The number of people asking the Commission for Racial Equality (CRE) for assistance with employment problems fell by nearly one-third last year, according to the organisation’s annual report¹.

Overall, applications for help with all issues dropped by 30%, with the CRE’s office in Wales experiencing a fall of 68%. The proportion of all cases dealing with employment issues also fell, from 58% of applications in 2002 to 54% in 2003.

The report says that this decline, from 761 employment cases in 2002 to just 486 in 2003, reflects three main developments:

• Increased awareness of tighter criteria for accepting cases
• A reduction in the resources currently available to deal with enquiries
• An increase in the number of cases being taken on by racial equality councils.

Explaining the new criteria, the report says: “Although we have always recognised that we cannot assist everyone who applies to us for assistance, in previous years we did strive to assist everyone who had an arguable case.

“In 2003, as our legal strategy was put into effect, we began to give priority to cases that clarified points of law or created precedents; that affected large numbers of people; that would help to produce legislative change; or that tested the race equality duty.

“We also looked to assist cases that had a stronger prospect of success than simply that they were arguable.”

Of the 35 CRE-assisted employment cases in 2003, seven were successful at hearing, eight were dismissed, 18 were settled during litigation and two had other outcomes. Awards totalling £21,000 and settlements of £559,384 were achieved.

This compared with the 45 cases assisted in 2002, which resulted in awards and settlements of £461,398.

Meanwhile, in its annual report², the Disability Rights Commission (DRC) says that it helped 655 disabled people with employment cases in 2003 and took 30 cases to tribunals and higher courts.

Of the employment cases dealt with last year, around one-third concerned employers’ failures to make reasonable adjustments for disabled employees or dismissal. See table 1.

The DRC says that it conducted a substantial review of research in 2003 to generate an effective evidence base for its employment work, and that it will be ‘investing substantially’ in this area over the coming year.

The review covered geographical factors, growth areas of the economy, the views and practices of employers on disability and channels for influencing them.

Table 1: Employment cases assisted by the Disability Rights Commission

1. Annual report of the Commission for Racial Equality, available at www.cre.gov.uk
2. 2003–04 annual report of the Disability Rights Commission, available at www.drc.org.uk

Mobile workers in road transport are currently excluded from certain protections granted to most workers by the Working Time Directive 93/104/EC, as implemented in the UK by the Working Time Regulations 1998 (‘the WTR’). Under the WTR, they are only entitled to four weeks’ paid annual leave and health assessments for night workers (WTR reg. 7).

They are also covered by European Regulation 3820/85 (‘the EU drivers’ hours rules’) and European Directive 2002/15/EC on the organisation of working time of persons performing mobile road transport activities (‘the Road Transport Directive’). The Road Transport Directive must be implemented in the UK by 23 March 2005 and, on 1 November 2004, the Department for Transport (DfT) issued draft Road Transport (Working Time) Regulations (‘the Road Transport Regulations’) and guidance for consultation¹. The consultation period ended on 12 December 2004. Regulations were brought into force on 23 March 2005.

Scope

The Road Transport Regulations will apply to mobile workers. A mobile worker is defined as ‘any worker forming part of the travelling staff, including trainees and apprentices, who is in the service of an undertaking which operates transport services for passengers, or goods by road for hire or reward, or on its own account’. Typically, they are drivers of vehicles with a tachograph in them and non-driving members of their crew (e.g. bus conductors or security staff). The new Regulations will not apply to employed taxi drivers or van drivers, nor to occasional mobile workers (e.g. teachers on a school trip). The WTR apply to such workers. An ‘occasional mobile worker’ is someone who:

• Works fewer than 11 days within the scope of the EU drivers’ hours rules in a reference period that is shorter than 26 weeks
• Works fewer than 16 days within the scope of the EU drivers’ hours rules in a reference period that is 26 weeks or longer

Some self-employed drivers will be excluded from the scope of the Road Transport Regulations until March 2009. However, the DfT guidance document stresses that, for this purpose, the definition of ‘self-employed’ is not the same as the existing definitions to be found in the Employment Rights Act 1996 and the WTR. Nor is the test the same as that applied by the Inland Revenue. The amount of control the driver has over their work is the key point, as is their reliance on profits to provide them with an income.

No opt-out possible

Under the Road Transport Regulations, the working time of mobile workers is, for the first time, restricted to an average of 48 hours a week over a relevant reference period, and must not exceed 60 hours in any week. There is no opt-out. The reference period can be calculated over four months (up to 18 weeks) or up to six months (24 weeks) by collective agreement. Nightwork is limited to 10 hours in any 24-hour period. Minimum daily and weekly rest provisions already apply to drivers under the EU drivers’ hours rules. The new Regulations apply daily and weekly rest requirements to other mobile workers, trainees and apprentices while they are travelling.

Working time

The new Regulations define ‘working time’ to include not only time spent driving but also time spent loading and unloading; assisting passengers on and off the vehicle; cleaning and technical maintenance; work intended to ensure the safety of the vehicle, its cargo and passengers; and waiting time where the foreseeable duration is not known in advance. ‘Working time’ does not include routine travel between home and the normal place of work, rests and breaks, or ‘periods of availability’ - that is to say, waiting time, the duration of which the worker knows of in advance, such as time spent accompanying a vehicle being transported by boat or train, or time spent waiting at frontiers.

Records and enforcement

Employers must inform workers of their rights under the new Regulations and of the provisions of any relevant collective agreement. Employers must keep records that are adequate to show that the requirements of the Road Transport Regulations are being complied with and must keep those records for two years after the end of any relevant period. Employers must ask mobile workers to give details of any time worked by them for another employer and the mobile workers must notify employers in writing of any such time so that it can be included in the calculation of their working time. The Road Transport Regulations will be enforced by the Vehicle and Operator Service Agency (VOSA) - formerly the Vehicle Inspectorate. Enforcement will be by means of improvement notices and enforcement notices and, ultimately, by a system of fines and custodial sentences. The DfT guidance notes that other EU countries may decide to enforce these new working time limits by checking tachograph records at the roadside.

¹ Available at: www.dft.gov.uk

People with mental health problems are to get more effective employment protection under proposed government legislation currently being prepared by the Department of Work and Pensions.

Ministers announced¹ in July 2004 that they would accept most of the recommendations for change to a draft Disability Discrimination Bill put forward by a joint parliamentary scrutiny committee.

Significantly, this includes the removal of the words ‘clinically well recognised’ from the definition of those conditions covered by the current Disability Discrimination Act.

The scope of the proposed legislation will also cover people with progressive conditions of HIV, MS and cancer are protected.

And, if accepted by parliament, it will impose a new positive duty on public bodies to promote equal opportunities for disabled people, similar to that introduced on race equality in the Race Relations(Amendment) Act.

Mental health and disability campaigners have been concerned that the phrase ‘clinically well recognised’ in current legislation removed protection from some people with mental health problems where there was no clear and generally accepted diagnosis.

Responding to the recommendation, ministers said that even if the clause were removed, people with mental illnesses would still need to demonstrate that their impairment had a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities.

The Disability Rights Commission (DRC) welcomed the move, saying it would end a ‘perverse injustice’ and ensure that people with mental health problems were granted the same protection under law as other disabled people.

But ministers have rejected a recommendation that people experiencing separate periods of depression totalling six months over a two-year period should be considered to meet the long-term requirement.

Under current legislation, in order to be classified as having a disability, the substantial effects of the impairment must last or should be likely to last for at least 12 months.

The government’s response says: “We are not persuaded that it is appropriate to extend the Act to cover people with effects lasting a shorter time, unless they recur as a result of a continuing impairment.”

Maria Eagle, the minister for disabled people, said the proposed legislation “meets, and in some respects goes beyond, our 1997 and 2001 manifesto commitments”. But, as yet, no date has been set for it to go before parliament.

Eagle said the government wanted to make rapid progress and would introduce the Bill “as soon as practicable, reflecting our resolve to press forward as quickly as possible while ensuring social inclusion and emancipation for disabled people”.

The Employers’ Forum on Disability, representing 380 public and private sector employers – which together employ 20% of the UK workforce – said it welcomed the clarity that the government’s position offered.

It wanted legislation that was credible in the eyes of disabled people and business. Ensuring that people with progressive conditions such as multiple sclerosis, HIV and cancer fall within the scope of the legislation and providing greater protection for people with mental illnesses would help to do this. But, Bela Gor, head of legal and policy at the Employers’ Forum, said: “Whilst clarification on the definition of disability was much needed, we recommend that organisations don’t focus too heavily on the definition of disability, but instead, make reasonable adjustments for all employees as swiftly as possible, as this is vital if employers are to retain experienced staff, maintain morale and reduce the risk of litigation.”

¹ The government’s response to the report on the draft Disability Discrimination Bill www.disability.gov.uk/legislation/ddb/ response.asp

Acas has recently published its annual report¹. The statistics for the year to 31 March 2004 show that, of 92,364 tribunal claims referred to Acas, 39,102 (or 42%) settled without a hearing and 27,576 (or 30%) were withdrawn. When compared with the previous year, the figures are similar, but it is noteworthy that Acas improved on its settlement rate for all discrimination claims in 2003/04.

Acas was asked to become involved in fewer collective conciliations nationwide, but in London the number was up from 106 to 123.

Sixty-nine cases were received for collective dispute arbitration, which is a higher number than the average over recent years. However, the individual arbitration scheme, intended to be used as an alternative to tribunal proceedings, appears to remain unattractive. Only seven applications for arbitration were received in the year 2003/04, down from 23 in 2002/03. However, one application for arbitration was received under the new statutory scheme (effective from 6 April 2003), set up by the Flexible Working Regulations 2002, to operate in a case where employer and employee cannot agree on a way forward but are in agreement about referring their dispute to binding arbitration.

Acas was more successful in its preventative role, conciliating 2,393 potential tribunal applications. Numbers using the Acas helpline rose to 796,649 from the previous year’s 723,615, and the number of those using Acas advisory meetings rose from 1,828 to 1,912.

¹ Available at: www.acas.org.uk/publications/pdf/ Acas_04_AR.pdf

The Employment Tribunals Service has published its annual report for the year to 31 March 2004¹. The total number of tribunal claims made in the year 2003/4 was 115,042, an increase of 16,425 over the previous year’s total of 98,617. Sex discrimination claims were up dramatically from 8,128 in the previous year to 14,284, but this was apparently due to a large number of dress-code cases.

Claims under the working time Directive 93/104/EC (as implemented by the Working Time Regulations 1998 (SI 1998/1833)) were also on the increase – up from 1,403 to 11,218 – but this is said to be attributable to one large multiple case at Watford. Other claims on the rise are unfair dismissals arising out of TUPE transfers (up from 448 to 791) and claims under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) (up from 150 to 439).

Employment tribunals now handle claims arising under 80 separate jurisdictions but the most typical claims still arise out of unfair dismissal, unlawful deductions from wages and breach of contract. The level of compensation awarded in successful unfair dismissal claims in 2003/04 ranged from less than £500 to more than £50,000. The median award was £3,375 and the average award £7,275.

In successful race discrimination claims, the maximum award was £635,150, the median award £8,410 and the average award £26,660. In sex discrimination claims, the figures were £504,433, £5,425 and £12,971. In disability claims, they were £173,129, £5,652 and £16,214. Cost orders were made in only 976 cases – in 332 cases costs were awarded to the applicant, in 644 cases to the respondent. The maximum of £10,000 was awarded in at least one case but the average costs award was £1,859.

In the EAT, of the 443 cases in which there were preliminary hearings, only a half (221) were allowed to proceed to a full hearing. Of those that proceeded to a full hearing, again only half (419) were allowed and/or remitted for a further hearing. 421 appeals were dismissed.

¹Available at: www.ets.gov.uk/annualreport2004.pdf

Last year, when Sir Michael Burton (as chairman of the Central Arbitration Committee (CAC)) noted that the number of applications by trade unions to the CAC for statutory recognition for collective bargaining purposes had fallen, he speculated that this might be due to statutory provisions, introduced under the Employment Relations Act 1999, entering a period of stability.

This year, in his preface to the CAC annual report for the year to 31 March 2004, he has had to admit that his experience over this past year has shown that such a statement might at best have been premature. The number of applications for statutory recognition received by the CAC this year has risen by 33% compared with 2002/03 from 80 to 106.

The CAC was taken to judicial review twice, making a total of six occasions on which this has happened to date. The most significant case was that of R (on the application of the BBC) v CAC, decided on 6 April 2003 ( IRS Employment Review 786), which dealt with the issue of whether freelance photographers could be ‘workers’ within the relevant statutory definition. The administrative court has ordered the CAC to rehear the case on this issue.

However, the system does appear to have had some impact in that, from June 2000 (when the recognition legislation came into force) to the end of May 2004, 91 ballots have been held and unions have been successful in 57 of them. The result is that over 20,000 workers are now covered by statutory recognition.

Other developments for the CAC in the year 2003/04 are:

• The public consultation over the proposed Employment Relations Bill (‘the Bill’), which found that the CAC was exercising its responsibilities efficiently, but which has also led to the Bill being drafted to incorporate changes to the statutory regime under which the CAC operates. The Bill is in the House of Commons for its second reading.
• The publication of draft Information and Consultation of Employees Regulations (‘the Regulations’), to be made under the European Directive 2002/14/EC, will give the CAC the autonomy to make orders enforceable in the High Court in cases where an employer has failed to hold or arrange a ballot or has failed to comply with the terms of a negotiated collective agreement.