Employment law overview

Thursday 22nd February 2007

Philip Paget, employment partner

Employment lawyers sometimes moan that they wish employment law was as slow moving and as settled as land law. The fact that it isn’t means that there is always something for us to do; the downside is that there is something of a perpetual headache for our clients.

2006 saw the introduction of two major pieces of new legislation. The first was the revision to the Transfer of Undertakings legislation which had remained largely unchanged since 1981. The revised rules, TUPE 2006, clarify some things for us although the employment aspects of business transfers still remain a complex and specialist area.

Probably more far-reaching was the Age Discrimination legislation which came into force on October 1, 2006. So much has already been written about this new law that perhaps I needn’t say much more. But what probably does need to be said, is that there are a lot of people waiting to see just how much of a problem the new rules actually create.

At this stage, many employers have adjusted for example their recruitment practices and benefit entitlements but far fewer have seen the impact at the end of the employment relationship. Whilst the new retirement process may seem a tad complex, it is nevertheless relatively straightforward.

It will probably take future redundancy processes or other dismissal scenarios to show the true impact of this legislation. Only then are we likely to see the effect of age discrimination claims being made in tandem with unfair dismissal claims which might have been the most we could have expected under the old law.

It has been reported that there are still some working environments where employees are free to smoke inside. Roll on July 2007 when the smoking ban takes effect and all work premises must be smoke free if “enclosed or substantially enclosed”. Don’t forget either that you must as an employer from July this year display non-smoking signs on all company premises and company vehicles or face mandatory fines.

So what of the months ahead? Is it, as some commentators have speculated, to be the year of the family? Sure enough, extended maternity leave rights and keeping in touch days will have their impact. The extension of flexible working rights to carers also fits squarely into the category of family friendly rights.

But for my money, perhaps the next two years might better be called the years of the extended holiday. Only now, it seems, have many people realised that such an enormous segment of the working population, probably as many 6m people, have been enjoying only 20 days holiday in total. In short, they have had only 12 days holiday to take as they chose plus eight bank holidays.

The announcement that the Government is making the eight bank holidays additional to the four weeks provided by the Working Time Regulations must have come as a big shock to many employers. As ever, the perception is that this is most difficult for smaller employers. Don’t forget that the vast majority of employers in this country are smaller employers i.e. those with 100 employees or less. Most who did not already give bank holidays in addition fall into that smaller employer category.

Undoubtedly the impact of having to give an additional eight days paid holiday will impact severely on those who didn’t give it already. Let’s face it, in business a 40% increase on anything usually has a considerable impact. So, good for most employees and their families – but unlikely to be welcomed with open arms by many employers.

Is there light at the end of the tunnel? Well there is something for us to cling onto at least. Those troublesome statutory dispute resolution procedures are to be reviewed. The DTI announced that the problematic legislation introduced in 2004 will be reviewed following the complaints received from many quarters.

Given that the legislation was designed to resolve disputes at an early stage between employers and employees, the case law it has spawned tends to suggest that it has singularly failed to have that effect. So we look forward to the outcome of any review with a good deal of hope: that it will lead to some simplification and, dare I suggest, it might even make life easier for the average employer. Well there is always hope isn’t there?

If you would like further information please contact Philip Paget at philip.paget@gordonsllp.com