No less than 16 employment law related Statutory Instruments came into force on 1st October 2005, in line with the government's new policy of twice-a-year (April and October) introduction of new SI's. Those in effect from 1st October include SI's increasing the National Minimum Wage, making employee-friendly changes to Sex Discrimination law and making it compulsory to use specified official forms when making an application to an employment tribunal or responding to a claim.
There were 19 Bills with employment law relevance either already introduced or at an advanced stage of preparation, including one in the Scottish Parliament, when Parliament broke up for the summer recess. Notes on all 19 Bills and prospective Bills are included on our website, together with an archive of lapsed employment law related Bills since 2002. Parliament remains in recess until 10th October 2005.
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 9 and in IRLR 2005 vol 34 no 9 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. Summaries of cases in IRLR 2005 vol 34 no 10 are currently being prepared.
Two employee-friendly changes to the anti-sex discrimination rules have been made with effect from 1st October, to comply with EC law. These changes remove the previous complicated requirements concerning the "pool of comparators" and "proportion" of persons of the opposite sex in indirect sex discrimination cases and clarify the rules relating to harassment. However the changes do not, as some had hoped and others had feared, make employers liable for harassment of staff by customers or clients. There are many other detail changes to the Sex Discrimination Act and Equal Pay Act made by the Employment Equality (Sex Discrimination) Regulations 2005, SI 2005/2467 but the two noted above likely to be of most significance in practice. As the government put it during consultation"the SDA already satisfies many of the requirements of the Directive" so in general the other changes are minor or merely give statutory backing to recent decision of the courts.
The adult minimum wage rate is increased from £4.85 per hour to £5.05 per hour, with other rates also being increased, by the National Minimum Wage Regulations 1999 (Amendment) Regulations 2005 SI 2005/2019, effective from 1st October 2005. Separately there are also new minimum wage rates for farm workers (the hourly minimum for a Standard Worker, Grade 2, is increased to £5.58 by the Agricultural Wages Order 2005 (No 1)). This also sets a dog allowance at £6.12 a week for each dog which a worker is required to keep.
As from 1st October it is essential that only the official application form ET1 and response form ET3 as provided by the Employment Tribunals are used when making a tribunal claim or responding to a claim. It seems that the new IT based case management system introduced by the tribunal service is unable to cope with forms other than the official ones. The law clearly provides for forms to be prescribed so notwithstanding that the EAT has recently been extremely critical of legalistic interpretation of procedural rules by tribunals failure to use the new forms exactly as specified is likely to be fatal to the acceptance of a claim or response.
The results of a CBI/Pertemps "Employment Trends" survey for 2004-2005 issued in September have provided statistical backing for the commonly held view that smaller employers find using the tribunal system is too expensive and complicated even if a case brought by an employee is hopeless. Nearly 450 firms in total responded to the survey. The results showed that employers with fewer than 50 staff settled one hundred per cent of claims "out of court". This statistic on its own may not mean much, and may imply commendation of the conciliation service provide by ACAS as much as criticicism of the tribunal system, but nonetheless the figure is startling.
The Court of Appeal has given guidance to employers, employees and advisers on the considerations take into account when an employee, previously full time, who has been absent on maternity leave asks to come back part-time or on job share when she returns to work. The fundamental question is whether refusal by the employer is "proportionate" in all the circumstances. In order to enable this to be considered the Court of Appeal recommended that "at least a basic economic analysis of the business and its needs" should be provided. In the case in question the employer failed to provide any such analysis. This failure helped the mother win her sex discrimination claim, demonstrating how important it is that in grey areas such as this both employers and employees should take expert professional legal advice.
There have been recent reports (see for example the Daily Telegraph of 5th September 2005) of a resurgence of the trick by which some job applicants make two (or more) applications for the same job using different names. The applications concerned are identical in all respects save that one will suggest the job applicant comes from a racial minority group or suffers from a disability. If that application does not lead to an invitation to interview but the other does the employer may soon find himself subjected to a discrimination claim which may be difficult to defend. To protect against this abuse, employers are well advised to check carefully for any "almost duplicate" job applications and to retain CV's submitted (but always being careful not to fall foul of Data Protection privacy rules).
The proposed EC Directive on "Working conditions for temporary workers" has had a rough ride since the original draft was prepared in late 2002. Now, allegedly as part of the European Commission's new good intentions to minimise red tape, the EC has announced that for the time being no further efforts will be made to have the proposed Directive brought into law. Naturally workers' representatives were upset by the announcement but given the protections recently afforded to agency workers in the UK and given the differences in the way employment agencies work in different EC Member States, the TUC's complaint that shelving the Directive "gives a green light to those unscrupulous employers who will continue to exploit agency workers" is unlikely to have any practical effect.
The Employment Relations Act 2004 made various changes to trade union related law, generally favourable to the unions. Significant parts of the Act came into force on 1st October 2005, accompanied by new Codes of Practice on the conduct of ballots in connection with trade union recognition and taking industrial action. In particular there are new provisions designed to outlaw attempts by employers to bribe, coerce or unduly influence workers with a view to influencing the outcome of a ballot.
Conflicting High Court decisions in summer 2005 as to the precise circumstances in which an administrator's fees take priority over staff wages in a company insolvency or vice-versa led to the risk that it could become impossible in some situations for an insolvent company to find an administrator prepared to act. The Court of Appeal, convened at short notice in August to resolve the issue, ruled that the fees and costs of an administrator, including those of an administrator who has ceased to act as such, take priority over amounts due to employees in respect of genuine pay in lieu of notice or protective award which a tribunal can order an employer to pay if he failed to consult employees as required by law before making redundancies.