Preview: Labour Law Review 2008

LABOUR LAW REVIEW 2008

BY JENNIFER EADY QC, REBECCA TUCK AND BETSAN CRIDDLE

Jennifer Eady, from Old Square Chambers, is one of the leading employment law barristers in the country. She was appointed Queens Counsel in 2006 and is a newly appointed ACAS Council member as well as being a Trustee of the Free Representation Unit. Jenny contributes to a number of leading employment law publications, including Harvey and Sweet and Maxwell’s Discrimination in Employment.

Rebecca Tuck is a barrister specialising in employment and personal injury at Old Square Chambers in London and Bristol. She is the co-author along with His Honour Judge McMullen QC and Betsan Criddle of Employment Tribunal Procedures (LAG, 2004) and a contributor to Harvey on Industrial Relations and Employment Law.

ISBN 979 1 906703 02 8 July 2008 published by the Institute of Employment Rights The People’s Centre, 50 Mount Pleasant,Liverpool, L3 5SD e-mail office@ier.org.uk www.ier.org.uk printed by Upstream (TU) 020 7207 1560 Layout by Upstream 020 7207 1560 £6.50 for trade unions and students £20 others

Betsan Criddle is a barrister specialising in employment and personal injury law at Old Square Chambers. She is co-author along with His Honour Judge McMullen QC and Rebecca Tuck of Employment Tribunal Procedures (LAG, 2004) and a contributor on employment tribunal procedure to Employment Precedents and Company Policy Documents (Sweet and Maxwell).

This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the authors. The responsibility of the institute is limited to approving its publications as worthy of consideration within the labour movement.

labour law review 2008

contents

ii

introduction

1

industrial action

3

trade union members

4

central arbitration committee (CAC)

5

health and safety at work

5

pay and other terms and conditions

7

working time regulations

8

TUPE

9

unfair dismissal

11

unfair dismissal remedies

15

redundancy

16

equal pay

18

sex discrimination

20

pregnancy and maternity

21

race discrimination

22

disability discrimination

23 24 24 25 26 27

religion and belief

29

sexual orientation

30

age discrimination

31

remedies in discrimination cases

33

employment tribunal procedure

34

endnotes

39

IER publications

42 labour law review 2008

disabled medical experts extension of time comparator reasonable adjustments

iii

iv

labour law review 2008

labour law review 2008

Introduction

Other important legislative developments on the horizon include the scrapping of the current statutory dispute resolution regime and its replacement by a new ACAS Code of Practice and a discretionary power vested in employment tribunals to increase or reduce awards for breaches of that Code. A further positive development is promised by the Temporary and Agency Workers (Equal Treatment) Bill, which will offer much needed protection for this most

labour law review 2008

Early editions of this Review were slim affairs, consisting of around 13 pages and reviewing no more than 50 cases. Nowadays we work hard to keep the Review under 40 pages in length and report on nearly 100 cases. Printing deadlines and life events (not necessarily in that order) have led us to impose a deadline of 4 July 2008 on this year’s Review and we apologise for the fact that this means we will miss out on Judgments handed down after that date (notably, the European Court of Justices’s Judgment on the issue of disability discrimination by association in Coleman v Attridge Law and the Court of Appeal’s perspective on the various equal pay issues raised by cases such as Surtees and Bainbridge). We will look forward to reviewing these developments in 2009, along with (and, no doubt, in the context of) the progress that will have been made on the Single Equality Act. For 2008, we have been assisted in our task by our colleague Claire Bowsher-Murray, to whom we are indebted.

1

vulnerable group of workers. In recognition of the importance of this measure, we dedicate this year’s Review to Andrew Miller MP, whose private member’s Bill was the genesis for this development.

labour law review 2008

Jennifer Eady Q.C. Rebecca Tuck Old Square Chambers, London

2

Betsan Criddle

WHAT IS THE INSTITUTE? The Institute of Employment Rights was launched on 28th February 1989 and was granted charitable status in 1994. As a labour law “think tank”, supported by the trade union movement, our purpose is to provide research, ideas and detailed argument on all aspects of employment law. As a charity, however, we are not a campaigning organisation.

The Institute has attracted wide and distinguished support creating a unique network of lawyers, academics and trade unionists. Among the membership are John Hendy QC, Professor Keith Ewing, Professor Aileen McColgan, Professor Brian Bercusson and the general secretaries of Britain’s largest trade unions.

The results of our work are published in papers and booklets. We also provide short articles, free of legal jargon, for trade union journals and other publications. Dissemination of our ideas is increasingly achieved through seminars and conferences as well as our educational courses.

The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems.

However, we recognise that law has a part to play in influencing the employment relationship, both individually and collectively.

Our funding is from various sources, including subscriptions, which entitle subscribers to a copy of all our new publications and reductions in conference fees.

If you are interested in subscribing or would like to know more about the Institute, then contact us at The People’s Centre, 50 Mount Pleasant,Liverpool, L3 5SD or email us at office@ier.org.uk. Or visit our website at www. ier.org.uk

£6.50 TRADE UNIONS AND STUDENTS £20 OTHERS