Phillips is new ERU head

Victoria Phillips has been appointed national Head of the Employment Rights Unit (ERU) at Thompsons Solicitors, succeeding Stephen Cavalier who was appointed Client Director last year.

Victoria will lead the national team of over 80 employment rights lawyers and support staff. She takes on overall responsibility for the ERU, working with the firm's team of regional heads and the heads of equality, pensions and collective rights.

Victoria's recent cases have included Inland Revenue v Ainsworth which confirmed that workers on long-term sick leave are entitled to four weeks' paid holiday under the working time regulations, and the recent victory in the case of Lee v ASLEF over the right of trade unions to expel racists and fascists from membership.

A previous President of the National Union of Students and the Labour Party National Women's Officer from 1989 to 1993, Victoria qualified as a solicitor at Thompsons in 1996.divider rule

Talking heads

Since the introduction of the EC European Works Councils Directive nearly 10 years ago, an estimated 11 million employees are now talking to their employers about key decisions that affect them.

The European Commission is consulting with the social partners on the future of European Works Councils (EWCs) and is seeking their opinions on: 

  • how to ensure the potential of EWCs to promote constructive social dialogue is fully realized
  • whether the directive should be revised
  • the role that the social partners can play in addressing issues that arisedivider rule

Draft CRE Code

The Commission for Racial Equality (CRE) is updating its code of practice on race equality in employment and has issued a draft code for consultation. The draft, which reflects a number of important changes to race equality legislation since the original was published 20 years ago, provides: 

  • detailed guidance on positive action, ethnic monitoring and race equality policies
  • more case studies
  • an up to date summary of current legislation and how it applies to the employment sphere

The consultation paper is available on the CRE website until 6 August 2004. Visit: www.cre.gov.uk/gdpract/employment_code.html.

Thompsons will be preparing a submission to the consultation, which can be sent to any union that would like to receive it.

Equality commissioned

Following the government's announcement last year that it would set up a Commission for Equality and Human Rights in 2006, the Department of Trade and Industry has just issued a white paper seeking views on the new commission.

It will combine the functions of the existing commissions in challenging discrimination for reasons of race, sex and disability, as well as promoting human rights. It will also be responsible for tackling discrimination on grounds of age, sexual orientation, religion and belief.

It can be downloaded at www.dti.gov.uk/access/equalitywhitepaper.pdf (PDF file). The deadline for responses is 6 August 2004.

In addition, the Joint Committee on Human Rights - a body made up of six members from each House of Parliament - has published a report about the functions, powers and structure of the new body.

The new report - Commission for Equality and Human Rights: Structure, Functions and Powers - can be found on:

www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/78/78.pdf (PDF file).

New equality rules OK

Although the High Court has rejected a challenge by a group of unions that new rules outlawing discrimination on the basis of sexual orientation were defective, it has helpfully said that the scope of the 'organised religion' exception is very limited.

The unions, backed by Thompsons, had argued that various exemptions in the Employment Equality (Sexual Orientation) Regulations 2003 were incompatible with the obligations imposed on the UK by the EC Equal Treatment Framework Directive 2000, and conflicted with provisions of the European Convention on Human Rights.

The exceptions challenged were:

  • Regulation 7(2) - being of a particular sexual orientation is a genuine and determining occupational requirement.
  • Regulation 7(3) - the employment is for the purposes of an organized religion and the employer applies a requirement related to sexual orientation to comply with the doctrines of that religion or would allow them to avoid coming into conflict with the strongly held convictions of a significant number of the religion's followers.
  • Regulation 25 - benefits which depend on being married.

 

But the High Court judge said:

  • That although regulation 7(2) does not state explicitly that a 'genuine occupational requirement' (GOR) must pursue a 'legitimate objective' as required by the directive, that concept is implicit and tribunals should interpret the regulation accordingly.
  • That the GOR in regulation 7 (3) for 'organised religion' should be given a narrow interpretation. He thought, for instance, that it was unlikely to apply to a teacher in a faith school. This narrow approach will be persuasive for tribunals interpreting the application of the exemption.
  • That regulation 25 is permitted by the directive. 
    The unions were given leave to appeal.divider rule

Without prejudice

It's not uncommon for employers to put a 'without prejudice' offer to an employee in a meeting. It gives them the chance to find out if the employee would be willing to accept a payment in exchange for forfeiting certain rights. But what happens if the employee then needs to refer to that 'without prejudice' meeting in order to pursue a legitimate grievance?

The employment appeal tribunal has just decided in BNP Paribas v Mezzotero that:

  • There has to be a genuine dispute between the parties for the 'without prejudice' statement to retain its status.
  • Just because an employee has lodged a grievance does not, in itself, mean that there is a dispute between the parties.
  • It was unrealistic in this case to say that both parties had agreed to speak 'without prejudice', given the unequal relationship between them, the vulnerable position of the applicant and the fact that the suggestion was only made by her employers once the meeting had begun.
  • Even if there was a dispute, the logic of the argument put by the employers was unacceptable. The judge gave the example of an employer in dispute with a black employee who says in a without prejudice meeting: 'we do not want you here because you are black.' The employer could then argue that the discussions should be excluded from consideration by a tribunal hearing a claim of race discrimination. The judge said that such a remark would be an exception to the without prejudice rule because it reveals impropriety.divider rule

The final straw

Constructive dismissal cases are notoriously hard to win. But in the case of Omilaju v London Borough of Waltham Forest, the employment appeal tribunal (EAT) has just made them a bit easier.

In this case, the EAT decided that there can still be a constructive dismissal for breach of trust and confidence, even when the 'final straw' is not in itself an unreasonable act.