Employment Law Developments in 2005

20 December 2004

To bring businesses up to date and to highlight some areas of your own policies and procedures that might need a review, here is a brief overview of some of the key changes planned for 2005.

Data Protection

To assist employers to comply with the Data Protection Act 1998 (DPA), the Information Commissioner has published Codes of Practice for guidance as to good practice on the use of employees personal data. The fourth and final code to be published, “Information about Workers Health” deals with the operation of occupational health schemes, medical examinations, drug and alcohol testing and genetic testing in the workplace. Once Part 4 has been published, Parts 1 “Recruitment and Selection” dealing with job applications and pre-employment vetting, and Part 2 “Employment Records” dealing with collecting, storing, disclosing and deleting records, both published in 2002, will be revised to ensure consistency. Part 3 “Monitoring at Work” dealing with monitoring workers’ use of telephones, the internet, e-mail systems and vehicles was published in June 2003. The DPA fully comes into force in October 2007, when manual-filing systems in existence before 24 October 1998 must be fully compliant with the European Commission’s (EC) Data Protection Directive.

Road Transport (Working Time) Regulations

The regulations will come into force on 23 March 2005. They will limit the number of hours drivers in the road transport sector (self employed drivers are not covered until 2009) are allowed to work to an average 48-hour week, normally calculated over a four-month period (or extended to six months, if subject to an agreement). A maximum of 60 hours can be worked in a single week, subject to the 48-hour average not being exceeded. There is also further protection for night workers.

Working Time Update

During the year, we are likely to see further guidance from the EC (with implementation after 2005) on revisions to the EC Working Time Directive 1998. The guidance is likely to include the toughening up on the rules on opting out of the 48 hour working week, the imposition of greater record keeping requirements for employers, modified reference periods for calculating average working time from four months to a year, a maximum limit on the working week to 65 hours, a new definition of time spent “on call” and clarification on the rules on rest periods.

Information and Consultation of Employees Regulations

The regulations will come into force on 6 April 2005. They set out minimum rights for employees to be informed and consulted by their employers from the planning stage in respect of workplace issues, for example the business economic situation, employment prospects, redundancies and proposed company purchases/sales. Initially the regulations will apply to businesses with 150 or more employees. This will be extended in April 2007 to businesses with 100 or more employees and again in April 2008 to businesses with 50 or more employees. The regulations contain complicated recognition arrangements, but generally (and subject to existing recognition arrangements), consultation and information must take place with employees if at least 10% of the workforce, subject to a minimum of 15 employees request it.

TUPE Reforms

It is planned that reforms to the Transfer of Undertakings (Protection of Employment) Regulations 1981 will come into force in April (although they may be postponed until October 2005). It is currently uncertain whether these reforms will also deal with the issue of transferring occupational pension rights. However, proposed reforms do include; clarifying the position in cases of transferring labour intensive service contracting operations, for example office cleaning, catering, security guarding and refuse collection, a requirement on a transferring business to notify the transferee of transferring employment liabilities, clearer guidance on when employers can lawfully make transfer related dismissals and negotiating transfer related changes to terms and conditions of employment and introducing flexibility in relation to the transfer of an insolvent business.

Disability Discrimination

In October 2004, we saw the implementation of a number of important amendments to the Disability Discrimination Act 1995 (DDA), a new Code of Practice published by the Disability Rights Commission and further development of case law. In October 2005 we are likely to see technical changes to the definition of ‘disability’, including bringing more people diagnosed with the progressive conditions HIV, MS and cancer within the scope of the DDA.

Minimum Wage

Should economic conditions permit, the National Minimum Wage is likely to increase again on 1 October 2005. Currently, the adult rate is £4.85, the development rate is £4.10 and the new young workers rate is £3.00 per hour. The Low Pay Commission will prepare a report for the Government in February, in which it will make any appropriate recommendations for changes to the rates.

There is little doubt that the forthcoming year will be another busy year of developments in employment law. The trend is set to continue well beyond 2005 with, amongst other important developments, new laws tackling age-based discrimination being implemented on 1 October 2006.

For more information please contact Andrew Masters, Partner & Head of Employment.
 

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