Wolferstans' Employment Law Newsletter
April 2005
Maternity Leave and Flexible Working
The DTI has published a consultation paper on its proposals for longer paid statutory maternity leave and also an extension of parents' rights to request flexible working. The main proposals are to extend maternity pay and adoption pay from six months to nine months by April 2007, with a subsequent goal of a year's paid leave. Mothers will have a new right to transfer a proportion of their maternity leave and pay to fathers. Consultation closes on 25 May 2005.
Equalities Review
The Government has announced a “root and branch” review to investigate the causes of discrimination and inequality in British society. The Government has established an equalities review and a discrimination law review which will support the development of a single equality commission and the creation of a single Equality Act. The equalities review is to report by the summer of 2006.
Race and Sex Discrimination - Burden of Proof
The Court of Appeal has given an important decision relating to the burden of proof in discrimination cases. The correct approach for the tribunal to take is a two stage process. In the first place the onus is on the Claimant to prove the existence of facts from which the Tribunal could, in the absence of an adequate explanation, conclude that the Respondent has committed an unlawful act of discrimination. If the Claimant succeeds in this test on the balance of probabilities, the Tribunal must then move to the second stage. It is then for the Respondent to prove that he did not commit, or is not to be treated as having committed, the unlawful act.
Unfair Dismissal - Compensation
Employees generally have to give credit for alternative earnings received during the period for which they seek compensation. However, there is an exception to this as confirmed in a recent case, where an Employee was unfairly dismissed without notice. It is good industrial relations to give notice, and an employee was not required to give credit for earnings received in his new employment during the period covered by notice pay which had been paid by the former employer.
Employers' Liability for Stress Claims
The Court of Appeal has recently ruled on a number of joint appeals relating to stress at work cases. The employee will have to prove in all cases that the damage suffered was not too remote. The test is whether the injury to the particular employee was reasonably foreseeable in the light of what the employer knew, or ought to have known, on the facts of a particular case. In another Court of Appeal decision an employee who was being bullied, intimidated and harassed by his departmental manager was allowed to bring a claim against his employer under the Protection from Harassment Act 1997 even though this legislation attaches to an individual. This is an extension of the concept of vicarious liability under which employers are liable for the actions of their employees. This therefore affords employees a possible route for a claim which does not require them to demonstrate that any stress related injury they may have suffered was sufficiently foreseeable by the employer.
New TUPE Regulations
The DTI has now published its final consultation and draft new Regulations on TUPE. These new draft Regulations make it clear that TUPE will apply in service contracting situations such as cleaning, security and maintenance services and will make the transfer process more transparent by requiring the original transferor employer to notify the new transferee employer of any employment liabilities. It will also clarify the circumstances under which employers can make transfer related dismissals and agree transfer related changes to employment terms and conditions. They will also produce more flexibility in the application of TUPE to insolvency dismissals.
TUPE Transfers and Pension Benefits
Pension Benefits were originally excluded from the rights which pass with employees under TUPE transfers. With effect from 6 April 2005 the position has changed and employees who were members of an occupational pension scheme before the TUPE transfer will be entitled to have a scheme provided by the transferee employer. The transferee will be free to choose the type of scheme he wants to provide for the transferred employees.
Disability Discrimination Act
The new Disability Discrimination Act 2005 has now received royal assent. The main provisions of the new Act are the removal of the requirement that a mental illness must be clinically well recognised; the inclusion of people with HIV, cancer or MS as being disabled from the point of diagnosis; a positive duty on public bodies to promote equality of opportunity for disabled people; and an extension of the DDA to functions of public authorities.
Electronic Presentation of Tribunal Application
The Employment Appeal Tribunal has upheld a Tribunal decision that electronic submission of the Employment Tribunal application form does not constitute presentation for the purposes of the rules. A Claimant had completed the electronic application form on the last day of submission within the appropriate time limit and pressed the "submit" button. There was no record of it ever having been received at the Tribunal Office and the EAT confirmed that the application was never actually presented.
If you have any questions on the above points or on employment law generally, please speak to Nick Roper, Partner on 01752 292357.