Countdown to smoking ban
From 6am on Sunday 1 July, most enclosed (or substantially enclosed) public places and workplaces in England will be legally designated as smoke-free. The ban in England follows the introduction of similar bans in Scotland (March 2006), Wales (2 April 2007) and Northern Ireland (30 April 2007).
Here are the key points to note:
Employers will need to consider a number of issues in relation to the forthcoming ban (including the approach to smoking breaks, reviewing their policies and the need to factor in smoking offences into the disciplinary procedure). Basic guidance for employers has been provided by the Smokefree England website.
Contacts lists - who owns them?
Where an employee creates and keeps all his contacts on his employer's computer system, it has been decided that such a list of information belongs to the employer - this includes personal contacts and business contacts which the employee had accumulated prior to joining his employer.
In PennWell Publishing (UK) Limited v Isles and others, the High Court confirmed that where an address list is contained on Outlook or a similar program which is part of the employer's email system, and is backed up by the employer or by arrangement with the employer, the database or list of information will belong to the employer and therefore should not be copied or removed in its entirety by employees for use outside their employment or after their employment comes to an end. Significantly, the court expressed the view that it is highly desirable that employers should devise and publish an email policy such as the employers in this case (which outlined that the email system should only be used for business use). However, in this case, it was held that the employer had failed to communicate the policy adequately to the employee concerned.
If the employee in this case, a journalist, had maintained his contact list separately, in the form of a personal address list to which he had selectively added journalistic contacts to be maintained for career purposes, rather than for the purposes of his employment, the court held that he would have been entitled as a journalist to develop and maintain such a list.
This is an important case for employers. Email policies should not only clarify and identify which information will be considered to belong to the employer (taking into account information stored on computers and, for example, mobile phones), they must also be properly incorporated into contracts of employment and communicated to employees.
Constructive dismissal - conduct of grievance procedures and compensation
The recent case of GAB Robins (UK) Limited v Triggs has clarified two important principles in relation to constructive dismissal.
First, tribunals should not apply the 'band of reasonable responses' test to an employer's conduct of its grievance procedure where it is alleged that the conduct of the grievance procedure is the "last straw" giving rise to a constructive dismissal claim.
The earlier case of Abbey National plc v Fairbrother established that in a constructive dismissal case involving resignation in the context of an allegedly flawed grievance procedure, it is necessary to ask whether the employer's conduct of the grievance procedure was within the band or range of reasonable responses to the employee's grievance. In GAB Robins (UK) Ltd v Triggs, the employer argued that the same test should be followed where the alleged failings in a grievance procedure are the 'last straw' leading to resignation. The Employment Appeal Tribunal (EAT) rejected this argument, holding that the range of reasonable responses test has no application to the employer's conduct of a grievance procedure where it is the true last straw relied upon.
The second principle involved the issue of loss of earnings in this case, since the particular point of law had not been the subject of past judicial consideration. The EAT held that the course of conduct by the employer amounting to a breach of the implied term of trust and confidence formed part of the constructive dismissal, and the employee's ill health caused by that breach was to be treated as a consequence of the dismissal. This led to loss of earnings which would otherwise have been received at the full rate from the employer, and such loss was attributable to action taken by the employer. The claim for loss of earnings was therefore to be assessed by a tribunal under the statutory unfair dismissal regime (rather than in the civil courts by means of a common law claim e.g. for the loss flowing from psychiatric injury).
Regulations to increase statutory holiday entitlement to 28 days
The Working Time (Amendment) Regulations 2007, aimed at increasing statutory holiday entitlement from 20 to 28 days, have now been laid in draft before Parliament.
As outlined in our last update, the Government published its response to the second round of consultation on the increases to statutory holiday entitlement earlier this month. Draft regulations were subsequently laid before Parliament for approval (which is due to be by the end of this month), which outline the proposed amendments to the Working Time Regulations 1998. The initial increase of holiday (from 4 weeks to 4.8 weeks) is due to come into force on 1 October 2007, and the second increase (from 4.8 weeks to 5.6 weeks) has now been delayed until 1 April 2009.
New ACAS guidance
ACAS has issued new guidance on:
UK economy benefits from migrant workers
Our economy is benefiting from the influx of migrant workers to the UK, according to a recent TUC study 'The economics of migration'.
TUC research shows that migrant workers are paying more in taxes than the value of the public services they receive and, contrary to the image often portrayed in the media, the arrival of migrant workers has not necessarily depressed jobs or wages.
Enter the timelords...
The Equal Opportunities Commission (EOC) has published the final report of its general investigation into the transformation of work.
According to the EOC, despite the growth in flexible working, the UK is lagging behind its European competitors. Only 20% of UK employers offer tele-working, one of the most popular and cost-effective forms of flexible working, compared to around 40% in Germany, Sweden and Denmark. Whilst flexi-time is available in around 90% of German and Swedish companies, just 48% of UK companies offer it. The EOC has therefore called on political parties, employers and the government to create a new culture of work that's fit for all of the UK's 29 million workers.
The report suggests four new flexible working models that it believes could benefit both workers and employers, depending on whether a worker is a 'timelord', 'shift-shaper', 'time-stretcher' or 'remote-controller' (each model corresponds to the way in which a worker controls their hours and place of work).
Struggling to retain staff?
A growing number of organisations have been struggling to retain their staff over the past year and recruitment difficulties persist, according to a new report from the Chartered Institute of Personnel and Development (CIPD).
However, the research also shows that a number of steps may help UK employers tackle this problem, including recruiting from overseas, targeting migrant workers and training existing staff.
The CIPD's annual Recruitment, Retention and Turnover Survey finds that almost eight in ten organisations struggled to hang on to their staff in 2006, compared to nearly seven in ten in 2005.
Ageing workforce due to treble by 2017
UK employers need to prepare for an ageing workforce as three-quarters (78%) of employees anticipate working beyond 65, according to Aon Consulting.
Only an estimated one million are currently working past state pension age but this is expected to treble amongst people aged 65-70 by 2017. Aon Consulting's research found that a quarter of respondents would carry on working past the official retirement age simply because they wanted to, whereas 53% believe it will be necessary to increase their pension.