Agreement on opt out and agency workers

After a continued stalemate on amendments to the Working Time Directive and on the proposed Temporary Agency Workers Directive, ministers at the EU Council on Employment, Social Policy, Health and Consumer Affairs have finally reached agreement on both issues.

Working Time Directive

A number of amendments have been agreed in relation to the Working Time Directive. These include the following:

• the standard maximum limit on working hours will remain at 48 hours per week, with workers retaining the entitlement to opt out
• a new protective cap will apply to individuals who opt out of the 48-hour working week. This will be set at 60 hours per week, unless member states agree otherwise
• on-call time is to be split into active and inactive on-call time (this follows case law which examined the definition of working time and whether it extended to workers who were on call but were inactive or were allowed to sleep). Active on-call time will be counted as working time
• the opt out will only apply under certain conditions (e.g. it cannot be signed during the first month of employment and a worker should not be victimised for not signing or withdrawing the opt out)

Temporary Agency Workers Directive

The following issues have been agreed in relation to the proposed Temporary Agency Workers Directive:

• temporary agency workers should receive the same treatment as permanent workers from day one in terms of pay and maternity leave, unless it has been agreed collectively or at a national level to derogate from this
• temporary agency workers should be informed about permanent employment opportunities and there should be equal access to collective facilities (e.g. childcare facilities)
• there should be penalties for non-compliance by temporary agencies and end users

It should be noted that the UK has already agreed that agency workers in the UK will be entitled to equal treatment after 12 weeks (see our report last week). Further detail on each Directive will be available once formal texts are produced and agreed.

NMW Regulations published

The draft National Minimum Wage Regulations 1999 (Amendment) Regulations 2008 have been published, increasing the national minimum wage rates from 1 October 2008.

The adult hourly rate is due to rise from £5.52 to £5.73. The rate for 18 to 21 year olds will also increase from £4.60 to £4.77 while the 16 to 17 year old rate will rise from £3.40 to £3.53.

Striking out a claim before evidence is heard

The Employment Appeal Tribunal (EAT) has confirmed that a Chairman (now Employment Judge) was entitled to strike out a claim on the ground that it had no reasonable prospect of success without formally hearing evidence, where he considered that the case was not, in any ordinary sense of the term, fact-sensitive.

In Croke v Leeds City Council, the claimant was dismissed and subsequently alleged victimisation against the Council on the basis that he had made it aware, prior to his dismissal, that he was considering bringing a complaint against it for discrimination. At a pre-hearing review, the claimant failed to provide any material upon which the Tribunal could properly conclude, as is required, that there was a causal link between the alleged less favourable treatment and the protected act (the claimant said the relevant protected act in this case was the Council's knowledge that he would make a complaint of race discrimination). The Tribunal struck out the victimisation claim on the basis that it had no reasonable prospect of success.

The EAT upheld the Tribunal's decision. The Tribunal had appreciated that it had not strictly heard any evidence. The employee had, however, provided particulars in a document running to 10 pages which was, for practical purposes, a witness statement setting out the account of his complaint. There was also a lengthy debate between the employee and the Chairman in which the latter sought to extract relevant material and the employee did not suggest there was any other material he would have wished to put before the Tribunal. The EAT confirmed that the Chairman was entitled not only to conduct the hearing in a comparatively informal matter but also to form the view that the case was one which had no reasonable prospect of success and should therefore be struck out. 

TUPE - objecting to a transfer

The EAT has recently confirmed that an employee who objected to transferring to a new employer, but then agreed to work on "secondment" for that employer, had not objected to the transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE 1981). Although TUPE 1981 is no longer in force, employees still have the right to object to a transfer under TUPE 2006, so this decision remains relevant.

In Capita Health Solutions v (1) British Broadcasting Corporation (2) McLean, the EAT confirmed that employees are plainly entitled to object to being transferred to the employment of another employer and whether or not the employee has objected will depend on the facts and circumstances of each case. The effect of such an objection is that the employee's contract of employment terminates and the legislation cannot be interpreted so as to allow for such termination to post-date the date that the undertaking transfers from the transferor to the transferee.

In this case, therefore, it was held that the claimant's employment transferred to the transferee on the date of the transfer. As the claimant was prepared to work for the transferee, albeit for a limited period, she could not, at the same time, insist that she objected to the transfer. Interestingly, the EAT also noted that the use of the word "secondment" did not change matters.  What happened was not secondment in its proper sense, which connotes a temporary assignation regarded, at least, at the outset, as being on the basis that the employee would return to work directly for the seconding employer. It was never intended that that would happen in this case. The transferor had, post-transfer, no requirement for the claimant to carry out work of the type she had carried out for them prior to the transfer. The employee's contract therefore still transferred to the transferee on the transfer date.

Heyday - date set for ECJ hearing

Following our earlier reports on the claim by the campaign group Heyday challenging UK age discrimination legislation, it has now been reported that the first hearing in the European Court of Justice (ECJ) relating to this claim will take place on 2 July 2008.

Heyday will seek to challenge the mandatory retirement age of 65 on the grounds that it is a breach of the Equal Treatment Directive.  It is likely to be the end of 2008 or the beginning of 2009 before the Advocate General issues his opinion and we receive the ECJ's judgment.  

ICO - good practice note on transfer of employee information

The Information Commissioner's office (ICO) has published new guidance to help employers comply with the Data Protection Act 1998 (DPA) when providing information about their employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006).

Under TUPE 2006, a transferor must provide the transferee with specific information about the transferring employees, known as "employee liability information".  This include the identity and age of the employees and disciplinary and grievance records. It must be provided no later than 14 days before the relevant transfer, unless special circumstances make this not reasonably practicable. Failure to disclose this information may give rise to financial penalties.

There have been concerns that this provision breached data protection principles, since, under the DPA, employers must ensure that employees' personal data is processed properly. The ICO's good practice note therefore intends to clarify what employers should do to comply with the DPA when providing employee liability information.

The guidance includes the following statements:

• the DPA will allow the disclosure of employee liability information because it is required by law, but both parties must take care to comply with data protection principles when handling this personal information (e.g. they should ensure that the information is accurate, up to date and secure)
• if employers receive requests for information about their transferring workforce in addition to that required under TUPE, they should, wherever possible, release information that is anonymous or, at the very least, remove obvious identifiers, such as names. Employers should only disclose this extra information with the consent of the individuals concerned or implement appropriate safeguards to ensure the information will not be kept once it has been used for the proposed transaction
• in relation to whether employment records can be given to the new employer, the  former employer would not need the employees' consent to the transfer of their personal information if it is necessary for the purposes of the TUPE transfer and the business needs of both parties

Guidance on CRB checks for volunteers

The Cabinet Office has issued guidance to help organisations that use volunteers to be clear about when they do and do not need to carry out Criminal Records Bureau (CRB) checks on volunteers.

The guidance aims to establish good practice in the application of CRB checks (which are free for volunteers) and to ensure that there is the correct balance between the need to protect vulnerable groups and the need to take a proportionate approach to risk management, of which CRB checks are just one part.

Talent not tokenism

The CBI and TUC have issued a joint report, Talent not Tokenism, highlighting the potential rewards and business benefits of greater diversity in the workplace. A number of employers who have sought to achieve greater workforce diversity feature in the report and 12 case studies provide good practice examples on how diversity can be promoted.