Wolferstans' Employment Law Newsletter
July 2005
Queen's Speech - New Employment Laws
A number of draft Bills have been announced for this new session of Parliament. The Parental Rights Bill will provide the power to increase the entitlement period for paid maternity leave from 26 weeks to 39 weeks and will also increase adoption leave. The Pensions Bill will establish authority for Parliament to change the present Pensions system. The Corporate Manslaughter Bill aims to allow prosecution for corporate manslaughter if there has been a gross failing by Senior Managers to take care for the safety of their workers or members of the public which has caused a death. The Immigration and Asylum Bill will provide a new points system for work permits for economic migrants linked to skills, and tougher penalties for employers found recruiting illegal immigrants. The Equality Bill is aimed at establishing a new Commission for Equality and Human Rights to take over the existing duties of the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. The Health Improvement and Protection Bill will include a ban on smoking in all enclosed public places and work places except for specific exceptions by 2008.
New TUPE Regulations Delayed
The DTI had originally intended to bring the new TUPE Regulations into force with effect from 1 October 2005. This has now been delayed because of the large number of responses to the consultation process. The new Regulations are likely to come into force in April 2006.
Employment Practices Data Protection Code
The office of the Information Commissioner has now produced an updated version of the Employment Practices Data Protection Code. The Code is aimed at helping employers comply with the Data Protection Act, and the provisions are intended to set examples of good practice. The Information Commissioner has also published a booklet entitled "Quick Guide to the Employment Practices Code: Ideal for the Small Business" together with supplementary guidance. All information is available from the website www.informationcommissioner.gov.uk
Compromise Agreements
It has long been unlawful for parties to try to contract out of statutory employment claims. It is lawful to do so under an ACAS COT3 Settlement Agreement where proceedings have been issued, or otherwise under a Compromise Agreement. For a Compromise Agreement to be binding it must satisfy several statutory criteria. It must be in writing, the employee must have received independent advice, the independent adviser must have relevant insurance, and the Compromise Agreement must relate to "particular proceedings". The Court of Appeal has recently ruled on the meaning of particular proceedings, and ruled that the statutory claims to which a Compromise Agreement relates must be specifically identified. This must be done by referring to the particular proceedings which have already been brought, or by including a general description of the claim or the specific section of the statute to which the claim relates. A general expression such as "all statutory rights" or simply naming a statute without identifying the relevant part of it or the background to the claim, will not be sufficient. This means that an employee in these circumstances who has received money to compromise his claims will then be free to pursue them. It is therefore important for all Compromise Agreements to be carefully drafted bearing in mind the nature of each particular claim.
Holiday or Sickness Pay?
A recent EAT decision namely Kigass Aero Components -v- Brown decided that holiday pay still accrued and was payable to those who were on long term sick leave. The Court of Appeal has now overruled this and decided that holiday pay is not payable to those on long term sick leave under the Working Time Regulations. This appears to be more in line with the aims of the Working Time Directive that the taking of holidays was for health and safety reasons, rather than provision of a benefit to sick employees.
Council of Ministers fail to remove Working Time Opt Out
The UK Government has managed to stall amendment proposals debated by the Council of Ministers aimed at removing the 48 hour maximum working week opt out under the Working Time Directive.
If you have any questions on the above points or on employment law generally, please speak to Nick Roper, Partner on 01752 292357.