Click here to view the DTI press release.


Amendments to pension provisions of age regulations laid

As reported in our update on 20 October, draft regulations are due to come into force on 1 December 2006 which amend the pension provisions of the Employment Equality (Age) Regulations 2006. These regulations have now been laid before Parliament.

The Department for Work and Pensions (DWP) is currently investigating the feasibility of a 'compliance window' to give schemes time to adjust, although this might expose the Government to problems under European law. The DWP will also issue revised guidance to assist schemes.

Click here to view the DWP's press release.


Rolled-up holiday pay goes back to tribunal

The issue of rolled-up holiday pay under the Working Time Regulations 1998 has been rumbling on for some time. Many workers in the UK have rolled-up holiday pay arrangements, which entail an element of holiday pay being included in their hourly rate, rather than it being paid when their leave is actually taken. Whether this is a lawful arrangement has been the subject of much litigation.

Clarke v Frank Staddon Ltd was one such case, where the employee's contract provided that his holiday pay was included in his daily rate. The employee's attempts to obtain payment for his annual leave reached the Court of Appeal which, in light of contradictory decisions on this issue, referred the case to the ECJ. The ECJ held that it is unlawful to roll-up holiday payments, but a transparent and genuine rolled-up element which has already been paid can go towards discharging the statutory payment due for a specific period of leave.

Although the Court of Appeal has now reconsidered the case, it remitted the case to a tribunal for a rehearing, to enable a new fact finding exercise to be undertaken, in light of the ECJ's ruling. No guidance was provided by the Court of Appeal in relation to the interpretation of the ECJ's ruling, so we must wait for further clarification of this problem area.


Meaning of "disclosure" for whistleblowing purposes

The case of Bolton School v Evans recently reached the Court of Appeal, which examined the meaning of the word "disclosure" for the purposes of the whistleblowing provisions of the Employment Rights Act 1996.

In this case, a technology teacher informed his school that its computer system was inadequate and would enable students to hack in and gain access to confidential information. When the school failed to address the teacher's concerns, he hacked into the system himself to illustrate the problem. Although he informed the school about his actions, the entire system had to be shut down. The teacher received a written warning and subsequently resigned, claiming detriment and constructive unfair dismissal on the grounds he had made a protected disclosure.

Whilst his claim was allowed by the employment tribunal, the EAT found in favour of the school and quashed the decision. As the disciplinary action taken by the school related to the teacher's conduct rather than his disclosure, his actions were not protected.

The Court of Appeal has now dismissed the teacher's appeal. It noted that "disclosure" was a common word and Parliament did not intend to add any special meaning to it. The tribunal was wrong to use a purposive approach when interpreting the legislation. The teacher had been disciplined for hacking into the computer system, not for informing the school about the inadequacies of the system.


Reasonable adjustments and redundancy

The Court of Appeal has confirmed that where an employee is dismissed due to redundancy which is unrelated to disability, an offer of alternative employment can be subject to a competitive selection procedure.

The employee in NTL Group Ltd v Difolco was partially paralysed and could only work on a part-time basis. She was subsequently selected for redundancy and was informed of alternative, full-time, employment, which she could apply for through a competitive selection procedure, along with other candidates. She was also informed that if she was successful, it might be possible for her to carry out the role on a part-time basis. The employee refused to apply for the role and complained to a tribunal. The tribunal found in her favour, holding that it would have been a reasonable adjustment for the employer to assess whether the role could have been performed on a part-time basis and, if so, to offer her the post without the need for a competitive selection procedure.

The employer's appeal reached the Court of Appeal, which held that, as there was no link between the employee's dismissal by reason of redundancy and her disability, the employer was not under a duty to offer the employee an alternative position without a competitive selection process. It also noted that an employer should not be under a duty to make adjustments to an alternative offer of employment before the employee applies for the job.


Collective redundancies - enforcing protective awards

A recent EAT case has confirmed that only those employees in respect of whom a trade union was recognised could benefit from a protective award. The award could not be 'cashed in' by employees in respect of whom the union was not recognised.

Where an employer is proposing to dismiss as redundant 20 or more employees at one place within a period of 90 days or more, it must consult on its proposals with 'appropriate representatives' of the affected employees. Appropriate representatives may be elected employee representatives or trade union representatives, where the affected employees fall within a category in respect of which a trade union is recognised for collective bargaining purposes.

If an employer fails to comply with its obligations to consult collectively, a protective award can be sought by employees, elected employee representatives or trade unions in respect of the recognised employees. If a tribunal makes a protective award, every employee of a description to which the award related is entitled to enforce it.

In Transport and General Workers Union v Brauer Coley Ltd (in administration), the employer failed to undertake collective consultation in relation to a number of redundancies. The union, which was the recognised union for a certain group of employees, claimed a protective award for the dismissed employees. The tribunal at first instance granted a protective award to those employees in respect of whom the union was recognised for collective bargaining. The union appealed, arguing that the protective award should cover all dismissed employees, including those employees in respect of whom the union was not recognised.

The EAT rejected the appeal. The union could only make a claim in respect of those employees whom it represented. The other employees could make individual claims where no employee representatives had been elected or, where they had, the claims could be made by those representatives. As the case concerns a previously undecided point, the EAT gave the union permission to appeal to the Court of Appeal.


No free-standing claim for failure to follow statutory dispute resolution procedures

The EAT has recently confirmed that employees do not have a free-standing right to bring a tribunal claim for breach of the statutory dispute resolution procedures.

In Scott-Davies v Redgate Medical Services, the employee was dismissed but did not have the necessary one year's service to claim unfair dismissal. He argued that if his employer had followed the statutory dispute resolution procedures, he might not have been dismissed.

The EAT upheld the tribunal's decision that there was no free-standing claim where there had been a failure to follow the procedures. It noted that it would be contrary to the purpose of the dispute resolution procedures for the tribunal to have the jurisdiction to consider such free-standing complaints, as it would have the effect of increasing the volume of tribunal claims.


Simplification of dispute resolution procedures

Alistair Darling, the Trade and Industry Secretary, has acknowledged that whilst the dispute resolution procedures which came into force in 2004 were an "honest attempt to try and make things easier", the DTI is currently looking at ways to simplify the procedures. This will be met with some relief by employees and employers (and their lawyers!), who have found the procedures cumbersome and often ineffective.


CRE due to be incorporated into CEHR in October 2007

It has been confirmed that the Commission for Racial Equality (CRE) will be incorporated into the Commission for Equality and Human Rights (CEHR) in October 2007, at the same time as the Equal Opportunities Commission and the Disability Rights Commission. It had been expected that the functions of the CRE would only be transferred to the CEHR in 2009.


Rights and responsibilities of employees

The DTI has produced a detailed guide for employers and employees entitled 'individual rights and responsibilities of employees'. The guide covers a number of issues, ranging from qualifying conditions, contracts, written statements and pay to dismissal and notice periods, family-friendly rights, discrimination, complaints and remedies. Click here to access the guide.


Ditch the management speak!

According to a poll conducted by YouGov to mark the 15th anniversary of Investors in People, more than half of all UK employees have confirmed that management jargon, such as 'think outside the box' and 'the helicopter view', are a problem in their workplace.

Over a third of those surveyed think management jargon betrays a lack of confidence, results in mistrust in the workplace and makes people feel inadequate. However, over half of senior managers think jargon is harmless. With over a third of employees saying that the use of jargon is on the rise, managers should be alert to the problems it may cause in the workplace.

Click here to access the press release from Investors in People.


Free DVD on data protection

The Information Commissioner's Office (ICO), an independent body responsible for protecting personal information under data protection legislation, has recently launched a new interactive training DVD, aimed at improving understanding of the Data Protection Act 1998 in the workplace.

Two hundred thousand DVDs are being distributed free of change to data protection officers in the UK. To request a free copy, visit www.ico.gov.uk or call 08453 091 091. Click here to view the ICO's press release.


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