Q&A

This week’s legal questions and answers

Q: Several of our employees have been employed on a succession of
fixed-term contracts for many years. They are paid less than our permanent
staff and have no pension benefits. One is now demanding his job be made
permanent and his pay and pension benefits equalised. Must we do this?

A: New fixed-term employees regulations are due out this year, which
will prevent less favour-able treatment of fixed-term employees relating to
contractual terms and conditions unless objectively justified.

The regulations will limit the use of successive fixed-term contracts to
four years after which the contract will automatically convert to an indefinite
contract in most cases. The principle of non-discrimination applies to all
contractual terms, conditions and benefits including:

– Pay

– Access to occupational pens-ion schemes

– Opportunities for training and further development

– Access to permanent job opportunities, and

– Other benefits such as holidays and sick leave

Employers are not required to ensure like for like entitlements are provided
but contractual rights for their fixed-term employees must be at least as
favourable as for their permanent employees overall.

The regulations should have been in place by 10 July 2002. A recent delay
has put the proposed implementation date back to 1 October 2002.

Employers still have time to review their fixed-term arrangements and ensure
any necessary action is taken.

Q: I employ local teenagers during their holidays at my hotel. Am I
restricted on how many hours I can allow them to work?

A: At present ‘young workers’ (those over school leaving age but
under 18) are entitled to 12 consecutive hours’ rest between each working day,
two days’ weekly rest and a 30-minute rest break when working for longer than
four-and-a-half hours.

However, the DTI is currently consulting on changes to the law, likely to be
implemented in late autumn, to introduce greater protection for young workers.

It is likely there will be a limitation on young workers’ time to eight hours
per day and 40 hours per week.

There is also likely to be a prohibition on night work which, in hotels,
will prevent working between midnight and 4am.

Q: An employee is hoping to adopt a child some time within the next year.
He says he would want time off but has no contractual right to parental leave.
What are his rights?

A: At present he has only a statutory right to take unpaid parental
leave. His maximum leave entitlement is four weeks per year up to a total of 13
weeks within the first five years after adoption.

New adoption and paternity leave regulations due in force by April 2003 will
boost this entitlement. They provide for 26 weeks’ paid adoption leave followed
by a further 26 weeks’ additional adoption leave. Adoption leave will be
available for only one adoptive parent. The other adoptive parent (or partner
of a lone adoptive parent) will be able to take up to two weeks paid leave
under the new regulations.

Statutory adoption and paternity pay will be equivalent to the standard rate
of SMP which, from April 2003, will be £100 per week – or 90 per cent of
average weekly earnings if less.

By Nicholas Moore, head of Employment at Osborne Clarke

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