Employment Law Bulletin - Issue 113 - 25 October 2011

Tuesday 25 October 2011

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Employment news

Loop hole in Agency Worker Regulations

In issue 110 we reported that the Agency Worker Regulations 2010 came into force on 1 October 2011; heralding in an era of greater protection for agency workers who work with an employer for at least 12 weeks. However it appears that some employment agencies are asking their workers to sign a waiver, releasing them from any potential liability under the Regulations. Yet other agencies are devising creative ways of avoiding potential liability under the Regulations. For example, by giving workers shorter contracts and paying them between assignments (known as the "Swedish Derogation"). To read more on this story click here or here.

Unions go to court over public service pensions

Six unions representing the interests of public sector workers are to challenge the Government's decision to up-rate pensions and benefits according to the consumer prices index. This news is further evidence of the unions' determination to force the Government into a u-turn over cuts to public service pensions. Click here to read the news story.

Employment Case Law

Employment Appeal Tribunal

"Reasonable time" in applications to extend time limits

Nolan v Balfour Beatty Engineering Services (Trade Union Membership) [2011] UKEAT 0109_11_1910 (19 October 2011)
The EAT upheld the decision of the ET to refuse an application to extend the time for service of the ET1. The ET found that it was not reasonably practicable for the claimant to have filed the ET1 within the applicable time limit, but went on to find that once the claimant was in possession of the relevant facts, he then failed to bring his claim within a reasonable time after the expiry of the time limit. Click here to read the judgment.

Re-engagement and re-instatement

King v Royal Bank Of Canada Europe Ltd (Unfair Dismissal: Reinstatement or re-engagement) [2011] UKEAT 0333_10_1810 (18 October 2011)
The EAT considered the significance of the ET's failure to consider re-engagement or re-instatement under section 112 of the Employment Rights Act 1996 notwithstanding the fact that the claimant had requested re-engagement in her ET1. Despite the lapse of time and the prejudice this may cause to the respondent if the case were remitted to the ET for consideration of this issue, the EAT found that the ET had plainly made an error of law in failing to consider the issue and that the prejudice and injustice caused to the claimant far outweighed the potential prejudice to the respondent. To read the judgment click here.

Duty to mitigate loss

Miss T Debique v Ministry of Defence UKEAT/0075/11

The EAT considered whether the ET had erred in law in refusing to award the claimant compensation for loss of future earnings in her successful claims for race and sex discrimination in circumstances where her former employer had offered her an alterative posting that would have resolved her child care problems. However, the claimant refused to accept the alternative posting and resigned from the Army. In dismissing the appeal, the President of the EAT, Underhill J held that the ET was entitled to refuse to award compensation for loss of future earnings. Click here to download the judgment.

Direct discrimination - duty to make reasonable adjustments

Cordell v Foreign and Commonwealth Office (Disability Discrimination: Reasonable adjustments) [2011] UKEAT 0016_11_0510 (5 October 2011)

The EAT upheld the decision of the ET that the claimant had not been the victim of unlawful discrimination when the respondent refused to post her to Kazakhstan due to the inordinate cost to them of making reasonable adjustments in respect of her particular disability (deafness). Click here to read the judgment.

The Equality and Human Rights Commission supported Ms Cordell, click here to read their response to the EAT decision in this case.

Notices & coming events

Aspects of territoriality and employment rights

The Employment Lawyers Association holds its annual lecture on Tuesday 1 November 2011 at the London Landmark Hotel 222 Marylebone Road London NW1 6JQ. The lecture will be delivered by Mummery LJ. The event will cost £40 plus VAT and 1 CPD point is available for those who attend. Click here for further details.

A Framework for Fairness? Reviewing the Regulations on Part-Time and Fixed-Term Work

The Industrial Law Society holds another evening meeting on Wednesday 9 November 2011. The address will be delivered by Professor Mark Bell, School of Law, University of Leicester. Click here for further details.


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