EMPLOYMENT LAW (including)

WHAT'S NEW : THE EMPLOYMENT ACT 2002 : 8th July 2002

HR&DM have written a Paper called THE EMPLOYMENT ACT 2002. A STEP BY STEP GUIDE FOR EMPLOYERS. It is an informative document on the new laws which incorporates a friendly guide on how to implement new policies and procedures. The Government talks about 'a level playing-field' for smaller employers. It is not clear from the Act itself exactly what these concessions are! HR&DM have identified the issues, what is covered and what, exactly, the exemptions and exceptions are.

The document is FREE. Email: chris@HRmgt.co.uk

The Employment Act 2002 received Royal assent on 8th July 2002.

The objective of the Act is to create highly productive, modern and successful workplace through fairness and partnership.

The Act is concerned with 1.Fixed Term Working, 2.Work and Parents, 3.Equal Pay, 4.Tribunal Reform, 5.Union Learning Representatives and 6.Dispute Resolution. The Act will also cover Work Focused Interviews and Data Sharing.

The Tax Credits Bill also received Royal assent on 8th July and is now the Tax Credits Act 2002. As from (probably) April 2003 it will replace the present Working Families' Tax Credit, Disabled Person's Tax Credit, Children's Tax Credit and the child-related payments in Income Support and income-based Jobseeker's Allowance with just two integrated tax credits, "Child Tax credit" and "Working Tax credit".

1. FIXED TERM WORKING: 1 October 2002

Employees on fixed term contracts should be treated as favourably a permanent workers. There are two sets of regulations required to implement the EC Fixed Term Work Directive 1999/70/EC (the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002). The basic idea of the new fixed term work regulations is to make it unlawful to treat a fixed-term employee less favourably than a comparable non-fixed term employee engaged in similar work (subject to a defense of objective justification). Several other related issues are also covered, notably automatic conversion of fixed term contracts to contracts of indefinite length after four years; removal of the current ability for an employee to agree that he will not claim statutory redundancy pay on expiry of a fixed term; and making the completion of a task contract count as dismissal for unfair dismissal purposes. The basic idea of the new part time work regulations is to ensure that it is not possible for an employer to "escape" from the fixed term work regulations by employing fixed term workers on a part time basis.

HR&DM advises all employers to identify fixed term workers and updated Contracts of Employment. Train your managers on the new laws. Ensure those on fixed term contracts receive the same benefit as all other employees. If in doubt, consult with your solicitor or contact HR Management.

 2. WORK AND PARENTS: 6 April 2003

Under the Employment Act 2002 the birth or adoption of a child entitles parents to new rights. Paternity rights are increased. Parents of young or disabled children are entitled to new flexible working arrangements. Parents of premature babies expected on or after 6th April 2003 receive improved maternity benefits and new paternity rights. Expectant parents need to give longer notice to employers.

HR&DM advises that employers notify all staff of new entitlements. Amend all Contracts of Employment. Train managers on the new laws. Look at payroll procedures and ensure the business needs are covered during staff absences.

 3. EQUAL PAY: Early 2003

A Questionnaire procedure will help determine equal pay issues and evidence produced through the questionnaire process may be submitted a evidence in Tribunal Claims. Equal Pay claims are notoriously slow and complex. A questionnaire will make it easier for individuals to request key information from their employer when the are deciding whether to bring a case.

 4. TRIBUNAL REFORM: Early 2003

New powers are to be given to Tribunals in relation to costs, conciliation, powers to delegate the prescription of forms to the Secretary of State and determination without a hearing, practice directions and pre-hearing reviews. These changes proposed are not included in the Act itself but will be implemented within regulations which have yet to be published but which are due to come into force early Yr.2003.

 5. UNION LEARNING REPRESENTATIVES: Early 2003

New training initiatives are to be given to Union members. The DTi have drafted a code for consultation. Under the Act an employer must permit an employee who is a Union Learning Representative to take time off during working hours for learning, training and promoting the value of training.

HR&DM advises that employers liaise with line managers on un-equal pay exposure issues, tribunal reform regulations and the Company policy regarding time off for ULR's. Review all salaries to ensure fairness, update job evaluation systems and review broad-banding schemes where relevant. Consider contacting HR&DM for job evaluation purposes and/or salary survey's. Train all staff on the new laws and amend Contracts of Employment.

 6. DISPUTE RESOLUTION: Early 2003

All employers, and no company is exempt, need to have Contracts of Employment for staff and clearly defined Grievance and Disciplinary procedures. The Act sets out new statutory dismissal/disciplinary procedures and grievance procedures so that the position is clear to all employers. There will be a 3-stage standard dismissal and disciplinary procedure to be carefully time managed and documented. It is envisaged that a more thorough company procedures will reduce the number of tribunal claims.

HR&DM advises that all employers check existing Contracts of Employment and ensure disciplinary and grievance procedures meet the new standard. Look at management development initiatives. If in doubt contact your Solicitor or HR&DM.

 

DATA PROTECTION

EC directive 95/46/EC of 24th October 1995 (OJ L281/31 of 23rd November 1995).  Data Protection Act 1998 draft Code of Practice on Data Protection in the employment field issued October 2000

The Data Protection Act 1998 received Royal Assent on 16th July 1998 and came into force on 1st March 2000 (subject to introductory transitional periods - see notes at Data Protection/Data Protection Act 1998 commencement ).

The Data Protection Act 1998 repeals and replaces the Data Protection Act 1984 which applied to computerised records only. The 1998 Act applies to personal data recorded manually or in print as well as to computerised data. Anyone concerned with legal problems arising under the Data Protection Act 1998 would be well advised to refer at an early stage to the wording of the EC Data Protection Directive 95/46/EC. It was in order to implement this EC directive in the UK that Parliament passed the 1998 Act.

The general effect is to give rights of "subject access" to individuals , that is to give individuals the right to have access to information held about them and to have that information corrected or deleted where appropriate. The right is enforceable by complaint to the Information Commissioner (Ms Elizabeth France, originally known as the Data Protection Registrar and then until 31st January 2001 when she also took over Freedom of Information Act 2000 responsibilities as the Data Protection Commissioner). A data controller may charge a fee for dealing with subject access. Currently, the maximum fee chargeable is £10 (or £2 if it is a request for limited information from a credit reference agency) and there are special rules that apply to fees for access to manual health records (see Data Protection (Subject Access)(Fees and Miscellaneous Provisions) Regulations 2000, SI 2000/191).

The Information Commissioner has power to prosecute or to serve an enforcement notice on a defaulting "data user". It is a criminal offense to fail to register when registration is required (Data Protection Act 1998 ss.17(1) and 21) and see notes at Criminal law aspects/offences under employment legislation/data protection ).

There are transitional periods affecting existing manual records. These are covered in two stages. The first, main, stage became fully effective on 24th October 2001. The final stage, removing minor exemptions relating to quality of manual data, which existed at 24th October 1998, comes into effect on 24th October 2007 (see notes at Data Protection/Data Protection Act 1998 commencement ).

The Information Commissioner issued a draft Data Protection Code of Practice for employers on 9th October 2000. The final Code of Practice will be issued in four stages. The first stage was issued in March 2002 and covers data protection issues in connection with recruitment and selection (see notes at Data protection/Code of Practice ).

In October 2001 the Information Commissioner issued (a revised on-line version of) her reference document for data controllers and their advisers. This is entitled "Data Protection Act 1998 - Legal Guidance" and is likely to become an essential reference tool for those likely to be concerned. It (specifically states that it) replaces the October 1998 guidance document called "The Data Protection Act 1998 - An Introduction".

The Information Commissioner also provides a warning about independent companies, which are trying to charge large fees for registration under the Data Protection Act - go to www.dpr.gov.uk/donotbemisled.html and see Office of Fair Trading Press Release 35/02 of 31st May 2002. In December 2001 the Lord Chancellor's department issued an interim Post-Implementation Appraisal of the operation of the Data Protection Act so far, which includes critical comments from the Information Commissioner. Her comments and those of others can be summed up as "good idea but too inflexible, too complicated and too much red tape".

There is an extremely useful EC data protection web site covering data protection from the European angle. The EC Commission published a new "Guide to Data Protection Rights" in Spring 2001. In the UK, a well established commercial organisation (founded 1987) called "Privacy Laws & Business" (Tel 020 8423 1300) provides various products and services related to privacy and data protection issues, including a useful international links page on its website.

The office of the Information Commission is at Wycliffe House, Water Lane, Wilmslow, Cheshire. SK9 5AF. Approximately 100 staff deals with Data Protection matters for the whole of the UK. Telephone number is 01625-545 745 and website is at www.dataprotection.gov.uk. The website includes a copy of the Commissioner's very informative 2001 Annual Report. It also contains a useful News and Events section.

A "data protection tool kit" is available from a commercial website at www.data-protection-act.co.uk which says that its purpose is "to make the Data Protection Act less of a trauma and more of a straight forward business process".

DISCRIMINATION LAWS

Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Protection from Harassment Act 1997. Public Interest Disclosure Act 1998

DISCRIMINATION AND NEW DIRECTIVES

The arguments for and against anti-discrimination legislation generally were well rehearsed in a House of Commons debate during the passage of the Reserve Forces Act 1996 when Parliament rejected a proposal to make it unlawful for employers to discriminate against job applicants and employees who are members of the Reserve Forces (see Hansard report of Standing Committee A for 23rd April 1996, cols 85-106).

In some US states (eg California) it can be unlawful to discriminate against a job applicant on grounds of his or her height or weight but UK law does not forbid this type of "aesthetic" discrimination (although in the UK an employer's dress code might in some cases amount to unlawful sex discrimination).

Compensation awarded under the discrimination acts can, in appropriate cases, include an amount in respect of damages for personal injury and can thus include very substantial sums for loss of future earnings (see Sheriff v Klyne Tugs (Lowestoft) Ltd 1999 ICR 1170, CA)..

Recent developments include:-

1.     NEW EU DIRECTIVES

In June and November 2000 respectively the EC Council of Ministers adopted two anti-discrimination directives. The June 2000 directive will require all Member States to outlaw discrimination in the employment field based on race or ethnic origin (subject to "the usual" exceptions). The November 2000 Directive will require all Member States to outlaw discrimination in the employment field based on age, disability, religion and sexual orientation, again subject to "the usual" exceptions.

2.     ECHR art 14.

The European Convention on Human Rights contains provisions covering discrimination (ECHR art 14). However, this provision contains a loophole in that it only prohibits discrimination which affects a right specifically recognised by the Convention (art 14 provides The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status). A new protocol (protocol 12) to the ECHR has been proposed to remove that restriction and provide that no-one can be discriminated against by any public authority on any ground. This protocol was signed on behalf of 25 countries at Rome on 4th November 2000. Neither the UK nor France was amongst the signatories (see Council of EuropePress Release of 4.11.00.

RACE DISCRIMINATION

EC Race Discrimination Directive 2000/43/EC

EC Equal Treatment Framework Directive 2000/78/EC

In November 1999 the European Commission proposed new rules to require Member States to prohibit discrimination in employment on the grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. This was the employment law part of a general anti-discrimination package proposed by the European Commission on 25th November 1999 (see EC Press Release IP/99/895 of 25th November 1999 entitled "A step forward for the EU - empowering victims of discrimination"). This adds to the well established EC directives, which already outlaw sex discrimination.

The UK already has rules outlawing racial discrimination and disability discrimination . To that extent, UK law is already largely in compliance with, and ahead of, this second Directive. However currently there are no UK laws which directly prohibit religious discrimination (save in Northern Ireland), age discrimination or discrimination on the grounds of sexual orientation (but see link below to general notes under Sex Discrimination/homosexuals & transsexuals ).

Two EC directives followed the November 1999 initiative :

The first is a Directive prohibiting discrimination on grounds of racial or ethnic origin, formally adopted on 29th June 2000 as 2000/43/EC. It was published on 19th July 2000 and must be implemented by Member States by 19th July 2003. This new race discrimination directive, in its formative stage, was welcomed by the UK government.  The second is a Directive establishing a General Framework for Equal Treatment in Employment and Occupation, formally adopted at a Council Meeting on 27th November 2000. This must be implemented by 2nd December 2003, with an extension to 2nd December 2006 possible in respect of the provisions outlawing age and disability discrimination.

A semi-official European Code of Good Practice on "Ageing in employment", prepared with support of the Employment and Social Affairs Directorate of the European Commission, was issued in January 2001 (details from Eurolink Age (tel 020 8765 7717), a London based European non-governmental organisation).

A new Sex Discrimination (Equal Treatment) directive was approved at the 11th June 2001 meeting of the EU Employment and Social Policy Committee. This is designed to replace and update the existing Equal Treatment Directive 76/207/EEC to bring it into line with the Framework directives noted above.

The British government has set up an "Age Advisory Group" to advise on age issues generally and in particular on the new legislation, which will be required by end 2006 to implement the EC framework directive 2000/78. (see DfEE Press Release 2001/92 of 14th February 2001 for detail of membership etc).

SEX DISCRIMINATION / EQUAL PAY & TERMS OF EMPLOYMENT

EUROPEAN POSITION.  THE TREATY OF ROME Art 141 and EC Directives 75/117, 76/207 and 79/7.

"Each Member State shall . . . ensure and . . . maintain the application the principle that men and women should receive equal pay for equal work" (art 119 Treaty of Rome).

The three directives noted above take this further by requiring Member States to "introduce into their national legal systems such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principle [of sex equality] to pursue their claims by judicial process after possible recourse to other competent authorities" (art 2 of directive 75/117/EEC).

The Equal Pay directive (75/117/EEC) provides that "the principle of equal pay for men and women outlined in Article 119 .... means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration" (art 1).

The Equal Treatment directive (76/207/EEC) is designed to put into effect "the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training .....". Proposals to replace this Directive with an updated version were approved at a European Council meeting in Luxembourg on 11th June 2001. Notes of the 11th June meeting say that the new Directive "will eventually add some important provisions to the existing Directive" including in particular definitions of direct and indirect discrimination to ensure consistency with the year 2000 non-discrimination framework Directives and recognition of harassment, including sexual harassment, as a form of discrimination.

The Equal Treatment (social security) directive (79/7/EEC) provides for "the progressive implementation in the field of social security ..... of the principle of equal treatment for men and women....".

 

WORKING TIME REGULATIONS 1999

CHANGES TO THE 1998 WORKING TIME REGULATIONS

The Working Time Regulations 1999, SI 1999/3372

The wording of the December 1999 amending regulations is identical to that of the October 1999 DTI consultation revised draft. There are two main effects:-

1. from 17th December 1999 time worked voluntarily in addition to contracted hours is disregarded in calculating working hours for purposes of the regulations (this will apply mainly to senior staff who set their own hours.  The Working Time Regulations 1998 (SI 1998/1833) regulations impose maximum limits on weekly and night time work save in particular cases. One of the exceptions, in reg 20, covers "unmeasured working time". The new 1999 regulations make it clear that this exception is to apply pro rata if an employee works partly but not exclusively to fixed hours (by adding a new sub-para 2 to Working Time Regulations 1998 (SI 1998/1833) reg 20).

2. From 17th December 1999 record-keeping requirements in respect of opted-out workers are relaxed so that it is now enough just to keep a list of names of those who have opted out (effected by amendment to Working Time Regulations 1998 (SI 1998/1833) reg 4 and Working Time Regulations 1998 (SI 1998/1833) reg 5). A DTI website includes an amended Guide to the Working Time Regulations.

EC\EU DIRECTIVE 93/104

Until the 1998 Working Time Regulations came into effect on 1st October 1998 UK employers and employees were generally free to negotiate whatever hours of work and holiday they wanted or could achieve, without statutory restriction. Employers were, however, and still are, subject to a general implied duty to protect the health and safety of workers which could be used to prevent them from requiring excessive hours of work (see eg Johnstone v Bloomsbury Health Authority 1991 ICR 269, CA).

The EC Working Time directive requires Member States to ensure that national rules make it unlawful for an employer to require workers to work more than an average of 48 hours a week. It also contains provisions re shift work, night work, rest breaks and minimum holiday entitlement.

The Working Time Regulations 1998 (SI 1998/1833) implement the Working Time directive in the UK. There were already some relevant UK statutory rules applicable before 1st October 1998 in special cases and these continue in force (eg for children and young persons, lorry drivers and farm workers).

Recent developments in France on the minimum wage and maximum working hours, while not directly related to UK employment law, may be of interest to users of this programme. Under the "Loi Aubry", as from 1st January 2000 (for larger employers) or 1st January 2002 (for small employers) it is unlawful in France for an employer to require a worker to work more than an average of 35 hours per week.

In outline, the basic rights which the regulations provide are as follows:-

a limit of an average of 48 hours a week which a worker can be required to work - any excess must be voluntary.

for night workers, maximum of 8 hours work in any 24 on average and a right to free health assessments.

at least 11 hours rest per day, at least one day off each week and a rest break if the working day is longer than six hours.

At least four weeks paid leave per year.

Amendments were made to the 1998 regulations with effect from 17th December 1999, chiefly to reduce red tape.

Further amendments in effect on 25th October 2001 remove the 13-week qualifying period previously required for the right to paid holiday pay and substitutes a right to take one-twelfth of the annual holiday for each month worked, rounded up to the nearest half-day.

AVERAGE 48 HOUR MAX WORKING WEEK / GENERAL RULE

The general rule, applicable since 1st October 1998, is that an employer must take all reasonable steps "in keeping with the need to protect the health and safety of workers" to ensure that the working time of any worker does not exceed an average of 48 hours for each seven days during any reference period (WT regs 1998, reg 4).  The employer must keep records adequate to show "whether the limits .... are being complied with" and must retain them for two years from the date on which they were made (WT regs 1998, reg 9).

OPTING OUT AGREEMENT / LAW

An individual worker and his employer can validly agree to opt out of the permitted working hours limits imposed by the Working Time Regulations 1998 (WT regs 1998, reg 5). This is quite different from the more general collective variation arrangements permitted by the Working Time regulations.

Whilst a worker may agree to work more than the average 48 hours per week maximum provided for by WT regs 1998, reg 4 the wording (WT regs 1998, reg 4(1)) makes it clear that an opt-out agreement must be in writing and must be made by the individual concerned. Therefore it would not be valid if in a collective agreement or a workforce agreement . There is nothing requiring an opt-out agreement to be in a separate document. It can therefore be valid if, for example, it is included in a normal contract of employment . However it will only remain valid if the employer complies with record keeping requirements spelled out in WT regs 1998, reg 5(4).

Trade unions have objected to this voluntary "opt-out let-out" on the not unreasonable grounds (albeit grounds which beg a number of questions) that when rules are made for the protection of the health and safety of workers the law should only allow opting out of them in carefully defined special circumstances. A general voluntary opt out provision is therefore seen as fundamentally flawed. This view may eventually win as the provision of the Directive which made it lawful for the UK to provide for opting out agreements is subject to review by the EC by 23rd November 2003 (Working Time Directive 93/104/EC, art 18.1(b)(i)). 

REST BREAKS AND WEEKENDS

1. Daily rest.

Every adult worker must have a minimum of ELEVEN consecutive hours rest during each 24 hour period during which he works for an employer , extended to TWELVE consecutive hours for a young worker (see WT regs 1998, reg 10(1) and (2)).

2. Weekly rest.

Every adult worker must have an "uninterrupted rest period of not less than 24 hours in each seven-day period during which he works for his employer extended to 48 hours for a young worker (see WT regs 1998, reg 11(1) and (3)).

For adult workers, there is an alternative (at the option of the employer) of using a two week base period, in which case the rest period must be at least 48 uninterrupted hours or two separate uninterrupted 24 hour periods (WT regs 1998, reg 11(2)).

3. Rest breaks.

Every adult worker must have an uninterrupted rest break of not less than 20 minutes (or such longer period as may be agreed in a collective agreement or workforce agreement ) per 6 hours of working time extended for a young worker to not less than 30 minutes per 4 1/2 hours of working time b (see WT regs 1998, reg 12(1)-(4)).

4. Monotonous work.

Where the pattern according to which an employer organizes work is such as to put the health and safety of a worker employed by him at risk, in particular because the work is monotonous or the work-rate is predetermined, the employer shall ensure that the worker is given adequate rest breaks (WT regs 1998, reg 8) - presumably this is in addition to the normal rest breaks required by WT regs 1998, reg 12 - see above.

RECORDS TO BE KEPT

A potentially quite onerous obligation imposed on employers by the Working Time Regulations 1998 is an obligation to keep records showing that the following have been properly observed in respect of each worker :

(i) the maximum average weekly working time limits imposed by the regulations;

(ii) the maximum limits for work done by night workers;

(iii) the requirements concerning health assessments for night workers.