At 15th April 2006 there were some 27 Bills with employment law relevance either already introduced or at an advanced stage of preparation, including a Human Rights Commissioner Bill in the Scottish Parliament. One new employment law related Bill, the Notification of Redundancy Bill, was introduced in April and three others within the previous two months, the Attendance Allowance and Disability Living Allowance (Information) Bill, the Small and Medium-Sized Enterprises (Exemption from Regulation) Bill and the Government's Safeguarding Vulnerable Groups Bill. In addition, the government has heeded criticism of its Legislative and Regulatory Reform Bill and in early May proposed significant amendments to water down the powers which would otherwise have been given to Ministers to change the law without reference to Parliament.
Notes on all these 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 to 4 and in IRLR 2006 vol 35 nos 1 to 5 are now noted/summarised and short commentary is provided. This is in addition to linked thumbnail summaries and/or headnotes of more than 1,500 other employment cases, new and old. For most new cases there are direct links to free versions of the full judgments on the internet.
A pro rata reduction in an annual bonus to take account of a period of absence on ordinary maternity leave can be lawful as it is neither unlawful sex discrimination nor a pregnancy related detriment. However (i) no reduction must be made in respect of the two weeks compulsory maternity leave to which all employed mothers are entitled and (ii) it is possible, depending on the circumstances, that the woman concerned might have a claim under the Equal Pay Act 1970. On 5th April 2006 Scottish Court of Session confirmed rulings to this effect by both the original employment tribunal and the EAT.
As is well known, the statutory right of workers to 20 days paid holiday per annum is soon to be increased to 28 days. This will happen when, under proposals in clause 13 of the current Work & Families Bill, workers are given the legal right to paid time off for Bank Holidays. Many firms of course already allow staff paid time off on bank holidays but the effect on those which do not will be quite dramatic. For this reason the government said in March that "We will examine all the appropriate options, including how the change might be phased in over time". However by end April 2006, on the 3rd reading of the Bill, the government appeared to have reject phasing in (see Hansard HL 25th April 2006, col 131). Draft regulations are awaited.
The proper way of calculating holiday pay for shift workers who are paid differently depending on which shift they are working (eg day or night, weekend or weekday) was considered by the Court of Appeal in a judgment handed down on 9th May 2006 (British Airways plc v Noble & Forde [2006] EWCA Civ 537). Under a long standing agreement dating from the 1970's the weekly pay of shift workers employed by BA was evened out instead of fluctuating in line with their work pattern for the week in question. Under the agreement, an average weekly figure was calculated and an agreed multiplier of 48/52 was applied. The workers concerned claimed that the application of the multiplier to their holiday pay was unlawful under the Working Time Regulations 1998 and the EC Working Time Directive. As there were some 9,000 shift-workers the amounts involved were significant. In essence the employees won both before the original tribunal and the EAT on the basis that the position was analgous to that which arises in "rolled up" holiday pay cases. However the Court of Appeal has ruled in favour of BA. It held that the application of what was in effect a 4/52nds discount was simply a method of smoothing out variations in weekly pay. As such, there was nothing to make this unlawful when applied to holiday pay and specifically the considerations which led to the practice of rolling up holiday pay being ruled unlawful by the European Court earlier in 2006 were simply not in point.
The 2005 Trades Union Congress decided to launch a campaign for a Trade Union Freedom Bill to mark the 100th anniversary of the 1906 Trades Disputes Act. The proposals are outlined in a TUC consultation paper issued in early May which starts by quoting John Hendy QC as saying: "Workers and trade unions in the UK now have less rights in relation to industrial action than elsewhere in Europe. In fact they have less rights, in that respect, than they had 100 years ago. ...... The [proposed] Bill is a necessary step to bring British trade union law into the 21st century and to begin to protect the modern interests of workers".
The consultation paper states that "............ it is hoped [the Bill] will be ready to lay before Parliament in December 2006".
There are no new developments since publication in early April of the well publicised final version of the Employment Equality (Age) Regulations 2006. However these regulations are of such overhwhelming signficance to all employers of all sizes that it is worth drawing attention yet again to the importance of taking legal advice well BEFORE 1st October when they come into effect. The regulations affect all stages of the employment relationship from recruitment to retirement and outlaw both direct and indirect age discrimination save where it can be justified as a "proportionate means of achieving a legitimate aim".
It is also worth pointing out that the European Court ruled a few months ago in Mangold v Helm, case C-144/04 that the EC Directive outlawing age discrimination can already be relied on in some circumstances, even though national legislation to implement it is not yet in force.
A potentially significant case started in late April in the Bury St Edmunds employment tribunal but has been adjourned until June. Under the Employment Equality (Sex Discrimination) Regulations 2005 employment is to be regarded as being at an establishment in Great Britain for sex discrimination law purposes if the employer has a place of business at an establishment in Great Britain and if certain other conditions are fulfilled. The Foreign Office is understood to be claiming that it is not carrying on a business at all and that therefore these regulations do not apply to benefit its staff (or job applicants). In the case, a Mrs Vaheeson alleges that a man was given the job of Entry Clearance Officer at the British Deputy High Commission in Chennai (formerly Madras) despite her own qualifications for the role being better than his. She is claiming that this was unlawful sex discrimination by the FCO.
The DTI is conducting a review of Sunday Shopping and Sunday Trading Laws. The first stage was a public consultation which ran from 13th January to 14th April. In an answer to a question in the House of Commons in late April, the government has said that the issue of the right to work on Sundays is not within the scope of the review, which is concerned only with the different question of restrictions on Sunday shop opening hours. The government spokesman did however say that there are no current plans to extend protection in relation to the right not to work on Sundays.
For more information go to notes on Sunday Trading on our website.
The European Court ruled on 27th April that it was unlawful for the UK to refuse a retirement pension until age 65 for a post-operative male-to-female transsexual who would have been entitled to a retirement pension at the age of 60 if she had been born female. However this ruling has little practical future significance as since April 2005 a male-to-female transsexual who has been issued with a gender recognition certificate and who has attained the age at which a woman of the same age is entitled to a pension is to be treated as attaining pensionable age when the certificate is issued (under the Gender Recognition Act 2004).
There is an amazing web-site with this title, full of links to stories of bank employees and their employers contesting what are often multi-million pound sex-related employment cases. Two recent ones are an ongoing claim by a woman who is claiming £11 million from HBOS (the merged Halifax and Bank of Scotland) on the basis that her boss "disrespected, demeaned, overruled, micro-managed and humiliated her" and an almost, but not quite, totally unsuccessful claim for £5 million by a gay male employee against HSBC (originally the Hongkong and Shanghai Banking Corporation).