14 December 2007

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!