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Employment Law Newswire Issue No. 2


Lawzone Employment Law Newswire Issue No. 2
12th March 2001
(In collaboration with Daniel Barnett,
barrister, 2 Gray’s Inn Square chambers)
Copyright LawZone and Daniel Barnett 2001

Editor’s Note

This is the second specialist employment law
bulletin. The first was very well received
and we have had many subscription

Probably the most important decision
reported since the last Newswire is the
House of Lords decision in PRESTON V
February 2001). Already this has resulted
in letters going out to the many
Applicants whose cases had been on hold for
years, often giving only 28 days to show
cause why their Application should not be
struck out. Daniel gives information about
this and the all important link to help you
to read the full text of the decision.

Remember this is a FREE service and is
designed to provide wide ranging topical
information for you.

All you need to do to get the benefit of the
service regularly without fuss, is to

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Update your User Profile (always a good
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Many thanks to Daniel for his hard work.

If anyone has any comments please send to

Mark Butler


Can a Controlling Shareholder be an `Employee`?
(2nd February 2001), the Court of Appeal has
produced guidance on when controlling
shareholders can be `employees` for the
purpose of unfair dismissal and redundancy

236 Year old Wages Act Claim
The GMB has brought a claim dating from 1765
for a one farthing Xmas bonus on behalf of
the four remaining gas lamp lighters
who light lamps outside Buckingham Palace
and in the royal parks. One farthing is
worth 16.32 pounds at today`s prices.
Source: Metro, 7th February 2001, p7

Increase in Deposits for Weak Claims
The Employment Tribunals (Increase of
Maximum Deposit) Regulations 2001, which
came into force on 23rd February 2001,
increase the power for tribunals to order
Applicants to pay a deposit from 150 pounds
to 500 pounds for claims which have no
reasonable prospect of success.

140,000 Pounds for Transsexual Doctor
A transsexual Harley Street hypnotherapist
and psychotherapist was awarded 140,000
pounds compensation on 8th February 2001.
The National School of Hypnosis and
Advanced Psychotherapy had blocked her
access to the NHS Patients` Register after
learning that she had been born a man.
Source: Metro, 9th February 2001, p4

Holiday Entitlement Period Unlawful
13 Week Qualification Period for Paid
Holiday Entitlement unlawful (probably)
The Advocate General has given his opinion
in BECTU v UK, stating that the 13 week
qualifying period for paid holiday
entitlement under the Working Time
Regulations is contrary to the EC Working
Time Directive. The full court is likely
to give judgment in April.

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Job Sharing
An employment tribunal has ruled that a
headmistress whose application to job share
after giving birth was turned down, was
unlawfully discriminated against by Devon
County Council. It held that it was unfair
and unreasonable to expect her to work five
days a week whilst feeding her baby. The
parties settled the issue of remedies.
Source: Daily Telegraph, 10th February 2001,

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, forthcoming). 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` (Sweet &
Maxwell) and `Employment Lawyer`

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.

Text Sacking
Text Sacking A novel method of dismissing
employees has been used by a glass
manufacturing company. The employer sent
the employee a text message on her mobile
phone telling her not to come into work the
following day. When the employer failed to
make any further contact, she visited the
offices to be told she had been dismissed.
Source: The Sun, 28th February 2001, p14

Part Time Workers : Pension Ruling
The House of Lords has confirmed the ECJ`s
HEALTH AUTHORITY (9th February 2001).
It held that:
(1) the 6 month time limit for
bringing a claim for backdated
pensions under the Equal Pay Act 1970
was lawful (under EPA 1970, s2(4), a
claim must be brought within 6 months
of the end of employment); but,
(2) the 2 year backdating limitation
EPA 1970, s2(5)) was not compatible
with Article 119, and thus part time
pensioners would be entitled to back
date their pension claims to 8th April
1976 (the date of the ECJ`s decision
in an earlier case, DEFRENNE v SABENA,
when it was held that Article 119 had
direct effect).

Age Discrimination
On 15th February 2001, the government
confirmed that it intended to introduce
legislation to tackle age discrimination at
This is pursuant to the EC Equal Treatment
Framework Directive that requires all
member states to prohibit age
discrimination in employment by December
2006 (see bulletin 5/12/00).
An `Age Advisory Group` was also announced,
which has been set up to advise the
government. The first step, after the
Group`s initial report, will to be embark
on a wide consultation procedure
to determine the scope of legislation. The
government has postulated that such
legislation might include outlawing
internal corporate retirement ages if they
are lower than the state retirement age.

Email Pornography
An employment tribunal has upheld a claim of
unfair dismissal and sex discrimination
after a female worker was dismissed when
she refused to sign a long term employment
contract. The employer sent her over 100
hardcore pornographic pictures by
Email over the course of a year, despite
being asked to desist, and spread a rumour
hat she was homosexual.
Source: The Sun, 9th February and 3rd March

Compromise Agreements
On 1st March 2001 the House of Lords handed
down an important, albeit controversial,
ruling on the interpretation of compromise

In BCCI v ALI & KHAN, the employees signed a
compromise agreement foregoing all claims
against BCCI in exchange for a lump sum
payment. The House of Lords held that this
could not be interpreted literally, as the
employees could not have intended to
exclude claims they had not known existed,
such as claims for stigma damages.

Beards at Work
An employment tribunal has ruled that food
retailers are justified in refusing to
employ men who wear beards. Although
imposing such a rule amounts to indirect
discrimination against men, the rule can be
justified on hygiene grounds. Waitrose
(the Respondent) commented afterwards that
it did not discriminate on grounds of
gender, since it might also have refused to
offer a job to a bearded lady!
Source: The Times, 5th March 2001, p1

DISCLAIMER: The information and any
commentary on the law contained in this
bulletin is provided free of charge for
information purposes only. Every reasonable
effort is made to make the information and
commentary accurate and up to date, but no
responsibility for its accuracy and
correctness, or for any consequences of
relying on it, is assumed by Daniel Barnett
or Sift Limited. The information and
commentary does not, and is not intended
to, amount to legal advice to any person on
a specific case or matter. You are strongly
advised to obtain specific, personal advice
from a lawyer about your case or matter and
not to rely on the information or comments
in this bulletin or, if you are a
solicitor, you should check the accuracy of
the information yourself, or seek advice
from Counsel on a formal basis. This
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