One new employment law related Bill has been introduced in the last month - the St George's Day Bill (a private member's Bill) proposes making 23rd April a bank holiday in England (there is also a Bill before the Scottish Parliament to make St Andrew's day, 30th November, a bank holiday in Scotland).
On 2nd reading of the Corporate Manslaughter and Corporate Homicide Bill on 10th October, the government faced renewed criticism for its refusal to bring individuals within the scope of the Bill. A few days later the government proposed an amendment (which does not go as far as the critics wanted).
Notes on all employment law related Bills and prospective Bills (plus recently enacted Bills and employment law related Acts of Parliament) are provided from the links below, together with an archive of recent dropped and lapsed employment law related Bills.
Summaries of ALL cases reported in ICR 2006 parts 1 to 10 and in IRLR 2006 vol 35 nos 1 to 11 are now noted/summarised on our website as well as ALL other cases reported since January 2000. This is in addition to summaries and/or headnotes of more than 1,500 other employment cases, new and old. For most cases there are direct links to free versions of the full judgments on the internet.
A Muslim classroom assistant, Aishah Azmi, suspended by Kirklees Council for wearing a veil in lessons, lost her employment tribunal claims for direct and indirect religious discrimination and for harassment on religious grounds. However she won a part of her claim which related to victimisation and was awarded £1,100 for that. News reports suggest that, contrary to her MP's advice, she is planning an appeal to the EAT.
There are strict rules which require employers of reservists who are called up to reemploy them afterwards, subject to certain conditions. There are recent newspaper reports that these rules are being flouted with impunity by employers in many cases in relation to reservists returning from service in Iraq and/or Afghanistan. Separately, it is worth noting that under current law there is nothing to prevent an employer discriminating against a job applicant by refusing to employ him or her on the grounds that he or she is a member of the TA.
It is not uncommon for pay systems to provide higher pay for longer service. If most of those with longer service are men, a woman might complain that this amounts to indirect sex discrimination and is contrary to the Equal Pay Act 1970, especially if the reason she had less service is because she had taken a career break to have children or bring up a family. A female employee of the Health and Safety Executive made exactly that complaint in 2001 (although as it happens she did not have any children). The case came to the European Court of Justice in 2006. In a delphic judgment in October 2006 the ECJ ruled that "recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better". The overall effect of the judgment seems to be that a pay system which provides higher pay for longer service can be presumed to be lawful but that in any particular case a woman might be able to show that this is not so. The case now returns to the British Court of Appeal for further consideration. Expert legal advice should clearly be taken in any situation involving similar points especially as after 1st October 2006 the position is further complicated by anti-age discrimination legislation.
(i) The new anti-age discrimination laws which came into effect on 1st October do not protect employees of 65 or over against enforced retirement. Heyday (an organisation linked to the Age Concern charity) claims that this is a breach of EC law (the Equal Treatment Framework Directive 2000/78). The question is due to be considered by the High Court on 6th December 2006.
(ii) The government has postponed finalising the small print of the pension parts of the new Age Discrimination rules until 1st December to give more time for sorting out the detail. Unless this timetable is relaxed, the practical result is likely to be that firms and their pension fund trustees will have only two or three weeks to get to grips with the final detail of the new pension rules. Be aware!
(iii) The new anti-age discrimination laws remove all upper and lower age limits from calculations of statutory redundancy pay and unfair dismissal basic award. Our website includes an automated calculator complete with a spreadsheet function and a facility for taking account of ex-gratia payments in multiple redundancy cases, updated to take the new law into account.
The impossible contradiction resulting from attempts by employment tribunals to operate informally within a formal legal framework has given rise to various problems and various attempted solutions since the system was set up over 35 years ago. The introduction of new tribunal rules of procedure in October 2004 was intended to improve matters but in practice has increased the scope for argument over procedural minutiae. The Employment Appeal Tribunal has consistently taken the line that tribunals should be careful whereever possible to interpret these rules in a non-legalistic way consistent with the overriding objective of seeing that justice is done. The latest example arose when a tribunal rejected a claim because the claimant's solicitor's address rather than the claimant's address was given on the claim form. It was too late to resubmit the claim but happily for the claimant the EAT ruled that notwithstanding the wording of the relevant rule the error was neither "relevant" nor "material" and ordered that the claim form be accepted.
(i) New Control of Asbestos Regulations 2006 SI 2006/2739 come into force on 13th November 2006. A main purpose of the new regulations is to consolidate in one place a host of previous regulations but they also make some changes tightening up current rules.
(ii) The Amicus trade union is preparing to appeal against the Court of Appeal decision earlier in 2006 which effectively stopped the payment of compensation to workers with pleural plaques. The appeal to the House of Lords will be heard from June 25 to July 2, 2007.
The general rule is that parties to disputes can have "without prejudice" discussions to enable them to attempt to agree settlement without the fear that what they have proposed will be held against them in the event that the dispute finishes up in court. One of the few exceptions to this general rule is where a party waives his right to claim that discussions were "without prejudice". The EAT has ruled in a case in October 2006 that the fact that an employer did not object to settlement discussions being detailed at an internal grievance hearing was sufficient to mean that the employer had waived the right to claim that the discussions had been "without prejudice" and therfore should not be detailed before a tribunal. The case was a discrimination case and there is a suggestion in the judgment that perhaps a stricter line might be appropriate in other cases - but nonetheless the judgment identifies an area in which employers should be particularly cautious when conducting internal grievance hearings.
The delayed revised version of the Construction Industry Scheme (CIS) is now due to come into operation on 5th April 2007. Cards and certificates are being replaced by a 'verification' service to confirm whether subcontractors should be paid gross or net, which essentially turns on whether they are employees or self-employed sub-contractors.
The Court of Appeal, overruling the High Court, has held that statements relating to enhanced redundancy pay terms set out in a Staff Handbook but which were not in an employee's formal contract of employment were nonetheless part of his contract and enforceable by him. The Court of Appeal indicated that provisions for enhanced redundancy terms (ie better than statutory redundancy pay) are now a widely accepted feature of an employee's remuneration package and as such, are particularly apt for being treated as contractual even though only set out in a Staff Handbook.
Traditionally only guaranteed overtime had to be taken into account in calculating holiday pay entitlement of agricultural workers. However the latest annual Agricultural Wages Order which came into force on 1st October 2006 provides that farm workers' holiday pay must in future be calculated by reference to gross average pay including voluntary overtime over the 12 weeks running up to the holiday. Farmers are up in arms and both their representatives and trade unions are consulting lawyers. It now looks as though there will be some sort of climb down - in any event the Agricultural Wages Boad is currently consulting interested parties and is no doubt mulling over the relevance of the Working Time Regulations 1998 and the EC Working Time Directive 93/104. A meeting is scheduled for 10th November 2006 at which revised proposals are likely to be made.