• Login
• Search
• Sitemap

• Home Page -
• Online Services -
• Articles & Publications -
• Employment -
• Employment Law Update - October 2006

Introduction

Redundancy Selection

To ensure compliance with statutory procedures in redundancy dismissals, an employer must provide the employee, in advance of the required meeting, with:

• the redundancy criteria used; and
• the assessment of the employee under that criteria.

In Alexander and Hatherley v Bridgen Enterprise Ltd (2006) the employer failed to provide the employees with their assessments until their fate had been decided. The EAT stated that the dismissals were automatically unfair because the employer had failed to comply with the statutory procedure under Schedule 2 Part 1 of the Employment Act 2002.

Without such information the employee would find it difficult to make representations as to whether the markings given are unjust and why. It should be noted that it is Not necessary to provide employees with the assessment of their colleagues.

Grievance Procedures and Time Limits

Where an employee brings a discrimination claim against another employee, time limits cannot be extended.

In Bisset v Martins & Castlehill (2006) the Claimant brought a race discrimination claim against her employer and the individual she claimed had discriminated against her. The claims were presented more than 3 months but less than 6 months after the discrimination allegedly took place. Following her step 1 statement of grievance, her claim against the employer was extended from 3 to 6 months.

However, in relation to her claim against her fellow employee, the EAT held that there was no extension of the time limit because the statutory grievance procedure was not intended to apply to disputes between fellow employees. Therefore, her claim was out of time.

Legislative Changes from 1 st October 2006

1. Employment Equality (Age) Regulations 2006

The Regulations are designed to implement the age discrimination strand of the European Directive on Equal Treatment, which required all EU Member States to introduce legislation prohibiting discrimination at work on the grounds of age, sexual orientation, religion and belief, and disability. Age discrimination is the final strand of "equality legislation" to be implemented.

2. Work and Families Act 2006

A number of provisions of this Act came into force on 1st October 2006 and apply to women whose expected week of childbirth (or date of adoption) falls on or after April 2007:

• Statutory maternity pay, maternity allowance and statutory adoption pay is extended from 26 weeks to 39 weeks;
• There will no longer be a small employer's (five or less employees) exemption from findings of automatic unfair dismissal where they do not allow an employee to return from additional maternity leave or additional adoption leave to the same or similar job;
• There will no longer be a qualifying period for additional maternity leave and all pregnant employees will qualify for 12 months' maternity leave, regardless of their length of service;
• An increase in the period of notice that an employee has to give to their employer when returning early from additional maternity leave or additional adoption leave from 28 days to 8 weeks;
• Provision for the statutory maternity pay or maternity allowance period to start on any day of the week, concurrent with ordinary maternity leave.
• Introduction of "keeping in touch" days, where both parties agree that an employee can return to work for up to 10 days during their leave without losing the right to leave of statutory maternity pay or statutory adoption pay.

3. National Minimum Wage

The Regulations increased:

• the adult rate (22 years and above) from £5.05 to £5.35;
• the youth rate (for workers aged 18 to 21 and those aged 22 and over doing accredited training in the first six months of employment) from £4.25 to £4.45; and
• the rate for those aged 16 to 17 will increase from £3.00 to £3.30.

4. Collective Redundancy Notification

The Trade Union and Labour Relations (Consolidation) Act 1992, will be amended to provide that an employer proposing collective redundancies must notify the Secretary of State of its proposal before it gives notice of dismissal to any of the affected employees.

Working Time Regulations Guidance Updated

The DTI has updated its guidance on the Working Time Regulations 1998 (WTR) following an ECJ decision in Commission v UK, in which it was held that the section on rest breaks in the guidance was not compliant with the Working Time Directive.

The WTR require employers to allow workers the following rest periods, unless they are exempted: 11 hours uninterrupted rest per day; 24 hours uninterrupted rest per week (or 48 hours uninterrupted rest a fortnight); and a rest break of 20 minutes when working more than 6 hours a day.

The DTI guidance used to provide that employers "must make sure that workers can take their rest periods or breaks, but are not required to ensure that they do take them". However, a complaint was made by Amicus prompting the European Commission to bring a case against the UK.

The ECJ acknowledged that employers could not force workers to take their breaks. However, it found to ensure that the rights conferred by the Directive are fully effective, member states must guarantee that the minimum requirements laid down by the Directive are observed.

Consequently, the DTI has amended the guidance so that the last part of the sentence has been removed. It now states that employers " must make sure that workers can take their rest".

The extent of an employer's liability is still unclear. The DTI does add a further statement requiring employers to check how workers working time is arranged and whether they are able to take rest breaks they are entitled to, but it does not specifically offer any guidance as to how to carry out this check.

The Advocate General stated that employers should actively see to it that an atmosphere is created in which the minimum rest periods are observed, ensure that such breaks are scheduled and ensure that workers are not under pressure to forego.

Admissible Evidence: Covert Recording of Disciplinary Hearing

In Chairman and Governors of Amwell View School v Dogherty the EAT held that an employee who covertly recorded her own disciplinary hearing could use the recording in evidence before the tribunal. However, a covert recording of private deliberations of the disciplinary panel was not admissible on grounds of public policy.

Mrs Dogherty was a teaching assistant and midday meals supervisor at the school and was dismissed in June for misconduct following an investigation and subsequent disciplinary procedure. She subsequently appealed to the governors of the school, but was unsuccessful.

As part of the disciplinary proceedings, hearings were held which were held between Mrs Dogherty and the panel of governors. Attendance was limited to those directly involved with the investigations but each meeting included a period during which the panel members deliberated in private. Minutes of the meetings were prepared by the school secretary.

Mrs Dogherty brought a claim in the tribunal for unfair dismissal based on the conduct of the disciplinary and appeal hearings. As part of her disclosure list, she included items described as "records" of the hearings. These were in fact recordings that Mrs Dogherty had made without the knowledge of the panel members.

As you would expect, the school objected to these items being included as evidence at the hearing. They objected on the grounds of inadequate prior disclosure and the clandestine nature of the recordings. The school felt there was a wider public interest, so in the interests of justice, the case should be reviewed. They appealed the tribunal's case management order on four grounds: procedural unfairness; human rights; illegality and public policy.

The EAT found that the evidence in question was relevant to the matters in dispute, Therefore, on the unfair dismissal point, the tribunal would normally be bound to admit it. Considering the grounds of appeal by the school, they found that there was no procedural unfairness because the tribunal had discretion to exercise its own proceedings.

The EAT rejected the submission that the recordings should have been excluded as they were made clandestinely because the submission was not supported by a specific authority or public policy justification. For example, the school had not suggested that the recordings were made in breach of contract or in breach of any statutory provisions, which may prohibit unauthorised recordings of proceedings or deliberations.

The EAT had to balance the public policy requirement that claims brought before a court or tribunal should be tried on all the available relevant evidence against competing public policy justifications for the exclusion of otherwise relevant evidence. The EAT commented that this case may have been decided differently had the claim involved some form of discrimination.

In practical terms, employers may wish to review their disciplinary procedures to ensure that the possibility of employees recording hearings is explicitly excluded. This will establish ground rules for the conduct of such hearings. Further, when deliberating in private, disciplinary panels might consider keeping a confidential note of any reasoning if they are concerned that allegations of discrimination may be made in the future. Whilst such a note would not form part of the minutes of the meeting, it could be produced to defend any allegations in the course of litigation.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.