There seem to be fewer firm legislative proposals in the employment arena in 2008 than has been the case in the past few years. The only definite proposals so far being the Corporate Manslaughter and Corporate Homicide Act 2007 and the Information and Consultation of Employees Regulations 2004. The latter will, from 6 April, apply in respect of organisations with 50 or more employees.
That said, there is plenty of reform under discussion (both in the UK and the EU), so 2008 will be a year to keep an eye on government responses to the past year’s consultations and to consider the implications of draft legislation as and when it is published.
There is also the chance that we will be faced with some additional legislation to comply with rulings of the European Court of Justice. For example, should the ECJ rule, in the case of Coleman v Attridge Law, that disability discrimination ‘by association’ is covered by the Equal Framework Directive 2000, the Disability Discrimination Act 1995 (DDA) may need to be changed so that it complies with European law.
Big on Bills
There may also be implications for the age regulations which do not currently provide for age discrimination by association. The Queen’s Speech has given us a broad indication of what legislation to expect, but as yet we have no specific dates. In addition to proposals to extend flexible working rights (mentioned right), perhaps the most significant piece of legislation for HR will be the Employment Bill (originally referred to as the Employment Simplification Bill).
The Bill is expected to implement the outcome of the recent Dispute Resolution review, repealing the statutory dispute resolution procedures and paving the way for the implementation of a package of measures to encourage early/informal dispute resolution. The government’s consultation on these reforms closed in July 2007 and its response was expected during November 2007.
More details about the Bill will no doubt be revealed in its response. It is likely that the Bill will be enacted during 2008, but regulations will no doubt be subject to further consultation so that businesses have sufficient time to prepare.
The Employment Bill will, among other things, contain other features intended to simplify and strengthen the enforcement framework for the National Minimum Wage and employment agency standards, implementing the government’s aim to support vulnerable workers. It will also amend trade union membership law in light of the European Court of Human Rights judgment in Aslef v UK, enabling trade unions to expel members on the basis of their membership of a political party.
The government’s current review of the apprenticeship programme is expected to be completed by January 2008 and any legislative changes are likely to appear in the Apprenticeship Reform Bill.
The National Insurance Contributions Bill (which has already had its first reading) will raise the upper earnings limit for National Insurance Contributions aligning it with the higher rate income tax threshold. There are also reforms proposed under the Pensions Bill.
Another matter currently being considered by the government for discussion is a Single Equality Bill. The Bill is expected to simplify and improve existing discrimination legislation, covering not only employment law but also the provision of goods and services, education, private clubs and the positive duties public authorities must carry out. Consultation on proposals for this Bill closed in September 2007 and the government’s response is now expected. However, as there was no mention of the Bill in the Queen’s Speech, it is not now expected to come into force in 2008.
Finally, there are some important matters under discussion in Europe. At a high level, in March 2007 we saw the end of the European Commission’s public consultation on how labour law affects labour markets in member states. More specifically, in the coming year, we may see developments on the negotiations at EU level on the reforms to the Working Time Directive, and in particular the individual opt-out from the maximum 48-hour average working week.
There are also continuing discussions on the future of European Works Councils which may eventually lead to reform of the European Works Councils Directive. Perhaps we will see a revival of the controversial Agency/Temporary Workers Directive which was dropped in 2005 as part of the European Commission’s better regulation initiative.
Laurence Rees is partner and Ruth Bonino professional support lawyer at Reed Smith Richards Butler
- Organisations with 50 or more employees in the UK have a last chance to consider whether they should set up their own consultation procedures before the Information and Consultation of Employees Regulations 2004 take effect on 6 April 2008.
- Look out for and review the government’s response to its consultation on reform of the statutory dismissal and grievance procedures.
- Check for the report on apprenticeship reform and consider impact of any legislative proposals (likely to be the Apprenticeship Reform Bill for enactment in 2008/09).
- Regulations implementing the annual increase in tribunal award limits come into force from 1 February.
- Low Pay Commission will report on the impact of the recent National Minimum Wage (NMW) increase.
- Prepare for the enactment of the Corporate Manslaughter and Corporate Homicide Act 2007 on 6 April by reviewing your health and safety policies, examining what happens in practice and how health and safety issues are enforced. Decide who is senior management for the purposes of the Act and enable employees to report concerns confidentially. You should also check whether your insurance covers criminal prosecutions.
- From 29 February, employers will face new fines for hiring illegal workers.
- Prepare for draft regulations amending the Sex Discrimination Act 1975 (originally expected in October 2007) consider what changes are needed to policies, including those dealing with sexual harassment and rights during additional maternity leave.
- Look out for the report of the independent review into the extension of flexible working rights to parents with children older than six and for draft regulations implementing this and prepare for changes to flexible working policies accordingly (possibly coming into effect in April or October 2008).
- Look out for government responses on various consultations affecting the Employment Bill (NMW and voluntary workers, NMW and employment agency standards enforcement and the ECHR judgment in Aslef v UK, implications for trade unions).
- Conduct of Employment Agencies and Employment Business (Amendment) Regulations 2007 come into force on 1 April 2008 increasing protection for work seekers.
- Corporate Manslaughter and Corporate Homicide Act 2007 will reform the law on corporate manslaughter, which focuses on collective failings of a company’s senior management.
- Information and Consultation of Employees Regulations 2004 expanded to cover organisations with 50 or more employees.
- Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 impose consultation duties on employers with more than 50 employees in respect of significant changes.
- Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2007 provide for new local government pensions.
- Regulations expected to increase rates for statutory benefits such as SMP, SAP and SSP.
- Possible regulations amending Race Relations Act 1976 needed to implement EU Race Discrimination Directive so as to amend the definition of ‘indirect race discrimination’.
- Possible regulations amending Sex Discrimination Act 1975 needed to implement the EU equal treatment laws following Equal Opportunities Commission v Secretary of State for Trade and Industry.
- Possible regulations extending the right to request flexible working to parents with children older than six.
- Possible regulations amending the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 relating to statutory sick pay of agency workers.
- Watch for government’s response to the consultation on the proposals for a Single Equality Bill in which the government aims to simplify and improve existing discrimination legislation (consultation closed 4 September 2007).
- Watch for any announcements on the Apprenticeship Reform Bill following the report on apprenticeship reform expected in January 2008.
- Check progress of EU-level discussions on reforming the Working Time Directive including the individual opt-out of the 48-hour maximum average working week.
- Look out for progress on discussions between European Commission and the EU Social Partners on possible amendment to the European Works Councils Directive.
- Review the annual reports published over the summer including Acas, Employment Tribunal Service and the Central Arbitration Committee.
- Look out and prepare for commencement orders made under the Safeguarding Vulnerable Groups Act 2006, which introduces a centralised vetting system for people working with children and vulnerable adults (expected to come into force in late 2008).
- Review the first annual report of the Equality and Human Rights Commission when available.
- Annual increase in the NMW.
- Look out for all those ‘possible’ regulations referred to above (April) which did not come into effect in that month.
- Look out for Employment Bill 2008 and any regulations made under the new statute (if enacted) which, in addition to dispute resolution reform, is expected to include an enforcement framework for the NMW and amend trade union membership law to enable unions to expel members on the basis of their membership of a political party.
- Check your contracts of employment to ensure that they provide for adequate holiday entitlement in view of the increase in April 2009 in statutory holiday entitlement from 24 to 28 days inform your employees of their new rights.
- Check progress on regulations intended to extend paid maternity leave to 12 months likely to come into effect on 1 October 2009 and to apply in respect of babies born on or after 1 April 2010.
- Check progress of new regulations made under Work and Families Act 2006 introducing additional paternity leave and pay, likely to come into effect on 1 October 2009 and to apply in respect of babies born on or after 1 April 2010.