On 3 February 2005, the president of the Employment Appeal Tribunal issued a Practice Statement in strong terms to remind appellants of the terms of para. 2.1 of the Employment Appeal Tribunal Practice Direction issued on 6 December 2004. The Practice Statement (and Direction) are available from the EAT website¹.

We noted in IRS Employment Review 817 that copies of specific documents must now be filed with the Notice of Appeal. Paragraph 2.1 of the Practice Direction states that copies of the judgment, decision or order appealed against and of the employment tribunal’s written reasons, together with a copy of the Claim (ET1) and Response (ET3) must be attached, or if not, a written explanation must be given. A Notice of Appeal without such documentation will not be validly lodged.

The Practice Statement notes that, between 2 and 26 January 2005, 20 Notices of Appeal received by the EAT were returned as invalid (compared with four during the similar period in 2004) and 13 were only invalid because they were not accompanied by the correct documents.

As from 3 February 2005, ignorance or misunderstanding of the requirement as to service of the documents required to make a Notice of Appeal within the 42-day time limit required by the relevant rules will not be accepted as an excuse for non-compliance.

¹ www.employmentappeals.gov.uk

You may remember the case of Starmer v British Airways which we heard about in January. The case involved a female pilot who claimed indirect sex discrimination when BA refused to accommodate her request for part-time work.

Ms Starmer wanted to reduce her hours to enable her to look after her daughter. When the claim went before the employment tribunal Ms Starmer was successful, but British Airways made an immediate appeal against the tribunal’s decision.

The case has now been heard and the appeal has been dismissed. The EAT dismissed the claim on all of the request grounds of the appeal. The employee claimed that as BA refused her to work part-time they had indirectly discriminated against her under the Sex Discrimination Act 1975. Ms Starmer alleged that in discriminating against her there was a provision, criterion or practice that had been applied to her circumstances that discriminated against more women than men. However, there was not enough evidence on this point and the tribunal had taken the view that child care responsibilities tended to be the responsibility of women rather than men.

The EAT also rejected BA’s defence on the grounds that had been considered by the tribunal, e.g. regarding resources and safety issues. The EAT rejected their arguments. The tribunal could not find adequate evidence as to why it was unsuitable for Ms Starmer to work part-time and therefore the appeal was dismissed.

We will keep you updated on any further news regarding this case as BA have said that they intend to challenge the tribunal’s decision.

On 11 May 2005, the European Parliament voted in favour of a report produced by its Committee on Employment and Social Affairs on the European Commission’s proposal to amend the Working Time Directive 93/104/EC¹.

UK opt-out should go

On the 48-hour working week, the commission proposed to preserve member states’ right to allow individuals to opt out while tightening up the conditions for its application when there is no collective agreement in force or no such agreement can be concluded.

The committee considers the main aim of the Directive to be to guarantee the health and safety of workers. Where the commission was seeking to strike a balance between the protection of workers’ health and safety and the need to give companies more flexibility in the organisation of working time, the committee considers it necessary to strengthen the protection of workers’ health and safety despite the challenges of new forms of organisation of working time.

The committee finds that the current use of the opt-out in the UK is problematic and has led to abuses in two respects: the damage to workers’ health and safety (from working excessive hours) and the individual worker’s freedom of choice (the worker having no real freedom of choice in the decision to opt out of the 48-hour week if the employer requires it). It is proposed that the UK opt-out must end within three years of the amended Directive coming into force.

On-call and “working time”

The commission proposed to alter the definitions of working time, so that the inactive part of on-call time was not considered “working time”.

The committee accepts that having to consider the inactive part of on-call time as “working time” has posed financial problems and serious difficulties for the smooth running of health centres in particular, and where there is a shortage of trained professional personnel. However, it does not find the commission’s solution to be the best one.

The committee proposes to keep the current definitions. But, particularly in member states where public service management is threatened by staff shortages, it should be permitted, by collective agreement or by regulation, to allow for the inactive part of on-call time to be treated in a different way when calculating the maximum working week, subject to compliance with general health and safety principles.

Reference periods and flexible working

Under the Directive, the standard rule is that the 48 hours a week minimum must be calculated using a reference period that does not exceed four months. The commission had proposed to allow member states to extend the reference period to not more than 12 months, subject merely to consultation with the social partners concerned. The committee accepts that annualisation might be acceptable under conditions guaranteeing reasoned and reasonable implementation with checks and a guarantee of protection of health and safety.

The committee wants to amend the Directive so that it requires individual member states to regulate and encourage employers to take account of the needs of workers to reconcile work with family life. In particular, measures should ensure that:

1. employers inform workers well in advance of any change in working time pattern; and
2. workers have the right to request changes in their hours.

Next steps

The amendments proposed by the European Parliament must now go before the Council of Ministers for approval later this year.

¹ The report can be found at: http://www.europarl.eu.int

The DTI has published Gender Reassignment – a guide for employers¹. It is estimated that there are about 5,000 transsexuals in the UK. The guide is intended to help employers understand the key points of relevant legislation that apply to transsexuals, including:

The Sex Discrimination Act 1975 prohibits discrimination on the grounds of gender reassignment (if the individual either intends to undergo, or is undergoing, or has at some time in the past undergone gender reassignment) as well as on the grounds of sex.

The Gender Recognition Act 2004 (“GRA”) gives legal recognition to an acquired gender, for transsexual people who satisfy a Gender Recognition Panel that they have lived in their acquired gender for two years prior to the application and intend to live permanently in that way. The GRA received Royal Assent on 1 July 2004 and will come into force on a date yet to be announced.

Under the Data Protection Act 1998 (“DPA”), transsexualism and gender reassignment will constitute “sensitive data” and so can only be processed by an employer for the certain specified reasons set out in the DPA.

The Criminal Records Bureau and recruitment agencies have special responsibilities in relation to the disclosure of a job applicant’s transsexualism to a potential employer.

The DTI guidance includes practical suggestions for good practice in the workplace – addressing issues such as time off for medical treatment, dress codes and the use of single-sex facilities – when a job applicant or member of staff is a transsexual person.

¹ ‘Gender Reassignment – a guide for employers’, available from www.womenandequalityunit.gov.uk

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:

1. increased awareness of tighter criteria for accepting cases;
2. a reduction in the resources currently available to deal with enquiries; and
3. 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).

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.

Annual report of the Commission for Racial Equality, available at www.cre.gov.uk

2003–04 annual report of the Disability Rights Commission, available at www.drc.org.uk

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 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.