A number of legislative changes are due this year that will affect employers and their staff. Also expected are a number of draft regulations concerning changes to the law that are due to be introduced in 2011. Nicola McMahon explains.
With seasonal celebrations now behind us, it is a good time to consider forthcoming changes to employment law in 2010.
There are various legislative provisions which are passing through Parliament at present, and others currently at the consultation stage, with which employers should familiarise themselves.
The following should act as a useful reminder of the planned and anticipated legislative changes during 2010.
6 April 2010
The Apprenticeships, Skills, Children and Learning Act 2009 comes into force. This provides employees with a right to request unpaid time off work to undertake study or training. Initially, this right will apply only to employees with at least six months' service who can demonstrate that the training will improve the effectiveness of their work and the performance of their employer's business, and only employers with at least 250 employees will be obliged to consider such requests.
The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations 2010 are expected to introduce "fit notes", which will be issued by GPs and provide employers with greater information about what their "sick" employees can and can't do, and advise on ways to get them back to work sooner, rather than simply declaring that they are unable to work.
The Government's proposed regulations to outlaw the blacklisting of workers for trade union membership or activity are expected to come into force.
Most of the provisions of the Equality Bill are expected to come into force as the Equality Act 2010. The purposes of this legislation are to harmonise the different strands of discrimination law and strengthen protection. Changes in the draft bill include:
- Extending the prohibition on "associative and perceptive" discrimination and harassment to all discrimination strands.
- Employers will be explicitly liable for failing to prevent harassment by third parties.
- Expanding the concept of positive action to allow employers to recruit or promote someone from an under-represented group where they have a choice between two or more "equally suitable" candidates.
- Introducing the concept of a discrimination claim based on two combined characteristics where there may not be enough evidence to prove discrimination based on one characteristic alone.
- Under the current proposals, there will be the potential for employees to claim direct sex discrimination in respect of pay and conditions based on a hypothetical comparator where there is no "equal" male-female. The majority of claims, therefore, should still be brought under the traditional equal pay concepts, rather than sex discrimination, but this new avenue will enable an individual to claim even where there is no actual comparator.
- An extension of age discrimination legislation to cover the provision of goods and services.
- Introducing an "occupational requirement" defence across all protected characteristics and removing the job-specific "genuine occupational qualifications" in sex, gender reassignment and race cases.
- Tribunals will be able to make recommendations that respondents who have lost discrimination claims take steps to remedy matters, not just for the benefit of the individual claimant, but also for the benefit of the wider workforce. Where the wider workforce is concerned, however, there is no remedy for failure to comply with the recommendation.
While not strictly a change taking place in 2010, it is expected that new paternity leave regulations will come into force that would allow mothers to transfer up to 26 weeks' maternity leave to the child's father (or co-adopter) with provision for additional statutory paternity pay at the same rate as maternity pay. Employers should keep an eye out for the draft provisions, which should be published in 2010, and consider implementing necessary amendments to their maternity, paternity and adoption leave policies to ensure compliance with the new regulations when they come into force.
Again looking further ahead, during 2010 employers can expect to see draft regulations concerning implementation of the EU Agency Workers Directive, which are expected to come into force in 2011. The EU directive requires that temporary agency workers be given equal treatment with permanent workers for basic working conditions such as hours, pay and holidays. There is a permitted derogation, which the UK government is expected to make use of, which provides that equal treatment applies only after an agency worker has been in the same job for 12 weeks.
The Government has brought forward its review of the default retirement age and it is likely that it will be increased from 65 in the near future.
Employers should keep abreast of the changes and ensure that they are up to speed and have the necessary policies and practices in place to address the changes.
There are also various cases before the courts that may have an impact on the employment relationship. For example, it is expected that more cases will appear which relate to the implementation of the ACAS Code which came into force during 2009.
It goes without saying that the penalties for failing to adhere to employment legislation can be severe, including the possibility of unlimited employment tribunal awards being made to employees.
Nicola McMahon, Charles Russell LLP.