Field Fisher Waterhouse

Time up for the UK

The ECJ handed down its judgment in Commission v United Kingdom yesterday, ruling that the UK is in breach of the Working Time Directive. By issuing DTI guidance which indicates that employers are not obliged to ensure that workers actually take their daily or weekly rest periods, the UK has failed to comply with its obligations under the Directive.

The Directive provides for workers' rights to minimum weekly and daily rest periods, which are contained in the Working Time Regulations 1998. Workers are entitled to a rest period of 11 hours in each 24 hour period and 24 hours in each 7 day period. If they work more than 6 hours a day, workers are also entitled to a break of 20 minutes. DTI guidance elaborates on employers' obligations in this area, stating that "employers must make sure that workers can take their rest, but are not required to make sure they do take their rest".

The requirements relating to rest periods were held to constitute rules of Community social law of particular importance, from which every worker must benefit in order to protect his health and safety. The ECJ did acknowledge that compliance with the Directive should not require employers to force workers to claim the rest period due to them. However, by indicating that employers are under no obligation to ensure that workers are able to exercise their rights to rest breaks, the DTI guidance was held to be liable to render the rights under the Directive meaningless and incompatible with its objective.

Can disabled employees demand more sick pay?

The recent answer from the EAT is no. In O'Hanlon v HM Revenue & Customs, it held that it would be a "very rare case indeed" for an employer to be obliged, as a reasonable adjustment under disability discrimination legislation, to give more sick pay to a disabled employee than it would otherwise give to a non-disabled absent employee.

The EAT commented that such an obligation would mean that tribunals would be entering into a form of "wage fixing for the disabled sick". It would also fall foul of the purpose of disability discrimination legislation, which is to assist the disabled to obtain employment and to integrate them into the workforce, rather than treat them as "objects of charity".

In this case, reducing the pay of the disabled employee because of her sickness absence did amount to disability-related discrimination, but it was justified. As it was found that adjusting sick pay rules was not a reasonable adjustment for the employer to make, it followed that the disability-related discrimination could be justified. Click here to view our recent article on this case.

Extension of time limits for claims against fellow employees

The EAT has held, in the recent case of Bisset v Martins and Castlehill Housing Association Ltd, that where an employee brings a discrimination claim against another individual employee, the time limit for bringing such a claim will not be extended under the statutory dispute resolution procedures.

In this case, as is common in many discrimination claims, the employee brought a claim against both her employer and an individual employee. In respect of the claim against the employer, the time limit was extended under the statutory dispute resolution procedures as a step 1 grievance letter had been submitted. However, in relation to the claim against the individual employee, the EAT held that there could be no extension of time, as the procedures did not apply to the claim against the individual employee and therefore the extension of the time limit was not triggered.

Don't wait until 1 October!

There is now less than a month to go before the Employment Equality (Age) Regulations 2006 come into force. From 1 October 2006, direct and indirect discrimination, harassment and victimisation will be prohibited and will apply to employees of any age. The new legislation will have a significant impact on most stages of the employment relationship, ranging from recruitment, promotion and training to redundancy, retirement and dismissal.

However, although most employers are aware of the 1 October deadline, it is vital that preparations for the new legislation start now, particularly in relation to retirement issues. Transitional provisions will apply to retirements where employees are due to retire on or after 1 October 2006 but before 1 April 2007. Different rules will operate depending on whether the notice to retire an employee is given before or after 1 October 2006. The retirement provisions are complex and therefore need to be approached with caution, particularly during the transitional period.

Reckon you are ready?

The DTI has recently published two ready reckoners to calculate redundancy payments, in order to coincide with the Employment Equality (Age) Regulations 2006.

As the Regulations will remove the lower and upper age limits for the purposes of calculating redundancy payments, one ready reckoner applies to redundancies before 1 October 2006 and the other applies to redundancies after 1 October 2006. Click here to see both ready reckoners.

Question of age

Also in preparation for 1 October 2006, the DTI has published an age discrimination questionnaire based on the provisions of the Employment Equality (Age) Regulations 2006, which broadly follows the format of other questionnaires under existing discrimination legislation. Click here to access the new questionnaire.

Family friendly regulations

The final form of the regulations relating to statutory paternity pay and adoption pay have been published. The regulations, which come into force on 1 October 2006, will apply to employees with children whose expected week of childbirth is on or after 1 April 2007, or in relation to adoption, where the placement is expected to occur on or after 1 April 2007. The regulations will increase the adoption pay period from 26 to 39 weeks and provide that statutory adoption pay will continue to be payable where an employee works for the employer for not more than 10 days within the adoption pay period. Click here to read the full regulations.

Longer holidays!

The Government has launched an initial consultation on proposals to increase statutory holiday entitlement in order to reflect the number of permanent bank and public holidays.

Under the Government's proposals, leave entitlement for a full-time employee would increase from 20 to 28 days. Consultation closes on 22 September 2006 and further information can be found here.

Smoke signals

The Department of Health has launched a consultation on the draft regulations under the Health Act 2006 providing for smoke-free public places, workplaces and vehicles. The draft regulations propose that all work premises will be "smoke-free" if enclosed or substantially enclosed and that employers will be required to display a prominent "no smoking" sign in their workplace in accordance with minimum requirements. Failure to comply with the requirements will give rise to a fixed penalty.

The draft regulations can be accessed here. The deadline for responses to the consultation is 9 October 2006.

How times have changed...

The DTI has published its first findings from the 2004 Workplace Employment Relations Survey. Five previous surveys were conducted; in 1980, 1984, 1990 and 1998. The purpose of the survey is to document and monitor the changes in employment relations within the workplace, looking at key areas, such as workplace conflict, equal opportunities and work-life balance. A comprehensive account of the findings should be available in Spring next year. Click here to access the survey.