In this edition of Human Capital we give you a brief update of some recently announced or proposed developments in employment law.

Proposals to extend flexible working

The Government has announced its intention to extend the right to request flexible working to parents with children up to the age of 16. Only parents with children under the age of 6 (or 18 if disabled) are currently entitled to request flexible working. The Government’s proposals follow the publication of the Walsh Report which was commissioned earlier this year to investigate whether the right to request flexible working should be extended.

The Walsh Report found that the extension of the right should not be phased in, but implemented in one go, so as to reduce confusion. The Government will now consult on exactly how the change is to be implemented. It is worth noting that the Walsh Report rejected suggestions that the current qualifying period of 26 weeks should be removed, or that there should be an exemption for small firms.

The Equality Bill

The Prime Minister’s recent statement on the Government’s proposed legislative programme has included an Equality Bill to reform discrimination law. The Government consulted on proposals for the Equality Bill last year (see Human Capital alert July 2007) and its response will be published soon. It is expected that there will be further consultation on specific issues which are to be dealt with in regulations.

Temporary and Agency Workers (Equal Treatment) Bill

Following an agreement on agency workers reached by the CBI and TUC on 20 May 2008, the Temporary and Agency Workers (Equal Treatment) Bill has been withdrawn. The TUC and CBI agreed that agency workers should be entitled to equal treatment with comparable permanent employees after 12 weeks’ employment. The parties agreed that, “equal treatment” should mean that agency workers will be entitled to at least the basic working and employment conditions to which they would have been entitled if they had been recruited directly by the undertaking to occupy the same job. However, this will not cover “occupational social security schemes” (which presumably includes statutory sick pay and pension payments). The Government will now seek to reflect this agreement in the terms of the Temporary Workers’ Directive at the European Council meeting on 19/20 June and hopes to introduce implementing legislation in the 2008/2009 parliamentary session. At the same meeting, the Council will also consider the UK’s opt out of the 48 hour working week under the Working Time Directive. This issue was linked to the Agency Workers’ Directive at the Council of Ministers’ meeting in December 2007. John Cridland, Deputy Director-General of the CBI has stated that the agreement on agency workers should now allow the UK to keep the working hours opt out from the Working Time Directive, which he says is equally vital to the future of the UK economy.

The Employment Bill

The Employment Bill was debated in the House of Lords on 19 May 2008 and has now been republished as amended. The Bill will be read for the third time in the Lords on 2 June 2008. The Government’s aim is for the Bill to receive Royal Assent in the summer of 2008. The House of Lords has dealt with various amendments which have been tabled and debated in Grand Committee over the last few months. A number of amendments have been withdrawn, including proposed amendments regarding expulsion of trade union members, mediation, recovery of unpaid compensation and protection of temporary staff aged under 18. The most important changes include:

  • Codes of Conduct (clause 3) – the reference to a “relevant Code of Practice” (with which employers will be required to comply once the statutory dismissal procedures are abolished next year) will be more tightly defined so that only the ACAS Code of Practice on disciplinary and grievance procedures will fall within this definition.
  • Determinations without hearing (clause 4) – Employment Judges will only be able to determine cases without a hearing if all the parties have provided their express written consent. Furthermore, the Government will consult on regulations to enable determinations without a hearing in five jurisdictions (the so called “fast track procedure”). The five jurisdictions are the National Minimum Wage, holiday pay, breach of contract, redundancy payments and unlawful deductions from wages.

Government’s response to resolving disputes in the workplace

The Government has finally published its response to the consultation launched in March 2007, Success at Work: Resolving Disputes in the Workplace, which followed the recommendations of the Gibbons Review. The Employment Bill has overshadowed many of the issues raised in the consultation, but nevertheless it provides interesting reading as regards the Government’s reasons for the proposals set out in the Bill.