Issue 3 - 14th February 2006

Tuesday 14 February 2006

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Court Cases

Contract of apprenticeship

Flett v Matheson [2006] EWCA Civ 53

A Modern Apprenticeship may be a contract of apprenticeship even if it allows some training to be provided by a third party.

Withdrawal of a claim

Verdin v Harrods Ltd UKEAT/0538/05/DA

An Applicant may withdraw a whole claim or part of a claim under Rule 25 of the Employment Tribunals Rules of Procedure 2004. The Respondent may then apply for the claim to be dismissed on withdrawal. If the claim is dismissed those proceedings cannot, except in limited circumstances, be continued. The EAT held that Rule 25 is to be construed in the light of Ako v Rothschild Asset Management [2002] IRLR 348. In the present case the Applicant wanted to withdraw the part of the claim relating to breach of contract in order to pursue it in the High Court due to the low level of compensation available in the Tribunal. In the circumstances the Tribunal should not have allowed the Respondent?s application to dismiss the claim.

Unfair dismissal

Diosynth Ltd v Thomson [2006] CSIH 5

As a matter of principle an employer was not entitled to rely on a warning which had expired as a determining factor in reaching a decision to dismiss for misconduct. Given that the employer conceded that but for the warning the employee would not have dismissed, the dismissal was unfair.

TUPE Consultation

Sweetin v Coral Racing EATS/0039/05/RN

In calculating awards for failure to consult on a TUPE transfer, the same approach is required as in redundancy cases. The guidance set out in Susie Radin Ltd v GMB & ors[2004] EWCA Civ 180 should be followed.

Regulations

Maternity, Adoption and Flexible Working

The DTI has published draft proposals to amend the Maternity and Adoption Leave Regulations and the Flexible Working Regulations, following its response to the Work and Families Consultation in October 2005. Maternity and adoption regulations are intended apply to the parents of children expected to be born, or placed for adoption, on or after 1 April 2007, and the flexible working regulations will apply from April 2007. Responses are requested by 18 April 2006. Click here for further information.

TUPE

The DTI has published guidance on the revised Transfer of Undertakings (Protection of Employment) Regulations which come into force on 6 April 2006. The main changes are:

  • coverage of cases where services are outsourced, in-sourced or assigned by a client to a new contractor;
  • a new duty on the old transferor employer to supply information about the transferring employees to the new transferee employer;
  • special provisions making it easier for insolvent businesses to be transferred to new employers;
  • provisions which clarify the ability of employers and employees to agree to vary contracts of employment in circumstances where a relevant transfer occurs;
  • provisions which clarify the circumstances under which it is unfair for employers to dismiss employees for reasons connected with a relevant transfer.

Click here for further information.

Working Time

The Working Time (Amendment) Regulations 2006 revoke the exemption under Regulation 20(2) of the 1998 Regulations for 'partly unmeasured working time'. The old regulation exempts from limits on weekly and night working cases where a worker?s working time was partly unmeasured or determined by the worker himself. The revocation comes into effect on 6 April 2006, from when hours worked voluntarily in addition to the pre-determined hours will be counted. Click here for further information.

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