Surveying the scene

Employers have become more aware of the importance of a good work-life balance, according to the 2004 DTI Workplace Employment Relations Survey. The report, which is the fifth in a series that started in 1980, also shows that:

  • fewer workplaces are reporting grievances
  • union representatives are working more closely with management on changes in the workplace
  • more representatives say that managers value their opinions
  • managers are more positive about the climate of employment relations
  • the decline in union recognition has halted in larger workplaces
  • employers have increased their provision of flexible working arrangements, and 
  • there is greater provision of leave arrangements for parents.

The information for the report was collected from more than 3,000 managers, nearly 1,000 employee representatives, and over 22,000 employees. Go to: www.dti.gov.uk/er/inform.htm to download a copy of the report.

Commission reports

The three statutory Commissions – the Equal Opportunities Commission, Disability Rights Commission and the Commission for Racial Equality - have recently published their annual reports.

The Commission for Equality and Human Rights, to be set up in October 2007, will mean the end of the EOC and DRC in their current forms. The CRE is scheduled to be absorbed into the new Commission in 2009.

Go to: www.eoc.org.uk for the full report from the Equal Opportunities Commission
Go to: www.drc.gov.uk for the full report from the Disability Rights Commission
Go to: www.cre.gov.uk for the full report from the Commission for Racial Equality

Ready, willing and able

Over one million 50 - 65 year olds who want to work can’t get a job because employers won’t recruit older workers or retain the ones they already employ, according to a recent TUC report.

The report, Ready Willing and Able, rubbishes the myth of luxury early retirement for the “baby boom” generation. Of the 2.6 million 50 - 65 year olds who are currently unemployed or economically inactive, over a third want a job, with 250,000 actively looking and 750,000 who say they want work.

Over the next ten years the number of people under 50 will fall by two per cent while the number aged 50 - 69 will rise by 17 per cent, massively increasing the ratio of pensioners to working people. The TUC estimates that without an extra one million people in work by 2015 workers will face higher taxes, later retirement or old-age poverty.

The TUC is calling on employers to carry out age audits of their staff to establish an age profile of their workforce and negotiate an “age management” policy with trade unions and employees to eliminate age discrimination and retain older workers.

It says this should include identifying and supporting training needs and offering older staff flexible working to downshift towards retirement. To underpin such measures the Government should extend to over-fifties the right to request to work flexibly and the right to training with paid time off.

Go to: www.tuc.org.uk/extras/over-fifties-unemployment.pdf to download a copy of the report.

One in ten injured at work

Insurance company AXA recently published research that shows that as many as one in ten people has sustained an injury in the workplace in the past five years.

Responding to the findings, Tom Jones, a partner with Thompsons Solicitors said: “The insurance industry has been complaining for years about the costs of paying compensation to injured people. Thompsons and the trade unions have always said that one sure way to reduce costs is to reduce workplace accidents.

“AXA says that it is shocked at the number of work-related injuries sustained by employees which are the result of physical assault by customers and colleagues. We see thousands of claims every year where workers have been injured at work through a criminal act. Employers have statutory duties and yet pay lip service to it and leave frontline staff to fend for themselves.”

Thompsons Solicitors are experts in all personal injury matters. Go to: www.thompsons.law.co.uk for accurate claims advice.

TUPE 2006

Following the introduction of the Transfer of Undertakings (Protection of Employment Regulations) 2006, the DTI has now issued guidance relating to payments made by the Secretary of State to employees on insolvency and redundancy.

Although the guidance makes clear that it is not an authoritative interpretation of the regulations, it sets out the approach that the Secretary of State will take in deciding liability for making payments under the provisions of:

  • Part XI of the Employment Rights Act 1996 (redundancy payments) and
  • Part XII of the 1996 Act (payments on insolvency of the employer).

This guidance replaces earlier advice in relation to the 2006 TUPE regulations and insolvency. Go to: www.dti.gov.uk/files/file30031.pdf for a copy.

It’s not personal

In a recent decision – Martins v Castlehill and Bisset - the Employment Appeal Tribunal (EAT) held that time limits cannot be extended for bringing a tribunal claim under the statutory dispute resolution procedures if the discrimination claim is against another employee.

Ms Martins lodged discrimination claims against both her employer and Mrs Bisset more than three months after the last incident allegedly took place. However, as she had submitted her step one grievance letter, the normal time limit was extended to six months.

But as the statutory grievance procedure rules only applied to claims brought against the claimant’s employer, she could not bring the claim against her colleague as she was out of time.

In coming to this conclusion, the EAT relied on section 30 of the Employment Act 2002, which states that the grievance procedure requirements are “statutorily inserted into every contract of employment”. As she did not have a contract with Mrs Bisset, the EAT reasoned that the procedure did not apply. However, as section 30 has not yet come into force, the decision may be appealed.

All in a day

The EAT, in Rainbow International v Taylor, has clarified that the extension of time under regulation 15 of the dispute resolution regulations provides for three months, not three months less one day.

In this case Mr Taylor resigned on 20 June 2005, making 19 September the date by which he needed to lodge his claim. However, this was extended under the regulations by three months. As the extension began on 20 September, he had to lodge his claim by 20 December, which he did.

Share and share alike

The EAT has confirmed in The Print Factory (London) 1991 Ltd v Millam that tribunals cannot “lift the corporate veil” when trying to decide whether a TUPE transfer has taken place in the absence of evidence of a sham.

In this case, Mr Millam worked for Fencourt Printers, which was sold to McCorquodale in 1999 as part of a share sale agreement. He was given conflicting information as to the identity of his employer, although he was paid by McCorquodale who also administered his pension.

The two companies subsequently went into administration in 2005 and Mr Millam lost his job. The following day McCorquodale was bought by The Print Factory, and Mr Millam made a number of claims, including that there had been a transfer of his employment to McCorquodale.

Although the Employment Tribunal agreed with him, the EAT held that the effect of the tribunal’s decision was to “lift the corporate veil”. It said that it is well established law that this can only be “pierced” where “special circumstances exist indicating that it is a mere façade concealing the true facts”.

Mutually obliged

One of the essentials of a contract of employment is what the courts call “mutuality of obligation”. In other words, that one party is obliged to offer work and the other to accept it.

The EAT has put a new gloss on this requirement in ABC News Intercontinental v Gizbert by ruling that Mr Gizbert (a TV reporter), was obliged to decide whether to accept or refuse assignments “in good faith”. For its part, ABC News had to provide him with a minimum of 100 days’ work per year.

It argued, therefore, that there was mutuality in the arrangements and that Mr Gizbert could pursue his claim of unfair dismissal.