Employment Law Bulletin - Issue 111 - 4 October 2011

Tuesday 4 October 2011

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Employment Law News

Chancellor announces plans to transform Tribunal system

The Chancellor George Osborne has pre-empted the government's response to its consultation "Resolving workplace disputes" (which remains unpublished) by announcing to the Conservative Party conference in Manchester that the government intends to introduce a two year qualifying period for unfair dismissal, and issuing and hearing fees for Tribunal claims. The proposed fees are said to be £250 and £1000 respectively. It is not yet clear whether any of the fee shall be waived where the claim is brought by an unemployed claimant. It is also unclear whether the government now proposes to consult on the amount of the fee, which was not addressed in the original Resolving workplace disputes document.

Do unions have a future?

A new research report from Acas addresses the future of the trade unions. It predicts that membership will fall as a result of public sector cuts, and asks whether unions are capable of recruiting in the new sectors where employment growth is likely to be fastest. For the full report, click here.

Key employment law changes: 1 October 2011

  • From 1 October 2011: the Agency Workers Regulations 2010 come into effect, enabling agency workers to bring claims where their basic conditions are inferior to those of directly employed comparators.
  • Also from 1 October the minimum wage is increased from £5.93 to £6.08 per hour.
  • Also for workers retiring from this date onwards, the default retirement age is abolished (the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011), although it remains lawful for an employer to operate its own normal retirement age, where this can be justified.

Employment Case Law

European Court of Justice

Holiday pay

Williams and others v British Airways plc [2011] EUECJ C-155/10
The annual salary of pilots is calculated by reference to Regulation 4 of the Civil Aviation (Working Time) Regulations 2004. In a dispute as to whether pilots' pay during their leave should correspond to their normal pay, or to a lesser amount, the ECJ has held that workers should ordinarily receive their normal remuneration during any period of rest, and in particular any component which relates to any inconvenient aspect which is linked intrinsically to the performance of the tasks which the workers are required to carry out as part of their job. For the full judgment, click here.


Prigge and Others [2011] EUECJ C-447/09
In a case concerning a compulsory retirement age of 60 for German pilots, the European Court of Justice has held that compulsory retirement ages are lawful if they are proportionate and necessary. For the full judgment, click here.

Employment Appeal Tribunal

Fresh evidence

Abusabib & Anor v Taddese [2011] EAT 1819/10
The Tribunal has a jurisdiction to grant relief from sanctions. Where it would assist the fairness of proceedings, it may apply the checklist in CPR 3.9 (Roberts v Carling EAT/0183/09). Where an employer delivered papers to the Tribunal on time but missed out a draft ET3 which it was required to file at the same time, the EAT has held that it was wrong to strike out the employer's defence. For the full judgment, click here.

Dispute resolution procedure

Advance Security UK Ltd v Sheeba [2011] EAT 0057/11
By Part 1 of Schedule 2 to the Employment Act 2002 (now repealed but in force at the date of the Claimant's dismissal) an employer is required to go through a three stage procedure when contemplating dismissing an employee. Stage 2 comprises a meeting between the employer and the employee. The EAT has held that there was a breach of this statutory procedure where the Claimant was not shown evidence of the case against her until after her hearing. For the full judgment, click here.

Reasons for dismissal

Perry v Imperial College Healthcare NHS Trust [2011] EAT 0473/10
It is for the employer to prove the reason for dismissal (s98 ERA 1996). Where the dismissal is for reason of misconduct, the fairness of the dismissal will be determined with reference to the actuality of the employer's belief that there is misconduct, the reasonableness of the belief, whether there is a fair investigation, and whether the dismissal is within the range of responses available to a reasonable employer (BHS v Burchell [1978] IRLR 379). In a case where the employer dismissed a worker, originally on the grounds of a false belief that an employee acts fraudulently if she is working in two jobs and claiming sick pay in one but not the other, but then changed its complaint (on her appeal) to a new complaint that the employee had erred in not informing them that she had a second job, the EAT held that the dismissal was outside the range of reasonable responses. For the full judgment, click here.


Shields Automotive Ltd v Greig [2011] EAT 0024/10
It is a matter in the discretion of the Tribunal whether to take into account a Tribunal's means in determining costs (paragraph 41(2), Employment Tribunals (Constitution and Rules of Procedure) Regulations Schedule 1). In this case the Claimant's account of events was found by the Tribunal to be incredible, and he lost his claim and costs were awarded against him. The Claimant submitted a schedule of outgoings which was accepted, but the Respondent subsequently obtained new evidence that the Claimant had misrepresented his outgoings. In all the circumstances, the EAT held that the Tribunal had misdirected himself, and ordered a fresh investigation of the Claimant's ability to pay which would also take into account the evidence of his capital. For the full judgment, click here.



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