Worker Safety

Following the publication of a consultation document on worker safety by the Health and Safety Commission, the TUC has produced a briefing document to encourage health and safety reps to give their views.

It sets out:

  • arguments for improving the rights of safety reps
  • problems with the current regulations
  • information on what the Health and Safety Executive has been doing to promote worker involvement
  • details of the consultation exercise
  • advice on how to respond.

The consultation closes on 8 September, and the TUC is asking reps to respond (even if it is only in the form of a letter), or to speak to their employer about doing a joint response.

It emphasises the need for as many workers as possible to respond in order to push through change. It says that, unless unions can show that there is overwhelming support for change from workers and safety reps, the situation will not move on.

Go to www.tuc.org.uk/extras/HSC.pdf to download a copy.

Disability Duty

From December 2006, public sector organisations will have a duty to end discrimination against disabled people.

To help them meet this new disability equality duty, the TUC has published a guide, Disability and work: A trade union guide to the law and good practice, which sets out how unions can work with employers to make it a reality.

The new duty will force the public sector to actively promote equality not only for its disabled employees but also for disabled people in receipt of its services. Public bodies, including government departments, local councils, NHS trusts and police authorities will therefore have to:

  • promote equality of opportunity between disabled people and others 
  • eliminate unlawful discrimination 
  • promote positive attitudes towards disabled people
  • encourage disabled people to participate in public life.

To download a copy of the guide, go to: www.tuc.org.uk/extras/disabilityandwork.pdf or there is further advice for unions at: www.tuc.org.uk/equality/tuc-12006-f1.cfm#tuc-12006-1

Ageing Leaflet

In anticipation of the introduction of age discrimination legislation in October, Thompsons has produced a guide for readers.

As well as explaining the basics of the regulations, it goes through the extensive exemptions and what employers have to do when someone asks to work beyond their retirement age.

To get a free copy of the briefing, send an e-mail to info@thompsons.law.co.uk

A Temporary Blip

Being a temporary worker in the UK too often means earning less than permanent colleagues, being denied access to a pension scheme, having less annual holiday entitlement and no sick pay, according to the results of a recent TUC survey.

In Working on the edge: A report on agency workers, the TUC says that in almost nine out of ten of the 85 workplaces surveyed (employing over 15,000 temps and 100,000 staff), agency workers were earning less than directly employed staff.

The TUC is urging Trade and Industry Secretary Alistair Darling to support the draft Agency Workers’ Directive, which the TUC says has been sitting on a shelf in Brussels for nearly a year. It also wants the Government to introduce domestic legislation in the meantime so that temps do not continue to lose out.

Go to www.tuc.org.uk/extras/WOTE.doc to get a copy

Cost of Sunday Shopping

The DTI has recently published an independent economic cost benefit analysis of Sunday shopping, which will form part of the Government's decision about whether there should be any change to the current Sunday trading laws.

If the Government decides to proceed further with the review, it will hold a formal consultation about any proposed changes.

Currently, the Sunday Trading Act 1994 limits the opening hours of large shops between 10am and 6pm. There are no restrictions on small shops.

Go to: www.dti.gov.uk/ccp/topics1/sunday_trading.htm to download the report.

Long Road to Equal Pay

Following the decision of the Court of Appeal to refer the equal pay case of Cadman -v- Health and Safety Executive (LELR 95) to the European Court of Justice (ECJ), the Advocate General has now delivered his opinion.

He has confirmed the position of trade unions: that service-related benefits may disadvantage women who tend to have shorter periods of service than men. In those circumstances, employers have to provide objective justification. If they cannot, they may be indirectly discriminating against women.

Mrs Cadman brought a claim for equal pay against her employer, relying on four male comparators who were all on the same grade as her, but paid substantially more. They had all worked for the HSE for longer than her.

As the proportion of men with longer service was greater than that of women, Mrs Cadman claimed that the use of length of service as a determinant of pay was indirectly discriminatory against her and that her employer should be required to justify it objectively.

The ECJ has not set a date for hearing the case, but it is more than likely to follow the opinion of the Attorney General when it does.

Defective Hearings

In a case concerning the alleged misconduct of a deaf employee – Taylor -v- OCS Group Ltd – the Court of Appeal has said that there was no rule of law that procedural defects in an initial disciplinary hearing had to be resolved on appeal by a complete “rehearing”, rather than a “review”.

Instead, the Court of Appeal emphasized that the correct test was whether the employer had acted reasonably under section 98(4) of the Employment Rights Act 1996. Tribunals should decide this by looking at the disciplinary process as a whole.

Although this decision is not helpful to employees, it is worth bearing in mind that the events all took place before the statutory disputes resolution procedures came into force. They state that a significant breach of the statutory procedures will make a dismissal unfair.

Injury to Feelings

Tribunals are not allowed to include a punitive element in awards for injury to feelings, according to an employment appeal tribunal (EAT) in Corus Hotels -v- Woodward.

The tribunal awarded Ms Woodward £5,000 compensation for injury to feelings after she was told at an interview with Corus that employees with children only tended to last about six weeks with the company.

Reducing the award to £4,000, the EAT said that the tribunal had taken irrelevant factors into account, and had “allowed their feelings of indignation at the [company’s] conduct to inflate the award by way of punishment”.

It held that tribunals must not take the size of the employer’s organisation into account when assessing compensation, nor their failure to follow an equal opportunities policy.

The EAT said this related to the employer’s liability and not the amount of the award.

The Threat of Costs

The case of Sims Limited -v- McKee is a salutary tale for employers who routinely include costs threats against employees to put them off making further court applications.

This case looked at whether the claimant could have brought their claim within three months. The tribunal decided to allow them to bring their case out of time, prompting the employer to appeal.

The employer subsequently lost the appeal and the appeal tribunal stated in its judgment that, since the employer had threatened to claim costs against the claimant in the first place, they “can have little complaint at being ordered to pay the costs of this appeal”.

Opting Out

The saga of the UK opt out from the 48-hour working week continues. In recent talks, EU ministers could not reach agreement on changes to the Working Time Directive, with the result that the UK has hung on to its opt out.