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Looking ahead into 2010........

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Employment law develops quickly and can have a large impact on your business. Numerous pieces of employment legislation are expected to come into force next year. Some of the most significant are set out below. 

1.                  

DATE: January 2010

LAW: Code of Practice for Time Off for trade union duties and activities

PROVISIONS:

Some of the matters dealt with under the new code are:

  • Paid reasonable time off for trade union duties. Some of the duties which Trade Union Representatives should be allowed to take time off for include duties concerned with negotiations or, where their employer has agreed or, for duties concerned with other functions related to or connected with the subjects of collective bargaining e.g. collective redundancies.
  • Paid reasonable time off for the training of Trade Union Representatives and Union Learning Representatives in the aspects of industrial relations relevant to the carrying out of their trade union duties.
  • What will constitute sufficient training for Union Learning Representatives
  • Paid time off to allow trade union representatives to accompany fellow employees at disciplinary and grievance meetings.
  • Unpaid time off for trade union activities and accessing trade union services (excluding activities which themselves consist of industrial action).

COMMENT

In 2007 Pat McFadden MP asked ACAS to develop a new Code of Practice on Time Off for Trade Union Duties and Activities. The Governments consultation on the new code's content and accompanying guidance was closed on 16 March 2009 and the Code is expected to come into force in January 2010.

It will be accompanied by two non statutory guides; ‘Trade Union Representation in the Workplace: a guide to managing time off, training and facilities' and ‘Non-Union Representation in the Workplace: a guide to managing time off, training and facilities'.

The purpose of the new code is to aid and improve the effectiveness of relationships between employers and trade unions.

2.                  

DATE: January & April 2010

LAW: Black listing of trade unionists

PROVISIONS:

Following the consultation the regulations would:

  • Prohibit the compilation, use, sale or supply of a blacklist
  • Allow individuals to bring a claim at Employment Tribunal if they were refused employment, dismissed or suffered a detriment for reasons relating to a blacklist.
  • Enable individuals and trade unions to bring court proceedings for damages or interlocutory relief on the basis of blacklisting.
  • Establish a minimum amount of £5,000 compensation for each tribunal claim brought by an individual or trade union. The minimum amount can be reduced if a tribunal considers it to be ‘just and equitable'.

COMMENT

In 2009, evidence was discovered that The Consulting Association was keeping a record of individuals in the construction sector and their trade union membership and/or activity. In effect, The Consulting Association was blacklisting construction workers.

Between 7 July 2009 and 18 August 2009 the Government consulted on the draft regulations and in December 2009 it published it's response to the consultation.

Interestingly, during the consultation trade unions argued that the new act should be read alongside the Data Protection Act 1998 and that criminal sanctions should apply to blacklisting. However, the Government rejected these requests.

Given the impact which blacklisting has on an individual, the regulations are expected to come into force quickly and likely between January and April 2010.

3.                  

DATE: April 2010

LAW: Apprenticeships, Skills, Children and Learning Act 2009

PROVISIONS:

Those provisions of the Act coming into force in April will:

  • Give employees the right to request time away from their normal duties in order to undertake training which they believe will improve their own performance and the performance of their employer's business.
  • Strengthen apprenticeship schemes by providing that all suitably qualified young people between the ages of 16 and 18 are entitled to a place on an apprenticeship scheme. (Note: this provision is not intended to come into force until September 2013).

COMMENT:

The new right to request time off will only extend to businesses with 250 employees or more from 6 April 2010. However, from April 2011, it will apply to employers of all sizes.

The procedure by which an employer should consider the request reflects that currently in force in respect of flexible working requests. Employers will be entitled to refuse a request for specified business reasons or if it believes that the training will not improve the employee's performance at work. 

In addition, there is no obligation on an employer to pay for the training or to pay the employee's salary during the period of time he/she is absent from work training.

4.                  

DATE: April 2010

LAW: Employment Tribunal Claims and the Public Interest Disclosure Act

PROVISIONS:

If an employee is dismissed, or suffers a detriment, as a result of making a protected disclosure, that employee can bring a claim in the Employment Tribunals.

Under its provisions:

  • Employment Tribunals would, with the claimant's express consent, pass details of the allegations made by the employee about their employer to the relevant regulator.
  • The ET1 form will be amended slightly to include a ‘Yes' box for Claimant's to provide their express consent for the Tribunal to pass on the ET1 to the relevant regulator.

COMMENT:

The Act aims to improve the flow of information between the Employment Tribunals and the relevant industry regulator.

By passing the allegations onto the relevant industry regulator it would allow the regulator to investigate the allegations much more quickly and as part of their normal regulatory responsibilities.

5.                  

DATE: April 2010

LAW: The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations 2010

PROVISIONS:

Under the regulations:

  • General Practitioners (GPs) can indicate whether a patient is fit or not fit for work but also whether the patient may be fit for some work.
  • GPs will be required to set dates on which they believe employees will be fit to return to work.
  • GPs will be able to issue printed statements rather than handwritten ones.

COMMENT:

It is intended that the regulations will replace the current ‘sick note' culture with a ‘fit note' culture. The regulations are expected to simplify the process for both GPs and employers.

GP's will indicate how the illness may physically effect the employee and may suggest some optional measures which an employer can choose to implement in order to quicken the employee's return to work.

In essence the regulations place the emphasis back on the employer to take responsibility for getting an employee back to work.

6.                  

DATE: October 2010

LAW: Equality Bill 2008

PROVISIONS:

The Acts provisions will include:

  • An extension of the definitions of direct discrimination and harassment to include ‘associative' and ‘perceptive' discrimination.
  • A prohibition of direct discrimination because of two protected characteristics. (Although this is not extended to apply to indirect discrimination.)
  • An extension of the concept of positive action to allow employers to recruit or promote someone from an under-represented group if they have a choice between two or more equally suitable candidates.
  • A limit on the effect of secrecy clauses in employment contracts in respect of pay.
  • An order making ability to require employers with over 250 employees to report on their gender pay gap.
  • Giving Tribunals the power to make recommendations for an employers entire workforce.

COMMENT:

The Act is intended to harmonise and simplify the currently disjointed discrimination legislation and strengthen the legislation where required.

Some changes are likely to see lawyers and Employment judges arguing over semantics for some time to come. For example, the Act will change the definition of direct discrimination from including "on the ground(s) of" [a protected characteristic] to using "because of" [a protected characteristic]. According to the bills explanatory notes the change of wording is not intended to change the law. Rather it is intended to make the law more accessible to ‘ordinary users'.

Case Watch

Some of the issues which are expected to come before the Employment Courts in 2010.....

Case

Issue

1.                  

Ladele v London Borough of Islington

Religious Discrimination - whether an employer had discriminated against Ms Ladele by asking her to undertake all aspects of her job despite Ms Ladele having strong objections on the grounds of her religious beliefs. Ms Ladele was a registrar who registered marriages. Following the introduction of the Civil Partnerships Act, Ms Ladele refused to register civil partnerships stating it was against her religious beliefs. The Council disciplined her. The Employment Appeals Tribunal found that the Council's actions were justifiable and upheld the appeal that its actions had not amounted to indirect discrimination. On 15 December 2009 the Court of Appeal confirmed the EAT's decision.

2.                  

Gibb v Maidstone & TunbridgeWells NHS Trust

Compromise Agreements - whether an NHS Trust has acted outside of its powers in agreeing to pay an "irrationally generous" compensation payment of £250,000 to Ms Gibb (Chief Executive) under a compromise agreement. The NHS trust executed the agreement and subsequently failed to pay Ms Gibb the full amount. Ms Gibb brought proceedings claiming the remainder. The High Court held that the NHS Trust had acted ultra vires in agreeing to pay Ms Gibb such a large amount of compensation and that she was only entitled to £75,000 which represented a sum equivalent to her notice period of 6 months. The Court of Appeal is due to hear the matter in March 2010.

3.                  

R (on the application of G) v The Governors of X School and another

Disciplinary Hearings - G (a music teacher) was dismissed after allegations that he had had an inappropriate relationship with a child. G requested permission to be accompanied to the disciplinary hearing and the subsequent appeal hearing by a legal representative. The school refused on both occasions. G applied for Judicial Review on the basis that his rights under article 6 of the European Convention on Human Rights had been breached. The High Court held that G should be allowed legal representation at the hearing and appeal hearing due to the seriousness of the allegations and the severity of the consequences for G should they be upheld. The school appealed and the Court of Appeal is due to deliver its judgment on this matter early in 2010.

4.                  

Miss AE Olds v Late Editions 

TUPE implications during administration - Whether regulation 8(7) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 applies to the sale of a company in pre-pack administration. The ET held that reg. 8(7) did apply and therefore the employees of the insolvent company did not automatically transfer to the buyer. The EAT is expected to hear the case on appeal in 2010.

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