In general, the Department for Business, Enterprise and Regulatory Reform (previously the Department for Trade and Industry) introduces legislative changes twice a year - April and October. The idea is to make it easier for employers (and employees) to keep abreast of the changes. The following are effective from October 2007.

We will publicise the changes that become effective in April 2008 in the March 2008 edition of HReSource.

OCTOBER 2007

Employment Equality (Sexual Orientation) (Religion or Belief) (Amendment) Regulations 2007
Effective 14 September 2007

These amended regulations make it unlawful for training providers to discriminate in the arrangements they make "for the purpose of determining to whom [they] should offer training."

National Minimum Wage Regulations 1999 (Amendment) Regulations 2007
Effective 1 October 2007

The adult rate of the NMW will go up from £5.35 to £5.52 per hour and the development rate (paid to workers aged between 18 and 21) from £4.45 to £4.60 per hour. The rate for workers aged 16 to 17 years will increase from £3.30 to £3.40.

The regulations have also increased the daily value of the accommodation amount from £4.15 to £4.30 which is applicable to employers who provide workers with living accommodation.

Holiday entitlement increase
Effective 1 October 2007

The statutory minimum annual leave entitlement increases from 1 October 2007 to 24 days for someone who works a five-day week (with a further increase to 28 days from 1 October 2008).

Employment Equality (Sex Discrimination) Regulations 2005 - amendments
Effective 1 October 2007

The Equal Opportunities Commission brought judicial review proceedings against the Government in relation to some of the provisions of the Employment Equality (Sex Discrimination) Regulations 2005. These amended the Sex Discrimination Act 1975 in order to implement the Equal Treatment (Amendment) Directive.

The court said the government had to make some amendments on pregnancy and maternity leave discrimination and harassment. It has now confirmed that amending regulations will come into force on 1 October 2007 to implement the court's ruling.

Flexible Working (Eligibility, Complaints and Remedies) (Amendment) (No 2) Regulations 2007
Effective 1 October 2007

These regulations amend the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 so that the definition of "adopter" is extended to include people adopting a child if the child has not been placed with the adopters by a UK adoption agency.

In addition, the regulations add a number of people (such as private foster carer, and the spouse, partner and civil partner of a private foster carer), to the list of people entitled to request a contract variation to care for a child.

Data Protection Act 1998
Effective 24 October 2007

Although the Data Protection Act came into force many years ago, data held in manual filing systems was exempt, but from 24 October this year that exemption no longer applies.

Commission for Equality and Human Rights
Effective October 2007

The Commission for Equality and Human Rights comes into being sometime at the beginning of October. It is the result of a merger of the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission. It also takes on responsibility for discrimination on grounds of age, religion or belief and sexual orientation, and as its name suggests, will be responsible for promoting human rights.

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Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 says that employers who intend to make 20 or more employees redundant within 90 days must consult their trade union representatives. In Optare Group v TGWU, the Employment Appeal Tribunal (EAT) said that the collective consultation provisions were triggered, even if the 20 redundant employees included volunteers.

What happened?

In March 2006 the company decided to make redundancies at its Leeds site and asked for volunteers, but only three came forward. The company then made another 17 compulsorily redundant. The company said that the statutory consultation provisions were not triggered as the three volunteers should not be included. The union disagreed.

The tribunal agreed with the union. It said that the fact that the three men had volunteered to be made redundant was irrelevant. They would not have left had the company not asked for volunteers to come forward.

The EAT decided that the tribunal had focused on the correct issue in the case, which was to identify the cause of the termination of the volunteers' employment. It concluded that they had volunteered to be made redundant as part of the redundancy exercise, as opposed to agreeing to "a consensual termination of their employment which might have a knock on effect on the redundancy exercise."

The fact that one of the men might have left, "even in the absence of a redundancy situation, is, in our judgment, irrelevant. It would have been quite different had there been evidence that he was anxious to leave and had expressed this wish independently of, or prior to, a redundancy situation arising. That would have provided a potential basis for concluding that the eventual termination was consensual rather than [Mr Townend] volunteering to be dismissed. But that was not the case, nor was there any evidence of that."

The tribunal had therefore been right to conclude that there was no evidence that any of the men would have asked to leave if the company had not announced its redundancy package, and should be included in the overall numbers.

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Compromise agreements are often used to resolve disputes between employers and employees on termination of a contract. In these circumstances, employers may require the employee to provide a "warranty", but what happens if it turns out to be false? In Collidge v Freeport the High Court said that the employer was released from the obligation to pay compensation money when the employee’s warranty turned out to be meaningless.

What happened?

Having decided to resign, Mr Collidge, the chief executive of Freeport, agreed to accept almost half a million pounds in full and final settlement of his claims. The agreement also contained a clause which stated that the company would only pay up if Mr Collidge gave a warranty that he was not aware of anything at the date of signing that might constitute a breach of his contract of employment. Otherwise the company would have the right to dismiss him summarily.

Just before the company was due to pay out, it started investigating allegations of gross misconduct (which would represent a breach of the warranty) entitling Freeport to dismiss Mr Collidge immediately. It therefore refused to pay up and Mr Collidge brought proceedings in the High Court saying that the company was in breach of the agreement.

The High Court held that as the warranty in general was preceded by the words: "subject to and conditional upon the terms set out below" and clause 7 in particular by the words that "you warrant as a strict condition of this agreement...", that it was clear that the warranty was a pre-condition of the agreement.

It followed therefore that if the warranty was untrue, the company did not have to pay out, but this did not mean it was repudiating the entire agreement.

The court then went on to look in detail at the allegations made against Mr Collidge to ascertain if there were circumstances at the date the agreement was signed that would have entitled the company to dismiss him summarily.

The judge found that, among other things, Mr Collidge had wrongfully removed equipment from company premises, that he had misused a company credit card, used a company driver for private work and charged the company for materials which he bought for renovation work on his French home.

The court concluded that these facts would have justified summary dismissal, and that at the time Mr Collidge had given the warranty in clause 7(b), he was aware of that. As the court had already decided that payment of the settlement money was conditional on the validity of the warranty, it followed that the company was not obliged to pay up.

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Based directly on the experience of their members, the Employers Forum on Age (EFA) has now produced a document called "The end of the line for retirement ages."

While admitting that it was a mistake to argue for a mandatory retirement age at 65, the EFA accepts that it was the "deal maker for many employers in the negotiations over Age Regulations when they were introduced in October 2006."

Instead, the EFA says it was wrong to impose a retirement age and to force people out of work irrespective of their ability. "Alongside the root and branch review of all other employment policies required prior to the introduction of age laws, employers should have addressed the fundamental question of fixed retirement ages in the light of changing social and economic forces. After all how can you say you don’t discriminate on age if you maintain the right to force people to leave just because they are 65?"

To download a copy of the report, click here

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