Employment Law News
30th November 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. Royal Assents in 2004 (employment related)
3. New ICR and IRLR case reports
4. Pay on dismissal
5. Pregnancy related dismissals
6. Employers' Liability Insurance
7. Parental leave
8. European Constitution
9. Conscientious objectors
10. Stress
11. Equal pay and long service
12. Pensions and TUPE
13. ... and finally

1. Bills before Parliament (employment related)

The following employment related Bills are currently in draft or before Parliament:-

1. Armed Forces Pensions Compensation Bill;  2. Civil Partnership Bill;  3. Corporate Manslaughter Bill; 4. Crown Employment (Nationality) Bill;  5. draft Disability Discrimination Bill;  6. Fraud Bill;  7.  draft Income Tax (Trading and Other Income) Bill;  8.  Partnerships Bill (proposed); 9. Pensions Bill;  10. Tobacco Smoking (Public Places and Workplaces) Bil

  • for notes on and links to each of the above Bills and draft Bills go to emplaw notes at BILLS BEFORE PARLIAMENT (which also includes links to employment law related Bills dropped or enacted during the current session).


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2. Royal Assents in 2004 (employment related)

The following Acts with employment law relevance have been enacted during 2004:-

1. Asylum and Immigration (Treatment of Claimants etc) Act 2004;  2. Carers (Equal Opportunities) Act 2004;  3.  Companies (Audit, Investigations and Community Enterprise) Act 2004; 4. Christmas Day Trading Act 2004; 5. Employment Relations Act 2004;  6. Fire and Rescue Services Act 2004; 5. Gangmaster (Licensing) Act 2004; 7. Gender Recognition Act 2004; 8.  National Insurance Contributions and Statutory Payments Act 2004;  9.  Patents Act 2004.

  • for notes on and links to each of the above new Acts go to notes at  ACTS OF PARLIAMENT etc
  • for a linked listing of all recent employment law related Statutory Instruments go to Recent SI's


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3. New ICR and IRLR case reports

A unique feature of this program is provision of thumbnail summaries and/or or headnotes of all cases reported in current editions of the ICR and IRLR law reports. Wherever possible (ie almost always) we also provide direct links to the full text judgments. All this is in addition to linked thumbnail summaries and/or headnotes of more than 1,500 other cases, new and old.




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4. Pay on dismissal

An employee is dismissed for fraud half way through a month.  Is he legally entitled to a proportion of his final month's salary even though his contractual entitlement to pay accrues monthly in arrears?  19th century case law, supported by the High Court as recently as 2003, decided no, an employee dismissed for fraud is not entitled to salary down to the date of dismissal when the date for its payment had not then been reached.  On 30th September 2004 the Court of Appeal ruled that this was wrong - the Apportionment Act 1870 applies and in those circumstances  the employee is entitled to the appropriate proportion of salary.


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5. Pregnancy related dismissals

In pregnancy related dismissal cases an employer must know or believe that an employee is pregnant if her dismissal is to be automatically unfair on grounds of pregnancy.




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6. Employers' Liability Insurance

The government has announced that the law will be changed in early 2005 to exempt very small companies that employ only their owner from the requirement to have employers’ liability compulsory insurance.


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7. Parental leave

It has been held that under the wording of the Maternity and Parental Leave etc. Regulations 1999  employees have no entitlement to parental leave for a period of less than one week except when the child in respect of whom leave is taken is entitled to disability living allowance.


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8. European Constitution

While not directly related to employment law the EU Constitutional Treaty signed in Rome on 29th October 2004 is of such enormous potential significance that it must be mentioned.  The new EU Constitution will come into effect at end October 2006 "provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the second month following the deposit of the instrument of ratification by the last signatory State to take this step".


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9. Conscientious objectors

The case of a Muslim RAF reservist called up in 2003 before the Iraq war started and who then went absent without leave on grounds of conscientious objection came before  the High Court in October 2004.  The man in question had not applied for exemption on grounds of conscience and the High Court decided that in this particular case the Human Rights Act did not protect him from disciplinary action taken by the RAF.   The Court refused to be drawn into setting out principles of universal application but its detailed examination of relevant case and  statute law is likely to be helpful in future cases.


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10. Stress

Activity on the "stress" front this month included agreement by the EU "social partners" (viz the European Trade Union Confederation (ETUC), the Union of Industrial and Employers' Confederations in Europe (UNICE), the European Association of Craft, Small and Medium-sized Enterprises (UEAPME), and the European Centre of Enterprises with Public Participation and Enterprises of General Economic Interest (CEEP)) on a new framework agreement on work-related stress. There is also a new ACAS booklet on "Stress at Work" and the Health & Safety Executive has launched new "Management Standards for Work-Related Stress" on the internet.


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11. Equal pay and long service

The Court of Appeal has referred to the European Court questions about a company pay system under which employees with longer service and more experience get higher pay than those with shorter service and less experience where most of the latter are female and most of the former are male.  Issues relating to justification and the differences between part time and full time workers are also involved.   The case in point provides a useful insight into the differences between the approach of British courts which are used to the common law precedent system and continental courts which have no tradition of precedent.


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12. Pensions and TUPE

When ownership of a business or undertaking passes to a new owner under what is commonly called a "TUPE transfer" and an employee has a claim relating to non-membership of the original employer's pension scheme the time limit for bringing the claim starts to run from the date when employment with the original employer ceased and the claim must be brought against the original employer.  This was decided by the Court of Appeal in October 2004 as one part of the "Preston litigation" concerning thousands of equal pay claims brought by part-time employees, mainly women, in relation to denial of access to occupational pension schemes.  The position may change assuming the Pension Bill is enacted.


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13. ... and finally

Some good news for those City of London employers, building contractors and others who operate in an environment where use of bad language and/or aggressive behaviour may be routine.  In October 2004 the Court of Appeal expressed disquiet about the much publicised (£900,000 plus) constructive dismissal award last year by the High Court in favour of Mr Horkulak, a market trader working for Cantor Fitzgerald.  The case is being remitted back to the High Court for reassessment of damages.


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prepared 2nd November 2004.
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