E-NEWS: April 20 2004

In this edition we report on:

* steeles employment law debate
* New rules on illegal working in the UK
* House of Lords ruling on employer's liability for workplace stress
* High award of damages in discrimination case
* Protecting maternity rights

EMPLOYMENT LAW IS STIFLING BRITISH BUSINESS!

Thursday 29 April - Broadway House, Tothill Street, London SW1H 9NQ

As you may know steeles are holding their annual employment debate on 29th April and I would be delighted if you could attend. This year we are very fortunate that Norman Lamb MP Liberal Democrat (North Norfolk), employment lawyer, a member of the Treasury Select Committee and consultant to steeles, has agreed to chair a specially convened panel of experts which includes:

Simon Cheetham

Specialist Employment Barrister, Ely Place Chambers, and part-time Chairman of the Employment Tribunals.

Kevin McNerney

Legal Officer, Royal College of Nursing.

Neill Clark

Director of Human Resources Europe at APL Logistics.

Alistair Hodge

Specialist Employment Barrister, 5 Essex Court.

The debate will take place from approximately 6pm to 7pm but we would be delighted if you could join us for drinks and light refreshments from 5.30 pm and following the debate.

Attendance at this event is by invitation only and places are on a first come, first served basis. If you would like to attend please contact Karen McNeill on Tel 02074211720, fax 020 7421 1749 or lonemp@steeleslaw.co.uk to confirm your booking.

NEW RULES ON ILLEGAL WORKING IN THE UK

As from 1st May 2004 the list of acceptable documents, which may be relied upon by employers to demonstrate a belief that an employee is entitled to work in the UK, will change.

It is a criminal offence under the Asylum and Immigration Act 1996 s.8 to employ a person aged 16 or over who is subject to immigration control unless certain conditions are fulfilled. An employer has a complete defence (unless he knows that the employee is an illegal immigrant) if he can show that a document appearing to relate to the employee and "of a description specified in an order made by the Secretary of State" was produced to him before the employment began and was "retained by the employer, or a copy or other record of it was made by the employer in a manner specified in the order ..". Until 30th April 2004 the relevant order has been the Immigration (Restrictions on Employment) Order 1996 SI 1996/3225. The Immigration (Restrictions on Employment) Order 2004 will revoke and replace this and will provide for two separate lists of documents.

The new two part list is comprised of "secure" documents of which the provision of one is sufficient and of less secure documents of which two are required to be produced. In both cases the employer must see the original documents and must take a copy. The employer must also be satisfied that the document relates to the individual in question.

The "secure" documents are listed as follows:

1. A United Kingdom passport describing the holder as a British citizen or as a citizen of the UK and Colonies having the right of abode in the UK.

2. A passport containing a certificate of entitlement issued by or on behalf of the UK Government certifying that the holder has the right of abode in the UK.

3. A passport or national ID card issued by a State which is a party to the European Economic Area Agreement or any other agreement forming part of the Communities Treaties which confers rights of entry to or residence in the UK, which describes the holder as a national of a State which is a party to that Agreement.

4. A UK residence permit issued to a national of a State which is a party to the European Economic Area Agreement or any other agreement forming part of the Communities Treaties which confirms that the holder has rights of entry to or residence in the UK.

5. A passport or other travel document or a residence document issued by the Home Office which is endorsed to show that the holder has a current right of residence in the UK, the family member of a named national of a State which is a party to the European Economic Area Agreement or any other agreement forming part of the Communities Treaties which confers rights of entry to or residence in the United Kingdom, and who is resident in the United Kingdom.

6. A passport or other travel document endorsed to show that the holder is exempt from immigration control, has indefinite leave to enter, or remain in, the UK or has no time limit on his stay.

7. A passport or other travel document endorsed to show that the holder has current leave to enter, or remain in, the UK and is permitted to take the employment in question, provided that it does not require the issue of a work permit.

8. A registration card which indicates that the holder is entitled to take employment in the UK.

The list of acceptable less secure documents is comprised of the following:

1. A work permit or other approval to take employment issued by Work Permits UK plus either:-

1.1. a passport or other travel document endorsed to show that the holder has current leave to enter, or remain in, the United Kingdom and is permitted to take the work permit employment in question, or

1.2. a letter issued by the Home Office to the holder, confirming the same;

OR

2. A document issued by a previous employer, Inland Revenue, the Department for Work and Pensions', Jobcentre Plus, the Employment Service, the Training and Employment Agency (Northern Ireland) or the Northern Ireland Social Security Agency, which contains the (permanent) National Insurance number of the person named in the document; plus either:-

2.1. a birth certificate issued in the UK, which specifies the names of the holder's parents; or

2.2. a birth certificate issued in the Channel Islands, the Isle of Man or Ireland; or

2.3. a certificate of registration or naturalisation as a British citizen; or

2.4. a letter issued by the Home Office, to the holder, which indicates that the person named in it has been granted indefinite leave to enter or remain in the United Kingdom; or

2.5. an Immigration Status Document issued by the Home Office, to the holder, endorsed with a UK Residence Permit, which indicates that the holder has been granted indefinite leave to enter or remain in the UK; or

2.6. a letter issued by the Home Office, to the holder, which indicates that the person named in it has subsisting leave to enter or remain in the UK and is entitled to take the employment in question in the UK; or an Immigration Status Document issued by the Home Office, to the holder, endorsed with a UK Residence Permit, which indicates that the holder has been granted limited leave to enter or remain in the United Kingdom and is entitled to take the employment in question in the UK.

HOUSE OF LORDS RULING ON EMPLOYER'S LIABILITY FOR WORKPLACE STRESS

The House of Lords has overturned the Court of Appeal's decision in Barber v Somerset County Council, which had been one of four cases heard as a composite appeal by the Court of Appeal and was widely reported as Sutherland (Chairman of The Governors of St Thomas Becket RC High School) v Hatton and other cases.

The facts were that Mr Barber, who was head of maths at a secondary school, developed symptoms of depression in 1995 but did not tell anyone about these before taking three weeks off work in May 1996. When he returned to work, he indicated to his employer that he was finding things difficult. Mr Barber's symptoms continued in the summer holidays and after he returned from the summer break in September 1996 the headmaster asked a colleague to keep an eye on him. But in November Mr Barber broke down and was advised to stop work immediately. He brought a claim in negligence, which was successful in the County Court.

Following an appeal by Mr Barber's employer to the Court of Appeal, it was held that an employer was not in breach of its duty of care to an employee who suffered a breakdown caused by job-related stress. The Court of Appeal's decision represented a landmark in the developing law of the extent to which an employer owes a duty of care to employees who suffer stress as a result of the demands of their job.

The House of Lords found that the Court of Appeal had been wrong to conclude that Mr Barber's employer was not in continuing breach of the duty of care by failing to take proactive steps to lessen the job-related stress from which he was suffering and in the way it had responded to Mr Barber's complaints and concerns. In reaching this decision, weight was given to the fact that the senior management team failed to make inquiries about Mr Barber's problems, once these were known to them and failed to see what could be done to ease them.

The judgement is a clear message that where an employer is put on notice that an employee is suffering from stress, that steps should be taken to prevent the condition from worsening.

HIGH AWARD OF DAMAGES IN DISCRIMINATION CASE

Solicitors are not immune to employment law cases being brought against them; in what is being heralded as a 'landmark' case a tribunal has awarded two female former employees of London firm, Sinclair, Roche and Temperley awards totalling £900,000. The employees successfully claimed that they were victims of sex discrimination and, in particular, that the discriminatory culture pervading the firm prevented women from becoming senior equity partners.

An interesting feature of the case is that the tribunal found that the way in which a partner at the firm behaved during the litigation was malicious and designed to discredit one of the applicants without having any real foundation. In consequence the tribunal imposed £3000 extra aggravated damages. Such awards encourage caution in the way in which proceedings are defended.

PROTECTING MATERNITY RIGHTS - EUROPEAN COURT OF JUSTICE CONSIDERS THE IMPORTANCE OF PREGNANT WORKERS' RIGHTS.

Merino Gomez v Continental Industrias del Caucho

This case considered whether a woman on maternity leave is also entitled to take annual leave as guaranteed under the EC Working Time Directive.

Mrs Gomez worked at a factory where employees had to take annual leave at certain fixed times in the year. She took maternity leave over a period which coincided with the period of fixed annual leave for the whole workforce and applied for annual leave immediately after her maternity leave ended. Her employer refused.

The case was eventually referred to the ECJ, whose judgement was very clear; the Working Time Directive, the Pregnant Workers Directive, and the Equal Treatment Directive, taken together, required that:

"a worker must be able to take her annual leave during a period other than the period of her maternity leave, including in a case in which the period of maternity leave coincides with the general period of annual leave fixed, by a collective agreement, for the entire workforce"

The implications for the UK may be far reaching, given that the Working Time Regulations do not allow workers to carry over unused holiday to the next leave year. On the basis that maternity leave is relatively long, this could leave a number of pregnant workers in limbo over when to take their holiday leave.

It is possible that, faced with seemingly conflicting claims, employment tribunals will allow holidays to be carried over in these limited and particular circumstances. For practical reasons, many employers already have arrangements in place whereby pregnant workers can take holiday leave which accrues during their maternity leave, either immediately before or after taking maternity leave (depending on the leave year in which it falls).

This bulletin is intended for general guidance only and should not be relied upon without detailed legal advice on your specific circumstances.

This article copyright © 2004 Steeles Law. All rights reserved.