news

Here we list recent and future implementation dates for some of the most important measures introduced by Statute, Regulation and Directives. They are briefly summarised under subject headings.

If you would like further clarification on these new legal developments please contact us.

The annual increase in the rate of a weeks’ pay for the purpose of calculating the basic award for redundancy/unfair dismissal rose to £330 per week from £310. 

The cap on unfair dismissal awards rose to £63,000 from £60,600.

The new limits apply for any dismissals on or after 1 February.  The full list of revised compensatory awards can be found on the BERR website.

New penalties apply to employing illegal workers.  Employers knowingly employing illegal workers face up to two years in prison and those who negligently employ illegal workers risk a fine of up to £10,000.  For more details visit the UK Border Agency website.

During the course of the year the Government will bring into operation an Australian-style points based migration system (PBS).  The first stage of the PBS was the introduction of Tier 1 for highly skilled migrants.  These are individuals who are expected to contribute to the UK economy and they will have full access to the labour market or may become self-employed.  Tier 1 migrants will not need to be sponsored by the employer.  The remaining Tiers, 2 –5, will require sponsorship.  Tier 4 is for students and is likely to come into force next year.  Tier 3 for low skilled workers to fill temporary labour shortages has been indefinitely suspended as these opportunities have apparently been reserved for European migrants from the more recent members of the EU who do not have free access to labour market (Bulgaria and Romania).  Tier 5 is effectively a replacement for the working holiday schemes that operated with reciprocal arrangements with Commonwealth states.

Tier 2 will have the biggest impact for employers.  Employers will have to register to be entitled to sponsor workers coming to the UK.  There will be two routes of entry for employers to use to bring overseas workers into the UK.  The Government will produce a list, to be regularly reviewed, of shortage occupations where it will be easier to justify the requirement of overseas workers.  When occupations are not on the Resident Labour Market Test list then employers will have to demonstrate that there is no EU worker and that the job holder requires a qualification of NVQ level 3 or higher and the salary is going to be in excess of £24,000.  Tier 2 of the PBS is likely to be introduced in autumn of this year.  For more information on becoming a sponsoring employer and PBS visit the UK Border Agency website.

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007 contains the following provisions:

• agencies or employment businesses must ensure that a ‘work-seeker’ who takes up additional services, such as accommodation, will be able to give notice to cancel or withdraw from those services without incurring any detriment or penalty
• agencies or employment businesses must give ‘work-seekers’ a statement of his or her right to cancel or withdraw from additional services; and
• additional protection is available to ‘work-seekers’ where agencies propose to charge fees for the inclusion of information about them in a publication.

The Regulations can be found on the OPSI website.

6 April 2008

The weekly rates for SMP, SAP, SPP and SSP rose from the 6 April 2008.  SMP, SAP and SPP will increase to £117.18 from £112.75 per week.

SSP rises to £75.40 from £72.55 per week.  The lower earnings limit (LEL) for NI contributions rises to £90 from £87.  Those earning below the LEL will not be entitled to SSP.

The Sex Discrimination Act 1975 (Amendment) Regulations 2008 are now in force.  The Regulations were drafted in response to the Government’s defeat in the case Equal Opportunities Commission v Secretary of State for Trade and Industry.  The EOC launched a legal challenge on the basis that the Government had failed to fully implement the requirements of the Equal Treatment Amendment Directive.  The new Regulations will have the following impact:

• Regulation 2 – eliminates the requirement to have a comparator who is not pregnant or on maternity leave.

The old wording had required a non-pregnant female as a comparator for a pregnant woman (woman on maternity leave) to identify if she had suffered discrimination/less favourable treatment.  Being pregnant is a unique circumstance, bringing automatic protection and no comparator should have been needed.

• Regulation 3 – removes the causal link between harassment and the sex of the person being harassed.

Until now a claim could only be successful if the harassment was ‘on grounds of’ the person’s sex.  The change allows claims for conduct that ‘is related to’ the sex of the person, meaning that the conduct does not have to directed at the person.  It also allows a witness to the harassment to make a claim, be they male or female.

• Regulation 4 – protects someone from third party harassment when it has happened on two other occasions.

Employers will become liable for not taking reasonable steps with customers and/or suppliers where they are aware of repeated acts of harassment.

• Regulation 5 – requires an employer to pay any relevant bonus to a woman during the compulsory maternity leave period (two weeks immediately after the birth).  It also entitles women to the same protection with regard to terms and conditions during AML as she enjoys during OML.

As a woman is prohibited from working during the compulsory period, any relevant bonus must not be denied her during this period.

Women with an EWC before 1 October 2008 may have some terms and conditions during AML reduced or removed by their employer.  For example removing a company car or reducing the rate of accrual of annual leave to the statutory minimum.  This final part of the Regulations will only come into force for women with an EWC of 1 October 2008 or later.

The OPSI website contains both the Regulations and the Explanatory Memorandum . Note:  The EOC is now part of the EHRC (Equality and Human Rights Commission) and the DTI has become the BERR (Business, Enterprise and Regulatory Reform). 

The Corporate Manslaughter and Corporate Homicide Act 2007 came into force.  The Act does not insert any new obligations but should make it easier for prosecutions to be taken against corporate bodies for relevant failings that led to deaths.  The Act can be found on the OPSI website. The Ministry of Justice has also produced some useful guidance to the Act. 

The Information and Consultation of Employees Regulations 2004 now apply to organisations with 50 employees or more.  There is no obligation for an employer to inform and consult unless sufficient numbers of the workforce request consultation arrangements, but following this amendment to the legislation smaller employers must now consider a request for consultation arrangements.  The Regulations can be found on the OPSI website.

The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 now apply to organisations with 50 employees or more.  Where an employer has 50 or more employees and they seek to make a number of specified amendments to the pension scheme they have specific consultation obligations.  For more details of the legislation visit the OPSI website.

1 October 2008

The National Minimum Wage will increase as follows:

• Workers aged 22 and over - £5.73 (currently £5.52)
• Workers aged 18-21 - £4.77 (currently £4.60)
• Workers 16 and 17 - £3.53 (currently £3.40)

There is more information on the NMW at the BERR website.

Women with an expected week of childbirth on or after 5 October 2008 are entitled to benefit from all terms and conditions, except pay, throughout the maternity leave period (both the ordinary and additional maternity leave period).  The Sex Discrimination Act 1975 (Amendment) Regulations 2008 can found on the OPSI website.

The rates for a weeks’ pay and the cap on unfair dismissal compensation will be increased.

The minimum entitlement to paid annual leave under the Working Time Regulations increases to 5.6 weeks from 4.8 weeks.  Based on a five-day working week this means that the entitlement will increase to 28 days from 24 days.  The practical impact means that all workers will be entitled to the equivalent of a minimum four weeks holiday plus 8 bank holidays.  The Regulations can be found on the OPSI website.

The Employment Bill will see the repeal of the statutory dispute resolution procedures to simplify the handling of disciplinary and grievance issues.  In line with the new legislation on handling disputes a greater emphasis will be placed on mediation in an effort to reduce the number of claims going to tribunal.  At the same time Acas will introduce a new Code of Practice and guidance on handling discipline, dismissal and grievance.  Whilst parts of the Employment Bill will be enacted in October 2008 the section dealing with disputes will not come into law until April 2009.  The BERR website contains information in relation to the background of the Bill and links to the draft legislation and consultation.    The Acas Code is already available in draft format.

Following a review conducted by Imelda Walsh, HR Director at Sainsbury’s, on behalf of the Government she has recommended that the right to request flexible working should be extended to carers of children up to the age of 16.  The age is currently is 6 unless the child is considered disabled in which case legislation allows requests to be made up to the age of 18.  The Government will commence consultation with a view to implementing regulations by April 2009.  The Review document can be found on the BERR website along with guidance for dealing with requests. 

Further increases to SMP, SAP, SPP and SSP to be confirmed.