Disability discrimination, TUPE, Working Time Directive, discipline, flexible working: The trouble with the law

As we begin any new year, we can only speculate on how forthcoming legislation will affect employers. But if last year is any measure, HR departments can expect to encounter at least a few problems relating to new laws.

A survey of more than 200 Employers’ Law readers found that keeping within the law caused headaches for many employers in 2005. The three most troublesome pieces of legislation cited were the Disability Discrimination Act (DDA), followed by Transfer of Undertakings (Protection of Employment) Regulations (TUPE) and the Working Time Directive (WTD). Readers also had problems with flexible working laws and statutory disciplinary procedures.

Disability discrimination

Jan Parkinson, president of the Society of Chief Personnel Officers and strategic director of HR at Gateshead Metropolitan Borough Council, says there is little surprise that the DDA topped the poll. “The biggest problem for us is probably the DDA. Case law is constantly redefining the definition of disability and what constitutes a reasonable adjustment,” she says.

This lack of clarity over definitions has led to some cynicism about disability claims. “I am occasionally concerned that some people see this as a way of ‘tripping up’ councils to get money out of them,” says Parkinson.

Indeed, employers spanning all sectors cited this law as causing them concern. One survey respondent, Joan Evans, HR manager at leisure services company Soll Leisure, said complying with the DDA was a ‘constant worry’ for her team.

TUPE or not TUPE?

However, when readers were asked if there were any laws they would like to repeal, most cited TUPE over the DDA. Despite her concerns about the DDA, Evans agrees with the results of the survey and says she would much rather bin the TUPE rules. “I’d definitely like to repeal TUPE. It does not allow businesses to be fair and consistent with existing staff and contracts,” she says.

TUPE rules are proving to be so confusing that legal experts have also been arguing over their true meaning. Kay Surgison, head of HR at fresh food distributor Fowler Welch Coolchain, says: “TUPE seems to be a ‘black hole’ and we even get different legal advisers disputing what is and is not TUPE.”

Parkinson says she gets around this problem by essentially treating everything as TUPE. “We have well-rehearsed systems if we get involved in any transfer,” she says. Parkinson also believes repealing this piece of legislation would be wrong. “From an ethical perspective I agree with the protections that TUPE offers a transferring workforce. It protects employees, to some extent, against sharp employment practices.”

Working Time Directive

The WTD also scored highly in the survey, reflecting the confusion many employers have experienced since its introduction. Evans says rules need to be clarified to make it easier for employers to comply and help employees understand their rights. “The legislation should be made clearer for those who don’t want their hours curtailed,” she says.

Flexible working

When it comes to flexible working, Parkinson says larger organisations have found it easier to bring in changes than smaller ones.

“I would argue that the public sector has led the way in this area and that our sizeable workforces enable us to do this. I can see there being issues if you are a small company, in terms of balancing service needs with individual requirements,” she says.

However, not all public sector organisations are finding flexible working easy to implement. Heather Salway, HR director at recruitment consultancy Eden Brown, says that her experience as a school governor has given her an insight into the problems experienced by schools.

“The primary school where I am a governor has had numerous requests for flexible working from teachers. They are very hard to refuse under this legislation but can cause real difficulty on implementation – particularly with classes of small children who need the stability of a familiar face in the classroom each day,” she says.

Despite these problems, Salway believes employers should persevere as flexible working can bring many benefits. “However troublesome it is to implement, if you get it right it is tremendously beneficial to employees and has helped many people achieve a better work-life balance. It has also made some employers face up to the reality of their long-hours culture and has been a catalyst for some to measure outputs, rather than inputs,” she says.

Maternity leave

Another piece of legislation that respondents said they would like to repeal is extended maternity leave – in fact it was the second most popular choice. Evans says that this is because of the costs involved. “Extended maternity leave puts a financial burden on the business that in the current climate cannot be recouped,” she says.

Disciplinary procedures

Perhaps the most surprising result from the survey was that employers are finding statutory disciplinary procedures difficult to implement. It also appeared in the top five pieces of legislation that respondents would most like to repeal.

Evans says the rules have made the disciplinary process ‘fairly clear’, but adds that she will be closely watching any related case law. However, Salway believes the benefits of the new rules are already being enjoyed.

“I’m surprised to see the statutory disciplinary procedure listed,” she says. “This has had little impact on either Eden Brown or our clients and appears to have benefited both employers and employees by ensuring there is at least some attempt to resolve workplace issues without tribunals.”

Anita Brooks, HR manager at Omron Automotive Electronics, a provider of automation, sensing and control technology, agrees with the main survey results, but says the reason so many employers find new laws troublesome is because they fail to set up correct policies and procedures to handle them.

“Sometimes organisations will fail to see how changes may impact on them and then they panic at the last minute. What should be easy to implement and monitor then becomes a giant task,” she says.

Many of these problems stem from the fact that the HR department is often undervalued and seen as an administrative function, so the correct legal training is not provided. “It should be a legal requirement that a company has suitably qualified people within the HR department to make sure that the organisation plans in advance how the changes are going to be introduced, to comply with employment law,” she says.

Whatever issues the changes to employment law bring in 2006, it seems the key is to be prepared.

Outrageous claims

We asked readers to describe the most outrageous employment law scenario they had come across. Here is a selection of the responses:

  • “I was advised to pay an employee, who was engaged on a week’s trial, for three weeks’ sickness absence, even though they only worked for three hours.”
  • “A new employee on probation bought himself some boots through the company. When the money was deducted from his pay he took the company to a tribunal and the tribunal said the company was in the wrong for unlawful deduction from wages.”
  • “A driver received a 12-month drink-drive ban and was offered a desk job which he turned down. Consequently the person was dismissed. He subsequently took the company to tribunal and won unfair dismissal.”
  • “Holding a job open for someone who was sent to prison. The judge said: ‘I punish, the employer rehabilitates.'”
  • “An employee successfully concealed the fact that he had a wooden leg, lied to his employer repeatedly about it then claimed disability discrimination and won. This set the case law precedent that an employer need not know the employee is disabled to discriminate against them.”
  • “A small employer in construction dismissed an employee who was consistently absent from work without permission. The employee won his case for unfair dismissal – he had permission from his employer’s wife (whom he had been visiting during the day) as she was a ‘sleeping partner’.” 

Troublesome legislation

When asked which piece of legislation has been the most troublesome, the top five answers were:

  • Disability Discrimination Act (16%)
  • TUPE (15%)
  • Working Time Directive (14%)
  • Flexible working (6%)
  • Statutory disciplinary procedures (5%)

Legislation to repeal

When asked which piece of legislation respondents would like to repeal, the top five answers were:

  • TUPE (8%)
  • Extended maternity leave (7%)
  • Disability Discrimination Act (6%)
  • Working Time Directive (5%)
  • Statutory disciplinary procedures (4%)

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