UKLawyers Archive of Employment and Discrimination Materials - March 2006
Materials published by us on 30 March 2006
The following items are reproduced with the kind permission
of Daniel Barnett, barrister (http://www.danielbarnett.co.uk):
28 March 2006
Polkey Reductions
The Court of Appeal has handed down an important decision
emphasising the wide discretion that a tribunal has to make a
Polkey reduction. The case, Gover v PropertyCare Limited is
authority for the following propositions:
* a Polkey reduction (i.e. that a dismissal would have occurred,
or probably occurred, in any event if a fair procedure had been
followed) is a matter for the impression and judgment of the
tribunal. An appellate court should not interfere lightly with the
tribunal's assessment (para. 22)
* this is part of the overriding obligation to award compensation
that is 'just and equitable'. Whilst not saying so in terms, King
v Eaton (no. 2) (that tribunals should only 'reconstruct' the
world as it would have been if it can be done reasonably easily)
is thrown into considerable doubt (para. 19)
* more generally, the Court of Appeal cast doubt on the
long-standing assumption that appeals to the Court of Appeal
involve a review of the employment tribunal's reasoning, rather
than that of the EAT (see para. 8)
This decision is quite complicated, but important nevertheless.
Gover v PropertyCare Ltd.
BAILII Judgment
27 March 2006
Response Forms
The EAT has handed down yet another decision taking a common-sense
approach to the overzealous application of the procedural rules.
This case is authority for the proposition that the administrative
rejection of a Response by the Secretary (not a chairman) is a
'decision' which is capable of review.
A few weeks after the prescribed Response Forms became compulsory,
the Respondent sent a Response Form which it had downloaded from
the ETS website. As is now well-known, the forms on the website
were not prescribed, and so the Response was rejected.
Still within the 28 days, the Respondent lodged another Response
Form. This one was also rejected, on the apparent basis that the
boxes were the wrong size and so the ETS could not scan the form
into their computer (HHJ Burke QC, at paragraph 7 of the judgment,
commented that he could not see how the boxes could be said to be
of the wrong size).
On appeal, HHJ Burke held:
* tribunals have power to review the administrative decisions of
the Secretary not to accept a Claim or Response Form on the basis
it is a 'decision' within the meaning of the rules - therefore the
power of review exists
* there is no requirement in the Rules about the size of the text
or the boxes, or a need to be able to scan the forms into the
ETS's computer system. Thus there was no valid reason for
rejecting the Response Form
* since no tribunal could reasonably decide otherwise on review,
it was appropriate to allow the appeal and substitute a decision
that the Response Form should be accepted.
Butlins v Beynon
EAT Judgment
22 March 2006
Collective Redundancies
The DTI is proposing a minor amendment to the law on collective
redundancies, to bring UK legislation in line with the ECJ
decision in Junk Kuhnel.
The amendment to s193 of TULR(C)A 1992 will make it clear that
employers must notify the Secretary of State at least 30 (or 90)
days before any notice of redundancy has been issued, rather than
before notice of redundancies takes effect.
The DTI is consulting on the wording of the proposed Collective
Redundancies (Amendment) Regulations 2006 (consultation closes 9th
June 2006). It is intended to bring the change into force in
either October 2006 or April 2007.
The DTI does not intend to amend s188 of TULR(C)A 1992 (requiring
employers to inform and consult employee representatives) as it
believes that obligation to inform and consult "in good time" and
at least 30/90 days before the first of the dismissals takes
effect is not inconsistent with Junk (the logic of amending one,
but not the other, does rather escape me). It is, however,
amending its Guidance Notes on redundancy consultation.
View consultation paper here (large .pdf file - takes about 45
seconds to download on broadband):
http://www.dti.gov.uk/er/collective_redundancies.pdf
Materials published by us on 23 March 2006
Criminal Records Bureau Rules Changed
Home Office Press Release
16 March 2006
The new regulations will enhance the ability of the Criminal
Records Bureau (CRB) to deliver a first class service, at the same
time as moving forward with the recommendations of the Bichard
report and ensuring that CRB checks are used responsibly. The
regulations laid today, to come into effect from 6 April, will:
* extend entitlement to enhanced CRB checks for all staff working
in schools;
* set new disclosure fees at 31 GBP for the standard disclosure
and 36 GBP for the enhanced disclosure, an increase of 1 GBP plus
inflation;
* introduce a 6 GBP fee for a POVAFirst check (POVAFirst checks
and disclosures will remain free of charge in respect of
volunteers);"
The following items are reproduced with the kind permission
of Daniel Barnett, barrister (http://www.danielbarnett.co.uk):
21 March 2006
Discrimination
In Brown v London Borough of Croydon, the EAT has reaffirmed that
it is not necessary for tribunals to adopt the traditional
two stage approach when considering discrimination claims.
Traditionally, tribunals have been expected to consider the
separate questions of (1) was there less favourable treatment of
the Claimant? and, if yes, (2) what is the reason why the Claimant
was treated less favourably?
Until Shamoon v Chief Constable of Northern Ireland was decided by
the House of Lords in 2003, it was an error of law (and thus,
capable of appeal) if the tribunal did not identify, and answer,
these two questions in turn. In Shamoon, the House of Lords said
it was not always necessary to ask and answer the two questions,
and in appropriate cases (usually with a hypothetical comparator)
it was permissible for tribunals simply to ask, 'why was the
Claimant treated that way?'
Notwithstanding Shamoon, in Igen v Wong the two stage test was
reaffirmed. Now, the EAT has restated that it is not compulsory to
adhere rigidly to the two-stage test, and that in an appropriate
case the traditional sequential analysis is not necessary.
Brown v London Borough of Croydon
EAT Judgment
Collective Redundancy Consultation
The EAT, in Vauxhall Motors v TGWU, has given guidance on when
(and if) an employer needs to begin fresh consultation with a
union about multiple redundancies under TULR(C)A 1992, s188.
Vauxhall were proposing to make several hundred people redundant.
They sent all relevant information to the union, and also to the
DTI on form HR1.
Consultation proved successful in deferring the redundancies for
about 18 months. However, about 46 employees remained at risk of
redundancy. Vauxhall sent a new HR1 to the DTI in respect of those
46 employees, but did not re-notify the union or launch fresh
consultation.
The EAT agreed with the tribunal that s188 consultations were not
a "piece of elastic" which could stretch indefinitely through
time. However, overturning the tribunal, on these facts the 46
employees were a sub-set of the several hundred that the union had
originally consulted over, and therefore Vauxhall had fulfilled
its obligations under s188. Accordingly the decision granting a
protective award of 70 days' pay per employee was quashed.
Vauxhall Motors v TGWU
EAT Judgment
20 March 2006
Late Response Form --> Costs
The EAT has handed down a decision which is likely to be used as
authority for the proposition that a Respondent who triggers the
need for a review hearing (because of not lodging an ET3 within 28
days) should pay the costs of that hearing.
The Respondent failed to lodge a Response Form, so the tribunal
ordered that it could take no further part in the proceedings.
The Respondent subsequently wrote stating that it had been subject
to a take-over, that it could not trace receipt of the Claim Form,
and asking for the Claim Form to be re-sent to them.
The tribunal treated the letter as an application for review, and
held that the Respondent had deliberately shut its eyes to the
claim (having been in pre-action correspondence with the
Claimant), and that's its denial of receipt was implausible. The
application for review was therefore refused without a hearing.
The EAT, whilst critical of the Respondent, stated that it was
wrong for the tribunal to refuse the review without, at least,
having a hearing.
However, the EAT ordered costs against the Respondent. In an
important paragraph (para. 34), HHJ Peter Clark held that the fact
the Respondent had failed to deal with the Response Form properly
led to the proceedings in the EAT which - technically - were
unnecessary. This warranted a costs order (which was not resisted
by the Respondent).
The wording of the EAT costs rules are slightly different to the
ET costs rules, allowing costs were an appeal is 'unnecessary'.
However, review applications triggered by late Response Forms will
probably fall under the 'unreasonable conduct' limb of the ET
costs rules - so expect this to become a standard authority to be
quoted in costs applications following successful (or, indeed,
unsuccessful) reviews of default judgments / decisions that the
Respondent can take no further part.
British School of Motoring v Fowler
EAT Judgment
16 March 2006
Rolled-Up Holiday Pay Unlawful
This morning the ECJ handed down judgment in the rolled-up holiday
pay cases. The judgment is already being heralded - misleadingly -
as preventing rolled-up holiday pay.
Essentially, the ECJ has ruled that rolled-up holiday pay is,
prima facie, unlawful. However, if the holiday pay element of the
rolled-up payments is sufficiently transparent, the employer can
set off those payments against money due for the specific period
when leave is actually taken. So it actually makes little
difference in practice.
The ECJ considered three conjoined cases, one referred by the
Court of Appeal and two by the Leeds employment tribunal, namely:
* Caulfield v Marshalls Clay Products Ltd. (now Hanson Clay
Products)
* Clarke v Frank Staddon Ltd; and,
* Robinson-Steele v RD Retail Services Ltd
In its decision (which, unusually, departed from the Opinion of
the Advocate General), the ECJ ruled:
* employers cannot simply allocate part of an existing wage packet
to holiday pay. The holiday pay must be ADDITIONAL payment to that
made in respect of work actually done (para. 52)
* employers MUST pay holiday pay during the specific period during
which the worker takes leave. It is unlawful to stagger payment
over the year (para. 63)
* but if the employer does roll-up extra money in respect of
holiday pay, it can set-off the extra money already paid against
the payments it ought to make during the specific holiday period.
The burden is on the employer to prove the transparency of the
payment (paras. 68 and 69).
A storm in a teacup, really. The Court of Appeal said, back in
2004, that rolled-up holiday pay is lawful as long as the
rolled-up element is transparently set out (eg on payslips) and a
genuine payment in respect of holiday. The ECJ has now said that
it's technically unlawful, but that as long as it's transparently
set out and a genuine payment in respect of holidays, the payments
can be set-off, i.e. no loss for the employees and it doesn't
matter a hoot.
Incidentally, as I type this, the TUC has put out a press release
claiming the judgment is a great victory for the workforce. But it
really isn't - it's a technical victory with almost no practical
impact on existing UK law and practice.
Click here to read the ECJ decision in the three conjoined cases
Here is the Daily law Reports Summary:
Robinson-Steele v RD Retail Services Ltd (Case C-131/04)
Clarke v Frank Staddon Ltd;
Caulfield and others v Hanson Clay Products Ltd (Case C-257/04)
ECJ
16 March 2006
Daily Law Notes Report Summary
The practice of paying employees their paid annual leave by
including a component therefor in each regular pay packet
("rolled-up holiday pay") was contrary to Community working time
Directive 93/104.
14 March 2006
Statutory Grievance Letters
The EAT has handed down another decision on whether a letter of
complaint from an employee qualifies as a statutory grievance
letter enabling an employee to bring a tribunal claim.
This issue was the content of the letter - did the letter raise
the same complaint as the employee was seeking to have determined
by the tribunal?
Elias P. has set out the following test (para. 25): "It seems to
me that the objective of the statute can be fairly met if the
employers, on a true reading of the statement and having regard to
the particular context in which it is made, can be expected to
appreciate that the relevant complaint is being raised."
On the facts, Elias P. held that the grievance letter, albeit
containing a variety of lengthy complaints about the employee's
health, did not raise an issue which an employer could reasonably
understand had arisen under the DDA 1995. Thus his disability
discrimination claim was not allowed to proceed.
Canary Wharf Management v Edebi
EAT Judgment
Cases from Industrial Case Reports
Agency
Lonsdale (t/a Lonsdale Agencies) v Howard & Hallam Ltd: [2006]
EWCA Civ 63
CA
8 February 2006
Daily Law Notes Report Summary
Agent entitled to full compensation for losses suffered when
agency terminated but it has to be properly assessed. "Article
17(3) of Directive 86/653 and regulation 17(6) of the Commercial
Agents (Council Directive) Regulations 1993 gave the agent the
right to full compensation for any damage that he had actually
suffered as a result of the termination of his relations with his
principal and not a right to a payment that was fair and
reasonable in all the circumstances of the case."
Working Time - Rest Periods and Minimum Wages For Staff on Call
MacCartney v Oversley House Management
EAT
31 January 2006
Daily Law Notes Report Summary
The claimant, a residential manager in a home for people over 60,
had contracted hours of "four days per week of 24 hours on site
cover" during which she had to be on or near the premises, on
call, attending to the residents with whom she was in contact by
mobile phone, answering emergency and non-emergency calls or doing
administrative work in a small office in her flat in the home. She
received an annual salary of 8,750 GBP, paid monthly, and
rent-free accommodation. On successful appeal held she was
entitled to rest periods, time on call was part of her "working
time" and she was being paid less then the minimum wage.
Unfair Dismissal - Breakdown in Relationship
Between Senior Executives
Perkin v St George's Healthcare NHS Trust: [2005] EWCA Civ 1174
CA
12 October 2005
Daily Law Notes Report Summary
Trust's Director of Finance not unfairly dismissed after he
attacked honesty of colleagues at Disciplinary Tribunal. "A
breakdown in confidence between an employer and one of its senior
executives for which the latter was responsible and which actually
or potentially damaged the employer's operations or rendered it
impossible for the senior executives to work as a team could be
"some other substantial reason" for dismissal...."
Materials published by us on 16 March 2006
Ending Age Discrimination in the Workplace
DTI Press Release
9 March 2006
http://digbig.com/4gsew
The regulations (which will not affect the age at which people can
claim their state pension) will:
* ban age discrimination in terms of recruitment, promotion and
training;
* ban unjustified retirement ages of below 65; and
* remove the current age limit for unfair dismissal and redundancy
rights.
The following items are reproduced with the kind permission
of Daniel Barnett, barrister (http://www.danielbarnett.co.uk):
10 March 2006
What is 'Contemplating Dismissal'?
The EAT has handed down a decision dealing with the transitional
provisions for the Employment Act 2002.
The statutory dismissal procedure (with impact on automatic
unfairness, compensation adjustments and, as in this case,
potential extensions of time for presenting a claim) applies to
dismissals after 1st October 2004, unless the employer 'first
contemplates dismissing...the employee' before 1st October 2004.
The employer had investigated an allegation of misconduct, with
the investigation concluding on 24th September 2004. On 25th
October, the Claimant was told he was facing a gross misconduct
charge with potential dismissal at the end.
The EAT (HHJ Peter Clark) upheld the employment tribunal's
decision that the employer had plainly contemplated dismissing the
employee prior to 1st October 2004, even though it had not told
the employee that it was contemplating dismissal. The threshold
for establishing that the employer was contemplating dismissal was
a low one. This meant that the statutory procedures did not apply,
and the Claimant was not entitled to an extension of time to
present his claim; thus his unfair dismissal claim failed.
Madhwoo v NHS Direct
EAT Judgment
9 March 2006
Agency Workers
The Court of Appeal has, this morning, handed down its judgment in
Cable & Wireless v Muscat.
Upholding the EAT and ET, the Court of Appeal affirmed the
principles in Dacas v Brook Street Bureau that an agency worker
could be an implied employee (and, on the facts in Cable &
Wireless, was an employee) of an end-user in a tripartite
agency/worker/end-user case.
The judgment of Smith LJ is well worth reading: she neatly
disposes of all the criticisms made of the Dacas case (including
the oft-cited criticism that the Court of Appeal in Dacas did not
consider that contracts can, in this circumstance, only be implied
on grounds of necessity).
Cable & Wireless v Muscat
BAILII Judgment
http://www.bailii.org/ew/cases/EWCA/Civ/2006/220.html
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACIV/mar0.6.htm
The essentials of a contract of employment were the obligation to
provide work for remuneration and the obligation to perform it,
coupled with control. It did not matter whether the arrangements
for payment were made directly or indirectly.
Age Discrimination - Final Age Regulations Published
The DTI has, today, published the final draft of the Employment
Equality (Age) Regulations 2006 and laid them before parliament.
They are stamped 'draft' as they have not yet been approved by
parliament.
A quick glance at the transitional provisions for the 'right to
request working beyond retirement' screams 'litigation,
litigation, litigation' !!
What's new in the final Regs?
Well, one person was brave enough to take me up on the challenge
of summarising the changes between the original draft Regulations,
and the final draft which came out this morning...
Louise Bland of Lupton Fawcett has produced this summary, which I
reproduce below...
* Regulation 3 – the controversial list of "examples" of
proportionate means of achieving a legitimate aim has been removed
(formerly Reg 3(2)).
* Regulation 7(4) – the wording has been amended so that those who
are older than the employer's retirement age (or 65), or who would
reach the employer's retirement age (or 65) within 6 months of
their application, are excluded from the protection for job
applicants.
* Regulation 11 (and Schedule 2) relating to pension schemes has
been amended, particularly the definitions. I haven't had time to
read all of this in detail.
* Regulation 14 – extension of protection to those seconded to the
Serious Organised Crime Agency.
* Regulation 30 – the point to note is that the exception relating
to retirement at 65 has not been extended to partnerships.
* The original regulations 30, 34, 35, and 36 have gone – these
created exceptions for work-related invalidity benefit schemes,
provision of benefits mirroring statutory benefits, provision of
more generous benefits to replace statutory benefits, and
provision of benefits before the statutory qualifying period.
* Regulation 32, relating to benefits based on length of service,
has been substantially reworded. All length of service benefits
are excepted unless the disadvantaged employee has more than 5
years' service, in which case the employer has to show that it
"reasonably appears" to him that the criterion of length of
service "fulfils a business need" such as encouraging the loyalty
or motivation, or rewarding the experience, of some or all of his
workers. A different slant on the original wording which possibly
makes these benefits easier to justify.
* Regulation 33 introduces a new exception relating to the
provision of enhanced redundancy payments – this effectively
replaces the old regulations 34 – 36 but in a more specific way.
* Regulation 34 introduces a new exception for the provision of
life assurance cover to retired workers who have retired early on
the grounds of ill health.
* There are several amendments to the Duty to Consider procedure
in Schedule 6
o References are to the "operative date of termination" instead of
to the date of "dismissal".
o Paragraph 2 (2) makes it clear that employers cannot rely on a
notification included in the contract of employment or a policy or
procedure given to the employee – a specific notification must be
sent in accordance with paragraph 2(1).
o Paragraph 5(2) now specifies exactly what the employee must
request – either that his employment continues indefinitely, that
it continues for a stated period, or that it continues until a
stated date.
o The time periods have changed (paragraph 7) – the meeting must
be held "within a reasonable period" after the employer has
received the request and the decision must be given "as soon as is
reasonably practicable" after the date of the meeting.
o The employer no longer has to consider the request "in good
faith".
DTI Age Discrimination Website:
http://www.dti.gov.uk/er/equality/age.htm
Law Society Handbook on Employment Law
by Daniel Barnett and Henry Scrope
Third edition just published
49.95 GBP
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.
Discrimination - Transfer of Undertakings Time Limit
Preston and others v Wolverhampton Healthcare NHS Trust and others
(No 3)
Fletcher and others v Midland Bank plc and others (No 3)
Hl
8 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/HLPC/mar0.4.htm
House of Lords Judgment
http://digbig.com/4gsex
Where a woman's employment was transferred from one employer to
another under the Transfer of Undertakings (Protection of
Employment) Regulations 1981 (SI 1981/1794), ("TUPE") any claim in
the employment tribunal in respect of the operation of an equality
clause had to be brought within six months of the date of the
transfer.
Here is Daniel Barnett's initial commentary on this decision:
Part-Time Pensioners: House of Lords Decision
-------------------------------------------------
The House of Lords has, this morning, delivered its opinion in
Powerhouse Retail Limited v Burroughs.
Arising from the 60,000 part-time pension cases brought in the
1990s, it deals with the narrow point of time limits for bringing
an equal pay claim when there has been a TUPE transfer.
Pension rights do not transfer under TUPE to the transferee. Thus
rights to claim for an equal pension for part-timers, implied by
the equality clause under the Equal Pay Act 1970, do not transfer
under TUPE.
Under s2(4) of the Equal Pay Act 1970, a claim must be brought
within six months of the last day on which the Claimant was
employed in the employment.
The transferors argued that the employment had ended in 1992, when
the TUPE transfer took place, and that the claims were presented
more than six months after that date. The employees argued that
employment should be regarded as continuing, under TUPE-fiction,
so that their claims were within time against the transferor.
The House of Lords unanimously accepted the transferor's arguments
(upholding the Court of Appeal). Time limits for an equal pay
claim will expire six months after the date of the TUPE transfer,
as that is the date on which the employment with the transferor
ends.
Materials published by us on 9 March 2006
The following items are reproduced with the kind permission
of Daniel Barnett, barrister (http://www.danielbarnett.co.uk):
Statutory Grievance Procedures
They're like buses: another two EAT cases on statutory grievanceprocedures...
What is a Grievance Letter?
2 March 2006
This case largely follows Shergold, but goes a little further. It
is authority for the propositions that:
* a letter before action from a solicitor, which is adversarial
rather than conciliatory and which is intended to claim financial
compensation rather than invoke a grievance, nevertheless amounts
to a grievance letter under s32 of the Employment Act 2002. Thus
the Claimant is entitled to claim in the tribunal, and any award
will be adjusted upwards if the employer fails to invite the
employee to a meeting to discuss the 'grievance'.
* it does not matter that the solicitors' letter was headed
'without prejudice' and therefore would not normally be admissible
as evidence of its contents in tribunal/court. Note that this part
of the judgment (para. 29) was dealt with in a single paragraph,
and is likely to prove controversial.
This is a well-written judgment and is worth reading.
Arnold Clark Automobiles v Stewart & anor.
EAT Judgment
3 March 2006
Time Limits
This case is important...
The Employment Appeal Tribunal (HHJ Peter Clark) has, for the
first time, considered the rather complex s32(4) in the Employment
Act 2002, which provides that no extension of time will be
permitted for lodging a Claim Form unless a grievance letter is
sent within one month of the 'normal' time limit for bringing a
claim.
The EAT held that 'normal' time limit meant something different
from 'ordinary' time limit, which is expressly defined as meaning
the three-month period for unfair dismissal and discrimination
claims WITHOUT any extension on the not reasonably practicable /
just and equitable basis.
Properly construed, 'normal' time limit must mean the time limits
including any escape-route extensions. Thus under the DDA 1995, a
complaint could still be presented to a tribunal even though the
grievance letter was presented more than four months after the
alleged discriminatory constructive dismissal, because it was just
and equitable to extend the ordinary three month time limit for
bringing a claim.
Although not dealt with in the judgment, this will presumably
apply to constructive unfair dismissal cases where a grievance is
not sent within four months, but the Claimant establishes it was
not reasonably practicable to present a Claim within the ordinary
three-month time limit.
The crux of the judgment can be found at paras. 29-38. The appeal
was brought with the assistance of the Disability Rights
Commission.
Spillett v BUPA
EAT Judgment
Whistleblowing
Important Decision3 March 2006
The EAT (Elias P. presiding) has handed down an important
whistleblowing decision, clarifying the nature of the necessary
causative link between the dismissal/detriment and the protected
disclosure.
The Claimant, a technology teacher at Bolton School, made a
protected disclosure by telling the school that the computer
system was insufficiently secure, and allowed students to hack
into confidential information about other pupils (in breach of the
Data Protection principles).
When the School did not take his concerns seriously, he hacked
into the system himself and disabled some user accounts. Although
he immediately told the school what he had done, the IT department
shut the system down, causing about 1,000 GBP loss in 'recovery'
time. The Claimant was given a written warning and resigned in
protest. He claimed detriment (the written warning) and
constructive unfair dismissal on the grounds he had made a
protected disclosure, leading to the warning/resignation. The
employment tribunal allowed his claim.
The EAT quashed the decision. Under statute, the employee must be
subjected to a detriment "on the grounds that" he has made a
protected disclosure. The protected act is limited to the
disclosure itself, and does not extend to any conduct which is
designed to demonstrate that the belief is reasonable. The statute
protects disclosure but not other conduct by the employee even if
connected in some way to that disclosure.
As Elias P. stated, at paragraph 65: "An employee cannot be
entitled to break into his employer's filing cabinet in the hope
of finding papers which will demonstrate some relevant wrongdoing
which he can then disclose to the appropriate person. He is liable
to be disciplined for such conduct, and that is so whether he
turns up such papers or not. Provided that his misconduct is
genuinely the reason for the disciplinary action, the employee
will not be protected even if he does in fact discover
incriminating papers. Success does not retrospectively provide a
cloak of immunity for his actions, although he will then of course
be protected with respect to the subsequent disclosure of the
information itself. "
Bolton School v Evans
EAT Judgment
European Views - Not For the Faint Hearted
This one's only for true whistleblowing and data protection
afficionados...
The EU's Article 29 Working Party (which all 25 Data Protection
country authorities sit on) has just published an Opinion on
privacy issues related to the provision of email screening
services.
It comes hot on the heels of its earlier Opinion on the
application of EU data protection rules to internal whistleblowing
schemes in the fields of accounting, internal accounting controls,
auditing matters, fight against bribery, banking and financial
crime.
Not for the faint-hearted...
EU Article 29 Working Party Opinions
Daniel Barnett TUPE Web Seminar
When and where?
Date: Thursday, 16th March 2006 at 11.00am
Duration: 1.5 hours (including Q&A)
Location: your desk!
CPD Information
The course is accredited by the Law Society for 2 hours' CPD from
the Law Society (which includes time to answer five
straightforward multiple-choice questions at your convenience
after the seminar to prove participation).
What if I can't make it?
A recording of the seminar (both powerpoint and audio) will be
available within 24 hours of the seminar.
Course Fees
Just £135+ VAT
Book Here:
Law Society Handbook on Employment Law
by Daniel Barnett and Henry Scrope
Third edition just published
49.95 GBP
Click here for more details
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
House of Lords Decision
Retained Firefighters - Part-Time WorkersMatthews v Kent and Medway Towns Fire Authority and others [2006]
UKHL 8
HL
1 March 2006
Daily Law Notes Report Summary
House of Lords Judgment
Retained and whole-time fire fighters employed by the respondent
fire authorities were employed under the same type of contract
within reg 2(4)(a)(i) of the Part-time Workers (Prevention of Less
Favourable Treatment) Regulations 2000 notwithstanding differences
in their work activities. In assessing under reg 2(4)(a)(ii)
whether their work was "broadly similar" the extent to which it
was exactly the same was of great importance.
Daniel Barnett's commentary on this case:
The House of Lords, yesterday, allowed the appeal in the part-time
firefighters case. By a majority, the House of Lords held:
* upholding the Court of Appeal, that reg. 2(3)(f) of the Part
Time Workers (Prevention of Less Favourable Treatment) Regulations
2000, which has a residual category when distinguishing what is
(or is not) the 'same type of contract', should not be read in an
over-precise way which allows employers, by setting different
terms for part-time workers, to take themselves outside the scope
of the Regulations
* overturning the Court of Appeal, that when deciding whether work
is of the "same or broadly similar" under reg. 2(4), tribunals
should look at the similarities in the work, rather than at the
differences in the work.
The minority (Lords Cardswell and Mance) thought that the latter
point amounted to dancing on the head of a pin (my words, not
theirs!). However, it enabled the majority of the House of Lords
(Baroness Hale, and Lords Nicholls and Hope) to overturn what they
perceived as an unjust decision and allow the retained
firefighters (subject to further findings of fact) to claim
equality with full-time firefighters.
One cases from the ICLR Site this week:
Health and Safety
Burgess v Plymouth City Council: [2005] EWCA Civ 1659
CA
30 November 2005
Daily Law Notes Report Summary
The claimant was employed by the defendant council as a cleaner in
a school. While wiping tables in a classroom she fell over a
brightly coloured plastic container 43cms long, 34cms wide and 25
5cms high, which was in plain sight on the floor between the
tables and the door by which she had entered the room. She claimed
damages for injuries sustained in the fall, alleging that the
council were in breach of regulation 12 of the Workplace (Health,
Safety and Welfare) Regulations 1992. On the trial of liability
the judge found that the container should have been tidied away
before the claimant entered the room; that it had been reasonably
practicable for the container to have been safely stowed away at
the side of the room in accordance with the usual system; that the
container was an article over which someone was liable to fall,
within the meaning of regulation 12(3); and that the council was
in breach of its duty under regulation 12(3) to keep the workplace
floor free of such articles. The judge further found that the
container was plain and obvious to see to anyone who had been
keeping a proper lookout for their own safety and that although
the council was liable for breach of duty the claimant was also
50% to blame for the accident. The School appealed
unsuccessfully.