PT30: Ten key legal changes since 1988

Since it first went to press in February 1988, Personnel Today has seen employment legislation introduced, amended and abolished many times over. Stephen Simpson rounds up the 10 most important employment law changes in Personnel Today’s lifetime.

1. Trade union laws consolidated (16 October 1992)

The Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) consolidated the law on collective bargaining, collective redundancy consultation, industrial action, and individual trade union rights.

The Act is still in force today and among the important rules it covers are:

• statutory procedures for employers to recognise and derecognise trade unions;
• balloting requirements for industrial action to be lawful;
• union representatives’ right to reasonable time off to carry out their union duties; and
• protection for workers against detriment related to union membership or taking part in union activities.

The Act also provides that, where an employer is proposing to make redundant 20 or more employees at one establishment within a period of 90 days, it is required to consult with affected employees’ representatives.

The legislation has been amended many times since 1992. Most recently, the Trade Union Act 2016 controversially introduced a requirement for a minimum 50% turnout for a successful vote for industrial action.

2. Disability Discrimination Act comes into force (2 December 1996)

Although we are now used to multiple protected characteristics being covered by equality legislation, the Disability Discrimination Act 1995 was a huge step forward at the time for equal opportunities laws. Up until that point, only sex discrimination and race discrimination were prohibited.

Although the Act’s provisions have been replaced by the Equality Act 2010 and some forms of disability discrimination have come and gone (for example, disability-related discrimination), the fundamentals remain the same.

The duty to make reasonable adjustments, which is at the heart of disability protection, is unusual in that it requires a proactive approach from employers to change ways of working and the workplace environment to minimise the effect on disabled workers.

In recent years, disability discrimination has been shaken up by the large number of tribunal claims for “discrimination arising from disability” under s.15 of the Equality Act 2010. A number of claimants have succeeded in showing that they have been discriminated against as a result of disability-related absences, for example dismissal for high levels of absence and the withdrawal of a job offer because of absence levels in a previous job.

3. Working Time Regulations come into force (1 October 1998)

The Working Time Regulations 1998, which implemented the EU’s Working Time Directive into domestic laws, constitute the single most important piece of legislation ensuring the work-life balance, wellbeing and safety of workers.

The Regulations are designed to provide workers with:

• a 48-hour limit on weekly working hours (albeit with an opportunity to opt out);
• minimum daily rest breaks of 20 minutes in every working day lasting more than six hours;
• minimum daily rest periods of at least 11 consecutive hours in each 24-hour; and
• uninterrupted weekly rest periods of at least 24 hours.

The Working Time Regulations also govern workers’ annual leave entitlement. Originally, workers were entitled to four weeks’ holiday in each leave year. Statutory annual leave entitlement was increased to 4.8 weeks/24 days on 1 October 2007 and to 5.6 weeks/28 days on 1 April 2009.

4. National minimum wage is introduced (1 April 1999)

The introduction of the national minimum wage by a Labour Government in 1999 was controversial. Employers feared that the minimum wage would have a significant impact on employment levels, a fear that turned out to be largely unfounded.

In April 1999, the main minimum wage rate was set at £3.60, with a separate rate for workers aged 18 to 21 of £3. As of 1 April 2017, there are five minimum wage rates set at:

• £7.50 for workers aged 25 and over (the “national living wage”);
• £7.05 for workers aged 21 to 24;
• £5.60 for workers aged 18 to 20;
• £4.05 for workers aged under 18 who are no longer of compulsory school age; and
• £3.50 for apprentices aged under 19, or aged 19 and over but in the first year of an apprenticeship.

The biggest recent change has been the introduction of a new rate for employees aged 25 and over (known as the “national living wage”) on 1 April 2016.

5. Public Interest Disclosure Act 1998 protects whistleblowers (2 July 1999)

One of the most important new employment protections for individuals in the last 30 years has been the protection for whistleblowers against detriment and dismissal.

The protection was introduced via the Public Interest Disclosure Act 1998, following an increase in the importance of corporate accountability and suggestions that some miscarriages of justice, accidents and disasters could have been avoided if workers had felt free to voice their concerns.

As a result of whistleblowing legislation, almost all large employers will have a procedure in place to allow workers to raise genuine concerns about a colleague’s conduct or the organisation’s practices.

A key factor in employers taking whistleblowing seriously is that there is no ceiling on the amount of compensation that can be awarded in these claims. This means that some of the largest awards that employment tribunals make relate to whistleblowing. For example, in XpertHR’s 2015 round-up of awards over £100,000, three of the nine awards related to whistleblowing.

The biggest shift in recent years has been a change to the definition of a protected disclosure. Now, a disclosure is protected by the legislation if the worker has a reasonable belief that it is being made in the public interest. There is no longer a requirement that concerns be raised “in good faith”, although tribunals can reduce compensation by up to 25% if it appears that a protected disclosure was not made in good faith.

6. New right to request flexible working (6 April 2003)

Detractors of the right to request flexible working will argue that it is a “soft” law.

Employers having a wide discretion to reject requests as long as they are dealt with in a reasonable manner and the generous timescales are met. Compensation for an employer’s failure to meet its obligations is capped at eight weeks’ pay capped at the statutory maximum.

However, the right to request flexible working earns its place on this list because of the increasing importance of flexible working as a benefit for staff. The ever-increasing cost of childcare and ageing workforce make it a significant benefit for parents of young children and long-serving employees.

According to XpertHR’s young workers survey in 2017, flexible working opportunities are an important component for HR in positively affecting engagement among young workers too.

The right has evolved since 2003. Although the right initially applied only to parents of young children, it was extended to employees who care for adults from 6 April 2007, and to all employees (with 26 weeks’ service) from 30 June 2014.

7. Rise and fall of statutory dispute resolution procedures (1 October 2004 to 6 April 2009)

During Personnel Today’s lifespan, the statutory dispute resolution procedures probably caused the biggest single legal headache for employers.

The original idea was to reduce the number of employment tribunal claims by introducing prescribed three-step procedures for dealing with disciplinary action/dismissal and handling grievances.

However, attempts to shoehorn every workplace disciplinary and grievance issue (no matter how complex) into just three steps proved impossible.

One area that caused courts and tribunals particular difficulty was the requirement that employees send a written grievance to their employer and then wait 28 days before bringing a tribunal claim. Most of the glut of case law relating to the dispute resolution procedures came from employers challenging whether or not the claimant had complied with this step.

The dispute resolution procedures were replaced with the much more malleable guidance in the “Acas code of practice on disciplinary and grievance procedures”.

8. Equality Act 2010 consolidates anti-discrimination measures (1 October 2010)

The Equality Act 2010 achieved the mammoth task of consolidating over 30 years of legislation and case law into a single piece of legislation.

The Act coined the phrase “protected characteristics”, of which there are nine: age, disability, sex, gender reassignment, pregnancy and maternity, race, sexual orientation, religion or belief, and marriage and civil partnership.

The Act codified some concepts from case law, including:

• “associative discrimination”, whereby someone with a protected characteristic can claim discrimination on the basis of an association with a disabled person (typically, a carer of a disabled individual); and
• “perceptive discrimination”, whereby someone who is perceived to have a protected characteristic can claim discrimination even when he or she does not actually have that characteristic (typically, a heterosexual person who is subjected to homophobia).

The Equality Act also clarifies when employers can ask recruits to undergo pre-employment medical checks; allows employers to take positive action towards under-represented groups; and introduced “discrimination arising from disability”, which made it easier for workers to challenge dismissals and disciplinary action for disability-related absences.

In addition, the Act paved the way for the public sector equality duty (in force from 5 April 2011), which requires public bodies to bear in mind equality of opportunity when shaping their policies.

9. Abolition of default retirement age (1 October 2011)

Following the introduction of age discrimination legislation on 1 October 2006, the next natural step in age equality was the abolition of the statutory retirement age of 65.

Before the retirement age was scrapped, employers had to follow a prescribed “duty to consider” procedure when they wished to retire an employee. In effect, this meant that employers could retire staff at 65 as long as they followed the basic steps of the procedure and were not required to give reasons for refusing to allow the employee to stay on.

While employers can retain an “employer justified retirement age” (EJRA), research has suggested that most employers did not retain a retirement age. XpertHR research from 2013 found that just four out of 138 respondent employers (3% of respondents) retained a defined, contractual retirement age.

10. Tribunal fees cut claims, but prevent access to justice (29 July 2013 to 26 July 2017)

Like the short-lived statutory dispute resolution procedures, the central idea behind the introduction of a fee for bringing an employment tribunal claim was to reduce the number of spurious claims.

However, the level of fees proved to be spectacularly misjudged, with some claimants having to pay £1,200 for claims that reached a tribunal hearing.

In July 2013, there was a massive spike in tribunal cases being lodged as many claimants got their claims in just before the fees came in. This was followed by a rapid decrease in claims, with some estimates putting the overall reduction at around 70% from July 2013 to July 2017.

Since the Supreme Court ruled that the level of tribunal fees was unlawful and that they should be abolished immediately, the number of claims has increased dramatically. The Government’s statistics show that, in the first quarter after the Supreme Court ruling, single claims rose by 64%. Some other low-level claims, particularly cases of unlawful deductions from wages, have recovered even more rapidly.

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It remains to be seen whether or not the current Government dare reintroduce employment tribunal fees at a lower level.

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