JANUARY EMPLOYMENT LAW BULLETIN
Welcome to the Gill Akaster Monthly Employment Bulletin - January 2007
| This Month... |
| Reform of Procedures |
| Equality Act |
| Age Challenge |
| Temps Confusion |
| Judge Not |
| Featured Links |
| DTI Reform Proposals |
| CEHR |
| Heyday legal challenge |
2006 and all that
This month, as 2006 recedes swiftly from view, we look ahead to what is over the horizon, and carry out our normal round up of the latest developments.
If we indulge in a brief backward glance, it is heart-warming to note that the pace of change in employment law has slowed up. The employment landscape has been reshaped in recent years, principally since the change of government in 1997, and now those reforms are now running out of steam. With the introduction of the age discrimination regulations in October, the last milestone on road of Euro-reform has been passed, and from here onwards the emphasis appears to be on refining and adapting the existing rules.
In the last year the main areas of change, apart from Age, have been the new TUPE Regulations, which clarified much existing law, and the Equality Act 2006 (see below) which will provide a single body to oversee the anti-discrimination legislation, replacing the Equal Opportunities Commission, Commission for Racial Equality and Disability Rights Commission. From the employer's point of view, these last two are fairly small potatoes.
Age Discrimination is the one sizeable root vegetable in the rather small sack, although it has not (to work this metaphor to death) yet proven big enough for a square meal. Hungry Employment Lawyers everywhere continue to drum their fingers expectantly. Perhaps there is some diffidence about playing the Age card? We remind ourselves that in Ireland it now amounts to 20% of all claims, and so confidently expect better pickings this year.
More detail below on all this, and as usual, if you have been forwarded this by chance, and wish to sign up for future editions, let us know via subscribe@gillakaster.com and if you have a bone to pick with any item, contact Eoin Fowell
Reform of Statutory Procedures
Throughout 2006 there have been rumbles of dissatisfaction about the operation of the Statutory Dismissal and Grievance Procedures. These were introduced on 1st October 2004 and have given rise to a considerable amount of judicial attention, not all of it complimentary. Mr Justice Underhill recently described the Grievance Provisions as “rebarbative” , a phrase we found in the dictionary to mean “causing annoyance, irritation, or aversion; repellent.” Strong words indeed.
Equality Act 2006
This has been rather long in the pipeline. We have deferred it until now, as its effects are still some way off, but the New Year seems an apposite time.
The Royal Assent was given in February 2006, but the headline provision - the amalgamation of the Equal Opportunities Commission, Commission for Racial Equality and Disability Rights Commission, will not take place until October 2007. The new body will be the Commission for Equality and Human Rights (CEHR). Its avowed purpose is couched in very general terms, and as might be imagined it is broadly in favour of human rights and opposed to discrimination.
Age law challenge goes to Europe
Despite the wide and careful consultation, the lengthy notice and the pan-European nature of the recent age discrimination regulations, some of it may be susceptible to legal challenge.
Temps Confusion
The law relating to when and in what circumstances long term temps fall to be regarded as employees has been in a state of confusion for the last few years. The latest development goes a long way to restoring the previous understanding that a temp, supplied by an agency, is generally neither an employee of the company in which they work, or of the agency which supplies them.
Judge Not
We conclude 2006 with an entirely unnecessary look at some of the more outlandish incidents to affect the legal profession over the year. All of them are furnished by the US, who make our legal system look rather dull. Some of the scenes described are of an adult and distressing nature.
Reform of Procedures
At the beginning of May ACAS issued a discussion paper setting out its views on these new procedures. They were unflattering. They found that 10% of submitted claims had been rejected by the Tribunal at the pre-acceptance stage and that less than half of the rejected claims had been re-submitted, and so they felt many people had been put off bringing legitimate claims. They also felt that the fixed consolidation period was unhelpful as few parties were willing to resolve their differences at an early stage.
Many legal practitioners have taken the view that the new procedures introduce an unwelcome degree of complexity into the work place with lawyers becoming involved at a much earlier stage. There is also a widespread feeling that, as was anticipated, much attention is now focused on complying with the statutory procedures at the expense of the broader requirements of fairness set out in the ACAS Code of Practice.
In October last year, Alistair Darling, the Secretary of State for Trade and Industry, acknowledged to a DTI select committee that the DTI should not be “too proud” to admit if they got the procedures wrong.
This acknowledgement came two years after the rules came into effect and the Government’s stated intention was always to review the procedures after that period.
On 21st December last year, Alistair Darling appointed a panel of business and employment law experts to advise generally on ways to simplify employment law without, he insists, diluting employee or Union rights. This announcement coincided with the publication of the DTI Simplification Plan (available here) which summarises the intended simplification measures. This includes a Dispute Resolution review to report in the Spring 2007. Needless to say, we shall watch this closely and keep you posted during 2007.
More particularly, the CEHR has certain specific duties:
promoting the understanding of the importance of equality and diversity
encouraging good practice in relation to human rights
promoting understanding of the importance of good relations between members of different groups, and
monitoring the effectiveness of "equality and human rights enactments" and providing advice and recommendations on the law.
To these ends it has a range of powers which may readily be imagined, including making grants to other bodies, issuing advice, Codes of Practice and conducting inquiries. Its powers of enforcement follow those open to the Disability Rights Commission at present, but here and there are more extensive.
These can be quite intrusive. It will be able to carry out investigations into whether or not an unlawful act has been committed; require the offending body to produce an action plan to avoid repetition; issue notices to comply, on pain of criminal sanctions; and for repeat offenders issue injunctions to restrain further breaches. It may also intervene in relevant court cases, assist individuals in bringing their own cases, and bring legal proceedings to ban discriminatory advertising.
For the Public Sector there are additional responsibilities. It will be responsible for enforcing the race equality duty, which was introduced as long ago as 2000, the rather newer gender equality duty, which we reported on in January 2006, and the disability equality duty introduced by the Disability Discrimination Act 2005.
These new duties place a considerable burden on public bodies to ensure that it does not discriminate. As an example, the gender equality duty requires each body to write a "gender equality" plan about how they will make sure that men and women are treated equally, consult with staff about what they think of the plan, publish it, review it each year, and write an annual report. They must also produce an equal pay plan, setting out how to tackle unequal pay - which is a considerable headache in local authorities - and covering such aspects as making sure men and women have the same chances in training and promotion and so on, and then review the plan every 3 years. Finally, they must carry out a gender impact assessment, involving consideration of the effect of legislation on that particular body, more consultation with staff and a published report.
All of this inevitably leads to a burgeoning need for more and more HR staff in local authorities and elsewhere.
This small legal snowball began rolling earlier in 2006, and we did not see fit to alarm you till now, but it may still grow and grow.
The challenge is brought by an organisation called Heyday, anti-ageism campaigners backed by Age Concern, who object to the new retirement provisions. They say that the regulations contravene the European Equal Treatment Framework Directive because people over 65 are left without the right or choice to work. The over 65’s, they say, are effectively second-class citizens because they have no protection against discriminatory decisions to retire them.
The government is contesting the case and maintains it has fully and properly implemented the Directive and has already promised to review the mandatory retirement age in five years.
The case has now been referred to the European Court of Justice for a decision, and various submissions will be presented to the judge this month, and we hope to report more next time.
The rot set in to the orthodox position with the 2004 case of Mrs Dacas, who was supplied by an employment agency to Wandsworth Borough Council for several years. The Court of Appeal decided that in a situation like this the reality of the matter was that she was effectively employed by the Council and were prepared to imply a contract of employment to that effect. One of the judges concerned advanced the view that this would be the case even after, say, a year’s employment. There was quite some dismay at this decision but the Court of Appeal restated the position last year, emphasising that an Employment Tribunal should in every such case consider the possibility of an implied contract of employment. Little guidance, however, was provided as to how they should go about this task. What factors should they consider? How long must a temp work in a particular company before they became an employee, and will length of service by itself suffice?
These questions have now received fairly short shrift from the Employment Appeal Tribunal in a case involving another lady (Ms James) working at a London Council (this time Greenwich).
The case was heard by the President of the Employment Appeal Tribunals, Mr. Justice Elias. His starting position was that it was not appropriate to imply a contract where the end user (Greenwich Council) cannot insist on the agency supplying a particular worker.
He went on to lay down that where the contractual arrangements between the end user and the agency are genuine and accurately represent the relationship between the parties, as it likely to be the case where there is no pre-existing contract between the temp and the end user, then it will be a rare case in which the Tribunal should be entitled to imply a contract of employment.
Furthermore, there must be some other words or conduct to persuade the Tribunal to conclude that the agency arrangements no longer accurately reflect how the work is being performed and that the reality of the relationship is only consistent with the implication of the contract.
In a final flourish, Mr Elias added that the passage of time by itself does not justify the implication of a contract of employment.
All this may seem eminent good sense but unfortunately the Court of Appeal is the more senior body. The present situation is therefore that Tribunals must assess whether a contract of employment exists but it will only be able to do so in very rare circumstances. Whether the Court of Appeal is satisfied with this statement of the position remains to be seen and we expect further appeals to follow.
To begin with, in Pierce County, Washington, Judge Beverly G. Grant came to notoriety when she surprised the court by leading them in a Super Bowl cheer ("Go Seahawks") before going on to sentence a defendant to 13 1/2 years in prison for a fatal shooting. She issued an apology to the victim's family, prosecutors and others in the court, explaining that she was just trying to ease tensions.
Judge William A. Carter of New York was censured over two courtroom incidents. The Commission on Judicial Conduct ’s reported that he left the bench, “threw off his glasses and judicial robes” and confronted a defendant who had denounced the court proceedings, asking, “You want a piece of me?” (Judge Carter had recently been in the headlines when he sentenced a State Senator, Ada L. Smith, to anger management classes.)
In Oklahoma, Judge Donald D. Thompson was convicted by a jury on four counts of indecent exposure by surreptitiously using a penis pump in Creek County Court while sitting as a judge hearing trials in 2002 and 2003. “In 20-20 hindsight, I should have thrown it away,” he said.
Judge Florentino V. Floro Jr, was sacked by the Supreme Court of the Philippines because of a “medically disabling condition of the mind” that rendered him “unfit to discharge the functions of his office.” This unfitness revealed itself in a number of ways, such as changing from blue court robes to black each Friday “to recharge his psychic powers” as “the No 5 psychic in the country”; and for claiming to have the assistance of “three dwarf friends named Luis, Armand and Angel”, who, unseen by others, provided him with assistance in court.
On a more positive note, Judge Gregory A. Presnell, of Orlando, Florida distinguished himself in handling an insurance dispute where the lawyers (whose offices were in the same building, four floors apart) were unable to agree where to hold a deposition. The judge ordered them to report outside the federal courthouse to play one game of Rock, Paper, Scissors, with the winner to decide the location of the deposition. We applaud him.
To unsubscribe from our mailing list simply click here and send the e-mail
Should you decide to renew your subscription you can do so by e-mailing the word 'Employment' to: subscribe@gillakaster.com or by contacting our Employment Team on: 01752 203516.
