1. Bills before Parliament (employment related)

Since our previoius newsletter (26th January 2004), the following new Bills with employment law relevance have been introduced in Parliament:


1. Carers (Equal Opportunities) Bill; 2. Civil Service Bill; 3. Crown Employment (Nationality) Bill; 4. Health & Safety at Work (Offences) Bill;

These are in addition to the 15 Bills and draft Bills noted in our December newsletter, viz:-


1. Armed Forces Pensions Compensation Bill; 2. Asylum and Immigration (Treatment of Claimants etc) Bill; 3. Civil Partnership Bill; 4. Companies (Audit, Investigations and Community Enterprise) Bill; 5. Draft Disability Discrimination Bill; 6. Employment Relations Bill; 7. European Union Bill; 8. Fire and Rescue Services Bill; 9.Gangmaster (Licensing) Bill; 10. Gender Recognition Bill; 11. National Insurance Contributions and Statutory Payments Bill; 12. Partnerships Bill; 13. Patents Bill;14. Pensions Bill; 15. Smoking in Public Places (Wales Bill).

2. TUPE and Pensions

3. Compensation for injury to feelings in unfair dismissal cases

The Court of Appeal held in February 2004 that employment tribunals can award compensation for injury to feelings in unfair dismissal cases. Tribunals have specific power under the Discrimination Acts to award such compensation in discrimination cases but unfair dismissal legislation is silent on the point and case law has peviously interpreted it to mean that tribunals have no such power in unfair dismissal cases. The Court of Appeal has now held that this is wrong, but only by a 2 to 1 majority and with some powerful arguments for maintaining the established position put forward by Lord Justice Brooke, the dissenting judge. As the matter is of such enormous general importance it is likely that the case in question will go to the House of Lords very quickly and hopefully we will have final guidance on the question by the end of the summer.

4. Backdated holiday pay

Is a worker who has not taken all the holiday to which he is entitled during a year entitled to pay in lieu of the untaken holiday? The answer under the Working Time Regulations is generally "no". However it has recently been held that on termination of employment an employee does have the right under those regulations to claim pay for accrued but not taken holiday, and even that this can stretch back to as long ago as 1998 when the regulations were introduced.

5. Homeworkers - new regulations

There are obvious difficulties in ensuring that homeworkers are paid not less than the national minimum wage. The National Minimum Wage Regulations have attempted to deal with the problem by providing for the possibility of entering into a written "Fair estimate agreement".This must set out a fair estimate (subject to the notorious "four fifths rule") of the hours needed to complete the work in question and the national minimum wage (at least) must be paid for hours worked up to that estimate. This system is obviously open to abuse and in February 2004 the government announced that a new system would come into effect from October 2004

6. New EU members - restrictions on benefits for employees

Ten countries, eight from eastern Europe plus Malta and Cyprus, will join the European Union on 1st May 2004. It originally seemed likely that the UK would allow their nationals immediate access with all rights, notwithstanding temporary transitional exemptions from the obligation to do so. However the government stated in February 2004 that "Regulations will be introduced to ......... give the right to reside here to registered workers, and to work-seekers from the eight Accession Countries only if they are self-sufficient. The regulations will be laid in March 2004 to come into effect on 1 May 2004".

7. Criminal Records Certificates

Fees for criminal records certificates from the Criminal Records Agency are increased from 1st April 2004, to £28 for a standard disclosure and £33 for an enhanced disclosure.

8. Data Protection Act guidelines revised

In December 2003 the Information Commissioner promised that he would issue new formal guidance on how the Data Protection Act should be applied in the light of the Court of Appeal's ruling in the Durant case. That ruling was helpful to employers in that it made it clear that the existing guidance, which reflected the previous Information Commissioner's views as to when the Data Protection Act applied, were too wide and went too far. The promised new guidance was published in February 2004.

9. Sex and Race discrimination rules apply more widely than previously thought

Bad news for employers on the discrimination front. The Court of Appeal has confirmed that employers are liable to pay compensation to employees for psychiatric injury suffered as a result of unlawful discrimination even if they (ie the employers) were not aware of the risk of that injury. The Court of Appeal agreed with the EAT that the drafting of the anti-discrimination Acts makes an employer liable simply if the injury was caused by the unlawful discrimination. The fact that an employee may have been hyper-sensitive is therefore not relevant in considering whether the employer is liable.

10. Adoption leave changes in April 2004

As from 6th April 2004, the provision enabling an employer to request the name and date of birth of a child in respect of whom adoption leave is taken will be removed. Also, from the same date, all terms and conditions applying in relation to an employee returning to work from adoption leave, not just those relating to remuneration, are to be not less favourable than those which would have applied if the employee had not been absent is amended accordingly). These amendments are proposed in draft Paternity and Adoption Leave (Amendment) Regulations 2004.

11. Compensation in whistle-blowing cases

The EAT has rules that the guidelines for assessing compensation in sex and race discrimination cases also apply to assessment of compensation in whistle-blowing cases.

12. Resignation or dismissal?

Finally, a more encouraging case for employers. As is well known, a heat of the moment or a forced resignation will not in law be a resignation at all. An employer who refuses to allow an employee to return to work in such circusmtances is therefore treated in law as having dismissed the employee. In this case even though there was some pressure on a retained fireman to sign a letter of resignation the EAT nevertheless agreed with the Sheffield employment tribunal that, on the facts, his resignation was still a genuine voluntary resignation. His claim for unfair dismissal therefore failed.