Employment Legislation 2003 and beyond

1. Employment Legislation 2003 and beyond Levy & McRae

2. Introduction • This slideshow aims to provide a readily accessible guide to employment legislation that is to be implemented into UK law in 2003 and beyond. The proposed legislative timetable is set out in chronological order, with a summary of its provisions. Note that there is a degree of uncertainty about when some important legislation, notably the amended Transfer of Undertakings (Protection of Employees) Regulations 1981, commonly known as TUPE, will come into force. Where appropriate, advice to employers on the implications of the specific regulations is also provided. • The major feature of 2003 is likely to be the coming into force of the provisions of the Employment Act 2002 (EA 2002): the ‘family-friendly’ policies in respect of new maternity, paternity and adoptive leave and pay and the new right to request flexible working in April 2003; and the measures to assist employers and employees to resolve their disputes internally and proposals to modernise the employment tribunal system in December. Levy & McRae

3. Topics of Discussion • The Employment Practices Data Protection Code of Practice • Family-friendly policies of the Employment Act 2002 • Young Worker Protection • Questionnaires in equal pay • Conduct of Employment Agencies and Employment Business Regulations • Amended TUPE Regulations • Race Directive • Extension of Working Time Regulations • Changes to Discrimination Legislation • Implementation of the remainder of the EA 2002 • Disability Discrimination Act 1995 • EC Information and Consultation Directive • Age Provisions of the Equal Treatment Directive • Data Protection Act 1998 Levy & McRae

4. March 2003 THE EMPLOYMENT PRACTICES DATA PROTECTION CODE OF PRACTICE The fourth and final part of the Employment Practices Data Protection Code is expected to be published early in 2003. The Code has four parts: • Recruitment and selection – about job applications and pre-employment vetting; • Employment records – about collecting, maintaining and using records about workers; • Monitoring at work – about monitoring workers’ use of telephone or email systems and vehicles; and • Medical information – about occupational health, medical testing, drug and genetic screening. The code contains extremely useful checklists and benchmarks that assist compliance with the Data Protection Act 1998 – see website: www.dataprotection.gov.uk Levy & McRae

5. April 2003 FAMILY-FRIENDLY POLICIES OF THE EMPLOYMENT ACT 2002 Maternity, paternity, adoption leave and pay The package for parents includes: • Six months’ paid and a further six months’ unpaid maternity leave for working mothers; • Two weeks’ paid paternity leave for working fathers; • Six months’ paid and a further six months’ unpaid leave for working adoptive parents; • An increase in the basic rate of statutory maternity pay to £100; • Reimbursement of maternity, paternity and adoption payments made by employers, with a full 100% recoverable by small employers and a further compensation payment on top; and • The legal right to apply to work flexibly for parents with children under six years, and for parents with disabled children up to the age of 18 years who have worked for the employer for six months. The Regulations actually come into force on 24 November 2002 and apply to women whose babies are due on or after 6 April 2003. The Department of Trade and Industry is producing guidance on all aspects of this new legislation. Employers should review their current entitlements and create new parental leave and/…. Levy & McRae

6. FAMILY-FRIENDLY POLICIES OF THE EMPLOYMENT ACT 2002Cont. adoption policies. They can also expect an increase in the number of requests to work more flexibly and they should familiarise themselves thoroughly with the scheme and prepare coherent policies to deal with the applications. They should not underestimate the possibly negative effect on those who are not entitled to make a request for flexible working. Levy & McRae

7. April 2003 YOUNG WORKER PROTECTION The new Regulations implementing the Young Workers Directive will come into effect on 6 April 2003. The Regulations will protect around 40,000 workers aged between 16 and 18 from working excessive or unsociable hours, affecting the working hours of those between minimum school leaving age and their 18th birthday. Their working time will be limited to: • 40 hours a week; • Eight hours in any one day; and • Night working prohibited between 10pm-6am or 11pm-7am. Some sectors are exempted from the night working restrictions because of their particular operational needs. Working between the hours of midnight and 4am is prohibited except in the most exceptional circumstances. Levy & McRae

8. Likely to be early 2003 QUESTIONNAIRES IN EQUAL PAY A ‘questionnaire’ procedure is currently available in individuals’ disputes over matters of sex, race and disability discrimination, but not in the area of equal pay disputes. The EA 2002 introduces a formal questionnaire procedure for use in equal pay tribunal cases, with time limits for an employer response. The purpose of the procedure is to help the potential applicant decide whether to institute proceedings and to help them to formulate and present their case. This enables the key faces to be settled quickly and can encourage not only the swift establishment of evidence but also settlement of cases. Levy & McRae

9. Spring 2003 CONDUCT OF EMPLOYMENT AGENCIES AND EMPLOYMENT BUSINESSES REGULATIONS These Regulations control the operation of employment agencies and businesses. They clarify the employment rights and obligations of such agencies, their workers and clients and will prevent ‘temp’ to ‘perm’ transfer fees unless certain conditions are met. Levy & McRae

10. Early 2003? AMENDED TUPE REGULATIONS It is hoped that the long-delayed new Regulations will provide more clarity on the vexing question of a ‘relevant transfer’, particularly in the context of contracting out; the position on occupational pensions; and on transfer-related dismissals and post-transfer harmonisation. The Regulations will require the transferor to provide information on terms and conditions of transferring employees to the transferee. Levy & McRae

11. July 2003 RACE DIRECTIVE The Regulations to implement the Directive cover discrimination on grounds of race and ethnic origins. They introduce a new definition of indirect discrimination and of harassment. Levy & McRae

12. 1 August 2003 EXTENSION OF WORKING TIME REGULATIONS • Regulations will extend the scope of the 1998 Regulations to cover road, rail, air, sea and inland waterways transport, sea fishing, offshore work and junior doctors. • Note that in November 2004 the European Commission is to review the current 48-hour opt-out provision of the Directive. • The provisions relating to mobile workers – working hours, rest breaks and night work – are to be amended under two separate deadlines: August 2003 and March 2005. Levy & McRae

13. 2 December 2003 CHANGES TO DISCRIMINATION LEGISLATION In October 2002 the Government published a consultation document, Equality and Diversity: The Way Ahead and sets of draft regulations and explanatory notes on sexual orientation, religion and belief to implement the Equal Treatment Directive. These prohibit • Direct and indirect discrimination and harassment based on a person’s sexual orientation. This is defined as being an orientation towards people of the same sex (covering gay men and lesbianism); the opposite sex (covering straight men and women); or both sexes (covering bisexual men and women). • Direct and indirect discrimination and harassment on grounds of ‘religion and belief’. This is defined as being any religion, religious belief or similar philosophical belief. It does not include any philosophical or political belief more generally, unless that belief is similar to a religious belief. There is an exception – a genuine occupational requirement (GOR) – where the employer has an ethos based on a particular religion or belief. /….. Levy & McRae

14. CHANGES TO DISCRIMINATION LEGISLATION CONT. Employers are advised to review their equal opportunities’ policies and training. They may also wish to consider the potential impact of the ‘religion and belief’ provisions on their current working practices and annual holiday arrangements. Levy & McRae

15. December 2003 IMPLEMENTATION OF THE REMAINDER OF THE EA 2002 The Employment Act 2002 also includes the following provisions: • New minimum three-step standards for disciplinary and grievance procedures – which apply to all workplaces and all employees – and dispute resolution, including new unfair dismissal rules. The Advisory, Conciliation and Arbitration Service (ACAS) is to revise its Code of Practice on Disciplinary and Grievance Procedures; • Modernisation of employment tribunals, including a fixed period of conciliation to promote timely settlement of disputes and changes to compensation awards; and • The establishment of union learning representatives: ACAS is working with the Department of Education & Skills on a draft code. Employers will need to ensure that their disciplinary and grievance procedures meet the statutory minimum requirements. Further guidance is expected from the Government on the implications of these proposals. Levy & McRae

16. October 2004 DISABILITY DISCRIMINATION ACT 1995 The scope of the 1995 Act will be broadened by removing the present small employer exemption and by extending its provisions to cover forms of employment that are currently excluded I.e. employment on ships, planes and hovercraft, fire fighters, prison officers, the police, business partnerships and barristers, but not the armed forces. There will also be recognition of indirect discrimination in disability. Part III of the 1995 Act, placing a duty on service providers to make reasonable adjustments to their premises, also comes into force. The new provisions mean that these employers will have to treat disabled applicants on the same basis as other applicants and allow them to take frontline jobs, provided they are capable of doing this. To this end, the Government is drawing up new medical standards and training tests (e.g. for trainee fire fighters) to enable the changes to be put into practice. Levy & McRae

17. From March 2005 (Three Stages) EC INFORMATION AND CONSULTATION DIRECTIVE Employees will have the right to information about a business’s economic situation, employment prospects and decisions likely to lead to substantial changes in work organisation or contractual relations e.g. redundancies and transfers. This is to be implemented in the UK in three stages: • Initially, it will only apply to businesses with 150 or more employees: March 2005. • It will then be extended to businesses with 100 or more employees after two years: March 2007. • After another year it will be further extended to those with 50 or more employees: March 2008. The implementation of these provisions has potentially significant implications for organisations, their managers and workers. Levy & McRae

18. December 2006 AGE PROVISIONS OF THE EQUAL TREATMENT DIRECTIVE Legislation outlawing age discrimination is expected to come into force in December 2006. Note that in the summer the EAT is expected to rule on whether the current exclusion of over 65s from claiming unfair dismissal and redundancy is contrary to EU law. Levy & McRae

19. October 2007 DATA PROTECTION ACT 1998 See above for the publication of the Employment Practices Data Protection Code. Levy & McRae