Article
One: Employment and the Law – Recent Developments by Louise
Fernandes
In the second of our regular articles summarising recent employment developments, Louise Fernandes of Field Fisher Waterhouse LLP provides an overview of the events of the last couple of months and considers what 2007 holds in store…
Mandatory retirement ages – referral to ECJ
Following our report in last month’s
newsletter (see issue
288) that the High Court would be hearing an application for judicial review of the Employment Equality (Age) Regulations 2006, it is understood that the matter has now been referred to the European Court of Justice
(ECJ).
Heyday, a member organisation for people approaching retirement, applied for judicial review of the new legislation as the decision to permit mandatory retirement ages forced workers into retirement. As only two months have passed since age discrimination legislation came into force, it is unfortunate that it will now be some time before we receive the ECJ’s decision.
Time up for the opt-out?
Working time has been a recent hot topic, particularly the issue of workers being able to 'opt out' of the 48 hour limit on average weekly working time.
The UK, together with other member states, has been responsible for stalling the European Commission's proposals to amend the Working Time Directive and address the future of the opt-out. The Finnish presidency of the EU has attempted to resolve the matter, examining a number of options, including maintaining the opt-out under strict conditions and introducing a 60 hour week cap.
Despite the options presented, however, the issue is yet to be resolved. The compromise put forward proved unacceptable to a number of other member states, because there was no firm end date to the opt-out. The stalemate now requires the Commission to go back to the drawing board and it remains to be seen whether 2007 will bring any resolution.
Rolled-up holiday pay
The issue of rolled-up holiday pay under the Working Time Regulations 1998 has also been rumbling on for some time. Many workers in the UK have rolled-up holiday pay arrangements, with an element of holiday pay being included in their hourly rate, rather than it being paid when their leave is actually taken. Whether this arrangement is lawful has been the subject of much litigation.
The ECJ recently held that it is unlawful to roll-up holiday payments, but a transparent and genuine rolled-up element which has already been paid can go towards discharging the statutory payment due for a specific period of leave. Although the Court of Appeal has reconsidered the case concerned, it has remitted the case to a tribunal for a rehearing, in light of the ECJ's ruling. As no guidance was provided by the Court of Appeal, we must wait for further clarification of this problem area.
Additional paternity leave and pay
Following its recent consultation paper outlining the new additional paternity leave and pay scheme, the Government has now published its response.
The new scheme is due to be introduced by 2010. It will permit an employed father or partner of a mother to be absent from work for a maximum of 26 weeks to care for a child, before the child's first birthday, once the mother has returned to work. To qualify, a father will have to have been eligible for ordinary paternity leave with the same employer. It is anticipated that a mother will be deemed to have returned to work if she has ended her leave and stopped receiving maternity or adoption pay.
Highlights for 2007
Next year is going to be eventful for employment law. In addition to the numerous court and tribunal decisions we will see over the course of the year, there are a number of other developments which will impact on recruiters and employers. Here is just a handful:
February 2007 - The annual increase in the tribunal limits will come into force, affecting, amongst others, the maximum compensatory award for unfair dismissal, which will increase from £58,400 to £60,600, and the maximum limit on a week's pay, for the purposes of calculating a redundancy payment or the basic award for unfair dismissal, which will increase from £290 to £310.
April 2007 - Employees whose expected week of childbirth is on or after 1 April can expect a variety of changes. These include the removal of the qualifying period for additional maternity leave, entitling women who qualify for ordinary maternity leave to 52 weeks’ maternity leave and the introduction of ‘keeping in touch’ days, allowing employees on statutory maternity and adoption leave to work for up to 10 days during a leave period without bringing that period to an end or losing statutory pay. The right to request flexible working is also due to be extended, as outlined in last month’s article.
July 2007 – A ban on smoking in enclosed public places, workplaces and vehicles will come into force. If an employer fails to display the requisite signs or prevent smoking in the workplace, it may face a fixed penalty or fine.
October 2007 - The Commission for Equality and Human Rights will be established, providing a single equality body and merging the Equal Opportunities Commission, the Disability Rights Commission and the Commission for Racial Equality.
Louise Fernandes is the Professional Support Lawyer in the Employment Department at Field Fisher Waterhouse LLP and can be contacted at
louise.fernandes@ffw.com.
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