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Commercial Question

Changing Jobs

updated on 17 June 2008


What's on the horizon in employment law?


So far, 2008 has seen just a few changes to employment legislation but the signs are that there are more to come.

Flexible Working

The government has announced its intention to extend the right to request flexible working from parents with children up to the age of six, to parents with children up to the age of 16. The government's proposals follow the publication of the Walsh Report, which was commissioned earlier this year to investigate whether the right to request flexible work should be extended.

The report found that the extension should be implemented in one go, rather than phased in, so as to reduce confusion. The report rejected suggestions that the qualifying period of 26 weeks (in order to be entitled to make a flexible working request) should be removed and that small firms should be exempt. The government will now consult on exactly how the change is to be implemented.

Equality Bill

The prime minister's recent statement on the government's draft legislative programme has included the Equality Bill, which will reform discrimination law. The government consulted on proposals for the Equality Bill last year and its response will be published soon. 

Temporary and Agency Workers (Equal Treatment) Bill

Following an agreement on agency workers reached by the Confederation of British Industry (CBI) and the Trades Union Congress (TUC) on 20 May 2008, the Temporary and Agency Workers (Equal Treatment) Bill has been withdrawn. The TUC and CBI agreed that agency workers should be entitled to equal treatment with comparable permanent employees after 12 weeks' employment. The parties agreed that 'equal treatment' should mean that the agency worker will be entitled to at least the basic working and employment conditions to which he/she would have been entitled if he/she had been recruited directly by the undertaking to occupy the same job. However, this will not cover occupational social security schemes (to include statutory sick pay and pension payments).

As a result of this agreement with the CBI and the TUC, the government was able to give its approval to the controversial EC Temporary Workers Directive, which was agreed in principle in the EC Council of Ministers in Brussels on 9 June 2008 and hopes to bring in implementing legislation in the 2008/09 parliamentary session. The European Council also reached agreement on the United Kingdom's opt out of the 48-hour working week under the Working Time Directive, permitting it to continue. John Cridland, deputy director-general of the CBI, has said that the agreement on agency workers should now allow the United Kingdom to retain the working hours opt out from the Working Time Directive, which he believes is equally vital to the future of the UK economy.

Employment Bill

This was debated in the House of Lords on 19 May 2008 and has now been republished as amended.  The bill was read for the third time in the Lords on 2 June 2008 and the government's aim is for the bill to receive Royal Assent this summer.

A large part of the bill is focused on amending current dispute resolution procedures but these amendments are unlikely to come into force before April 2009. The bill would:

  • repeal the existing statutory dispute resolution procedures;
  • repeal related provisions about procedural unfairness in dismissal cases (ie, that a dismissal is automatically unfair where an employer does not complete the statutory procedure);
  • give power to make regulations to establish a new fast-track procedure to settle monetary disputes in certain limited cases;
  • give wider discretion to ACAS officers to conciliate in pre-tribunal disputes;
  • remove fixed periods for conciliation so that ACAS's duty to conciliate in tribunal cases subsists through proceedings; and
  • give tribunals power to order employers to compensate workers for any financial loss (eg, bank charges and interest) sustained as a result of any unlawful deduction of wages or non-payment of redundancy awards.

In the future, the handling of breaches of procedure in unfair dismissal cases will revert to the pre-2004 position that was based on case law. Under the principle in Polkey v AE Dayton Services Limited, if the tribunal finds that following the correct procedure would have made no difference in any event, the dismissal may be unfair but the tribunal should reduce or eliminate the compensation payable.

The ACAS Code of Practice is also set to be substantially revised. The code is not legally binding, unlike the statutory procedures, but it can still be taken into account by the tribunal. Under the proposals set out in the Employment Bill, if a tribunal finds that an employer has unreasonably failed to follow the code in dismissing an employee, the tribunal will be able to take this into account when considering if a fair procedure was followed and will have a discretion to adjust any compensatory award by up to 25% (up or down).

Catherine Kearns is a trainee in the employment group at Reed Smith.