Employment Monthly Briefing: December 2006

New laws in force in December

The final remaining provisions of the Disability Discrimination Act 2005 will come into force on 1 December. The provisions introduce a Disability Equality Duty. This duty requires that public authorities promote equality of opportunity for disabled people; eliminate unlawful disability discrimination and disability-related harassment; promote positive attitudes towards disabled people; and encourage disabled people to participate in public life.

Any public sector organisations listed in the Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (http://www.opsi.gov.uk/si/si2005/20052966.htm) will have to produce and publish a disability equality scheme setting out how they intend to achieve the above goals.

Additionally on the 1 December, the pensions provisions contained in Schedule 2 of the Employment Equality (Age) Regulations 2006 come into force. Schedule 2 has been changed several times since a brief consultation took place in October. The most notable change is that the widespread practice of having different sections of pension schemes for those with defined contribution and defined benefit pensions will no longer require objective justification.

Age discrimination challenge referred to the ECJ

The High Court has referred a challenge to the Employment Equality (Age) Regulations 2006 to the ECJ. The National Council on Ageing has argued that provisions in the Regulations which allow forced retirement at the age of 65 and allow employers to refuse work to those over 65 contravene the EC Equal Treatment Framework Directive. They are claiming that the Government has failed to effectively implement the Directive.

Submissions from both parties will be formalised in January 2007.

ACAS Conciliation Service – 90% satisfaction rate

Acas have issued a press release reporting that Acas have received a 90% satisfaction rate for its handling of individual conciliation cases. In the year 20005/2006, 73% of potential tribunal hearing dates have been saved by its interventions.

Other findings from the survey include:

• In 2005-6, Acas conciliators worked on around 109,000 cases
• Over three quarters of these were resolved with Acas' help before reaching the tribunal stage
• 79% of those using conciliation were satisfied with the outcome of their case

The Acas helpline - 08457 47 47 47 is open from 8am to 6pm Monday to Friday.

RECENT CASES

Reference Guide:
ET = Employment Tribunal
EAT = Employment Appeal Tribunal
CA = Court of Appeal
ECJ = European Court of Justice
HL = House of Lords
EU = European Union

Agency Workers: Implied Contracts of Employment

James v Greenwich Council [2006] UKEAT 0006_06_1812

The Claimant was an agency worker who had worked for Greenwich Council for five years. She argued that an implied contract had arisen. The EAT refused her appeal and upheld the tribunal’s decision that there was no implied contract as there was no mutuality of obligation.

The EAT gave some guidance on when it is appropriate to imply a contract between worker and end-user.

• it is not appropriate to imply a contract where the end-user cannot insist on the agency supplying a particular worker
• "… we suspect that it will be a rare case where there will be evidence entitling the Tribunal to imply a contract between the worker and the end user. If any such a contract is to be inferred, there must subsequent to the relationship commencing be some words or conduct which entitle the Tribunal to conclude that the agency arrangements no longer dictate or adequately reflect how the work is actually being performed, and that the reality of the relationship is only consistent with the implication of the contract. It will be necessary to show that the worker is working not pursuant to the agency arrangements but because of mutual obligations binding worker and end user which are incompatible with those arrangements." (para 58)
• the passage of time does not justify the implication of a contract.

Stress - related Dismissal

The Royal Bank of Scotland plc v McAdie EAT/0268/06

The Claimant took sick leave because of a stress related illness, which she claimed was triggered by the intimidating conduct of one of her managers. She made a grievance about her manager’s behaviour but it was not upheld. After a period of sickness of one year, the bank dismissed her on grounds of ill health. She brought an unfair dismissal claim against the bank.

The tribunal held that the dismissal was unfair because the illness had been caused by the employer’s unreasonable behaviour and because of the way they had dealt with her grievance. The bank appealed to the EAT.

The EAT said that the question the tribunal should have asked was ‘was it reasonable for the bank to dismiss Miss McAdie, in the circumstances as they then were, including the fact that its mishandling of the situation has led to its illness?’ It was clear from medical evidence that the Claimant could not return to work and in any event did not wish to return to work. There was therefore no alternative to dismissal, and the bank’s appeal was allowed.

Statutory Grievance Procedures - Step 1 letters

HM Prison Service v Barua EAT/0387/06

The Claimant was a medical officer at a prison. In February 2005, the Prison Service reduced his pay. Consequently, he gave written notice of his resignation and during the notice period he submitted a grievance to his employer. Following a meeting between the parties, the Claimant was offered an apology and reimbursement. The Claimant did not respond to this offer and nearly six months after his employment he lodged tribunal claims for unfair constructive dismissal, breach of contract and unlawful deduction of wages.

Regulation 15 of the Employment Act 2002 (Dispute Regulations) 2004 provides that although the normal time limit for filing a tribunal claim is three months, if the Claimant submits a written statement of grievance within the normal time limit of filing a claim, the time limit is extended by another three months. The Claimant therefore contended that his grievance constituted the step 1 grievance, and that he was therefore eligible for the extension of time.

The employer argued that a step 1 grievance had not been submitted so any extension of time period did not apply. They argued that as the letter was not a valid step 1 grievance as it was sent before the employment had terminated, and it was therefore too early.

The EAT disagreed with the employer’s argument. It held that where Regulation 15 refers to a grievance being lodged within the ‘normal time limit’ for bringing a tribunal claim, the limit referred to determines the end date of the normal time limit; it is not prescribing a start date.

The EAT's decision in this case makes it clear that the statutory extension of time will apply even if the grievance was raised at a date prior to when the tribunal time limit started to run.

This note has been prepared for general guidance only and should not be used as a substitute to obtaining legal advice. It is recommended that professional advice is sought in relation to specific cases, and practical commercial telephone advice is always available from the MLM Employment team.

Seminars on employment topics of interest can also be provided. Please telephone us for further information.

MLM Solicitors ©2006

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