Employment Law Bulletin - Issue 105 - 12 July 2011

Tuesday 12 July 2011

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Employment News

Unite behind black women

Unite, the largest union in the country, launched the Black Women's Network on 22 June 2011. The Network will look into the problems of discrimination in employment including recruitment, pay, promotion and so-called 'family friendly' policies. It also seeks to probe into the subject of harassment faced by many black women in the workplace. According to the latest Labour Force Survey statistics, the employment rate of ethnic minority women is 52 per cent compared with 72 per cent for the working population as a whole. Click here for further information.

Have your say - still

The Government is consulting on changes to employment law to encourage a more fair and flexible approach at work. Among other issues, the consultation seeks views on a new system of flexible parental leave which will allow mothers and fathers to share leave, and give parents and employers greater choice about how leave is taken. This consultation closes on 8 August 2011. Click here to download the consultation and have your say.

And finally

The Equalities Minister, Lynne Featherstone, finally laid the draft Equality Act 2010 (Specific Duties) Regulations 2011 before parliament last week Monday 27th June. Originally intended to come into force in April alongside the general public sector equality duty, the draft Regulations will now come into force before the summer recess once approved by Parliament. Click here to read more.

Employment Case Law

Supreme Court

Right to representation before disciplinary hearings/Article 6(1) ECHR

G, R (on the application of) v X School [2011] UKSC 30
The Respondent was a teaching assistant in a secondary school accused of initiating an inappropriate relationship with a 15 year old student. There was an internal disciplinary hearing held by the school which ultimately led to the Respondent's dismissal for gross misconduct and a referral to the Independent Safeguarding Authority (ISA) for it to consider barring the Respondent from working with children. Despite requests by his legal representatives, the Respondent was not allowed to be legally represented at the hearing. Judicial Review proceedings were brought by the Respondent seeking a declaration that his Article 6(1) rights were engaged and so he should have been afforded the opportunity to have legal representation at the disciplinary hearing. The issue before the Supreme Court (the Respondent having been successful at first instance and before the Court of Appeal) was whether the findings of fact made at the disciplinary hearing (and which formed the substance of the referral) would have such a profound influence upon the barring decision that Article 6(1) was engaged at the disciplinary stage. Relying primarily on the detailed guidance to the ISA effectively warning against over-reliance upon findings of fact made by the referring body and urging an independent assessment of the evidence forming part of the referral, the Supreme Court allowed the appeal overruling the decisions below. Click here to read the full judgment.

Employment Appeal Tribunal

"Worker" or "employee"?

Stack v Ajar -Tec Ltd [2011] UKEAT 0527_10_0807
The EAT considered whether an individual who, despite having no agreement in place as to their remuneration could still be construed as a worker or employee for the purposes of unfair dismissal. The terms "employee" and "worker" are defined in section 230 of the ERA 1996. The Appellant started working occasionally for the Respondent, but towards the end of the relationship he was working full time. No contract of employment was signed by the parties although a draft contract had been drawn up by the Respondent's solicitors and there was in existence a memo suggesting the appropriate monthly salary. The EAT held that the Appellant was an employee or worker for the purposes of the Act despite the absence of any firm agreement about remuneration. Click here to read the full judgment.

Some other substantial reason & the current economic climate - guidelines to ETs

Garside & Laycock Ltd v Booth UKEAT/0003/11
The EAT allowed an appeal in circumstances where the Tribunal below had wrongly applied the test as to reasonableness of the decision to dismiss by asking itself what it was reasonable for the employee to do rather than focusing upon the reasonableness of the employer. The EAT also commented obiter that tribunals should consider, where appropriate, the economic considerations of the employer when deciding whether the decision to dismiss was fair or not. To read the full judgment click here.

Forthcoming Events

Using Judicial Review to challenge breach of public sector equality duty in the public sector
Another reminder about Discrimination Law Association's lecture by Louise Whitfield, which will take place at 6pm on 27 July 2011 to be held at the London offices of Russell Jones and Walker.

The Employment Lawyers Association
The ELA will be hosting a Social Evening at Lazarides Rathbone Gallery in London's West End on Wednesday 20th July 2011 at 6.30 pm. For further information click here.



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