Employment law experts pick some of the highlights of 2009 and look forward to 2010.
Q What do you see as the stand-out employment law change that will come into effect in 2010? What ramifications will it have for employers?
Hine: The Equality Bill. It will harmonise and strengthen discrimination law into one single act and address equal pay disparities in the public and private sector. The ramifications could be that an increase in awareness of equality rights may result in more tribunal claims.
The experts
Nick Hine, partner, Thomas Eggar
Susannah Gilmartin, partner, Thomson, Snell & Passmore
Joanne Owers, partner, Fox Williams
Jonathan Exten-Wright, partner, DLA Piper
Linda Jones, partner, Pinsent Masons
Kerstie Skeaping, partner, Halliwells
Gilmartin: The Equality Bill. Proposals to watch out for include the introduction of the concept of indirect disability discrimination, the obligation on companies employing more than 250 people to publish details of how they pay male and female employees, and making it harder for employers to justify less favourable treatment of employees.
Owers: The Equality Bill. Perhaps the most important cultural change emanating from the Bill will be the introduction of gender pay gap auditing and reporting in the private sector.
Exten-Wright: The Equality Bill. This should ‘de-clutter’ anti-discrimination law, while introducing novel changes.
Jones: The government’s promised review of the statutory default retirement age has the potential to be the most significant employment law development in 2010. There are several ramifications – for example, contracts of employment will have to be amended, retirement procedures may no longer apply, and employers will have to consider new ways of dealing with succession planning.
Skeaping: The Equality Bill, if it comes into force. It will redefine the way in which discrimination is prohibited in the UK. For example, protection against discrimination will be strengthened and public employers will have further obligations to promote equality.
Q What one change, in 2010, will be of little significance to employers?
Hine: Legislation allowing mothers to forfeit up to six months statutory maternity leave, which can then be taken by the father as Additional Paternity Leave (APL). The total entitlement to statutory pay remains at 39 weeks meaning fathers are unlikely to be financially able take up APL.
Gilmartin: The right for employees to request time off for training. Companies do not have to pay the employee while they attend the training and can refuse the request if the training does not benefit the business.
Owers: The positive action provisions in The Equality Bill will prove to be a damp squib in practice.
Exten-Wright: The government considered allowing time off for those with civic roles – it’s decided to progress this through campaigns rather than regulation.
Jones: If the government decides to increase the default retirement age to 66 or 67, that should have very little significance other than for those employees on the verge of retirement.
Skeaping: Time off to train – the introduction of this new right next year has sparked some concerns yet it is just the right to request that is being introduced not the right to take time off.
Q If you could wish for one regulation to be abolished in 2010, what would it be?
Hine: Section 188 Trade Union & Labour Relations (Consolidation) Act 1992. The provision that collective consultation must last at least 90 days if an employer proposes to dismiss as redundant more than 99 employees is unreasonable.
Gilmartin: Something to abolish before it is brought in – the Information Commissioner’s call for prison sentences for breaches of the Data Protection Act (DPA). Responsibility for DPA is already a hugely onerous job – this proposal would scare anyone witless.
Owers: Section 7, Data Protection Act 1998 – responding to employee subject access requests – need I say more.
Exten-Wright: Parties only have 42 days from being sent a tribunal’s judgment in which to appeal to the EAT, but given current postal system challenges perhaps this time limit and from when time runs should be reviewed.
Jones: The ability for employees to make Data Protection Subject Access Requests simply as a negotiating tactic in the context of disciplinary or redundancy procedures. It is a complete waste of time and money for the employer.
Skeaping: Just because of the amount of disputes they have generated, the holiday provisions in the Working Time Regulations.
Q What was the most important ruling of 2009 and why?
Hine: The rejection of the Heyday challenge.
Gilmartin: Heyday – finally some clarity on the statutory default retirement age.
Owers: Chagger v Abbey National Plc, in which the Court of Appeal held that employees who suffer a stigma when searching for a new job as a result of having brought a discrimination claim against a previous employer are entitled to be compensated for that loss by that employer.
Exten-Wright: Stringer v HMRC – the Lords’ ruling that workers on long-term sick leave may claim statutory holiday pay presents employers with several potential legal and administrative pitfalls.
Jones: The Stringer and Pereda cases taken together have produced a significant additional liability for holiday pay for employers.
Skeaping: The case of Kulkarni v Milton Keynes Hospital NHS Trust creates the possibility that employers may have to allow solicitors to attend disciplinary hearings or risk a finding of unfair dismissal.
Q And what was the most over-rated/over-hyped?
Hine: The Acas Code of Conduct – the practical effect on employers so far has been minimal.
Gilmartin: The decision in Stringer v HMRC, which left many employers worried about huge payouts for accrued holiday pay for sick employees. The reality is that, for most, the financial ramifications of this decision will not be so dramatic.
Owers: The High Court’s decision in the long-running Heyday saga.
Exten-Wright: The CWU announced plans to bring a legal action against Royal Mail in respect of its alleged hire of 30,000 temporary workers, which was called off at the 11th hour.
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Jones: The two cases on legal representation at disciplinary hearings (R v Governors of X School and Kulkarni v Milton Keynes NHS Foundation Trust) caused something of a stir. In fact, although the case has some significance for certain professions – for example, teaching and medicine – it has very little or no significance for most public and private sector employers.
Skeaping: The House of Lords decision in Stringer v HMRC had been expected to provide all the answers yet it left even more questions on holiday rights accrued during long-term sick leave.
