Michael Jefferson. Faculty of Law, University of Sheffield

PREVIOUS SPEAKERS:

Michael Jefferson
Faculty of Law, University of Sheffield

Title: Employment Legislation : just in force, soon to be in force and forthcoming

Leeds 1 November 2005

‘I think Government need more information to stop passing down all this stuff. Why does it keep coming? [Invocation of Christ], what are the new ones going to be? If it ain’t broke, don’t fix it.’ (Wholesale and retail sector manager with 31-100 staff, Manchester, interviewed in late 2003 for the Small Business Council’s Report Evaluation of Government Employment Regulations and their Impact on Small Businesses March 2004

This talk concerns recent developments in Employment Law brought about by statute and deals with forthcoming changes. The arrangement is by topic and not chronological. A chronological survey regularly updated can be found at PersonnelToday.com: entries, however, are brief. I omit what may be called tangential amendments e.g. the Part-Time Workers (Prevention of Less Favourable Treatment) Regs 2000 (Amendment) Order 2005 and the Working Time Regs 1998 (Amendment) Order 2005, which provide that for the purposes of these sets of Regs chief officers of police are to be regarded as corporations sole. I have not attempted to deal with health and safety, the unemployed or with pensions. I do bring to your attention two changes: the Pensions Act 2004 and the Work at Height Regs 2005, both in force 6 April 2005. The former attempts by creating the Pension Protection Fund those such as me who are in final salary schemes from losing their pensions on winding up; the latter implement the Temporary Work at Height Directive and consolidate previous provisions on work at height in an attempt to reduce deaths and injuries at work. In light of the interest raised by the deaths of at least 21 Chinese ethnic cockle-pickers in Morecambe Bay I should say too that the Gangmasters (Licensing Authority) Regs 2005 became law on 1 April 2005. The Authority regulates agricultural and shellfish-gathering workgangs and those involved in the associated processing and packaging industries: see also the Gangmasters (Licensing) Act 2004 (Commencement no. 2) Order 2005, which regulates the granting of licences and provides for enforcement and compliance officers.

We live in changing times. The latest (2004) Workplace Employment Relations Survey shows that since the last one homeworking, term-time only working, job sharing and flexi-time have all increased and that paid paternity leave is offered by 92% of firms surveyed (those with 25+ workers), an increase from the 44% of the previous survey. Personnel Today (Sept. 2005) reported a survey that 58% of staff had considered moving because of poor management and B & CE Insurance reported that one in five fathers did not see their children during the week.

1. This being Leeds I start with TUPE but I recognise that all TUPE anoraks in the audience are well-served by other speakers and their looseleaf services. Consultation on the proposed regs, issued in draft on 15 March (TUPE Draft Revised Regulations: Public Consultation Document URN 05/926), and ended on 7 June. I bring to the attention to non-anoraks that the revised regs have been pushed back until 6 April 2006, the revised date being published by the DTI on 27 June with the new draft regs being published ‘in the Autumn’ (date not stated). The delay has been occasioned by the volume, I suspect in both senses, of responses to the Consultation Paper. The delay is slightly surprising because that Paper stressed that policy decisions had already been made and that only the drafting of the paras. implementing the policy was for discussion, though it looks like the ‘professional business services’ exception may well not appear in the final regs.

A quick reminder that except for statutes and orders based on EU Law the Government has agreed to implement new employment laws only on 6 April and 1 October. See the DTI website for annual details of employment legislation scheduled to enter into force on the following 1 Oct. and 6 Apr.: www.dti.gov.uk/ewt/common_commence.pdf The Health and Safety Executive has also adopted these dates: see its website for legislation scheduled to come into force on those two dates.

John McMullen has already reminded you that the new TUPE is not the be-all and end-all of TUPE-related matters. One of the now non-TUPE matters is treated of in the Transfer of Employment (Pension Protection) Regs 2005, in force 6 April 2005, which implement s258 of the Pensions Act 2004. If the employee is a member of an occupational pension with the transferors, the transferees must institute the type of pension provision detailed in the Regs. even if they previously had no such provision.

2. The last Labour Party Conference saw votes in favour of secondary action (70%) partly in response to Gate Gourmet but the Party leaders show no inclination to relegalise, to invent a term, secondary action of whatever type where there was a ‘close connection’ between the dispute and the secondary action, even when those dismissed are women from a minority ethnic group and the union supporting them is the T&G. The position in relation to the core of collective labour law remains as stated in Tony Blair’s foreword to the White Paper Fairness at Work ‘There will be no going back. The days of strikes without ballots, mass picketing, closed shops and secondary action are over …’. It does not seem that Gordon Brown will bring any changes. Quite where the refusal to change the law to legalise secondary action leaves the Warwick Agreement of last year is anyone’s guess: cynically it looks with hindsight like a ploy to keep the unions on board in the run-up to a General Election but one which could be jettisoned as soon as Labour got back with a decent majority.

3. Amendments to industrial relations law were, however, made in the Employment Relations Act 2004 (ERA 2004). The extension of employees’ rights not to be dismissed during official action came into force on 6 April 2005: the ERA 2004 (Commencement no. 3 and Transitional Provisions) Order 2005 SI 2005/872. The protection period is extended from eight to 12 weeks and days locked out do not count. When dealing with whether employers have taken reasonable procedural steps to resolve a dispute with a union, tribunals must now take into account conciliation and mediation. The Employment Relations Act 2004 (Commencement No. 4 and Transitional Provisions) Order 2005 SI 2005/2419 came into force on 1 October 2005: unions are to provide lists of categories of employees and workplaces and their numbers in ballot and industrial action ballots. Unfair practices intended to influence the outcome of recognition and derecognition ballots were prohibited. The Employment Code of Practice (Access and Unfair Practices during Recognition and Derecognition Ballots) Order 2005 brought into effect the Code of that name. It provides advice on unions’ access to workers during such ballots and advice to both parties on unfair practices.

4. The ERA 2004 (Commencement No. 1 and Transitional Provisions) Order 2004 brought into force ss. 29-32 of the 2004 statute, which deal with bribes not to join unions and with the right not to be subjected to a detriment for joining a unions, on 1 Oct. 2004.

5. The right found in the Employment Relations Act 2004 that unions can exclude potential members and expel members wholly or mainly for taking part in the activities of political parties (here meaning the BNP) came into force on 31 Dec. 2004.

6. The DTI’s revised Code of Practice on industrial action ballots and notice to employers came into force on 1 October 2005. The amendments were due to the 2004 Act. See the Employment Code of Practice (Industrial Action and Notice to Employers) Order 2005.

7. Another part of the Employment Relations Act 2004 also came into force on 6 April 2005 by virtue of the 2005 Regs just mentioned: see 3 above. These were the provisions dealing with quite minor changes in the statutory recognition scheme created by the Employment Relations Act 1999 and inserted as a Schedule into the Trade Union and Labour Relations Act (Consolidation) 1992. The CAC’s method of determining the appropriate bargaining unit is clarified; there is confirmation that ‘pay’ for the purposes of the statutory recognition procedure does not cover pensions; postal voting is permitted for those away from the workplace at the time of the ballot; a Suitable Independent Person (SIP) may be appointed to handle union correspondence when the CAC has accepted an application for recognition; and ACAS is given power to require information to be provided when it is seeking to settle a recognition dispute.

8. Another set of regs concerning collective matters came into force on 6 April 2005. These are the Information and Consultation of Employees Regs 2004, transposing the Information and Consultation Directive 2002/14. It will be recalled that these Regs apply to employers operating in one member state (cf the European Works Council Directive) apply in the first instance to employers with undertakings with 150+ workers. An ‘undertaking’ is defined in the Directive as ‘a public or private undertaking carrying out an economic activity, whether or not operating for gain.’ The DTI is of the opinion that ‘undertaking’ means a legal entity such as a company and not a division within a company. The Regs will apply to 100+ workers from 2007 and 50+ from 2008. It has been suggested that the reason why the coverage was not widened in 2006 was because the draftsperson thought that there was no year between 2005 and 2007!

9. The fees charged by the Certification Officer were changed from 6 April 2005. Some fees went up and some amazingly were reduced: the aim was to make the fees more in line with the cost to the Office than was previously the case. The regs are called with startingly originality the Certification Officer (Amendment of Fees) Regs 2005. The easiest method of finding the fees is probably on the website but may I also mention the excellent and relaunched section Employment Law Sources and Institutions, the opening part of the first volume of Sweet and Maxwell’s Encyclopedia of Employment Law?

10. The European Public Limited Liability Company Regulations 2004 transpose the EU Law which after many years deliberation introduced the Societas Europaea and do so with effect from 8 Oct. 2004. There are rules on how an employee participation agreement is to be negotiated. This is one the (few) outcomes of the proposed Vredling Directive on employee involvement, which Thatcherite policies stopped. It’s a long way from the 2x + y formula of the Bullock Committee, but it continues the longstanding EU policy of informing and consulting with workers.

11. I move from collective issues to family-friendly policies. The rate of statutory maternity, paternity and adoption pay increased to £106 (or 90% of the applicant’s average weekly earnings if less than £106) on 1 Apr. 2005. The previous rate was £102.80.

12. The Statutory Maternity Pay (General) and Statutory Paternity Pay and Statutory Adoption Pay (General) Regs, besides being one of the longest SI titles in employment law, provide that breaches in continuity between dismissal and re-employment, whether reinstatement or re-engagement, are to be disregarded for the purposes of statutory, maternity and adoption pay provided that the re-employment is the result of a dispute resolution procedure. The Regs apply to re-employment after 6 April 2005. They amend the Statutory Maternity (General) Regs 1986 and the Statutory Paternity Pay and Adoption Pay (General) Regs 2002 under which a breach in continuity would prevent SMP, SPP and SAP being payable.

13. The Statutory Maternity Pay (General) (Amendment) Regs 2005 bring Anglo-Welsh law into line with EU Law by providing that any increase in pay while the woman is in receipt of SMP must be included when calculating the amount of SMP. The Regs implement the rulings of the CA in Alabaster v Barclays Bank that women are so entitled and that equal pay claims based on pregnancy and maternity do not require a male comparator. For the ECJ decision see Alabaster v Woolwich plc; for guidance go to www.dwp.gov.uk/lifeevent/benefits/ecj_judgement.asp

14. The National Minimum Wage (NMW) was increased to: £4.85 for those over 21 (increased from £4.50) not on the developmental rate; £4.10 for those aged 18-21 (inclusive) and those on the developmental rate; and a new rate of £3.00 was introduced for those aged 16 and 17 by the NMW Regs 1999 (Amendment) (No. 2) Regs 2004 with effect from 1 Oct. 2004.

From 1 Oct. 2005 the rates increased to £5.05 and £4.25 for those above 18 but there was no increase in the £3.00 figure for those aged 16/17. The CBI’s press release of 1 Oct. 2005 said that the increases over the past three years of 7%, 7% and 4% were hitting manufacturing and retail sectors and next year’s proposed 5.9% increase ‘will have a serious impact on those sectors traditionally affected by the minimum wage …’.

Fair piece rates are the subject matter of the National Minimum Wage Regs 1999 (Amendment) Regs 2004, in force 1 October 2005. The Regs provide for output workers to have a NMW for all hours worked OR a fair piece rate of 100% of the hours it takes an average pieceworker to do an agreed amount of work.

The Low Pay Commission finished a consultation on 30 Sept. 2005 on the accommodation offset, the rate for 16 and 17 year olds, the interaction of salary sacrifices and benefits in kind, the development rate for older workers and the application of the 12 months’ exemption for older apprentices. The report is due to be presented to the Secretary of State for Trade and Industry in February 2006. The government is working with the LPC on the older workers’ developmental rate to ensure compliance with the forthcoming age regs.

The Low Pay Commission is currently undertaking a macroeconomic review on whether the rates it proposed for Oct. 2006 (£5.35 and £4.45 for the over 17 rates) should be reviewed. The consultation exercise covering letter expressly states: ‘We do not propose to open up the wider debate on the level of the minimum wage.’ The deadline for consultation is 1 Dec. 2005. Brendan Barber, General Secretary of the TUC, made his view plain in a press release dated 30 Sept. 2005: ‘I urge it [the LPC] not to listen too closely to the bleatings of UK business leaders. A further increase next year and payment of the adult rate to 18 year olds is easily affordable, and would have no adverse effect upon either the economy or on jobs.’ The Commission is also seeking a new Chair to replace Adair Turner.

15. The Road Transport (Working Time) Regs 2005 SI 2005/639 came into force on 4 (sic!) April 2005. They provide in the normal manner of the Working Time Regs for an average of 48 hours maximum calculated over a 17 week reference period extendable to 26 weeks if there is an agreement in force. The max. hours per week are 60 but of course the 48 hour average must also not be exceeded. Night work is restricted to 10 hours out of 24 but the limit may again be varied by agreement. Self-employed drivers will not be covered until March 2009 and the Regs do not apply to those involved in driving but who do not fall within the EU law on drivers’ hours e.g. taxi drivers.

16. It will be remembered that junior doctors were the subject of much controversy when the WTR were introduced. The Working Time (Amendment) Regs 2003 began the reduction of their working time with effect from 1 Aug. 2004. The 48 hour week will be introduced from 2009.

17. The Employment Equality (Sex Discrimination) Regs 2005 SI 2005/2467 came into force on 1 Oct. 2005. They implement the Equal Treatment Directive 2002/73 and apply to those subject to gender reassignment. They bring the law of indirect sex discrimination into line with that found in discrimination on the grounds of race, national and ethnic origins, religion or belief and sexual orientation. The provision, criterion or practice is one ‘(i) which puts or would put women at a particular disadvantage when compared with men; (ii) which puts her at a disadvantage, and (iii) which he cannot show to be a proportionate and legitimate means of achieving a legitimate aim.’ Note that this revised definition applies only to employment and vocational training. The old one remains for services etc.

The Regs also introduce a stand-alone definition of sexual harassment: either harassment ‘on ground of sex’ or harassment ‘of a sexual nature’ where the behaviour was unwanted and ‘has the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment …’. ‘Sex’ and ‘sexual nature’ include gender reassignment. In respect of both types of harassment the ET must take into effect all the circumstances including in particular the perception of the complainant when considering whether the alleged harassment reasonably had the effect of violating dignity etc. The definition is meant to be the same conceptually as that in the Race and Framework Directives. Also made explicit (‘for the purposes of legal clarity’ in the words of the government) is the rule that discrimination on the grounds of pregnancy and maternity’ does constitute discrimination ‘on the grounds of sex’. The Regs also stipulate an eight week period for the employers to respond to a sex discrimination questionnaire (previously the reply had to be ‘within a reasonable time’.) Note also the deletion of the exception of cadet forces from the SDA, the extension to some office holders who receive remuneration including ministers of religion except where discrimination is on the basis of religion (but not elected ones or government ministers) and the change to the genuine occupational qualification (GOQ) where a person undergoing gender reassignment makes a search in pursuance of statutory powers. The Regs insert new and revised provisions into the SDA 1975. The Regs also abolish the ‘small employers’ exemption from the right to return to work after additional maternity and additional adoption leave. For the background see www.womenandequalityunit.gov.uk/legislation/index.htm For the Government’s response to consultation see Equality and Diversity: Updating the Sex Discrimination Act 2005 (URN 05/1345). For the changes see www.womenandequalityunit.gov.uk/ publications_sda_changes_explanation_2005.doc. The government refused to accept almost all recommendations for changes in the law e.g. a proposal from the NUT that fathers should the right to attend ante-natal appointments. The government also rejected proposals to restate the law explicitly that women undergoing IVF treatment are entitled not to be treated less favourably than men and that women refused part-time work after maternity leave may be protected by the SDA. No change was also made to assimilation of the GOQs in the SDA with the genuine occupational requirements under discrimination legislation such as the RRA. Surprisingly to me there was no recommendation to abolish single-sex colleges in Oxbridge, and 89% of respondents were in favour of retaining them. The EOC’s proposal that it should be able to bring representative actions was not adopted. Trade union demands for gender impact assessments were rejected, as were demands that hypothetical comparators should be permitted in equal pay claims.

In relation to gender the new chair of the EOC is Jenny Watson (who had for some months been the acting chair after the departure of Julie Mellor.

The Equal Opportunities Review reports that the average award in a discrimination case was £16,276 in 2004, a 48% increase on the previous year.

The Civil Partnership Act 2004 came into force on 5 December 2005. (1) The SDA 1975 is amended to include discrimination on the ground of civil partnership akin to marital status. (2) The right to request flexible working is extended to members of civil partnerships. (3) The rights to paternity leave and statutory paternity pay and to adoption leave and statutory adoption pay are also extended to civil partners. (4) The Employment Equality (Sexual Orientation) Regs 2003 are extended to civil partners. See the Civil Partnership Act 2004 (Amendments to Subordinate Legislation) Order 2005 SI 2005/2114 for (2) – (4).

18. The Disability Discrimination Act 1995 (Amendment) Regs 2004 came into force on 1 Oct. 2004. They abolish the small employer (15 employees) exception from the DDA 1995, abrogate the justification defence in claims that the employers have not made reasonable adjustments, and revise the burden of proof to bring the law into line with sexual discrimination claims. The Disability Discrimination (Questions and Replies) Order 2004 revises the prescribed form for questionnaires to comply with the DDA 1995 (Amendment) Regs 2003. The Disability Discrimination Codes of Practice (Employment and Trade Organisations) Revocation Order 2004 came into force on 1 Oct. 2004. The Disability Discrimination Act 2005 extends protection to those suffering from MS, HIV/AIDS and some forms of cancer from the date of diagnosis from 5 December 2005; from that date the requirement that the mental illness be ‘clinically recognised’ is abolished. It is expected that more stress claims will fall within the act than previously but note that there is no change to the definition of disability. For example, the disability has to be long-term still.

19. The general and specific duties laid down by the Race Relations Act 1976, s71, as amended by the Race Relations (Amendment) Act 2000 (in force 2 April 2001), came into force in England & Wales in respect of the public bodies listed in Sched. 1 and 1A respectively of the Act on 31 May 2005: see the RRA 1976 (General Statutory Duty) Order 2004 and the RRA 1976 (Statutory Duties) Order 2004. The general duty requires public bodies to eliminate unlawful racial discrimination, promote good relations between persons of different racial groups and promote equal opportunity among people of different groups. The specific duties include the employment duty to monitor workforces, applications, training and promotions by racial groups. Where the public body employs 150 or more full-time staff, it must also monitor the number from each racial group who bring grievance procedures, are subject to disciplinary procedures, benefit from or suffer as a result of performance assessment procedures, receive training and leave employment. The specific employment duty of all public bodies (whether employing more than or fewer then 150 workers) is blended into the general duty thus: the public body must use the information it has collected to investigate whether there are any differences in how racial groups are treated, to see whether there are racial reasons for the difference and to deal with any unfairness, disadvantage or discrimination. Note the parallel provisions in the Disability Discrimination Act 2005 (in force 4 December 2006) and the forthcoming gender equality duty in the Equality bill currently before Parliament (revived after the General Election). Consultation began (4 October 2005) on the latter duty: see Advancing Equality for Men and Women available at www.womenandequalityunit.gov.uk and as URN 05/1610.

20. The Equal Pay (Amendment) Regs 2004 outline the procedure an ET must adopt when faced with an equal value claim. They came into force on 1 Oct. 2004.

21. The final Code of Practice, that on medical records, of the four part Code on the use of personal disclosure in employment relationships was published by the Information Commissioner on 13 Dec. 2004. The third part, monitoring staff, was issued on 11 June 2003. The four parts have been consolidated into the Employment Practices Data Protection Code available on www.informationcommissioner.gov.uk/eventual.aspx?=437

22. The revised ACAS Code of Practice on discipline and grievance came into force on 1 Oct. 2004, the same day as the statutory discipline and grievance procedures. To March 2005 there was a decline of some 25% in the number of tribunal applications. The decline is partly explained by the drop in the number of multiple cases. Certainly the decline is not totally explained by the introduction of the statutory discipline and grievance procedures, which as said came into force only in October 2005.

23. Protection from unfair dismissal, selection for redundancy and detrimental treatment for those serving on juries and those dismissed for requesting flexible working came into force on 6 Apr. 2005: see the ERA 2004 (Commencement No. 3 and Transitional Provisions) Regs 2005 SI 2005/872 based on the ERA 2004 ss. 40-1. There is no qualifying period for those dismissed for requesting time off to serve and those dismissed for so requesting have an automatic unfair dismissal; similarly those dismissed for requesting flexible work are treated as being automatically unfairly dismissed and this is so even though they were taking part in industrial action, whether official or unofficial.

24. I am sure that all of you know that the max. amount of the basic award’s and redundancy payment’s ‘week’s pay’ was increased from £270 to £280 and that the max. compensatory award was raised from £55,000 to £56,800 from 1 Feb. 2005 by the annual Employment Rights (Increase of Limits) Order.

25. Also in the area of unfair dismissal the Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2004 added the Independent Police Complaints Authority to the list of bodies to which a protected disclosure may be made. The order came into force on 1 Jan. 2005.

26. Those who you interested in the Sunday Trading laws will know that large stores were already prohibited from opening on Christmas Day if that day fell on a Sunday. The Christmas Day Trading Act 2004, in force 9 Dec. 2004 , bans any shop from opening on that Day if the store is larger than 280 sq. m., no matter the day of the week on which Xmas falls.

27. The ERA 2004 (Commencement No. 1 and Transitional Provisions) Order 2004, also mentioned above, brought into force s37 of the Act, which extended the role of the companion at hearing (a.k.a. the right to be accompanied).

28. The Employment Tribunals (Constitution and Rules of Procedure) Regs 2004 and the equivalent EAT (Amendment) Rules 2004 came into effect on 1 Oct. 2004. The Regs. implement the Employment Act 2002 on tribunal reform and some of the recommendations of Janet Gaymer’s Employment Tribunal System Taskforce. The parallel ET Rules of Procedure for equal value claims came into force on the same date. The Practice Direction (EAT Procedure) 2004 came into force on 19 Dec. 2004. It replaced the 2002 version.

29. And finally as you all know, the date for mandatory use of ET1 and ET 3 was pushed back from 6 April 2005 to 1 Oct. 2005 by the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regs 2005 SI 2005/435. The forms have in fact been available since 1 Oct. 2004. The delay has apparently occurred because of the need to improve the electronic version available on the ETS website and because the ETS is developing a case management system which involves the electronic scanning of forms (and correspondence) and so the design of the form may change to accommodate scanning. Only versions provided by the ETS are valid. Do not use in-house versions.

Some older legislation etc.:

ULRs

Employment Act 2002, s43 : Union Learning Representatives were given the right to time off for training: 27 April 2003

Working Time

Working Time (Amendment) Regs 2003: 1 Aug. 2003 (extension of the WTR to non-mobile workers in the transport, fishing and offshore industries)

Working Time Amendment) Regs 2002: 6 Apr. 2003 (removal of UK opt out from parts of the Young Workers Directive 94/33 (no working more than eight hours per day or 40 hours a week and no working at night = 22:00-06:00: both rules are subject to exceptions)

Flexible Working (FW)

FW (Eligibility, Complaints and Remedies) Regs 2002 and FW (Procedural Requirements) Regs 2002: 6 Apr. 2003 (right to request FW )

Discrimination

EOC’s Code of Practice on Equal Pay: 1 Dec. 2003 (partly to take account of the new equal pay questionnaires)

Employment Equality (Sexual Orientation) Regs 2003: 1 Dec. 2003

Employment Equality (Religion or Belief) Regs 2003: 2 Dec. 2003

Equal Pay (Amendment) Regs 2003: 19 July 2003 (time limits for bringing claims and change to time over which arrears of pay may be awarded)

Race Relations Act 1976 (Amendment) Regs 2003: 19 July 2003 (amendments to the RRA brought about by the Race Directive 2000/43 but only in respect of race/ethnic origins/national origins: revised definition of indirect discrimination, racial harassment expressly made racial discrimination, and the amendment to the burden of proof). Note that the equivalent Sex Discrimination Act 1975 amendments came into force on 12 Oct. 2001.

Race Relations Act 1976 (Seamen Recruited Abroad) Order 2003: 19 July 2003 (reduces the exemption from the RRA found in s9: now only on the ground of nationality and only on the ground of pay)

Disability Discrimination (Blind and Partially Sighted Persons) Regs 2003: 6 Apr. 2003 (people certified as blind or partially sighted by a consultant ophthalmologist and those registered as blind or partially sighted on a local authority register are deemed to be disabled for the purposes of the DDA 1995)

Employment Act 2002, s42: 6 Apr. 2003 (institution of the equal pay questionnaire)

National Minimum Wage

NMW (Enforcement Notices) Act 2003: 8 July 2003 (enforcement issues now permitted to issue notices to former employers in respect of arrears due to former workers)

Forthcoming

The present UK Presidency of the EC has not so far produced very much in terms of employment legislation. The government as is well-known is opposed to the removal of the opt out from the Working Time Directive – the European Parliament voted in favour -- but it may be willing to give way if the reference period is extended from 17 weeks to a year. In this way peaks and troughs could be accommodated while sticking to the 48 hour average. It is though that there are some 3.6M workers working more than 48 hours per week. The CBI/Pertemps Employment Trends survey of Sept. 2005 reported that 75% of employers stated that removing the opt out would reduce their ability to do business and 43% said that the removal would affect their business severely or significantly. For the background to the proposed revisions see www2.europarl.eu.int/oeil/file.jsp?id=5202562. It is thought that progress may be made during the next Presidency (Austria).

There was a stalemate on the proposed Temporary Agency Workers Directive but the proposal was withdrawn as a result of the Better Regulation Initiative.

However, progress is being made on age discrimination and regulations are due to come into force on 1 Oct. 2006. There are draft Employment Equality (Age) Regs 2006 as required by the Framework Directive 2000/78. Consultation ended on 17 Oct. 2005 (see www.dti.gov.uk/er/equality/age.htm) but the outlines of government policy are well-settled. The Regs will apply to workers, not just employees. Coverage includes applicants for jobs. It extends to vocational training, trade unions and employers’ organisations but not to the armed forces or volunteers.

The upper age limits on unfair dismissal (UD) and redundancy payments (RP) claims will go. The qualifying periods will remain but the slicing for each month above 64 will go.
Dismissal due to retirement at the age of 65 or above will not per se be illegal; moreover, retirements below 65 will potentially be ‘objectively’ justifiable. What will happen is that in respect of retirement at any age employers will have a duty to follow a set procedure: (a) not more than 12 and not less than six months before the relevant date they will inform the worker in writing that s/he will be compulsorily retired and that s/he has the right to request to work beyond the intended date; failure to inform of the right to request may result in an ET awarding up to eight week’s pay, not perhaps a severe sanction; (b) if the worker makes a request to keep on working, the employers must hold a meeting within two weeks to discuss the request; (c) if the request is accepted, cedit quaestio and the worker continues working; (d) if the request is rejected, an appeal hearing must be held; (e) if this procedure is not followed, the law of unfair dismissal applies to the employee. Note that employers need not give reasons for the refusal of that request, that there is no right to have the employers’ reason(s) for refusal tested in the ET, and that these rules take precedence over the statutory dismissal procedure. There is no indication of how seriously the employers must take the request. The so-called ‘default retirement age of 65 was announced by the government in Dec. 2004 and has been subjected to strong criticism on the ground that it is per se age-discriminatory. Dismissal will be fair if it was genuinely on grounds of retirement and it takes place after the default retirement age (65) or below that if objectively justified and this procedure has been followed. NB. This process replaces the normal Discipline and Dismissal Procedure for this purpose. Dismissal will be automatically unfair if (1) no information is provided by the employers of the right to request to continue working and as to the intended date of retirement or they inform the workers less than two weeks before the retirement date; (2) they fail to comply with the procedure.
In relation to UD where the employers have given at least six months’ notice of retirement and they have followed the procedure just stated, then they have a defence provided that the worker is over 65 (or if under 65 the retirement is justified). Where the employers do not satisfy these conditions, the employee has a claim for UD unless the employers can prove that the dismissal was genuinely for the purpose of retirement.
The calculation of RP and the basic award in UD will be changed. Current government thinking is levelling down may be used whereas previously it had been thought that there would be a levelling up to 1½ weeks’ pay per service year, which is the multiplier currently for those aged 41 to 65. Any levelling down would seem to be regression, which is contrary to the Directive. The maximum years of service used in the calculation (20) is to remain. The current minimum age, 18, from which the right to and calculation of, redundancy payments, will be abolished (this already applies in unfair dismissal.)
Discrimination, direct or indirect, will be potentially justifiable if it is ‘a proportionate means of achieving a legitimate aim.’ (cf. SDA, DDA, RRA etc.). Examples given in the draft regs. are ‘vocational integration’ (!?), a minimum age for advantages in recruitment and and retention of older workers and a maximum age for training. The other forms of discrimination, victimisation and harassment, will be enacted. Note also GORs, genuine occupational requirements: must have legitimate aim and be appropriate (= proportionate) means. There is no definition of ‘legitimate’ cf. the previous round of consultation, Age Matters, 2003: health and safety, reward loyalty, reasonable period of employment before retirement. Note also age a defence where needed to comply with other legislation e.g. must be 18 to serve in a bar.
There are fairly complex provisions in respect of contractual service-related benefits. For example, workers with longer service may get more annual leave than others. (a) If the benefit is based on fewer than five years’ service, the law will deem there not to be discrimination on the ground of age. (b) also exempted from coverage by the Regs are service requirements based on statutory schemes. The main example is redundancy compensation schemes based on the statutory scheme. (c) In respect of service requirements longer than five years the employers will be able to justify it if they can show that they have provided the benefit to reward loyalty, encourage motivation or recognise experience, and that they have reasonably concluded that there is a benefit to their business. The length of service requirement must also not be discriminatory against similarly situated workers.
The NMW youth/developmental rate will remain as will contractual lower pay rates for workers of the same age (18-21 inclusive). Note that the government despite pressure from the LPC and others still adheres to the policy that the adult rate should be paid to those of 22 (not 21) and above. The government believes that the youth age is justified under the Framework Directive because (a) employers are not willing to pay those aged under 22 and apprentices full adult pay rates and therefore the lower NMW for these categories helps them into work; (b) the lower pay encourages the young to stay in full-time education. The LPC’s view is that there is no labour market justification for exempting 21 year olds from the adult rate.
Basically pensions are unaffected.
Discriminatory provisions in collective agreements will be void.

The default retirement age of 65 will be reviewed in 2011: ‘in the longer term the Government’s aim is to move to a position where business does not need to rely on a default retirement age: written statement by the SS for Trade & Industry (Alan Johnson) on Coming of Age: Consultation on the Draft Employment Equality (Age Regulations 2006. The 2011 review will look at e.g. life expectancy, the number of people who work beyond 65 and the impact of the regs on business.

The Equality bill besides providing for the establishment of the Commission for Equality and Human Rights (CEHR) puts a duty on public bodies to eliminate sex discrimination and promote gender equality (see also above) in a similar manner to the race relations duty imposed by the 2000 Act. It is expected that the duty will be effective from April 2007. The EOC is currently drafting a Code of Practice to accompany the duty. The CEHR is expected to be set up in Oct. 2007. The CRE, which originally opposed its establishment, has secured an exemption from joining it until 2009. There will be a special Disability Committee for at least five years after the CEHR is set up in order to preserve in part the expertise of the DRC Commissioners, at least half of whom are themselves disabled. Note that there is currently no institutional support for religion or belief and sexual orientation discrimination, and that the position will be the same for age discrimination when that law comes into force. For further details see S & M’s Encyclopedia.

Major changes are promised in family-friendly policies.

Maternity and adoption pay will be increased from six to nine months from 1 April 2007. The Government’s aim is to extend the period of leave with pay to a year by the end of the current Parliament. There will be provision for those on leave and their employers to keep in touch (e.g. training days) and ‘in touch’ days without the worker losing the right to maternity pay. The period of notice of return will be extended to two months. Cf. the British Chambers of Commerce David frost D-G: ‘… could be an administrative nightmare and could leave firms without key staff for long periods of time.’
Mothers will be able to transfer part of their maternity leave and the linked maternity pay to fathers where they return to work after at least six months of leave but before the end of the period.
The right to request flexible working currently restricted to parents of young children may be extended to parents of older ones and to carers of adults. Cf. the CBI survey of September 2005: too much senior management time was being spent on flexible working requests but the CIPD said the right was a ‘win-win’ one: employers were helped to recruit and retain and workers to care for their dependants.

For further details see www.dti.gov.uk/workandfamilies: see in particular the government’s response to the consultees to Work and Families: Choice and Flexibility, 2005. Current proposals are found in the Work and families bill of October 2005, which also provides for bank holidays not to be counted as annual leave and for a one-off uplift to compensation limits beyond the RPI.

The government proposes to abolish the ‘small employers’ exception that where a. mother is not allowed to return after the end of additional maternity leave or an adopter is not allowed after additional adoption leave, dismissal is not automatically unfair when the employers employ five or fewer employees: see the Maternity and Parental Leave etc Regs 1999 and the Paternity and Adoption Leave Regs 2002. This exemption will be abolished by April 2007: see the Work and Families consultation of Feb. 2005.

The government launched its Equalities Review and Discrimination Law Review on 25 Feb. 2005. It is to be hoped that the law will finally become equal and non-discriminatory! (cf. e.g. draft age regs: they do not apply to goods and services. The DRC launched its Disability Debate on 15 Aug. 2005, aiming to set the agenda for 20 years. Note that the private member’s bill on Employment Tribunals (Representation and Assistance in Discrimination Proceedings) has been dropped.

Also to be considered is the rather startling CBI Report, A Matter of Confidence, Restoring Faith in Employment Tribunals (Oct. 2005) currently available via the CBI homepage, on ET reform. It found that 100% of firms surveyed with fewer than 50 staff settled every claim, even though they thought they would win nearly half of them; 76% said that ‘red tape’ had increased because of statutory dispute resolution procedures; 55% said that tribunals had become too adversarial. The average cost to business in legal fees was £4,360 but no cost of management time was provided. The recommendations were:

More costs awards ‘even of small amounts’ should be made to deter weak claims.
Claimants should always provide a statement of loss.
‘The government and the ETS should consider the use of judicial assistants.’ (Cf. legal officers in the Employment Rights (Dispute Resolution) Act 1998).
Charges should be introduced for bringing claims ‘set at an appropriate level to ensure all individuals have access to justice, while deterring weak and vexatious claims’.
The new fixed conciliation period should be reviewed by ACAS and the government.
The 2004 changes to procedural fairness must be applied in such a way that ‘the substance and merits are at the forefront of any decision’.
‘The government should review the application of the statutory dismissal procedure to non-disciplinary dismissals – the one-size-fits-all situation is not working.’
‘Employees should be required to formally and unequivocally state that they are raising a grievance in a letter using the wording: “I am raising a grievance regarding …”, allowing employers to understand when the grievance procedure should be instigated …’.
‘The government should review tribunals’ power to increase compensation awards if employers do not fully undertake the appropriate statutory procedure. At the very least, the government should provide guidance as to what misdemeanour would constitute an increase of 10% and what would lead to a 50% rise, for example.’

The IOD in its Small Business Recruitment and Retention Survey (Sept. 2005) reported that 73% of firms believed that the law is too harsh to employers. The CBI/Pertemps survey mentioned above is also symptomatic. Some 26% (11% last year) of employers surveyed believed that the right to request flexible working had adversely affected their business with 75% saying that they were spending more time dealing with requests then previously.

The TUC via Brendan Barber commented on the CBI Report in its press release of 29 Sept. 2005: ‘The suggestion that the tribunal system is clogged with vexatious claims is ill-founded. However, the new dispute resolution legislation is complicated and the government plan to carry out a review in two years. The CBI should not pre-empt the outcomes of this review before in-depth research has been conducted on how the procedures are operating in practice.’

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Michael Jefferson Faculty of Law, University of Sheffield

Michael Jefferson
Faculty of Law, University of Sheffield