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Not according to Vince Cable, the Business Secretary. Rumours of reform to the employment law system have been rife amongst commentators for some time now and on 23 November 2011 the Government published its Response to the Consultation on Resolving Workplace Disputes. Over 400 responses to the consultation had been received, around 25% from individuals, 33% from businesses and their representative organisations and the remainder from trade unions, Government agencies, charities, legal representatives and others.
The Chancellor, George Osborne, announced on 3 October 2011 that the Government is to extend the qualifying period for the right to claim unfair dismissal from one to two years on 6 April 2012.
This year, in order to celebrate the Royal Wedding, the government has declared 29th April as a public holiday. Next year on 5th June 2012, Britons will be given another extra holiday to celebrate the Queen’s Diamond Jubilee.
Friday, 29th April 2011 falls between Easter Bank Holiday and May Day, two of the usual eight bank holidays in England and Wales. For this reason, many small employers are in a quandary. The holiday falls at an unfortunate time – at the end of the financial year, after half term when many parents take a break, and between existing holidays.
The question that is being asked is whether employers have to give employees the extra bank holidays off. In short, they don’t. There is no legal obligation to give staff time off work for an extra bank holiday. In fact, there is no legal obligation to give staff time off on bank holidays in any event. For a number of sectors, both public and private, this would simply not be possible. The emergency services, care homes, hospices, transport, the medical profession, broadcasting corporations and many others continue to provide round the clock services, irrespective of whether it is a holiday or not.
By law, full time employees and workers are entitled to 28 days (or 5.6 weeks) holiday per annum. It makes no difference when they are granted those days, as long as they are entitled to them.
What often makes a difference, however, to an employer’s obligations is the wording of its staff’s employment contract. If their contract states that they are entitled to say 20 days plus bank holidays then the employer must honour the contract and close down on 29th April. If, however, the contract states that the worker is entitled to say 20 days plus ‘the usual eight days’ holidays in England and Wales’ then this would not include the 29th April 2011 or 5th June 2012 because these are not ‘usual’ bank holidays. They are exceptional days which have been declared as bank holidays by the government for a one-off event.
Presuming the contract does not offer any entitlement to a bank holiday and the employer wishes to remain open. What is the employer supposed to do? The TUC has called on employers to honour the bank holiday. Its general secretary Brendan Barber stated that ‘not offering overtime will rebound on employers as they risk demoralising their workforce and damaging their reputation among customers.’ He has also referred to employers who require a worker presence on 29th April as ‘tight-fisted companies.’
But is it so simple? Are we to presume when there is a genuine business need and requirement for a continuity of service, that workers will always be bitter and resentful about coming into work on a national holiday?
Perhaps there are alternative ways of managing the situation, ones which include communication with and involvement of the workforce. It is not about ‘keeping staff chained to their desks’ as Brendan Barber is reported to have said to the BBC. The expression naturally conjures up images of a Dickensian workhouse operated to service its owners greed.
Small businesses have been affected by the recession and it may be that the holiday on 29th April is just one day too many. If this is the case an employer should explain to the workforce why will be open and that it will require staff at work. If the communication between staff and management is positive there is no reason to automatically assume that they will not understand - the success of a business ultimately affects the staff after all. There are of course ways to celebrate a national occasion or special day at work - it only takes a little imagination, flexibility and the involvement of staff. We have indeed moved on since the days of the workhouse.
The Coalition government are shortly expected to launch a consultation containing theirs plans to reform employment law. Proposals within the consultation are understood to include the introduction of an ‘issue’ fee, to be paid by Claimants when they lodge a claim with an Employment Tribunal. They may also include:
One of the most controversial and talked about changes under the Equality Act 2010 (the Act) is the provision of section 60, which operates to prevent an employer from asking questions about the health of a work applicant.
90% of the Equality Act 2010 (“the Act”) came into force on 1 October 2010 and the hyperbolic headlines followed. Duncan Bannatyne labelled the Act “lunatic legislation” in the Daily Mail (4 October 2010), and according to the Daily Express on 11 October 2010 “Harman’s Equality Act outlaws humour”, funnily enough I haven’t come across that provision in the Act.
The Government announced on 29 July 2010 that it proposes to remove the Default Retirement Age (DRA) from 6 April 2011.
The Employment Equality (Age) Regulations came into force on 1 October 2006 to prohibit discrimination in employment on the grounds of age and included the introduction of a national DRA of 65 and the prohibiting of compulsory retirement below 65 unless objectively justified.
The Government’s reasoning for the abolition of the DRA next year is demographic change and the economic and other benefits of extending working lives. People are living longer and healthier lives, and increasing numbers want to stay in the workforce beyond the age of 65. Fair enough, but why not raise the DRA instead of abolishing it? Without a DRA employers will risk unfair dismissal and age discrimination claims for forcing workers to retire. Workforce planning will be difficult and job-blocking by the more mature members of staff may become a problem. Employers may also find themselves tempted to withdraw or reduce benefits to staff across the workplace for fear of the additional cost of providing them to the over-65s.
In the words of the Confederation of British Industry’s Deputy Director General, John Cridland: “Scrapping the DRA will leave a vacuum, and raise a large number of complex legal and employment questions which the government has not yet addressed”.
Taking a more positive view was Employment Relations Minister, Edward Davey who described the abolition of the DRA as “good news for those who want to retire later, good news for their employers because older people have got such a lot to contribute, and good news for the wider economy”. Michelle Mitchell, Age UK Charity Director stated: “Everybody stands to win from scrapping forced retirement”. A nice thought, but I fail to see how the talented and entrepreneurial young ‘win’ by abolishing the DRA when they are already banging their heads against the closed doors of the labour market.
Employers have two choices:
For further information, contact Melissa Edmond, Employment Law Solicitor on 01227 763939.
On 22 June 2010, the Chancellor, George Osborne, delivered the details of the Coalition Government’s “tough but fair” emergency budget to deal with the crisis in public finances.
The Equal Pay Act 1970 came into force on 29 December 1975. Whilst it was predicted that women’s pay would swiftly move towards equalisation with men’s this has not happened. The latest figures derived from the Office of National Statistics’s Annual Survey of Hours and Earnings revealed that, as at April 2009, the gender pay gap for full time employees was 12.2 per cent, comparing median hourly earnings excluding overtime. Median hourly rates for men were £12.87 for full timers, for women full timers hourly rates were £11.39.
As we know, the General Election in May 2010 failed to deliver a majority mandate for any of the political parties leading to the creation of a Coalition Government of the Conservatives and Liberal Democrats. There are a number of areas where the new Government’s plans are not clear. However, we do now have the document: 'The Coalition: our programme for government' and the Queen’s Speech was delivered on 25 May 2010. With this in mind, and whilst we are currently very short on detail and timings, it does seems an opportune time to at least consider some possible future changes to employment law that might occur under the Coalition.
Furley Page's Employment Law team set the HR forum up to encourage experienced HR practitioners in a range of sectors to pro-actively debate, and anticipate for planning purposes, the practical implications that changes in employment law might bring. What it’s not is a mere consideration or repetition of the law. While the law forms an important backdrop to the discussion, the forum explores points of social, economic and political interest; often reaching fascinating conclusions!
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