Weightmans Employment Legislation Pipeline March 2008

Transcription

1 Weightmans Employment Legislation Pipeline March 2008 Laws implemented on 6 April 2008 include changes to social security and employment tribunal rates; obligations for smaller employers in relation to employee information and consultation and pension consultation; the deadline for the EHRC equality schemes and changes for employment agencies. Paul McFarlane, Associate and Business Centre Manager of Weightmans London Employment Team, provides a summary of forthcoming legislation. Legislation Newly Implemented Acts Working Time Increased statutory holiday entitlement from 20 days to (Amendment) 4.8 weeks from 1 October Then, increases to 5.6 Regulations 2007 weeks (up to a maximum of 28 days) from 1 April (increasing statutory holiday entitlement) Equality Act Established the legal basis for a single Commission for setting up a Equality and Human Rights (CEHR) which will replace the Commission for CRE, EOC and DRC and will also have responsibility for Equality and Human age, religion and belief and sexual orientation. The CEHR Rights (CEHR) has renamed itself as the Equality & Human Rights Commission. The Tribunals, The Order brings into effect part of the Tribunals Courts Courts and and Enforcement Act 2007 where the title of employment Enforcement Act Tribunal Chairmen is abolished and are now become 2007 known as Employment Judges. (Commencement No. 1) Order 2007 The Employment The Order increases compensation limits on tribunal Rights (Increase of awards and other statutory payments where the date of Limits) Order 2007 termination is on or after 1 February The new compensation limits are:- Maximum award for unfair dismissal was 60,600 now 63,000 Maximum limit on a week s pay was 310 now 330 Minimum basic award for certain unfair dismissals (dismissals for reasons of: trade union membership, pension scheme trustee duties, acting as an employee representative) was 4,200 now 4,400 Maximum guarantee payment per day was now Came into force on 1 October 2007 Final increase in 1 April 2009 CEHR came into operation on 1 October 2007 but will not take over the functions of the CRE until April Came into force on 1 December February 2008

2 Forthcoming legislation Draft Sex Discrimination Act 1975 (Amendment) Regulations 2007 Amendments to Sex Discrimination Act 1975 Immigration, Asylum and Nationality Act 2006 These Regulations will make changes to the existing legislation relating to sex discrimination in the provision of goods and services in order to implement the EC Gender Directive (2004/113/EC). The main changes are to explicitly state that sexual harassment in access to and the provision of goods, services etc is unlawful; extend the protection from discrimination on grounds of gender reassignment to provision of goods and services, etc; and make it explicit that less favourable treatment on the grounds of pregnancy or maternity is unlawful. The Government is to bring in regulations amending the SDA following the EOC s successful judicial review which requires the government: to revise section 3A so as to eliminate the requirement for a comparator who is not pregnant or on maternity leave; to revise the definition of harassment in section 4A of the SDA to eliminate the need for causation and to facilitate claims for harassment which are not on the grounds of her sex and claims relating to harassment by a third party; to revise section 6A of the SDA to clarify women s rights to bring discrimination claims relating to periods of maternity leave. The Act replaces the criminal offence contained in the 1996 Act. Proposed penalties for employers are: creating a new offence of employing someone knowing that s/he is not legally entitled to work in Great Britain (unlimited fine or up to 2 years imprisonment); and replacing the current criminal offence of employing someone who is not legally entitled to work with a new civil penalty of a minimum fine of 2,000 with levels of fines being set out in a new code of practice. The Directive was to be implemented by 21 December 2007 but no date has yet been confirmed for the implementation of these Regulations The Government has stated it intends to introduce these regulations during February 2008 but no date has yet been proposed. The new points system will be rolled out, the first starting on 29 February There will be a new, 5-tier Australian-style points system for migrants which consolidates more than 80 existing work and study routes for immigration from outside the EU. The 5 tiers are: Tier 1: highly skilled, e.g. scientists/engineers, launched from 29 February 2008; Tier 2: skilled workers with job offer, e.g.

3 nurses/teachers, from 3rd quarter of 2008; Tier 3: low-skilled workers filling specific temporary labour shortages, e.g. construction workers for a particular project; Tier 4: students, from start of 2009; Tier 5: youth mobility and temporary workers, e.g. working holiday makers, from 3rd quarter of Immigration (Restrictions on Employment) Order 2007 and Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2007 Corporate Manslaughter & Corporate Homicide Act 2007 Information & Consultation of Employees Regulations 2004 Supplements the Immigration, Asylum and Nationality Act 2006 by introducing codes of practice which impose new penalties on employers of illegal workers. It provides a new criminal offence of employing a person knowing that they are not legally entitled to work in the UK, with a maximum penalty of 2 years imprisonment and/or an unlimited fine. Further, employers who negligently hire illegal workers could face a maximum fine of 10,000 for each illegal worker found at the business. This Act creates a new offence of corporate manslaughter, which would occur when an organisation committed a gross breach of a relevant duty of care owed by the organisation to the deceased. Where an organisation is guilty of corporate manslaughter or corporate homicide, it is liable to an unlimited fine. The court also has the power to order a remedial or publicity order (a sort of naming and shaming to the public) against the organisation. The Regulations set out a regime whereby UK employers may, and in some cases must, put in place information and consultation agreements governing how they will consult their workforce on economic and employmentrelated matters. (Complex trigger mechanisms determine when an employer is obliged to set up a work councils ). In force from 29 February 2008 The Act received Royal Assent on 26 in July The operational clauses are expected to come into force on 6 April 2008 (with the exception of provisions relating to deaths in custody) 6 April 2008 Regulations extend to cover employers with at least 50 employees. The Occupational Pension Schemes (Consultation by Employers and Miscellaneous Amendment) The Regulations which previously introduced a requirement for employers (with over 100 employees) to undertake consultation before making changes to occupational and personal pension schemes, will be extended to cover undertakings with 50 or more employees Due to be implemented on 6 April 2008

4 Regulations 2006 and The Occupational Pension Schemes (Consultation by Employers) (Modification for Multi-employer Schemes) Regulations 2006 The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007 These Regulations seek to amend the 2003 Regulations in order to: give workers a clear right to withdraw from accommodation, transport or other services provided by an agency without suffering any detriment; reduces the administrative burden on agencies by no longer requiring them to provide temporary workers on assignments lasting fewer than 5 days with written information, as long as rates of pay and required qualifications are listed in the agency s terms and conditions. Due to be implemented on 6 April 2008 The Equality Act 2006 (Dissolution of Commissions and Consequential and Transitional Provisions) (Amendment) Order 2007 Social Security Benefits Uprating Order 2008 Other measures proposed include altering guidance for agencies that provide drivers and placing limits on the fees charged by talent agencies for finding work for entertainers and models. The Equality and Human Rights Commission s deadline to comply with its race, disability and gender equality statutory duties is extended by this Order, to 1 April Public authorities are required to produce a Race Equality Scheme, Gender Equality Scheme and Disability Equality Scheme. The Commission should have published these schemes by 1 January It is likely most public bodies will use the Commission s schemes as a model for their own. This Order increases the weekly rates of statutory sick pay (SSP), statutory maternity pay (SMP), statutory paternity pay (SPP) and statutory adoption pay (SAP) as follows:- SSP increases from to SMP, SPP and SAP increases from to This Act contains proposals for the establishment of a 6 April April 2008 Due to be

5 Safeguarding Vulnerable Groups Act 2006 Consolidated Equal Treatment Directive centralised vetting system for people working with children and vulnerable adults. Amongst other things, this Act introduces a new vetting and barring system bringing relevant information together in one place, setting up an independent statutory board (Independent Barring Board). It enables employers to make a real-time instant check of whether a prospective employee is barred with secure online access rather than the current paper-based process. Where possible, it should also be able to inform relevant employers if an employee later becomes barred. This Directive, published in June 2006, consolidates the provisions of the seven existing EC Directives on equal treatment, together with relevant settled ECJ case law on the Directives, into a single text. implemented in 2008 Member States must introduce implementing legislation by August Working Time (Amendment) Regulations 2003 Work and Families Act 2006 (maternity and paternity pay and leave) Temporary Proposed EU Directive which Weekly working time limits for doctors in training will be reduced to 48 hours Extension of paid maternity leave to 12 months in April It also allows mothers to pass on some of their statutory maternity leave (and pay) to fathers if they want to return to work. Fathers can take up to 26 weeks additional paternity leave in the second 6 month period. The DTI consultation on the paternity leave issues proposed that fathers were to 'self-certify' that their child's mother is returning to work early and is passing maternity entitlements over to them. He will be required to give eight weeks' notice. It is not proposed that the father's employer carry out any checks with the mother's employer, although HM Revenue & Customs will carry out occasional random checks to detect and prevent fraud. This Directive would apply when the worker had completed a specified time with the end user business. Provisions of the proposed Directive include: Note: see the commentary below on DTI consultation on a Single Equality Bill. Due to be implemented 1 August s.3 to s.10 of the Act (dealing with paternity leave and pay) are not yet in force but are expected to be implemented in No date for implementation yet

6 would require the end user business not to treat a temporary/agency worker less favourably than comparable employees of the Business. requiring temps to be informed of any vacant posts in the end user business; avoiding any clauses which prohibit, or have the effect of preventing, the conclusion of a contract of employment or any permanent relationship between the end user and the temp after his / her posting (e.g. temp to permanent fees). There s no date for implementation yet. However, the UK has now dropped its previous objections. The issue now is how long does a temp have to work for a business before these rights apply. Some countries have lobbied for six weeks whereas the UK Government and others have lobbied for longer, namely six months. The TUC have since set up their own commission to produce a report on the protection of vulnerable workers (which is due to report in Mid-2008). Consultations/Bills Single Equality Bill - consultation paper The DTI has sought views on consolidating all discrimination and equality laws in to a single Act of Parliament, harmonising and simplifying the law where possible, and making a number of improvements in areas where the current law falls short. The consultation exercise ended on 4 September Ministry of Justice Data Sharing Review Consultation Transforming Tribunals - consultation paper HM Revenue & Customs Consultation Parliament s draft legislation agenda for session 2007/08 includes the Single Equality Bill, but it has not been drafted yet. A consultation into the use and sharing of personal information in the public and private sectors. The consultation includes questions into the rationale of data sharing, whether the amount of information shared is proportionate and what safeguards are needed to ensure public trust and confidence. The paper sets out proposals for the modernisation of the tribunal services and seeks views on areas such as how the chambers in Tribunals should be structured and the role of non-legal members in the new Tribunals. It proposes to allow tribunal wing members to sit on other types of tribunal, the enforcement of awards and making settlements with ACAS easier. Proposals to include all benefits and expense payments in the payroll and remove the annual 8,500 earnings tax threshold, below which employees are not taxed on Consultation closed on 15 February 2008 Consultation ended on 22 February 2008 Consultation closes on 14 March 2008

7 Employment Bill Pensions Bill certain benefits. If implemented, the proposals would bring forward the due date for payment of tax and could have a significant impact on an employee s net pay in a tax month. The Government proposes to introduce a Bill in the 2007/08 session which will:- increase protection for vulnerable workers and lighten the load for law-abiding businesses. simplify, clarify and build a stronger enforcement regime for key aspects of employment law. repeal the statutory dispute resolution procedures and pave the way for implementation of a package of replacement measures to encourage early/informal resolution, reducing administrative burdens on business by up to 180m per year. clarify and strengthen the enforcement framework for the National Minimum Wage (NMW) and employment agency standards. The new framework would provide greater support to vulnerable workers, promote compliance and help ensure a level playing field for compliant businesses. amend trade union membership law in light of the European Court of Human Rights judgment in ASLEF v UK (such that trade unions can expel members on the basis of their membership of a political party). Introduced to Parliament in December 2007, the Bill implements the latest stage of pension reforms. The main provisions include new duties on employers to automatically enrol their employees into a personal accounts scheme or their own qualifying scheme from 2012, with minimum mandatory pension contributions from both employee and employer. The Pensions Regulator will be given a key role in policing employers compliance with the new requirements. Draft currently before Parliament. Proposed date for enactment is April 2009 During 2012 Private Members Bills Legislation Temporary and Agency Workers (Equal Treatment) Bill If passed, this Bill will require the principle of equal treatment to be applied to temporary Second reading was passed on 22 February In response the Prime Minister has proposed

8 Private Equity (Transfer of Undertaking and Protection of Employment) Bill Employment Retention Bill agency workers and make provision for the enforcement of rights of temporary and agency workers. This Bill would apply TUPE Regulations 2006 to acquisitions and disposals of substantial share holdings by private equity companies. If passed, the Bill seeks to amend the Employment Rights Act 1996 by making provision for a statutory right to rehabilitation leave (disability leave) for newly disabled people or those with existing impairment. to set up a commission to examine this issue. It is proposed that the commission will be made up of representatives from businesses, unions and other interested stakeholders. Second reading due on 7 March Due for second reading on 14 March 2008 This legislation pipeline summarises forthcoming employment-related legislation and consultation exercises. The information set out in this document is accurate to the best of our knowledge and belief as at 26 February However, the content of and implementation dates for new legislation is liable to alteration and no responsibility can be accepted by the firm or the author for any loss occasioned by any person acting or refraining from acting on the basis of this document.