- Bills before Parliament (employment related)
- Minimum Wage
- Sickness absence from work - special rules for teachers
- Time off for Union Learning Reps
- Temps and Agency Workers
- Disability Discrimination changes
- Compensation for psychiatric injury in discrimination cases.
- Large shops opening on Christmas day.
- Dismissal of senior executive after hostile take over - unfair or not?
- Sub-postmaster and postmistresses
- Clergymen and their status in employment law.
- Stakeholder pensions.
- Compensation for unfair dismissal.
1. Bills before Parliament (employment related)
There have now been eleven Bills containing specific employment law provisions announced or introduced since November 2002. These are the Company Directors’ Performance and Compensation Bill, the Company Directors’ (Health and Safety) Bill, the Crown Employment Nationality) Bill, the Disability Discrimination Bill, the Equality Bill, the Health & Safety at Work (Offences) Bill, the Income Tax (Earnings and Pensions) Bill (now enacted), the National Minimum Wage (Enforcement Notices) Bill, the Railways & Transport Safety Bill, the Retirement Income Reform Bill and the Sunday Working (Scotland) Bill.
Two recent developments are:
- The National Minimum Wage (Enforcement Notices) Act 2003 received Royal Assent on 8th May 2003 and comes into effect on 8th July 2003. It blocks a loophole in the minimum wage rules, originally exposed by the Employment Appeal Tribunal and confirmed by the Court of Appeal in April 2003 in the Bebb Travel case, which some less scrupulous employers might otherwise have tried to take advantage of.
- New minimum wage rates for agricultural workers have been announced to come into effect on 7th July 2003.
- As noted in a previous newsletter, the normal adult National Minimum Wage rate will increase from £4.20 to £4.50 as from October 2003 and the rate for 18-21 year olds will rise from £3.60 to £3.80 and the Low Pay Commission has recommended further increases to come into effect in October 2004.
3. Sickness absence from work - special rules for teachers
The High Court has held that local authority school teachers have special protection if they become too ill to teach. Because of the wording of the relevant regulations (the Education (Teachers’ Qualifications and Health Standards) (England) Regulations 1999 SI 1999/2166) local authority teachers’ contracts are not automatically terminated by reason of incapacity and the local authority has a legal obligation to dismiss the teacher if he does not resign. The teacher will then be entitled to his full weekly wage for the duration of his notice period, which may be substantial, and on the termination of his employment will of course be eligible for an occupational pension based on his length of service and final salary.
4. Time off for Union Learning Reps
With effect from 27th April 2003, union learning representatives have the right to take paid time off work of an amount and on occasions and for the purposes which “… are reasonable in all the circumstances having regard to any relevant provision of” the Code of Practice issued by ACAS (see Trade Union and Labour Relations (Consolidation) Act 1992 new s.168A inserted by Employment Act 2002 s.43(8) brought into force on 27th April 2003 by Employment Act 2002 (Commencement No. 4 and Transitional Provisions) Order 2003 SI 1190).
An EC meeting on 8th May 2003 demonstrated that there is still disagreement at Commission level about the draft Temporary Agency Work Directive and a report by the International Business Editor of the Times (the Times 19th May 2003, p.21) suggests that Britain and Germany may be about to do a deal in which Germany agrees to back British objections to the draft agency work directive in return for Britain backing German objections to the draft Takeover directive. The draft Temporary Agency Workers Directive is due to be discussed at an EU Council of Ministers meeting on Tuesday 3rd June 2003. If adopted the directive could have far reaching implications. This and a recent EAT case in which Brook Street Bureau were held to be liable as employers to a temp cleaner they had first introduced to Wandsworth Council some 6 years previously suggest expert advice should be taken both by employment agencies and those who use their services to ensure they are aware of potential liabilities and to help avoid pitfalls, for example by including appropriate indemnities in agency contracts.
6. Disability Discrimination changes
- In May 2003 the Disability Rights Commission published a review of the workings of the 1995 Disability Discrimination Act over the last 7/8 years. The DRC is pressing for a new definition of “disability” to ensure that anti-discrimination law properly protects those with progressive conditions, notably cancer and Multiple Sclerosis (MS), from the point of diagnosis (including those in remission). The DRC is also suggesting that receipt of specified state disability benefits should automatically allow applicants to be deemed to be disabled for DDA purposes, that the list of normal day-to-day activities should be revised to include “the ability to communicate with others” and that the requirement that a mental illness be “clinically well recognised” should be removed. These recommendations may be included in a Disability Discrimination Bill which the government has announced is in preparation.
- Also in May 2003, a revised version of draft Disability Discrimination Act 1995 (Amendment) Regulations 2003, originally issued last October, was published. These regulations will amongst other things abolish the “small employer” exemption from the DDA rules as form October 2004.
7. Compensation for psychiatric injury in discrimination cases.
The EAT has ruled that in sex, race and disability discrimination cases the appropriate test for deciding whether an employer is liable to pay compensation for psychiatric injury suffered by an employee is NOT whether the injury was reasonably forseeable but is simply whether unlawful discrimination caused it. The EAT drew a distinction between “statutory torts” (such as those created by the anti-discrimination statutes) which involve strict liability and “common law torts” for example the tort of negligence where the normal “reasonably foreseeability” test is relevant when deciding whether an employer is liable for injury resulting from his negligent act.
8. Large shops opening on Christmas day..
Under current law large shops may not open on Christmas Day if that is a Sunday. If a bill presented to Parliament in November 2001 had become law (it failed) the Christmas Day opening prohibition would have applied whatever day of the week Christmas happened to be. This idea of extending the statutory ban on large shop opening on Christmas Day regardless of the day of the week on which it occurs is currently being reconsidered by the DTI - consultation ends on 2nd July 2003 (see DTI 2003 Consultation Paper on Xmas opening).
9. Dismissal of senior executive after hostile take over - unfair or not?
If the chief executive of a company who has not been guilty of any misconduct is dismissed by new shareholders after they have won a contested takeoever battle during which he strongly opposed them, can that dismissal be fair? This was the fate of Mr Kenneth Cobley, Managing Director, Chief Executive and latterly Deputy Chairman of Forward Technology Industries PLC who was employed by that company from late 1973 until early 2000. He was dismissed by the new shareholders, an American company, after a hotly contested take over battle in which Mr Cobley led a failed attempt to mount a management buy out. The Employment Appeal Tribunal held ( Case EAT/0524/01 on 9th July 2002) that the dismissal was fair even though Mr Cobley had not been guilty of misconduct. He appealed to the Court of Appeal which gave its decision in mid-May 2003.
10. Sub-postmaster and postmistresses
After various, sometimes conflicting, decisions by employment tribunals in recent years it now seems to be finally settled that sub-postmasters (and sub-postmistresses) are self-employed and as such are generally outside the scope of employment protection legislation. The EAT has given a comprehensive ruling to the effect that sub-postmasters are not “employees” of the post office (and so do not qualify for, for example, unfair dismissal rights) and that they are not “workers” for the purposes of the Working Time regulations and are neither “workers” nor “homeworkers” for purposes of the National Minimum Wage rules.
11. Clergymen and their status in employment law.
After the high profile case of the Rev Ray Owen in the English High Court the European Parliament passed a resolution in late 2002 which was highly critical of the UK legal position (to the effect that a priest is an office holder and not an employee of anyone except possibly God, with the incidental result of making it hard for a vicar to serve an IT1 unfair dismissal claim), there was a debate on the subject in the House of Commons in April 2003 (see HoC Hansard). During that debate the Government accepted that the DTI has power, under Employment Relations Act 1999 s.23, to extend employment rights to the clergy and it appears that this possibility is now actively being considered.
In May 2003 OPRA announced a campaign to make sure companies are complying with the law by offering their employees access to a pension scheme. Opra will be sending surveys to employers across the UK to find out if they are breaking the law. Each month Opra will target businesses in a specific regional area, starting with the North East in May 2003. Employers should take note and consult their lawyers if in any doubt as to whether they are complying with the rules.
13. Compensation for unfair dismissal.
The EAT has handed down an important ruling in favour of an employer in a case in which an unfairly dismissed employee claimed compensation for non financial loss as well as the more normal claims for pecuniary loss (Dunnachie v Kingston upon Hull City Council & ors). The employee had suffered from being bullied at work. The EAT ruled that compensation for unfair dismissal (unlike damages for common law wrongful dismissal) should be limited to compensation for economic loss only and may not include compensation for injury to feelings. Claims by unfairly dismissed employees for compensation for injury to feelings have been on the increase since the March 2001 House of Lords decision in Johnson v Unisys Ltd.
Disclaimer
The information in this newsletter does not provide a comprehensive
or complete statement of the law relating to the issues discussed. It is intended only as a general guide. Specialist legal advice should always be sought in relation to particular circumstances.
