IN THE NEWS THIS WEEK:
* New tribunal procedures
* Tribunal reforms - consultation document
* Passive smoking at work
* Upper qualifying age decision
NEW TRIBUNAL PROCEDURES
The Employment Tribunal (Constitution and Rules of Procedure) Regulations
2001 came into force on 16th July 2001. They replace the 1993 regulations
of the name. They apply to all proceedings to which they relate,
irrespective of when they were commenced. The main changes are given
below:
* New Regulation 10 inserts an overriding objective into the rules of
procedure to enable tribunals to deal with cases justly. Dealing with
cases justly includes, so far as practicable: ensuring the parties are
dealt with equally, saving expense, acting in proportion to the complexity
of the case, and dealing with cases fairly and expeditiously. The parties
have a duty to assist the tribunal in furthering the overriding objective.
* Directions may relate in particular to evidence, including witness
statements. Failure to comply with a direction may result in an award of
costs under rule 14(1)(a) or the striking out of the whole or part of an
application or notice of appearance, and, where appropriate, a respondent
being debarred from defending altogether.
* The maximum amount of the deposit which may be imposed following a
pre-hearing review has been increased from £150 to £500.
* The unreasonable behaviour of a party's representative may be taken
into account when awarding costs against that party.
* The tribunal is also now under a duty to consider an award of costs,
including where proceedings which have no reasonable prospect of success
have been pursued.
* The maximum amount of costs which a tribunal may award without an
assessment of costs has increased from £500 to £10,000.00.
* The term "frivolous" has been replaced with "misconceived". The
Tribunal have the power to strike out applications or notices of
appearance in certain circumstances.
Visit
http://www.legislation.hmso.gov.uk/si/si2001/20011171.htm for
further details.
TRIBUNAL REFORMS - CONSULTATION DOCUMENT
New proposals to radically reform employment tribunals were announced on
20th July 2001 (4 days after the above reforms came into force) by
Employment Relations Minister Alan Johnson.
Key proposals include:
* organisations which do not have dispute resolution procedures in
place - or do not use them when workplace disagreements arise - to have
arrangements for managing such disagreements; and
* a new, modest charging regime for use of the employment tribunal
system to reduce the cost burden on the taxpayer. Exemptions would apply
to those on benefits and in cases of genuine need.
The proposals - outlined in a Government consultation document are
designed to promote conciliation in the workplace rather than litigation
and reduce the strain on the employment tribunal system and its users.
Tribunal applications have increased threefold between 1991 and 2001, from
an annual figure of 43,243 in 1990/91 to 130,408 in 2000/2001.
Alan Johnson stated, "the cost to a business of defending a tribunal claim
is considerable. The cost of defending a claim and replacing a member of
staff can typically exceed £5,000 - irrespective of the management costs
associated with defending such a claim and damage to workplace relations".
The Government's consultation document, Routes to Resolution: Improving
Dispute Resolution in Britain, is available on the DTI website at:
http://www.dti.gov.uk/er/individual/et.htm
PASSIVE SMOKING AT WORK
The Health and Safety Executive (HSE) has published a new booklet entitled
"Passive Smoking At Work". The booklet gives advice to employers on
actions to prevent passive smoking. It recommends that all employers
should introduce a policy to control smoking in the workplace following
full consultation with their employees, and give guidance on what the
policy should achieve.
The HSE recommends that all employers should have a specific policy on
smoking in the workplace. The policy should be written down and be
generally available.
Employers have a legal obligation to ensure, so far as is reasonably
practicable, the health, safety and welfare at work of all their
employees. Under the Workplace (Health, Safety and Welfare) Regulations,
employers have to ensure that there are arrangements to protect
non-smokers from discomfort caused by tobacco smoke in rest rooms or rest
areas.
Please contact us using the links on this page or email us if you require
assistance in drafting and implementing a no smoking policy.
UPPER QUALIFYING AGE DECISION
The Employment Appeal Tribunal has left the question open as to whether
the upper qualifying age limit for unfair dismissal and redundancy is
contrary to Article 141 of the Treaty of Amsterdam in the case of HARVEST
TOWN CIRCLE v RUTHERFORD.
The facts of the case are as follows:-
* Mr. Rutherford worked as a pattern room controller for Harvest Town
Circle Ltd, a medium sized company (approx. 40 employees) operating as a
wholesaler in the ladies and children's fashion business.
* In September 1998, Mr. Rutherford was made redundant. He claimed
before an employment tribunal: firstly that there was no true redundancy
and secondly that the dismissal was unfair. The employer was advised that
the employment tribunal had no jurisdiction as Mr. Rutherford was aged 67
and was therefore well over the 65 year old age limit imposed by section
109 of the ERA 1996 for such claims.
* At a preliminary hearing in July 1999 it was argued for Mr.
Rutherford that the 65th birthday upper age limit for claiming unfair
dismissal and statutory redundancy pay is contrary to the sex
discrimination and equal pay provisions of the EC Treaty of Rome Art 141.
Detailed statistics were produced to the tribunal to show that the
relevant provisions of the British legislation, noted above, affect more
than double the percentage of relevant men than of relevant women. On
that basis it was argued that those provisions were, therefore, indirectly
sex discriminatory unless they could be properly regarded as objectively
justified by reference to features other than a difference of sex.
* Employment Tribunal decision:
The Stratford East Employment Tribunal agreed with this argument and
decided that it therefore did have jurisdiction to hear Mr. Rutherford's
claims notwithstanding his being aged over 65 at the date of his
dismissal. Harvest Town Circle Ltd appealed to the EAT.
The EAT disagreed with the logic of the argument which the employment
tribunal had accepted and remitted the matter back for a fresh hearing.
In doing so the EAT considered in great detail both the relevant case law
on interpretation of Art 141 of the Treaty of Rome and the nature of the
statistical evidence which had persuaded the employment tribunal to come
to what the EAT held was a wrong conclusion in law. In particular the EAT
pointed out that EC law refers to "proportions" of men compared with women
whereas some of the case law appears to look at whether far more members
of one sex than the other are disadvantaged. Clearly proportions and
absolute numbers are different.
Thus the EAT did not finally decide one way or the other whether the
sections of ERA 1996 noted above are contrary to EC law or not. It merely
decided that the employment tribunal used the wrong statistics in coming
to its decision and also that it had failed properly to consider the
question of justification.
WE CAN HELP YOU:
Please use the links on this page if you:
* Want to receive more information/advice on any of the matters in
this edition (please give details of the matter you require advice on).
* Want advice on any employment matters
* The employment team also conducts practical in-house training and
workshops for companies on a wide range of issues including:-
Managing sickness absence/stress in the workplace
Misconduct and the disciplinary procedure
Poor performance
Handling redundancy situations
Avoiding unlawful discrimination claims
Avoiding unfair dismissals
Employment law update and practical advice for line managers
* Our aim is to offer line managers practical training to ensure that
costly mistakes are avoided. All of the training workshops are tailored
to meet the exact requirements of each individual business.
* If you are interested in finding out more about such training please
do not hesitate to give us a call.
Visit our web site http://www.steeleslaw.co.uk
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