Employment Law: Recent and anticipated developments

This note summarises recent developments and looks forward to the reforms to come in the near future.

These Regulations came into force on 1 October 1998 and introduced rights and obligations for employees and employers relating to work and recreation periods. The main provisions are:

• a limit of 48 hours on the average working week (although this can be waived by written agreement with the individual)
• a limit of 8 hours on the average number of hours to be worked by night workers in a 24 hour period (in some circumstances a daily limit rather than an average)
• an obligation on employers to offer health assessments to night workers
• an obligation on employers to keep records of working hours
• minimum daily and weekly rest periods
• rest breaks during working hours
• paid annual leave entitlement

The Regulations also implement the provisions regulating the hours to be worked by adolescents set out in the Young Workers Directive which applies to workers over school leaving age but under the age of 18.

The Government has announced that it will issue further guidance on the implementation of the Regulations, particularly in relation to the record keeping requirements.

If you would like a more detailed summary of the provisions and impact of the Working Time Regulations, a practice note dealing with them is available on the Macfarlanes website or from your usual Macfarlanes contact.

The National Minimum Wage applies to almost all employees and was introduced on 1 April 1999. The current rates are:

• £3.60 per hour for workers aged 22 and over
• £3.00 per hour for workers aged 18-21
• £3.20 per hour for workers aged 22 and over for six months after starting a new job with a new employer and receiving accredited training.

There are complicated provisions dealing with piecemeal work and the way in which the pay is calculated as well as guidance as to what does and does not count as working time for the purpose of paying this wage.

The Statutory Instrument reducing the qualifying period for an employee bringing an unfair dismissal claim from two years to one year came into force on 1 June 1999 (The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999). Employees with more than one year’s continuous employment, whose date of termination of employment falls on or after that date, will be eligible to bring a claim for unfair dismissal and to apply for written reasons for their dismissal.

Where the employee has been dismissed with no or insufficient notice, the effective date of termination is the date on which the statutory notice period of the employee would have expired had that notice been properly given by the employer.

This change does not affect the period of qualifying employment required before a claim for statutory redundancy can be made which remains two years.

See below for new provisions regarding compensation payable to those unfairly dismissed.

The Public Interest Disclosure Act 1998 came into force on 2 July 1999 by dint of two regulations. The first lists the ‘prescribed persons’ to whom a worker may make relevant disclosures (as a rule of thumb, an employee should approach their employer as the first point of disclosure). The second provides that there will be no limit on the compensation which will be payable to workers who are unfairly dismissed as a result of making disclosures about their employer. The provisions take the form of amendments to the Employment Rights Act 1996.

If you require further or more detailed information on this, a practice note is available from Macfarlanes or on our website.

The Employment Relations Bill is expected to receive Royal Assent in late July and will, it is believed, be implemented by orders and regulations by December 1999. The Bill includes many significant reforms to employment law, but is unfortunately short on detail as to how and when the reforms will be brought into force. Outlined below are the major changes proposed by the Bill, and what the expected effect of them will be.

• Compensation for Unfair Dismissal

The ceiling on the compensatory award for unfair dismissal which may be awarded by an employment tribunal will be raised from £12,000 to £50,000 by Order which will probably be issued in the second half of this year, although no date has yet been fixed for its implementation.

The basic award (calculated in a similar manner to redundancy payments and currently capped at £6,600) will not be affected.

• Maternity Leave

The Fairness at Work White Paper issued by the Government indicated that basic Maternity Leave, to which all women employees are currently entitled, would be extended from 14 weeks to 18 weeks, bringing leave in line with the maternity pay period, already 18 weeks. The Bill states that maternity leave – both basic and extended, will be changed but provides no guidance except to say that the details will be dealt with separately by regulation.

Extended Leave, currently only available to those continuously employed for two years at the start of the eleventh week before the expected week of birth, and lasting until 29 weeks after the birth, will become ‘additional maternity leave'. The Fairness at Work White Paper envisaged that this would be available to pregnant employees with one year’s continuous service rather than two. It is also anticipated that notification procedures will be simplified.

Full details and procedures, together with the commencement date, will be made in due course by regulation.

• Parental Leave

This is an entirely new provision (based on the Parental Leave Directive), providing for a period of at least three months leave from work for both parents after the birth or adoption of a child. Again no detail has been published. Recent indication from the DTI suggests that the UK will implement the minimum three months leave and will provide for it to be taken over the first 5 years of the child’s life or adoption. It applies to both natural and adoptive parents but will probably be subject to a qualifying period of employment of one year. It is anticipated that employers will have some control over when time is to be taken and the length of any periods of absence: the current indication is that it will have to be taken in blocks of one month with a maximum of one month’s leave per year. It is also expected that the leave will be unpaid although there have been protests from some quarters that this will mean that parents on a lower income will be unable to afford to take it.

Regulations are currently being drafted and will be subject to consultation before they are finalised.

• Domestic Incidents

This is another new provision, providing a right for employees to take a reasonable amount of unpaid time off work to deal with domestic incidents. Again, the full extent of the entitlement will not be known until regulations are published later this year. Current guidance from the DTI suggests that the definition of domestic incident will be narrower than that in the Bill and will cover incidents affecting the employee’s parents, spouse, children or co-habitee – removing the rather broader definition which also allowed for incidents "which occur in the home of the employee".

• Right of Representation

Once the Act comes into force employees will have a legal right to be accompanied by a fellow employee or representative of a recognised trade union at disciplinary hearings. Provisions in the Bill also deal with new procedures for recognition and derecognition of trade unions for collective bargaining and changes to the law on trade union membership and industrial action.

Under the current legislation (the Data Protection Act 1984) only computer records are subject to data protection provisions. The 1998 Act will replace the 1984 Act entirely, and will bring into the ambit of data protection all written, manual and paper records, as well as those held on computer.

The main purpose of the Act is to regulate when and how information relating to individuals may be processed, and to provide mechanisms designed to ensure compliance with the law by persons in control of data. The subjects of the data can gain access to it (on payment of a fee) and may challenge any abuse or misuse of the information about them and obtain orders to amend or erase inaccurate data. There is a potential legal claim for compensation if subject of the data suffers damage or distress as a result of a breach of the protections.

There is specific protection for employers producing a reference for a current or former employee but no corresponding protection for the recipient prospective employer. This may have a serious effect on the willingness of employers to provide a reference which deals with anything other than the bare facts of the term of employment.

Although draft statutory instruments bringing into force the various provisions were published on 4 June 1999, it is unlikely the Act will be brought into force until next Spring.

A new Government White Paper, entitled ‘Smoking Kills’ has been published. Although smoking at work will not be banned, the Health and Safety Commission intends to consult on a new Approved Code of Practice on smoking in the workplace. The content would be based on the existing guidance from the Health and Safety Executive. It is likely employers will have to:

• introduce smoking policies that give priority to the needs of non-smoking employees, whether the smoke comes from other employees or from customers;
• take special care for people who have a health condition that may be made worse by tobacco smoke.

Although breach of the Approved Code would not in itself be an offence, if an employer was prosecuted for breach of health and safety law and it had not followed the provisions of the Code, it would need to show that it had complied the with law in some other way to avoid being found at fault.

The Government has introduced a new non-statutory Code of Practice entitled 'Age Diversity in Employment' which gives guidance on avoiding age discrimination at work. The code has no legal force but it is possible that breaches of the code may be treated by the Tribunals as indicative of other unfair or discriminatory treatment.

This note is intended to provide general information about some recent and anticipated developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained. If you would like further information or specific advice, please contact one of the following partners: Tony Thompson or Seán Lavin; or any other member of the Employment Group.