Wolferstans' Employment Law Newsletter
December 2004
Guidance for tackling workplace stress
The Health & Safety Executive has recently published its guidance for employers on how to address work-related stress. This followed consultation with business organisations, unions and other bodies. The HSE research suggests that thirteen million working days per year are lost through stress related illness which costs businesses over three billion pounds. Acas have also issued a new advisory booklet to coincide with the HSE publication and it offers practical advice to employers based on the HSE standards. It is available at click here for advisory booklet
Self-employed status – the right of substitution
Employment Tribunals often have to decide whether a Claimant is genuinely an employee employed under a contract of service, because unfair dismissal claims are not available to the self-employed. It has often been said that no one factor is determinative of self-employed status and a range of issues need to be considered. However, the EAT has recently followed a previous Court of Appeal decision to the effect that the right of substitution defeats a claim that there is a contract of service (otherwise a contract of employment). A newspaper delivery driver has a clear express term in his contract that he was not required to carry out the work personally and could delegate or substitute another driver in his place. This was held to be a clear term which was inconsistent with the control required for a contract of service and the Tribunal did not therefore have jurisdiction to hear his unfair dismissal claim because he was held to be self-employed.
Information and Consultation
The Government has now published the final version of the Information and Consultation of Employees Regulations 2004. The Regulations will come into force on a phased basis and will apply to an undertaking with 150 or more employees from 6 April 2005. They will be extended to undertakings with 100 or more employees two years after that and by April 2008 the regulation will cover all undertakings with 50 or more employees. Employers will be required to inform and consult employee representatives about (amongst other things) employment prospects and decisions likely to lead to substantial changes in work, organisation or contractual relations.
Discrimination – Damages
Employees who are successful in discrimination claims are generally able to recover damages for injury to feelings. In a recent case the Inland Revenue were on the receiving end of an Order to pay compensation. The Court of Appeal upheld the Employment Tribunal’s view that it was able to make an award of aggravated damages separate from and in addition to any award of compensation for injury to feelings. This will apply where the employer’s conduct in inflicting the injury to feelings was high-handed, malicious, insulting or oppressive.
Collective Agreement
The TGWU has recently supported a claim against Rover to the Court of Appeal in connection with Collective Agreements. The case considered whether the terms of a Collective Agreement concluded between Trade Unions and management were able to comprise legally enforceable contract terms between employer and employee. In the Kaur case the employee had a Contract of Employment which was in accordance with two Collective Agreements. They made it clear that any reduction in manpower would be through natural wastage and voluntary severance and that there would be no compulsory redundancy. When she was made compulsorily redundant, the employee sought to rely on the Collective Agreement. She failed in the claim, and the Court of Appeal confirmed that Collective Agreements would not necessarily give rise to legally enforceable contract rights if they are not intended to do so, or if they are not apt to be incorporated into the Employment Contract.
Dependant’s Leave
The EAT has recently held that the right for time off under dependant’s leave does not extend to the psychological effects of bereavement. The right will extend to providing time off to make immediate arrangements, for instance to organise a funeral of a dependant, but there is no right to compassionate leave.
Compensation Limits
The annual increase in compensation limits will take effect on 1 February 2005. A week’s pay for statutory purposes will have a new maximum of £280, and the new maximum compensatory award for unfair dismissal will be £56,800.
Merry Christmas
The compliments of the season to all of our clients and friends.
If you have any questions on the above points or on employment law generally, please speak to Nick Roper, Partner on 01752 292357.