Employment Law Titles ~ Autumn 2006


Smoking at Work
Three sets of draft regulations on smoke-free premises and vehicles, to be made under powers in the Health Bill, have been published for consultation. These are the:
  • Smoke-free (General Provisions) Regulations;
  • Smoke-free (Exemptions and Vehicles) Regulations; and
  • Smoke-free (Penalties and Discounted Amounts) Regulations.
Under the regulations, 50 per cent of an outside smoking area must be open. The consultation includes definitions of ‘enclosed’ and ‘substantially enclosed’ for the purposes of the legislation, and what constitutes a ‘roof’, as well as signage requirements for premises and vehicles and the intended level of penalties for offences.
Details are included of the operation of the law with regard to private dwellings that are also a workplace, hotels and other residential accommodation.
It is proposed that work vehicles that are used as a workplace by more than one person, regardless of whether they are in the vehicle at the same time, must be smoke-free at all times.
The draft regulations can be found at http://www.dh.gov.uk/assetRoot/04/13/73/26/04137326.pdf.
NHS – Chaperones for Male Nurses
The Employment Appeal Tribunal (EAT) has found that a male student nurse was discriminated against when he was required to be accompanied by a female chaperone in order to administer an electro-cardiogram (ECG) to a female patient at Barts Hospital in London in May 2003 (Moyhing v Barts & London NHS Trust).
Andrew Moyhing was on his final placement and was intending to carry out an ECG on a female patient who had breathing difficulties. The procedure would inevitably involve touching the patient’s chest area and he was told that he had to be accompanied by a female chaperone. Female nurses, however, were allowed to carry out the same procedure on male patients without the need for a male chaperone.
Mr Moyhing felt that he was being regarded as untrustworthy and a potential abuser of females, or that the patient was likely to lie and make false accusations. He declined to carry out the procedure and subsequently brought a claim for sex discrimination on the ground that he had been subjected to a detriment during the course of his vocational training.
At the Employment Tribunal (ET), the NHS Trust accepted that the difference in treatment between male and female nurses was direct discrimination but contended that Mr Moyhing had suffered no detriment. The ET agreed, finding that it was not reasonable of him to decline to proceed with the ECG. Although there can be no justification for less favourable treatment in a case of direct discrimination, Mr Moyhing’s unjustified objection to the chaperone system undermined his claim to have been disadvantaged and to have suffered detriment from less favourable treatment on the grounds of sex.
The EAT, however, found that however sensible the policy was, it was not unreasonable for a male nurse to feel that it was demeaning and irritating to have to be chaperoned and this was sufficient to constitute a detriment, albeit a relatively minor one. In the EAT’s view, the ET seemed to have approached the issue of detriment by assuming that if the reason for the discriminatory policy was rational then it could not be justified to object to it. Such an approach has the effect of ‘reintroducing justification under the guise of detriment’.
Whilst the EAT sympathised with the Trust and with other hospital trusts which have adopted similar policies, for good and objective reasons, unless the legislation is changed so that the concept of justification is extended so that it can in some instances apply to direct discrimination, there is no legal basis for treating male and female student nurses differently.
The EAT awarded Mr Moyhing compensation of £750.
Says <<CONTACT DETAILS>>, “Employers should take care to ensure that employment policies which on the face of it may appear to be sensible are not in fact discriminatory. If you would like assistance in carrying out an audit of your policies and procedures, please contact us.”
Stroke Victim Wins Disability Discrimination Claim
A 22-year-old woman has won £20,000 in damages against her former employer because she was sacked from her job after she suffered a stroke and became blind.
Hayley Tudor worked as an animal nursing assistant. In May 2005, she had a stroke which resulted in her losing her sight. In July, she telephoned her employer, Spen Corner Veterinary Surgery, to tell them that she was out of hospital and was able to come back to work, only to be told that she had already been sacked.
Her employer had made the assumption that Ms Tudor would not be able to carry on working after her stroke and had failed to consider making any adjustments to her working conditions in order to help her overcome the practical effects of her disability. Ms Tudor raised a grievance and asked that this be dealt with using the modified grievance procedure. When the Veterinary Surgery requested that she fill in a questionnaire, Ms Tudor refused as she did not feel she was in a position to supply the requested information. As a result, her employer said that it could not agree to the modified procedure and there were no reasonable adjustments that could be made to accommodate her disability.
Ms Tudor took her case to the Employment Tribunal, which found that her employer had made generalised and stereotypical assumptions that she wouldn’t be able to do her job because of her disability and this amounted to direct discrimination. She had also been discriminated against because her employer had failed to make reasonable adjustments to her working conditions. Ms Tudor’s job consisted mainly of receptionist duties and it would have been possible to make some reasonable adjustments to enable her to carry on working. The dismissal was also automatically unfair because the employer had not complied with the statutory dismissal procedures.
Ms Tudor was supported in her claim by the Disability Rights Commission.
Says <<CONTACT DETAILS>>, “It is unlawful for employers to treat a disabled person less favourably on the grounds of his or her disability unless such treatment can be shown to be justified. If a person is disabled, the employer has a duty to make reasonable adjustments to their working conditions and the premises to enable them to do their job. Generalised or stereotypical assumptions regarding a disability or its effects that lead to less favourable treatment are likely to be direct discrimination. The definition of disability for the purposes of the Disability Discrimination Act extends to protection for those diagnosed with progressive forms of cancer, HIV and multiple sclerosis as well as those suffering from mental illness. Contact us for advice on any aspect of discrimination law.”
Temps and Voluntary Workers Suffer as CRB Changes Policy
Voluntary workers and other people who habitually work on temporary contracts may suffer as temporary job opportunities dry up due to a change in policy by the Criminal Records Bureau (CRB).
The change will affect people whose jobs are subject to vetting by the CRB – usually where the work involves contact with children or other vulnerable people. These jobs require a ‘background check’ to be carried out by the CRB.
Prior to the change, an employer could rely on a ‘portability request’ – whereby a previous employer’s CRB check was obtained from the CRB. These, however, are no longer being supplied. New CRB checks take up to six weeks to complete, which will make obtaining them impractical for short-term appointments, especially those which are required to fill an unexpected vacancy.
Guidance on the CRB website stresses the limitations of the re-use of a previous check provided by the applicant and makes it clear that this does not constitute a fresh check. Furthermore, some positions will automatically require a fresh check to be obtained.
Voluntary associations and charities are expected to be hit hard by this change in policy. If you are affected, contact us for advice on your legal obligations.
Further guidance can be gained from the CRB website at http://www.crb.gov.uk/Default.aspx?page=2244.
The Welfare Reform Bill
Approximately 2.7 million people currently claim Incapacity Benefit. In May 2005, the Government announced its intention to introduce an ‘Incapacity Benefit Bill’ to replace the existing benefits system for those whose health affects their ability to work.
The Department for Work and Pensions affirmed that a change in the way claimants are assessed was necessary because there are more people off work because of depression, stress and anxiety than there were when the test was developed over 20 years ago.
Subsequently, a Green Paper was issued, in January 2006, entitled ‘A New Deal for Welfare: Empowering People to Work’. This set out proposals for getting up to 1m people off Incapacity Benefit if they are fit to work. The Green Paper led to the Welfare Reform Bill, which had its first reading in the House of Commons on 4 July 2006.
As is often the case with Government Bills, the Welfare Reform Bill contains several enabling powers, so that Ministers can make regulations to achieve the aims of the Bill, rather than precise details of how the law will operate.
Proposed measures include the replacement of Incapacity Benefit by an Employment and Support Allowance from 2008 onwards. Claimants will undergo an updated capability assessment and those assessed as able to work may be required to undergo further ‘work-focused interviews’ and undertake ‘work-related activity’ (training or work trials) designed to increase their chances of getting a job. Claimants could also be offered programmes designed to help them manage their condition. If a claimant fails to undertake such assessments, interviews or activity as required, without ‘good cause’ (as yet to be defined in regulations), the Bill enables the benefit to be reduced (‘sanctioned’).
One of the problems the Government faces in providing the incentives and support required for those who have been on Incapacity Benefit for some time to return to the workplace, if they are able to do so, is the need to overcome a resistance on the part of employers to recruit people with a track record of poor health. The recent CIPD/KPMG quarterly ‘Labour Market Outlook’ survey of more than 1,000 employers found that almost 1 in 5 do not consider job applications from people on Incapacity Benefit for reasons of mental ill-health and 1 in 10 do not consider applications from those on Incapacity Benefit for physical health reasons.
As well as trying to get those who are capable back to work, the Welfare Reform Bill also aims to strengthen the way in which benefit fraud is tackled by extending the time period for the purpose of the ‘two strikes’ rule. Certain benefits may be reduced or withdrawn where a person commits a benefit offence within five years (rather than the current three years) of a conviction for a previous benefit offence.
Changes are also proposed to the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, to clarify the rules under which compensation is payable to workers who have suffered certain dust-related diseases, as a result of exposure at work, or to their dependants, where damages cannot be claimed from the employers responsible because they have ceased to be in business.
TUPE and the Date of Transfer – Longer Version
The European Acquired Rights Directive was introduced in order to safeguard workers’ rights in the event of a business transfer and gave rise to the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) in the UK.
In the case of Celtec Ltd. v Astley and others, the House of Lords sought a ruling from the European Court of Justice (ECJ) as to what exactly is meant by the words ‘date of transfer’ in article 3(1) of the Directive.
In 1990, Mr Astley was one of a group of civil servants who were seconded for a three-year period from the Department of Education to work for the North East Wales Training and Enterprise Council. During this time the workers retained their status as civil servants and at the end of the period they had the option of becoming employees of the new body or returning to civil service duties.
After the three-year period, Mr Astley chose to resign from the civil service and took up formal employment with the transferee, which later became Celtec Ltd.
In 1998, some of the transferred employees were made redundant by Celtec and so joined in an application to the Employment Tribunal (ET) to decide on their correct length of service. The issue was important to the employees as it made a significant difference to their entitlement to redundancy pay.
Mr Astley argued that his employment with Celtec should be regarded as continuous with his prior employment as a civil servant, which commenced in 1975. Celtec argued that the relevant part of the business had been transferred in 1990, three years before Mr Astley became an employee of the Training and Enterprise Council (TEC) and he was therefore not entitled to continuity of employment from the date he joined the civil service.
The ET ruled that the employees could claim continuity of employment from the date they joined the civil service. The Employment Appeal Tribunal then overturned this decision. The Court of Appeal found that the management and skills of the employees were available to the TEC from 1990, even though the staff were initially on secondment. In the Court’s view the wording of the EC Acquired Rights Directive was such that it could include the transfer of a business which took place in stages over a period of time. Mr Astley could, therefore, claim continuity of employment back as far as 1975.
The House of Lords granted Celtec leave to appeal and made a referral to the ECJ for clarification of the law. In the light of this, the Lords held, in a 4:1 ruling, that a transfer to which the TUPE Regulations apply must take place on a specific date, rather than over a period of time, and it is not open to employers and employees to agree a different date. The civil servants in this case were deemed to have transferred to the new undertaking when their department was privatised in 1990, even though they did not become employees of the TEC until 1993. Their continuous employment therefore began when they joined the civil service.
The judgment by the House of Lords was made on different grounds from those advanced at the ET. Normally, new arguments cannot be advanced on appeal but they were allowed to be put forward in this case as reference had been made to the ECJ for an interpretation of the relevant law.
Says <<CONTACT DETAILS>>, “The date of transfer of a business undertaking therefore must be a particular point in time and cannot refer to the length of time it takes to complete the process. This case has implications for employers who have ‘inherited’ workers in similar circumstances. Always take advice in the early planning stages of a business transfer, before any action is taken.”
TUPE and the Date of Transfer – Shorter Version
Following a referral to the European Court of Justice (ECJ), the House of Lords has handed down its ruling in Celtec Ltd. v Astley and others.
In 1990, Mr Astley was one of a group of civil servants who were seconded from the Department of Education to work for the North East Wales Training and Enterprise Council, when their department was privatised. After three years, he chose to resign from the civil service and took up formal employment with the transferee, which later became Celtec Ltd. When he was made redundant in 1998, Mr Astley, in a representative case, won his case at the Employment Tribunal (ET) that his employment with Celtec should be regarded as continuous with his previous employment as a civil servant, for the purposes of determining his redundancy entitlement.
The Employment Appeal Tribunal overturned this decision but Mr Astley won on appeal to the Court of Appeal.
Following the ECJ ruling, the House of Lords held that a transfer under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) must take place on a specific date, rather than over a period of time, and that it is not open to employers and employees to agree a different date. The date of transfer for the civil servants in this case was deemed to be when their department was privatised in 1990, even though they did not actually become employees of Celtec until 1993. Their continuous employment therefore began when they started working for the civil service, which in Mr Astley’s case was in 1975.
New arguments were allowed to be put forward in this case as reference had been made to the ECJ for an interpretation of the law.
Says <<CONTACT DETAILS>>, “This case has implications for employers who have ‘inherited’ workers in similar circumstances. Always take advice in the early planning stages of a business transfer, before any action is taken.”
Unfair Dismissal Whilst on Sick Leave
Many employment law cases over the years have been concerned with the correct method of assessing the loss suffered by an employee when determining the amount of compensation to be awarded when an employee has been unfairly dismissed.
In a recent case (Langley and another v Burso), the Employment Appeal Tribunal (EAT) considered whether the loss should be calculated solely by reference to the loss flowing from the dismissal, or whether the Tribunal can also take account of loss resulting from the employer’s failure to follow good industrial relations practice.
Ms Burso was employed by Mr Langley and Ms Carter as a nanny to their two children. She had worked for the couple for over four years when her contract was terminated following an argument over the payment of a salary increase. Under her contract of employment she was entitled to eight weeks’ notice in the event of termination.
Shortly before her dismissal, Ms Burso was involved in a car crash, unrelated to her job, which left her unable to work during what would have been her notice period under her contract.
Ms Burso brought claims for unfair dismissal, wrongful dismissal, unauthorised deductions of salary and sex discrimination. The Employment Tribunal (ET) upheld her complaints of unfair and wrongful dismissal. It held that she was contractually entitled to full pay during her notice period and the dismissal was also unfair because there was no properly convened disciplinary hearing or right of appeal.
The ET awarded damages of £3,440, being eight weeks’ net pay, for breach of contract, plus a compensatory award of £5,736, to which was added the basic award in relation to the unfair dismissal claim. The compensatory award for unfair dismissal did not include any amount relating to the notice period itself because the ET had already identified the loss for that period in the damages for wrongful dismissal.
Mr Langley and Ms Carter appealed against the way the damages award was calculated. They argued that Ms Burso’s contract clearly stated that she would receive statutory sick pay if absent through illness. For the eight-week period this would amount to approximately £440. Ms Burso cross appealed on the grounds that even if she were not due the £3,440 as damages for breach of contract, nonetheless, under the unfair dismissal provisions, case law established that she should have been awarded full pay for the notice period. This argument relied on the principle in the case of Norton Tool v Tewson that it is good industrial relations practice for an employer who dismisses without notice to make a payment in lieu of notice and damages for unfair dismissal should therefore include full pay for the notice period.
Mr Langley and Ms Carter won their appeal. Whilst the EAT agreed with the general principle in Norton Tool v Tewson, that case did not establish a rule of law requiring an employer to pay full pay for the notice period in all circumstances. The Tribunal was neither obliged nor entitled to grant compensation for full pay during the notice period as part of the unfair dismissal compensation.
In the light of the House of Lords’ decision in Dunnachie v Kingston-upon-Hull City Council (which established that the fact that the Employment Rights Act 1996 requires compensation to be ‘just and equitable’ cannot be used to extend the scope of the loss beyond that which flows from the dismissal itself), the EAT could see ‘no legitimate basis for assessing the compensatory award so as to provide a bonus over and above the loss in fact flowing from the dismissal itself’.
However, the EAT did grant Ms Burso leave to appeal on the issue raised in her cross appeal in view of the conflicting authorities which exist on this question.
Please contact <<CONTACT DETAILS>> if you would like advice on any employment law matter.
Vicarious Liability for Harassment
The House of Lords has upheld the Court of Appeal’s decision in the important case of Majrowski v Guy’s & St Thomas’s NHS Trust, which dealt with vicarious liability for breach of any statutory duty and, specifically, with regard to breaches of the Protection from Harassment Act 1997 (PFHA).
Mr Majrowski was employed by Guy’s and St Thomas’s NHS Trust as a clinical audit co-ordinator. He alleged that during his time working in that post his line manager subjected him to homophobic bullying and intimidation. He brought a claim for damages against the Trust on the basis that as the employer it was vicariously liable to him, under section 3 of the PFHA, for the actions of its employee. The Central London County Court struck out the claim on the basis that an employer cannot be held vicariously liable under the Act for harassment committed by an employee. The judge did, however, grant permission for the appeal because he considered that the case raised a point of law that needed to be authoritatively determined.
The Court of Appeal held that employers can be vicariously liable for breaches of statutory duty as well as breaches of common law obligations, subject to the wording of the Act in question. In addition, in a majority decision the Court judged that there was nothing in the PFHA that prevented an employer being held vicariously liable for harassment by one employee of another, in the course of his or her employment, provided a sufficiently clear link can be established between the work and the harassment.
The House of Lords unanimously upheld this decision and the case can now proceed to trial.
The PFHA does not specifically define harassment. However, to constitute harassment, the conduct in question must be repeated (i.e. happen more than once), calculated to cause distress and has to be oppressive and unreasonable. Also, the perpetrator must know, or ought to know, that the conduct amounts to harassment and it must be conduct which a reasonable person would judge to be harassment.
The decision has serious implications for employers. Under the Act, it is not necessary for the victim of harassment to prove that they have suffered a physical or psychiatric injury. Unlike personal injury claims, the victim only has to demonstrate that he or she has suffered anxiety and distress. The use of such claims is therefore likely to increase and claims for damages on account of bullying and harassment, where there is no apparent element of sex or race discrimination, may now be brought against employers in the courts, with more likelihood that an award for damages can be met than if the case were brought against an individual. In addition, the time limit for bringing claims under the PFHA is six years.
Employers are advised that having an anti-harassment policy in place is not enough. Unlike in discrimination claims the statutory defence that they took all reasonable steps to prevent the harassment is not available to employers under the PFHA. All staff must be aware that any form of discrimination, bullying or harassment will not be tolerated and be clear as to the penalties for failing to comply. Positive action must be taken to eliminate employee behaviour of a kind that could cause distress and anxiety to others in the workplace and any incidence of such behaviour must be dealt with at once to the satisfaction of the alleged victim. Contact <<CONTACT DETAILS>> if you would like advice on this matter.
‘Whistleblowers’ – Protection Extends to Detriment Suffered After Termination
The Court of Appeal has held (Woodward v Abbey National plc) that the ‘whistle-blowing’ provisions of the Employment Rights Act 1996 (ERA), which protect workers from detrimental treatment if they have made a protected disclosure, continue to apply where the alleged detriment was inflicted and suffered after the termination of the whistleblower’s employment.
Mrs Diana Woodward claimed that she had suffered unlawful victimisation at the hands of her ex-employer, including a refusal to provide a reference. She had made a protected disclosure some years earlier when she was still working for Abbey National plc.
In an earlier case (Fadipe v Reed Nursing Personnel Ltd.) the Court of Appeal had ruled that the ERA only protected employees against detriments suffered whilst in employment. The Employment Tribunal (ET) duly held that it did not have jurisdiction to hear Mrs Woodward’s claim since the alleged detriment occurred after her employment with Abbey National had ended. The Employment Appeal Tribunal dismissed an appeal, concurring that the purpose of Part V of the ERA was to protect employees who make a protected disclosure from suffering a detriment whilst still in that employment.
However, in 2003 the House of Lords ruled (Rhys-Harper v Relaxation Group plc) that an employee who has previously brought a discrimination claim against his or her employer is entitled to protection under the discrimination laws if they suffer victimisation after the employment has ended. This would normally take the form of refusing to give a reference or of providing a bad reference.
In Woodward v Abbey National plc, the Court of Appeal decided that complaints of detriment under the whistle-blowing provisions of the ERA deal with the same concept as victimisation complaints under discrimination legislation and therefore overturned its earlier decision in Fadipe v Reed Nursing Personnel Ltd. Lord Justice Ward was of the view that ‘it simply makes no sense at all to protect the current employee but not the former employee, especially since the frequent response of the embittered exposed employer may well be dismissal and a determination to make life impossible for the nasty little sneak for as long thereafter as he can. If it is in the public interest to blow the whistle, and the Act shows that it is, then he who blows the whistle should be protected when he becomes victimised for doing so, whenever the retribution is exacted.
The matter will now be sent back to the ET for its determination.
Employers should ensure that policies and procedures are in place to ensure that an ex-employee does not suffer detrimental treatment which could give rise to a claim of victimisation on one of the protected grounds. Particular care should always be taken when providing references as a refusal could be victimisation unless you have a blanket policy in place whereby references are no longer provided for ex-employees after a set time after their employment has ended and the policy is adhered to strictly.
Please contact <<CONTACT DETAILS>> if you would like advice on any employment law matter.
Widow of Asbestos Victim Agrees Settlement
Exposure to asbestos is the greatest single cause of workplace deaths in the UK.
Recently, the widow of a former scaffolder, who was exposed to asbestos and died of lung cancer, won her battle for compensation. Bill Byrne, who died in 2002 aged 71, had worked for Lyndon Scaffolding and Mills Scaffolding in the 1950s and 1960s. Mr Byrne's brother and workmate had also died of lung cancer, due to asbestos exposure, seven years before his own death. Mr Byrne, his brother and others were regularly sent by their employers to put up scaffolding around power stations where asbestos was present.
In order to win the case, lawyers for Mrs Byrne had to show that, on the balance of probabilities, Mr Byrne's cancer was caused by asbestos exposure. This was difficult because there are other well-known causes of lung cancer, such as smoking. Medical evidence was presented, however, which showed that Mr Byrne's chances of developing lung cancer were significantly increased by his exposure to asbestos.
Mrs Byrne's case was also helped by evidence provided by those who had worked alongside her husband. Former colleagues explained how at the end of a day’s work it was normal for them to be covered in asbestos dust. No protective clothing or facemasks were provided and no warnings were given about the health implications of asbestos.
An undisclosed five-figure sum was agreed upon.
The Compensation Act 2006, which includes a provision that employers are to be jointly and severally liable for any compensation due to employees who have suffered injury as a result of exposure to asbestos fibres by more than one employer, received Royal Assent on 25 July. This, in effect, overturns the recent decision of the House of Lords that responsibility for the damages payable should be apportioned amongst all those responsible, according to the degree to which they contributed to the chance of the worker contracting the disease.
Asbestos is most commonly found in buildings constructed or refurbished before 1985, although it may be present in those built more recently. Workers most at risk from exposure are those involved in building maintenance, repair or refurbishment work, such as plumbers, carpenters and electricians. However, those who install computers, fire alarms, cabling or telecommunication systems are also at risk of disturbing asbestos or asbestos cement, thereby releasing the dangerous fibres into the air.
Employers with potential liabilities in this area should ensure that their insurance cover provides adequate protection in the event of a claim.
Written Statement of Terms and Conditions
The Employment Act 2002 made changes to the law relating to an employer’s failure to provide an employee with a written statement of the terms and conditions of his or her employment. The changes took effect on 1 October 2004.
Prior to that date, the only sanction on the employer was that the Employment Tribunal (ET) could order the defaulting employer to supply any missing particulars.
Since 1 October 2004, where the ET finds that an employer has failed to provide an employee with the required particulars of employment, the ET normally has to award either two or four weeks’ pay, unless there are ‘exceptional circumstances which would make an award or increase….unjust or inequitable’. There is a maximum limit to a week’s pay for this purpose, which is currently set at £290 where the appropriate date is on or after 1 February 2006. However, an employee cannot bring a claim on this ground alone. The new rules only apply where the employee has successfully brought another substantive claim.
In a recent unfair dismissal case (Lewald-Jezierska v Solicitors in Law Ltd.) the Employment Appeal Tribunal ruled that an employee is entitled to an award where an employer is found to have failed to provide a written statement of terms and conditions even if the dismissal took place before 1 October 2004 and the claim was lodged before that date.
The case dealt with a dismissal which took place in October 2003. The hearing subsequently took place in October 2004. At the ET, the company in question conceded that Mrs Lewald-Jezierska had not been provided with a written statement of terms and conditions. At a separate remedies hearing, the ET did not deal with this failure other than to order payment of unnotified deductions from salary of £168 arising because the employment particulars had not been given.
When the case went to appeal, Mrs Lewald-Jezierska submitted that under the Employment Act 2002 the ET is obliged to make an award of at least the minimum amount equal to two weeks’ pay and had erred in law by not doing so.
Solicitors in Law Ltd. argued that the dismissal took place before the Act came into force and so the ET had no jurisdiction to award compensation as the relevant section (s.38) could not have been intended to have retrospective effect.
The EAT found nothing in the relevant legislation to exclude a case relating to a dismissal that occurred before 1 October 2004 and was of the view that it was open to Parliament to have excluded such cases had it intended to do so. The relevant section of the Act creates a new remedy for failure to comply with a pre-existing obligation. It does not create a new obligation.
If you would like advice to ensure that the written statement of employment particulars you provide to employees contains the necessary information, please contact <<CONTACT DETAILS>>.

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