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Annie Hayes



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Employment law briefing: Sex, salaries and strikes


Ranjit Dhindsa, head of employment in the Midlands office of international law firm, Reed Smith guides HR Zone members through the legislation waters providing a digestible at-a-glance guide of the latest regulations.

The 1st October 2005 will see further changes to existing employment legislation. The most significant will be in relation to sex discrimination.

The Employment Equality (Sex Discrimination) Regulations 2005 have been published in their final form. The purpose of these regulations is to bring the provisions of sex discrimination in the UK in line with the Equal Treatment Directive.

There will be a new definition of indirect discrimination, a written definition of harassment, an explicit reference to discrimination on the grounds of pregnancy and maternity leave (which do not create new rights or duties but intend to clarify the existing case law) and an eight week time limit for responding to sex discrimination and harassment questionnaires. These changes are generally being welcomed as long overdue.

NMW hike:
The next most significant change will be in relation to the National Minimum Wage (NMW). The minimum wage rates will increase from £4.85 to £5.05 for workers aged 22 and over, and the youth rate (workers aged 18-21) will increase from £4.10 to £4.25.

The rate for workers aged 16 and 17 will remain at £3.00. Whilst workers may not feel the rise is significant the CBI has provided evidence to the Low Pay Commission of the difficulties certain sectors are having in coping with successive above average earning increases. Further debate is also continuing about whether or not the benefits workers receive, in addition to basic salary, should be included when calculating the minimum wage.

The Public Interest Disclosure (Prescribed Persons) Order 1999 will be amended to include persons not previously included, remove others, make some amendments to the description of certain persons when individuals wish to whistle blow, particularly to third parties. These changes are a tidying up exercise and no doubt whistleblowing cases will continue to make headline news.

Following on from changes last year, the Employment Tribunal (Constitution Rules of Procedure) Regulations 2005 will make the use of new Employment Tribunal claim forms and response forms mandatory. This could have a significant impact on time limits, particularly if employers accidentally use the wrong form and leave no time in the 28 days limit to correct the error. Claims could be time barred.

With regard to compromise agreements, legal executives will now be able to advise on the same, which may make it easier to conclude these agreements at a much more reasonable fee.

Industrial action:
In regards to trade union and labour law, there will be changes to industrial action ballots and notices. A new code of practice on industrial action ballots and notices to employers will come into force. This will deal with requirements in respect of unions providing notice to employers in the absence of industrial action ballots.

There will also be amendments to the Employment Relations Act 2004 which will involve a change in the procedure that applies when a union merges with another union after obtaining statutory recognition. Given the fall in the number of claims before the CAC this may not be relevant to a lot of employers.

The Employment Code of Practice (Access and Unfair Practices during Recognition and De-recognition Ballots) Order 2005 will bring into force the Code of Practice of Access and Unfair Practices during Recognition and De-recognition Ballots.

There will also be some technical changes and corrections to the Tribunal rules which came into force in October last year. These changes will be of interest to practitioners primarily.

Same sex couples:
In addition employers should be aware of changes to the law on 5 December 2005 which bring into force the Civil Partnership Act 2004. This will amend the Sex Discrimination Act 1975 so that protection from discrimination on the grounds that a person is married will be extended to include those having concluded a civil partnership, otherwise known as “same sex couples”.

There will also have to be amending legislation in relation to flexible working, sexual orientation and family friendly leave including paternity, adoption and parental allowances. This area is unlikely to arise often but as with gender reassignment employers need to be aware of the specific rights such individuals have.

The remainder of the year therefore will be extremely busy but employers cannot rest on their laurels given the further significant changes in 2006 in relation to amendments to the Transfer of Undertakings (Protection of Employment) Regulations 2005 (April 2006) and Age Discrimination which is to be introduced no later than 1 October 2006.

As with most changes in the law employers should also keep an eye on case law and the decisions of the courts which will continue to refine statute further.

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Annie Hayes


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