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Don't forget...

1 February marked the annual increases in tribunal limits. This affects, amongst others, the maximum compensatory award for unfair dismissal, which increased from £58,400 to £60,600, and the maximum limit on a week's pay (used to calculate redundancy payments or the basic award for unfair dismissal), which increased from £290 to £310.

Employer's liability - work-related stress

In Intel Incorporation (UK) Limited v Daw, the Court of Appeal upheld the decision of the High Court and confirmed that an employer was liable for its failure to take steps to reduce the work-related stress suffered by its employee.

The Court emphasised that it was not a rule of law that an employee will necessarily lose a right of action against her employer if she does not resign when stresses at work become excessive. Although external counselling services were available in this instance, the Court also noted that previous case law did not make such services a panacea by which employers can discharge their duty of care in all cases.

Looking beyond the contract

The Employment Appeal Tribunal (EAT) has provided a useful summary outlining in what circumstances a tribunal can look outside the "four corners" of a contract when assessing the employment status of an individual.

In Ministry of Defence Dental Service v Kettle, the EAT noted that the first question for the tribunal is whether the parties to the written contract intended that document to be the exclusive record of the terms of their agreement. If the tribunal finds this to be the case (which is a question of fact), the tribunal will generally be restricted to considering the terms of that written contract when determining whether the individual is an employee. If it was not the parties' intention that the written contract should be the exclusive record of the terms of their agreement, the tribunal is entitled to look at other relevant materials (such as oral exchanges and conduct) to determine the individual's employment status.

"Shrunken" ET1 still acceptable

The EAT has confirmed in Grant v In 2 Focus Sales Development Services Ltd, that a tribunal was wrong to reject an ETI because it was not in the prescribed form (apparently because it had shrunk in the faxing process).

As faxing is a legitimate way of lodging an ET1 (the form used to lodge a claim at the employment tribunal), and reduction in size is a natural or even frequent result of the faxing process, the EAT decided that any reduction must be deemed to be an acceptable consequence of the process. The EAT noted that if this was not the case, the "ludicrous" result would be that the form could be faxed but would be rejected. The EAT also noted that size was not one of the essential features of the prescribed form.

TUPE-related changes to employment terms

In Power v Regent Security Services Ltd, a transferee failed to convince the EAT that the new contractual terms it agreed with a transferring employee were void because the reason for the change in terms was the TUPE transfer.

In the EAT's view, earlier case law on TUPE-related changes to terms merely established that if an employee wishes to rely upon a term originally found in the agreement with the transferor, rather than relying upon a term in the varied or new agreement with the transferee, he will be entitled to do so. The issue is not whether the original term is more beneficial. It is simply a question whether the employee wishes to rely upon the term (which, in practice, he will clearly do so if he thinks it beneficial).

The EAT noted that there was no reason of public policy why a transferring employee (who, in this case, had agreed a change in the contractual retirement age with the transferee) should be barred from holding the transferee to the new term, if the employee considered it to be more favourable. The underlying principle is that employees should not be prejudiced as a result of a TUPE transfer, and if they are barred from enforcing more favourable terms, that would be the effect. This decision therefore implies that employees will be able to pick terms from the old and new contracts, based on which they consider to be more favourable.

It should be noted that this case was decided under TUPE 1981, which has now been replaced by TUPE 2006. The regulation relating to transfer-related changes under TUPE 2006 contains different wording and arguably provides more scope for changing contracts of employment in connection with a transfer. However, the general principle remains largely unchanged and it is likely that TUPE 2006 will be interpreted in line with this case.

Temporary Agency Workers Bill introduced into Parliament

Last week saw the introduction of the Temporary Agency Workers (Prevention of Less Favourable Treatment) Bill into Parliament.

Backed by a coalition of the major trade unions, the Bill is intended to protect agency workers from discrimination in the workplace and provide them with the same rights as long-term and directly employed staff in a number of areas (including wages, sick pay and holiday pay).

House of Lords rebels over Corporate Manslaughter Bill

Further to our recent reports about the Corporate Manslaughter Bill, the House of Lords has recently voted in favour of permitting prosecutions for negligent deaths in police or prison custody, contrary to the wishes of the Government.

The Government had originally excluded such prosecutions from the scope of the new legislation and it has been reported that it may now threaten to abandon the legislation.

Money is the driving force for returning mothers

62% of mothers decide to return to work for purely financial reasons, according to a survey of 1,000 parents, carried out by mother@work and reported in Personnel Today. Only 13% chose to go back to work because they loved their job.

Significantly, the research also reveals that, after returning to work, 85% of mothers did not feel they were treated in the same way as colleagues without children. 9% experienced hostility or resentment from co-workers, with 7% saying that they had been passed over for promotion or not offered overtime.

Trade union reps sacrifice career

92% of union reps believe their career prospects have been hampered by their personal involvement with unions, according to a study carried out by Personnel Today and the TUC. 38% believe their career has definitely suffered and 54% believe that it possibly has.

The survey sought the views of both HR professionals and union reps. 36% of HR professionals agreed that union reps' careers may be harmed by taking on union duties. However, 57% also agreed that unions are an essential part of modern employer/employee relations, with 52% believing that unions are a 'force for good'.

CRB becomes self-funding

Fees for criminal records checks have been frozen as the CRB achieves self-funding status for the first time.

The Chief Executive of the CRB, Vince Gaskell, has said that self-funding status is a key landmark for the organisation and the CRB is continuing to meet the milestones laid out in its 5 year strategy from 2006. The disclosure fees for 2007/2008 will remain at £31 for a standard CRB check, and £36 for an enhanced CRB check.

New training prospectus for 2007/2008

With the number of employment law developments on the increase, why not download our training prospectus for 2007/2008 and take this opportunity to register for our new programme of seminars and workshops. All our forthcoming seminars and workshops are also listed on the left, enabling you to reserve your place today.

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