Labour's legacy
As we say hello to an incoming government, we take the opportunity to reflect on the overwhelming vo
lume of employment law introduced during the past 13 years. Whether originating with the previous Conservative government, New Labour or the European Union, the legislation effecting workplace duties and rights has come so thick and fast, this article alone cannot cover every single twist and turn. Instead, we offer the highlights and pose the following question: how up to date are your employment practices, policies and contracts? If you haven’t re-visited these in the last couple of years, they are likely to be out of step with new obligations on employers. If they’ve remained untouched since Tony Blair first strode into No.10, you are almost certainly running the risk that you act unlawfully in some aspect of your employment practice!
It is difficult to know where to begin, but arguably the rights that have seen the greatest transformation, are those of working parents. Rights to statutory pay and leave for employees with children have grown to the extent that fathers of babies conceived from this summer onward will be entitled to have part of the mother’s leave and pay transferred to them. Employees adopting children enjoy rights in line with those of parents giving birth and the amount of Parental Leave that any parent can take increases with each additional child, so the arrival of twins or triplets could mean that you don’t see your employee for over 18 months! And when they do return, you may be faced with a request to consider flexible working, any rejection of which involves the convening of a formal meeting.
The area of employment in which employers face the greatest financial penalties for getting things wrong, is discrimination. Successful claims result in payouts for which there are no upper limit and on occasion, companies failing to defend discrimination cases have faced compensating individuals at a seven figure level. The range of characteristics on which discrimination is unlawful has widened significantly since the days where gender and race were all you had to worry about. The law now offers protection to employees on the basis of their religion, belief, disability, gender reassignment, sexual orientation, marital status and age. The regulations on the latter may have invited a lot of indifference, contempt and ridicule, but the risks should be taken seriously, since it is the one type of discrimination that any employee or job applicant can claim!
Taken alongside the introduction of legislation against harassment, the formation of a Equality & Human Rights Commission and the impending Equality Act, the workplace is perhaps encouraged to operate as a safer and more dignified environment than 13 years ago. However, multiple risks and vicarious liabilities mean that it has never been more important for employers to guard against claims by establishing good practice and ensuring both their workforce and management team understand the implications of their actions and behaviour.
Few would argue that fixed term workers and part timers don’t deserve the same employment the rights as their full time or permanent colleagues and so if your employment practices discriminate against these employees in any way, this needs rectifying. The qualifying period for eligibility to claim unfair dismissal reduced to one year for all employees some time ago and so you need to be extremely careful even with apparently straightforward dismissals.
If you are following disciplinary, dismissal or grievance procedures that were written to incorporate the statutory requirements brought in by law in 2004, these will now need tweaking, because this legislation was repealed in 2009! If your procedures go back even further than the statutory ones, they are quite unlikely to reflect current best practice and could be frowned upon at a tribunal. They should be brought in line with the 2009 ACAS Code of Practice.
The National Minimum Wage has applied for some years now and you must pay it to anyone carrying out work for you. The Working Time Regulations not only limit the number of hours you can expect your employees to work and the breaks you are obliged to give them, they also have wider implications that you should check out if you have night workers or ask employees to be “on call”. And companies with workforces of 50 or more should also be aware of the Information & Consultation of Employees Regulations, which can require managers to disclose business information to staff and seek their views and agreement to changes.
One of the commonest causes of confusion would be the statutory leave entitlement, which these days, stands at 5.6 weeks, inclusive of bank holidays. Those of us that do not relish complex calculations have sympathised greatly with the challenges of pro-rating this entitlement for joiners, leavers and part-timers, not to mention the difficulties posed by whether or not an employee has “enjoyed” a disproportionate number of bank holidays when compared to those they have accrued! Anyone who has grappled with these issues will recognise the problems I’m describing – if this sounds alien to you, chances are you are not awarding the correct amount of holiday pay and time off! Also, did you know that it is now unlawful to pay “rolled up” holiday pay, such as that to casual workers who might prefer to forgo time off and take the money instead?
Bringing us right up to date, the most recent changes have included those to doctors’ certificates and so you need to familiarise yourself with the new so-called “fit note” in order to know how to respond when presented with it. You should also be aware of your obligations to consider any requests for time off for training – but do note, as with requests to work beyond retirement age, the duty is to consider it, not to agree to it!
