Annual HR Planner -
developments for the year ahead
2007
has been another busy year for employment law and
employers have been faced with the constant
challenge of keeping up to date with all the
developments. This year has seen key changes in
legislation and significant court and tribunal
decisions, all of which have an ongoing impact on
the workplace.
2008
is due to provide more of the same. Employers will
not only need to be aware of a range of new
legislation, which will affect many key areas of
the employment relationship, they will also be
required to manage its impact on a day-to-day
basis.
Click
here to
reserve your place on the Annual HR Planner and
join us for our annual review of the key recent
and future developments, to ensure that you are
prepared, and can plan effectively for, the coming
year. Click here
for further information.
Employment Bill
published
The
Government has published the Employment Bill
(previously referred to as the Employment
Simplification Bill).
One
of the key aims of the Bill is the repeal of the
current statutory dispute resolution procedures.
This forms part of a wider programme of work
following the Gibbons review (see our earlier update),
which aims to help resolve disputes at an earlier
stage and improve the way employment tribunals
work. ACAS will be revising its statutory Code on
disciplinary and grievance procedures and the Bill
provides that tribunals will be able to adjust
awards where parties have unreasonably failed to
follow the Code.
The
Bill also aims to:
-
provide
a fairer method for dealing with national
minimum wage arrears, calculated so that workers
do not lose out as a result of
underpayment.
-
"toughen
up" penalties for those who break the law,
increasing the maximum penalty for underpayment
of the national minimum wage or employment
agency offences.
-
amend
the employment agency standards enforcement
regime by strengthening the investigative powers
of the Employment Agency Standards Inspectorate,
allowing them greater scope to access financial
information to help them check whether a
worker's complaint is an isolated instance, or
an example of widespread abuse.
-
make
changes to ensure compliance with the European
Court of Human Rights judgment in Aslef v
UK, and ensure that there is no explicit
reference in the relevant legislation to a
special category of conduct relating to
political party membership or activities.
EU ministers fail to reach
an agreement on Temporary Agency Workers Directive
and Working Time Directive
The
EU Council of Ministers recently sought to reach
agreement on the Working Time Directive (in
particular, the existing right to opt out of the
48 hour week) and the proposed Temporary Agency
Workers Directive.
Compromise
proposals were presented by the Portuguese
Presidency for both Directives. Due to the
previous difficulties in finding solutions for
each issue, the Presidency decided that there
would be added value in working on a 'simultaneous
and integrated solution' for the two issues.
However,
as this 'linked' approach is still very recent and
due to the sensitive nature of both Directives for
some member states, it was agreed that the best
option was to postpone a decision in order to
pursue further dialogue. It remains to be seen
what progress will be made on both Directives.
Temporary and Agency
Workers (Equal Treatment) Bill laid before
Parliament
Despite
the failure to reach agreement at EU level (see
above), the Temporary and Agency Workers (Equal
Treatment) Bill has been laid before Parliament to
provide for the protection of temporary and agency
workers.
If
passed, this legislation would require the
principle of equal treatment to be applied to
temporary and agency workers and would make
provision about the enforcement of rights of such
workers. The Bill will be read for a second time
on 22 February 2008.
Agency workers claims
stayed by President of the Employment
Tribunals
The
President of the Employment Tribunals has issued a
Practice Direction that all agency workers claims
must be stayed until the outcome of the Court of
Appeal judgment in James v Greenwich
Council (we outlined the EAT decision earlier
this year).
In
particular, the Practice Direction states
that:
-
cases
where there is a written contract of employment
between the Claimant and a Respondent who
accepts that they were the employer should
proceed to be considered on their merits in the
regions where those claims are
registered.
-
cases
where the Civil Service Order in Council apply
should be stayed pending the outcome of two test
cases, Mustafa v HM Prison Service and
Kruck v Home Office
(BIA).
-
as
noted above, cases where the Civil Service Order
in Council does not apply should be stayed
pending the judgment of the Court of Appeal in
James v Greenwich
Council.
Sex Discrimination Act
1975 (Amendment) Regulations 2007
published
The
Sex Discrimination Act 1975 (Amendment)
Regulations 2007 have finally been published.
These regulations make changes to the existing
legislation relating to sex discrimination and are
due to come into force by 21 December 2007. The
key changes include:
-
making
less favourable treatment on the ground of a
woman's pregnancy or maternity in the provision
of goods, facilities or services unlawful;
-
making
sexual harassment and harassment on the grounds
of sex in access to and the provision of goods,
facilities, services or premises unlawful;
and
-
extending
protection from discrimination on grounds of
gender reassignment to the provision of goods,
facilities and services.
Whistleblowing - making a
disclosure to a former director
The
EAT has confirmed that a tribunal was mistaken
when it found that a worker had made a protected
disclosure under the whistleblowing provisions in
the Employment Rights Act 1996 (ERA 1996) when she
disclosed her concerns about an irregular transfer
of funds to a former director.
Section
43C(1)(b)(ii) of ERA 1996 provides that a
qualifying disclosure is protected if a worker
makes the disclosure in good faith and he or she
reasonably believes that the relevant failure
relates solely or mainly to a matter for which the
recipient of the disclosure has legal
responsibility.
In
Premier Mortgage Connections Ltd v
Miller, the EAT held that this provision
requires the recipient to have ongoing legal
responsibility for dealing with the matter at the
time the disclosure is made, as the language of
the statute is in the present tense. In this
case, by the time of the disclosure, the former
director no longer had legal responsibility and no
longer had the powers and duties of a
director.
However,
section 43C not only protects a worker where he or
she is correct in thinking that a person has legal
responsibility for a matter. It also protects a
worker where he or she reasonably believes that to
be the case, even if he or she is wrong. The EAT
noted that it would be rare for a worker to have a
reasonable belief that a former director still has
legal responsibility for a matter, but each case
turns on its own facts. As the tribunal had not
addressed this issue in its decision, the EAT
remitted the case to the tribunal.
9-to-5 in decline - more
workers embrace flexible options
95
percent of workplaces offer some form of flexible
working for staff, according to the latest main
findings of the Work-Life Balance
Employer Survey, commissioned by BERR.
Flexibility
and being able to balance work with family and
leisure time are becoming prized job benefits in
the British workplace. The amount of workplaces
providing childcare facilities, or other
arrangements to help parents combine work with
family commitments, has more than doubled since
2003, from 8 per cent to 18 per cent.
The
survey also found:
- part
time working is available in 92 per cent of
workplaces, up from 81 per cent in 2003
- employers
offering reduced hours working has increased (74
per cent, up from 40 per cent in
2003)
- the
availability of job sharing and flexi hours has
increased substantially (59 per cent up from 39
per cent and 55 per cent up from 39 per cent
respectively)
- 92
per cent of employers said they would consider a
request to change working patterns from any
employee
Minister
for Employment Relations, Pat McFadden, said the
survey was an endorsement for the Government's
staged approach to introducing flexible working,
commenting that "as part of our new review of
flexible working, we'll now be discussing the best
way to extend the right to request to parents of
older children - so that businesses, parents,
carers and families can all benefit" (click here
to read our earlier report on the Government's
intention).
Winter reading
It
has been a busy few months for employment law and
practice. Click here
to read our Autumn/Winter issue of
People, which looks back at the case law
and legislative developments over the past couple
of months and examines a variety of current
issues, including the recent extension to holiday
entitlement, the forthcoming changes to illegal
working, case law on redundancy consultation and
the new law on corporate manslaughter.
Back in the New
Year
This
is our last Employment Update of the year so we
wish you all a Merry Christmas and a Happy New
Year!