Whats in store for the Law?

The Queen’s Speech in November last year outlined the Government’s plans for employment law in 2004. Plans which included a Pensions Bill, a Disability Discrimination Bill and a comprehensive review of the Employment Relations Act 1999. That’s only part of the story, though. Last December turned out to be a busy month, and there are a number of initiatives with which security managers must familiarise themselves.

With effect from 1 December 2003, the Road Vehicles (Construction and Use) Regulations 1986 were amended to make it a criminal offence for anyone driving a motor vehicle to use a hand-held mobile telephone. If caught using a mobile, drivers face a fine and the risk of a more serious prosecution for failure to have proper control of their vehicle. Security companies relying on mobile patrol vehicles should pay strict attention to this.

Employers will also be liable for their employees’ offences where it’s established that they require them to use hand-held mobile phones while driving. Merely supplying a mobile phone or calling an employee when they may be driving is probably not enough to attract liability, but employers may be liable if they fail to forbid employees from using hand-held phones while driving on company time.

The Equal Opportunities Commission issued a revised Code of Practice on Equal Pay, which also came into force on 1 December 2003. The Code has been revised to take account of new legislation and recent case law, with the newer sections containing information on equal pay for pregnant women and women on maternity leave, grievance procedures, an equal pay questionnaire and equal pay reviews.

The Code is admissible in evidence in any proceedings under the Sex Discrimination Act 1975 or the Equal Pay Act 1970. This means that, while the Code isn’t legally binding, an employment tribunal may take into account an employer’s failure to act on its provisions.

Equality in the workplace

Another piece of legislation enacted on 1 December last year was the Employment Equality (Sexual Orientation) Regulations 2003. The Regulations make it unlawful for an employer to discriminate on the grounds of sexual orientation in employment and vocational training.

On the following day, the Employment Equality (Religion or Belief) Regulations 2003 were published, ensuring that it’s now unlawful to discriminate on the grounds of religion or belief in employment and vocational training. There’s some overlap here with the existing Race Relations Act 1976, but the new Regulations go much further as “religion or belief” refers to “any religion, religious belief or similar philosophical belief” (although does exclude political beliefs).

Potentially, these Regulations will have an impact in a number of areas that employers have never had to consider, such as dress codes in the office, food restrictions in the workplace and time off for religious observance.

More recently – on 1 February this year, in fact – the Employment Rights (Increase of Limits) Order 2003 came into force. The Order implements the now annual increase in the amount an employee can recover for unfair dismissal. For those employees dismissed on or after 1 February 2004, when calculating the basic award a maximum “week’s pay” has been increased from £260 to £270 (the same figure is also used for the calculation of statutory redundancy payments), while the maximum compensatory award for unfair dismissal has been increased from £53,500 to £55,000.

On 4 April this year, the standard rates of pay for calculating pay for employees on maternity, paternity and adoption leave were actually increased from £100 to £102.80 per week (or, if the employee earns less than £102.80 per week, 90% of his or her average weekly earnings).

Two days later, the majority of the Conduct of Employment Agencies and Employment Business Regulations 2003 came into force (with the exception of some limited provisions that subsequently became law in the first week of July). The Regulations will implement new measures to update the regulation of employment agencies, and require organisations offering work-finding services to make it clear whether they operate as an agency or an employment business.

The main aim of the Regulations is to produce simpler, clearer rules which will include an obligation on employment businesses to state whether someone seeking work is employed by the business under a contract for service or a contract of service. Restrictions will also be placed on employment business charging hirers ‘temp to perm’ or ‘temp to temp’ fees.

Data Protection: the central issues

Meantime, the finalised version of the Employment Practices Data Protection Code Part 4: Information about Workers’ Health is due for publication. This follows the delivery of a draft version for consultation last December. This part of the Code will provide employers with adequate guidance on handling information concerning workers’ health, and will deal with the operation of Occupational Health Schemes, the medical examination of workers, drug and alcohol testing and generic testing in the workplace.

Following a regulatory impact assessment and consultation period, the Employment Relations Bill was introduced in the House of Commons on 2 December 2003 (and to the House of Lords in March). The Bill is expected to achieve Royal Assent this autumn. In essence, it enacts the findings of the review of the Employment Relations Act 1999, and includes measures to improve the operation of the statutory Trade Union recognition procedure and simplify the law on industrial ballots and ballot notices.

In addition, the Bill will ensure that protection against unfair dismissal for employees requesting to work flexibly is brought into line with other legislation relating to working parents, that the role of the companion in grievance and disciplinary hearings is clarified and enforcement of the national minimum wage made easier.

The revised draft Employment Act 2002 (Dispute Resolution) Regulations 2004 were issued back in January, and are due to come into force on 1 October. Potentially, these Regulations could have a huge impact on employers by introducing minimum standards for resolving disputes in the workplace in the form of statutory dismissal, disciplinary and grievance procedures.

To encourage employers to use the procedures, tribunals will have powers to extend time limits for bringing claims to allow such procedures to be completed, and to increase or reduce compensation awards where those procedures aren’t followed.

At this point, it’s also worth noting that ACAS has revised its Code of Practice on Disciplinary and Grievance Procedures. The final version will take effect at the same time as the Regulations (on 1 October).

Money... and tribunals

On that same date, regulations amending the National Minimum Wage Act will come into force (with the exception of Regulations 3 and 4: Part 3, which will come into force on 6 April 2005). Proposals include replacing the present system of fair estimate agreements with a system of fair piece rates.

Security managers should be aware that certain requirements must be met in order for the new system to apply, including giving written notice to the worker of the sum to be paid for the piece in question.

The Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 will potentially have an impact in a number of areas that employers never had to consider, such as dress codes in the office, food restrictions within the workplace and time off for religious observance

The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 are due to come into force in October, and include provisions replacing the IT1 (Application to an Employment Tribunal) and IT3 (Notice of Appearance) with Claim and Response forms. Applicants will be known as Claimants and a Respondent will now have 28 days to respond to an IT1. The circumstances in which a Respondent may gain an extension of time for submitting a Response will be restricted, and it will become more important for employers to ensure that they comply with the time limit for lodging a response.

If a case happens to be uncontested, judgement in favour of the employee without a hearing will be automatic. ACAS will have a duty to conciliate within a fixed period in order to encourage settlement in good time. However, employers will be in a better position with regard to the recovery of costs as changes to the costing rules will provide power to award costs that cover preparation time and may be set against professional representatives.

Next month, the Disability Discrimination Act 1995 (Amendment) Regulations 2003 are due to come into force. The current exemption in the Act for employers with less than 15 employees will be removed and the scope of the Act widened to cover additional categories of workers.

The Regulations will also introduce a new statutory offence of harassment, while removing the justification defence where employers have failed to consider reasonable adjustments. The time limit on responding to questionnaires will be tightened to a requirement to reply within eight weeks rather than the current requirement to reply within a reasonable period.

Managers ought to note that from 1 October 2004, service providers will be under a new obligation to make reasonable adjustments to the physical features of premises to facilitate access for disabled people under Part III of the Disability Discrimination Act.

Review of TUPE 1981

The review of (and draft regulations amending) the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 1981 are still awaited, and – depending on other Government initiatives – are expected for publication before the end of the year.

Anticipated reforms include: TUPE to apply more comprehensively to labour-intensive, contracting-out situations, new employers to be better informed of the ongoing employment rights of transferring employees and clarification of how TUPE operates during insolvency situations.

Again, security managers should be aware that the issue of occupational pension rights will be considered separately to a longer timescale as part of the Pensions Bill.

What of the Working Time Directive? The European Commission’s report on the Opt-Out Review was published in December last year. For its part, the UK Government has embarked upon a 12-week consultation on long hours working, and the operation of the individual opt-out here in the UK. The consultation period closes on 22 September, following which further proposals for amendments to the Working Time Directive are expected.

Proposals include the use of individual agreements to opt-out of the 48-hour week, the reference period over which working time is averaged and the definition of working time.

The Government is planning to replace the three current equality commissions (namely the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission) with a single umbrella organisation. The Commission for Equality and Human Rights (CEHR) will also be responsible for the new sexual orientation and religious discrimination laws.

On 12 May, the Government published a White Paper entitled ‘Fairness for All: A New Commission for Equality and Human Rights’ which sets out in great detail the proposed vision, functions, powers and structures for the new CEHR. It outlines the work this body will be expected to carry out to support key stakeholders, and how its efforts will be implemented. The publication of this document marks the beginning of a new consultation period in the equality institutions review (which was due to end on 6 August).

Information and Consultation

On 13 July this year, the Government published final draft regulations together with draft guidance to implement the EU Information and Consultation Directive. Proposals include a requirement that the employer establish the information and consultation procedure at the written request of 10% of employees (subject to a minimum of 15 and a maximum of 2,500).

Also included are procedures whereby employees can call a ballot to reject or accept the requests made if the employer already has a pre-existing agreement in place.

A further consultation period in relation to the final Draft Regulations will expire on 22 October. Final regulations will then be published to come into force on:

• 6 April 2005 (for all those businesses with more than 150 workers);
• 6 April 2007 (for businesses with more than 100 workers);
• 6 April 2008 (for those businesses employing over 50 members of staff).

To conclude this round-up of the latest employment legislation for security managers, a draft bill has been published on disability discrimination, and includes measures to extend the definition of disability to those suffering with HIV, multiple sclerosis or cancer.

A new positive duty for public bodies to promote equality of opportunity for disabled people will also be introduced.

In the final quarter of 2004, consultation is also due on the implementation of the Equal Treatment Directive in order to strengthen the 1976 Directive.

Gareth Edwards is an associate in the Nottingham employment team of national law firm Eversheds LLP