May 2008  

• Regulation 2 – eliminates the requirement to have a comparator who is not pregnant or on maternity leave.

• Regulation 3 – removes the causal link between harassment and the sex of the person being harassed.

• Regulation 4 – protects someone from third party harassment when it has happened on two other occasions.

• Regulation 5 – requires an employer to pay any relevant bonus to a woman during the compulsory maternity leave period (two weeks immediately after the birth).  It also entitles women to the same protection with regard to terms and conditions during AML as she enjoys during OML.

 

As a woman is prohibited from working during the compulsory period, any relevant bonus must not be denied her during this period.

 

Women with an EWC before 1 October 2008 may have some terms and conditions during AML reduced or removed by their employer.  For example removing a company car or reducing the rate of accrual of annual leave to the statutory minimum.  This final part of the Regulations will only come into force for women with an EWC of 1 October 2008 or later.

 

Click here to read the Regulations and the Explanatory Memorandum.  Note:  The EOC is now part of the EHRC (Equality and Human Rights Commission) and the DTI has become the BERR (Business, Enterprise and Regulatory Reform). 

 

Revised Acas Code out for consultation

 

Acas have launched consultation this month on a revised Code of Practice on discipline and grievance in anticipation of the Employment Bill coming into force in April 2009.  The Bill repeals the statutory dispute resolution procedures in their entirety as they have been found to over complicate discipline, dismissal and grievance processes in the workplace.  With the changes envisaged in the Employment Bill it is necessary for Acas to review their Code.  The draft Code is quite brief and broken down into 43 points although it is to be noted that further guidance will be issued by Acas following the implementation of the Employment Bill.  The key points of the draft Code are as follows.

 

 

The consultation period closes on 25 July 2008.  Click here to read draft Code.

 

Increases for SMP and SSP rates

 

The DWP has announced the increases in SMP, SAP, SPP and SSP rates that will come into force from 6 April 2008.  SMP, SAP and SPP will all increase to £117.18 from £112.75 per week.  SSP rises to £75.40 from £72.55 per week.  The lower earnings limit (LEL) for National Insurance contributions rises to £90 from £87.  Those earning below the LEL will not usually be entitled to SSP, SMP, SAP or SPP.

 

Acas decide to scrap fixed conciliation periods

 

In anticipation of the Employment Bill coming into force next April, Acas have decided to continue conciliation after the ‘fixed period’ has ended.  The fixed conciliation periods were introduced in the Employment Act 2002 (Dispute Resolution) Regulations 2004.  The decision of the Acas Council applies for all cases current or received on or after 1 April 2008. 

 

More money for Acas

 

The Government has announced an additional £37m funding, over three years, for Acas.  With the Employment Bill featuring pre-dispute conciliation and the end of fixed conciliation periods it is likely that Acas will have a bigger role to play in attempting to resolve workplace issues either before they become disputes or before they reach a full tribunal hearing.  Analysts suggest that the additional funding could amount to 300 new posts.

 

NMW to rise again in October

 

The Prime Minister has announced that the National Minimum Wage (NMW) will rise on 1 October.  The new rates will be as follows:

 

 

We will remind you again about the change of NMW rates as we approach October.

 

£1,000 registration fee to sponsor overseas workers

 

The Border and Immigration Agency (BIA), part of the Home Office, has published proposed fees for the new Australian-style points-based immigration scheme.  Large employers will need to register to be licensed to sponsor applicants for work permits.  The cost of registration is likely to be £1,000 and each work permit will cost £190.  The new scheme for potential recruits requiring a work permit is likely to come into effect in autumn this year.  Click here to visit the BIA website. 

 

Increased penalties for illegal working

 

The penalties for employing illegal workers have now increased.  Since 29 February employers knowingly employing illegal workers risk two years in prison and/or an unlimited fine.  Negligent employers face a doubling of the penalty from £5,000 to £10,000 for each illegal worker. 

 

Use the link above to visit the BIA website.

 

Government provides more detail on employing overseas workers

 

The Government has published more details of the scheme for employing skilled workers from overseas.  Companies will only be able to employ non-EU citizens if they have established that no EU worker is available and the overseas worker meets the following requirements:

 

 

The system allows for the points to be adjusted up and down to regulate the flow of overseas workers entering the country.  Employers should note that they will have to be licensed to sponsor overseas workers for entry to the UK.

 

Use the link above to visit the BIA website.

 

Cases

 

Agency workers not employees of hirer

 

James v Greenwich Borough Council - The long awaited decision from the Court of Appeal (CoA) on the above 'agency worker' case was handed down last month.  For those waiting with bated breath, however, the decision is very disappointing and unhelpful.  The guidance from the CoA is that tribunals should, as a matter of fact, decide whether a contract of employment should be implied between an agency worker and an end user. In addition, there should be no reason for an appellate court to review the decisions of employment tribunals on the question of whether an implied contractual relationship exists (except on the basis of an error of law) as this is a matter of fact for the tribunal.  The court stated that there were no conflicting authorities as to when and if agency workers become employees, and so it appears that it is back to the tribunals to decide on the facts of the individual cases without any additional guidance from the CoA.  In the instant case the CoA upheld the decision of the tribunal and the Employment Appeal Tribunal (EAT) that J was not an employee of GBC.

 

Expired warnings may be relevant when making disciplinary/dismissal decisions

 

Airbus UK Limited v Webb- The CoA has allowed the appeal in this case concerning A's reference to an expired warning when deciding to dismiss W.  One month after the expiry of a final written warning for misuse of company time, W was discovered watching television during working hours with some work colleagues.  His colleagues who had no previous final warning were not dismissed but W was.  The employer justified dismissal by referring to W's recently expired final warning.  W had in fact been dismissed, for misusing company time (he had been washing his car when he should have been working), and on appeal reinstated and issued with a final written warning.  The CoA stated that it would not necessarily make a dismissal unfair if employers took expired warnings into account.  It stated, however, that there would have to be exceptional circumstances for the dismissal to be found fair and it would be necessary for the misconduct to be of a similar type that was the subject of a final written warning.  In the instant case W had been guilty of misusing company time on both occasions and this was clearly identified within the disciplinary procedure as a gross misconduct offence with the potential outcome being summary dismissal.

 

Readers should note that it would be helpful to draft disciplinary procedures to take into account exceptional circumstances, such as increasing the length of final warnings where deemed necessary.  Finally, it should be noted that this decision conflicts with the decision of the Court of Session (Scotland) in Diosynth Ltd v Thomson, upon which the EAT in the Webb case held that the dismissal was unfair, because the warning had expired.  It will be interesting to see how tribunals in Scotland apply the apparently conflicting decisions.

 

Straight man cannot claim following homophobic banter

 

English v Thomas Sanderson Blinds Ltd – the EAT has upheld the decision of an employment tribunal that the Employment Equality (Sexual Orientation) Regulations 2003 do not protect someone from homophobic teasing when the harassers do not believe the victim to be gay and in fact know he is straight.  E was taunted by his colleagues after they found he had been educated in a boarding school and lived in Brighton.  The Regulations state that harassment is unlawful ‘on the grounds of sexual orientation’ rather than relating merely to sexual orientation. 

 

E has been given leave to appeal to the Court of Appeal.

 

Given the outcome of the case of Equal Opportunities Commission v The Secretary of State for Trade and Industry (see above) the Government may again be forced to redraft legalisation for failing to correctly implement an EU directive.  Should harassment be prohibited because it ‘relates’ to sexual orientation rather than ‘on the grounds of…’ the Government would also have to amend the Regulations dealing with religion or belief and age as well.

 

Not pregnant but protected during IVF treatment

 

Mayr v Backerei und Konditorei Gerhard Flockner OHG – the European Court of Justice (ECJ) has extended the protection for women undergoing IVF treatment.  M was given notice of dismissal while she was undergoing IVF treatment.  At this stage her ova had already been fertilised in vitro.  M claimed that she was dismissed unfairly because she was pregnant at the time of dismissal.  The ECJ did not agree and ruled that a woman is not a ‘pregnant worker’ under the Pregnant Workers’ Directive before an embryo has been transferred to her uterus.  They went on to rule however that it would be unlawful sex discrimination to dismiss a woman because she is in the later stages of fertility treatment (from egg collection and beyond).  They argued that such procedures only affected woman and if they were the basis of the decision it would amount to sex discrimination. 

 

A copy of a letter to previous employer is grievance to new employer too

 

Ms H Bottomley and others v Wakefield District Housing – the EAT has provided a warning about the minimal requirements for a grievance to have been submitted to an employer.  B had previously been employed by Wakefield Metropolitan District Council (WMDC) before a TUPE transfer to WDH.  B’s solicitor wrote to the chief executive of the WMDC raising a written grievance in relation to an equal pay claim.  B’s solicitor copied the grievance to the chief executive of WDH.  The grievance in writing clearly related to an equal pay claim but the comparators identified had not transferred to WDH.  WDH acknowledged receipt of the copied grievance but did not arrange a formal meeting in compliance with step 2 of the statutory grievance procedure.  The EAT has ruled that even though the letter was addressed to WMDC and only copied to WDH and that the comparators had not transferred, the letter was a grievance in writing and consequently WDH had an obligation to arrange a meeting in compliance with the statutory dispute resolution procedures. 

 

Note:  You would be advised to consider carefully any written document that could give rise to a cause of action at an employment tribunal.

 

Immunity does not apply to all actions in proceedings

 

Mr T B Nicholls v (1) Corin Tech Limited (2) Larasian Limited (3) Mr C O’Connell (4) Mr B Currie – the EAT have held that a Respondent representing his company was not entitled to judicial immunity in relation to the conduct of proceedings.  N had a two-day disability discrimination claim heard at Southampton employment tribunal.  C represented CTL, as he owns the business through LL.  At the end of the second day of the hearing, the decision having been reserved, he was waiting by the lift when N approached with his son.  C made a number of threatening remarks, which N believed were intended to dissuade him from pursing proceedings.  C’s comments specifically referred to disability as well.  N submitted a further claim in relation to this alleged victimisation and threatening behaviour.  The employment tribunal in dismissing the claim argued that the comments were covered by judicial immunity – parties should not feel intimidated from expressing themselves freely in the course of conducting proceedings.  The EAT has now ruled that as the comments were closely linked to the previous employment relationship the disability claim was valid and that the incident in the corridor was not part of any judicial process and subsequently no immunity could be claimed.

 

£550,500 for disability case – new record award

 

The record award for disability discrimination has now reached £550,499 from the previous record of £400,000 in Beart v HM Prison Service.  The new case, from Croydon employment tribunal, dealt with a gardener formerly employed by Lambeth Serviceteam Limited.  Following his unfair dismissal and disability claim he has received compensation for loss of earnings from the time of dismissal, at age 34, until retirement.