The following Bills with employment law relevance are currently in draft or before Parliament:-
Three new Bills with employment law relevance have been introduced since our last newsletter, viz the Equality Bill, the Public Service (Bank Holiday) Bill and the draft Unfair Contract Terms Bill. Draft new TUPE regulations have also been issued (see below).
Apart from Bills and the draft new TUPE regulations, more than 60 new Statutory Instruments with employment law relevance have been issued over the last few weeks, in the run up to the new April 1st "common commencement date".
In all there are 17 current Bills and draft Bills with employment law relevance:- 1. Commissioners for Revenue and Customs Bill; 2. draft Corporate Manslaughter Bill; 3. Crown Employment (Nationality) Bill; 4. Disability Discrimination Bill; 5. Employment Tribunals (Representation and Assistance in Discrimination Proceedings) Bill; 6. Equality Bill; 7 proposed Fraud Bill; 8. Health and Safety (Directors Duties) Bill; 9. Identity Cards Bill; 10. Income Tax (Trading and Other Income) Bill; 11. London Local Authorities (Prohibition of Smoking in Places of Work Bill; 12. Liverpool City Council (Prohibtion of Smoking in Places of Work) Bill; 13. draft Partnerships Bill; 14 Public Service (Bank Holiday) Bill; 15. Smoking in Public Places (Wales) Bill; 16 (Scotland) Smoking, Health and Social Care (Scotland) Bill (in the Scottish Parliament); and 17 draft Unfair Contract Terms Bill.
A feature of emplaw.co.uk is the provision of thumbnail summaries and/or or headnotes of all cases reported in the ICR and IRLR law reports since end 1999. This is in addition to linked thumbnail summaries and/or headnotes of more than 1,500 other cases, new and old.
Cases reported in ICR 2005 pt 3 and in IRLR 2005 no 3 are noted/summarised in the current emplaw program and short commentary is provided. For most there are direct links to free versions of the full judgments, usually on the Court Service, EAT or BAILII websites.
(i) Pensions. Not strictly TUPE, but the hugely significant rules in Pensions Act 2004 applying TUPE-like principles to pensions come into force on 6th April 2005. As from that date, whenever there is a TUPE transfer of an undertaking the new employer will, in general terms and subject to various ifs and buts, have to match any pension arrangements provided by the former employer for any employees whose employment transfers. Any employer likely to be affected should take expert advice as soon as possible.
(ii) General. At last! After 4 years of discussion and several false starts, new draft TUPE regulations were issued on 15th March. Consultation ends on 7th June and the new TUPE is to come into effect on 1st October. The new TUPE should clear up many of the horrible ambiguities built into the current version - in essence the new TUPE should provide the same protections for employees with greater certainty for employers. Particularly noteworthy are provisions making it easier for employers to integrate terms of employment of new staff with those of existing staff. Also important is the "seller's pack" style provision requiring an outgoing employer to give the incoming employer details of obligations he is taking on.
New national minimum wage rates were announced on 25th February, to apply from 1st October. The adult rate for those aged 22 or more will increase from £4.85 per hour to £5.05 per hour. Consideration is being given to reducing the age for entitlement to the adult rate to 21 - currently 21 year olds are entitled to the "youth rate" of £4.10 per hour. The youth rate will rise to £4.25 per hour on 1st October.
Commercial drivers and crews of Heavy Goods Vehicles and Public Service Vehicles in Great Britain will be covered by new Working Time rules with effect from 4th April. The Road Transport (Working Time) Regulations 2005 prescribe the maximum weekly working time and maximum average weekly working time of such workers and set out the reference periods over which they are to be calculated . They also regulate periods of availability, breaks, rest periods and night work and place new requirements on employers to keep records.
New Work at Height regulations (SI 2005/735) were laid on 17th March to come into effect on 6th April. The old "2 metre" rule disappears and detailed but common-sense principles are now to be applied regardless of the height at which a person is working.
(i) A Consultation paper on "Equality and Diversity - updating the Sex Discrimination Act", with draft regulations to amend the Sex Discrimination Act 1975 in accordance with EC equal treatment requirements was issued by the DTI on 7th March 2005 (consultation ends 31st May 2005 and the amending regulations are due to come into force on 1st October 2005).
(ii) A single "Commission for Equality and Human Rights" or CEHR is to replace all the existing anti-discrimination commissions and take on additional duties as from October 2007 (except that the Commission for Racial Equality will continue for a while longer "given the rise in Islamophobia, the increased activity of the Far Right, and the increasing lack of integration within our communities"). The arrangements are in the Equality Bill introduced in the House of Commons on 2nd March.
(iii) The European Court has indicated that a company rule under which only women can be taken on for particular part time work does not of itself constitute (unjustifiable) direct sex discrimination against women but it will be indirect (and thus potentially justifiable) discrimination against them if part time workers are then excluded from benefits for which full time staff are eligible
(i) Consultation on changes. It was announced in the November 2004 pre-budget report that the 26 week SMP entitlement will be extended to 39 weeks from April 2007, with "a goal of twelve months paid maternity leave by the end of the next Parliament". These proposals are considered in more detail in a DTI consultation document "Work and Families: Choice and Flexibility" issued on 25th February 2005. The consultation document also proposes a similar extension to the periods for payment of maternity allowance and statutory adoption pay. Consultation ends 25th May 2005.
(ii) Continuity of employment. A loophole in the rules is blocked with effect from 6th April 2005. As from that date an employee who is reinstated or re-engaged following a statutory dispute resolution procedure will be treated as having been continuously employed throughout for maternity, paternity and adoption pay purposes. Currently a long standing employee who is reinstated after being dismissed after a disciplinary procedure might find that she (or he) was treated as though she (or he) were a new employee for SMP, SPP and SAP purposes.
After a long gestation, a draft Corporate Manslaughter Bill is included in a consultation document issued by the Home Office on 18th March <i>(consultation ends 17th June)</i>. An organisation will be liable to a fine if a gross failing by its senior managers to take reasonable care for the safety of workers or members of the public causes a person’s death. There will be no general Crown immunity exempting government bodies from prosecution and government departments could be prosecuted.
As from 6th April 2005 the Companies Act rule invalidating many arrangements under which a company might indemnify directors against personal liability to 3rd parties is amended. The old rule was thought to stifle initiative and so new provisions in the Companies (Audit, Investigations and Community Enterprise) Act 2004 enable companies to indemnify directors against certain liabilities to third parties, even if those directors are at fault. Advice should be taken as to the precise detail of the new rules.
A National Mediation local rate Helpline (0845 60 30 809) was launched in March 2005, with backing from the Lord Chancellor. Callers will be introduced to accredited independent mediators to help settle disputes. The service is likely to be useful to solicitors, whose role is essentially partisan, as well as to their clients. The new service is intended mainly for disputes involving smaller claims (up to £50,000). Fixed fees from £250 to £750 will be offered.
A "Five Year strategy plan" was published by the Home Office in February. This includes some employment related proposals, including fixed fines (probably £2,000) for employers caught employing immigrants who are working illegally in Britain, replacement of the current work permit system with a new points based system and a requirement for a sponsor, usually an employer, to take responsibility for ensuring that an immigrant complies with immmigration rules.