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Archive for May, 2013

Changes to employment law

Changes to employment law

The Enterprise and Regulatory Reform Act 2013, which received the Royal Assent on April 25, has significantly changed employees’ rights in relation to injuries in the workplace and has made a number of changes to employment law and procedure. These changes were added at a late stage to a statute which deals with, for example:
• UK Green Investment Bank
• The Competition and Markets Authority
• Competition reform
• Reduction of legislative burdens
• Copyright
• Insolvency
Employment
These changes are made in sections 7 to 24 of the Act. Unfortunately, they cannot be read alone. In order to understand the nature of the changes, reference must be made to other statutes, to the Schedules to the 2013 Act, and to the commencement section 103. Predictably, the way in which the changes have been made operate to make employment law even more complex and inaccessible to non-lawyers who wish to enforce their employment rights.
The changes, in summary, relate to the following: (note: this illustrates the breadth of scope of the new material).
7. Duty to contact ACAS before starting proceedings (see also Schedule 1)
8. Extension of limitation periods for conciliation (see also Schedule 2)
9. Relevant proceedings for conciliation
10. ACAS: prohibition on disclosure of information
11. Legal officers
12. Employment Appeal Tribunal composition
13. Dismissal for political opinions: no qualifying period
14. Confidentiality of negotiations
15. Limit of compensatory award
16. Power of employment tribunal to impose financial penalty (see also Schedule 3)
17, 18, 19. Protected disclosures
20. Worker, meaning
21. Tribunal procedure
22. Indexation of amounts
23. Compromise agreements
24. Transitional provisions.
The most significant provisions for employees and legal advisers would seem to be sections 15, 17 to 20 and 21.
Section 15, for example, a provision of grinding complexity, gives the Secretary of State power to vary the limit on compensatory awards in employment tribunals cases. Thus, although this section has been brought into force, it will have no effect until such an order is made.
The new material is further complicated by the commencement provisions, which bring different sections into force at different dates, some at an unforeseeable date in the future.
Sections 10 and 24 came into force on the day that the Act was passed (April 25, 2013). Sections 12, 13, 15, 17, 18, 20 and 23 will come into force two months after the Act was passed (June 25, 2013).
The remainder of the new sections will come into force by statutory instrument at an unknown date.
Section 10 – ACAS: prohibition on disclosure of information – is now in force.
Section 24 – transitional provisions – is also now in force.
The best advice for employees should be – don’t attempt to understand this material unless you are absolutely determined, and seek specialised legal advice. However, where you will obtain this advice without bankrupting yourself is a largely unanswerable question.


The pupillage disgrace

The English barristers’ profession guards the gates to its entry with barriers of steel. Aspiring barristers have, in general terms, to acquire a law degree, to join an Inn of Court, to pass through a vocational course, to incur large debts for the cost of these courses, to be called to the Bar in a formal ceremony and then, which only the highly-motivated can pass through, to seek to jump the final hurdle, which is to obtain pupillage with an established set of Chambers.
My own pupillage (nearly half a century ago!) was obtained by informal approaches and by paying the pupilmaster 100 guineas and the clerk 10 guineas. This informal system has now been reformed so that a formal, centralised system of application for pupillages has been created, and pupils receive a guaranteed small salary.
The effect of these changes seems to be that it is now far more difficult to obtain a pupillage than it was under the old informal system. We are faced with numbers of highly-qualified, hghly-motivated young persons, who would undoubtedly become outstanding practising barristers, facing the humiliating and demotivating process of queuing in the hope of being selected as pupils. Some go through this draining process time after time without success and without knowing the criteria which established Chambers apply in selecting pupils.
The process of accreditation of practising barristers as pupilmasters to supervise pupils also operates, arguably, as a restrictive practice. My own experience is that I have twice been refused accreditation (the process is administered by the Inns of Court) on the basis that the nature of my practice was inappropriate. I have beither the energy nor the confidence in the system to reapply.
Advice to would-be barristers? Be aware of the reality of the pupillage hurdle – if you don’t have a first class Oxbridge degree or significant contacts in the profession, your chances range from slim to non-existent.


Crimewatch

Crimewatch:an exemplar of the spectacle of class justice
The crimes presented in the Crimewatch television programme by glamorous personalities placed in lavish sets are portrayed, essentially, as entertainment. The programme is reported to have viewing figures of around 6 million.
“Crime”, in the context of the Crimewatch spectacle of dramatic reconstructions, is almost always presented as being committed by individuals or small groups of individuals against other individuals or groups.
The most serious crimes against humanity, in terms of numbers of people affected or numbers of deaths or serious injuries, are never put across as part of the Crimewatch spectacle. For example, although we are shown details of a particularly vicious rape of a UK citizen, and treated to theatrical self-congratulation by celebrities and the police when an arrest is made, we must wait in vain for the following:
• Pictures of dead and horrifically injured children in wars involving the UK military, with requests for information about the immediate perpetrators and their superiors. There is no hotline number to call with information about war criminals.
• Dramatic reconstructions of incidents on construction sites and in factories which have resulted in multiple injuries and deaths, with pictures of the employers allegedly responsible for such crimes.
• Information about the activities of arms manufacturers, the construction of weapons of war and the consequences of their use.
• Requests for the identification and tracing of those responsible for research, development and production of instruments of torture.
Who are the real criminals? Individuals whose background and upbringing has resulted in actions labelled as crimes by the state? Or those in power whose cynical manipulations and amoral choices have caused mass murder? Or both? The Crimewatch spectacle never addresses and least of all attempts to answer these questions.
The following possibility should be considered: Crimewatch publishes photographs of war criminals, arms manufacturers, tax avoiders, landlords and employers whose crimes may make those actually featured on Crimewatch sink into insignificance.


Health and safety under attack

The Enterprise and Regulatory Reform Act, which received the Royal Assent on April 25, has significantly changed employees’ rights in relation to injuries in the workplace.
The essence of the change is that civil liability will no longer automatically attach to a breach of health and safety regulations which impose a strict duty.
Before the passing of the Act, employees could bring claims for compensation in negligence and for breach of statutory duty in relation to injuries and death suffered in the workplace.
Under section 47 of the Health and Safety at Work, etc., Act 1974, there is a legal presumption that all health and safety regulations involve civil liability unless expressly included. The new Act reverses this presumption. No regulations will impose civil liability unless there is express provision to that effect. There will be no civil enforcement for breach of health and safety regulations. Employees will have to rely on actions for common law negligence.
This means that the burden of proof, instead of being on the employer to show what steps were taken to protect an employee, shifts to the employee to prove negligence.
The case of Groves v Lord Wimborne (1898) established that there could be combined civil actions for common law negligence and for breach of statutory duty.
In that case, the plaintiff was a boy employed by the defendant. Amongst the machinery in the works was a steam winch with revolving cog-wheels, at which the plaintiff was employed. These cog-wheels were dangerous to a person working the winch unless fenced. There was evidence that there had originally been a guard or fence to these cog-wheels, but it had for some reason been removed, and there had been no fence at the wheels while the plaintiff was employed at the winch, a period of about six months. While the plaintiff was employed, his right arm had been caught by the cog-wheels, and was so badly injured that his forearm had to be amputated.
It was held by the Court of Appeal that an action will lie in respect of personal injury suffered by a workman employed in a factory through a breach by his employer, the occupier of the factory, of the duty to maintain fencing for dangerous machinery imposed on him by s5(4) of the Factory and Workshop Act 1878. The defence of common employment is not applicable in a case where injury has been caused to an employee by the breach of an absolute duty imposed by statute upon the employer for his protection.

The enforcement of health and safety regulations will now be left to the HSE.
It has been commented that the government, in introducing this part of the 2013 Act, is looking to appease the insurance industry to the detriment of clients, under the guise of tackling the “compensation culture”.
The MP who introduced the relevant clause stated that the fear of being sued drives businesses to exceed what is required by the criminal law, diverting them from focusing on sensible prventive health and safety management and resulting in unnecessary costs and burdens.

The Association of Personal Injury Lawyers has been reported as having made the following comments:
• Ministers have played fast and loose with employees’ safety in their obsession with cutting what they see as health and safety red tape.
• Not only is the new law completely illogical to most right-thinking people, it also reduces the strength of current employment protection and will make pursuing an injured person’s rights more complicated and more expensive.
The Shadow Justice Minister commented that the new law was part of a sustained campaign to rebalance the civil justice system away from the individual victims and small businesses, in favour of large corporations and vested interests whom the coalition government favours.
It has also been commented that the change was the latest measure to hit people’s ability to be properly compensated for injury. Employees needed only to show that a machine was inadequate or defective. Now they have to prove that an employer could and should have spotted the defect before the incident , and rectified it.
There are 78,000 civil claims for compensation following accidents at work e