The Legal 500

Terms and conditions of employment are often found, especially in the public sector, not in the individual contracts of employment themselves, but in collective agreements between the employer and trade unions, collective agreements which are expressly incorporated into the individual contracts. If the employer and the unions agree changes in the collective agreement then the individual contracts will automatically be varied accordingly.

Peter Wallington QC

In my talk, and this paper, I will attempt to highlight some of the most important developments in Employment Law in the last year, with particular reference to those most likely to be of interest to those working in the local government sector, and will also highlight the key proposals for reforms, both procedural and substantive, issued for consultation by the Government earlier this year.

(A) Disability discrimination - incl reasonable adjustments, admissions andexclusions
(B) Statements of SEN - parental preference, costs (H v Kent CC, the Slough case)
(C) Other matters - Academies, the Education Bill, the SEN Green paper

Simon Forshaw

Introduction 1. The Employment Tribunal system is under attack! It is regularly exposed to criticism as being inefficient, costing those who participate in it too much money and amounting to a disproportionate burden on business. Such criticism has been made all the more fiercely of late both because of the economic climate and also because the Government has been reviewing the Employment Tribunal system with the express aim of reducing the burden placed on business by it.

minimising the pain

Simon Devonshire QC

1. A recession tends to lead to more claims but fewer trials. Employees naturally look for ways to maximise the value of their claims – particularly by reference to causes of action that bust the cap for a ‘vanilla’ unfair dismissal - often (in the case of high value employees) by reference to the whistleblowing legislation.

Jane McCafferty

policy aim behind the legislation governing insolvency is that of facilitating the so-called ‘rescue culture’ by making insolvent employers more attractive to prospective purchasers. The policy aim behind employment protection legislation is to provide valuable rights for employees. It is unsurprising that, when these two policy aims collide, problems arise. 

by Peter Wallington

In my talk, and this paper, I will attempt to highlight some of the most important developments in Employment Law in the last year, with particular reference to those most likely to be of interest to those working in the local government sector, and will also highlight the key proposals for reforms, both procedural and substantive, issued for consultation by the Government earlier this year.

by Andrew Blake

Equal pay continues to be a very hot topic in local government circles and, also, in employment law generally. As a result, in the last 12 months there have been a number of important appellate decisions, many involving local authorities. In addition many of the provisions in the Equality Act 2010 (‘the EA 2010’) came into force in October 2010 (although in most, but not all, respects the EA 2010 simply restates the provisions of the Equal Pay Act – ‘the EPA 1970’). 

by Patrick Halliday

Employment contracts are distinctive. The most obvious reason for this is statuary intervention.

"Garden Leave" is the practise of modifying an employee's role to protect an employer's legitimate interests, most often where an employee has given notice to leave work for a competition.

Peter Wallington Q.C.1

The statutory context 1. The settlement of ordinary commercial disputes is familiar territory for all lawyers, and settlements rarely require any particular formalities beyond sufficient clarity as to the terms of the agreement. This is equally so for purely contractual disputes in the field of employment, but there the comparison stops. 

Julian Milford

In this paper, I discuss the recent decision of the EAT (Keith J) in Ezsias v North Glamorgan NHS Trust UKEAT/0400/09 (18 March 2011)

The closure of the News of the World leaves its employees facing an uncertain future. It does not take News International’s own Mystic Meg to predict that that future will inevitably involve litigation. But what is the legal landscape and what claims can we expect?

Written by Christopher Jeans QC

Some specific features: all are victims, all are beneficiaries
1. The Equality Act 2010 has brought most1 of the law discrimination under a single
roof...

Written by Nigel Porter

a. Material Factor and justification.
b. TUPE and Equal Pay.
c. Proper Comparators and same employment/single source.
d. Other recent cases.
e. The Equality Act 2010: The new provisions and the changes introduced by ss 64-83 of the
Equality Act: secrecy clauses, comparators and reporting and information obligations.
f. Codes of Practice and guidance on Equal Pay.

Written by Alistair McGregor QC

1. The origins of the garden leave injunction are to be found in the judgment of Lord St
Leonards VC in Lumley v Wagner given on 26th May 1852 (see I de GM&G 604 42 ER
687).

1. The recent upsurge in reported cases on strikes and industrial action may well serve as a barometer of the current economic and political climate.  The level of legal activity in this area over the last year or so has perhaps been greater than at any time since the statutory balloting procedures were first introduced in the 1980s.  Those procedures have become more complex through subsequent amendment, in particular since 1992, thereby guaranteeing a fertile stream of novel points to be determined by the courts in times of industrial strife.

1. The Bribery Act 2010 (“the Act”) will finally come into force on 1 July 2011.  Its aim is to reform the criminal law of bribery and create a new consolidated scheme of bribery offences to cover bribery both in the UK and, significantly, abroad.  It provides a modern criminal counterpart to the sanctions long-established in relation to bribery in civil law.

The bleak outlook for local authorities continues. There have been a number of recent judgments which have made life harder still for local authorities which are trying to defend themselves against multiple equal pay claims, brought by claimants supported by unions, or by no win, no fee solicitors, or by a combination of both.

The Equality Bill was published on 27 April 2009 and became an Act of Parliament just before the last general election on 8 April 2010. The Explanatory Notes state that the Act has two main purposes: to harmonise discrimination law, and to strengthen the law to support progress on equality.

This paper considers recent developments in the case law which are likely to affect local authority employers. Legislative changes effected by the Equality Act are considered in Holly Stout’s paper, delivered in the next session.

In the last twelve months there have been a number of important decisions in relation to Part V of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

This talk aims to give a brief overview of issues arising on equal pay claims. At the same time it attempts to point out areas either of particular current interest or controversy, or where equal pay litigators need to be aware of specific substantive or procedural issues.

At the most general level the structure of the Employment Equality (Age) Regulations 2006 ("the Regulations") appears to be similar to that adopted in the other anti-discrimination legislation.

This talk considers the implications of the recent decision of the High Court in Tullett Prebon v BGC.1 It considers the legal remedies available to the gamekeeper, the pitfalls faced by the poacher, and the legal and strategic lessons to be drawn from the case.

The way we use the internet haschanged. It is no longer merely a digital reference library. As the internet has grown and the amount of information available has expanded, people have developed a new way of accessing this information in a way that is relevant to them. The ‘new’ internet, or ‘Web 2.0’, is a network of relationships where users interact and share knowledge with each other. Virtual friends become the custodians of knowledge, recommending products and services through their blogs and on other social media sites. By seeing what your like-minded friends find interesting, you are better able to decide what information you wish to ‘consume’.

In many legal disputes, particularly in the employment sphere, extensive use is made of without prejudice (WP) discussions. Discussions are WP if they are made in the course of a dispute between parties and represent an attempt to settle that dispute. While it is common for parties to make it expressly clear when discussions are WP and to record that fact in any documentation, it is good practice, not a legal requirement.

Following incidents such as the Clapham rail crash, the Zeebrugge ferry disaster and the scandals at the Bank of Credit and Commerce International (BCCI) and Baring Asset Management, it became clear that staff had been aware of the risks but had been too worried about what might happen to them to raise their concerns.


Public Interest Disclosure Act (PIDA) 1998


PIDA 1998 came into force on 2 July 1999, with the aim of targeting the above issues and of protecting individuals who make certain disclosures of information in the public interest (ie individuals who ‘blow the whistle’). PIDA 1998 inserted new ss43A-43L and s103A into the Employment Rights Act (ERA) 1996. These sections offer ostensible protection (from detriment and/or dismissal) for workers who report malpractices by their employers (or third parties).


Tullett Prebon Plc & Ors v BGC Brokers LP & ors [2010], where BGC were held to have unlawfully poached several teams of Tullett brokers, is a recent example of the fine line between team moves that are legally permissible and those that are unlawful. Tullett also illustrates the significant disruption and costs caused by poaching raids on staff.

The volatile business of inter-dealer broking may not be representative of most employers, but with an increased fluidity in the employment market as the economy emerges from recession, more employers are becoming wise to the increased risk, or opportunity, of team moves, particularly in sectors where teams rather than individuals are responsible for securing business.

How, then, should a business go about acquiring a team without incurring liability? Conversely, what should a business do to protect itself against losing its most valuable assets?

There have been several significant developments in case law concerning disability discrimination over recent months, but what impact will these changes have on employers? We examine below some of the key developments and their practical effect.

With the passing of each year, new employment-related legislation comes into force and, of course, 2010 is no exception. In April a range of new measures – some of which have long been on the horizon – will become law. An overview of the new measures and their potential impact is set out below.

In a move that is likely to cause concern for many employers, Employment Tribunals will soon be given the power to pass on details of whistleblowing claims directly to regulators. The new Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010 (the Regulations) are a response to concerns that some genuine allegations of malpractice were not being notified to, or investigated by, regulators. The government hopes that the new measures will facilitate the investigation of more instances of unlawful behaviour. The measures will be implemented for all whistleblowing claims submitted on or after 6 April 2010.

Religion and controversy are never far apart. In the world of employment law the headlines are all too familiar: the Muslim hairdresser who was refused a job because of her headscarf, the British Airways employee who was banned from wearing a cross and the Relate counsellor who was dismissed for refusing to counsel gay couples. These cases have highlighted the difficulties faced by employers in upholding the principle of equal treatment, especially where the interests of one or more protected groups collide. This article looks at several recent cases that have begun to test the limits of religion and belief discrimination. It examines the extent to which non-religious beliefs may be protected and the conflict between personal beliefs and employment obligations.

Despite extensive litigation in the area, it is still common practice for employees moving between companies (particularly competing firms) to bring with them confidential information belonging to their former employer. All employees have a duty of confidentiality imposed by common law and these duties are often expanded or clarified in their employment contract or company handbook. Such contractual provisions can be useful if they are properly used to specify areas that are genuinely confidential. However, these contracts can fall into the trap of attempting to define too much information as ‘confidential’ and the courts are likely to view excessively inclusive clauses with scepticism. This article discusses the issues for new and former employers when an employee leaks confidential information.

What happens when you have an employee who is determined to make a nuisance of themselves, regardless of the validity of their claims? This article gives some helpful hints and tips on dealing with common tactics used by employees to put pressure on employers.

In another case, akavan Erityisalojen Keskusliitto AEK & ors v Fujitsu Siemens Computers Oy [2009], the European Court of Justice (ECJ) has given guidance on the meaning of ‘contemplating’ redundancies for the purposes of collective consultation.

The European Court of Justice (ECJ) recently decided in the case of Vincente Pereda v Movilidad SA [2009] that a worker who falls ill on holiday can choose to take the holiday lost to sickness at a later date.

As has been widely reported, the High Court in R (on the Application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] has found that the default retirement age (DRA) of 65 is justified and can remain for the time being, although the judge gave a strong indication that it will have to be raised after next year’s government review.

The issue of pay has dominated the headlines over the summer, largely in relation to the remuneration of City employees. While restrictions on bankers’ bonuses and the obligation to provide greater transparency of pay arrangements to regulators is an immediate concern for large financial organisations, the issue of transparency in pay arrangements will soon become a concern for all large private employers if the proposals in the Equality Bill (the Bill) come into law.

WITH BUSINESSES UNDER THE MOST pressure they have been under since the late 1980s, the challenge of controlling costs has become the number one ‘bottom line’ issue for owners, directors and managers alike. The first place to look is often the biggest cost – people. But hastily made decisions about redundancies can have long-lasting and detrimental effects. Smart thinking around what is best for the business is the order of the day. Joanna Blackburn and Helen Croft of Mishcon de Reya’s employment group examine the alternatives to making employees redundant.

In Kirklees Metropolitan Council v Robert John Radecki [2009] the Court of Appeal (CA) considered the question of whether a termination date agreed as part of a negotiated exit, was the ‘effective termination date’ (EDT), in circumstances where the compromise agreement was not finalised. The EDT is a statutory concept, in the context of this case, being the date from which time is calculated for lodging a claim at the Employment Tribunal (ET).

The new TUPE Regulations were designed to improve the old legislation on outsourcing. Barry Mordsley and James Davies consider whether the Regulations have been successful since their introduction in 2006

The question of whether entitlement to holiday accrues during sick leave and whether an employee can take holiday during sick leave has once again come to the fore.

In IHL169 we reported about the new Acas code, which came into force on 6 April 2009, and its practical consequences for employers and employees. A recent decision by the Employment Appeal Tribunal (EAT) adds an extra layer to the code in relation to the right to be accompanied to a hearing. The EAT’s judgment will mean that employers will now need to consider allowing employees to be accompanied by a lawyer to a disciplinary hearing, in limited circumstances, where the allegations at issue are so serious that it would be a breach of the employee’s human rights not to do so.

Outlined below are some of the most recent changes in employment law.


This section summarises in brief some recent developments that will affect the application of employment law.


Further to the preliminary ruling by the European Court of Justice (ECJ) in Coleman (Social policy) [2008], the employment tribunal (ET) has handed down a ruling that will enable many employees who have been refused the right to work flexibly to care for a disabled relative to make a claim for discrimination against their employers. 


Just as the statutory disciplinary and grievance procedures are about to be abolished, another case – Step in Time Ltd v Fox & anor [2008] – addresses the vexed issue of what constitutes a valid grievance.


Redrow Homes (Yorkshire) Ltd v (1) Buckborough (2) Sewell [2008] is another case addressing the question ‘What is a worker?’. However, this case also deals with whether the documentation in place between a so-called ‘self-employed contractor’ and the end user is a sham. 


In Rolls Royce Plc v Unite the Union [2008], the two parties entered into a collective agreement addressing redundancy and redeployment issues. 


The Information Commissioner’s Office (ICO) has ruled that where a request is made under the Freedom of Information Act 2000, the Department for Business, Enterprise and Regulatory Reform (BERR) is required to disclose the names and addresses of all respondent organisations involved in Employment Tribunal proceedings.


Despite BERR’s arguments against the proposals, which included that organisations would be exposed to direct marketing by service providers and that opportunities for resolving disputes informally between the parties would be reduced, the ICO decided that there is a strong public interest is disclosing the information. 


This information was routinely published between 1965 and 2001, before being stopped following a government consultation. 


Details of those bringing complaints in the Employment Tribunal will not however be made public.


For further information, please visit www.salans.com

The long-awaited changes to the Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008 have come into effect and provide employees whose children were born on or after 5 October 2008, with the same terms and conditions during Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML).


Employers will have to continue to provide all contractual benefits (except pay) during any period of AML the employee takes. Such contractual benefits will include, for example, mobile phones, company cars and medical/dental/critical illness etc insurances. 


Employees are now also entitled to accrue contractual annual leave entitlement during OML and any period of AML. In respect of pension entitlements, the employer must continue to make pension payments during any period of paid maternity leave, whether this is statutory or contractual pay.


For further information, please visit www.salans.com

Peter Mandelson, the Secretary of State for Business and Enterprise has announced that the government may, as a result of the economic climate and looming recession, delay the introduction of the extension to the right to request flexible working for parents of children up to the age of 16. 


The decision was welcomed by the Confederation of British Industry, which was of the view that it is inappropriate to ‘be putting extra burdens on businesses’ at a time of economic uncertainty. However, the Trades Union Congress has heavily criticised Mandelson’s suggestion, claiming that it is ‘an astonishingly irrelevant response’.


By Nisha Lalji, paralegal in the employment department at Salans.


E-mail: nlalji@salans.com.

For further information, please visit www.salans.com

The decision of the Employment Appeal Tribunal (EAT) in Kimberley Group Housing Ltd v Hambley & ors (UK) Ltd [2008] is the first judicial consideration of the effect of service provision changes under the Transfer of Undertaking (Protection of Employment) Regulations (TUPE) 2006.


Often employers require employees to take any untaken holiday during their notice period, particularly if they are placed on garden leave. This was the case in Industrial & Commerce Maintenance Ltd v Briffa [2008].


The Advocate General (AG) of the European Court of Justice (ECJ) has delivered his Opinion on Heyday (Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform [2008]), following a referral by the English courts.


The debate continues about whether UK employees should be allowed to opt out of the 48-hour maximum working week under the Working Time Regulations (WTR) 1998. A recent motion by trade union leaders has called on the Labour Party to abolish the opt-out.


In May 2008 the government proposed extending the right to request flexible working to parents of children up to the age of 16. Currently, parents with children under six (or disabled children under 18) have a legal right to request flexible working arrangements, as do carers of adults. The government intends to introduce the new age limit by April 2009, despite lobbying by businesses to delay this until October 2009 or even 2010 due to the economic pressure that companies are likely to face. This leaves employers with less than a year to prepare for the extra 4.5 million parents who will be entitled to request flexible working under the new rules. The proposals also include a slight lessening of red tape, with the removal of the need to give employees a formal letter approving a request to change their working patterns.

For more information please visit www.salans.com.

Mr S Jones v Money Expert Ltd [2008] offers a reminder that failure to give full disclosure at the appropriate time and an attempt to rely on documents not previously seen by a party may lead to those documents – however relevant – being disregarded by a tribunal.

For more information please visit www.salans.com.

Rome 1 is a set of rules that aim to provide clarity over which law will apply where a dispute arises over a contract made between people or businesses from different jurisdictions. When the proposals were first announced by the European Commission in 2005, the government opted out of the proposals as it did not believe it was in the interests of UK businesses. Following a revised proposal and consultation, the government has agreed to sign up to them. Rome I is due to come into effect on 17 December 2009.

By Nisha Lalji, paralegal in the Salans employment group.

For more information please visit www.salans.com.

IN DARBY (1) STILL (2) v THE LAW SOCIETY OF ENGLAND and Wales [2008] the Employment Appeal Tribunal (EAT) considered whether Mr Darby and Ms Still (the claimants),who were both Law Society employees, had had their contracts terminated and were offered new contracts, or whether they had agreed to a consensual variation with no dismissal.

IN RAMSAY & ORS V BOWERCROSS CONSTRUCTION Ltd & ors [2008] the Employment Tribunal (ET) made a costs award against the claimants for £10,000 on the basis that their claim was misconceived. This was broadly speaking divided as £6,000 for counsel’s fees and £3,000 for the solicitor’s fees. VAT was added. The appeal by the claimants against this costs award is interesting on two grounds:

IN MALEY V ROYAL MAIL GROUP LTD [2008] THE Employment Appeal Tribunal (EAT) has again considered when the exemption to the requirement to lodge a grievance applies.

THE STATUTORY DISMISSAL AND DISCIPLINARY procedures (SDDPs) apply whenever an employer contemplates dismissing or taking relevant disciplinary action against an employee, irrespective of the employee’s length of service. Both the ‘standard’ and ‘modified’ SDDPs require the employer to take a number of steps, including offering an appeal. There is a requirement under paragraph 12, Part 3 of Schedule 2 to the Employment Act (EA) 2002 that ‘each step and action under the procedure must be taken without unreasonable delay’.

IN COLEMAN V ATTRIDGE LAW [2008] MS Coleman (C) was employed as a legal secretary from January 2001. The following year C gave birth to a son who suffered from apnoeic attacks and congenital laryngomalacia and bronchomalacia within the first years of his life. The child’s condition required specialised care and C was the primary carer.

IN WILLIAMS V CHESHIRE FIRE AND RESCUE Services [2008] Mr Williams (W) was employed as a firefighter from 3 April 1989 until 9 February 2007, when he was dismissed. W had a poor sickness record and received a number of verbal and written warnings, together with regular reviews regarding his attendance. On 19 September 2002 W was issued a final written warning.

IN MACCULLOCH V IMPERIAL CHEMICAL INDUSTRIES plc [2008] Ms MacCulloch (M) was made redundant by Imperial Chemicals Industry plc (ICI). She was paid an enhanced redundancy payment, which was calculated on age and length of service. The scheme gave significantly higher payments to older workers. M was nearly 37 years old and thus received only 55% of her gross annual salary compared to up to 175% for her older coworkers.

THE LONG-AWAITED AMENDMENTS TO THE SEX Discrimination Act (SDA) 1975 that came into force in April will affect women whose expected week of childbirth begins on or after 5 October 2008, allowing employers adequate time to prepare for the changes.

SINCE 2003 PARENTS WITH CHILDREN UNDER SIX (OR disabled children under 18) have had a legal right to request flexible working arrangements from their employer under the 2002 amendments to the Employment Rights Act 1996 and the Employment Act 2002. This right was extended to carers of adults in April 2007 by the Work and Families Act 2006, which led to six million employees having the right to request flexible working. The government is now proposing to extend the right to request flexible working to parents of children up to the age of 16, which will entitle an extra 4.5 million parents to the right to request flexible working.

FOR SOME TIME NOW, THERE HAS BEEN CONFLICTING authority where an employee resigns in response to a breach and claims constructive dismissal.

HAYS SPECIALIST RECRUITMENT (HOLDINGS) LTD & anor v Ions & anor [2008] was an application for preaction disclosure in relation to a potential claim against Mr Ions. It was alleged that Mr Ions, who had been employed by Hays for a period of six and a half years, copied and retained confidential information during his employment, which he used post-termination.

THIS QUESTION WAS RAISED IN THE RECENT employment tribunal (ET) case of Swann v GHL Insurance Services UK Ltd [2008] and the answer may be of some comfort to employers.

WHERE THERE IS A TRANSFER UNDER THE TRANSFER of Undertakings (Protection of Employment) Regulations 2006 (TUPE), all the rights and liabilities of the contract of employment of any person assigned to an organised grouping of resources or employees will transfer to the transferee.

Where an employee is dismissed before (or, indeed, after) a TUPE transfer, the employee is treated as being unfairly dismissed under TUPE Regulation 7 if the sole or principal reason for the dismissal is:

a) the transfer itself; or

IN NEUFELD v (1) A&N COMMUNICATIONS IN PRINT Ltd (In Liquidation) and (2) Secretary of State for Trade and Industry [2008], the question before the Employment Appeal Tribunal (EAT) was whether or not Mr Neufeld (N), the controlling shareholder of the first respondent (A&N), was also its employee.

N commenced employment with Neufeld Press Ltd in 1982 in its sales team, becoming a director and shareholder in 1988. In 2001, the business of Neufeld Press transferred to A&N, of which N was the majority shareholder (90%). The directors agreed that N would remain employed in the sales team and act as managing director. There was no written contract of employment.

A PLETHORA OF LEGISLATIVE CHANGES WAS introduced in April 2008. It is questionable whether the lowering of the threshold in the Information and Consultation of Employees Regulations 2004 (the ICE Regulations) to 50 employees will achieve a workplace that is truly ‘consultative’. The changes under the Sex Discrimination Act (SDA) 1975 – making employers potentially liable for harassment by clients and other ‘third parties’ – are big changes, although the legislation does provide certain protection for employers. Also important are the changes to maternity entitlements effective from October 2008. The change to the age discrimination legislation affecting ‘government functions’ may, in the private sector, have an impact in outsourcing situations, allowing the new employer to benefit from the wider definition for length of servicerelated benefits without falling foul of the age discrimination provisions.

IN D’SILVA V NATFHE (NOW KNOWN AS UNIVERSITY and College Union) & ors [2008], a lecturer (D) of Indian origin had brought several complaints against the University by which he was employed and also against the Union for refusing to represent him in his discrimination claim against the University.

IN W V JH & ANOR [2008], THE CLAIMANT’S previous employer (a County Council), and an ex-colleague, are facing a charge of slander following the ex-colleague’s disclosure of information about the claimant (W) to his current employer, a University.

SECTION 188 OF THE TRADE UNION AND LABOUR Relations (Consolidation Act) 1992 requires that, where an employer is proposing to dismiss as redundant 20 or more employees (but less than 100) at one establishment, within a period of 90 days or less, the employer shall consult all the appropriate representatives of any of the employees who may be affected by either the proposed dismissals or by measures taken in connection with those dismissals. The consultation shall begin in good time and at least 30 days before the first of the dismissals takes effect. Failure to comply with the rules can lead to a costly ‘protective award’ of up to 90 days’ pay for each of the individuals concerned.

On 6 April 2008 the majority of the provisions of the Corporate Manslaughter and Corporate Homicide Act 2007 (the 2007 Act) come into force.

In a case that may well worry some in-house counsel, Ward v University of Essex [2007], Dr A Ward, a law lecturer, was requested to attend a disciplinary hearing by the university. On 4 September 2006, she wrote a lengthy reply to the letter calling her to the hearing. At the end of this letter she stated that she would be interested in discussing a settlement package as she had other opportunities that she wished to pursue. She is now a practising barrister. Agreement was reached and a compromise agreement was entered into. Her employment ended on 30 September 2006.

The Employment Appeals Tribunal (EAT) looked at the question of the employer’s recoupment of commission in the case of Key Recruitment UK Ltd v Lear [2008]. The EAT’s approach to the question is illuminating and may lead to companies revising commission payment structures.

The last few weeks have seen the status of agency workers addressed not only in the Court of Appeal but also in Parliament, by way of a Private Members’ Bill. There is also a proposed new European Directive on temporary workers, which was blocked by a number of member states in December 2007 and has not yet gone beyond the first reading by the European Parliament.

In a surprising decision in Home Farm Trust Ltd v Nnachi, the EAT held that an employer discriminated against a pregnant employee when it took 13 days from being told that she was pregnant to carrying out a risk assessment.

Regulation 30 of the Employment Equality (Age) Regulations 2006 (the Regulations) provides that dismissal for retirement is not unlawful age discrimination. However, Regulation 30 only applies to employees. The compulsory retirement of, say, partners or office holders will therefore be unlawful age discrimination unless it can be objectively justified.

Pregnant women on Ordinary Maternity Leave (OML) are entitled to all of their normal contractual benefits, apart from ‘remuneration’. There has been much debate over what is meant by ‘remuneration’. A recent Employment Appeal Tribunal (EAT) judgment in Department of Work and Pensions v Sutcliffe sheds some light on the issue of sick pay during OML.

The question of whether a worker who is absent on sick leave accrues holiday entitlement has again been addressed by the courts. For a short period of time the law allowed a worker, who had exhausted the sick pay entitlement, to be paid for holiday while still off sick. All the worker had to do was give notice to the employer that they were going to take their holiday leave. This lasted until the case of Commissioners of Inland Revenue v Ainsworth and others, which overruled this.

In Palacios de la Villa v Cortefiel Servicios SA the European Court of Justice (ECJ) unexpectedly went against the Attorney General’s opinion and held that mandatory retirement ages (ie in the UK the age of 65) are prima facie discriminatory under the EC Equal Treatment Framework Directive 2000/78/EC.

In a surprising decision the EAT has held that it is not always reasonable to dismiss an employee on the basis that continued employment would breach a statutory enactment.

The case of Aspden v Webbs Poultry & Meat Group (Holdings) Ltd is one of the leading cases concerning the employer’s potential liability if it dismisses an employee prior to their being entitled to claim permanent health insurance (PHI) provided by the company.

The EAT provided welcome news to employers in GAP Personnel Franchises Ltd v Robinson and gave employees a stark reminder that they must be explicit if they are refusing to accept a unilateral variation of contractual terms by the employer. Otherwise, they may be held to have impliedly accepted the change.

Where an employer is proposing to dismiss as redundant 20 or more employees at an establishment within a period of 90 days or less, the employees are entitled to varying minimum consultation periods:

GMB Trade Union v Ms J Brown addresses many of the issues facing employers regarding grievance procedures and constructive dismissal. For example:

In UK Coal Mining v National Union of Mineworkers (Northumberland Region) and another, the employer decided to close its colliery, a move that would make 158 employees redundant. This triggered the obligation to inform and consult with the recognised trade unions under s188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

A raft of new emploment legislation came into force on 1 October 2007.

Until now the Employment Appeal Tribunal (EAT) had expressly refused to offer tribunals guidance on the application of the statutory uplift to compensatory awards where employers had failed to follow the statutory disciplinary and dismissal procedures (SDDPs). One can speculate that increasing pressure from the lower courts has lead to the EAT changing its stance.

The recently published Employment Tribunal and Employment Appeal Tribunal statistics for 2006/07 make interesting reading. There was a notable increase in claims: 132,577 were accepted in the employment tribunals in 2006/07, compared to an average over recent years of 108,778.

Two recent cases have highlighted the importance of taking a careful approach to the Information and Consultation of Employees Regulations 2004 (the Regulations) and the Trade Union and Labour Relations (Consolidation) Act 1992.

Heyday is a not-for-profit membership organisation created by Age Concern for people approaching and in retirement. In R (Incorporated Trustees of the National Council on Ageing (Age Concern England)) v SoS for Business, Enterprise and Regulatory Reform, Heyday applied to the High Court for judicial review of the Employment Equality (Age) Regulations 2006 (the Regulations) alleging that they failed, in part, to comply with the Equal Treatment Framework Directive 2000/78/EC (the Directive).

Blundell v The Governing Body of St Andrew's Catholic Primary School and another offers useful guidance on what is meant by an employer's obligation to offer an employee the ‘same job' when returning from maternity leave.

In the recent case of Pennwell Publishing (UK) Ltd v Ornstien and others, the High Court held that a contacts list, which included both personal and business contacts, belonged to the employer.

Two recent decisions have addressed the question of an employer's liability when the employee's stress-related illness is allegedly caused by the employer.

In Transport and General Workers Union v Safeway Stores Ltd the EAT held that an ET1 can be amended to include a new cause of action, even where the limitation period for such a claim has expired, provided it relies on facts already pleaded.

The Work and Families Act 2006 will extend the entitlement of paternity leave from its current two weeks by an additional 26 weeks (making a total of 28 weeks). However, the devil is in the detail, and the revised draft regulations are not expected to be published until December this year following the consultation exercise that closed on 3 August 2007.

The recent High Court case of Collidge v Freeport Plc has highlighted the importance of a well-drafted compromise agreement. Collidge and Freeport entered into a compromise agreement that contained a warranty that Collidge was not aware of anything that would constitute a repudiatory breach of his employment contract and that would entitle the company to dismiss him summarily.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006) apply to a ‘relevant transfer’, which covers a ‘transfer of a business’ and (unlike the old TUPE Regulations) a ‘service provision change’ (an SPC). TUPE 2006 defines the latter as being a situation where a client engages a contractor to do work on its behalf, then reassigns such a contract or brings the work in-house. It should be stated at the outset that this situation had been held to fall within TUPE on several occasions but it had never been recognised under statute.

In O’Hanlon v Commissioners for HM Revenue & Customs, the Court of Appeal confirmed that employers are not always obliged under the Disability Discrimination Act 1995 (DDA) to extend the period during which the company must pay sick pay for disabled employees.

Post-termination restrictive covenants are usually regarded as an area replete with pitfalls, even for the wary. However, recent cases indicate a willingness by the courts to uphold such covenants, even where there appear to be technical arguments against them. In Allan Janes LLP v Johal, the High Court upheld a 12-month covenant preventing an assistant solicitor from acting for clients of the firm even though the covenant was not confined to those clients with whom she had dealt, and in Thomas v Farr Plc and another, the Court of Appeal upheld a 12-month non-competition covenant even though it was difficult to identify exactly the confidential information that merited protection. The Court of Appeal took on an equally expansive approach in Beckett Investment Management Group Ltd and others v Hall and others.

Heatherwood and Wexham Park Hospitals NHS Trust v Kulubowila and others is another decision on the question of whether an employment relationship is to be implied between an agency worker and the end-user. From the end-user's perspective, the Heatherwood decision is to be welcomed. It appears to have stemmed the tide of judgments holding that such a contract exists.

In the recent case of James v Redcats (Brands) Ltd the Employment Appeal Tribunal looked at what constituted a ‘worker'. As the case was brought under the national minimum wage (NMW) legislation, it also looked at the definition of a ‘home worker'. Although the NMW legislation has some peculiarities, such as the presumption that an individual is a worker unless the putative employer can persuade the court/tribunal otherwise, this case is instructive of how the courts might define ‘worker' not only for the purposes of the NMW, but also for the purposes of the Working Time Regulations 1998 and the Employment Rights Act 1996.

The High Court's examination in Shepherds Investments Ltd and another v Walters and others of the point at which acts preparatory to competition by a director become unlawful was considered in the May edition of IHL (IHL150, p62). More recently, in Helmet Integrated Systems Ltd v Tunnard and others, the Court of Appeal considered the same issue in the context of preparatory acts taken by an employee, as opposed to a director.

In 2004, in BNP Paribas v Mezzotero, the Employment Appeal Tribunal caused a stir when it held that the parties' 'without prejudice' discussions were, in fact, 'on the record'.

It is generally known that a 'heat-of-the-moment' resignation is not a resignation, and that employers should allow a cooling-off period before accepting it. A prudent employer might suggest that the employee raise the matter within the framework of the grievance procedure.

The Sex Discrimination Act 1975 renders it unlawful to victimise a person through less favourable treatment because they have brought sex discrimination or equal pay proceedings. Similar provisions exist in relation to other areas of discrimination.

The provisions of the Disability Discrimination Act 1995 (DDA) impose an obligation on employers to make a reasonable adjustment where a provision, criterion or practice is placing a disabled employee at a substantial disadvantage when compared to an employee who is not disabled.In some situations, a disabled employee's condition may be such that they are likely to have greater periods of absence than an employee not suffering from such a disability. Where an employer's sick pay scheme imposes a limit on the number of days that full pay may be paid to a sick leaver, such a disabled employee will be at a greater disadvantage.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) can result in unpalatable restrictions on the purchaser of a business (for example, detrimental changes to the terms and conditions of a transferring employee will be void). Because it is well established (Brookes v Borough Care Services) that a share sale does not of itself transfer the business for the purposes of TUPE, transactions are sometimes structured as share sales to provide the purchaser of a business with greater flexibility in relation to its plans for the workforce, all other considerations being equal. Once the share sale is complete, it is not unusual for a parent/holding company to take an active interest in the management of the company acquired. However, a recent Court of Appeal decision gives rise to the possibility that an excessive level of involvement could, in fact, trigger a TUPE transfer of the business to the holding company.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 provide that the dismissal of an employee because of, or for a reason connected with, a business transfer is automatically unfair. If, however, the dismissal is for an economic, technical or organisational (ETO) reason, the dismissal is not deemed automatically unfair. It is instead judged by the employment tribunal according to the normal principles of fairness, ie was there a substantively fair reason for the dismissal and was a fair procedure followed?

The DTI has published an independent review of the current dispute resolution regime. Its key message is that the current dispute resolution regulations are too inflexible and prescriptive and as a consequence have been unsuccessful. A number of recommendations have been made, the most significant of which is that the statutory dismissal and grievance procedures should be repealed.

The Employment Rights Act 1996 (ERA) provides that an employee who is dismissed as a consequence of having made a protected disclosure is to be regarded as unfairly dismissed.

new allegations of misconduct require a separate procedure to be followed

Where an employer is contemplating dismissing an employee it is obliged to follow the statutory dismissal procedure in relation to the proposed dismissal. Step one of the procedure requires the employer to set out in writing the alleged conduct which has led it to contemplate the dismissal or disciplinary action and then invite the employee to a meeting to discuss the matter.

Part 2 of Schedule 2 to the Employment Act 2002 sets out the standard form and modified grievance procedures. The standard grievance procedure involves three steps, the first of which is that the employee must submit a written grievance to the employer. The employee is not, however, required to inform the employer of the basis for the grievance as part of step one but must do so, although not necessarily in writing, before the step two meeting takes place.

It is the fiduciary duty of a director to act in good faith in the best interests of their company. They must do their ‘best to promote its interests and to act with complete good faith towards it' and not place themselves in a position in which their own interests conflict with those of the company (see Item Software (UK) Ltd v Fassihi and others). Employees who are not actual or de facto directors have an implied contractual duty of fidelity to their employer which includes not working in a competing business while still employed.

All employers have a common law duty to take reasonable care to protect their employees from foreseeable harm to their physical or mental health. In order to succeed with a personal injury claim in relation to, for example, psychiatric injury resulting from a breakdown, an employee must be able to demonstrate that:

In the case of Palacios v Cortefiel Servicios SA the ECJ was asked to consider whether a national law allowing for compulsory retirement upon attaining a certain age was inconsistent with the EU Equal Treatment Framework Directive (2000/78/EC), pursuant to which the Employment Equality (Age) Regulations 2006 were implemented.

What is the status of a disciplinary warning that has expired? In Airbus UK Ltd v M G Webb the EAT had to consider whether an expired warning, or more particularly the conduct in respect of which the warning had been given, had to be treated for all purposes by the employer as if it had never occurred in the context of subsequent disciplinary proceedings relating to similar misconduct.

It is common practice for employment contracts to contain a variety of post-termination restrictions prohibiting the departing employee from soliciting former colleagues, clients and customers and sometimes prohibiting them from competing for a defined period following the termination of employment.

The Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) gave effect to the Acquired Rights Directive, the underlying purpose of which is to safeguard the rights of employees who transfer. Having regard to this underlying protective aim, the courts have concluded that where detrimental changes to terms and conditions are made as part of a package of changes in connection with a business transfer, they are void.

From time to time an employer may find that it needs to redeploy an employee to another post, but the individual's contract does not contain any express provisions allowing for such redeployment. The Employment Appeal Tribunal (EAT) has examined the case law on this area and provided useful guidance on when such redeployment may take place.

In Palihakkara v British Telecommunications Plc the EAT was asked to consider whether P was entitled to bring sex and race discrimination claims even though she had concluded a compromise agreement:

‘... in full and final settlement of all claims past or future arising out of the termination of her employment... including... claims in respect of... unfair dismissal, discrimination on grounds of race, sex and/or disability.'

The employment status of workers supplied by employment agencies has come under scrutiny in recent years. In Brook Street Bureau (UK) Ltd v Dacas, the Court of Appeal indicated that when assessing the employment status of an agency worker, employment tribunals should actively consider whether there is an implied employment contract between the worker and the end-user client regardless of what has been agreed by the parties.

At present, the Working Time Regulations 1998 give all workers the right to four weeks of paid leave per year. For an employee working a five-day week, this gives rise to an entitlement of 20 days. Some employers currently include the eight public and bank holidays in their employee's holiday entitlement. Following a period of consultation, the government has announced that it intends to grant additional paid leave to reflect the eight bank holidays. In short, it proposes to increase the statutory entitlement to paid holiday initially from four weeks to 4.8 weeks from 1 October 2007. Paid holiday entitlement will then increase by a further 0.8 weeks to 5.6 weeks with effect from 1 October 2008, subject to a maximum statutory entitlement of 28 days. Employees will not be required to have a minimum period of employment in order to qualify for this additional holiday entitlement.

By Tania Stevenson

A dismissal on the grounds of misconduct will only be fair if the following conditions are satisfied:

If a claim is brought in the Employment Tribunal and a ‘response' (ie an ET3) is not lodged in time, the employment tribunal can issue a default judgment against the respondent in relation to either liability alone or in relation to both liability and remedy. In addition, the respondent may take no further part in the proceedings (except for very limited purposes, eg to be called as a witness by another).

In many workplaces where there is union recognition it is common for the employer to operate an enhanced redundancy scheme, the origins of which can be traced back to a collective agreement. The Employment Appeal Tribunal (EAT) was asked, in Framptons Ltd v Badger, to consider whether employees were entitled to an enhanced redundancy payment after the expiry of a collective agreement which was the source of the redundancy terms.

It is common practice (particularly in the City) for employers to describe their bonus arrangements as discretionary and to provide that no bonus will be payable if an employee is not in employment, or is under notice (given or received), on the bonus payment date. There has, however, always been a degree of uncertainty about the enforceability of such a provision - the concern that the employee is effectively a ‘consumer' in the relationship and that such a provision falls foul of the Unfair Contract Terms Act 1977 (UCTA) because it allows the employer to render a substantially different performance from that reasonably expected of it. Employers have also been advised that labelling a bonus as discretionary does not give them carte blanche to act arbitrarily, as the courts have held in a number of cases that there is an implied term that an employer's discretion will not be exercised in a capricious or perverse manner (see Clark v Nomura International Plc and Horkulak v Cantor Fitzgerald).

New award limits will apply in relation to unfair/redundancy dismissals that take effect on or after 1 February 2007. Employers who are currently costing termination exercises that will take effect after 1 February 2007 will need to factor these new limits into their calculations.

It is common practice for employment handbooks to be divided into contractual and non-contractual sections. Typically, policies and procedures will be contained in the non-contractual section to minimise the risk of breach of contract claims being brought if policies are not strictly adhered to, and to allow the employer greater flexibility when changing the policies and procedures without the need to obtain prior consent from employees before doing so. Although, strictly speaking, consent may not be required, it would nevertheless be good practice to consult and give notice before implenting new policies and procedures.

The Employment Equality (Age) Regulations 2006 (the Age Regulations) allow employers to defend a claim of either direct or indirect age discrimination by objectively justifying the acts complained of. Recently, Unison launched a judicial review in the High Court to challenge the government's decision to alter the Local Government Pension Scheme arrangements. The Scheme allowed employees to retire early on full pensions provided that their age and years of service added up to 85 (the 85 year rule).

The EU principle of equal pay for equal work is implemented in England through the Equal Pay Act 1970. The Act implies ‘an equality clause' into every employee's contract of employment to the extent that one does not already exist from the outset. The effect of the equality clause is that where a woman can demonstrate that she is employed on:

Many organisations use atypical working arrangements to keep their ‘employee' headcount low and to avoid statutory employment obligations - giving them greater flexibility to hire and fire such casual staff at will. Employment status is significant not only in terms of what statutory employment protection may exist, but also from a number of other legal perspectives, including an employer's liability for making tax and social security deductions, and complying with immigration requirements, and health and safety legislation.

THE TUC and the Equal Opportunities Commission (EOC) have recently issued useful guidance documents for managers and employers on topical employment issues.

The provisions of the Disability Discrimination Act 1995 (DDA) impose an obligation on employers to make a reasonable adjustment where a provision, criterion or practice is placing a disabled employee at a substantial disadvantage when compared to employees who are not disabled.

An employee who suffers a breakdown as a consequence of the strains and stresses of their work situation will only succeed with a personal injury claim against their employer if they can demonstrate that there was a real risk of breakdown, which the employer ought reasonably to have foreseen, and that there were steps it could have taken to prevent the breakdown.

There is a vast amount of case law on the question of what test should be applied when determining the employment status of an individual. It has, however, been made clear that there cannot be a contract of employment without ‘mutual obligation', see for example the House of Lords' decision in Carmichael and another v National Power Plc. What does mutuality of obligation mean in practice?

In the case of British Aerospace v Green Millett LJ observed that when an employer carries out a redundancy exercise it is:

‘... sufficient for the employer to show that he has set up a good system of selection and that it was fairly administered, and that ordinarily there is no need for the employer to justify all the assessments on which the selection for redundancy was based.'

The ‘Stalkers Statute’, otherwise known as the Protection from Harassment Act 1997 (PHA), prohibits a person from pursuing a course of conduct which amounts to harassment of another. Harassment for these purposes can include alarming a person or causing them distress. To qualify, the conduct must occur on at least two occasions.

The Fixed-Term Employee (Prevention etc) Regulations 2002 restrict an employer’s ability to use successive fixed-term contracts. The Regulations achieve this by classifying an employee engaged under a fixed-term contract as a permanent employee if all of the following conditions are satisfied:

In July the government issued a consultation on the Smoke-Free (General Provisions) Regulations. These Regulations will form part of the smoke-free regime that will be implemented in summer 2007 by the Health Act (currently the Health Bill). The consultation closed on 9 October 2006.

The notion of ‘corporate homicide' or ‘corporate killing' first surfaced in the late 19th century with workplace deaths in the era of industrialisation. In recent years it has risen rapidly up the political agenda, especially as a result of tragedies such as the Zeebrugge ferry disaster. Indeed, over 300 people per year die or are fatally injured at work, demonstrating that the potential scope for liability is wide. In spite of this there have only been a handful of successful prosecutions of large companies where management failings have resulted in death.

As part of the Government’s aim of helping employees achieve a better work/family care balance, further changes are to be made to the maternity leave regime.

The Government has issued a consultation document on its proposals to increase the statutory minimum holiday entitlement from four weeks to 5.6 weeks per year (see ‘Increasing the holiday entitlement - an initial consultation' at www.dti.gov.uk/employment/holidays/index.html).

In Woodward v Abbey National Plc the Court of Appeal (CA) was asked to consider whether a claim could be brought alleging that an individual had been subjected to detrimental treatment on the grounds that she had made a protected disclosure, where that detrimental treatment arose after the termination of employment.

In Tarbuck v Sainsbury's Supermarkets Ltd, the EAT considered an alleged failure to make a reasonable adjustment under the Disability Discrimination Act 1995 (DDA).

The question of whether or not disability-related sickness absence should be discounted for the purposes of sickness absence procedures and redundancy selection is unclear as there is very little case law guidance. The Employment Appeal Tribunal (EAT) recently looked at the issue in Royal Liverpool Children's NHS Trust v Dunsby.

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 provide that a part-time worker has the right not to be treated less favourably than the employer treats a comparable full-time worker as regards the terms of their contract, or by being subjected to any other detriment.

The DTI Guidance on the Working Time Regulations 1998 has now been amended to reflect the European Court of Justice’s (ECJ) decision in Robinson-Steele v RD Retail Services Ltd and others, in which it was held that rolled-up holiday pay arrangements infringed the EC Working Time Directive.

In Fisher v Hoopoe Finance Ltd, the Employment Appeal Tribunal considered whether an employer had fulfilled its duties during a redundancy exercise.

On 6 April 2006 the Commission for Racial Equality’s new statutory Code of Practice on Racial Equality in Employment came into effect. This Code replaces the CRE’s original Code of Practice, which was published in 1984.

The second anniversary of the introduction of the statutory dispute resolution procedures is looming on the horizon. By now, employers should be accustomed to following the statutory dismissal, disciplinary and grievance procedures in appropriate circumstances.

The question of whether a bonus is payable (at all or in part) to an employee who has been absent on maternity leave for all or part of the relevant bonus period is a complex issue that continues to perplex employers and lawyers alike. Unfortunately, given the variety of permutations that bonus arrangements may take, there is not a single answer that is applicable in all cases. The case law on this subject has been quite elusive with only a small number of first instance decisions directly on the issue, and a number of ECJ cases not directly on point dealing with bonuses and parental leave (Lewen v Denda) and pay rises during the currency of maternity leave (Alabaster v Woolwich).

Where an employer proposes to dismiss an individual by reason of redundancy the statutory dismissal procedure will apply unless the dismissal is part of a collective redundancy procedure, that is the employer is proposing to dismiss 20 or more employees within a 90-day period. Dismissal on the grounds of redundancy is a potentially fair reason to dismiss. However, the dismissal must also be procedurally fair, and comply with the statutory disciplinary and dismissal procedure (DDP).

In some sectors, companies maintain registers of suitably qualified individuals on whose skills they can draw as and when their business needs dictate. Typically, under such arrangements the individual in question is not obliged to accept a particular assignment, nor is the company obliged to offer further assignments on completion of any assignment accepted. Such bank workers are frequently regarded by the end-user as a temporary contractor.

One possible danger of not spelling out the precise terms of an employee's engagement is illustrated by Bellingham v Secession Ltd, in which the employment tribunal implied very generous sick pay terms into an employment contract.

It is not an uncommon practice for employers of workers who have atypical working arrangements (eg casual employees with no fixed number of hours' or days' work per week, shift workers and consultants) to pay them a rolled-up rate of pay that is inclusive of holiday pay.

The government is currently consulting on new regulations that will make it clear that the HR1 notification to the Secretary of State of proposed collective redundancies should take place before notices of dismissal are issued. This amendment is being proposed as a consequence of the ECJ decision in Junk v Kuhnel in which it was held that no notice of dismissal may be given until:

Set out below are the new rates applicable to statutory maternity pay (SMP) and statutory sick pay. The new SMP rate will also apply to statutory adoption pay and statutory paternity pay.

On 6 April 2006 the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE 2006') will finally come into effect after a four-and-a-half year gestation period.This will replace the existing, and somewhat long-in-the-tooth, regime, which is governed by TUPE 1981. Although TUPE 2006 rests on the foundations of TUPE 1981, it introduces a number of new obligations and clarifying provisions (see box, right), which this briefing will outline.

At present, when an employee with two or more years' service is made redundant they will be entitled to a statutory redundancy payment calculated according to the following formula:

The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 provide that a part-time worker is entitled not to be treated less favourably than a comparable full-time worker. To succeed with a claim the worker must demonstrate that they are employed by the same employer under the same type of contract as the full-time comparator employee, and that both are engaged in the same or broadly similar work having regard to their level of qualification, skills and experience.

In today

In ViaSystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others, the Court of Appeal looked at the issue of who was vicariously liable for the negligence of an employee working temporarily for another company. In that case the Court held that it is possible for both the general employer and the temporary employer (ie the company to whom the individual is temporarily providing his services) to be vicariously liable for the negligent acts of an employee. The key issue in the Court’s opinion was who had control of the individual’s work at the time that the negligent act was committed.

In Hawley v Luminar Leisure Ltd the Court of Appeal again considered the issue, this time in relation to a ‘door supervisor’ (aka a bouncer).

Where a provision, criterion or practice applied by an employer, or a physical feature of premises places a disabled employee at a substantial disadvantage in comparison with persons who are not disabled, the employer has a duty to take such steps as are reasonable to prevent that effect.

The ACAS Code of Practice on Disciplinary and Grievance Procedures states that it is a core principle of reasonable behaviour that an employee has the opportunity to state their case at a meeting before being dismissed for misconduct.

Section 3A(1) of the Disability Discrimination Act 1995 (as amended) (DDA) provides that it is discriminatory for an employer to treat a disabled person less favourably than others for a reason related to their disability where such less favourable treatment is not justified. Section 3A(3) states that treatment is justified if it is material to the circumstances of the particular case and substantial.

In Southampton City College v Randall the EAT held that the provisions in the DDA that impose an obligation on an employer to make a reasonable adjustment (see above) do not:

In October 2004 the statutory disciplinary, dismissal and grievance procedures came into force. In general, an employee will not be able to lodge a claim at the employment tribunal against their employer unless they have complied with Step 1 of the statutory grievance procedure (GP) and waited 28 days. This applies, amongst other things, to claims of constructive dismissal and discrimination (on whatever grounds). The GP does not, however, apply to complaints about dismissal (other than constructive dismissal). The standard GP is made up of three steps:

In February 2005 the government published its consultation document ‘Work and Families: Choice and Flexibility’, which set out its proposals for achieving a better work/care balance for families. The consultation closed on 25 May 2005, and the government published its response in October. The proposals are intended to form the basis of the Work and Families Bill that was presented to Parliament for its first reading on 18 October 2005.

When will an employer be deemed to have ‘constructive’ knowledge of an employee’s disability? This issue was considered by the EAT in Department for Work and Pensions v Hall in the context of claims for disability-related discrimination and failure to make a reasonable adjustment.

In North Western Health Board v McKenna the European Court of Justice (ECJ) considered whether it amounted to sex discrimination (i) for an employer to treat an employee absent due to pregnancy-related illness in an identical manner as employees absent for other ill-health reasons for the purposes of sick pay entitlement; and (ii) for an employer to offset absence due to a pregnancy-related illness against an employee’s total occupational sick pay entitlement.

Section 188 of the Trade Union Labour Relations Consolidation Act 1992 (TULRCA) imposes collective consultation obligations on an employer in the event that they propose to dismiss as redundant 20 or more employees at one establishment within a 90-day period. If an employer fails to comply with the section 188 obligations, an application may be made to the employment tribunal (ET) for a protective award of up to 90 days’ pay per affected employee.

In light of the EAT dicta in C&J Clark International Ltd v Hatcroft, when reviewing or drafting disciplinary and grievance procedures employers should include a clause that, broadly speaking, allows them to vary and/or suspend all or part of the procedure if it is considered appropriate in individual cases.

It is very common for employees returning from maternity leave to request a return on a part-time or some other flexible basis to accommodate their new childcare responsibilities.

The multicultural nature of the workplace is something that an employer must be mindful of when making changes to work patterns, whatever the underlying reason. A number of areas of legislation may impact on an employer's freedom to impose new shift arrangements on its staff.

A little behind schedule, the government has now issued for consultation the draft Employment Equality (Age) Regulations 2006 (the Age Regulations), which will outlaw discrimination on the grounds of age with effect from 1 October 2006.

In Bowyer v Siemens Plc, the Employment Appeal Tribunal (EAT) considered a rather obscure area of employment law - unfair dismissal compensation and the deduction of redundancy payments - which has wider implications for employers who label dismissals as 'redundancies'.

The government has recently issued a consultation paper on smoking in public places and workplaces as part of the Health Improvement and Protection Bill.

Employees who have more than one year's continuous service and have responsibility for a child under the age of five are entitled to 13 weeks' unpaid parental leave to take care of the child. The rules governing when and how much parental leave may be taken and what notice must be provided by an employee are set out in the Maternity and Parental Leave etc Regulations 1999 (the Regulations).

In today's increasingly global workplace many employees' roles will involve an overseas dimension. This could take a variety of forms, for example travelling and working abroad for short periods throughout the year, being seconded abroad on single or successive assignments, being permanently based overseas but reporting into a UK base, and so on.

The Equal Pay Act 1970 (EPA) seeks to avoid direct and indirect sex discrimination in relation to employees' contractual entitlements by implying into a woman's contract an equality clause. This clause ensures that where she is engaged to perform the same type of work as a male comparator, or work that is not the same but has been rated as equivalent or of equal value, the terms of her contract become as favourable as his corresponding contractual terms. The implied term cannot, however, give the woman more favourable terms and will, in any event, not operate if the employer can demonstrate that the difference in terms is genuinely due to a material factor other than sex.

In March this year, almost four years after its initial consultation exercise, the government issued for consultation draft regulations that amend the current Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE 1981). The consultation closed in June. It was originally intended that these amending regulations, the Transfer of Undertakings (Protection of Employment) Regulations 2005 (TUPE 2005), would come into effect on 1 October 2005. However, the DTI has recently announced that TUPE 2005 will now come into effect in April 2006.

It is the Government's intention that, from 6 April 2006, employers with more than 150 employees will have a statutory obligation to consult with prospective and active members of occupational and personal pension schemes, and their representatives, before making certain specified changes to future pension arrangements. A consultation document on the draft Occupational and Personal Pension Scheme (Consultation by Employers) Regulations 2006 has just been issued.