Never a dull moment for employment law in 2004

Changes in employment law abound for the year ahead, and employers must get
to grips with them now to avoid being caught out

Some would have you believe that
employment law developments are currently static and that nothing more should
be expected until after the next general election. In truth, the flood is
relentless.

Certainly, life is more predictable because we know the times of the tide: 6
April and 1 October. Major events in October will be the new statutory
disciplinary and grievance procedure rules and the revised (but no clearer)
disability discrimination law. Less exciting, but nonetheless of practical
importance, will be the new Employment Tribunal originating application and
notice of appearance forms.

The aim is to require both parties to share more information earlier on to
promote the resolution of disputes. There will also be new rules of procedure
for Employment Tribunals and the Employment Appeal Tribunal, including simplification
of the ultra-complex procedure in equal pay for equal value claims.

But before all of that, there will be the usual excitement of the DTI
clearing its desks before the summer break. It is worth a bookmaker calling
odds on what that will bring! A safe bet is the almost final regulations on
implementing the EU Information and Consultation Directive. This is possibly
the most influential legislation on employee relations in a decade. The odds on
a revised TUPE law are about 50 to one. Perhaps slightly narrower odds apply to
publication of draft age discrimination regulations. In my view, this will be
the most pervasive of all discrimination laws.

For once, EU developments are on a slower track. Everyone is talking about
the possible abolition of the opt-out of the 48-hour maximum working week, but
that will certainly take some months to resolve. On a longer timetable is the
revision of the European Works Council Directive, although there is something
to be said for holding back on this until the information and consultation
rules have bedded down. Somewhat sooner might be an Agency Workers Directive.
You will recall that this is about giving agency workers the same rights as
‘normal’ employees.

That brings me to case law developments, since these can be as seismic as
legislation. Take for example the Court of Appeal’s current stance that in many
cases, agency workers are employees of the hirer/client. How out of touch is
that with the intention of the parties? It is more difficult to predict seminal
case law, but I am reasonably confident about more developments on whether
"injury to feelings" is compensatable as part of an unfair dismissal
award, liability for manner of dismissal and rights of part-timers.

Surely we’ll get some guidance on the newish laws on sexual orientation and
religious discrimination? For example, what is a ‘religion’, and how do you
define a ‘belief’? Also look out for a new bumper version of the Commission of
Racial Equality’s statutory code of practice "on racial equality in
employment".

The ELA will track developments. As a non-political organisation we very
much focus on how legislation, court judgments and guidance can be made more
practical. Any ideas on what does not work are welcome. My in-tray includes a
number of ‘big picture’ issues. For example, should those in employment
tribunals be accredited? Is mediation of employment disputes a topic that
deserves a greater profile? Should we have a ‘labour court’ rather than
employment matters being split artificially between High Court, County Court
and Employment Tribunals?

Having said all of that, what will be at the top of my suitcase for the
summer holidays? The DTI’s guidance on the statutory disciplinary and grievance
procedures, of course. I fear it will have to be read more than once.

By Raymond Jeffers, Incoming chair, Employment
Lawyers Association

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