At 4th March 2006 there were 30 Bills with employment law relevance either already introduced or at an advanced stage of preparation, including one in the Scottish Parliament. In addition, two Bills with some employment law relevance were enacted in February 2006 (the Equality Act 2006 and the European Union (Accessions) Act 2006). Notes on all 30 Bills and prospective Bills are included on our website, together with an archive of lapsed employment law related Bills since 2002.
Thumbnail summaries and/or or headnotes of all cases reported in the ICR and IRLR law reports since end 1999 are available on our website. All cases reported in ICR 2006 parts 1 & 2 and in IRLR 2006 vol 35 nos 1 to 3 are now noted/summarised and short commentary is provided. For most new cases there are direct links to free versions of the full judgments on the internet. This is in addition to linked thumbnail summaries and/or headnotes of more than 1,500 other employment cases, new and old.
The long-awaited "new TUPE" regulations have finally been made. In general, but not in detail, the provisions are similar to those of the 1981 TUPE regulations. There are, however, some new rules - for example if a transferor fails to provide all required "employee liability information" to a transferee he may be liable to pay compensation, which will normally at least £500 per employee (regs 11 and 12). New TUPE will apply where a "relevant transfer" takes place on or after 6th April 2006. The 1981 TUPE regulations are revoked save that they will continue to apply in respect of relevant transfers effected before that date.
The EAT has ruled that in the absence of mitigating circumstances the compensation to be paid to an employee whose employer fails to consult with him before effecting a transfer of the business or part of the business in which he works will normally be the full 13 weeks' pay provided for by the TUPE regulations. Employers should take this extremely seriously, not least because in this situation the £290 statutory limit to the amount of a week's pay which applies in, for example, unfair dismissal cases does NOT apply.
For more information go to notes on Sweetin v Coral Racing EAT 2005 and/or Definitions and interpretation / week's pay on our website.
This Equality Act 2006 was enacted on 16th February 2006. From an employment law angle, of particular significance are (i) the setting up of a Single Equality Commission (the "Equality and Human Rights Commission" or EHRC) which from October 2007 will replace the Equal Opportunities Commission, the Disability Rights Commission and (after a further interval) the Commission for Racial Equality, all of which will be disbanded. In addition the EHRC will be responsible for enforcing anti-discrimination rules in the areas of sexual orientation, religion or belief, and age. Finally, it will have general responsibility for promotion of human rights (there are special provisions for Scotland, both in the Equality Act 2006 and prospectively under the Scottish Commissioner for Human Rights Bill).
For more information go to Acts of Parliament etc / Equality Act 2006 and/or Human Rights Commissioner Bill (Scotland) on our website.
After recent scandals, Ruth Kelly, the Education Secretary, promised speedy action to tighten existing law. The Safeguarding Vulnerable Groups Bill is the result, introduced in the House of Lords on 28th February. It will establish an Independent Barring Board (IBB) to maintain two lists of persons barred from carrying out "regulated activity" as defined, basically working with children and vulnerable adults respectively. These two lists will replace the current List 99, the Protection of Children Act List and the Protection of Vulnerable Adults list. "Regulated Activity Providers" will commit an offence if they employ a person without making the relevant checks with the IBB and persons on the lists will commit an offence if they engage or seek to engage in "regulated activity".
This was the lead line to a news item in the Daily Telegraph recently. The "Family Contract" allows husbands, wives, grandparents and children over 16 to job-share and swap shifts without notifying management. It is the first of its kind in Britain and is being tried in McDonald's restaurants in six cities around Britain, starting with Cardiff. If it proves successful, McDonald's says it will expand it to include friends and extended family such as cousins. One of the advantages of flexible working for the employer is said to be that it reduces the number of sick days.
For more information on relevant law go to Flexible Working on our website.
The EAT has held recently that if an employee complains to a tribunal about his or her employer's refusal to grant a request to be allowed to work under a flexible work arrangement, the tribunal is entitled to look at the grounds which the employer asserts are his reasons for refusal in order to see whether they are factually correct but is not entitled to consider whether the employer was acting fairly or reasonably in rejecting the flexible working request. The same case also provides a further example of the extent to which tribunals will avoid technicalities if at all possible in deciding that an employee has written a "step 1 grievance" to his or her employer (required since 1st October 2004 to enable a tribunal to hear, for example, cases of alleged unfair constructive dismissal). In this case the employee's written request for flexible working was enough to count as a "step 1 grievance letter".
For more information go to notes on Commotion Ltd v Rutty EAT 2005 ( reported at [2006] IRLR 171) on our website.
The House of Lords has overruled decisions of the original employment tribunal, the EAT and the Court of Appeal in the "retained firefighters' case". The House of Lords ruled on 1st March that the contracts of retained (ie part time) firefighters must be treated as equivalent to those of full timers, essentially because the main differences between them are a function of the extra hours worked by the full-timers. Retained firefighters must therefore be allowed to join the Firemen's Pension Scheme (note the politically incorrect name!). This may not make much difference to the part time firefighters concerned because rules made in 2004 ensure that they are now generally treated the same as whole-time regular firefighters for the purposes of that Scheme. However the logic behind the House of Lords ruling is likely to have considerable general significance to the benefit of part-time workers who want to exercise rights under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
For more information go to Part-time workers / 2000 regulations on our website.
In another case which may be of signficant benefit to some employees, the House of Lords has ruled that it is possible for a person who does all his work outside Great Britain to have an employment relationship which is so closely connected with Great Britain that he can bring an unfair dismissal claim in Britain. Two examples could be where the employee is posted abroad to work for a business conducted in Britain and/or where the employee is working in a political or social British enclave abroad. However any other examples would have to have equally strong connections with Great Britain and British employment law.
The European Court of Justice has ruled that the provisions of European Directives must be applied by national courts "even where the period prescribed for transposition of that directive has not yet expired". The point is that the "period prescribed for transposition" is simply there to give national governments time to make national laws implementing a directive and is not some sort of notice period during which a directive is of no effect. The case in question concerned age discrimination rules, which the relevant directive requires to be transposed into the national law of each Member State by 2nd December 2006 but the point is of general application (albeit arguably subject to the proviso that the directive must be one which is clear, unconditional and leaves no discretion as what its effect should be).
The EAT has confirmed that the question for an Employment Tribunal in considering whether to allow a claim for unfair constructive dismissal is whether the employee resigned at least partly in response to a repudiatory breach of contract by the employer. The test is NOT whether the breach was the sole cause, or even the effective cause of the resignation. It is sufficient that the resignation is in part in response to the repudiatory breach.
For more information go to notes on Jamie v Management Solution Partners Ltd EAT 2006 and/or at Constructive dismissal / a general note on our website.
The EAT has made it clear that if a dismissal is unfair but it is likely that the employee would have been made redundant in the near future an appropriate reduction should be made when deciding the amount of compensation which is appropriate.
The Court of Appeal has overruled the EAT on the question of the legal status of a trainee under a Modern Apprenticeship Agreement. The EAT had held that a Modern Apprenticeship agreement, being a 3 way contract between an employer, a trainee and a training provider, is such that although in law the apprentice may well be an employee he cannot be an apprentice in the traditional sense. If this EAT ruling had stood it would have meant that breach of such an agreement by the employer would not entitle the trainee to the substantial damages to which an apprentice can be entitled for breach by the Master of a normal apprenticeship agreement. The Court of Appeal has decided that the EAT had got this wrong and that the status of a trainee under a Modern Apprenticeship agreement can, and presumably normally will, be that of an apprentice in the traditional sense.