News round-up
June 2008
In this article...
The latest news and developments in employment law, reported this month by Beth Cobner.
Agency workers
As we reported in our Alert in May, the government has announced that it has reached an agreement with the TUC and the CBI on what rights agency workers might obtain after 12 weeks’ engagement. Negotiations are taking place in Europe this month on the detail of the legislation. Employers should be aware that the agreement with the CBI and the TUC is simply the agreed starting point for the UK’s negotiation position in Europe; the detail of the legislation, when it is finalised may, or may not be, in line with the TUC / CBI agreement. We will keep you informed of developments.Extension of flexible working rights
In November 2007, the Government asked Imelda Walsh, HR Director of J Sainsbury plc, to consider how the right to request flexible working should be extended to parents of older children. The Government has decided to accept the conclusions of the Walsh Report and will now consult on how the change is to be implemented.Key recommendations of the Walsh Report were:
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that changes to the existing legislation should be implemented without a phase-in period; | |
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awareness of the right to request flexible working should be raised (particularly amongst men); |
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the value of trial and temporary periods of flexible working should be highlighted; but |
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the 26 weeks’ qualifying period should be retained; and |
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the right to request flexible working should not be extended to all employees, as priority should be given to parents of younger children, up to the age of 16. |
Tribunal service changes
The response to the Government’s consultation on the Tribunals Service, Transforming Tribunals has been published and the Ministry of Justice has announced, as a result of the consultation, that a new two-tier tribunal system will be effective from 8 November 2008. This is unlikely to have any practical impact on the hearing of Employment Tribunal and Employment Appeal Tribunals claims, as these types of tribunal will remain separate from the two-tier system. The Government has said, however, that there will be close links between the employment tribunals and the EAT and the two-tier tribunal services.Update on the Heyday challenge
The latest news on Heyday’s challenge to the UK’s default retirement age of 65 years old is, like the curate’s egg, good in parts. A date has, finally, been listed for the first day of the hearing at the European Court of Justice: 2 July 2008. However, neither the Advocate General’s opinion nor the Court’s judgment in the case is likely to be issued before the end of 2008 or early in 2009. In the meantime, cases which may be affected by the Heyday challenge continue to be stayed pending the outcome of the European Court of Justice’s decision.Response to consultation on dispute resolution
The Government has published the response to its consultation, “Resolving disputes in the workplace,” on how the Government should improve and simplify the current employment dispute resolution procedures. The consultation was issued following the Gibbons’ Review into the statutory dispute resolution procedures, which resulted in the publication of the Employment Bill in December 2007 (see January’s Employment Eye for details).The response document sets out the Government’s reasoning behind the changes that it is proposing in the Employment Bill. It notes that:
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the vast majority of respondents to the consultation agreed that the procedures were overly prescriptive and complex and lead to the involvement of lawyers at too early a stage; | |
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having said that, the Government is keen to avoid returning to the situation where the first an employer heard of a grievance was when an employment tribunal claim form arrived; |
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increased costs penalties for employment tribunals were not introduced as it was feared that this may be used to intimidate claimants; |
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the power of the employment tribunals to reduce / increase compensation for non-compliance with the Acas Code of Practice will be a discretionary power, not an obligation that must be applied in every case; and |
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the usefulness of the lay members of an employment tribunal was acknowledged, and it was felt that further consultation was needed on how to make best use of lay members. |
New guidance on TUPE and data protection
The Information Commissioner's Office has published new guidance on compliance with the Data Protection Act 1998 (“DPA”) when providing information about employees on a transfer covered by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). This short note is the first specific guidance on the data protection implications of the disclosure obligation on sellers under TUPE and provides formal confirmation that sellers will not breach the DPA by providing the employee liability information to buyers. For the avoidance of doubt, however, best practice would dictate that employment contracts specifically confirm that, by signing the contract, employees agree to have their data processed in this way.
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