We've covered this before but it's too important to brush over here. It's already happened everywhere else in the British Isles and now it's about to happen in England. As from 1st July 2007 well publicised rules ban smoking in all premises or parts of premises used as a place of work by more than one person (even if the persons who work there do so at different times or intermittently). These "smoke-free rules" also cover enclosed public places when open to the public. Under the new rules it will be an offence to:-
In practice this last is likely to be the most generally relevant of the three offences as it is committed automatically unless positive action is taken to display appropriate notices in the form and manner required. Also it can involve a heavier fine or penalty than smoking where smoking is forbidden.
Although certain types of premises are exempt it is important to remember that there is no general exemption for designated "smoking rooms". The list of exempt premises includes private houses. They are exempt even if someone is working there provided that the work is provision of personal care for a resident or carrying out maintenance work etc. This exemption does not cover common areas in blocks of flats.
Current law provides entitlement to two weeks’ paternity leave and to statutory paternity pay during that leave, paid by employers but refunded by the State. The Work and Families Act 2006 provides for this to be extended. On 14th May 2007 the DTI issued a (second) consultation document discussing the new additional paternity leave (“APL”) and additional paternity pay proposals. No date has yet been fixed for start of the new regime but the consultation document says it will not apply in relation to children born before 5th April 2009.
In essence the proposals are simple. Employed fathers will be entitled to up to 26 weeks paternity leave, with statutory paternity pay, during the second six months of their new baby's life provided they meet the 26 weeks continuous employment and other eligibility requirements. Partners and members of adopting couples will be eligible, including females - rather bizarrely as this is "paternity" leave.
However, it is inevitable that the detail will be complicated. The full details are not yet known but, for example, it will be necessary to deal with the problem of whether an applicant really is a father, especially if he is not married. This problem will be partially dealt by making it a condition of APL that both the mother and father must sign an appropriate self-certification form and provide it to the father's employer not less than eight weeks before the start of the APL.
It seems clear that in spite of its name additional paternity leave has more to with mothers than fathers. It seems that a main, perhaps the main, purpose is not to give fathers the right to additional leave but is to make it easier for mothers to return to work before the end of their entitlement to maternity leave, recently extended to 12 months. This is evident from the fact that the right to APL will be available ONLY if the mother is a working mother who returns to work. If she is not a working mother there is NO RIGHT to APL. This is a major difference from the statutory right to the basic two weeks paternity leave to which most employed fathers have been entitled since 2003, which is expected to continue and which does not depend on the mother being a working mother.
It is not unusual in disability discrimination cases for an employer and employee to agree jointly to commission a single medical expert to prepare a medical report. Clearly if the employee is not satisfied with the report he or she can get another as it is he or she who will have to be re-examined. But if the employer is not satisfied the position is more tricky. The employee may well refuse to cooperate, saying that one examination is enough and as it was jointly commissioned the employer must accept it.
The EAT has confirmed that in that situation an employment tribunal can give its support to the employer's request for a second medical report by a different medical expert but should do so only if the employer has more than a "fanciful reason" for wanting its own separate expert medical report. In particular the EAT has recently rejected an employee's argument that as there is no requirement under the Disability Discrimination Act for the cause of an impairment to be established therefore it would be wrong to require a second examination.
Following a Home Office announcement in April 2007, it is understood that the proposed new version of the Highly Skilled Migrant Programme ("HSMP") is to be phased in from April 2008. This will form part of the recently adopted, Australian style, points based immigration permit system.
On 1st June 2007 the Home Office issued updated "HSMP: Guidance for Applicants" explaining the background as well as the procedures. It is an essential document for anyone who may be concerned with its subject matter.
The HSMP is "designed to attract highly skilled people to the UK to seek and take work". Phasing in from April 2008 the new points based system of which it is part will be in 5 "tiers". The 5 tiers will consolidate more than 80 existing work and study routes for immigration to the UK from outside the EU, as follows: tier 1 - highly skilled migrants, eg scientists or entrepreneurs; tier 2 - skilled workers with a job offer to fill gaps in UK labour force, eg nurses, teachers, engineers; tier 3 - low skilled workers filling specific temporary labour shortages, eg construction workers for a particular project; tier 4 - students; and tier 5 - youth mobility and temporary workers, eg working holiday makers or musicians coming to play a concert.
But it's still miles away. A green paper on discrimination law was due for publication in May but has been postponed. When it eventually comes, as come it surely will, it will be a further step along the road leading to a Single Equality Act. Discrimination on many grounds is already outlawed in the employment field. In some cases is also outlawed in connection with provision of goods and services. The proposed Single Equality Act will carry the process forward. It is likely, for example, that it will become unlawful for clubs which have men and women members to have men only (or women only) bars or dining rooms or to allow men only (or women only) golf on certain days of the week.
However it is worth noting that newspaper reports are sometimes exaggerated - there are no plans to extend anti-gender discrimination rules to outlaw men only (or women only) clubs and no plans to extend anti-age discrimination rules to outlaw provision of SAGA-style holidays for the over 50's or holidays for 18-35 year olds. And while it may be true that a zoo in Sussex which runs Thomas the Tank Engine days decided not to advertise for a fat man to play the part of the Fat Controller for fear of breaking discrimination law (see the Daily Telegraph of 28th April 2007), the law is not as silly as that (anoraks may care to look at SDA 1975 s.7 to see why).
Meanwhile, even though the introduction of a Single Equality Act is facing delays, a new Single Equality Commission (the "Commission for Equality and Human Rights" or CEHR) is already gearing itself up. As from October 2007 this single body will replace the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. It will also be responsible for enforcing anti-discrimination rules in other areas, including religion or belief and age, and will have general responsibility for promotion of human rights.
There are various special rules to protect children and young persons from exploitation in an employment context. While not directly concerned with these employment law rules, a government consultation on proposals to raise the school leaving age to 18 is obviously relevant. It is worth drawing attention to the fact that this consultation is due to close on Thursday 14th June.
If you wish to make any comment you should take a look at the consultation document itself, an on-line version of which is available by clicking here.
Discussions or other negotiations aimed at resolving differences which might lead to litigation should, of course, always be conducted on a "without prejudice" basis. But what does this mean? Precisely?
The basic rule ("as any fule kno" to misquote Nigel Molesworth) is that communications expressed to be "without prejudice" made between the parties to a dispute in attempts to get an "out of court settlement" are not generally admissible in evidence in subsequent proceedings in a court of tribunal between those parties concerning the same dispute. This rule has been developed as a rule of public policy to encourage parties to negotiate and settle disputes out of court. So far so good.
There have been four cases recently in which the precise ambit of the "without prejudice" rule has been explored, two of them being Court of Appeal decisions within the last month. The judgments examine the rule and the reasons for it in considerable detail.
One of these cases is particularly interesting. A Professor Vaseghi of Brunel University brought a race discrimination claim against the University. Subsequently the University Vice Chancellor commented in a newsletter that the claim had been accompanied by "unwarranted demands for money". The professor objected that this amounted to unlawful victimisation, a further dispute arose and the professor, clearly a man not to be trifled with, took this further dispute to a separate employment tribunal.
The professor wanted to use in evidence a statement from a solicitor who had been involved in settlement discussions. However the University objected and the employment tribunal upheld the objection, agreeing with the University that as the settlement discussions had been "without prejudice" therefore the solicitor's evidence was inadmissible. The professor appealed the point to the Employment Appeal Tribunal and won. The EAT accepted that the discussions had been on a "without prejudice" basis but held that in discrimination cases the importance of establishing what happened can override the public policy of encouraging parties to settle disputes out of court and held that the professor could use what the solicitor had said as evidence. The Court of Appeal has now agreed with the EAT's ruling.
The case serves as warning to employers. It clearly indicates that the mere fact that discussions are "without prejudice" does not automatically make inadmissible everything said during those discussions - in this case the disputed evidence was related to what had happened rather than to terms of settlement. The case also suggests, although the Court of Appeal did not make any formal decision on this point, that the "without prejudice" rule may be less strictly applied in discrimination cases than in commercial cases.
In the last month there have been two interesting developments.
First, and most important, the Welfare Reform Act 2007 received Royal Assent on 3rd May. It provides for the end of the Incapacity Benefit system which itself was a replacement for the previous invalidity benefit and sickness benefit. Under the 2007 Act, a new "Employment and Support Allowance" will soon replace Incapacity Benefit. The idea is that the new system, along with a new "Personal Capability Assessment", will give long term unemployed people more incentive to get into appropriate work.
Second, there was an instructive case in the Court of Appeal in which a man on incapacity benefit was allowed to keep benefit he had received even though he had been doing work which should have disqualified him. This superficially strange result followed from well intentioned, but rather mealy mouthed, wording of government guidance on incapacity benefit. In 2002 there was a change in the rules concerning permitted work and a factsheet sent to benefit recipients said "You should fill in an application form before you do any permitted work". A Mr Hooper, who was receiving incapacity benefit, failed to do this before getting a part time job as a school cleaner. The authorities found out and in due course claimed back almost £7,000. Mr Hooper appealed. The argument on his behalf was that it had been incumbent on the authorities to make it absolutely clear that he MUST complete the form and that while 'there may be contexts where the dictates of politeness are such that "should" means "must"' that was not so here. The Court of Appeal unanimously agreed and has allowed Mr Hooper's appeal.
At 31st May 2007 there were some 20 Bills with employment law relevance either already introduced or at an advanced stage of preparation. Notes on these Bills and prospective Bills are included on our website, together with an archive of lapsed employment law related Bills since 2002.
The Welfare Reform Bill received Royal Assent on 3rd May and has become the Welfare Reform Act 2007.
Summaries of all cases reported in the main employment law reports so far issued in 2007 (ICR 2007 and IRLR 2007) are now noted/summarised on our website. This is in addition to summaries and/or headnotes of more than 2,000 other employment cases, new and old, all linked to commentary as appropriate.