Register to go
Following a consultation on employment tribunal procedures, the Government has decided to stop publishing the public register of tribunal applications.
Instead, it will just publish tribunal judgements. This means that if a case is settled before a judgement is reached, there will no longer be any details of it on the register.
Most people who contributed to the consultation agreed that this was a good idea. In particular, some unions were concerned that the register has been used in the past for 'blacklisting' purposes. And that it was being used by claims companies who wrote directly to applicants, causing confusion where they were represented by trade unions. On the whole, unions were among those supporting the changes.
The new approach means that there will still be a public record of judgements reached in tribunals, but no more detailed claims and responses.
To view the Government response to the public consultation, go to: www.dti.gov.uk/er/individual/etregs_gov_resp.pdf (PDF file).
Mental health
The Government has agreed to amend the Disability Discrimination Act by giving more employment protection to people with mental health problems.
In particular, it has agreed to remove the requirement in the DDA for a mental illness to be 'clinically well recognised' before it can qualify as a disability.
The Government has also said that the new legislation will be extended to give increased protection to people with progressive conditions such as HIV, MS and cancer by ensuring that the DDA applies from the date of diagnosis. If agreed by parliament, it will impose a new positive duty on public bodies to promote equal opportunities for disabled people, similar to the existing duty for race equality.
The changes came about in response to recommendations put forward by a joint parliamentary scrutiny committee of the Disability Discrimination Bill (to which Thompsons gave evidence).
Of equal value
New regulations coming into force on 1 October 2004 will make significant changes to the way that tribunals manage equal value cases.
These amend the Employment Tribunal Rules of Procedure and confer new case management powers on tribunals. Other regulations, amending the Equal Pay Act, will come into force on the same day.
We will look at the implications of these changes in a future edition of LELR.
Equal treatment
The European Commission has published a proposal which it says will improve, simplify and modernise the existing EC equal treatment legislation.
Under the process known as 'co-decision' the commission has issued a draft directive that is currently being discussed by the commission and the European parliament.
Among other things, it aims to consolidate all the existing directives on equal pay and equal treatment and reflect existing case law on issues such as equal pay. It will also try to speed up the implementation of equal treatment generally.
Dispute resolution
The Government's new regulations on dispute resolution came into operation at the beginning of October.
As a result, all employers (irrespective of their size) now have to have minimum statutory procedures in place for dealing with dismissal, disciplinary action and grievances in the workplace.
The Government has drawn up information and guidance about how the changes will impact on employees which can be accessed at www.dti.gov.uk/er/employee_guidance.htm.
Older but no wiser
The Court of Appeal has just decided - in Rutherford & Anor v Secretary of State for Trade and Industry - that it is not discriminatory to deny workers over 65 the right to claim unfair dismissal and redundancy. It justified this by saying that when you look at statistics for the working population as a whole, there is no indirectly discriminatory effect.
The claim was brought by two men who were both over 65 when they were dismissed. They said that the upper qualifying age limit contravened EU law as it affected more men than women. The employment tribunal agreed, saying that the pool for comparison should be people between 55 and 74, for whom retirement has 'real meaning'.
The Court of Appeal has said that was the wrong pool. Instead the tribunal should have looked at the statistics for the entire national workforce because it was national legislation that was under scrutiny.
We'll look at this case in more detail in the next edition of LELR.
The spice of life
It's not that often that you read about a case of indirect race discrimination that is related to pay. But the Court of Appeal has just decided in Spicer v Government of Spain that a British teacher was discriminated against at a Spanish state school in London.
Although Mr Spicer had a higher basic rate of pay than the Spanish civil servants, he was paid less overall because the Spanish teachers got a generous relocation allowance.
The court agreed with the tribunal that the pool for comparison should be all the teachers at the school, because the circumstances of both groups were the same Ð i.e. they were all teachers. However, it disagreed with the tribunal's conclusion that Mr Spicer had not suffered a disadvantage because his basic pay was higher.
His appeal was therefore allowed and the case remitted to the tribunal to assess compensation.
Block out parental leave
Under the maternity and parental leave regulations, parental leave can only be taken in blocks of one week.
In South Central Trains Ltd v Rodway, a train guard conductor asked to take parental leave of one day but his employer refused because his job could not be covered. He was subsequently disciplined for being on unauthorised leave. The employment tribunal said that by disciplining him, his employer had subjected him to a 'detriment' or disadvantage under the regulations.
The employment appeal tribunal has overturned that decision and confirmed that, if an employee wants the protection of the parental leave regulations, he or she can only take the leave in blocks of one week.
Disclosure of medical records
The following question arose in the case of Hanlon v Kirklees Metropolitan Council: was it reasonable to order Mr Hanlon to disclose his medical records?
Mr Hanlon was in dispute with Kirklees, following a change in his shift pattern at work. The council asked to see his medical records, but Mr Hanlon refused, as was his right under the Access to Medical Reports Act 1988.
The tribunal then ordered Mr Hanlon to give his consent which he refused. Mr Hanlon then appealed against that order, on the basis that it was an invasion of his privacy under Article 8 of the European Convention on Human Rights (ECHR).
The employment appeal tribunal has just confirmed the tribunal's decision, saying that his right to refuse disclosure 'is not an absolute right of privacy' but is subject to a need to protect the rights of others, particularly in litigation.