Upcoming law and consultations

The Department for Business, Enterprise and Regulatory Reform (BERR) is amending the Working Time Regulations to specify that the eight bank and public holidays each year are recognised in addition to an employee's holiday entitlement, thereby increasing the statutory minimum holiday entitlement for full-time workers from 20 to 28 days.

The additional leave is being phased in, with the increase from 20 to 24 days (pro rata for part-time workers) from 1 Oct 2007; the remainder of the leave will be introduced from Apr 2009.

Also, payment in lieu of the additional holiday entitlement (the additional 0.8 weeks) is permitted to continue until Apr 2009, as a temporary measure to help employers with transitional arrangements, such as recruiting and training any additional staff to cover the increased holiday entitlement.

Extension of right to request flexible working

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The Department for Business, Enterprise and Regulatory Reform (BERR) has announced (Jun 2008) that the right to request flexible working will be extended to parents of children up to the age of 16.

Currently, the law enables parents with a child under the age of six, or a disabled child under 18, to make a request for flexible working, and places a duty on employers to consider such request seriously and only reject them for good business reasons. In April 2007, the right to request flexible working was extended to carers of adults.

The government intends to launch a public consultation on the details of implementation shortly.

The Department for Innovation, Universities and Skills (DIUS) is consulting on a new legal right for workers to request time off to train.

The right would give employees a legal right to ask their employer to give them time away from their mainstream duties to undertake relevant training, which their employers would be required to seriously consider. The new right would closely follow the legal model of the current right to request flexible working, making it easier for employers to work with the new right using the procedures they already have in place to manage flexible working requests.

It is planned that the new entitlement would apply to all employees who have worked for their employer for at least 26 weeks.

The Department for Work and Pensions (DWP) published (in July 2007) its Green Paper, 'In work, better off: next steps to full employment', which set out proposals to deliver changes in the support offered to those most disadvantaged in the labour market.

Building on the responses to the Green Paper, the DWP has published 'Ready for work: full employment in our generation', which contains a raft of 50 changes to the current system of benefits and job-seeking support to be implemented over the next four years - with the bulk of the measures taking effect from 2008 and 2009.

Also, the Department for Innovation, Universities and Skills (DIUS) has published 'Ready to work, skilled for work: unlocking Britain's talent', which aims to ensure that employers have access to the skills they need to prosper, and give millions of people the chance to realise their potential and change their lives.

Key elements of the Act (which received Royal Assent in May 2007) include:
- reform of incapacity benefits by (1) introducing a new Employment and Support Allowance (ESA) to replace Incapacity Benefit and Income Support based on incapacity or disability (Regulations in force from Oct 2008), and (2) introducing a new Personal Capability Assessment alongside ESA to assess an individual's entitlement and the possible support needed to get back into the workplace;
- the requirement for people who are able to work, to attend work-focused interviews and develop, with their advisers, a plan of action to help them;
- changes to the administration of Housing Benefit (HB) with the national roll-out of Local Housing Allowance to the private rented sector, and an HB sanction for people who refuse to engage in rehabilitation following eviction for anti-social behaviour; and
- powers to improve the sharing of information between DWP and local authorities for the purpose of increasing take-up of social security benefits.

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The Department for Business, Enterprise and Regulatory Reform (BERR) consulted (to May 2007) on a range of measures to protect vulnerable agency workers, including:
- giving workers a clear right to withdraw from accommodation, transport or other services provided by an agency without suffering any detriment;
- plans to alert potential migrant workers to their rights and highlight unscrupulous practices they may fall victim to before they come to the UK; and
- making clear in guidance that driving agencies who flout the law and knowingly allow drivers to work beyond their hours can face criminal prosecution.

Amendments to the Conduct Regulations 2003 gave effect to the first item above, from 6 Apr 2008.

BERR launched two pilot projects (that will run for 2 years from Jun 2007) in Birmingham and London, to identify ways that vulnerable workers and their employers can better understand their rights and access the help, advice and information that is available.

In addition, a Vulnerable Worker Enforcement Forum was set up by BERR in Jun 2007, bringing together experts from unions, business, enforcement and advice bodies to look at the best way to protect the vulnerable in the workforce. The Forum is expected to conclude its work in Summer 2008.

Sick-note changes

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In early 2006, the Department for Work and Pensions (DWP) published a research report exploring the scope for extending responsiblity for issuing sickness certificates to healthcare professionals other than doctors.

Following inconclusive trials of alternative approaches during 2006, it appears likely that the DWP, supported by the Department of Health and the Health and Safety Executive, will propose a review of the standard sick-note, with a view to giving more information to employers.

The DWP aims to engage and support GPs and other healthcare professionals, along with employers, to increase awareness of the health benefits of work.

Most recently, the Department of Health has been talking about a culture shift from 'sick-note' to 'well-note'. An electronic version of the traditional sick-note is currently being piloted by 20 GP practices in Wales, and a report on the outcome of the pilot is due to be published at the end of 2008.

New vetting and barring scheme

Due in force from Oct 2009

A new vetting and barring scheme, under the Safeguarding Vulnerable Groups Act 2006, is due to be phased in from Autumn 2009.

The overriding aim of the scheme will be to help avoid harm, or risk of harm, to children and vulnerable adults, by preventing those who are deemed unsuitable to work with children and vulnerable adults from gaining access to them through their work. This will be done by:
- providing employers with a more effective and streamlined vetting service for potential employees; and
- barring unsuitable individuals from working, or seeking to work, with children and vulnerable adults at the earliest opportunity.

The responsibility for taking barring decisions will lie with the Independent Safeguard Authority, an independent statutory body. The application processes for vetting and barring decisions will be run by the Criminal Records Bureau (CRB).

The Department for Schools, Children and Families (DSCF) consulted (to Feb 2008) on a number of issues including: the definition of vulnerable adult; the extent of regulated activity; who is eligible to make checks of a person's ISA status; controlled activity; applying to the scheme; the phased introduction of the scheme; and referring information to the ISA. The government response to the consultation was published in May 2008.

Immigration, Asylum and Nationality Act 2006

Key provisions already in force
Remainder due in force early 2009

This Act (which received Royal Assent in Mar 2006) introduces new provisions to strengthen UK borders and prevent illegal working. It includes a new civil penalties scheme whereby employers can be fined up to £10,000 per illegal employee, and two years' imprisonment and unlimited fine for those found knowingly to use or exploit illegal workers.

Under a five-year Government review, including measures to implement the Act, worker, student and business visas and permits are being replaced by a five-tier visa system.

The five-tier, points-based scheme is being phased in, starting with Tier 1 (for highly skilled migrants, eg scientists and entrepreneurs) from 29 Feb 2008. A system of sponsorship by employers and educational institutions will ensure compliance with the immigration rules by migrants in all other tiers.

The scheme will be extended to Tiers 2 (skilled workers with a job offer) and 5 (youth mobility and temporary workers) from the third quarter of 2008, and to Tier 4 (students) from early 2009.

Simplifying immigration law

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The Border and Immigration Agency (BIA), part of the Home Office, has consulted (to Aug 2007) on a fundamental overhaul of the legal framework within which it operates. The object of the consultation paper was to begin the process of simplifying the body of different immigration laws built up over the last few decades.

The BIA has now consulted (to May 2008) on more specific proposals, as part of its programme entitled 'The path to citizenship: next steps in reforming the immigration system'.

The government aims to publish a draft Bill for pre-legislative scrutiny by the summer, and introduce a full Bill to Parliament by the end of Nov 2008.

Working Time Directive revision

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In May 2006, the European Parliament voted to abolish the right for workers to opt out of the 48-hour working week, which is currently available in the UK. However, successive Council meetings during 2006 and 2007 failed to reach agreement on this matter.

At the EU Employment Council meeting of ministers in Jun 2008, the right for UK workers to choose to work longer than 48 hours a week was secured, along with safeguards on the operation of the opt-out, and clarification of the treatment of 'on-call time'.

Agency Workers Directive

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In May 2008, the government signed a joint declaration with the CBI and TUC, agreeing to a 12-week qualifying period for agency workers to be given equal treatment in a given job.

EU agreement on the terms of the Directive, that will enable this agreement to be brought into legal effect in the United Kingdom, was given at the EU Employment Council meeting of ministers in Jun 2008.

The main points of agreement in the Directive include:
- equal treatment from day one for temporary agency workers as well as regular workers in terms of pay, maternity leave and leave;
- possibility to derogate from this through collective agreements etc at national level;
- temporary agency workers to be informed about permanent employment opportunities in the user enterprise;
- equal access to collective facilities (canteen, child care facilities, transport service);
- member states have to improve temporary agency workers' access to training and child care facilities in periods between their assignments, so as to increase their employability; and
- member states have to ensure penalties for non-compliance by temporary agencies and enterprises.

European Green Paper on Modernising Labour Law

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The European Commission has launched a broad public debate (to Mar 2007) on the need to review current labour law systems. With 4 out of 10 EU workers now on non-standard contracts or self-employed, reality is rapidly outpacing regulation in the European workplace.

In its Communication of Oct 2007, the Commission stated that it would take the necessary steps in 2008 to pursue the issues raised in the wider 'flexicurity' context.

Despite a difference of views on the extent and nature of EU action, the consultation has identified a demand for improved cooperation, more clarity, or just more and better information and analysis, in a number of areas.

The European Parliament has produced a draft report, broadly supporting the aims of the Green Paper, and stating that excessive harmonisation would be unnecessary, and a standardised definition of 'worker' across the EU would be unrealistic.

Dispute Resolution Procedures

Latest consultation closes 26 Sept 2008

The Department for Business, Enterprise and Regulatory Reform (BERR) consulted (to Jun 2007) on improvements to the workplace dispute resolution procedures. BERR also published, in response to submissions received, a supplementary review of options for the law relating to procedural unfairness in unfair dismissal. The government has published (May 2008) its response to the consultation.

Measures have been introduced in the Employment Bill, which will:
- repeal the existing statutory dispute resolution procedures and related provisions about procedural unfairness in dismissal cases;
- confer on employment tribunals discretionary powers to amend awards if parties have failed to comply with a relevant statutory code;
- make changes to the law relating to conciliation by Acas;
- amend tribunals' powers by which they may reach a determination without a hearing; and
- allow tribunals to award compensation for financial loss in certain types of monetary claim.

BERR is consulting on a range of measures relating to the dispute resolution system that require secondary legislation. These measures, together with the Employment Bill and other changes from the Dispute Resolution Review, will provide a framework for a more efficient system for dispute resolution which is easier to use and enables disputes to be resolved earlier, with less lost time, expense and stress for all parties.

The Bill (currently at First reading (Commons)) is due to receive Royal Assent in Summer 2008, but the new measures may not be in force until 2009.

Acas code of practice on dispute resolution procedures

Consultation closes 25 Jul 2008

Acas has issued a revised code of practice on discipline and grievance for public consultation. The new code will ultimately aim to encourage businesses and individuals to resolve disputes internally, saving money and time. The code has been revised to take into account the changes being made to workplace dispute resolution by the Employment Bill, currently before Parliament (see previous item), particularly the removal of the statutory dismissal and discipline procedures.

The revised code is considerably shorter than the existing code, and provides basic practical guidance to employers, employees and their representatives and sets out principles for handling disciplinary and grievance situations in the workplace.

Acas has published (Jun 2008) detailed draft, non-statutory guidance on handling discipline and grievances in the workplace, which is designed to support the code.

Worker involvement in health and safety

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The consultation by the Health and Safety Executive (to Sept 2006) set out options aimed at increasing the quality and quantity of worker involvement in health and safety risk management by voluntary initiatives or by strengthening the legal requirements for consultation with employees.

First findings from the consultation exercise were presented to the Health and Safety Commission in November 2006, and results of the consultation and proposals for a strategy were discussed by the Commission in March and June 2007.

The Commission concluded its discussion by agreeing that, without consensus, it could not recommend legislative change to Ministers. The previously agreed work to improve worker involvement, including the drafting of better guidance, has continued and is due to be discussed by the new HSE Board in Summer 2008.

Increase in national minimum wage

1 Oct 2008

With effect from 1 Oct 2008, the main hourly rate for the national minimum wage will rise from £5.52 to £5.73. The development rate for 18- to 21-year-olds will rise from £4.60 to £4.77; and for 16- and 17-year-olds from £3.40 to £3.53. In addition, the rate of the accommodation offset will increase from £30.10 to £31.22 per week.

Enforcement of national minimum wage

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The Department for Business, Enterprise and Regulatory Reform (BERR) consulted (to Aug 2007) on proposals for a simpler, clearer penalty regime for businesses that do not pay NMW, including:
- fixed penalty fines linked to the number of workers underpaid; and
- the requirement for businesses to pay interest or other cash to workers they have underpaid on top of repaying arrears, so the workforce are no longer giving 'interest-free loans' to their employers.

Provisions to strengthen the enforcement network are included in the Employment Bill  (currently at First reading (Commons)), which is due to receive Royal Assent in Summer 2008.

Draft Equality Bill

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Following on from the Discrimination Law Review, launched in Feb 2005, the Department for Communities and Local Government (DCLG) consulted (to Sept 2007) on various specific proposals for creating a clearer and more streamlined discrimination legislative framework; the consultation document set out proposals for simplifying the law, for more effective law (including the vision for a Single Equality Act), and for modernising the law.

In Jun 2008, details of the Bill to be introduced in Dec 2008 were announced, and the government will set out a timetable for further public consultation.

Amendments to additional maternity leave

Due in force for births on or after 5 Oct 2008

Draft Regulations have been laid before Parliament to amend the Maternity and Parental Leave etc Regulations 1999 and the Paternity and Adoption Leave Regulations 2002, with the aim of removing distinctions between the rights of employees on ordinary maternity leave and those of employees on additional maternity leave.

The amendments are intended to have effect in relation to an employee whose expected week of childbirth begins on or after 5 Oct 2008, an employee whose child is expected to be placed with him for adoption on or after that date or, in cases of overseas adoption, an adopter whose child enters Great Britain on or after that date.

Additional paternity leave

Due in force for births on or after 5 Apr 2010 at the earliest

The Department for Business, Enterprise and Regulatory Reform (BERR) consulted (to May 2006) on a proposal that fathers could take up to 26 weeks' additional paternity leave to care for children under the age of one. This additional leave could only be taken if the mother had chosen to return to work, and both parents would not be entitled to take leave at the same time.

BERR also consulted (to Aug 2007) on how the new rules would work in practice.

BERR has announced a year's delay (from 2009 to 2010) in implementation, to allow further time for preparations and to give employers clarity.

Pensions savings scheme

Due in force from 2012

Major reforms, including plans to reduce the regulatory requirements for smaller companies and to make it easier to set up and run a company scheme.

The Turner Report proposed an 'opt-out' pensions savings schemes for employees, with employees paying in 5% of gross pay above £5,000 (1% effectively paid using tax relief) and employers contributing 3%. Annual management costs were forecast at 0.3%.

A consultation (to Mar 2007) by the Department for Work and Pensions (DWP) invited comments on its White Paper "Personal accounts: a new way to save", which sets out the Government's proposals for a new national system of low-cost personal accounts.

The DWP has announced that the annual contribution limit will be set at £3,600, subject to uprating each year.

The Pensions Bill (currently at Committee stage (Lords)):
- proposes a duty on employers to automatically enrol jobholders into, and to contribute to, a qualifying workplace pension scheme;
- introduces the concept of personal accounts which are described as a 'simple, low-cost pension saving scheme' aimed at moderate to low earners who currently do not have access to a workplace pension scheme; and
- sets out a compliance regime for the new duties on employers.

Childcare Act 2006

Some provisions already in force
Remainder due in force Oct 2008

This Act places duties on local authorities in England to improve the outcomes for young children; to secure sufficient childcare to enable parents to work; and to provide information to parents about childcare and a wide range of services that may be of benefit to them in bringing up their children.