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Thompsons SolicitorsLabour&EuropeanLaw ReviewISSUE 99 APRIL 2005


in the newsiEQUALITY BILLThe Government has announced, as part of a newEquality Bill, that it will set up a single Commissionfor Equality and Human Rights (CEHR) in October2007. The purpose of the Bill is to:■ establish the CEHR and to define its purpose and functions■ make unlawful discrimination on the grounds of religion or beliefin the provision of goods, facilities, services, premises, educationand the exercise of public functions■ create a duty on public authorities to promote equality ofopportunity between men and women (the gender duty) and toprohibit sex discrimination in the exercise of public functions.For more information: www.gnn.gov.uk/environment/dtiNEWS IN BRIEFINDUSTRIAL ACTION BALLOTSA consultation document has been published by the Department of Tradeand Industry on revising the code of practice governing industrial actionballots and employer notices. This gives practical guidance to trade unionsand employers on how to apply the relevant law. The consultation ends 3June. See: www.dti.gov.uk/er/union/iab_consultation.pdfWOMEN AND WORK REPORTThe Women and Work Commission, set up by the Prime Minister lastyear to examine the problem of the gender pay gap and other issuesaffecting women's employment, has produced an interim report. “AFair Deal for women in the Workplace” was published on 8 Marchand can be found at:www.womenandequalityunit.gov.uk/women_work_commission/index.htmUNION GENDER GAP CLOSESAccording to a recent TUC report ”A woman’s place is in a union”, theproportion of working women in trade unions is now 29.3 per centcompared to 29.4 per cent among working men. Younger women, inparticular, are more likely to join unions than men. The report showsthat unionised workplaces are more likely than non-union workplacesto have equal opportunity policies, offer access to parental leave,provide financial help with childcare, monitor promotions, and paywomen more. See www.tuc.org.uk/equality/tuc-9509-f0.cfmMINIMUM WAGE INCREASEThe Department of Trade and Industry recently announced increases tothe national minimum wage. It will increase from £4.85 per hour foradults over 21 to £5.05 in October. This will rise to £5.35 in October2006. The youth rate – for those between 18 and 21 – will increase to£4.25 per hour in October 2005 and £4.45 in October 2006.MATERNITYCONSULTATIONDOCUMENTWorking mothers are to be offered an extrathree months’ paid maternity leave under planspublished recently in a consultation documentby Trade and Industry Secretary Patricia Hewitt.The Government proposes to:■ extend maternity and adoption pay from six to nine monthsby April 2007 with the goal of a year's paid leave by theend of the next Parliament■ introduce a new right for mothers to transfer a proportionof their maternity leave and pay to fathers in the first year■ consider extending the right to request flexible workinghours to carers of adults and parents of older childrenTo access the consultation paper “Work and families: choiceand flexibility”, go to: www.dti.gov.uk/workandfamilies. Theclosing date for responses is 25 May.EQUAL TREATMENTCONSULTATIONNew proposals to crack down on discriminationin the workplace have been published in aconsultation document by Jacqui Smith, deputyWomen and Equality Minister.The proposals would implement the amended Equal TreatmentDirective, due to come into force on 5 October.The document entitled “Equality and Diversity: Updating the SexDiscrimination Act”, sets out proposals to include discriminationagainst pregnancy and maternity leave in the Sex DiscriminationAct (SDA).It would also outlaw sexual harassment in employment andvocational training and update the definition of indirectdiscrimination in the SDA.The consultation will close on 31 May. To access the consultationdocument and draft regulations, go to:www.womenandequalityunit.gov.uk/legislation/index.htm2 IN THE NEWS THOMPSONS SOLICITORS Labour&European Law Review


in the newsNew legislationThe Department of Trade and Industry haspublished a list of legislation that comes intoeffect on 6 April, including:■ implementation of a number of sections of theEmployment Relations Act 2004 (see LELR 95)■ amendments to fees charged by the Certification Officer tolist trade unions and employers and register their mergersand amalgamations■ implementation of the Information and Consultation ofEmployee Regulations for employers with more than 150employees.Changes to take effect on 1 October include:■ implementation of the amended equal treatment directive,updating the Sex Discrimination and Equal Pay Acts■ implementation regulations amending procedures for tradeunion recognition and de-recognition■ revision of the TUPE regulations to reflect amendments tothe Acquired Rights Directive and to provide clarity tocontracting-out situations■ implementation of the Employment Relations Act,changing the requirements to industrial action notices.For more details: www.dti.gov.uk/ewt/common_comence.pdfAvoiding the questionIt is well established that tribunals can draw adverseinferences from an employer’s evasive reply (orfailure to reply) to questions posed in a statutoryquestionnaire.The employment appeal tribunal (EAT) has now decided in the caseof Dattani -v- Chief Constable of West Mercia Police that the sameprinciple applies to questions not asked under the statutory procedure.The appeal tribunal justified its decision on two grounds. It said,first of all, that under section 65 of the Race Relations Act whichrefers to the questionnaire procedure, the person submitting it canchoose whether to use a prescribed form or not.Secondly, it said that all employers should be treated the same way,whether or not the questions have been asked under the statutoryprocedure. So if an employer is asked a direct question in writing by apotential claimant and fails to respond, or gives an evasive answer heor she can expect a tribunal to draw an adverse inference.ReasonablyadjustableIn Williams -v- J Walter Thompson Group Ltd, a woman who wastotally blind started work as a computer softwareoperator in September 1999.However, the employer then failed to make any reasonableadjustments to accommodate her needs over the next two yearsuntil she resigned in October 2001. She claimed constructivedismissal and cited eleven incidents of disability discrimination,eight of them direct.Not surprisingly, the Court of Appeal said that the employercould not justify this failure, and made a finding of disabilitydiscrimination. The court said that it was significant that whenJWT employed Ms Williams, it was already aware of her disabilityand knew that adjustments would have to be made.Employment continuityIn an interesting case, the employment appealtribunal (EAT) has decided that an employerand employee can agree on whether certaingaps in employment constitute continuity forthe purposes of section 212 of the EmploymentRights Act 1996.In London Probation Board -v- Kirkpatrick, the employerdismissed Mr Kirkpatrick, then upheld his appeal againstdismissal, only to renege on that promise a month later andrestore the original dismissal.That meant the employee was out of time to bring aclaim based on the first dismissal. The employer arguedthat if he was reinstated, his continuity of employment wasbroken with the result that he did not have one year’scontinuous employment.The EAT decided in Mr Kirkpatrick’s favour. It said that itwas open to the parties to reach an arrangement aboutwhether certain gaps from work could count towardscontinuity; that a “reinstatement” would count as suchan arrangement; and that the arrangement (even if madeafter the gap occurs) would still count towards continuityof employment.THOMPSONS SOLICITORS Labour&European Law Review IN THE NEWS 3


Webster -v- Brunel University and other casesSHIFTINGBURDENIn discrimination cases,the law says that theinterpret and apply the shiftingburden of proof in race and sexMs Emokpae’s favour and theEAT agreed.REVISED GUIDANCEThe Court of Appeal alsoclaimant has to identifydirect discrimination cases. TheThe Court of Appealrevised the guidance in Bartonfacts from which asame principle also applies toconcluded that the tribunal hadas follows, to establish a two-tribunal could concludedisability, sexual orientationfailed to establish the factsstage testthat there has beenunlawful discrimination,in the absence of anadequate explanation.The burden of proof then shiftsto the employer to proveand religious and beliefdiscrimination cases.WHAT DID THECOURTS DECIDE?Wong -v- Igen Ltd: Ms Wongfrom which it could haveconcluded there had been anunlawful act of discrimination.The case therefore failed at thefirst stage.Webster -v- BrunelStage one:1. The claimant has to prove, onthe balance of probabilities,facts from which the tribunalcould conclude, in theabsence of an adequateotherwise. If the (non-(who was of African-CaribbeanUniversity: Ms Webster (whoexplanation, that thediscriminatory) explanation is notorigin) was employed by Leedswas of Asian origin) was havingrespondent has committed anadequate, the tribunal has toCareers Guidance. Shea telephone conversation withunlawful act of discrimination.find the discrimination proven.complained of raceanother employee when she2. At this stage a tribunal shouldThe Court of Appeal has nowdiscrimination, harassment andheard someone else in theconsider what inferencesconfirmed – in Wong -v-Igen Ltdvictimisation. The tribunalbackground use the term “Paki”.could be drawn from them,and ors, Emokpae -v-Chamberlindismissed two of her claims, butIt was not clear whether thatand must assume that there isSolicitors and anor, and Websterheld that it could inferperson was an employee.no adequate explanation forand ors -v- Brunel University –discrimination in the absence ofThe tribunal said that she hadthem. It must not take thethat the shifting burden ofproof requires tribunals toadopt a two-stage approach.an adequate explanation for herthird claim. The employmentappeal tribunal (EAT) dismissednot established facts fromwhich it could conclude thatthere had been discrimination.employer’s explanation intoaccount at this stage.Stage two:It also approved andthe employer’s appeal, and theThe EAT disagreed, but the3. If the claimant has provedstrengthened the guidelinesissued in Barton -v- Investecappeal court agreed.Emokpae -v- ChamberlinCourt of Appeal agreed withthe employment tribunal. It saidfacts from which conclusionscould be drawn that theSecurities Ltd (2003, ICR1205).Thompsons were instructed inSolicitors: Ms. Emokpae (aNigerian) claimed she had beendismissed because of rumoursthat she had to show, on thebalance of probabilities, thatthe respondent had done therespondent has treated theclaimant less favourably,then the burden of proofthe Webster case by the AUT.WHAT WAS THECENTRAL ISSUE?Although the facts in theseconjoined appeals were verythat she was having arelationship with the officemanager. She argued thiswould not have happened hadshe been a man. Again, thetribunal went through a two-unlawful act.It was not enough, as the EAThad suggested, that there was apossibility that the unlawful actwas done by the respondent. Itwas for Ms Webster to showmoves to the respondent.4. It is then for the respondentto prove, on the balance ofprobabilities that thetreatment was in no sensewhatsoever on the grounds ofdifferent, they all raisedquestions about how tostage process, relying on theBarton guidance. It found inthat the alleged discriminatorhad treated her less favourably.race, sex, disability, religion orbelief or sexual orientation.4 EDITORIAL THOMPSONS SOLICITORS Labour&European Law Review


Robertson -v- DEFRAPAYUPThe legal principleunderpinning equal payis a simple one – thatmen and women shouldreceive equal pay forequal work or work ofequal value.Unfortunately, the legislationhas proven anything but simpleto implement.In the PCS backed case ofRobertson -v- Department forEnvironment, Food and Rural Affairs(DEFRA), the Court of Appeal hasRelying on Article 141 of theEC Treaty, the men argued thatthey could make an equal paycomparison across departmentsbecause they had the sameemployer, that the source oftheir pay was the same and theiremployer (the Crown) had theright to revoke pay delegation.WAS IT ENOUGH TOHAVE THE SAMEEMPLOYER?In Lawrence -v- Regent Officerelevant terms. This is notdetermined by only addressingthe formal legal question of theidentity of the employer.WAS THE CROWN THESINGLE SOURCE?Not surprisingly, the menargued that the Crown, as wellas being the common employerwas also the single sourcereferred to in Lawrence.The Court of Appeal agreedwith the appeal tribunal that,however, not convinced. It saidthat although there was atheoretical possibility of theCrown exercising its power, thatdid not make it “the bodyresponsible” for the actualnegotiations and decisions onpay by individual departmentsresulting in the differences aboutwhich the men were complaining.WHAT DID THECOURT DECIDE?The court therefore decided thatsaid that civil servants in oneCare Ltd (2003, ICR 1092), thefollowing a transfer of functionsDEFRA was the single sourceGovernment department cannotEuropean Court of Justice (ECJ)order in the mid-1990s, the payresponsible for the men’s paycompare their pay with civilsaid that employees can makeand conditions of civil servantsand conditions of employment,servants in another.comparisons with people whowas now the responsibility ofand DETR was the single sourceWHAT WERE THEBASIC FACTS?The case was brought by sixwork for different employers,as long as there is a singlesource responsible for thedifference in pay.individual departments.As a result, there were differentpay scales and terms of serviceapplying in different departments,responsible for the comparators'pay and conditions.There was no one source towhich the pay of the men andmen employed by DEFRA. TheyThe employees, however,and there was no single source totheir comparators could beargued that they should receiveargued that the single sourcewhich the differences in pay couldattributed. The fact that thethe same pay as two femalesenior personal secretaries inthe Department of Transport,Environment and the Regions(DETR), whose jobs had beenargument only applied if therewere different employers, andwas therefore not applicable inthis case. But the Court ofAppeal disagreed. It said that itbe attributed.HAD THE CROWNDELEGATED?The men argued, however, thatCrown was the commonemployer was not enough tomake it the single sourceresponsible for determining levelsof pay in both DEFRA and DETR.rated equivalent to theirsunder the Civil Service jobevaluation scheme.was necessary to considerwhether the terms andconditions were traceable tothe Crown continued to be thesingle source or “the bodyresponsible” because there wasCOMMENTThis is a disappointing decision,Their pay had previously beenone source in every case.still a Minister for the Civil Servicewhich suggests that employersnegotiated centrally, butfollowing pay delegation it wasIt said that the approach ofEC law is to locate the single(the Prime Minister) who couldreassert his power over individualcan departmentalise theirorganisation in order to avoidnow set by individualdepartments.source with the bodyresponsible for setting thedepartments at any time.The Court of Appeal was,equal pay claims. The case isbeing appealed.THOMPSONS SOLICITORS Labour&European Law Review EDITORIAL 5


a brief overview ofTAKINGUnder the Trade Unionand Labour Relations(Consolidation) Act 1992(TULRA), unionmembers and officialshave the right to acertain amount of timeoff to learn the skills toappointed in accordance withthe rules of the union to bea representative.WHO QUALIFIES FORTIME OFF WORK FORUNION ACTIVITIES?The right to unpaid time off forDO MEMBERS ANDOFFICIALS NEEDPERMISSION?The simple answer is yes.Members and officials also haveto give as much notice aspossible to management andadvise them of the purpose, time,or other duties agreed by theemployer. The duties must beagreed between the official andthe union; concern somethingfor which the employer hasrecognised the union; andrelate to the ACAS list below:■ terms and conditions ofdo their job properly.trade union activities applies toplace and location of the duty oremploymentBernie Wentworth, aall members of independentrelevant training requested.■ the physical workingsolicitor from Thompsons’trade unions that areThere is no absolute right toenvironmentEmployment Rights Unit inrecognised by the employer fortake time off but an employer■ recruitment, termination andLiverpool, reviews when andbargaining purposes.should not refuse a reasonablesuspension of employmenthow a trade unionist canFor instance, a union memberrequest to do so. If it is refused,■ allocation of workexercise these rights and whatmay claim time off work tothe member should raise this■ disciplineto do if an employer refuses totake part in a union activityunder the grievance procedure■ union membershipallow them.such as a workplace meeting.and may complain to an■ facilities for union officialsThere are separate rights forAlthough they have no rightemployment tribunal.negotiating consultation andtime off for union learning andto be paid, the ACAS (Advisory,The law does not say whatother procedures.health and safetyrepresentatives, which are notcovered in this article.WHO QUALIFIES FORPAID TIME OFF WORKFOR UNION DUTIES?Employers who recognise aunion for collective bargainingConciliation and ArbitrationService) code recommendsthat the employer shouldpay “in certain circumstances,for example to ensure thatworkplace meetings arefully represented”.In Luce -v- London Boroughof Bexley (1990), a teacherwould happen if a membertakes time off, following anemployer's unreasonable refusal.In that event, a member shouldseek advice from their union.WHAT GUIDANCEIS THERE?The TULRA provisions areWHAT TYPE OFTRAINING QUALIFIES?The training must:■ be relevant to those officialduties■ be approved training by theTUC or the official's ownunion.purposes must allow employees,was denied time off to attendsupplemented by the ACASThe fact that the TUC or thewho are officials of thata lobby of Parliamentcode of practice on time off,union may consider that aindependent trade union, toorganised by his union towhich gives practical guidancecourse is relevant is nottake reasonable paid time offprotest about the Educationthat will be taken into accountconclusive. The ACAS code ofduring their working hours toReform Bill. The employmentby an employment tribunal.practice suggests that ancarry out their union duties orundergo relevant training.An official is an employeeappeal tribunal (EAT) saidthat the lobby was notcapable of being a tradeWHAT DUTIES QUALIFY?The right to reasonable time offemployer should considerreleasing an official for initialtraining in basic skills as soonwho has been elected orunion activity.applies to relevant negotiationsas they take office.6 FEATURE THOMPSONS SOLICITORS Labour&European Law Review


time off work for union duties and activitiesTHE TIMEAdditional training is likelyto be required whencircumstances change, orwhen new legislation is likelyto be relevant.DO OFFICIALS GET PAIDFOR TIME OFF?An official who has beenallowed time off work for tradeunion duties during work hoursis entitled to be paid in full forthe reasonable time off.The employer only has to pay,however, for those hours duringwhich the official is contractuallyrequired to be at work.HOW ISREASONABLENESSASSESSED?The legislation and the code ofpractice emphasise both sidesacting reasonably. If theemployer and the officialcannot agree, the employmenttribunal must decide whetherthe employer's assessmentcame within a band ofreasonableness.For time off to be reasonable,the following criteria arerelevant:■ the amount of time off■ the purposes for which it issought■ the occasion for which it issought (including frequency)■ the conditions subject towhich time is grantedWhen assessingreasonableness certaincircumstances are taken intoaccount including:■ the effect on the employer’sbusiness operations■ the extent of the member'sneed to take time off work inorder to participateeffectivelyIt is also relevant to take intoaccount how much time themember has already beenpermitted to take off or hasbeen promised, on either tradeunion activities or other grounds.In Wignall -v- British GasCorporation (1984) a memberwas refused 10 days off work toprepare a union magazine. TheEAT decided that the employerswere reasonable in refusing therequest because the memberwas already permitted 12weeks’ leave a year, partly paidand partly unpaid.Time off may be sought forany activity – it is not for thetribunal to decide. However, itmust take into account thenature of that activity whenassessing the reason forrefusing the time off.The activities of the unionrefer to any activity inwhich the unionproperly engagesexcept for industrialaction (which isexcluded).WHAT TIMELIMITS APPLYTOTRIBUNALCLAIMS?A claim mustbe madewithin threemonths ofthe datewhen therequestfor time offwas refused. However, themember should first raise anycomplaint under the employer’sgrievance procedure.WHAT AWARDS CANTRIBUNALS MAKE?If the employer fails to allowtime off or gives too little timeoff, the member should raisethis under the grievanceprocedure and can complain toan employment tribunal.If the member's complaint issubstantiated, the tribunal maymake a declaration that time offshould be granted and awardLearningandOrganisingUnion strengththrough thelearning agendafinancial compensation.The tribunal can award whateverit considers just in thecircumstances. The tribunal canaward compensation for financialloss and injury to feelings.HOW CAN TRIBUNALCLAIMS BE AVOIDED?A clearly worded formalagreement on time off canprevent disputes on thedefinition of time off, thereasonableness or otherwise of arefusal, or indeed the nature andtiming of a request for time off.THOMPSONS SOLICITORS Labour&European Law Review FEATURE 7


Hartman -v- SE Essex Mental Health & Community Care NHS Trustand other casesSTRESSEDOUTEmployers have a dutyto take reasonable careto ensure theiremployees are notinjured at work.The Court of Appeal hasdecided in six appeals aboutstress at work (IDS 775) that thekey issue is whether the injurieswere reasonably foreseeable. Itconfirms the principles in theCourt of Appeal case of Hattonand minimises the potentialeffect of the decision in Barber(LELR 90).Details of the four mostrelevant cases follow.HARTMAN -V- SOUTHEAST ESSEX MENTALHEALTH & COMMUNITYCARE NHS TRUSTMrs Hartman, who had ahistory of depression, had beena nursing auxiliary at achildren’s home since 1989.Following an accident in 1996in which a child was killed, herhours increased significantly,putting her under greatpressure (of which the trust wasaware). In early 1999, sheapplied for ill health retirementbecause of depression.The Court of Appeal did notthink that the trust was inbreach of its duty of care toMrs Hartman. It said thatworking in a children’s homewas not in itself undulystressful, and that she workedwithout any problems for anumber of years, including thepost-accident period. As for theissue of overwork, it said thatthere was nothing to indicateshe was unable to cope.WHEELDON -V- HSBCBANK LTDMrs Wheeldon worked in a jobsharingscheme in two very busybranches. She complained toher manager from time to timeabout the pressure she wasunder, but nothing changed.Following two depressiveepisodes in 1999, her GP toldthe bank that her mental illhealth would continue todeteriorate if her duties werenot reduced. The bank obtaineda psychiatric report thatconfirmed her work wasperpetuating her problems.Neither her hours nor her dutieschanged and her healthdeteriorated.The Court of Appeal said thatthe bank’s failure to actallowed her depression to“flourish”. Although veryunusual for a part timer tosucceed in a stress-relatedclaim, the harm she sufferedwas not just reasonablyforeseeable but had, in fact,been foreseen.Thompsons were instructed byUnifi.MELVILLE -V- THEHOME OFFICEAs a prison health care officer,Mr Melville had recovered thebodies of eight suicide victims.After the last one (whom hehad to cut down), he sufferednightmares and flashbacksand retired with a stressrelated illness.The Home Office argued that,unless employers are aware ofsome particular vulnerability,they are entitled to assume thatthe employee is up to thenormal pressures of the job. Thefact that it had procedures todeal with the risks inherent inMr Melville’s job showed that ithad done all it could.But the Court of Appealdisagreed. It said that thequestion of whether theparticular employee has shownsigns of impending harm is onlyrelevant when the employer hasnot foreseen a risk, and theemployee's workload would notordinarily carry a foreseeablerisk. That was not the case here.It added that just because anemployer offers a counsellingor occupational health serviceshould not lead to theconclusion that he or she hasforeseen a risk of psychiatricinjury. And if it is available,the employer is unlikely to befound in breach even if theharm was foreseeable.BEST -V- STAFFORDSHIREUNIVERSITYMr Best, a senior lecturer,retired on grounds of ill healthin 2000 aged 46. He ascribedhis breakdown to anunmanageable workload, andsaid the university should haveprovided more support.The Court of Appeal, however,did not think that hisbreakdown was reasonablyforeseeable. It said thatalthough Mr Best hadcomplained of overwork, he didnot mention it when he appliedfor promotion in early 1997, norat any of his appraisals.There was no medicalevidence of any depression,nor any evidence that moreadministrative help wouldhave averted the breakdown,not least because 70 per centof it was due to non workrelatedcauses.8 EDITORIAL THOMPSONS SOLICITORS Labour&European Law Review


Pfeiffer & ors -v- Deutches Rotes KreuzWORK YOURTIMEThe Working Timetime when he or she has to beto agree expressly and freelyfor the worker’s employmentDirective states thatavailable at short notice. Onlyto the opt-out, or cancontract to refer to aworkers should notduty time constitutes full timesomeone’s employmentcollective agreement whichwork, on average, morework, the other two beingcontract refer to a collectivepermits such an extension.than 48 hours per week.categorised as rest time exceptagreement which allows anThe court's use of the wordHowever, workers can agree towhen the worker is carrying outextension?"freely" suggests that an opt-opt out of the directive, if theyhis or her duties.4 Can individual workers relyout cannot be contained in awant to work longer than that.In accordance with thedirectly on Article 6 (whichjob offer or even in a contractIn Pfeiffer and ors -v- DeutschesWorking Time Directive, Germanstates that average workingof employment as a conditionRotes Kreuz, Kreisverbandlaw stipulated that dailytime for each seven-dayof employment.Waldshut Ev (2005, IRLR 137),working time should not exceedperiod, including overtime,4 Workers can rely directly onthe European Court of Justiceeight hours on average.must not exceed 48 hours) ifArticle 6 if the directive has(ECJ) has said, among otherHowever, it also allowed for anmember states do notnot been properly transposedthings, that this right mustopt out under a collective ortranspose the directiveinto national law. That meansalways be made available toworks agreement to extend theproperly into national law?that periods of duty timeindividual workers andcannot be absorbed into acollective agreement.WHAT WAS THECOMPLAINT?Seven emergency workershours if working time regularlyincluded significant periods ofduty time.The collective agreement atthe Red Cross allowed forvarying extensions of theworking day, depending on theWHAT DID THEECJ DECIDE?The court decided that:1 The exclusion of certain civilprotection services under thedirective to ensure the propermust be taken in to accountwhen calculating themaximum daily and weeklyworking time. National lawmust always be interpreted inconformity with European lawwhich takes precedence.complained that, whenamount of regular duty timeoperation of those servicescalculating their maximumrequired of the worker.does not apply to emergencyweekly working time, theiremployer – the German RedCross – took no account ofperiods of “duty time” whichWHAT WAS THE ECJASKED TO DECIDE?The German court asked theworkers who are protectedunder the directive.2 The concept of “roadtransport” does notthey were required to undertakeECJ to decide the followingencompass an emergencyas part of their job.issues:medical service.Under German law, duty time1 Does the directive apply to3 For the opt out from theis when the worker is at workemergency workers?maximum period of weeklyand obliged to stay attentive so2 Does the road transportworking time laid down to bethey can respond to a call. Thisexclusion under the directivevalid, the worker’s consentis different from on-call timeapply to land-basedmust be given not onlywhen the worker just has to beemergency medical services?individually but also expresslyavailable for duty, and stand-by3 Do individual employees haveand freely. It is not enoughTHOMPSONS SOLICITORS Labour&European Law Review EDITORIAL 9


Howard -v- Millrise LtdConsultunderTUPEUnder the Transfer ofUndertakings (Protectionof Employment)Regulations 1981(TUPE), employers arerequired to consult withemployee representativesbefore thetransfer about how itmight affect them.In Howard -v- Millrise Ltd t/aColourflow (in liquidation) andanor (2005, IRLR 84), theemployment appeal tribunal(EAT) has said that even ifthere are no elected employeerepresentatives, the employerstill has to consult withany individuals affected bythe transfer.WHAT WERE THE FACTS?After working as a printer forMillrise Ltd for just over a year,Mr Howard was given onemonth’s notice of redundancyon 15 April 2003. On 30 April,the company went intoliquidation and its undertakingwas transferred as a goingconcern to SG Printers, tradingas Colourflow.Mr Howard subsequentlymade a number of tribunalclaims against both companies,neither of which turned up forthe hearing. The employmenttribunal upheld his claims ofunfair dismissal andunauthorised deductions fromwages, but rejected hisargument that he had a rightto compensation because hehad not been consulted aboutthe transfer.The tribunal said that theprovisions under regulation10(2A) of TUPE (see box 1)“appeared to apply only toappropriate representatives”,and therefore Mr Howardwas not entitled to becompensated for not havingbeen consulted.WHAT DID THE EATDECIDE?The EAT, however, disagreed. Itsaid that although regulation10(2A) refers only toappropriate representatives,regulation 10 (8A) says that “if,after the employer has invitedaffected employees to electrepresentatives, they fail to doso within a reasonable time, heshall give to each affectedemployee the information”that is required under theregulations (see box 2).It said that this provisionrequired the employer to set theball rolling by inviting affectedemployees (assuming therewere no recognised trade unionrepresentatives or other electedor appointed representativesalready in place) to electrepresentatives for thepurposes of TUPE.The employers in this casefailed to do so, and becausethey did not appear beforeeither the tribunal or the EAT,BOX 1Regulation 10(2A) TUPEFor the purposes of this regulation the appropriaterepresentatives of any employees are:(a) if the employees are of a description in respect of which anindependent trade union is recognised by their employer,representatives of the trade union, or(b) in any other case, whichever of the following employeerepresentatives the employer chooses:(i) employee representatives appointed or elected by theaffected employees otherwise than for the purposes of thisregulation, who (having regard to the purposes for and themethod by which they were appointed or elected) haveauthority from those employees to receive information andto be consulted about [the transfer] on their behalf(ii) employee representatives elected by them, for thepurposes of this regulation, in an election satisfying therequirements: of reg. 10A(1).BOX 2Regulation 10(8) TUPEWhere:(a) the employer has invited any of the affected employees toelect employee representatives, and(b) the invitation was issued long enough before the time whenthe employer is required to give information under para. (2)above to allow them to elect representatives by that time,the employer shall be treated as complying with therequirements of this regulation in relation to thoseemployees if he complies with those requirements as soonas is reasonably practicable after the election of therepresentatives.(8A) If, after the employer has invited affected employees toelect representatives, they fail to do so within a reasonabletime, he shall give to each affected employee the informationset out in paragraph (2).they were unable to putforward a defence of“reasonable practicability”.Mr Howard therefore had theright under regulation 11(1) tomake a complaint to a tribunal.The EAT remitted the matterback to the employmenttribunal to decide on a suitableaward, which may be deemedto be anything up to 13weeks’ pay.10 EDITORIAL THOMPSONS SOLICITORS Labour&European Law Review


Ackinclose & ors -v- Gateshead Metropolitan Borough CouncilDeductfromTUPEagreement, known as the WhiteBook. However, in April 1999 anew agreement covering bothmanual and white collarworkers came into force, knownas the Green Book. This reducedthe hours of full-time staff, soincreasing their hourly rate.to “employees of localauthorities or other authoritiesof equivalent status in the UK.”WHAT DID THEPARTIES ARGUE?The employees argued that,because the manual workers’Under the Transfer ofUndertakings (Protectionof Employment)Regulations 1981(TUPE), the existingterms and conditions ofemployees have to behonoured by the newOn transferring back to thelocal authority in 2000, thestaff in the outsourced schoolmeals service finally receivedthe benefit of the improved payrate. They then claimed thatthey were also entitled to it forthe period between 1 April and31 December 1999.National Joint Council (NJC)could agree to changes in theWhite Book (which wereincorporated into the contractsof the school meals’employees), it also had thepower to handover to the newNJC and to accept the newGreen Book. This, in turn, thenemployer.However, in Ackinclose and ors-v- Gateshead MetropolitanBorough Council (2005, IRLR 79),the employment appealWHAT DID THETRIBUNAL DECIDE?The tribunal had to decidewhether it was just the contractbecame part of their contracts.The employers argued thatthere was no such “bridge”between the old White Bookand the Green Book. Theytribunal (EAT) has said thatemployees transferred back toincorporating the White Bookthat had transferred over, orpointed out that the contractdid not allow for the collectivethe relevant collective bargain.”the primary employer are notwhether it was the whole of thebargain to be “as defined fromWithout any further referenceentitled to the benefit of anyimproved terms and conditionsnational bargaining machinery.The tribunal decided it wastime to time”, so there was norequirement for the employer toor incorporation, the EAT said:“it seems to us that nowhich come into force duringthe latter.adopt future provisions.successor body or successorthe transfer period.The employers appealed thisIt was not, therefore, possibleagreement can be held to beThompsons were instructed bydecision and the EAT set itto substitute a new collectivepart of the contract ofthe GMB.aside, not because it thought itbargain for an old one withoutemployment.”WHAT WERE THEBASIC FACTS?In 1995, Gateshead MBCwas necessarily wrong, butbecause it felt that there wereother areas that the tribunalneeded to explore furtherthe agreement of theoutsourced employees. Theirterms and conditions could onlybe varied under the oldCOMMENTUnion negotiators need to becareful that collectivetransferred the schools mealsbefore reaching a conclusion.agreement.agreements specifically allowservice to Castle View Services,a private sector organisation. Itwas transferred back in January2000. Both transfers wereThe tribunal reconsidered itsdecision and decided it hadbeen wrong. It found that, asthere was no evidence toWHAT DID THE EATDECIDE?The EAT agreed with thefor terms and conditionsnegotiated subsequent to thetransfer to be incorporated intothe transferred employees’covered by the TUPEsupport an implied term thatemployers. It said that “theterms and conditions. Andregulations.the Green Book applied tocontract only made reference towhen unions are consulted overAt the time of the originaltransfer, the terms andoutsourced employees, theexpress term of the newthe NJC Manual Workers as anegotiating body, and onlyTUPE transfers, they shouldensure that there is anconditions of manual staff weregoverned by a nationalagreement took precedence.This stated that it applied onlymade reference to theirhandbook (the White Book) asappropriate clause inserted inthe transfer document.THOMPSONS SOLICITORS Labour&European Law Review EDITORIAL 11


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