Legislation
Consultation concerning three major aspects of the employment law field have recently been initiated.
The DTI has issued a further consultation paper on the implementation of statutory paternity leave and pay, which is intended to be implemented in 2009.
The scheme, which is likely to prove popular with families where the mother earns more than the father, allows mothers to pass some of their statutory maternity leave (and pay) to fathers if the mother wishes to return to work during maternity leave. The government proposes allowing fathers to self-certify that their child’s mother is returning to work early and passing maternity entitlements over to them. He will not be required to give eight weeks’ notice. It is not proposing that the father’s employer carry out any checks with the mother’s employer, although HM Revenue & Customs will carry out occasional random checks to detect and prevent fraud.
Consultation on the implementation of the scheme closes on 3 August 2007.
The government has issued a consultation document containing proposals for amendments to the law and seeking views relating to the creation of a Single Equality Act.
These proposals have been developed as a result of the Discrimination Law Review (“DLR“), which was launched by the government in 2005. Its aim was to examine the numerous pieces of domestic and European legislation that currently make up the ever-expanding body of discrimination law in the UK and to consider the opportunities for creating a clearer and more coherent legislative framework capable of improving equality substantively.
The proposals flowing from the DLR span equality law in its widest sense and cover private members’ clubs, education, positive duties of public authorities and the provision of goods and services as well as employment. In the employment field the major issues on which views are sought include:
- Whether the requirement for a comparator in direct discrimination cases should be retained
- Whether a genuine occupational requirement test should be introduced for all strands of discrimination, save disability
- Harmonising the definition of indirect discrimination
- Whether the concept of “reasonable adjustments” should be extended beyond disability discrimination
- Whether parents and carers should continue to be covered by targeted provisions rather than as part of a streamlined Act
- Whether to streamline equal pay law and sex discrimination law within the Single Equality Act
- Creating a single definition of disability discrimination
- Promoting compliance and good practice through guidance to be issued primarily through the new Commission for Equality and Human Rights
- Promoting the use of alternative dispute resolution.
The consultation period runs until 4 September 2007.
Procedural Fairness in Unfair Dismissal
In March, the DTI released a consultation, “Success at work: Resolving disputes in the workplace”, which sought views on the proposed repeal of the statutory dispute resolution procedures. As part of that consultation process, the DTI has published a “supplementary review of options for the law relating to procedural fairness in unfair dismissal”.
Assuming the dispute resolution procedures are repealed, the review sets out three options:
- Return to the position prior to the introduction of the Employment Act 2002 (Dispute Resolution) Regulations 2004. Section 98A would be repealed and the law in this area would be governed by the House of Lords’ decision in Polkey -v- AE Dayton Services. Procedural failings would ordinarily render a dismissal unfair, but a tribunal could reduce compensation in proportion to the likelihood that, had the correct procedure been followed, the employee would have been dismissed in any case.
- Section 98A would be repealed as above, but provision would be made for a tribunal to make “alternative findings reflecting the balance of procedural and substantive unfairness in the dismissal”. Under this option, a tribunal could find that a dismissal was procedurally unfair but substantively fair, and make an award of compensation to reflect this.
- The Polkey decision would be reversed, and the parts of section 98A which relate to the statutory procedures would be repealed. However, the rest of section 98A would remain, leaving procedural fairness governed by the “no difference” rule: if there is a procedural failing in a dismissal which would have otherwise been fair, and the employer can show that following the correct procedure would have made no difference to the outcome, the dismissal will be deemed fair.
The government expresses a preference for the second option, but does not offer any further details about how the proposal for “alternative findings” would operate.
Postponement of Increase in Statutory Holiday
Following consultation on proposals to increase the statutory holiday entitlement, the government has indicated that it intends to delay the full increase until April 2009. The government’s plan is to increase the entitlement to a maximum of 28 days. The increase will be carried out in two stages: the first will be an increase to a maximum of 24 days on 1 October 2007, and then the final increase to 28 days on 1 April 2009. Until the government’s change of mind, due to consideration of the cost pressures that will arise as a result of the increase, the second rise in holiday entitlement, was due to take place on 1 October 2008.
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