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Employment Law Journal: April 2012

The government’s proposals to charge claimants to bring a case before the employment tribunal could do more harm than good, warns Peter Wallington QC

The now infamous statutory dispute resolution procedures were introduced with the best of intentions, but little appreciation of the law of unintended consequences. The result was a legal framework that did little to reduce the volume of employment litigation, while managing to create a more legalistic regime for internal grievances and appeals, arbitrary hurdles to access to the tribunal system and a rash of satellite litigation.

Lewis Silkin

Rachel Rooksby and Carla Leonard highlight a worrying discrepancy between the government’s pledge to ensure interns receive the minimum wage and its own unpaid jobseeker schemes

These days, unpaid work experience is rarely out of the news. Headlines vary from HM Revenue & Customs’ crackdown on unpaid internships to Nick Clegg’s campaign against ‘it’s who you know’ advantages in the jobs market and, most recently, the furore over the government supplying jobseekers to large corporations for free. Unpaid internships, often intended to give people a leg up into competitive industries in a flagging economy, have had a swift and hard fall from grace.

The courts are growing less willing to grant injunctions to employers to prevent strikes going ahead, explains Alice Carse

Two recent High Court decisions indicate that the courts are now taking a less stringent approach to determining whether a trade union has complied with the requirements of the procedures for balloting members on industrial action.

The Court of Appeal has considered the circumstances in which employers are responsible for violent acts committed by their employees, reports Fiona Clark

The principle of vicarious liability provides that employers will be liable for the torts of their employees that occur ‘during the course of employment’. What this means in practice has been the subject of numerous cases and much debate over the years. In the seminal case on this concept, Lister v Hesley Hall Ltd [2001], the House of Lords held that vicarious liability should have a wide interpretation and the key question is:

Benjimin Burgher considers the impact of two conflicting EAT rulings on discrimination on the ground of marital status.

Up until recently, employers have been on relatively safe ground when implementing policies precluding employment of people who are related to other employees or who are involved in close personal or sexual relationships with them. However, a review of such policies may now be necessary following the judgment of the Employment Appeal Tribunal (EAT) in Dunn v The Institute of Cemetery and Crematorium Management [2011]. In this case, the EAT held that s3 of the Sex Discrimination Act 1975 (now ss4, 8, 13 and 19 of the Equality Act 2010) covered discrimination on the grounds of marriage, which included a person who suffered discrimination on the ground that she was married to a particular person. In determining that this was the case, the EAT held that the provisions should be applied having regard to Articles 8, 12 and 14 of the European Convention of Human Rights 1950 (see box on p15).

Vanessa Hogan welcomes clarification from the Court of Appeal on whether a dismissal can be connected with a transfer if no transferee has yet been identified

In the recent case of Spaceright Europe Ltd v Baillavoine [2012], the Court of Appeal decided that a specific transfer does not need to be in contemplation at the time of an employee’s dismissal in order for the dismissal to be ‘connected with’ a transfer that eventually takes place. In reaching that conclusion the Court of Appeal reviewed conflicting earlier decisions of the Employment Appeal Tribunal (EAT) in Harrison Bowden Ltd v Bowden [1994] and Ibex Trading Co Ltd v Walton [1994]. It concluded that the EAT’s decision in Harrison was to be preferred and interpreted reg (7)1 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) in line with that decision. This is a welcome clarification of the position and certainly one that gives TUPE the purposive effect required by the underlying Acquired Rights Directive.

Jemima Coleman and Justine Reeves look at overseas workers’ right to bring a complaint in the UK employment tribunal, using the example of a posting to the UAE to examine the legal and practical issues involved

Increasing labour mobility and growing numbers of multinational companies operating across borders make it is essential for employment lawyers to understand the international aspects of employment law.