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In This Issue:
January
2007
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Welcome |
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Tribunal limits |
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Age challenge |
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Whistleblowing ruling |
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No bonus under UCTA |
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Disability ruling |
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And some snippets... |
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Featured Links:
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Welcome
We go into 2007 with some key decisions on
whistleblowing and age discrimination, both of which
look more likely than not to get a further airing in the
months ahead as they proceed up the legal ladder.
Also in the pipeline are next month's annual tribunal
awards increases, while April sees the Work and Families
Act 2006 come into force and the information and
consultation legislation widened to embrace more
organisations.
Government ministers are meanwhile pursuing their quest
for simplification across Whitehall. This includes
putting UK employment law under the microscope, and
possibly streamlining health and safety functions.
We will continue to provide these bulletins to help you
navigate the maze of employment law changes. As always,
please do contact me if you have suggestions to help us
improve this newsletter, or if you have any issues we
can assist with.
And do spare a thought for the City banker whose festive
season may not have been as festive as he hoped, after a
novel bid to secure a bonus using the Unfair Contract
Terms Act 1977 came to grief
Malcolm Davies
Andersons Solicitors
Tribunal limits
From 1 February, the compensatory award for unfair
dismissal is increased to £60,600 (from £58,400). A
week's pay for basic awards, redundancy payments, etc,
goes up from £290 to £310. The total maximum statutory
redundancy payment is therefore £9,300, and the total
maximum unfair dismissal award in most cases is £69,900
with some types of unfair dismissal (eg pregnancy
related dismissals, health & safety or whistleblowing
dismissals) remaining unlimited.
Age challenge
The High Court has referred campaigning group Heyday's
challenge to the Employment Equality (Age)
Regulations 2006 to the European Court of Justice.
Heyday is arguing that 'forced retirement' at 65
allowed under the regulations is inconsistent with the
European Equal Treatment Directive. This will now be
considered by the ECJ in the form of questions posed by
the British court.
Meanwhile, the new rules on how the age discrimination
regulations affect pension trustees and pension scheme
managers came into force on 1 December 2006.
Whistleblowing ruling
The Court of Appeal has handed down an important
decision defining the extent of what amounts to a
'disclosure' under the Public Interest Disclosure Act
1998.
An IT teacher, Mr Evans, resigned and claimed
constructive dismissal following a formal warning issued
after he had used a pupil's PC to disable school
accounts and demonstrate flaws in the school's computer
network security. He claimed he had suffered a detriment
for disclosing the school's breach of its data
protection obligations, but the school claimed he was
disciplined solely for hacking into the system.
The court rejected Mr Evans's argument that the
circumstances should be viewed as part of 'an entire
disclosure transaction', instead holding that under
section 43B of the Employment Rights Act 1996,
the word 'disclosure' be limited to the utterance of
words to the employer about their breached obligation
and should not extend to any surrounding circumstances.
This decision narrows the effect of the whistleblowing
laws and although good for employers - appears to run
contrary to the purpose of the whistleblowing
legislation.
Mr Evans is seeking permission to appeal to the House of
Lords.
No bonus under UCTA
The Unfair Contract Terms Act 1977 ('UCTA') does
not apply to employment contracts, the Court of Appeal
has ruled in Commerzbank AG v Keen, dismissing a
claim that a provision stipulating that in order to
receive a bonus an employee had to be in employment
amounted to an unreasonable exclusion clause.
The judgment states that as a matter of principle it
cannot be argued that for the purposes of section 3 of
UCTA an employee 'deals as a consumer' with their
employer under a term for remuneration in this case,
the bonus payment.
It also referred to the obstacles a claimant would need
to overcome to show that a bank's discretionary bonus
decisions were irrational or perverse, adding that such
an assertion would need to be supported by independent
evidence.
Disability ruling
The Court of Appeal has rejected an employee's claim
that an employer had failed to make reasonable
adjustments under the Disability Discrimination Act
1995.
Mrs Difolco, whose disability meant she could only work
part-time, was made redundant by the NTL Group and then
given the option to apply for another job as being
suitable alternative employment. The new job was
advertised as full-time but she was told that, were she
appointed, it might be changed to a part-time basis.
She refused to apply unless the job was converted before
she applied, and claimed the employer had failed to make
reasonable adjustments. The Employment Appeal Tribunal
agreed, but the Court of Appeal found that until Mrs
Difolco actually applied for the post the employer was
under no duty to make reasonable adjustments. This
helpful decision is a victory for common sense,
otherwise people who had not even applied for a job
would be able to claim discrimination.
And some snippets...
Offshoring fears
Offshoring is seen as an increasing threat to job
security, according to a Deloitte/YouGov survey which
found almost one in three of those questioned wanting
companies to bring outsourced work back to the UK. An
overwhelming majority 82% believed enough jobs have
now gone overseas, and only 4% supported the
continuation of offshoring.
Employment law overhaul
Over at the DTI, Trade and Industry Secretary Alistair
Darling has set up a panel to carry out a root and
branch review of workplace dispute resolution and build
on evidence already gathered as part of his department's
initiative to simplify UK employment law.
Protective awards
Employees who are not members of a union recognised by
their employer are not entitled to take advantage of a
protective award negotiated by the union, the Employment
Appeal Tribunal has ruled in TGWU v Brauer Coley.
Instead they must bring their own individual claims.
Information and consultation
On 6 April, the Information and Consultation of
Employees Regulations 2004 are extended to include
organisations with a workforce or 100 or more
(previously 150).
Health and safety merger
The Health and Safety Commission and Health and Safety
Executive have put out to public consultation a proposal
to merge into a single authority with the stated aim of
providing a more accountable structure, better
decision-making and an enhanced role for employer and
employee representatives and local government.
Diverse workplaces
Employers should be more proactive in improving
workplace diversity, according to a survey of 2,000
employees and customers by JobCentre Plus. More than
half of customers said they would be more likely to use
a business they knew to have a diverse workforce and 79%
of those questioned believed it was important for
organisations to have a diversity policy in place.
Acas experience
Acas research has found that myths and misconceptions
continue to surround equality and diversity in the
workplace, many of them the result of lack of awareness,
entrenched attitudes and being embarrassed to address
the issues. A new discussion paper Back to basics:
Acas experience of equality and diversity in the
workplace focuses on the experience of frontline Acas
staff, suggests ways of tackling the barriers, and
encourages anyone interested in the issues to get in
touch.
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About Andersons
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Andersons offer a comprehensive employment law service
to a broad client base comprised mainly of quoted and
private companies, public authorities, charities and
private individuals, many of whom are household names.
Our expertise covers all aspects of employment law and
in particular matters relating to litigation,
re-organisations, severance, training and general HR
advice. We act for clients on a nationwide basis and
represent clients all over the country in Employment
Tribunals, the Employment Appeal Tribunals and other
courts.
If you require advice or assistance in respect of any
particular matter, please contact Malcolm Davies on
Malcolm Davies . For more
information about Andersons, please see our website
http://www.andersonssolicitors.co.uk .
Disclaimer
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The information and any commentary contained in these
bulletins is for general information purposes only and
does not constitute legal or any other type of
professional advice. Andersons Solicitors do not accept
and, to the extent permitted by law, exclude liability
to any person for any loss which may arise from relying
upon or otherwise using the information contained in
these bulletins.
If you have a particular query or issue you are strongly
advised to obtain specific, personal advice about your
case or matter and not to rely on the information or
comments in this bulletin.
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