Employing change

Employment law is experiencing an abundance of litigation and legislative developments. This looks set to continue indefinitely, as many proposals have the potential to radically overhaul the current law.
Working time
The European Court of Justice (ECJ) ruling in R Secretary of State for Trade and Industry, ex parte Broadcasting Entertainment Cinematographic and Theatre Union (Bectu) (26/6/2001) has led to the revision of working time provisions. Bectu challenged the 13-week minimum qualifying period for entitlement to annual leave under the Working Time Regulations 1998, because many of its members are employed on successive short-term contracts. This limitation was held to be contrary to Article 7 of the Working Time Directive and the court heralded the right to annual paid leave as an important principle of community social law, from which there should be no derogation. This was a significant development in that employers could no longer circumvent their obligations by using successive short-term contracts.
Laura Cox QC of Cloisters and Jason Coppel of 11 King’s Bench Walk Chambers instructed by Stephen Cavalier at Thompsons, solicitor for Bectu. John Collins, Treasury Solicitor as agent, assisted by Eleanor Sharpston QC of 4 Paper Buildings and Phillip Sales of 11 King’s Bench Walk Chambers, barrister for UK Government. Demitrios Gouloussis and Nicola Yerrell acted as agents for Commission of the European Communities.

The impact of the Bectu decision was soon called into question in Voteforce Associates Ltd K Quinn (30/7/2001). The Employment Appeal Tribunal (EAT) found that Bectu did not assist a waitress in this case, as Article 7 of the Working Time Directive had been held not to have direct effect in Lorraine Gibson East Riding Yorkshire District Council (2000). Thus, the ECJ decision could not be relied upon to claim paid annual leave until the Working Time Regulations were amended.
Sue Burford of HR Management Solutions (Cambridge) represented Voteforce Associates. The respondent did not appear and was not represented.

The Government responded quickly, and on 25 October the Working Time (Amendment) Regulations 2001 (SI 2001/3256) came into force. The new provisions give workers a right to paid annual leave from their first day of employment, plus a right to compensation for any leave not taken when their contract is terminated. The original Regulation 13 was revoked, removing the restriction to workers with 13 weeks of continuous employment. Regulation 13 now provides that workers are entitled to four weeks paid leave, except where a new accrual system applies for employees commencing employment within a leave year. Additional limitations have been placed on leave during the first year of employment by regulation 15A. It is unclear whether the new regulations are retrospective in respect of workers who were within their first 13 weeks of employment on 25 October 2001.

The boundaries of sex discrimination have been put to the test in a number of recent cases. Shirley Phyllis Pearce Governing Body of Mayfield School (31/7/2001) concerned a lesbian teacher who claimed discriminatory treatment on account of homophobic taunts and abuse by pupils at the school where she taught. The Court of Appeal held that the treatment was on the basis of her sexual orientation and not her sex, and was thus beyond the scope of the Sexual Discrimination Act 1975. For the time being, workers remain unprotected from discrimination on the grounds of sexual orientation, but the UK has a timetable within which to implement EU Directives on discrimination; measures relating to sexual orientation and religion must be in place by 2 December 2003 and age discrimination by December 2006.
Laura Cox QC of Cloisters and Sandhya Drew of Tooks Court Chambers instructed by Tyndallwoods (Birmingham) for Pearce. Cherie Booth QC of Matrix Chambers and Sarah Moore of 11 King’s Bench Walk Chambers instructed by Hampshire County Council for the school.

The application of the 1975 act was also examined in Chief Constable of West Yorkshire Police A (2/10/2001). The EAT considered whether a bar on transexuals joining police forces was contrary to sex discrimination legislation. Following an established line of authority, A, a male-to-female transexual, was legally of the male gender. The Police and Criminal Evidence Act 1984 requires that intimate searches are carried out by constables of the same gender as detainees and A’s transexuality would inevitably become known, thus preventing A’s ability to “function normally in society”. The EAT allowed the chief constable’s appeal, holding that the blanket ban on transsexuals in the force was not contrary to the Sex Discrimination Act. Although this case appears to deny the application of sex discrimination law to transexuals, it seems possible to isolate it to its facts.
David Bean QC of Matrix Chambers and David Jones of 3 Fountain Court instructed by the force solicitor for the chief constable of West Yorkshire Police. Stephanie Harrison of Two Garden Court instructed by Winstanley Burgess for the respondent police officer. Rabinder Singh of Matrix Chambers instructed by the Treasury Solicitor for the Secretary of State for Work and Pensions.

The commencement of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 on 12 October 2001 amended the 1975 act in two respects. First, it reversed the burden of proof with the effect that once an applicant has demonstrated a prima facie case, the tribunal must uphold the claim unless the respondent proves otherwise. In practice, this appears to do little more than provide legislative authority to the existing tribunal approach. The second amendment redefined indirect discrimination as being unlawful to impose an unjustifiable “provision, criterion or practice”, replacing the narrowly interpreted “requirement or condition”.
Progress has also been made in the other heads of discrimination. The House of Lords delivered a noteworthy judgment in Chief Constable of West Yorkshire Police Khan (11/10/2001). Khan had claimed victimisation pursuant to Section 2(1)(a) of the Race Relations Act 1976, as the police failed to provide a reference when race discrimination proceedings were pending. This decision demonstrates that employers are protected from victimisation charges when the nature of their relationship changes from employer and employee to opposing litigants. There have also been legislative developments within the field of race relations. The Race Relations Act 1976 (Statutory Duties) Order 2001 and Race Relations Act 1976 (General Statutory Duty) Order 2001 impose additional duties on certain bodies and individuals to promote equality of opportunity, good relations and to eliminate unlawful racial discrimination. They are set to come into force in December 2001.
David Bean QC of Matrix Chambers and David Jones of 3 Fountain Court instructed by the West Yorkshire Police solicitor for the chief constable. John Hand QC and Melanie Tether of Old Square Chambers (Manchester) instructed by Russell Jones & Walker (Leeds) for Khan.

The application of Section 1 of the Disability Discrimination Act 1995 was examined in M Rugamer Sony Music Entertainment UK Ltd: Daniel McNicol Balfour Beatty Rail Maintenance Ltd (27/7/2001). The EAT upheld the decision that persons suffering physical symptoms as manifestations of a psychological condition were not protected by the 1995 act. The symptoms did not constitute a physical ‘impairment’ and the illness was not clinically recognised, thus falling short of constituting a mental impairment.
John Cavanagh QC of 11 King’s Bench Walk Chambers instructed by Hodge Jones & Allen for Rugamer. Colin Wynter of Devereux Chambers instructed by Lovells for Sony. Rohan Pirani of Old Square Chambers instructed by Ellis-Fermor & Negus (Nottingham) for McNicol. Oliver Campbell instructed by Kennedys for Balfour.

Future developments
The current pace of change in the field of employment law is invigorating and it looks set to retain this momentum during the next few years. Some forthcoming legislative developments can already be identified; for example, the controversial Employment Bill, which received its second reading in the House of Commons on 27 November 2001, will have a great impact on many aspects of employment law from April 2003. It aims to improve employment relations and includes among its many proposals, measures to encourage the handling of disputes in the workplace and proposals for reform of the tribunal system. In addition, amendments to the Maternity and Parental Leave Regulations 1999 (SI 1999/3312) are intended to extend employees’ rights to parental leave.
Revision of the Transfer of Undertakings (Protection of Employment) Regulations 1984 is the focus of a Department of Trade and Industry consultation paper containing a multitude of proposals for reform. These include additional or revised provisions relating to: definition of transfer; application of the regulations to outsourcing situations; occupational pension schemes; variation of contracts of employment; and notification to employees and insolvency situations. The consultation period continues until 15 December, culminating in Parliament consideration of the regulations in summer 2002.

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