WHAT'S NEW?

Employment Law News
24th November 2003

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. Hand held phones in cars - from 1st December 2003
3. New anti-discrimination law - from 1st and 2nd December 2003
4. Equal Pay - including new code of practice from 1st December 2003
5. Working time regulations
6. TUPE developments
7. Constructive dismissal
8. National Minimum Wage - proposals for piece workers
9. Disability Discrimination - draft new code of practice
10. European Company Statute
11. European Pensions Directive
12. Proposals to amalgamate anti-discrimination organisations
13. Insolvent Pension funds
14. Sleeping Tribunal Member

1. Bills before Parliament (employment related)

sixteen

enacted:- European Union (Accessions) Act 2003 (includes provision for nationals of acceding States to enter or reside in the UK as workers); Income Tax (Earnings and Pensions) Act 2003; National Minimum Wage (Enforcement Notices) Act 2003; Railways & Transport Safety Act 2003; Sunday Working (Scotland) Act 2003.
dropped:- Company Directors' Performance and Compensation Bill; Company Directors’ (Health and Safety) Bill; Equality Bill; Pensioner Trustees and Final Payments Bill; Retirement Income Reform Bill.
failed to reach enactment:- Corporate Responsibility Bill; Crown Employment (Nationality) Bill; Disability Discrimination Bill (announced but no details yet available); Health & Safety at Work (Offences) Bill; National Minimum Wage (Tips) Bill; Pensions (Winding-Up) Bill.

STOP PRESS - Queen's Speech, 26th November 2003 The following 7 employment related Bills and 1 employment related draft Bill are included in the Queen's Speech for the new parliamentary session:

1. Armed Forces Pensions Compensation Bill; 2. Civil Partnership Bill; 3. Employment Relations Bill; 4. European Union Bill; 5. Fire and Rescue Services Bill; 6. Immigration and Asylum Bill; 7. Pensions Bill; 8.Draft Disability Discrimination Bill;

For more information on the above topic/s click on:
European Law/new EU members and/or Acts of Parliament and/or Bills before Parliament

2. Hand held phones in cars

From 1st December 2003 employers can be liable if they "cause or permit" employees to break new law introduced by the

Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003, SI 2003/2695

For more information on the above topic/s click on:
Vicarious liability

3. New anti-discrimination law

New rules outlawing discrimination in the employment field on grounds of religion (or similar) or on grounds of sexual orientation come into force on 1st and 2nd December 2003, implementing parts of the

EC framework Equal Treatment Directive 2000/78 of 28th November 2000

For more information on the above topic/s click on:
Religious discrimination/new regulations 2003 and/or Sex discrimination/sexual orientation regulations 2003

4. Equal Pay

a new Equal Pay Code of Practice comes into effect on 1st December 2003

The Employment Appeal Tribunal has ruled that a pay system under which employees with longer service and more experience had higher pay than those with shorter service and less experience does not infringe the Equal Pay Act 1970 even though most of the latter are female and most of the former are male.

For more information on the above topic/s click on:
Equal pay and terms of employment/code of practice on equal pay and/or Health & Safety Executive v Cadman EAT case 0947/022003 on 22nd October 2003

5. Working time regulations

48 hour weekly average maximum opt-out. Trade Unions are pressing for the right to opt out to be ended while the CBI is pressing for it to be retained.
Working Time proposals for Mobile Workers in Road Transport

For more information on the above topic/s click on:
Working Time Regulations/opting out and/or Specific employments/coach and lorry drivers

6. TUPE developments

Any purchaser of a business (or contractor taking over an existing contract) should take great care to ensure that due diligence covers any possible early retirement benefits to which incoming staff may be entitled under their current employer's pension scheme. This follows from the European Court of Justice's confirmation (in Martin, Daby and Willis v South Bank University, C-4/01 on 6th Nov 2003) of its potentially costly (for employers) ruling in the 2002 Beckman case.
The House of Lords has referred a knotty TUPE question to the European Court of Justice. The question arose in the case of Celtec Ltd v Astley & ors on 10th November 2003 and concerns whether there is a point in time at which the transfer of an undertaking is deemed to have been completed and the transfer of rights and obligations pursuant to EC Acquired Rights Directive 77/187/EEC art 3(1) is effected.
The ECJ has confirmed that even if neither assets nor employees are taken over by a new contractor when he takes over an existing contract it is still possible that a "business entity" would continue to exist with the effect that the TUPE regulations would apply (Abler & ors v Sodexho Catering Gesellschaft mbH ECJ Case C-340/01, 20th November 2003).
The DTI has still not published the draft amendments to the TUPE regulations but they are still expected before the end of the year.

For more information on the above topic/s click on:
Transfer of business or undertaking/pension rights and/or Celtec Ltd v Astley and ors (HL) 10th November 2003 and/or Transfer of business or undertaking/contracting out of services and/or Transfer of business or undertaking/proposed new regulations

7. Constructive dismissal

The conduct to be considered when determining whether an employee's resignation amounts to his or her constructive dismissal is the conduct of the employer not that of the employee.
For more information on the above topic/s click on:
Tolson v Governing Body of Mixenden Community School, EAT 16th September 2003

8. National Minimum Wage - proposals for piece workers

Calculation of the minimum wage for workers paid by reference to output rather than time obviously presents special problems. New regulations are intended to replace the existing, frequently unfair, "fair estimate" arrangements as from April 2004.
For more information on the above topic/s click on:
Minimum Wage/2003 consultation on fair estimate agreements

9. Disability Discrimination - draft new code of practice

The Disability Rights Commission is carrying out a public consultation on a proposed new Code of Practice on Employment and Occupation in the light of the changes to the employment provisions of the Disability Discrimination Act 1995 coming into force on 1st October 2004
For more information on the above topic/s click on:
Disability Discrimination/2003 amendment regulations

10. European Company Statute

As from 8th October 2004 companies operating in more than one EU Member State will be able to establish a "single European company" or "SE" to operate in all Member States.
For more information on the above topic/s click on:
European law/european company

11. European Pensions Directive

By 23rd September 2005, all occupational pensions schemes run by companies in EU member states will become "pan-European".
For more information on the above topic/s click on:
European law/pensions

12. Insolvent Pension funds

On 22nd October 2003 the government issued a consultation paper with a view to ensuring that pension fund assets are shared as fairly as possible between active and pensioner scheme members if the assets are insufficient to meet all liabilities. Consultation ends 3rd December 2003
For more information on the above topic/s click on:
Pensions/winding up of occupational schemes