Selected News
Online Video at ACAS
ACAS has prepared a nine-minute online video, explaining how its conciliation process works. It's a really useful resource, to put minds at ease as to how the Acas conciliation process works.
Please note it is possible
the ACAS website will lack sufficient band width to let all the recipients
of this newsletter watch the video simultaneously. If it doesn't work,
try again later.
http://www.acas.org.uk/index.aspx?articleid=1025
Work and Families - new Regulations
The DTI has published the
new draft Maternity and Parental Leave (Amendment) Regulations 2006,
Paternity and Adoption Leave (Amendment) Regulations 2006; and Flexible
Working (Eligibility, Complaints and Remedies)(Amendment) Regulations
2006. They deal with some of the government's family-friendly proposals.
http://www.dti.gov.uk/er/workandfamilies.htm
Giving Access to References
There is no longer any such thing as a confidential reference – you have been warned! Employment references from a third party such as a previous employer are subject to the normal access rules. This means that If you receive a written request and a fee of up to £10, it will be a ‘Subject Access Request’ and in most situations, you will have to provide the information. If the reference contains, for example, the referee's opinions, it is a good idea to contact them, if an access application is made, and ask if they mind you disclosing the reference. If the referee says no, you will still need to comply with the request - if it is reasonable in the circumstances. Moral – never provide a reference in terms that are other than you can absolutely stand by; keep all references provided to you.
Compensation for TUPE Consultation Failure
The Employment Appeal Tribunal (Lady Smith presiding) has handed down a starred judgment (i.e. a judgment of particular importance) dealing with compensation for failure to consult under TUPE.
It held that tribunals should adopt the same approach when assessing compensation for failure to consult under TUPE, as that adopted when assessing compensation for failure to consult under s188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (i.e. multiple redundancy consultation).
In other words, the Susie Radin principle applies, that the tribunal should award the maximum 13 weeks' pay as compensation for failure to consult unless there are mitigating circumstances justifying a departure from the maximum award.
Expired Warnings in Unfair Dismissal Cases
A Court of Session case which
is well worth reading involves an expired disciplinary warning, which
was subsequently relied on in a dismissal of a worker for a health and
safety breach. The court confirmed that an expired disciplinary warning
cannot be relied upon in dismissing someone, even though the incident
was a breach of safety rules with potentially life threatening consequences.
The moral of the story is to make sure that there is no end date to
a warning for a serious health and safety offence, otherwise you will
not be able to rely on it in future if it is expired. Rules and disciplinary
procedures may need to be looked at to allow this provision.
http://www.scotcourts.gov.uk/opinions/2006CSIH05.html
Whistle blowing - 'Good Faith' Burden of Proof
The Employment Appeal Tribunal has handed down judgment in Bachnak v Emerging Markets Partnership (no. 2).
Mr Bachnak failed to persuade the tribunal that (amongst other things) he had made his protected disclosures in 'good faith', which is a necessary condition for obtaining whistle blowing dismissal protection.
He appealed, on the basis the employment tribunal had applied a 'neutral' burden of proof, arguing that it was incumbent on the employer to establish bad faith, rather than on him (or, indeed, without a burden of proof at all) to establish good faith.
The Employment Appeal Tribunal agreed that it is for the employer to establish bad faith. Unfortunately for Mr Bachnak, this did not help him as the EAT considered that the tribunal's findings did not depend on the burden of proof, so any error was immaterial.
Variable Redundancy Multiplier to be Retained
The Government has announced
that it will not move to a single multiplier for statutory redundancy
payments when the Age Discrimination Regulations are introduced in October.
The existing variable multiplier based on age will remain on the basis
that it reflects a legitimate employment policy and as such exempt from
the Framework Directive. Read the Minister, Gerry Sutcliff’s statement:
http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060302/wmstext/60302m04.htm
