In addition to the Equality Bill which we reported on last week, recent developments include secondary legislation under the Employment Bill, draft regulations relating to terms and conditions of employment during maternity leave, draft guidance for the revised new ACAS code, EU proposals on working time, and new consultations on carers and the right to request training during employment. Read on for a brief overview of these proposals, as well as links to the relevant documentation for further reading.

Dispute Resolution

The Government is consulting on secondary legislation to be made under the Employment Bill which will repeal the statutory dispute resolution procedures as from 6 April 2008. The consultation invites comments on:

• Permitting qualified HR professionals to be included in the definition of “relevant advisor” who can sign off a compromise agreement;
• Changing the approach on interest on Employment Tribunal awards;
• Allowing parties to straightforward Tribunal claims to consent to determination of a claim without a hearing;
• Adding holiday pay claims to hearings where Tribunal Judge can sit alone;
• Increasing Tribunals’ powers to make recommendations in discrimination cases;
• Making various changes to Employment Tribunal rules of procedure, as part of the wider Tribunal Services transformation;
• A number of miscellaneous issues including transitional provisions for the removal of the dispute resolution procedures (expected to be in effect from 6 April 2009)

Additional Maternity Leave and Adoption Leave

The draft Maternity Leave and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008 have been published. These provide that employees will be entitled to the benefit of terms and conditions of employment, other than remuneration, throughout the entire maternity leave period, rather than just during Ordinary Maternity (or Adoption) Leave (OML or OAL) as at present. They also attempt to limit an employee’s right to pension benefits to the period in which they are in receipt of contractual or statutory maternity pay (currently all of OML and the first 13 weeks of Additional Maternity (or Adoption) Leave (AML or AAL)). However, under EU law it is arguable that pension benefits accrue throughout the whole period of maternity leave, not just paid maternity leave. Hence, despite the Government’s attempt to relieve employers of the burden of having to pay pension benefits for the final 13 weeks of AML, there will be a risk of discrimination claims if employers fail to provide such benefits. The same applies to death in service and permanent health insurance benefits.

ACAS Code

ACAS has now published its draft guide on discipline and grievances at work. The guide supplements the revised new ACAS Code of Practice on discipline and grievances at work which is currently subject to public consultation (see Human Capital, May 2008). The guide gives detailed advice on practical aspects of disciplinary and grievances issues but will not be enforceable in an Employment Tribunal. A failure to follow the revised new Code will not, in itself, give rise to any liability (i.e. dismissals in breach of the Code will not be ‘automatically unfair’ dismissals). However, Tribunals will be able to adjust compensation awards by up to 25% for unreasonable failure to comply with any provision of the new Code. The draft guide which supplements the Code will not be taken into account when considering any unreasonable failure to comply with the Code for the purposes of applying the 25% uplift.

Working Time

The Council of the European Union has published its proposals to amend the Working Time Directive. As regards the right of individuals to opt-out of the 48 hour working week, it is proposed that workers will be required to renew their opt-out after a year (or less, if provided by national law) otherwise it will lapse. In addition, an opt-out will be void if signed at the same time as an employment contract or within 4 weeks of starting work. There will be some changes to the opt-in and opt-out procedure and no worker will be able to work more than 60 hours a week averaged over 3 months unless permitted in a collective agreement or agreement between social partners. Furthermore, working time plus inactive on-call time will not be able to exceed 65 hours a week averaged over 3 months, unless permitted in a collective agreement. “Inactive on-call time” is on-call time during which the worker is not required “effectively to carry out his activity or duties”. The proposed amendments to the Directive also envisage that inactive on-call time will no longer be considered working time.

These changes are not “set in stone”, as proposed wording will now be debated by the European Parliament and may well be amended before adoption at a future meeting of the Council of Ministers.

Consultation on carers

The Government has published a consultation paper “National Carer Strategy, Carers at the heart of 21^st Century, families and communities”. The paper includes a review of the definition of carer with a view to extending the right to request flexible working for carers. The Government is concerned that the current definition of carer in the flexible working legislation denies the right to request flexible working to about 20% of carers, many of whom provides significant levels of care. The paper confirms that the Government intends to consult on the Walsh review’s proposal to extend the right to request flexible working to those with parental responsibility for children up to the age of 16.

Consultation on employee right to request time off to undertake training

The Government has published a consultation on granting employees the right to request time away from their mainstream duties to undertake relevant training, provided they have worked for their employer for 26 weeks. The procedure for making and responding to such request will be similar to that used for the right to request flexible working. The legislation will contain a list of acceptable business reasons which can be used by an employer to turn down a request. These include relevance of training to business productivity and performance and burden of additional costs e.g. for arranging cover while the employee undertakes training. Training can be accredited programmes leading to a qualification or unaccredited training to develop job-related skills. There are no proposals to specify how training can be taken, whether on or off the job, or how much time employees should take for training – this will be for employer and employee to agree. Employees will be limited to one request per year. It is unlikely that the Government will implement this right before 2010.

Equality Bill

The Government has issued a White Paper containing proposals for an Equality Bill which is intended to make the law more accessible and easier to understand by combining nine pieces of discrimination legislation and about 100 other laws into one single Act.   See our last Human Capital alert (July 2008).