January 2005 Employment Law Enews

Happy new year! Welcome to the first employment enews of the new year. In this edition we focus on a number of key topics certain to make the headlines in the coming weeks.

2 Seminars ( Norwich and London)

At this time of reflection and resolutions we thought it important to review briefly some of the key developments of the previous year. We will be covering, in greater detail, all of these and other topics at 2 briefings scheduled for 27 January ( Norwich ) and 22 February (London).

Norwich Venue

8.00am to 11.00am Thursday 27th January 2005 at Norwich City Football Club. The cost is £40 plus VAT and breakfast is included. If you would like to reserve a place please contact Beth Wilson on 01603 598000 or click here

London Venue

9.00am to 13.00 pm on Tuesday 22nd February 2005 at EEF Broadway House, London . The cost is £50 plus VAT. If you would like to reserve a place again please contact Beth Wilson on 01603 598000 or click here

Statutory Disciplinary, Dismissal and Grievance Procedures

On 1 October 2004 the Employment Act 2002 (Dispute Resolution) Regulations 2004 ("the Regulations") came into force. From this date all employers, irrespective of size, have been required to follow statutory minimum dismissal and disciplinary procedures when contemplating dismissal or other 'relevant disciplinary action'. Non-compliance could result in a finding that any consequent dismissal is automatically unfair. Note that compliance with these procedures does not automatically render a dismissal fair! The procedures are not restricted to misconduct dismissals only.

The Regulations also provide for statutory minimum grievance procedures, which, in most cases, employees are required to follow before making an application to an Employment Tribunal. Tribunals now have the power to extend the time limits for making applications to facilitate this.

Disability Discrimination

Last year saw a number of changes to the Disability Discrimination Act 1995, in particular, the removal of the small employer exemption on 1 October 2004 and changes to the definitions in the Act, including a new definition of harassment.

In August 2004 the Court of Appeal confirmed, in Nottinghamshire County Council v Meikle, that the concept of constructive dismissal fell within the scope of the word 'dismissal' in the DDA, and that the duty to make reasonable adjustments can extend to continuing discretionary contractual sickness benefits. In another case, the Court of Session took a very restrictive approach to the duty in holding that it only applies to the employee's existing job and does not require the employer to offer a different job.

This volatile area of employment law is sure to develop further and employers would be wise to ensure they keep abreast of developments.

Sex Discrimination

In early 2004 the Employment Appeal Tribunal held that failure to notify an employee, who was on maternity leave, of matters that were relevant to her career advancement amounted to unlawful sex discrimination and a breach of the implied duty of trust and confidence.

Employment Tribunals

On 1 October 2004 New Rules of Procedure for Employment Tribunals came into force, which made a number of important changes to the existing rules. Of particular note are: the changes in terminology; extension of the time for filing a response to 28 days from the date the claim form is sent out; requirement that the claim/response includes certain specified information; onerous penalties for non-compliance including a new power for a chairman to enter a default judgment if the Respondent fails to submit its response within the time-limit; and fixed conciliation periods.

Bonuses

Also in October 2004, the Court of Appeal held that an employee was entitled to damages for wrongful and unfair dismissal under the head of loss of a contractual discretionary bonus, on the basis that the employer would have been in breach of its obligations had it exercised its discretion irrationally or in bad faith (Cantor Fitzgerald International v Horkulak 2004).

Without Prejudice Meetings

In March 2004 the EAT suggested in BNP Paribas v Mezzotero that the 'without prejudice' rule, which provides that written or oral communications made during attempts to compromise a dispute may not normally be admitted in evidence by the parties, would only apply where there is a 'real dispute' between the parties. Further, even where a real dispute does exist discriminatory remarks would effectively exclude the discussions from protection under the without prejudice rule.

Transfer of Undertakings

In November, the EAT held that where a TUPE transfer is anticipated and there is neither any Trade Union recognised or existing employee representatives, there is a duty on the employer to initiate an election for representatives or, failing that, to inform and consult with individuals (Howard v (1) Millrise Limited T/a Colourflow (In Liquidation) and (2) SG Printers T/a Colourflow, EAT 2004). Significant compensation may be awarded to employees who are denied this right.

Agency Temporary Workers

Last year, giving the leading judgment in the Court of Appeal, Lord Justice Mummery suggested in Dacas v Brook Street Bureau that as a general rule, a temp supplied long term by an employment agency to a client would be an employee of the client.

Data Protection

At the end of 2003, in the case of Durant v FSA, the Court of Appeal provided guidance on the meaning of 'personal data' and 'relevant filing system'. The Court also stated that attempts by individuals to use the right of access to personal data for 'fishing expeditions' preparatory to legal action would be frowned upon. In October last year the Information Commissioner issued revised guidance in light of this decision.

Stress

In April 2004, in Barber v Somerset County Council, the House of Lords confirmed the law as stated by the Court of Appeal in Sutherland v Hatton, namely that for a worker to succeed in a claim for personal injury arising from psychiatric damage, signs of stress must have been obvious to the employer and that, unless the employer knows of a particular problem or vulnerability, the onus is normally on the worker to bring it to the employer's attention. The House of Lords, however, disagreed with the Court of Appeal insofar as it recognised that where there are/have been signs of stress employers have a duty to be pro-active and investigate the position, and consider ways of reducing such stress if appropriate, rather than adopt a 'wait and see' position.

We wish you all a successful and trouble free New Year. If we can assist you in any way in the coming months please do call us.

This article copyright © 2005 Steeles Law llp. All rights reserved.