The Pregnant Workers Directive 92/85/EC requires EU Member States to ensure that employed pregnant women and new mothers are guaranteed income during a 14 week maternity leave period at least equivalent to that to which they would be entitled if off work sick.  The European Parliament voted on 20th October 2010 in favour of plans to increase to 20 weeks this current 14 week period.  A compromise “18 week” suggestion was rejected.

At the same time the Parliament has voted to extend the requirement for compulsory maternity leave from two to six weeks and for paternity leave pay to be at full rate of pay for two weeks.

General details are available on the Europa website “Extending maternity leave to 20 weeks with full pay“.

The Parliament’s proposals will now pass to the Council of Ministers. Given the controversial nature of the proposals it is likely that there will be pressure from Member States to ensure that they are amended before they are formally adopted – and it is even possible that they may be rejected.  It can also be argued that the proposals could be counter-productive from the point of view of feminist MEPs in that raising the amount of fully paid maternity leave from 14 to 20 weeks will tend to drive private business away from employing young women.

According to the Federation of Small Businesses (FSB), the proposals could end up costing small businesses £7,140 for an employee on an average wage of £25,428.

Tina Sommer, EU and International Affairs Chairman of the FSB said:

“Small businesses are known to be flexible employers and it is unfortunate that maternity and paternity leave is one of the biggest barriers for them when looking to take on staff. The FSB fears that that these changes will result in an increase in the cost of maternity and paternity leave and will mean these costs have to be shared between Government and the employer, at a cost of more than £7,000 to a small business – placing a further strain on cash-flow.”

Call Deminos on 020 7870 1090 or find us at http://www.deminos.co.uk

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In June 2010 the Coalition government appointed Lord Young to undertake a “review of the operation of health and safety laws and the growth of the compensation culture.” His report, “Common Sense – Common Safety” was published in October with a foreword by the Prime Minister.  While the report is interesting in itself, the foreword by David Cameron  may be more significant as an indication of changes which can be expected.  The major part of his foreword is as follows:

“Good health and safety is vitally important. But all too often good, straightforward legislation designed to protect people from major hazards has been extended inappropriately to cover every walk of life, no matter how low risk.

As a result, instead of being valued, the standing of health and safety in the eyes of the public has never been lower. Newspapers report ever more absurd examples of senseless bureaucracy that gets in the way of people trying to do the right thing and organisations that contribute to building a bigger and stronger society. And businesses are drowned in red tape, confusion and the fear of being sued for even minor accidents.

A damaging compensation culture has arisen, as if people can absolve themselves from any personal responsibility for their own actions, with the spectre of lawyers only too willing to pounce with a claim for damages on the slightest pretext.

We simply cannot go on like this. That’s why I asked Lord Young to do this review and put some common sense back into health and safety. And that’s exactly what he has done.

I hope this review can be a turning point. Lord Young has come forward with a wide range of far reaching proposals which this Government fully supports. We’re going to curtail the promotional activities of claims management companies and the compensation culture they help perpetuate. We’re going to end the unnecessary bureaucracy that drains creativity and innovation from our businesses.

And we’re going to put a stop to the senseless rules that get in the way of volunteering, stop adults from helping out with other people’s children and penalise our police and fire services for acts of bravery. Instead, we’re going to focus regulations where they are most needed; with a new system that is proportionate, not bureaucratic; that treats adults like adults and reinstates some common sense and trust”.

Recommendations in the report itself include amongst many others:

• Employers should no longer be obliged to carry out risk assessments for employees working from home in a low hazard environment.
• The risk assessment procedure for low hazard workplaces such as offices, classrooms and shops should be simplified.The HSE should create simpler interactive risk assessments for low hazard workplaces, and make them available on its website.
• The current raft of health and safety regulations should be consolidated into a single set of accessible regulations
• There should be a requirement that all Health and Safety consultants should be accredited to professional bodies.

This last recommendation is already being implemented.  An Occupational Safety Consultants Register is to go live in January 2011 with details of Health & Safety consultants who meet “…the highest qualification standard of recognised professional bodies, and who are bound by a professional code of conduct that require them to only give advice that is sensible and proportionate”.

Finally in light of the Prime Minister’s comment that “Newspapers report ever more absurd examples of senseless bureaucracy” it is noteworthy that at a conference at the Chartered Insurance Institute a few days after his report was published, Lord Young said that he had already heard from contacts at the Daily Mail and the Sun newspapers that he will ruin their livelihood.

Call Deminos on 020 7870 1090 or see us at http://www.deminos.co.uk

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As is well known the general rule is that “without prejudice” negotiations which have previously taken place between the parties to a legal action are not admissible as evidence in Court.  The reason for this, of course, is that it is in the public interest that people who are in dispute with each other should have the ability to speak entirely freely when trying to resolve the issues which are dividing them, without fear that what they say might later be used against them in court if they fail to reach a settlement.  Exceptions to the general rule are few - there is for example an exception where the exclusion of what was communicated in without prejudice negotiations would act as a cloak for perjury or blackmail.

In an important case last February the Court of Appeal stressed the point that exceptions to the general rule are very limited. By a 2 to 1 majority the Court of Appeal held that the general rule is so important that “the policy of protecting without prejudice communications [is] stronger than the policy of providing the judge with every conceivable help to arrive at a just solution”. It therefore held that evidence of what was said in pre-trial “without prejudice” negotiations which had resulted in an out of court settlement was not admissible in a subsequent dispute as to what exactly had been agreed in that settlement. While all parties accepted the general rule and the reason for it, it had been argued that in the interests of justice there should be an exception where evidence of what had taken place in without prejudice negotiations was required only to help a judge decide the meaning of an out of court settlement which had resulted from the negotiations.

The case in point had nothing to do with employment law.  However the principle it established was of such general importance, including importance in relation to out of court settlement of employment disputes, that an appeal to the Supreme Court was allowed.

The Supreme Court has now unanimously overruled the Court of Appeal.

In the case in question two companies, Oceanbulk and TMT, had entered into a written “Settlement Agreement” in relation to a disputed invoice. Prior to entering this agreement there were extensive discussions about the outstanding amount. Agreement was reached but subsequently Oceanbulk sued TMT claiming that it had defaulted on its obligations.  The new dispute centred on the parties’ different interpretations of what a particular clause in the Settlement Agreement meant. TMT argued that the clause was the result of a particular line of negotiation.  Although the negotiations were “without prejudice” TMT wanted to adduce details of them in evidence to demonstrate that its interpretation of the clause was in accordance with what both parties had intended it to mean. The High Court agreed with TMT but, as noted above, the Court of Appeal disagreed.

Now, at end October 2010, the Supreme Court has unanimously overruled the Court of Appeal and restored the original judgment of the High Court.

The Supreme Court has ruled that an “interpretation exception” should be recognised as an exception to the general “without prejudice” rule on the basis that “justice clearly demands it” – but was at pains to explain that the exception must not be extended “beyond evidence which is admissible in order to explain the factual matrix or surrounding circumstances to the court whose responsibility it is to construe the agreement…”.

In the Supreme Court Lord Phillips succinctly summed up the position as follows:-

“The principle to be derived from this appeal can be shortly stated. When construing a contract between two parties, evidence of facts within their common knowledge is admissible where those facts have a bearing on the meaning that should be given to the words of the contract. This is so even where the knowledge of those facts is conveyed by one party to the other in the course of negotiations that are conducted ‘without prejudice’.”

The lesson for employers and employees is clear: if a dispute goes to an employment tribunal it is only in very exceptional circumstances that the tribunal will hear evidence of what went on in “without prejudice” negotiations.

Call Deminos on 020 7870 1090 or visit http://www.deminos.co.uk

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