LawZONE Employment Law Newswire #7

March 14, 2002

LawZONE Employment Law Newswire #7

This newswire is provided by our sister site LawZONE

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LawZONE Employment Law Newswire – Issue 7

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12th March 2002
http://www.lawzone.co.uk

(In collaboration with Daniel Barnett, Barrister, 2 Gray’s Inn
Square Chambers)
Copyright LawZone and Daniel Barnett 2002

Editor’s Note
=============
As we have said many times the field of employment law is one of
the fastest developing areas of the english legal system, and
indeed on the international bench too, as some of the strange
cases reported in this wire bear witness. It is now over two
months since the last Employment Wire went out to our subscribers,
a source of regret to LawZONE and Daniel Barnett, its hardworking
author, but caused by reasons entirely beyond our control.

We are now faced with the task of bringing you up to date as
quickly as possible. This newswire contains reference to all the
important recent developments as well as links to other articles
with even more cases and literature which are important to you.
Make good use of it and you, your clients and your firms will
benefit greatly.

As the Employment Tribunal Survey described later shows,
solicitors play an important role in most of the employment
tribunal cases. They can only do so because of their access to
good quality information like this wire or the other great
Internet source “Emplaw.” In fact employment law is one of the
fields where Internet legal content has flourished. Daniel
Barnett is one of the leaders in this field and we greatly
appreciate his efforts as we are sure do all the thousands of
subscribers to our LawZONE Employment Law Newswire.

You have received this monthly wire because you asked for it. Do
help your colleagues to follow developments in this field too.
Spread the word and ask them to join LawZONE and subscribe for
this and all our other specialist wires. Or why not email a copy
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LawZONE is the place to be.

Steve Butler
LawZONE Newswire Editor
Solicitor
mailto:sbutler@lawzone.co.uk

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Legislation
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Disability Discrimination
————————-
The DISABILITY DISCRIMINATION (AMENDMENT) BILL has been introduced
in the House of Lords.
http://www.lawzone.co.uk/item/68655

Unfair Dismissal Awards
———————–
The government has announced the annual increase in tribunal
awards for the compensatory award and basic award for unfair
dismissal. They have effect where the ‘appropriate date’ is on or
after 1st February 2002.
http://www.lawzone.co.uk/item/69029

Part Time Workers – Amendment Proposals
—————————————
The government has announced two amendments to the PART TIME
WORKERS (PREVENTION OF LESS FAVOURABLE TREATMENT) REGULATIONS
2000. This is because one of the regulations leads to less
favourable treatment for fixed-term workers and another was
contrary to the judgment in PRESTON v WOLVERHAMPTON HEALTH
AUTHORITY reported in February 2001!
http://www.lawzone.co.uk/item/73423

Legislative Proposals / Consultation Documents
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Fixed Terms Workers
——————-
Following extensive consultation, the government has published a
second draft of the FIXED-TERM (PREVENTION OF LESS FAVOURABLE
TREATMENT) REGULATIONS 2002 and has commenced a period of further
consultation.The Regulations are designed to give effect to the EC
FIXED TERM WORKERS DIRECTIVE, which must be implemented by the
proposed date for UK compliance namely 10th July 2002.
http://www.lawzone.co.uk/item/69905

Agency Workers
————–
According to an article in the Financial Times (18/2/02), the EC
is drawing up a Directive to grant agency workers – including
‘temps’ – equal rights to pay and pensions as normal employees.
This will prevent employers offering less favourable terms to
those whom they hire using employment agencies as an intermediary.
It was not clear from the news reports whether unfair dismissal
rights will also be extended to agency workers (thus reversing
decisions such as MONTGOMERY v JOHNSON UNDERWOOD and HEWLETT-
ACKARD v O’MURPHY). However, since the ECJ has already held
unfair dismissal rights to be part of ‘pay’ for the purposes of
Article 141 (SEYMOUR-SMITH), it seems entirely possible that the
government will be compelled to extend unfair dismissal rights to
agency workers using its powers under the Employment Relations Act
1999. The draft Directive was, apparently, due to be published on
27th February. According to the FT, it has been delayed, probably
until March. To see the FT story, see:
http://news.ft.com/ft/gx.cgi/ftc?pagename=View&c=Article&cid=FT3UEOQ9TXC&live=true&tagid=IXLI0L9Z1BC.

Cases
=====

Discrimination
————–
MIRIKI v GENERAL COUNCIL OF THE BAR.
The Court of Appeal held that it was inappropriate for the EAT to
allow arguments on wider grounds than those permitted at a
preliminary hearing, subject to the EAT’s case management powers
to make limited departures from those grounds (which did not
happen). Whilst obiter, of significant importance is the Court
of Appeal’s further departure from the Court of Appeal’s
controversial decision in ANYA v UNIVERSITY OF OXFORD.
http://www.lawzone.co.uk/item/67403

BENNETT v LONDON BOROUGH OF SOUTHWARK
The Court of Appeal has handed down its decision. Its flavour can
best be gleaned from the opening words of Ward LJ, namely “This
case fills me with despair” or the conclusion of Sedley LJ, namely
the case is “both inexorable and deeply depressing”.
http://www.lawzone.co.uk/item/73084

Disability Discrimination
————————-
MORGAN v STAFFORDSHIRE UNIVERSITY
This contains practical guidance from the EAT about evidence
required to prove mental impairment under the DISABILITY
DISCRIMINATION ACT 1995.
http://www.lawzone.co.uk/item/68304

BERRY v GB ELECTRONICS LTD
A profoundly deaf employee was one of many who attended a meeting
where they were dismissed due to redundancy. He did not follow
what was going on and should have been given individual attention
because of his disability.
http://www.lawzone.co.uk/item/70737

IR35 – Employment Status
————————
PROFESSIONAL CONTRACTORS’ GROUP v INLAND REVENUE.
This widely reported, contentious and ultimately disappointing
case held IR35 to be lawful as not being anti-competitive or
inhibiting freedom of movement, and refused to refer the matter to
the ECJ.
http://www.lawzone.co.uk/item/67436

Remedies
——–
HODES v MARKS & SPENCERS
The Applicant had to give credit for a discretionary retirement
package of 151,000 GBP.
http://www.lawzone.co.uk/item/68010

TAYLOR v BARKLAND (UK) LTD
When awarding future losses of earnings, a tribunal must state the
reason for the period it selects.
http://www.lawzone.co.uk/item/68010

NETHERCOATS (PROJECTS) LIMITED v SMITH
The EAT held that it was an error of law for the tribunal to
proceed without formally determining the effective date of
termination where this affected whether the compensatory award was
12,000 GBP or 50,000 GBP.
http://www.lawzone.co.uk/item/70737

CHIEF CONSTABLE OF WEST YORKSHIRE POLICE v VENTO
The saga continues. After succeeding on liability (following a
well-known appeal), Mrs Vento has lost on quantum following a
further appeal by the Police. Enormous sums were reduced
considerably partly because the tribunal had given inadequate
reasons for departing from statistical evidence as to the
implausibility of a woman remaining in the West Yorkshire Police
Force.
http://www.lawzone.co.uk/item/68010

PROCEDURAL MATTERS
==================

Costs
—–
BESTWAYS v MOFFATT
The EAT awarded costs against a party who withdrew an appeal a few
days before the hearing even while rejecting the argument that
lodging an appeal with a view to negotiating a settlement is
itself unreasonable or vexatious conduct.
http://www.lawzone.co.uk/item/68010

Bias
—-
LAWAL v NORTHERN SPIRIT LTD.
The EAT resolved that there is no bias if an EAT lay member who
has sat with a part-time QC in his/her capacity as presiding
judge, then sits in a case where that presiding judge appears as
Counsel.
http://www.lawzone.co.uk/item/70737

Equal Pay Act Pension Claims
—————————-
QUIRK v BURTON HOSPITAL NHS TRUST
The Court of Appeal upholds the distinction in the approach to men
and women in some occupational pension schemes.
http://www.lawzone.co.uk/item/72115

Employment Tribunal Survey
==========================

The DTI has published an extensive report as a result of a survey
of tribunal users in 2,700 cases.

Some examples of the findings were as follows:
solicitors were consulted (for advice, albeit not
necessarily representation) by 63% of employers and 49% of
employees;
62% of employees who settled their cases said they
definitely or probably would not have settled without ACAS
involvement.

Perhaps most interestingly, public sector employees:
bring over double the number of discrimination claims as
private sector employees;
are more likely to withdraw their cases;
are less likely to settle their cases (one might speculate
that is because of the employer’s approach); and,
are less likely to succeed at a full hearing that a private
sector employee.
For more details see:
http://www.lawzone.co.uk/item/73640

Strange But True!!!!!
=====================

A New Zealand case about an allegedly possessed woman who was
required to receive a religious blessing; the discontinuance of ‘fire walking’
from its management conferences by Kentucky Fried Chicken in
Australia, and the treatment given by Virgin Trains to a woman said to be
too heavy for work on their trains.
http://www.lawzone.co.uk/item/74535

If there are any issues you want covered in the LawZONE Employment
Law Newswire, contact me:

Daniel Barnett
mailto:mail@danielbarnett.co.uk
http://www.danielbarnett.co.uk

To buy books by Daniel Barnett go to:
http://www.lawzone.co.uk/blackwells/ – for free delivery

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DANIEL BARNETT is a barrister specialising in employment law,
practising from 2 Gray`s Inn Square Chambers. He writes and
lectures extensively on employment law matters and is the author
of `Avoiding Unfair Dismissal Claims` (Wiley, 1999) and co author
of `Handbook on Employment Law` (Law Society Publishing). He has
been interviewed on employment law matters in the national press,
on radio and on television. He is on the editorial committee of
`ELA Briefing` (IDS) and `Employment Lawyer` (Sweet & Maxwell).

Please note that as a barrister, Daniel Barnett may only give
advice to a particular person on a specific matter if instructed
to do so by a solicitor, a member of a recognised professional
body approved by the Bar Council for the purpose of direct
professional access work, or a BarDIRECT client.

http://www.danielbarnett.co.uk
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