At 7th November 2005 there were 22 Bills with employment law relevance either already introduced or at an advanced stage of preparation, including two in the Scottish Parliament. Notes on all 22 Bills and prospective Bills 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 2005 part 11 and in IRLR 2005 vol 34 no 11 are now noted/summarised and short commentary is provided. For most new cases there are direct links to free versions of the full judgments on the Court Service, EAT or BAILII websites. This is in addition to linked thumbnail summaries and/or headnotes of more than 1,500 other employment cases, new and old. .
A major extension of maternity and related rights is proposed by the Work and Families Bill (first reading in the House of Commons on 18th October 2005). In the main the Bill follows the (once unusual) pattern of giving ministers power to make regulations about specific matters rather than itself making changes to the law, so details are not known. That being said, proposals include giving Ministers power to increase Statutory Maternity Pay, Maternity Allowance and Statutory Adoption Pay allowance periods to 39 weeks by April 2007 and later to 52 weeks; to allow a mother who returns to work to transfer the balance (up to 26 weeks) of her maternity leave and pay to the father (or a partner with parental responsibilities); and to extend the current right to request flexible working. The Bill also provides that employees will become legally entitled to time off on public holidays and allows Ministers to make a one-off inflation busting increase in the (currently £280) maximum amount of a week's pay which can be taken into account in various employment law calculations, for example calculations of statutory redundancy pay.and unfair dismissal basic award.
A young fitter's mate employed by a subcontractor negligently set off a sprinkler system which then flooded the factory where they were installing new air conditioning, causing considerable damage. As a matter of law, could both the sub-contractor and the head contractor be liable? Although previously this possibility had been suggested only academically and was contrary to a "long standing assumption that dual vicarious liability is not possible", nevertheless the Court of Appeal held in October 2005 that the contractor and the sub-contractor were 50/50 liable.
A 2001 EC Directive (no 2001/14/EC) deals in amazing detail with permitted levels of noise generated by outdoor mechanical equipment (concrete mixers, drills etc). It provides for implementation by Member States in two stages, the first by 3rd January 2002 and the second by 3rd January 2006. It has become apparent that it is not feasible to implement stage 2 on time. As a result an amending EC directive (not yet available) is expected. In the meantime, on 26th October 2005 the DTI produced a consultation document with draft regulations designed to ensure that the UK complies with its obligations. Consultation ends on 23rd November.
The employment law related parts of the Disability Discrimination Act 2005 come into force on 5th December 2005, including the provision (s.18) which provides for the meaning of "disability" for purposes of DDA 1995 to be extended in two significant ways. Firstly HIV, cancer and/or multiple sclerosis will be expressly covered. Secondly, the present requirement that a mental illness must be "clinically well-recognised" to count as a disability for DDA purposes is removed. This is of considerable significance as it may open the door to all sorts of claims especially stress-related claims - or at least open it more widely given that earlier this year the EAT held (in Dunham v Ashford Windows EAT 2005) that non-clinically recognised "learning difficulties" are already covered if they have a substantial and long-term adverse effect on the person concerned's ability to carry out normal day to day activities.
Touch wood, it looks as though the European Court may give its blessing to the practice of rolling-up holiday pay. There are trades in which it is obviously convenient to both employer and worker for holiday pay to be "rolled up", that is instead of receiving pay while he or she is absent on holiday the worker has an appropriate fractional amount added to his or her weekly or monthly wage. For some while there have been arguments as to whether this practice is unlawful given that the Working Time Directive specifically requires all workers to be allowed a minimum of 4 weeks paid holiday a year. In the UK , courts and tribunals have come to different decisions on the question. The Court of Appeal and the Leeds employment tribunal have each put relevant questions to the ECJ for clarification. Preliminary indications are that, subject to provisos designed to safeguard workers, the ECJ is likely to approve the practice - at any rate that was the (non-binding) preliminary recommendation of the ECJ Advocate-General on 27th October. A final decision from the European Court is expected by summer 2006. As the considerations involved can be quite finely balanced, expert advice should be taken in any particular situation before engaging in the practice of rolling up holiday pay.
Still on the subject of holiday pay, a rather technnical decision of the Employment Appeal Tribunal has quite significant consequences when a worker who has not received his full holiday pay entitlement leaves employment. Under the Working Time Regulations he can claim back holiday pay only for the current year. In the case in question a bricklayer who for two or three years had not been paid the holiday pay to which he was entitled under the regulations and who left employment brought a claim for back holiday pay for the two previous years. As that claim could not succeed if brought under the Working Time Regulations.he brought it instead under the "unlawful deductions from wages" provisions of the Employment Rights Act 1996 which have no "current year" limitation. He won his claim at the London South Employment Tribunal in April 2004. The employer appealed and won.
As a general rule, an employer cannot force an employee to accept a significant adverse change to his terms and conditions of employment. As a general rule, if no compromise can be reached and the employee resigns he will be able to claim constructive unfair dismissal. However this is not an invariable rule. In a decision which will be welcomed by employers the Employment Appeal Tribunal held in October 2005 that it had been reasonable for an employer to require an employee to accept new but wholly reasonable restrictive covenants. The employee resigned, claimed unfair constructive dismissal and lost (Willow Oak Developments Ltd t/a Windsor Recruitment v Silverwood & ors EAT on 20th October 2005). The significance of the case is not so much that it made new law but rather that it demonstrates the flexibility of the courts and tribunals in their attempts to ensure a just result in individual circumstances - the EAT had reached the opposite conclusion last year in a similar case (Forshaw and Chorley v Archcraft Ltd, EAT on 13th December 2004) so no doubt Mr Silverwood and his advisers had expected to win.
The latest annual report of the Health & Safety Executive enforcement division (the HSE Offences and Penalties Report 2004/5) was published as a web-only document on 20th October 2005. Interesting statistics include: HSE brought 712 prosecutions (securing convictions in 95% of cases) and served 8445 enforcement notices. The average fine per case rose to £18,765 from £14,303 in 2003/2004. Average fines from higher courts, per offence prosecuted, rose to £46,388 from £32,216 in 2003/2004 and average fines in the lower court rose to £4,767 from £4,052 the previous year.
The DTI and the Amicus trade union have launched a new major "Dignity at Work" project aimed at eradicating bullying, with backing of organisations such as ACAS, BT, BAE Systems, the Chemical Industries Association, Legal and General, Remploy, the Royal Mail and the anti bullying charity, the Andrea Adams Trust. The project has its own dedicated website at www.dignityatwork.org which will be of interest to anyone concerned.
For years the Firefighters' Pension Scheme has allowed firemen to retire early with a full early retirement pension if, for example, they had an accident which prevented them climbing a ladder even though they were fully capable of doing other work in the fire service (eg office work). The temptation for a fireman to take advantage of this extraordinarily generous provision must have been considerable -and it has been a thorn in the flesh of their employers. New regulations mean, amongst other things, that with effect from 21st November 2005, the ill-health early retirement rule is changed so that pension will not be payable to a firefighter who is still capable of " performing any other duties appropriate to his former role as a firefighter" (the Firefighters' Pension Scheme (Amendment) (England) Order 2005, SI 2005/2980 ).
For more information go to Specific employments / firemen / pensions on our website