WHAT'S NEW?

Employment Law News
5th May 2004

Here is our latest Employment Law newsletter . We hope you will also visit our web site at www.oxford-employment-law.co.uk which now includes a comprehensive and regularly updated free employment law section available for you to use whenever and as often as you like to find answers to basic employment law questions. We will, of course, be pleased to assist you with individual advice when that is required.

Clickable "what's new" index

1. Bills before Parliament (employment related)
2. Stress
3. Grievance Procedures
4. Set-off of insurance against compensation
5. ACAS arbitration scheme
6. Whistleblowing protection extended to police
7. New EU Member States and employment issues
8. Pregnancy and refusal of job application
9. Consultation on Works Councils
10. Asbestos/mesothelioma claims
11. Redundancy and Consultation

1. Bills before Parliament (employment related)

1. Corporate Killing Bill; 2. Human Rights Act 1998 (Making of Remedial Orders) Amendment Bill; 3. Tobacco Smoking (Public Places and Workplaces) Bill

(one of which was withdrawn in April 2004 - see 22 below)

1. Armed Forces Pensions Compensation Bill; 2. Asylum and Immigration (Treatment of Claimants etc) Bill. 3. Carers (Equal Opportunities) Bill; 4. Christmas Day Trading Bill; 5. Civil Partnership Bill; 6. Civil Service Bill; 7. Companies (Audit, Investigations and Community Enterprise) Bill; 8. Corporate Manslaughter Bill (proposed); 9. Crown Employment (Nationality) Bill; 10. Draft Disability Discrimination Bill; 11. Employment Relations Bill; 12. European Union Bill; 13. Fire and Rescue Services Bill; 14. Gangmaster (Licensing) Bill; 15. Gender Recognition Bill; 16. Health & Safety at Work (Offences) Bill; 17. Income Tax (Trading and Other Income) Bill. 18. National Insurance Contributions and Statutory Payments Bill; 19. Partnerships Bill (proposed); 20. Patents Bill; 21. Pensions Bill; 22. Retirement Income Reform Bill (withdrawn); 23.. Sex Discrimination (Clubs and Other Private Associations) Bill; 24. Smoking in Public Places (Wales Bill);

for notes on and links to each of the above Bills go to notes at:
Bills before Parliament

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2. Stress

There have been three recent high level judgments in "stress cases", two from the House of Lords and one from the Court of Appeal

Barber v Somerset County Council [2004] UKHL 13 on 1st April 2004. The House of Lords confirmed that the various practical propositions set out by the Court of Appeal when this case was heard there in 2002 (along with Sutherland v Hatton ) are correct, save that greater emphasis should be placed on the duty of employers to be on the look out for signs of stress in their employees and to keep themselves abreast of developing knowledge of occupational stress and protective measures which can be taken to alleviate it.

Simmons v. British Steel plc [2004] UKHL 20 on 29th April 2004. The House of Lords ruled that where it was reasonably foreseeable that a working practice would result in an employee suffering physical injury an injured employee could also claim damages for psychological injury he suffered even though it was not reasonably foreseeable that psychological injury would occur.

Donachie v Chief Constable Gtr Manchester Police [2004] EWCA Civ 405 on 7th April 2004. The Court of Appeal confirmed that where questions of stress are concerned, an employer must take an employee as he finds him. The fact that a particular employee has, for example an unusually low pain threshold or is particularly susceptible to problems is bad luck on the employer as the "egg shell skull" defence does not work in this context (a point also confirmed by the House of Lords in the Simmons v. British Steel plc case noted above).

For more information on the above topic/s click on:
Health and Safety at work/stress

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3. Grievance Procedures

In many ways the new statutory Grievance Procedures which come into force on 1st October 2004 are more important that the new statutory disciplinary procedures coming into force on the same day. From 1st October 2004, an employee (or an ex-employee) will normally be disqualified from bringing an unfair dismissal claim, or most other claims, in an employment tribunal unless he has first used the (statutory) minimum grievance procedure in an attempt to agree an "out-of-court" settlement. The government expects that this will result in a reduction of between 34,000 and 37,000 in the number of tribunal claims (ie a reduction of well over 30%). If this government expectation is confirmed in practice, the new Grievance Procedures may turn out to effect, indirectly, the single biggest change to the unfair dismissal regime since it was introduced in 1971.

For more information on the above topic/s click on:
Grievance Procedures

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4. Set-off of insurance against compensation

The general rule in the UK when assessing damages or compensation is that a person should be compensated only for loss he has actually suffered. If a dismissed employee immediately gets a new job at an increased salary he therefore will normally get no or very little compensation. Well established exceptions to this "set-off" rule, known as the "benevolence" exception and the "insurance" exception, mean that if the employee's friends have a whip round to help him out, or if he has his own insurance which pays out, these benefits will not be taken into account in calculating any compensation due to him from his employer (if it were otherwise the employer would be the beneficiary of the friends' generosity or of the individual's prudence in taking out insurance). The Court of Appeal held in March 2004 that these exceptions do not allow an employee to keep monies received from his employer's group insurance as well as full damages from the employer for the accident which resulted in the insurance pay out. Instead the employee must bring the insurance monies he received into account when claiming further compensation from the employer. In coming to this conclusion the Court of Appeal examined the relevant law in great detail and overruled its earlier (1990) decision in McCamley v Cammell Laird Shipbuilders Ltd. The case in question is Gaca v Pirelli General plc [2004] EWCA Civ 373 on 26th March 2004.

For more information on the above topic/s click on:
Compensation/a general introductory note

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5. ACAS arbitration scheme

The ACAS voluntary arbitration scheme for settling unfair dismissal disputes without going to an employment tribunal was extended last year to cover disputes over the new right to request flexible working. Originally the scheme applied only to England and Wales. The rules of the scheme have been replaced by new rules with effect from 6th April 2004, extending the basic (unfair dismissal) scheme to Scotland and making modifications to the previous scheme. It is understood that the extension to cover flexible working is to apply to Scotland when the necessary consequential changes have been drafted, the intention being that this will be done by October 2004.

For more information on the above topic/s click on:
ACAS/arbitration scheme and/or Flexible Working

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6. Whistleblowing protection extended to police

From 1st April 2004, a police officer who "blows the whistle" (for example, reporting wrongdoing by fellow officers) is entitled to the protections provided by the

Public Interest Disclosure Act 1998

For more information on the above topic/s click on:
Whistleblowing/a general note and/or Specific employments/policemen and special constables

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7. New EU Member States and employment issues

New

Accession (Immigration and Worker Registration) Regulations 2004 SI 2004/1219

Social Security (Habitual Residence) Amendment Regulations 2004, SI 2004/1232

For more information on the above topic/s click on:
European law/new EU members

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8. Pregnancy and refusal of job application.

Not new law but a useful reminder of the difficulties faced by an employer who decides not to employ a pregnant woman (or in this case not to offer a new job to a new mother) - a recent tribunal case in Edinburgh resulted in an award of Ł9,000 plus interest for injury to feelings to a Ms Campbell, who had applied for a newly created post shortly after giving birth to twins. The tribunal considered that the employer never really intended to let her have the job but merely "went through the motions".

For more information on the above topic/s click on:
Pregnancy/rejection of job applicant because of pregnancy

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9. Consultation on Works Councils.

In April 2004 the European Commission launched a full scale consultation on the European Works Council Directive

For more information on the above topic/s click on:
Consultation with employees/EC Works Council Directive

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10. Asbestos/mesothelioma claims.

The High Court has held that Harland and Wolff, the shipbuilders, owed a duty of care given knowledge of risk in the 1960's, to take precautions against exposing not only their employees but also their employees' wives to asbestos dust. Their failure to do so enabled the wife of an employee who had contracted mesothelioma to win damages.

Meanwhile in the USA in April 2004 the democrats in the Senate managed to ensure that the "Fairness in Asbestos Injury Resolution Bill" failed to become law. The "FAIR" Bill had aimed to set up a huge insurance underwriter backed fund to bring finality to asbestos litigation.

For more information on the above topic/s click on:
Health & Safety at Work/asbestos

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11. Redundancy and Consultation.

A recent case in the Court of Appeal shows how important it is for employers to take legal advice in redundancy situations and how expensive it can be if good advice is not followed carefully. In this case the employer disregarded some of the advice it received and failed to consult employees properly in connection with proposed redundacies. A factory with just over 100 workers was closed without proper consultation and when the GMB union complained on their behalf the average award to each and every worker concerned, confirmed by the Court of Appeal, was close to Ł2,500.

Importantly the case also establishes that:-

the argument that "consultation would have made no difference anyway", which can sometimes be used by employers to reduce compensatory award in unfair dismissal cases, has no relevance in connection with the "protective awards" which can be made in failure-to-consult redundancy cases; and
the underlying purpose of a protective award is to punish a defaulting employer rather than to compensate employees. Employees may therefore benefit even if they immediately get new jobs at better wages and thus suffer no loss.

For more information on the above topic/s click on:
List of Cases/Susie Radin Ltd v GMB and ors [2004] EWCA Civ 180, [2004] IRLR 400.

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prepared 5th May 2004.
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Employment Law News 5th May 2004

Employment Law News
5th May 2004