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Thursday 9th February 2012

The end of 2009 provided more interesting developments in the HR and employment law sphere. We have set out a taster of new cases as well as legislative changes, consultation papers and new government proposals.

POLICY AND LEGISLATIVE DEVELOPMENTS


The Equality Bill
The Equality Bill is presently being debated in the House of Lords and, general election permitting, is expected to receive Royal Assent in spring 2010. It has been under attack in the press recently for potentially preventing the Catholic Church from only allowing male priests. 

Apprenticeships, Skills, Children and Learning Act
Section 40 of this Act, which received Royal Assent in November 2009, introduces a new right for employees to request time off for training or studying (the “time to train” procedure). The government hopes that this will strengthen employees’ skills and employability and enhance their effectiveness and performance at work. This is aimed at boosting the country’s economic recovery. 

Under the legislation, employees will be entitled to make one “time to train” application every year. The employer is obliged to consider this, although, they can refuse it on the basis of specified business reasons or if they believe the training would not be beneficial to the employees’ performance.

From April 2010, these rights will apply to all those employed by businesses with 250 or more staff and, from April 2011, all businesses, irrespective of their size. The employer has discretion as to whether or not to pay for the employees training.

Agency Workers, Draft Regulations
In October 2009, the Government issued a second consultation on the implementation of the EC Temporary Agency Workers Directive, this time, including the draft Agency Workers Regulations 2010, intended to come into force in October 2011. The reason for this delay was the realisation of the huge costs (estimated at just under £2 billion) on the private and public sector businesses of implementing the directive.

The Agency Workers Directive provides for temporary workers to receive from day one:

•    Equal treatment with permanent workers including basic employment conditions such as holiday, pay, overtime and rest breaks;
•    equal access to collective facilities such as canteens, child care facilities and transport services with the hirer; and
•    information about permanent employment opportunities with the hirer.

Member states will also be obliged to improve temporary workers’ access to training and childcare facilities in periods in between assignments to improve their employability. 
 
EU Committee on Women’s Rights and Gender Equality
In November 2009, the EU Committee on Women’s Rights and Gender Equality adopted a resolution calling for “gender equality in balancing work and family rights and responsibilities”. They said that the current Framework Agreement on parental leave provisions are minimal and greater flexibility is needed.

The suggested measures include: encouraging men to equally share in family responsibilities by introducing paid and non-transferable paternity leave; regulating pay issues to avoid a disproportionate impact on single-income households (predominately made up of single mums) and; a non-transferable period of parental leave for the entire four months should be provided.

Government considers paid leave for carers
Equalities Minister, Harriet Harman, has suggested that the government is considering new proposals to provide paid leave for workers looking after sick relatives.

The so called “sandwich generation”, who look after their elderly relatives and their own children, may be afforded a policy reform in the future to accommodate their responsibilities.  

Recent Cases

Workers on part-time parental leave entitled to full-time notice pay

Meerts v Proost NV
The European Court of Justice held that the EC framework agreement on parental leave (the source of the UK’s parental leave rights) entitles workers dismissed without the statutory notice period whilst on part-time parental leave, to be paid compensation based on their ordinary full time salary and not their reduced salary received on parental leave.

The Court said that any national legislation reducing employment rights for those taking such parental leave would both discourage its use and encourage employers to dismiss these workers over others. To permit this would run counter to the purposes of parental leave.

Employer’s benign motive did not prevent actions being directly discriminatory

Amnesty International v Ahmed
The Employment Appeals Tribunal (EAT) held that an employer who treats an employee less favourably on racial grounds commits direct discrimination regardless of whether they have a benign motive.

Amnesty refused to promote an individual of northern Sudanese origin to a role in which such origin could expose her and others to unacceptable safety risks together with damaging Amnesty’s perceived impartiality in the conflict. The EAT found that this was direct discrimination but, Amnesty’s decision, reached after a careful and thorough process, did not amount to a breach of the implied contractual term of mutual trust and confidence. 

This meant that even though Amnesty had committed direct race discrimination Ms Ahmed could not claim constructive dismissal.

Jennifer advises technology sector businesses, commercial organisations, and helps companies deal with insourcings and outsourcings and large scale transactions and day to day employment issues. Jennifer can be contacted at: jbartlett@kingselynapley.co.uk.


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