The employment law team at Pinsent Curtis Biddle answer questions onworkplace issuesStatement of terms and conditions Q: I have heard of a caserelating to the statement of terms and conditions of the employee. We use themto set out the contractual terms for our employees – should we? A: No. We advise clients thatthey should additionally use comprehensive contracts of employment issued atthe stage of offer and acceptance of the job. The case is Lovett v Wigan Metropolitan Council. The Court of Appeal heldthat the terms and conditions discussed during an employee’s interview andcovered in a subsequent letter formed a contract of employment. Contrary to theemployer’s arguments, the statutory written particulars and appended documentsthat were issued following commencement of the employment relationship wereheld to not form part of the contract. An employee has the right to receive a written statement of the substantiveterms and conditions from the employer within two months of starting work butthis is not intended to carry contractual force. In Lovett it was found thatthere was no evidence that the employee had it properly made clear to him thathis career progression depended on “he needs of the department”.Although this condition was contained in the statutory written particulars, itwas not in line with what had been agreed orally and confirmed in the offerletter and therefore could not form part of the contract. Lovett does not mean that there is new law for employers to grapple with,but it is a reminder of how the courts regard the statement of particulars – asa statutory obligation and not a contractual document. Christopher Booth Compromise Agreements Q: Is it true that it isgoing to be more difficult to rely on a compromise agreement in the future? A: In one sense, yes. Thedecision in BCCI (In compulsory liquidation) concerned the interpretation ofcompromise agreements signed by ex-staff of the bank, via Acas. Inconsideration for one month’s salary and after an interview with an Acasofficial, the employees signed an agreement stating that the payment was: “…in full and final settlement of all or any claims whether understatute, common law or in equity of whatsoever nature that exist or may existand in particular, all or any claims, rights or applications of whatsoevernature that the applicant has or may have or has made or could make in or tothe industrial tribunal, except the applicant’s rights under the respondent’spension scheme”. The House of Lords held that this wording did not preclude the employeesfrom proceeding with claims for “stigma” damages arising from the collapseof the bank and their dismissal. The court did not intend to frustrate the parties’ intentions but in theabsence of clear language, it will be “very slow to infer that a partyintended to surrender rights and claims of which he was unaware and could nothave been aware”. Lord Nicholls described the signing of a compromise agreement as an”informal release” and this would seem to be at odds with the factthat it is a legally binding agreement under statute. He also stated that thewording of the agreement would probably not be sufficient to have compromised aclaim for underpayment of wages. Martin Brewer Race and “national origin” Q: What is the latestposition on “national origin” under the Race Relations Act? A: In BBC Scotland v Sousterit was held that the Race Relations Act covers discrimination against anindividual on the basis that he or she is English. Under the Act’s definitionof national origin, the Scots and English are separate racial groups. The situation arose in this case because Souster was English and had beenemployed as a presenter of a Scottish television programme. His contract wasnot renewed and a Scottish woman was appointed in his place and he argued thathe had been discriminated against on racial grounds. The Court of Session said that the Act was applicable in this situation bydeciding that the issue of “national origin” should not be restrictedby the nationality test, which would not serve to distinguish between theScots, Welsh, English or Northern Irish. The employment tribunal to which thecase has been returned will now decide Souster’s case. Geoff Tyler Holiday entitlement Q: Are employees going to beable to claim their holiday entitlement under the Working Time directive fromDay One of their employment? A: Many are aware that UKworkers do not acquire the right to four weeks of annual paid leave until theyhave been working for thirteen weeks. However, the Advocate General of theEuropean Court maintained in Bectu v UK that the 13-week qualification periodis unlawful. The right to paid leave is “an automatic and unconditionalright granted to every worker” and there is no provision within thedirective that makes it subject to the 13-week period. The Advocate General even went so far as to say that the Working Timedirective “precludes” national legislation from making the rightsubject to a qualifying period. It remains to be seen whether the EuropeanCourt will follow this. Ashley Norman Transfer of Undertakings Q: What is the latestEuropean Court case law on transfer of undertakings? A: The European Court case ofAyse Suzen in 1997 indicated that there must be, for a transfer, a transfer ofsignificant tangible or intangible assets or, alternatively, in alabour-intensive function, a taking over by the new employer of a major part ofthe workforce in terms of numbers and skills. British courts have given many recent decisions flying in the face of theseconditions finding a transfer without either condition being satisfied. But thelatest ECJ case in Oy Liikenne Ab v Liskojarvi and Juntunen (Case C-172/99, 25January 2001) indicates that the European Court is still proceeding with itshard line. In this case, there was a transfer of bus operators operating bus routes inHelsinki. Most of the staff were taken on but not the majority of buses. TheEuropean Court held that this was an asset reliant undertaking and the merefact of taking over of a major part of the workforce was not a conclusivefactor and therefore, since the buses were not (in the main) transferred, therewas no transfer of an undertaking. This indicates the very stark contrast between the more liberal approach totransfers in Britain and the tests laid down by the European Court. New Tuperegulations due later this year are urgently needed to clarify the confusion. Dr John McMullen National Head of Employment Law Pension rights and part-time workersQ: We employ many part-timersand are concerned about the situation with regard to pension rights. Can youexplain what the position is?A: Many employers areconcerned about the position of part-time workers’ pensions following thedecision by the House of Lords in Preston. There are three key elements to the decision: the six-month limitationperiod, the position of employees on fixed-term contracts and the two-yearrestriction on backdating claims. The six-month limitation period is set out in the Equal Pay Act and was opento challenge if the House of Lords found that it was less favourable thansimilar domestic limitation periods. The House of Lords found that theprocedural rules under the Equal Pay Act were not overall less favourable thanthose governing breach of contracts claims which are subject to a six-yearlimitation period. This means that claims presented more than six months afterthe termination of the applicant’s employment will be statute barred.Where there are successive fixed-term contracts concluded at regularintervals in respect of the same employment to which the same pension schemeapplied, resulting in a stable employment relationship then the limitationperiod will only start to run from the end of the employment relationship. Ifthis stable employment relationship cannot be shown, then the limitation periodwill run from the end of each separate contract.Employers cannot rely on the Equal Pay Act to defeat a claim for periodsprior to the two years being taken into account. Successful applicants willtherefore have the right to their future pension benefits calculated byreference to periods of service subsequent to 8 April 1976 (the date when theECJ first held that Article 141 could be relied on directly by individuals). Thiswill be subject to the employee paying contributions he or she owed for therelevant period. This will be important in contributory schemes, particularlywhere the contributions are relatively high. This will not be a deterrent foremployees in non-contributory schemes or where the contributions are low. Itmay still be possible – even if indirect discrimination is made out inprinciple – that the discrimination is justified on grounds other than sex. Men who work part-time may also be entitled to retroactive membership ofpension schemes if their female colleagues are found to be indirectlydiscriminated against. Robert Mecrate-Butcher Questions and answersOn 1 Apr 2001 in Personnel Today Previous Article Next Article Comments are closed. Related posts:No related photos.
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