June 27 2005 Employment Law Enews

Welcome to the latest edition of employment law enews. We look at the issues surrounding joint and several liability for discriminatory acts; Opt-outs of the 48 hour working week and the Employment Practices Data Protection Code is published .

Joint and several liability for discriminatory acts

Employers are 'vicariously' liable for wrongful acts done by their employees, in the course of their employment if either the act was authorised by the employer; or was closely connected with the performance of their duties. This would include acts of discrimination and harassment. There is a defence, however, if the employer can show that it took all reasonably practicable steps to prevent the harassment/discrimination. In circumstances where liability does arise, the employee who committed the unlawful act ("the Harasser") will also be liable, on the basis that he/she has aided and abetted the act of discrimination.

It is common, in such circumstances, for Employment Tribunals to make substantial awards of compensation against the employer but only a small award against the Harasser.

Where does this leave the complainant if the employer company is insolvent? The Employment Appeal Tribunal ("the EAT") has held that it is proper for an Employment Tribunal to make both the employer and the Harasser jointly and severally liable for the full amount of the compensation awarded, i.e. they will both be equally liable for the whole sum. In practice, this means that if the employer company is insolvent, the complainant can seek to recover the full amount of the compensation awarded from the Harasser.

The EAT suggested however that such an award should not be made in every case, and set out various factors which Employment Tribunals should take into account when considering whether or not to make such an award, including the respective culpability of the parties.

In view of this decision, employers that have discrimination claims made against them, in circumstances in which an alleged Harasser has been joined as a Respondent, should advise the alleged Harasser to seek independent legal advice at the earliest opportunity.

Working time opt-out survives

The UK Government, with the help of other Member States, has successfully stalled proposals to amend the Working Time Directive ("the Directive")

In May 2006, the European Parliament approved amendments to the Directive including scrapping the opt-out and amending the definition of on-call time to include even 'inactive' time, when the worker is on call but not working.

There was widespread concern in the UK that the removal of the right to opt-out would have a substantial adverse impact on businesses.

The Secretary of State for Trade and Industry, Alan Johnson, with the backing of employment ministers from other Member States, opposed the proposals currently before the Council of Ministers, forcing the issue to be dropped for the time being. This issue is unlikely to return to the European agenda until next year.

Employment Practices Data Protection Code - final version published

Under the Data Protection Act 1998 ("the Act"), employers must process personal information fairly and in accordance with the principles set out in the Act. The Information Commissioner ("IC") had previously issued four separate parts of a code of practice giving guidance to employers on how to comply with the Act. Those parts covered Recruitment and Selection; Employment Records; Monitoring at Work; and Information About Workers' Health. The new Code consolidates the four separate parts into a single document. It takes account of the Court of Appeal's decision in Durant v Financial Services Authority and amends the definitions of 'personal data' and 'relevant filing system'.

The IC has also published a booklet entitled 'Quick Guide to the Employment Practices Code: Ideal for the Small Business', and supplementary guidance, which gives more notes and examples.

Employers should be aware that although they are not legally bound to adhere to the Code, its provisions stand as examples of good practice and the Information Commissioner can cite them in any enforcement action.

ACAS publishes new guides

ACAS has updated and published new guides on recruitment and induction; discipline, dismissal and grievances and flexible working.

You can find the guides on their website at www.acas.org.uk

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