also take place before any dismissal notices are issued.
The long running argument between EU member states over continuation of the right of individuals and employers to agree to "opt-out" of the basic 48 hour week maximum imposed by the Working Time Directive (and in the UK by the 1998 Working Time Regulations) was not resolved at the June 2006 meeting of the EC Employment and Social Policy, Health and Consumer Affairs Council. Britain wishes to retain the "opt-out" right for employers and employees but some others member states continue to be unhappy with it.
The disciplinary and grievance procedure rules introduced with effect from 1st Octber 2004 are to be extended to cover various sets of circumstances not envisaged when the rules were introduced. As is well known employers and employees who do not observe the new minimum standard procedures where they are legally required may be barred from, or penalised in respect of, employment tribunal proceedings. The DTI issued a consultation document in May 2006 on extending the rules. It is expected that as from April 2007 the rules will cover various situations in which employees have not been consulted by their employers as required by law - in general the changes are likely to favour employers as they will generally result in penalising employees who fail to follow the statutory minimum grievance procedure when complaining about their employer's failure to consult.
For more information click here on Dispute Resolution / 2004 new regulations
The Employment Appeal Tribunal has given such a clear explanation of how the law of unfair dismissal works in misconduct cases that it merits special mention here. In the case in point, a Tesco driver with a long accident free record was driving a lorry which overturned at a roundabout. He was subsequently dismissed for misconduct. He claimed unfair dismissal and won a reinstatement order at an employment tribunal. Tesco appealed to the EAT. The EAT found that the original tribunal had made errors of law in coming to its decision and remitted the case back for reconsideration. Importantly the EAT took the opportunity to explain what it called "the relevant principles" so clearly that the judgment is likely to extremely helpful to anyone concerned with any unfair dismissal misconduct case.