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Article: Employment and the Law - Recent Developments by Louise Fernandes-Owen

Louise Fernandes-Owen of Field Fisher Waterhouse LLP examines the latest key employment law developments.

Codes of Practice for the Equality Bill – consultation

Over the past few months, lawyers from the Employment and Pensions Group at Field Fisher Waterhouse have been working with the Equality and Human Rights Commission (EHRC) to draft the new Employment and Equal Pay Codes of Practice to accompany the Equality Bill. Both Codes, together with a further Code on services, public functions and associations, have now been published for public consultation.

The Bill is one of the most significant developments in employment law over recent years. It is intended to consolidate and harmonise more than 30 years of inconsistent developments in anti-discrimination law and also contains some new and more radical measures. The new Employment Code will replace the three existing codes on race, sex and disability discrimination in employment and will be extended to cover age, gender reassignment, religion or belief and sexual orientation. It will become the key document that forms the link between the Equality Bill and employers, employees, advisers and Employment Tribunals.

The intention is to ensure that the final Codes are available to support the Bill once it becomes law. As the Bill is still progressing through Parliament, the Codes will also be subject to revisions when the Bill is amended.

The EHRC is also producing non-statutory guidance. Consultation on this guidance will start on 25 January and close on 16 April 2010.

Agency Workers Regulations – response to consultation

The Government has published its response to the consultation on the draft Agency Workers Regulations, which were laid before Parliament on 21 January 2010. The response clarifies the approach taken by the Regulations, which aim to provide agency workers with a right to equal treatment after 12 weeks in a job. There are some key changes, for example:

• The approach to the definition of "pay" continues to be based on the principle of "equal pay for work done", but the Regulations will now include within the scope of equal treatment bonuses that are directly attributable to the quality or quantity of the work done by an agency worker. Vouchers or stamps with a monetary value, such as luncheon vouchers, will also be included.

• The Regulations will contain additional anti-avoidance measures. Agency workers will have grounds for a claim to a Tribunal if a structure of assignments develops where the intention is to deprive them of equal treatment rights. As a deterrent, such a breach of the Regulations will attract an additional award of up to £5,000.

The Regulations are due to come into force on 1 October 2011. Further guidance will be provided nearer the time.

Plans to abolish retirement age

Harriet Harman, Minister for Women and Equality, has suggested that the default retirement age is arbitrary and may be abolished by the Government.

Since the Employment Equality (Age) Regulations 2006 came into force, the default retirement age of 65, which enables employers to dismiss employees aged 65 or over by reason of retirement, has been the subject of the long-running Heyday litigation. Last year, the Government brought forward its review of the default retirement age from 2011 to 2010.

In an interview with the Daily Mail, Harman has indicated that the Government is proposing a "massive public policy change" and that older people may be given the right to request flexible hours. Harman commented that "we do want people, if they want to, to be able to stay working for longer and flexible working is a way that enables them to do that. They could say they have decided they want to work three days a week and it would then be down to the employer to demonstrate why the business couldn't cope with that."

Statutory payments rise, compensation limits fall

The proposed rates of various statutory payments for 2010 have been announced. The proposals include a rise in statutory adoption, maternity and paternity pay from £123.06 to £124.88. It is expected that these changes will come into effect in April 2010.

It is also worth noting that, from 1 February 2010, the maximum compensatory award for unfair dismissal will fall from £66,200 to £65,300, reflecting the decrease in the Retail Prices Index from September 2008 to September 2009. The limit on the maximum amount of a week's pay for the purposes of calculating redundancy pay or the basic award for unfair dismissal will remain at £380 until February 2011 at the earliest.

Louise Fernandes-Owen is the Professional Support Lawyer in the Employment and Pensions Group at Field Fisher Waterhouse LLP and can be contacted at louise.fernandes-owen@ffw.com 

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