Editorial from IDS Brief 844, January 2008

Dispute resolution – we can work it out

In this special edition of Brief we review the key employment law developments of 2007. As predicted in Brief 820, it was a quiet year for legislation, with the increase in paid annual leave, the extension of the right to request flexible working to carers, and the smoking ban in workplaces garnering the most attention. There might, though, be slightly more activity in 2008, with a general theme of consolidation and, in some cases, the correction of recent legislative errors.

End of the statutory procedures

In March the DTI (since renamed the Department for Business, Enterprise and Regulatory Reform – BERR) published its review of the statutory dispute resolution procedures. This confirmed what many of us already knew – that the procedures were making employment law more rather than less complex, and producing harsh results in tribunals. The review recommended, and BERR accepted, that they should be repealed. To this end, the Government introduced the Employment Bill in the House of Lords on 6 December. Unfortunately, it declined to publish the results of the consultation on repealing the procedures prior to publication of the bill, so there remains a good deal of uncertainty as to what any new attempt at statutory workplace dispute resolution will entail.

However, what becomes immediately clear from reading the bill is that Acas is to have a substantially beefed-up role. In addition to extended powers of conciliation and the removal of the much-maligned fixed conciliation periods, the bill (if enacted) will allow an employment tribunal the discretion to increase or decrease an award by up to 25 per cent on a party’s failure to comply with the Acas Code of Practice on disciplinary and grievance procedures. It is also clear that S.98A of the Employment Rights Act will be repealed, meaning that the question of procedural fairness in unfair dismissal law will once more be governed by the ‘Polkey’ principle – for details, see IDS Employment Law Handbook, ‘Unfair Dismissal’ (2005).

Other measures in the Employment Bill include greater powers of enforcement in relation to the national minimum wage and employment agency standards, along with changes to the Trade Union and Labour Relations (Consolidation) Act 1992 to ensure that UK law complies with the decision of the European Court of Human Rights in ASLEF v United Kingdom (Brief 825). The bill is expected to be approved by Parliament in 2008, but many of the changes it proposes – including the repeal of the statutory procedures – are unlikely to come into force until 2009. We will, of course, keep you informed of all developments.

Sex discrimination changes ahead

One legislative change that was expected to take place in 2007 was the amendment of the Sex Discrimination Act 1975 following the judicial review case of EOC v Secretary of State for Trade and Industry (Brief 826). There, the High Court ruled that provisions in the SDA relating to the rights to bring claims for harassment on the ground of sex, and discrimination on the grounds of pregnancy or maternity leave, are incompatible with the EC Equal Treatment Directive. Though amending regulations were initially promised for October, the latest word from the Government Equalities Office is that work on these is ongoing, and that they will be introduced at the ‘earliest possible opportunity’.

Illegal workers to cost employers dear

Mistakes as to an employee’s right to work in the United Kingdom will become more costly from 29 February, when fines of up to £10,000 come into force for employers who employ someone who does not have permission to work in the United Kingdom. These will be followed by a new criminal offence under S.21 of the Immigration, Asylum and Nationality Act 2006 – knowingly employing a person who is subject to immigration control and who does not have permission to work in the United Kingdom. This will carry a maximum sentence of two years’ imprisonment. The Government has issued a Code of Practice to accompany these changes, along with guidance for employers on how to avoid race discrimination when checking the right to work of a job applicant or employee.

After a drawn-out Parliamentary passage, the Corporate Manslaughter and Corporate Homicide Act 2007 will come into force on 6 April 2008. Under the Act, a company or organisation can be found guilty of manslaughter if the way in which its activities are managed leads to a breach of a duty of care which results in the death of a person. Somewhat controversially, the punishment for this offence is an unlimited fine – imprisonment of senior managers can only occur if they are separately tried and convicted under the existing manslaughter law.

Discrimination review still on the table

2007 saw the publication of responses to the Discrimination Law Review and the introduction of the Green Paper, ‘A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain’. Many, including Trevor Phillips, head of the new Equality and Human Rights Commission, have expressed concern that the proposals for reforming discrimination law do not go far enough and may even result in a ‘levelling down’ of protection. Nevertheless, the Government has stated that it remains committed to introducing the Single Equality Bill during this Parliament, and it is expected to be included in the Queen’s Speech in November.

As always, we look forward to keeping you up to date with developments, through the Brief, Handbooks and Supplements, conferences and seminars, and our recently improved and re-launched website, www.idsbrief.com. We’d like to wish all our subscribers a Happy New Year.