Legislative Changes 2008/2009
Employers should get ready to brace themselves for another round of employment
law changes. The Government has recently published (June 2008) its draft
legislative programme for the 2008/2009 parliamentary session, setting out how
it proposes to change the law over the coming year. Although there are few
surprises, the programme does confirm the Government's plans for important areas
of employment law, not least in the area of discrimination. The key changes
relate to the new Equality Bill, flexible working, the rights of agency workers
and a right to time off to undertake training. Below is a consideration of
what these changes mean for employers and how to plan ahead.
Equality Bill
In 2007, the Government carried out a Discrimination Law Review, consulting on a
number of proposals for a new Equality Bill. These included a single equality
duty, improving enforcement, and making the law more accessible and easier to
understand by bringing together nine major pieces of legislation and over 100
other laws into a single Bill.
The Government has not yet published its response to the consultation process
and therefore we must wait until later in 2008 for further details of what the
Bill will contain. However, the draft legislative programme does provide a clue
as to the Government's plans, stating that the Bill will go much further than
simply bringing together and simplifying the existing legislation. Instead it
will shift away from, "an approach reliant on individuals seeking remedies when
they are discriminated against." This suggests that significant changes can be
expected in an attempt to address the large volume of claims currently
overwhelming the tribunal system. Further, in its response to the recent
consultation on Resolving Disputes in the Workplace, the Government indicated
that these changes could include the possibility of extending the power of
tribunals to make recommendations to employers to change their practices.
In order to be ready for the new legislation, employers should take the
opportunity now to review their equality and diversity practices and assess how
the proposed changes will impact on their organisation.
Flexible Working
In its November 2007 Queen's Speech, the Government promised "to bring forward
proposals to help people achieve a better balance between work and family
life". Before making concrete proposals, Imelda Walsh, the HR Director of
Sainsbury's, was asked to lead an independent review to consider how the right
to request flexible working should be extended. The Walsh report has now been
published and its recommendation is for the right to request flexible working to
be broadened to cover those with parental responsibility for children up to the
age of 16. The report also recommends that the extension should be implemented
in full without being phased in.
The Government has accepted the Walsh recommendations and will now commence a
period of consultation on implementation of the proposals. It is anticipated
that the changes will be implemented in April 2009 and will simply extend the
category of individuals to whom the right applies. The procedure to be followed
and the permissible reasons for refusing a request will remain unchanged.
Employers have almost a year to prepare for the extension to flexible working
rights and further details will become available when the Government
consultation and amending legislation are published. However, the coming months
can be used usefully by organisations to review their flexible working policies,
train managers and communicate with staff. Issues to consider include whether
the organisation wants to offer their workforce an entitlement which extends
beyond the statutory minimum and how competing requests for flexible working
will be handled.
Agency Workers
For some considerable time, the UK government has resisted pressure from Europe
to introduce new laws giving agency workers the right to equal treatment with
employees. However, in a bold move the Government has now announced that it
intends to progress legislation which will see agency workers getting increased
protection. The Government has struck a deal with unions and employers to
give agency workers the right to receive equal treatment after 12 weeks. The
terms of the deal also include agreement that :
1) "Equal treatment" will be defined to mean at least the basic working and
employment conditions that would apply to the workers concerned if they had been
recruited directly by the company to do the same job. It will not cover
occupational social security schemes.
2) The Government will consult the social partners regarding the implementation
of the Directive more generally, in particular :
- How to resolve disputes under the new rules, while avoiding undue delay and
administrative burdens for business.
- Appropriate arrangements to enable all parties to reach agreement on the
treatment of agency workers, while respecting the overall protection of agency
workers; and
- Appropriate anti-avoidance measures.
3) The new arrangements will be reviewed at an appropriate point.
The Government now proposes to engage with its European partners to seek
agreement on the terms of the Agency Workers Directive that will enable this
agreement to be brought into legal effect in the United Kingdom. The Government
hopes that EU agreement will be obtained in time for the necessary UK
implementing legislation to be introduced in the next parliamentary session.
Whatever the final outcome of the political manoeuvring in Brussels, there is
little doubt that, once implemented, the Directive will significantly increase
the cost of using agency staff and will make agency workers a less flexible, and
less attractive, form of labour. For businesses in the habit of meeting
fluctuating staffing needs by use of temporary workers, it is time to start
thinking about alternative solutions.
Time Off For Training
In an attempt to strengthen workplace skills the Government has announced that
it intends to create a new right for employees to take time off for training
purposes. It is proposed that the new right will be contained in the Education
and Skills Bill. However, this will be subject to a consultation process, the
timescale for which has not yet been announced. Until further details become
available, employers may find it hard to assess the impact of this new right on
their business. However, the knowledge that it is on the horizon serves as a
useful prompt to start reviewing policies dealing both with training and with
the right to time off.
Further details of the 2008/2009 legislative programme can be expected in the
Queen's Speech in November. In the meantime, employers should take stock of the
changes looming on the horizon and start planning now about how best to deal
with them.
For further information, guidance and advice on this topic, please contact
Jonathan Hearn :
Tel : 0207 796 6637 ~~ Mobile : 07968 558759 ~~ E-mail :
jonathan.hearn@dlapiper.com