Employment Update
13 June 2008
Agreement on opt out and agency workers
After a continued stalemate on amendments to the
Working Time Directive and on the proposed Temporary Agency Workers
Directive, ministers at the EU Council on Employment, Social
Policy, Health and Consumer Affairs have finally reached agreement
on both issues.
Working Time Directive
A number of amendments have been agreed in
relation to the Working Time Directive. These include the
following:
- the standard maximum limit on working hours will remain at 48
hours per week, with workers retaining the entitlement to opt
out
- a new protective cap will apply to individuals who opt out of
the 48-hour working week. This will be set at 60 hours per week,
unless member states agree otherwise
- on-call time is to be split into active and inactive on-call
time (this follows case law which examined the definition of
working time and whether it extended to workers who were on call
but were inactive or were allowed to sleep). Active on-call time
will be counted as working time
- the opt out will only apply under certain conditions (e.g. it
cannot be signed during the first month of employment and a worker
should not be victimised for not signing or withdrawing the opt
out)
Temporary Agency Workers
Directive
The following issues have been agreed in relation
to the proposed Temporary Agency Workers Directive:
- temporary agency workers should receive the same treatment as
permanent workers from day one in terms of pay and maternity leave,
unless it has been agreed collectively or at a national level to
derogate from this
- temporary agency workers should be informed about permanent
employment opportunities and there should be equal access to
collective facilities (e.g. childcare facilities)
- there should be penalties for non-compliance by temporary
agencies and end users
It should be noted that the UK has already
agreed that agency workers in the UK will be entitled to equal
treatment after 12 weeks (see our
report last week). Further detail on each Directive will be
available once formal texts are produced and agreed.
NMW Regulations
published
The draft National Minimum Wage Regulations 1999
(Amendment) Regulations 2008 have been published, increasing the
national minimum wage rates from 1 October 2008.
The adult hourly rate is due to rise from £5.52 to
£5.73. The rate for 18 to 21 year olds will also increase from
£4.60 to £4.77 while the 16 to 17 year old rate will rise from
£3.40 to £3.53.
Striking out a claim before
evidence is heard
The Employment Appeal Tribunal (EAT) has confirmed
that a Chairman (now Employment Judge) was entitled to strike out a
claim on the ground that it had no reasonable prospect of success
without formally hearing evidence, where he considered that the
case was not, in any ordinary sense of the term,
fact-sensitive.
In Croke v Leeds City Council, the
claimant was dismissed and subsequently alleged victimisation
against the Council on the basis that he had made it aware, prior
to his dismissal, that he was considering bringing a complaint
against it for discrimination. At a pre-hearing review, the
claimant failed to provide any material upon which the Tribunal
could properly conclude, as is required, that there was a causal
link between the alleged less favourable treatment and the
protected act (the claimant said the relevant protected act in this
case was the Council's knowledge that he would make a complaint of
race discrimination). The Tribunal struck out the victimisation
claim on the basis that it had no reasonable prospect of
success.
The EAT upheld the Tribunal's decision. The
Tribunal had appreciated that it had not strictly heard any
evidence. The employee had, however, provided particulars in a
document running to 10 pages which was, for practical purposes, a
witness statement setting out the account of his complaint. There
was also a lengthy debate between the employee and the Chairman in
which the latter sought to extract relevant material and the
employee did not suggest there was any other material he would have
wished to put before the Tribunal. The EAT confirmed that the
Chairman was entitled not only to conduct the hearing in a
comparatively informal matter but also to form the view that the
case was one which had no reasonable prospect of success and should
therefore be struck out.
TUPE - objecting to a
transfer
The EAT has recently confirmed that an employee
who objected to transferring to a new employer, but then agreed to
work on "secondment" for that employer, had not objected to the
transfer for the purposes of the Transfer of Undertakings
(Protection of Employment) Regulations 1981 (TUPE 1981). Although
TUPE 1981 is no longer in force, employees still have the right to
object to a transfer under TUPE 2006, so this decision remains
relevant.
In Capita Health Solutions v (1) British
Broadcasting Corporation (2) McLean, the EAT confirmed that
employees are plainly entitled to object to being transferred to
the employment of another employer and whether or not the employee
has objected will depend on the facts and circumstances of each
case. The effect of such an objection is that the employee's
contract of employment terminates and the legislation cannot be
interpreted so as to allow for such termination to post-date the
date that the undertaking transfers from the transferor to the
transferee.
In this case, therefore, it was held that the
claimant's employment transferred to the transferee on the date of
the transfer. As the claimant was prepared to work for the
transferee, albeit for a limited period, she could not, at the same
time, insist that she objected to the transfer. Interestingly, the
EAT also noted that the use of the word "secondment" did not change
matters. What happened was not secondment in its proper
sense, which connotes a temporary assignation regarded, at least,
at the outset, as being on the basis that the employee would return
to work directly for the seconding employer. It was never intended
that that would happen in this case. The transferor had,
post-transfer, no requirement for the claimant to carry out work of
the type she had carried out for them prior to the transfer. The
employee's contract therefore still transferred to the transferee
on the transfer date.
Heyday - date set for ECJ
hearing
Following our earlier reports on the claim by the
campaign group Heyday challenging UK age discrimination
legislation, it has now been reported that the first hearing in the
European Court of Justice (ECJ) relating to this claim will take
place on 2 July 2008.
Heyday will seek to challenge the mandatory
retirement age of 65 on the grounds that it is a breach of the
Equal Treatment Directive. It is likely to be the end of 2008
or the beginning of 2009 before the Advocate General issues his
opinion and we receive the ECJ's judgment.
ICO - good practice note on
transfer of employee information
The Information Commissioner's office (ICO) has
published
new guidance to help employers comply with the Data
Protection Act 1998 (DPA) when providing information about their
employees under the Transfer of Undertakings (Protection of
Employment) Regulations 2006 (TUPE 2006).
Under TUPE 2006, a transferor must provide the
transferee with specific information about the transferring
employees, known as "employee liability information". This
include the identity and age of the employees and disciplinary and
grievance records. It must be provided no later than 14 days before
the relevant transfer, unless special circumstances make this not
reasonably practicable. Failure to disclose this information may
give rise to financial penalties.
There have been concerns that this provision
breached data protection principles, since, under the DPA,
employers must ensure that employees' personal data is processed
properly. The ICO's good practice note therefore intends to clarify
what employers should do to comply with the DPA when providing
employee liability information.
The guidance includes the following
statements:
- the DPA will allow the disclosure of employee liability
information because it is required by law, but both parties must
take care to comply with data protection principles when handling
this personal information (e.g. they should ensure that the
information is accurate, up to date and secure)
- if employers receive requests for information about their
transferring workforce in addition to that required under TUPE,
they should, wherever possible, release information that is
anonymous or, at the very least, remove obvious identifiers, such
as names. Employers should only disclose this extra information
with the consent of the individuals concerned or implement
appropriate safeguards to ensure the information will not be kept
once it has been used for the proposed transaction
- in relation to whether employment records can be given to the
new employer, the former employer would not need the
employees' consent to the transfer of their personal information if
it is necessary for the purposes of the TUPE transfer and the
business needs of both parties
Guidance on CRB checks for
volunteers
The Cabinet Office has issued guidance to
help organisations that use volunteers to be clear about when they
do and do not need to carry out Criminal Records Bureau (CRB)
checks on volunteers.
The guidance aims to establish good practice in
the application of CRB checks (which are free for volunteers) and
to ensure that there is the correct balance between the need to
protect vulnerable groups and the need to take a proportionate
approach to risk management, of which CRB checks are just one
part.
Talent not tokenism
The CBI and TUC have issued a joint report,
Talent not
Tokenism, highlighting the potential rewards and business
benefits of greater diversity in the workplace. A number of
employers who have sought to achieve greater workforce diversity
feature in the report and 12 case studies provide good practice
examples on how diversity can be promoted.