Chambers Blog

It seems that fundamental changes in the employment law are on the way (albeit some may say long overdue). The Employment Law Bill 2007, which is currently being debated in the House of Lords is set to repeal the Employment Act 2002 (Dispute Resolution) Regulations 2004.

 The 2004 Regulations introduced the statutory disciplinary and grievance procedures in an attempt to reduce the employment litigation. For those practising law in this area it is abundantly clear that this has not been the case. Instead research conducted by the Department for Trade and Industry shows that under the Regulations disputes have become more formalised with the involvement of solicitors and barristers at earlier stages.

The Bill proposes a new non-regulatory system of employment procedures to encourage the informal resolution of disputes and an increased involvement by ACAS. In addition, increased powers will be given to tribunals' to reach a determination without a hearing.

 Other changes proposed within the Bill include:

• Changes to the enforcement of the national minimum wage, for example by making offences under the National Minimum Wage Act 1998 triable either in the Crown Court or Magistrates' court;
• Changes to ensure compliance with the European Court of Human Rights judgement in Aslef v UK. Clearer rights for trade unions could not lawfully expel British National Party activists;
• A new fast track procedure for dealing with certain monetary disputes.

The Bill is due to receive Royal Assent this summer and is currently scheduled to come into force in stages from October 2008.

Written by Kate Richards, Barrister at New Walk Chambers, specialising in Employment Law.

  Geraint Jones Q.C. has recently been involved in the first case to test whether the House of Lords decision in Arthur J S Hall & Co  v  Simons (2002) 1 AC 615 had/has retrospective effect. In Awoyomi v Radford & Postill  Mr. Justice Lloyd-Jones decided, contrary to the common position taken by Leading Counsel on each side, that despite their agreement that the House of Lords decision had only prospective effect, it did in fact have retrospective effect. That is, it was declaratory of what the law has always been, as opposed to being a change in the law with the House of Lords acting in a quasi-legislative way. The case has now been referred to the European Court of  Human Rights on the basis that the High Court decision totally denies the Claimant in that case from access to the Courts. The Court of Appeal,  Lord Justice Lawrence Collins, refused leave to appeal. In his order dated 30^th August 2007 he made no mention of the applicant's submissions regarding Convention rights. In the absence of a prospective reading of the rule in Hall v. Simons, no other domestic remedy was available to the applicant. Accordingly, the applicant has not been provided with an effective remedy and that is the issue to be argued before the ECHR.

Written by Geraint Jones, Barrister at New Walk Chambers, Specialising in Arbitration, Environmental Law, European Union Law, Public Law, Professional Negligence and Sports Law.

 The status of expired warnings for misconduct

It used to be thought that an expired final warning given to an employee could not be taken into account when an employer was considering dismissal. This at least is what was thought to be the effect of Diosynth Ltd v Thomson [2006] IRLR 284. There the Court of Session held that an employer would be acting unreasonably in treating a previous warning which had expired as a determining factor in deciding to dismiss for similar breaches. An employee was entitled to expect a lapsed warning to mean what it said and to cease to have effect on expiry. The EAT in Webb v  Airbus UK Ltd v Webb [2006]  284 said that where but for a lapsed warning a dismissal would not have occurred, the dismissal would be unfair.

The Court of Appeal have now allowed the employers appeal in Airbus UK Ltd v Webb "The Times" 26 February 2008. Mr Webb had just finished a 12 months warning for fraudulent use of company time when he and 4 others on nights were caught watching the tele at work outside break time. He was dismissed but not the other 4. The Court of Appeal in distinguishing Diosynth said that in Webb the employee's later conduct on its own was shown by the employer to have been the principal reason for dismissal. In Diosynth a different issue was being addressed: there the position of the employer was that the expired final warning tipped the balance in favour of the dismissal as the other factors taken together would not have justified dismissal. It was the first misconduct of the 4 who were not dismissed but who received a final warning. In Mr Webb's case it was repeated misconduct, for which he was then dismissed, having received the lesser penalty of a final warning previously. The EAT in Webb wrongly held that Diosynth was authority for the proposition that a previous spent warning should be ignored for all purposes.

So, an employer cannot treat the lapsed warning as determinative, but can take such lapsed warning into account. Gedditt?

It will have to be seen if this puzzling analysis stands up to scrutiny in the House of Lords if there is an appeal. It seems to go against the ACAS Code of Practice which recommends the desirability of employers disregarding spent warnings, [see paras 22 and 24 of the Code], is against the legitimate expectations of employees acting in reliance upon internal disciplinary procedures and is hardly good for industrial relations where certain and consistent rules are at a premium.

Rather than "2 strikes and you are out", it is more a case of "1 strike and you are out" (if you did it  before even though we forgave you!)

Written by Robert Rees, Barrister at New Walk Chambers, specialising in Employment Law.