Daniel Barnett's Latest - July 15th

 Fixed Term Contracts
7 July 2006
A quick reminder that next week (10th July) sees the fourth
anniversary of the Fixed Term Employees (Prevention of Less
Favourable Treatment) Regulations 2002. The significance of this
anniversary is that, under regulation 8, any employee who has been
on a fixed-term contract (or a series of fixed-term contracts) for
four years becomes, as if by magic, a permanent employee. There is
an objective justification exception, if the employer can
objectively justify the fixed-term nature of the contract at the
date of the last renewal.
In practical terms, nothing really turns on this (since expiry of
a fixed-term contract is just as much a dismissal, for employment
law purposes, as a straight sacking). There is one little point of
interest, though...
Technically, the employer must (within one month of the fourth
anniversary) give the employee a statement of changes to his terms
and conditions of employment - so as to provide information as to
the length of the relevant notice periods rather than the date of
expiry under a fixed term contract (ERA 1996, ss1(4)(e) and (g)).
Failure to do so can result in an award of two or four weeks' pay
(Employment Act 2002, s38).

High Court Challenge to Age Regulations
4 July 2006
Heyday, an organisation created by and closely associated with Age
Concern, has issued a judicial review application in the High
Court challenging the legality of the Employment Equality (Age)
Regulations 2006.
According to their press release, the challenge is based upon the
argument that the 2006 Regulations fail to implement the EU Equal
Treatment Framework Directive, since the Regulations effectively
exclude people over 65 from having a right to work.  More info here

Appeals: New Points and Perversity
29 June 2006
The Court of Appeal has, in part, overturned the decision of the
EAT in Unison v Leicestershire City Council. See bulletin of
29/5/05 for the EAT's decision.
This case is authority for the propositions that:
* the fact that a case is of very large value or involves a
complex and important point of law is not, without more, an
'exceptional' circumstance allowing a party to raise a new point
of law on appeal which had not been raised before the employment
tribunal. What is required is something akin to "a pressing public
interest" (para. 21)
* the Employment Appeal Tribunal is not permitted to interfere
with fact-sensitive assessments, such as the number of days' pay
for a protective award (where the EAT reduced it from 20 to 10),
unless the tribunal's assessment is plainly wrong in law or
otherwise perverse (para. 34).
Unison v Leicestershire County Council
BAILII Judgment

How Not to Conduct Tribunal Proceedings...
28 June 2006
Whilst I don't normally announce first instance decisions, this
case contains such an amusing summary of how not to conduct a
tribunal hearing (in the context of a wasted costs order) that I
thought it deserved wider distribution. See paragraph 20 for the
tribunal's erudite exposition of how not to conduct a case.
The decision is also interesting because of the tribunal's finding
that an employment consultant was lying about being a 'not for
profit' representative (so as to avoid a wasted costs order) - see
paras. 23-27.
Johal v Initial City Link
http://danielbarnett.c.topica.com/maaeLEIabrz5ScfLnqteafpOi5/

When is three months not three months?
27 June 2006
The EAT has handed down a judgment dealing with time limits under
Regulation 15(1) of the Employment Act (Dispute Resolution)
Regulations 2004.
The Claimant resigned on the basis of constructive dismissal and
served a combined resignation and grievance letter on the
Respondent on 20 June 2005.
He then lodged his tribunal claim on 20th December 2005.
The finding of both the Employment Tribunal in a pre-hearing
review, and later at the EAT, were that the claim was served on
time. The EAT held that the extension of time under Regulation
15(1) means three months, and not three months less one day.
Rainbow International v Taylor
BAILII Judgment

Detriments to Ex-Employees
23 June 2006
The Court of Appeal has handed down an important decision in
Woodward v Abbey National plc.
In 2003, the House of Lords ruled (in Rhys-Harper v Relaxion Group
plc) that ex-employees were entitled to rely on the discrimination
legislation in connection with victimisation occurring after
termination of employment (such as the refusal to provide a
reference).
Previously, in 2001, the Court of Appeal had held in Fasipe v Reed
Nursing Personnel Ltd. that ex-employees could not rely on the
Employment Rights Act 1996 so as to claim protection against
detriments occurring after termination of employment, as the
legislation only protected employees against detriments suffered
whilst in employment.
In the current case, Woodward v Abbey National, the Claimant had
complained of being subjected to various detriments - after her
employment finished - because she had made a protected disclosure
some ten years earlier whilst still employed by the Abbey
National.
The employment tribunal, and the EAT, rejected her claim because
they considered themselves bound by Fasipe, which they regarded as
binding authority for the proposition that the detriment had to
occur during employment in order to be actionable under the
Employment Rights Act 1996. They considered that the
discrimination legislation was a wholly different statutory
framework, affected by considerations of European law, and Fasipe
remained binding as it had not been expressly overruled by the
House of Lords in Rhys-Harper.
The Court of Appeal has disagreed, overturning the ET and EAT.
Following extensive analysis of the reasoning in Rhys-Harper by
Ward LJ, which is worth reading, it held that the provisions
protecting against suffering a detriment in the Employment Rights
Act should be interpreted so as to include detriments suffered by
ex-employees as well as existing employees.
Woodward v Abbey National plc
BAILII Judgment

Date of TUPE Transfers
21 June 2006
The House of Lords has handed down a 4:1 ruling in Celtec v
Astley, following the ECJ's decision last year.
Upholding the employment tribunal and Court of Appeal's decisions,
but on different grounds, it held:
* following the ECJ ruling, a TUPE transfer must take place on a
specific date, rather than over an extended period
* employees and employers cannot agree or arrange fo the transfer
to take place on a date other than the true legal date of the
transfer.
It is a complicated decision, made slightly easier if put into its
factual background. In the early 1990s, the Department of
Education created Training and Enterprise Councils (TECs) to take
over its responsibility for training young people.
A large number of civil servants were seconded from the DofE to
the TECs. Three years later, they were offered the opportunity to
return to the DofE, or stay with the TECs and be transferred into
the employment of the TECs. Thus in 1993, the Claimants resigned
from the DofE and signed new contracts with Celtec (the employer)
The TUPE transfer (when the TECs actually opened for business) was
found to be in September 1990.
When the Claimants were made redundant in 1998, they claimed
redundancy payments based on continuity of employment back to the
beginning of their employment with the DofE. Celtec argued that
they were only entitled to continuity of employment from 1993.
The House of Lords, in five separate opinions, decided (4:1) that,
in fact, the Claimants had all TUPE-transferred to Celtec in
September 1990, irrespective of the fact that everyone believed
they remained employees of the DofE and had simply been seconded
out. Because it was not possible for the parties to agree a
different transfer date, the operation of TUPE 'trumped' any
understanding or arrangement between the parties. Accordingly, the
Claimants were entitled to rely on their continuity of employment
with the DofE.
The dissenting judgment (that of Lord Mance) is impressive and
worth reading, to appreciate the potential commercial implications
of this decision.
Celtec v Astley
House of Lords Judgment

Retrospective Award for Failure to Provide Written
Statement of Terms and Conditions
19 June 2006
The Employment Appeal Tribunal has handed down a (short) judgment
dealing with whether tribunals are entitled to grant a
retrospective award of two (or four) weeks' pay against an
employer who has failed to provide a written statement of terms
and conditions.
This remedy was introduced under the Employment Act 2002 (section
38). It came into force on 1st October 2004. The EAT has held that
an employee is entitled to the award, when judgment is given after
1st October 2004, even if the dismissal was before 1st October and
the claim lodged before 1st October.
This decision is likely to prove controversial, although it is
likely to have relative little impact as most cases going through
the tribunal system will now be dealing with dismissals after
October 2004.
Lewald-Jezierska v Solicitors in Law Ltd.
BAILII Judgment

Take a look at the following items from Daniel Barnett, barrister
(http://www.danielbarnett.co.uk):

Law Society Handbook on Employment Law
by Daniel Barnett and Henry Scrope
 
Third edition just published
£49.95
Click here for more details
http://www.danielbarnett.co.uk/publications_lawsoc.htm
 
To subscribe to Daniel's Newswire, go to his smart new site:
http://www.danielbarnett.co.uk/bulletins.htm
 
Daniel Barnett Archive Now Available
By arrangement with emplaw, an archive for Daniel's bulletins is
now available: http://www.emplaw.co.uk
 
"Age Discrimination" - yet another useful publication from Daniel
Barnett.
Second Edition - Published 3 May 2006
* 170 pages of commentary and analysis on the Employment Equality
(Age) Regulations 2006
* highlighting practical difficulties for employers and legal
advisors
* sets out arguments on both sides when the Regulations are
unclear
Click here to see a sample and for more information:
http://www.danielbarnett.co.uk/age_analysis.htm
 
Hear audio testimonials or view some sample pages:
http://www.danielbarnett.co.uk/age_analysis_testimonials.htm