In line with Luxembourg?
29 October 1996
30 August 1999
1 April 2002
1 April 2002
10 June 2002
Keith Pugh looks at a ground breaking TUPE ruling. Keith Pugh is head of employment law at Nabarro Nathanson
17 November 1998
Employment lawyers may be forgiven for listening to Euro-sceptics with a wry smile. For us, the supremacy of European law is already a fact of life.
While there have been important recent developments in domestic legislation, and some in the common law, perhaps the most significant changes have been brought about by European law. Article 119 of the Treaty of Rome and directives 76/207 and 77/187 are needed for an appearance before the Industrial Tribunal in Reading as well as before the European Court of Justice in Luxembourg.
European law made us challenge fundamental assumptions. For years, many companies had different retirement ages for men and women and did not admit part-timers to pension schemes. Until recently, it was common for the terms and conditions of transferred employees to be changed by the transferee company after a transfer of an undertaking had taken place.
European law has changed all this. Domestic employment law has been introduced or amended to recognise European law-based rights. Examples include the Transfer of Undertakings Regulations 1981, the Sex Discrimination Act 1986 and the Sex Discrimination and Equal Pay (Remedies) Regulations 1993, which lifts the cap on compensation in sex discrimination cases and gives tribunals the power to award interest.
Recently, domestic legislation has implemented European equality requirements in respect of pension schemes.
Other European law-based questions remain unresolved, however. Is the two-year qualifying period for claims for unfair dismissal indirectly discriminatory against women and contrary to the Equal Treatment Directive 76/207? The Court of Appeal, in R v Secretary of State for Employment ex parte Seymour-Smith & anr  ICR 889 allowing the applicant's appeal, held that it was. The case is being appealed to the House of Lords.
Is discrimination on grounds of sexual orientation contrary to the Equal Treatment Directive? The Court of Appeal in R v Ministry of Defence ex parte Smith & anr  IRLR 100 held that it was not. However, the judgment of the ECJ in P v S & Cornwall County Council  IRLR 347, a transsexual case, has given some encouragement to a contrary view and the ECJ has been asked to consider the question in Grant v South West Trains.
Can terms and conditions of employment of employees transferred to a new employer be varied as a consequence of a transfer of an undertaking? The Employment Appeal Tribunal in Wilson v St Helens Borough Council  ICR 711 held that they cannot. In reaching its conclusion, the EAT relied on the judgment of the ECJ in Daddy's Dance Hall  ECR 739. The decision is being appealed and was distinguished in Meade & Baxendale v British Fuels  IRLR 541.
Do the time limits for bringing claims and the limitation on retrospectivity of remedy in domestic equal pay legislation apply to claims based on European law? The judgments of the ECJ in Vroege v Institut Voor Volkshuisvesting and Fisscher v Voorhuis Hengels  ICR 635 were the trigger for about 60,000 applications lodged in industrial tribunals in which complaint was made of past denial to part-timers of access to occupational pension schemes. The Employment Appeal Tribunal in test cases Preston & ors v Wolverhampton Healthcare NHS Trust  IRLR 484 held that the applicable time limit was the domestic law time limit for equal pay claims and that the temporal restriction on remedy was not incompatible with Community law. The lay majority of the Employment Appeal Tribunal in Levez v T H Jennings (Harlow Pools)  IRLR 499 did not reach the same conclusion on the temporal restriction on remedy and have referred the question to the ECJ. Preston is being appealed.
So far as UK employment law is concerned, the most significant recent development in domestic legislation is the enactment of the Disability Discrimination Act 1995. The act will give significant protection to disabled persons in the field of employment.
Familiar employment protection legislation has been consolidated in the Employment Rights Act 1996.
Legislation relating to employment tribunals is set out in the Industrial Tribunals Act 1996. The Court of Appeal in Rock Refrigeration v Jones & anr delivered on 10 October 1996 restored faith in the common phrase 'termination for any reason whatsoever' in restrictive covenants in employment contracts and held D v M, which held such phrases fatal to their enforceability, to have been wrongly decided. Will the House of Lords in another case take a different view?