Bosses beware

What will this year bring in terms of changes to employment law? Well, employers should look out for the following developments:

• The government’s efforts to stamp out the “two-tier workforce” in public sector outsourcing
• Greater certainty on the Transfer of Undertakings (Protection of Employment) Regulations
• The outlawing of age discrimination
• Greater duties to protect employees’ health
• A crackdown on hiring illegal immigrants.

Let’s look at each of these areas in detail …

The two-tier workforce

Last year, the local government two-tier workforce provisions were extended to any public sector outsourcing exercise. These provisions seek to ensure that staff working alongside former public sector staff are not disadvantaged by:

• Allowing public bodies to select only those providers who offer staff terms and conditions that will secure high-quality service delivery.
• Requiring that staff hired to work alongside those transferred from the public body are offered terms that are no less favourable than those of transferred employees.
• Requiring that new recruits and their unions should be consulted about these changes.
• Requiring that new recruits should be offered a reasonable pension.

Historically, one of the ways to gain competitive advantage when bidding for public contracts was through the terms offered to non-transferring staff. Construction bosses will need to be more sophisticated. For example, lower basic pay may be justifiable so long as the non-public sector employee’s wage is made up by productivity and attendance payments. The public body that negotiates the contract has the duty to ensure this parity, but construction companies need a clear commercial strategy on these provisions.

Changes to TUPE

The long-awaited TUPE regulations will come into force in April. They will:

• Give more clarity on what is and is not a transfer. Most changes in service providers will be transfers.
• Oblige an outgoing employer – the transferer – to inform an incoming employer of the identity of each transferring employee and the rights and liabilities that go with them.
• Impose joint and several liability on transferer and transferee for failure to inform and consult about a TUPE transfer.
• Clarify the position for employers looking to change terms in connection with a TUPE transfer.

Age discrimination

From October it will be unlawful to discriminate against an employee because of their age. Bosses must audit their practices before that date

From October it will be unlawful to discriminate against an employee because of their age. Construction bosses must audit their practices to identify risks well before that date. They should:

• Avoid using age as a recruitment criterion
• Take great care if they exclude older workers from certain benefits and entitlements
• Be wary of using last in, first out as a redundancy selection criterion
• Amend equal opportunities policies to refer to age discrimination. A comment such as “you are too old to do that” will probably be unlawful.

Safeguarding employees’ health

Health and safety is big news. This year sees:

• A proposed ban on smoking in the workplace
• The appointment of a national director of occupational health
• A law on corporate manslaughter – maybe.

Stress cases continue to increase. Early this year, the House of Lords will decide a landmark case on whether an employer can be liable under the Protection from Harassment Act 1997. The Lords could place another burden on employers to protect their staff from any form of harassment.

Illegal workers

Construction employers will need to introduce random audits or regular checks to ensure their staff have a right to work in the UK. If they don’t, bosses risk criminal prosecution and a fine.

Construction employers must actively address these issues or they will store up problems.