It is almost six years since the (amended) draft EC directive "on working conditions for temporary workers" was published in March 2002. Its purpose is to ensure that agency workers provided by employment agencies have the same basic employment law rights throughout the EU, that they are not discriminated against because they are temporary workers and that agencies who supply them are regarded as their employers.
Special conditions in the UK have meant that the British government has consistently blocked adoption of the directive, most recently in December 2007. However three recent events have made it likely that there will be significant changes in the law relating to temps and agency workers in the near future:
Separately, it should be noted that new Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations are currently proposed. With effect from 6th April 2008 they will make minor amendments to existing law. The new regulations will help agencies by reducing red-tape where a temp appointment is for 5 days or less and will increase protection for workers by requiring agencies to provide those who get work through them with a formal statement of their right to cancel, or to withdraw from their work, without detriment or penalty.
There is a fairly obvious Catch 22 here. If an employer is not careful the process of making sure that a new recruit is entitled to work in the UK could lead to a breach of race discrimination law. The Home Office (Borders and Immigration Agency) has updated its Code of Practice which seeks to give advice on this particular aspect as well as generally.
The well publicised new points based immigration system requires employers to apply for a licence to sponsor and bring migrants into the United Kingdom from outside the EU. The licence terms will include a number of "sponsorship duties", such as compliance with record keeping and reporting rules. The requirements are very detailed and even extend to the position which will arise if employment of a migrant is automatically transferred to a new employer as a result of a business transfer within the scope of the TUPE regulations.
Employers should take great care to ensure that they do not inadvertently fall foul of the new rules. Advice should clearly be taken in any case of difficulty.
A reminder that as from 6th April 2008 the Information and Consultation of Employees Regulations 2004 are fully in effect. Currently these regulations apply only to employers with 100 or more employees. As from 6th April, they will apply to employers with 50 or more employees.
The regulations give employees the right to request their employer to inform them of, and consult with them about, business matters which affect their employment. If at least ten per cent of the workforce exercise this right, the employer must set up a regular system for information and consultation. There is a penalty of up to £75,000 on employers who do not comply.
The process for replacing the statutory disciplinary and grievance procedures is now well under way.
It is less than four years since compliance with these procedures was made compulsory as a precondition of being entitled to bring or defend many types of case at an employment tribunal. The sensible idea was to encourage "out of court" settlement of disputes. However the law of unintended consequences saw to it that the effect was the opposite. Instead of reducing the number of tribunal claims, a raft of new cases came before tribunals simply to determine whether the compulsory procedures had been properly complied with.
An Employment Bill was introduced in the House of Lords at the end of 2007 which will revoke the 2004 regulations under which the ill-fated compulsory procedures were set up. However there is still debate about what is to replace them. A serious suggestion was made in committee in the House of Lords in late February that the compulsory procedures should be replaced by a different compulsory requirement. The suggestion was that an ACAS certificate certifying that "an independent mediation or conciliation procedure" had been attempted should be a compulsory requirement before many types of case could be brought to an employment tribunal.
While there was general support for the idea of mediation and/or conciliation there was none for the idea of retaining compulsion. As the compulsory nature of the 2004 procedures had been the fundamental problem with them, it might have been jumping out of the frying pan into the fire if the suggestion for a different compulsory requirement had been approved. However it was wisely dropped, after debate, so it seems likely that a voluntary system encouraging mediation and/or conciliation before cases come to tribunal will be adopted.
A voluntary system promoted by ACAS seems to be the government's preferred route. In early February the government indicated that a large sum (an extra £37m over 3 years) is to be made available to ACAS as an important part of the simplification of the dispute resolution system to be implemented by the Employment Bill.
If an employee is absent on sick-leave for months on end, the time may eventually come when it will be appropriate formally to end his employment. The recent suggestion by the European Court's Advocate General (see our notes on Ainsworth & ors v Commissioners of Inland Revenue in last month's newsletter) that an employee will be entitled to statutory minimum holiday rights accrued during long term sickness absence if he returns to work or to cash in lieu if he doesn't may result in employers considering dismissal sooner rather than later.
A recent case in the Employment Appeal Tribunal has shown how careful an employer in that situation must be. A bus driver who had almost 30 years' service was signed off sick in June 2005 following a suspected stroke. His PSV licence was suspended by the DVLA. He suffered a second attack a few months later. The employer's occupational health adviser advised that the driver would be fit only for sedentary duties if he returned to work.
The employer operated a discretionary sick pay scheme which entitled employees absent on long term sickness leave to 26 weeks on full pay and 26 weeks on half pay. There was also a pension scheme which allowed for incapacity retirement at an enhanced rate provided a suitably qualified doctor signed a certificate of permanent incapacity. They gave him the choice of dismissal or taking further sick pay but losing the opportunity of having an ill-health pension. He declined these terms, was dismissed and claimed unfair dismissal.
The EAT noted that as a general rule before dismissing an employee who is absent on long term sick leave an employer should obtain medical evidence to ascertain the nature and prognosis for his condition, should take reasonable steps to consult him and should consider alternative employment possibilities. In this case the employer had not taken these essential steps before deciding to dismiss their employee and indeed it eventually transpired that the man had not suffered a stroke. The EAT also noted there can be an implied term in an employment contract to the effect that an employer may not lawfully terminate an employee's employment while the latter is absent on sick leave if it will result in him losing the right to an enhanced pension to which he would be entitled if he were offered and accepted retirement on grounds of ill health.
The conclusion was therefore that the employer had acted unreasonably and so the employee won his unfair dismissal claim.
At the end of February the House of Lords handed down its decision in the sad case of Corr v IBC Vehicles Ltd.
In 1996 a maintenance engineer suffered severe head injuries in an accident caused by malfunctioning machinery. He suffered post-traumatic stress disorder and fell into deep depression. In 2002 he committed suicide. His widow sued her late husband's employer for negligence and for damages under the Fatal Accidents Act 1976.
The employer admitted negligence but rejected the Fatal Accidents Act claim on the basis that his suicide had not been foreseeable and anyway was, in legal language, "too remote". The High Court accepted this argument but the widow won on appeal to the Court of Appeal. The House of Lords has now unanimousely agreed with the Court of Appeal majority and dismissed the employer's appeal, although 3 of the 5 Law Lords suggested that the suicide amounted to contributory responsiblity for death and should lead to a reduction in compensation.
The key factor in the Court of Appeal and House of Lords' decision was that the type of harm suffered by the employee was foreseeable. It was not necessary for the widow to show that the precise form which the damage might take (ie in this case suicide) was foreseeable. This is a distinction which may be subtle but is nonetheless of potentially considerable importance.
In early February the Cardiff employment tribunal announced the compensation to be awarded to a gay man who had been turned down by the Church of England Bishop of Hereford for a job as diocesan youth officer. The total compensation awarded was just over £47,000, including amounts for loss of earnings, future pension loss, damages for psychiatric injury and injury to feelings.
Apart from the substantial amount of compensation awarded to the unfortunate job candidate, the case is of general interest because of the grounds on which the tribunal decided that the Bishop had contravened the Employment Equality (Sexual Orientation) Regulations 2003.
The case, Reaney v Hereford Diocesan Board of Finance, had quite wide publicity. The Bishop was named "bigot of the year" by the Stonewall organisation and the general impression given by reports, and not contradicted by gay pressure groups, was that the tribunal had decided the Bishop acted unlawfully in refusing to have a gay person as diocesan youth officer. However this was not what the tribunal decided.
The ground for the tribunal's decision was not that it had been unreasonable for the Bishop to reject a gay person as diocesan youth officer. Rather it was that the tribunal considered it was unreasonable of the Bishop not to accept an assurance from the man concerned that he "was happy to remain celibate for the duration of the post". Reports stating that the Bishop was found "guilty" of discriminating against the man concerned simply because he was gay are therefore wrong.
As this was a decision by an employment tribunal it is not binding authority. Even so, any readers of this newsletter who are concerned either with gay rights or with Church of England belief or policy and who are aware of the case will no doubt be interested to know that it is not quite what, at first glance, it might seem to be.
The Court of Appeal ruled in early February that taking an expired warning into account in coming to a decision to dismiss an employee does not automatically mean that the dismissal is unfair. Previous case law has suggested the contrary.
Mr Webb was an aircraft fitter employed by Airbus. He was dismissed for gross misconduct, namely, washing his car when he should have been working. On appeal this was reduced to a final written warning which was expressed to remain on his on his personal file for 12 months. Three weeks after the the expiry of that written warning, he was found watching television instead of working. Following proper disciplinary process Airbus dismissed him. Others who had also been watching television were given final warnings but were not dismissed as they did not have any prior adverse disciplinary record.
Mr Webb claimed unfair dismissal. An employment tribunal took the view that, following case law, it was obliged, and not merely entitled, to ignore expired warnings. On appeal the EAT supported this view, albeit pointing out that the arguments were finaly balanced.
Airbus appealed on to the Court of Appeal and won. The Court of Appeal pointed out that the law requires a Tribunal to consider all the circumstances in an unfair dismissal case. On that basis an expired warning and the misconduct which gave rise to it can be circumstances to be taken into account when considering whether dismissal falls within the range of reasonable responses open to an employer in reaction to subsequent misconduct.
This decision contradicts the impression given by previous case law and will surely be welcomed by employers.
As ever, you can find on our website summaries of all employment law cases reported in the most recent editions of the IRLR and ICR Law Reports (the two leading series of law reports covering employment law cases). There are also summaries of all recent employment law Acts of Parliament and of more than 2,000 other employment law cases, including all those reported in IRLR and ICR since the end of 1999.
By kind permission of Michael Rubenstein, the eminent editor of the IRLR law reports, subscribers to emplaw professional (click here for info) now have available a special version of his "Key Cases for 2008" with deep links to relevant emplaw commentary.