Eurobell (Holdings) Plc v Barker and another
(Times Law Reports 12/11/97)

The Employment Appeal Tribunal has ruled that Industrial Tribunals can order the exchange of witness statements before an IT hearing. An IT can also order that neither side can call a witness whose statement has not been exchanged beforehand, except with leave of the tribunal.

This is a very significant decision which will have a major impact on case preparation. We expect that tribunals will now increasingly order written witness statements to be exchanged before a hearing and representatives should be prepared.

Compulsory exchange of witness statements before a hearing has been a regular feature of High and County Court proceedings for some time now. It has generally been thought that although prepared and exchanged before a tribunal hearing, ITs had no power to instruct this to happen.

In 1994 the then President of Industrial Tribunals issued a practice direction mildly suggesting statements might be exchanged before a hearing and confirming that they could be read aloud at the hearing itself.This seemed to indicate a voluntary nature to the process.

But the EAT has ruled that part of the IT's general power to regulate its own procedure and to run the hearing as it thinks appropriate to clarify the issues and act fairly, includes the power to order that witness statements be exchanged. The sanction to enforce the procedure is to say that no witnesses can be called whose statements have not previously been exchanged.

The practice will certainly be easier for tribunals, particularly in complex discrimination and TUPE cases. But it will have the effect of making tribunals more legalistic and formal. It will also increase the preparation work and burden on Industrial Tribunal representatives on both sides.

TUPE - what next?

The Government is considering amendments to the Acquired Rights Directive. In TRANSFER RIGHTS: TUPE IN PERSPECTIVE, the Institute of Employment Rights encourages the UK Government to clarify and strengthen the rights of workers faced with transfer of employment.

"The future attitude of a Labour Government towards TUPE is more positive for unions and employees, but perhaps less predictable", said Stephen Cavalier the report's author and head of Thompsons Employment Rights Unit.

"The move by Labour to award public contracts on the basis of best value rather than lowest bidder is welcome and will go a long way towards changing the cost-cutting culture of the past decade. Unions will need to be vigilant, however, and continue to campaign for improved rights for transferred workers."

The background to the paper is the marked shift in the last decade in employment from the public to the private sector. Under successive Tory administrations industries were privatised, decentralised, fragmented, market-tested, contracted out, outsourced and transferred.

Flexibility and adaptability replaced job security with the clear emphasis of Government policy was on cutting spending and developing a low cost labour market.

In that hostile climate the Acquired Rights Directive 1977 offered workers one of the few protections.

The directive's aim was to "provide for the protection of employees in the event of a change of employer, in particular to ensure that their rights are safeguarded". When the TUPE regulations were introduced into domestic law in 1981 the Tory Government said they did not cover public sector contracting out. In a recent court development the Labour Government accepted the Conservatives had failed to properly implement the directive and that the TUPE regulations failed to offer the protection to workers envisaged by the directive.

The Labour Government is now reviewing the operation of the TUPE regulations and are consulting about proposed amendments. TRANSFER RIGHTS: TUPE IN PERSPECTIVE reviews the background to both TUPE and the original directive.

Stephen Cavalier explains how the courts have interpreted the directive and regulations and considers the political thinking behind the proposal for a revised directive. This is a clear and up to date guide to a complex area of the law set in its political context by an acknowledged expert in the field.

  • TRANSFER RIGHTS: TUPE IN PERSPECTIVE is available from the Institute of Employment Rights, 160 Falcon Road, London SW11 2LN. £8 to trade unions, £30 to others.

Age discrimination can be breach of contract

Secretary of state for Scotland v Taylor
[1997] IRLR 608

An equal opportunities policy outlawing discrimination is contractually binding, the Employment Appeal Tribunal (Scotland) has decided. This means that discrimination on grounds of age, although not statutorily unlawful, would amount to a breach of contract.

Mr Taylor was a prison officer in Scotland. On 1 April 1992, his employers issued a circular setting out an equal opportunities policy. This included an undertaking to offer opportunities on an equal basis "regardless of gender, race, religion sexual preference, disability or age."

The Scottish Prison Service introduced changes to its retirement policy under which the normal retiring age was set at 55 to achieve a younger workforce. Mr Taylor was dismissed when he reached the age of 55.

The Industrial Tribunal decided that this was a breach of his employment contract which outlawed age discrimination and the specific reason for the dismissal was to achieve a younger workforce.

The Scottish Prison Service appealed. Whilst the EAT had no difficulty in agreeing with the Industrial Tribunal that the Equal Opportunities Policy was contractual - and as such part of the contractual rights incorporated into the contract - they rejected the employer's argument that the equal opportunities policy was only a mission statement. It was more than that.

However, the EAT found the Tribunal was wrong in finding that dismissal at aged 55 was dismissal on the grounds of age in breach of contract because the Prison Service sought to replace him with a younger person.

The EAT reasoned that the parties would not have contemplated the provision relating to discrimination on grounds of age would apply once retirement age had been passed, and employment was entirely discretionary after retirement age.

Age and retirement are inextricably intertwined. The employee's protection in respect of age discrimination subsisted in the contract only so long as he was working within the currency of the contract up to normal retirement age.

Nonetheless, this decision may have widespread implications. Many equal opportunities policies prohibit discrimination on a basis far wider than the statutory protection for sex, race and disability. This would lead to grounds for claiming breach of contract if employees are denied contractual benefits or treated less favourably because of, for example, sexual preference or age.