Employment Law Bulletin - Issue 152 - 12 July 2013

Friday 12 July 2013

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Employment News

Employment Law reform: timetable for protected conversations
The government has made an Order to the effect that the new rules regarding protected conversations and settlement agreements will take effect from 29 July 2013 (i.e. the same day as the commencement of Tribunal fees).

Judicial reviews of Tribunal fees
In an ongoing judicial review of Employment Tribunal fees, Carol Fox and Partners v Her Majesty's Government and others, it has been reported that permission has been granted for a full Judicial Review of Employment Tribunal fees in the Court of Session in Scotland. Fees will require to be paid between 29 July and the date of any decision in that case but the Lord Chancellor has given an undertaking that if fees are found to be unlawful, they will be refunded. The Petitioners were awarded their costs ("expenses"). The trade union Unison has also announced that it intends to issue a judicial review of Tribunal fees, although there has been no independent confirmation that its claim has been issued.

Case Law

Supreme Court

Equal pay

North and others v Dumfries and Galloway Council [2013] UKSC 45
Under the Equal Pay Act 1970 and the provisions now in the Equality Act 2010, women (or men) whose work is of equal value to that of men (or women) in "the same employment" are entitled to an equality clause so that if any of their terms and conditions are less favourable than the equivalent term or condition of comparable employees, they are entitled to the benefit of that more favourable term. But can women compare themselves with men employed by the same employer in other places of work when those men would never be employed to do their current jobs in the same place as the women? In a case brought by 251 female classroom assistants working in schools who compared themselves to male manual workers based at other depots who did not work in schools, the Supreme Court held that the phrase "the same employment" is merely intended to weed out cases in which geography plays a part in determining terms and conditions. It should not be used as a proxy for other elements of an equal pay claim such as whether a difference in treatment is genuinely due to a material factor other than sex. For the full text of the judgment, click here.

Employment Appeal Tribunal

Redundancy consultation

USDAW v Ethel Austin Ltd (successors to Woolworth PLC) [2013] EAT 0547/12
Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires an employer to consult about redundancy dismissals affecting 20 or more employees at one establishment. Does the "one establishment" requirement limit the duty of a business to consult where the business overall is very large but it is organised in a series of workplaces, few of which would come within the 20 employee threshhold? Relying on the wording of the European Directive to which section 188 gives effect, and which expressly protects workers in multiple establishments irrespective of the size of the establishments in question, and in a case concerning the 4400 employees of Woolworths, the EAT has held that the correct test is to look at the whole of the relevant businesses rather than each of its sites in determining whether the figure of 20 dismissals is satisfied. For the full text of the judgment, click here.

Right to companion

Toal & Anor v GB Oils Ltd [2013] EAT 0569/12
Section 10 Employment Relations Act 1999 entitles a worker to be accompanied at a disciplinary or grievance hearing; the compensation for breach of this right is an award not exceeding two weeks' pay. In a case where an employer refused to allow the worker to be an accompanied by an elected trade union official, but allowed the worker to be represented by someone who was a fellow worker, before allowing him to be represented by an official of his choice at a second meeting, the EAT has found that the discretion to choose a representative must belong to the worker and not to the employer (save that the employer can refuse a request to be accompanied by a person who is outside the statutory scheme - i.e. a person who is neither a fellow worker nor a trade union representative). The Employment Tribunal at first instance had found that the worker had waved his statutory right to a companion by attending at a second hearing accompanied. The Employment Appeal Tribunal disagreed, finding that in law a worker and an employee cannot agree to waive statutory protection. For the full text of the judgment, click here.

Employment Law Events

Industrial Law Society Annual Conference
Friday 20 September to Sunday 22 September2013

The 2013 Annual Conference of the ILS will take place at St Catherine's College Oxford. The speakers will include David Latham, President of Employment Tribunals, England and Wales, HH Judge Jeremy McMullen QC, and the Rt. Hon. Lord Justice Patrick Elias. For full details, click here.

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