LABOUR LAW REVIEW 2009 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. 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). ISBN 978-1-906703-06-6 August 2009 published by the Institute of Employment Rights The People’s Centre, 50-54 Mount Pleasant,Liverpool, L3 5SD e-mail office@ier.org.uk www.ier.org.uk print and layout by Upstream (TU) 020 7207 1560 £6.50 for trade unions and students £20 others
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 2009 by Jennifer Eady QC, Rebecca Tuck and Betsan Criddle
contents
Introduction
1
Trade union members
2
Central Arbitration Committee
2
Negligence and health and safety at work
3
Stress at Work Work Equipment
Pay and other terms and conditions
5
Employment rights
7
Worker status Parental responsibilities Right to be accompanied Whistleblowing
Working time regulations
labour law review 2009
Holiday pay Rest periods
ii
3 4
7 8 8 9
10 10 11
TUPE
12
Unfair dismissal
14
Employment status
14
Dismissal and unfairness
Remedies Unauthorised deductions Unfair dismissal Working Time
16 17
19 19 19 21
Redundancy
22
Equality
23
Equality Bill
Equal pay Pay protection schemes
23
26 29
Sex discrimination
34
Pregnancy and maternity
34
Race discrimination
35
Disability Discrimination
37
Disabled Associative discrimination Comparator Reasonable adjustments
37 38 39 39
labour law review 2009
Statutory dismissal and disciplinary procedure and grievance procedure
iii
labour law review 2009
iv
Religion and belief
40
Sexual orientation
42
Age discrimination
42
Human rights
46
Employment tribunals
47
Endnotes
52
IER Publications
55
labour law review 2008
Introduction As countries faced financial meltdown and the global economy seemed to go the way of the polar ice caps, the year 2008-2009 will clearly be remembered for some time to come. The one area that has continued to experience solid growth has, however, been that of employment law. Although equal pay cases are still substantially in the lead, there have also been significant developments in other areas, particularly age, disability and religion and belief discrimination.
As this is my last year as a contributor to the Review, I shall await next year’s commentary with interest. My colleagues from Old Square Chambers – Rebecca Tuck, Betsan Criddle and Claire Bowsher-Murray – will be continuing to shoulder the burden for the future. The Review will be in good hands. Jennifer Eady QC Old Square Chambers, London July 2009
labour law review 2009
Meanwhile, the Equality Bill is now moving towards the statute books. Subject to constraints on Parliamentary time and any changes that might be brought about by a general election in the meantime, 2010 may well see the introduction of a single Equality Act that both consolidates and strengthens our anti-discrimination laws.
1
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, Jim Mortimer, Tess Gill 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, 50-54 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