Work, work, work

Employees in the UK who do unpaid overtime, work an average of 7 hours 6 minutes extra a week, and would take home an extra £4,800 a year if they were paid the average wage for those unpaid hours, according to research by the TUC.

The research has been released ahead of the TUC's annual "Work Your Proper Hours Day" on 23 February. The TUC is calling on employees to use this day to remind bosses of their extra unpaid work by taking a proper lunch break and going home on time for this one day a year. The TUC also suggests that employers should use this day to say thank you to staff for their unpaid work, by buying them lunch or an after-work cocktail...

Click here to read the TUC's press release.

Extra holiday entitlement

The DTI has announced that a worker's minimum annual holiday entitlement is due to increase to take account of public holidays. For a worker working 5 days per week, the increase will be from 20 to 28 days.

The holiday entitlement will increase in two stages; from 20 to 24 days on 1 October 2007, and from 24 to 28 days on 1 October 2008. There will be a second round of public consultation on the implementation of these changes, which will close on 13 April 2007.

National minimum wage - enforcement

The DTI recently announced a new policy to fine employers who pay their employees below the national minimum wage and who have failed to comply with an enforcement notice.

The DTI's policy document outlines the penalty notice process and states that the penalty calculation will be based on twice the hourly amount of the national minimum wage in force at the relevant time. Employers could therefore face fines of over £200 for every worker receiving less than the national minimum wage, in addition to payment of arrears to the employees.

Click here to access the DTI's policy document.

Controversial sexual orientation regulations

The House of Lords has recently debated new regulations which propose to prohibit discrimination on the grounds of sexual orientation in the provision of goods, facilities and services (in a similar way to the law relating to race and sex discrimination).

The regulations have, however, received strong criticism from religious groups who believe the new regulations will interfere with religious belief. The TUC has called on ministers to stand firm, and not include any religious exemptions to the regulations, despite the pressure from religious groups.

Smoke-free regulations published

As noted in our updates last year, smoke-free legislation is due to come into force on 1 July 2006, banning smoking in enclosed public places and workplaces.

The Smoke-free (Premises and Enforcement) Regulations 2006 have now been published, defining those premises in which smoking will be prohibited (and outlining what will be considered to be "enclosed" or "substantially enclosed").

Click here to view a copy of the Regulations.

"Associative" disability discrimination - reference to ECJ

In Attridge Law and anor v Coleman, the EAT has upheld a tribunal's decision to ask the ECJ whether the prohibition of disability discrimination under the Equal Treatment Framework Directive covers discrimination against a non-disabled person on the grounds of their association with a disabled person.

In this case, an employee, who is the primary carer for her disabled son, claimed that she had suffered disability discrimination at work due to her son's disability (e.g. she claims that she was subject to unfair treatment when she requested time off to care for her son). The EAT agreed with the tribunal's approach that the Disability Discrimination Act 1995 could be interpreted so as to cover "associative" discrimination without distorting the words of the statute, and upheld its referral to the ECJ.

The outcome of the referral to the ECJ may have a significant impact on the scope of disability discrimination legislation. Carers UK, the Disability Rights Commission and the Equal Opportunities Commission have all hailed the case as having the potential to provide new protection for millions of Britain's carers.

Guidance on the employment status of agency workers

In the recent case of James v Greenwich Council, the EAT has provided useful guidance on the often controversial question of the employment status of agency workers and when contracts of employment should be implied.

In this case, an agency worker had worked for the Council (the "end user") for 5 years and had been treated in all respects like a permanent employee. However, the EAT did not consider the worker to be employed by the Council and it upheld the tribunal's decision that there was no implied contract of employment. The EAT provided the following observations:

	in agency cases, it is not helpful to focus on whether there are mutual obligations between the worker and end user. The issue is whether the way in which the contract is in fact performed is consistent with the agency arrangements or whether it is only consistent with an implied contract between the worker and end user and would be inconsistent with there being no such contract.
	a key feature of a genuine tripartite agency relationship is that the end user cannot insist on the agency providing a particular worker.
	genuine agency relationships may change, entitling a tribunal to conclude that the agency arrangements no longer dictate or adequately reflect how the work is being performed, and that the reality of the relationship is only consistent with implying a contract of employment.
	the mere passage of time does not justify a contract of employment being implied. The fact that arrangements have continued for a long time may be explicable on the basis of convenience for all parties.

Requirements of modified grievance procedure

The EAT has recently considered the requirements of the statutory modified grievance procedure in City of Bradford Metropolitan District Council v Pratt.

The statutory grievance procedures essentially follow two forms: the standard procedure and the modified procedure. The standard procedure applies in respect of any grievance about which an employee could make a complaint to a tribunal (e.g. discrimination or unfair dismissal). It has three steps, which involve setting out the grievance in writing, attending a meeting and an appeal stage.

The modified procedure, however, only applies in restricted circumstances, after termination of employment. The employer should not have been aware of the grievance before the employment ceased, or if it was aware, the standard grievance procedure should not have been commenced or completed before the last day of employment. Both parties must also have agreed in writing to apply the modified procedure. The modified procedure has two steps. The first step requires the employee to set out in writing the grievance and the basis for it. The second step requires the employer to respond in writing.

In this case, the EAT held that the requirement of the modified procedure to set out the grievance, and the basis for it, in writing was not met by the employee. Whilst the letter provided by the employee identified an equal pay complaint, it did not indicate the type of male colleague nor the difference in pay covered by her grievance (i.e. the basis for the grievance). Although the letter would have complied with the standard procedure, it did not comply with the modified procedure.

It was acknowledged that this outcome resulted in the employee being prevented from bringing her claim due to a technicality. However, it was also noted that the use of the modified grievance procedure cannot be forced on an employee; he or she must agree to it in writing.

Extension to flexible working - new guidance

As noted in our updates last year, the right to request flexible working will be extended to carers from 6 April this year. The impact of this extension in the workplace may be significant. According to Carers UK, over 1.5 million carers may take advantage of this new right.

Click here to read the DTI's revised guidance on flexible working.

Alcohol at work

The Health and Safety Executive has published a useful guide for small and medium-sized employers who need to address alcohol in the workplace.

The guide looks at the implications of alcohol-related absence, the effects of alcohol on productivity and safety in the workplace, and provides a 4-step process for employers to follow to address alcohol-related issues.

Click here to access the HSE's guide.

Home Office guidance for Bulgarians and Romanians

Whilst Bulgaria and Romania became members of the EU on 1 January 2007, the nationals of those countries are not necessarily free to take up employment in the UK since restrictions will apply. This will impact on many of those employers seeking to recruit from the EU's newest members.

Click here to access the Home Office's guidance note, outlining how Bulgarians and Romanians can enter, live and work in the UK.

Where are the women?

According to the Equal Opportunities Commission's annual survey "Sex and Power: Who Runs Britain? 2007", nearly 6,000 women are 'missing' from more than 33,000 senior positions across the public and private sector included in the survey.

The survey indicates that women make up just 10% of directors of FTSE 100 companies and 20% of Parliament. Ethnic minority women are also under-represented and account for just 0.4% of FTSE 100 directors and 0.3% of Parliamentarians, despite making up 5.2% of the population and 3.9% of the labour market.

The EOC notes that the pace of change at the top in many areas remains painfully slow, and in some cases has even gone into reverse - despite the massive growth of women in work and public life.

Click here to access the EOC's annual survey.

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