As widely reported, the government has won the case of DTI v Rutherford, Bentley and Harvest Town Circle Ltd (in liquidation) in the EAT. The long judgment was handed down on 2nd October 2003 and made available on the internet at once. This is the case in which two men, now in their 70's, argued that they should be able to make claims for unfair dismissal and/or statutory redundancy pay even though they were over 65 when their employments ceased. They claimed that the statutory 65 upper age limit for such claims was sex discriminatory and should be disregarded as being incompatible with EC law . The EAT judgment is effectively in two parts dealing with (i) "disparate impact" (statistical evidence) and (ii) "justification" (policy considerations). The government won on both aspects.

Rather conveniently, the government was directly involved as a litigant because the employers of Mr Rutherford and Mr Bentley had both become insolvent. The men would thus have had claims against the Secretary of State under government guarantee arrangements if they had won. As age discrimination in the workplace is to be made unlawful under new laws (not yet available) expected to come into effect in October 2006 it is possible that the age limits concerned (in Employment Rights Act 1996 ss.109, 119, 156 and 162) may be removed or substantially increased anyway within the next few years.

Until 27th October 2003 there is a "civil liability exclusion" which applies to both the Management of Health and Safety at Work Regulations 1999 and to the Fire Precautions (Workplace) Regulations 1997. This means that employees cannot sue their employers for injury resulting from a breach of the regulations.

From 27th October 2003 the position is changed. From that date employees can claim damages from their employer in a civil action, where they suffer injury or illness as a result of the employer breaching the regulations noted above. The changes are implemented by the Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003 SI 2003/2457.

There is a question as to whether a pay increase which comes into effect before the end of a woman's maternity leave must be taken into account in calculating her higher-rate SMP (ie the 90% of salary SMP payable for the first six weeks of her leave). The Statutory Maternity Pay (General) Regulations 1986 reg 21 (as amended by Statutory Maternity Pay (General) Amendment Regulations 1996 reg 2) provide that the answer is "yes" if the pay rise came into effect during the 8 week calculation period used for calculating the employee's higher rate SMP. However the regulations are silent as to the position if the pay rise came into effect after the end of that 8 week period.

The European Court of Justice has been considering that position. The ECJ Advocate-General gave a rather delphic preliminary opinion at the end of September to the effect that the answer should generally be "yes" but that national rules must be taken into account (Alabaster v Woolwich plc v Secretary of State for Social Security Case C-147/02). A final decision from the ECJ judges is now awaited.

The Insolvency Act 1986 provided that debts due to the Inland Revenue (including unpaid social security contributions) or to Customs and Excise would be preferential debts on an insolvency. Since 15th September 2003 this is no longer the case (Enterprise Act 2002 s.251 makes an appropriate amendment to the 1986 Act). One of the effects will be to increase the size of the pot available to other preferred creditors, including employees in respect of unpaid remuneration, in the event of the employer becoming insolvent without being able to pay off the preferred creditors in full.

As noted in previous newsletters the Employment Equality (sexual Orientation) Regulations 2003 make it generally unlawful to discriminate in the employment field against a person on grounds of their sexual orientation with effect from 1st December 2003. Amongst the exceptions to the general rule is one (in reg 25) which provides that "Nothing in [the main part of the regulations] shall render unlawful anything which prevents or restricts access to a benefit by reference to marital status". The legality of this exemption has been questioned, especially as it is common for occupational pension schemes, including those run by public sector employers, to provide surviving spouse pensions which are benefits "by reference to marital status" which are not available to the partners of gay employees.

Some trade unions are bringing an action in the High Court seeking a declaration that the marital status exception in reg 25 means that the new regulations do not properly implement the Equal Treatment Framework Directive 2000/78/EC.

From an employer's point of view the regulations make it important to ensure that any scheme (for example a travel voucher scheme as well as retirement schemes) which provides benefits for unmarried partners of employees does so regardless of whether they are same sex or heterosexual partners. Also any equal opportunities policies should be reviewed to ensure compliance, especially perhaps in relation to promotion.

The EAT has ruled on particular facts that instant unofficial strike action was not a "reasonable means" of bringing health and safety problems to an employer's attention. Therefore dismissal of workers who went on unofficial strike for that purpose were not automatically unfair dismissals under Employment Rights Act 1996 s.100(1)(c)).

The case in question, (Balfour Kilpatrick Ltd v Acheson and ors, reported at [2003] IRLR 683), has an interesting additional twist. It shows that a strange result of wording in Trade Union and Labour Relations (Consolidation) Act 1992 s.237(2) is that members of a trade union who are dismissed while on strike can in some circumstances claim unfair dismissal while their colleagues who were members of a different trade union cannot do so.

New Armed Forces Pension and Compensation schemes were announced by the government on 15th September 2003 to come into effect from April 2005. The new arrangements include a death-in-service benefit of four times pensionable pay (an increase from one and a half times) and an increase of 25 percent in widow(er)'s pension compared to the current scheme. Unmarried partners of either sex will be able to benefit where there is a "substantial relationship".

Since April 2003, the Home Office has been charging fees to prospective employers applying for work permits for foreign employees for consideration of their applications. Various detailed changes to the fee system for long and short term immigration applications have been made throughout the summer, the latest being a fee of £12 per person coming to the UK as a seasonal agricultural worker, effective from 20th October 2003 under the Immigration Employment Document (Fees) (Amendment No. 2) Regulations 2003

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