Empty justice

A recent report by the charity Citizens Advice, called Empty Justice, says that being awarded compensation by an employment tribunal can end up as a hollow victory for workers.

Many awards are simply not paid because employment tribunals in England and Wales have no power to enforce them.

In 2003-4, 13,000 employment tribunal claims were successful, many involving unfair dismissal and unpaid wages. But if the employer fails to pay up, the claimant then has to go to court, a costly and time-consuming process.

For instance, you can register an unpaid award with a county court at a cost of £30, or you can ask the court to issue a warrant of execution or a third party debt order. But it is an expensive process - an application for a third party order requires a fee of £50 - and some employers still find a way to wriggle out of paying. Empty Justice is available at www.citizensadvice.org.uk.

More family friendly policies

Patricia Hewitt, Secretary of State for Trade and Industry, suggested recently in an interview with the Financial Times that more family friendly policies may be on their way if the labour party wins the next election.

She says she wants to see: 

  • an increase in statutory paternity pay (currently £102.80) to 90 per cent of average earnings 
  • an increase in the period of paid maternity leave, which is currently six months 
  • an extension of the right to request flexible work for carers of elderly and disabled relatives.

A guide to race equality

The Commission for Racial Equality (CRE) has published a Race Equality Impact Assessment guide.

The idea behind it is to help policy makers, particularly in the public sector, think about how a particular policy or legislative proposal might affect people from different racial groups.

To access the guide, go to: www.cre.gov.uk/duty/reia/index.html.

New trade union law

The Employment Relations Act has now received royal assent. Its new measures will come into force between now and April 2005. Below is a summary of the main provisions: 

  • Statutory recognition - disagreements about the appropriate bargaining unit will be referred to the Central Arbitration Committee, which has to consider the bargaining unit suggested by the union. 
  • Industrial action ballots - unions have to ensure that the notice lists the categories of employees affected, where they work and the numbers affected. Any accidental oversights on the part of the union should be disregarded. 
  • Industrial action dismissals - protection from dismissal for taking part in official action extended from 8 to 12 weeks. 
  • Union membership - employers cannot now offer inducements to employees not to join a union, or to persuade them to give up their right to be represented collectively by the union. 
  • Modernisation fund - resources are now available for unions to modernise their operations.

Working time amendments

The European Commission has proposed a number of amendments to the Working Time Directive. It suggests that: 

  • opt outs should only be applied if expressly allowed under a collective agreement, with the consent of the individual worker 
  • workers should not be asked to give their consent to opt out when they sign their contract or during a probation period 
  • consent must be given in writing and be valid for a maximum of a year 
  • no one should work more than 65 hours a week, unless a collective agreement provides otherwise 
  • new categories of 'on-call time' (when workers must be available to work, if required to do so) and 'inactive part of on-call time' (when workers are on call, but not carrying out their duties) should be introduced, additional to 'working time' and 'rest time'.

Time of transfer

Yet another case has been decided stemming out of the so-called 'Preston' cases (see LELR 87). These concerned thousands of part-time women workers who brought equal pay claims (some of them a decade ago), complaining they had been unlawfully excluded from membership of a number of occupational pension schemes because they worked part-time.

In Powerhouse Retails Ltd & ors v Burroughs & ors, the Court of Appeal has said that when employees are transferred from one employer to another under the TUPE regulations, their pension rights are removed from the contract that the transferee inherits.

This overturns the decision of the employment appeal tribunal, which had held that when a worker transferred under the TUPE regulations, the time limit for bringing a claim against the transferor did not start running until the date that the worker left the employment of the transferee.

The appeal court's decision is bad news for workers. It means that any claim for equal pay in relation to pension rights must be based on the contract with the transferor. The time limit for making an equal pay claim therefore begins to run from the date of the transfer. We will be looking at this decision in more detail in a later issue of LELR.

Time limits

The employment appeal tribunal has decided in Marks and Spencer v Williams Ryan that the tribunal was right to extend the time limit for the complainant's unfair dismissal claim.

It said that it was important to take into account Ms Williams Ryan's state of mind, and the extent to which she understood her position. The tribunal had made a clear finding that, as a result of the CAB advice, she thought she had to wait for the outcome of the internal appeal before making a tribunal claim. It was right, therefore, to exercise its discretion in these circumstances.

Note that the new statutory procedures for dismissals allow for the time limit for bringing a claim to be extended by three months.

Claiming for injury

The House of Lords has decided in Eastwood & anor v Magnox Electric plc and McCabe v Cornwall County Council & ors that employees can claim for damages for psychiatric injury caused by events leading up to their dismissal.

Both cases concerned employees who claimed that their employers had not only breached the implied, contractual term of mutual trust and confidence, but that their negligence had resulted in their psychiatric injury, prior to being dismissed.

The cases were important because in Johnson v Unisys Ltd, the House of Lords had held that employees could not rely on a breach of the implied term of mutual trust and confidence to claim damages for psychiatric injury if the injury was caused by the way in which they had been dismissed.

One of the key issues in these conjoined cases was, therefore, to ascertain the degree to which breaches leading up to a dismissal are caught by the limitations laid down in Johnson v Unisys Ltd. The House of Lords has now made clear that because the events on which the men relied took place before and independently of their dismissal, they were entitled to pursue claims for damages.

Maternity pay explained

Most employers don't have a clue how to administer statutory maternity pay. So it's little wonder that so many pregnant women complain about employers discriminating against them.

It's about time, then, that someone wrote a book in plain English, explaining what employers have to do and when they have to do it. LELR editor Alison Clarke's new book, Maternity Pay And Leave - A Guide For Employers, (£5) does just that.

It spells out the employee's rights in question and answer format from the moment she tells her employer that she's pregnant until her rights are exhausted at the end of her maternity leave.

There is also a step-by-step guide, so that employers have no excuse for getting it wrong! Perfect for union reps who want to keep employers on their toes.