UK: What Is Happening In Employment This Spring?

This month we look at a round up of recent cases and employment related news.

Employees working abroad can claim EU rights in the UK

In a recent case that will worry many employers, the Employment Appeal Tribunal (EAT) has held that employees solely working abroad could bring claims under the Fixed-Term Employees Regulations against their employer in the UK. The EAT felt obliged to follow a previous EAT decision on working time, which established that directly effective EU rights can be enforced by the English courts, despite the limitations on territorial jurisdiction set out by the House of Lords in the Lawson v Serco case.

If upheld, these cases could have potentially serious consequences for employers with staff working abroad, even if they have never set foot in the UK. This is because these principles could potentially be extended to a number of statutory rights, including discrimination rights. There is some hope for employers though the EAT expressed concern about the correctness of the decision it had felt obliged to follow and a hope that its decision would be appealed. If it is, it will be for the Court of Appeal to provide some welcome clarification.

Employee succeeded in extending time limit for unfair dismissal claim

Under the controversial (and soon to be repealed) statutory disciplinary procedures, an employee may in certain circumstances be able to get an extension to the normal three-month time limit for bringing an unfair dismissal claim. A further three months will apply where the employee has a reasonable belief that a disciplinary or dismissal procedure (whether statutory or otherwise) is ongoing at the time that the original time limit expires.

In a recent case, the Court of Appeal has applied a non-technical approach when holding that an employee who had brought a "formal grievance" rather than an appeal against her dismissal was entitled to an extension of time. The key issue was whether the employee reasonably believed that a disciplinary or dismissal process was still ongoing, not whether this was actually the case. What this case shows yet again is that the courts and tribunals tend to take a purposive and non-legalistic approach to the statutory grievance and disciplinary procedures. Of course, these procedures will be abolished before long it is anticipated that they will be repealed by April next year but until then they will continue to affect the way in which most employment claims are handled.

Acas revised code published

When the statutory procedures are abolished, they will be replaced in part by a new Acas code of practice. This revised code on discipline and grievance has now been published in draft for consultation. It is envisaged that the code will come into force when the Employment Bill becomes law in April 2009.

The draft code sets out practical, concise and flexible guidelines on how to resolve workplace disputes. A failure to follow the code will not, in itself, make an employer liable to proceedings but tribunals will take it into account when determining relevant cases and may adjust any awards by up to 25 per cent for an unreasonable failure to comply. We are collecting any comments our clients may have on the revised code as part of our response to the consultation and would welcome your views. The draft code can be found on Acas' website (www.acas.org.uk).

Guidance published on pregnancy and maternity leave

The Department for Business, Enterprise and Regulatory Reform has published new guidance for employers and employees on their rights and responsibilities in relation to pregnancy and work. The guidance reflects the changes in relation to women's terms and conditions during maternity leave, which we reported on in the last briefing and which affect women whose babies are due on or after 5 October 2008. The effect of the changes is that women on additional maternity leave will be entitled to benefit from the same terms and conditions as they currently do during ordinary maternity leave.

However, pay (other than maternity related pay) is excluded and the new guidance makes it clear that the Government will treat pension contributions as pay for these purposes. As a result, pension contributions will not be affected by the amended legislation. However, as is currently the case, pension contributions (based on normal salary, not maternity pay) are nevertheless payable under separate social security legislation during any paid period of maternity leave - this is normally the first 39 weeks (the period of statutory maternity pay).

What this means is that while pension contributions will continue to be paid for the first half of additional maternity leave, there is no entitlement (according to the guidance) to payment during the remainder of the leave. It will be interesting to see how, if at all, the new Maternity and Parental Leave Regulations will deal with this issue European law seems to suggest that pension contributions should be treated as benefits and therefore continue to be provided during the whole period in the same way as other benefits. If that is the case, the Government may well face another challenge to the maternity legislation.

This article is only intended as a general statement and no action should be taken in reliance on it without specific legal advice.