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In This Issue:
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Welcome |
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Agency workers |
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Defining a worker |
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Age bias ruling |
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Butlins decision |
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Disciplinary rulings |
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Disability ruling |
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And some snippets... |
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Featured Links:
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Welcome
The fortunes of agency workers dominate
this month, with an Employment Appeal Tribunal ruling, a
new Government consultation under way, and the fate of a
private member's bill on topic decided.
Heyday's challenge to the age discrimination regulations
has meanwhile taken a knock and the courts' never-ending
quest to define 'a worker' continues.
Malcolm Davies
Andersons Solicitors
Agency workers
Labour MP Paul Farrelly's Temporary
and Agency Workers (Prevention of Less Favourable
Treatment) Bill was blocked by the Government during
its second hearing on 2 March with employment relations
minister Jim Fitzpatrick still speaking when time ran
out.
A total of 115 Labour MPs — 15 more than required to
secure a second reading — were present to back the
measure which was supported by the TUC and the UK’s
leading unions and would have extended fundamental
employment protection to agency workers.
On the same day, the Trade Union Rights and Freedom
Bill — introduced by Labour MP John McDonnell and
again supported by the TUC — also failed to secure a
second reading, this time with no debate. The Bill's
prime aim was to strengthen workers' rights during
lawful disputes.
… another ruling…
The Employment Appeal Tribunal has in Craigie v
Haringey found that there was no 'necessity' to
imply a contract of employment between an agency worker
and the end-user, upholding the employment tribunal's
decision and declining to follow the Court of Appeal's
position in Dacas v Brook Street Bureau.
The judge also commented that the law on agency workers
is unsatisfactory and needs revisiting by legislators.
… and fresh consultation
The Government has launched a consultation exercise to
both address 'bad practices' affecting the most
vulnerable agency workers and 'reduce burdens on
reputable agencies where we can do so without removing
important protection for workers'.
The Department of Trade and Industry says there are
17,000 employment agencies and associated businesses in
the UK with approximately one million temporary and
contract workers on their books.
Details on the consultation, which runs until 31 May,
from
http://www.dti.gov.uk/consultations/page37726.html
Defining a worker
In James v Redcat, the Employment
Appeal Tribunal has revisited the definition of
'worker', with the judge defining the essential question
as 'whether the obligation for personal service is the
dominant feature of the contractual relationship or not.
If it is, then the contract lies in the employment
field…'
The case involved a woman delivering parcels for a
courier company and whether she was a worker for the
purposes of the National Minimum Wage Act 1998, but has
implications for other areas of employment law.
Age bias ruling
Campaigning group Heyday's challenge to
the mandatory retirement procedures in the age
discrimination regulations has taken a knock with the
Advocate General’s opinion in a Spanish case before the
European Court of Justice.
He states the EU Equal Treatment Directive 2000 does not
apply to individual state laws on retirement ages and
even if did apply, national provisions were justified.
Although an Advocate General’s opinion is not binding on
the ECJ, it is rare for it not to be followed and if it
is in Palacios v Cortefiel Servicios SA, Heyday's
Strasbourg challenge would be significantly weakened.
Butlins decision
The Court of Appeal has upheld the
Employment Appeal Tribunal's decision in Leisure
Employment Services v HMRC that an employer could
not count money deducted for gas and electricity as part
of an employee’s wages.
The deduction of £3 a week was part of the provision of
living accommodation or, alternatively, for the
employer's own use and benefit. As a result the employer
— here the owner of the Butlins brand — was in breach of
the national minimum wage legislation.
Disciplinary rulings
Expired warnings should never be
considered when deciding to dismiss, the Employment
Appeal Tribunal has ruled in Airbus UK v Webb.
Three weeks after a final written warning expired, Mr
Webb — with four colleagues — took part in a similar
offence and was dismissed. His colleagues were not, and
the employment tribunal found the dismissal unfair.
The employer appealed, arguing that it was legitimate to
consider expired warnings but the EAT followed a
Scottish Court of Session decision to hold that 'a
tribunal is obliged, and not merely entitled, to ignore
expired warnings'.
Disability ruling
Employers will not normally have to pay
salary as a reasonable adjustment under the DDA 1995 to
staff who are on long-term sick and qualify as disabled,
the Employment Appeal Tribunal has ruled in Fowler v
Waltham Forest.
Making such a payment was not normally reasonable
because it would not help employees return to work, the
EAT said, reaffirming its decision in O’Hanlon v HMRC.
And some snippets...
Cancer guidance
The CIPD, in collaboration with charity Cancerbackup,
and the Working with Cancer (WwC) group, has produced
new guidelines on employer obligations under the DDA
1995.
'Cancer and working: guidelines for employers, HR and
line managers' offers information on best practice and
making adjustments, including dealing with the issues
arising at different stages of the illness and a cancer
policy template.
More information and a PDF of the guidelines from
http://tinyurl.com/ypu2ka
Equalities report
A new approach to tacking discrimination and
disadvantage is needed to prevent some forms of
inequality remaining at 'intolerable' levels, the
Equalities Review’s Final Report has warned.
Among the report's findings are that it could take until
2085 to close the gender pay gap, and disabled people
may never overcome the workplace penalties they
currently face.
The review can be read in full at
http://www.theequalitiesreview.org.uk
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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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