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What Can We Expect in the Employment Law World in 2010?

In a year that we face a general election and prospect of a change of government, what is on the Employment Law Agenda?   Andrew Firman guides us through.

First cab off the rank effective on New Year’s Day was the revised ACAS Code of Practice on time off for trade union duties and activities.  It replaced the 2003 code and gives employers guidance on the provision of cover when employees take time off, payment for it, training and provision of e-learning, duties of line managers and union reps in ensuring time off arrangements are meaningful and access to facilities and use of e-communication technology.
Find the Code here: http://www.acas.org.uk/CHttpHandler.ashx?id=1128

By contrast, on 1st February when we expect the usual increase in limits we will not this year see a rise in the amount of a week’s pay for the purposes of calculating things like statutory redundancy pay: it rose to £380 last October and there it is expected to stay until February 2011.   We will see though the drop in RPI filtering through to the limit on the compensatory award for unfair dismissal:  it changes from £66,200 to £65,300.

Looking at pending legislation, we have the Equality Bill making its way through Parliament.   The Act which emerges will consolidate the nine major pieces of discrimination legislation and around 100 statutory instruments currently in force, not to mention the 2,500+ pages of guidance and statutory codes of practice.   As well as harmonising existing legislation, it will update and extend existing provisions.  Royal assent is expected in the spring, with the main provisions of the Act which relate to employment and services and public functions coming into force in October of this year.  Other parts will be delayed until spring 2011 and beyond.    This is subject to any changes which might be wrought by a new Conservative government.

Headlines to the main changes are:

•    A single objective "justification" test to replace different tests currently in use for employers/service providers, which should be a higher  threshold than the present test making it more difficult for employers to justify less favourable treatment
•      New ways to claim disability discrimination
•      It will be easier to claim reasonable adjustments for service providers
•      Direct discrimination or harassment based on association or perception will be unlawful.
•      Public bodies will be subject to a single equality duty.
•      Claims for discrimination on two combined grounds will be allowed e.g. for being a disabled woman.

Due to come into force on 6 April 2010, is the fit note system.   It will provide for a new medical statement to be used by GPs. The statement will list common changes which could be made to an employee's work environment or job role to help facilitate a return to work. Where a doctor considers another option is more appropriate, he or she will have the opportunity to state this in the comments box.

A ‘fit for work’ option had been proposed but this has been withdrawn as it has been recognised that doctors do not have the appropriate knowledge about an individual's role and the risks involved to be able to assess this.

There will be an option for the GP to indicate 'you may be fit for work taking account of the following advice'. Again, this is an acknowledgment that it is not the doctor, but the employer, in consultation with their employee, who is best placed to make a decision about whether they can accommodate any changes to facilitate a return to work.

The maximum duration a medical statement can be issued for will be reduced from six to three months during the first six months of a health condition.

If an employer is not able to facilitate a change or an adjustment, a revised statement is not necessary; the existing statement is evidence that an individual has a health condition preventing him or her carrying out the current role.

Specific guidance for individuals, employers and healthcare professionals is expected to be available shortly.

Finally, last year's decision in R (On the application of Age UK) –v- Secretary of State for Business, Innovation and Skills upheld the UK's default retirement age (DRA) of 65.  It looked at DRA at the time that the challenge to the latest regulations enacting it (in 2006) was started.   The court indicated, however, that had the same DRA been introduced in 2009, it would not have been found to be a proportionate means of achieving a legitimate social policy aim such as securing the integrity of the labour market and its short term competitiveness.   The government had already announced by the time of the judgment that it would bring forward to this year a review of the DRA and the judge indicated that he might have reached a different conclusion if that announcement had not already been made.   The government's major research project surveying employer's policies, practices and preferences relating to age will close for submissions on 1 February and we must wait to see what ensues from there.

Andrew Firman
andrewfirman@cartercamerons.com
Andrew Firman leads the Employment team at Carter Lemon Camerons LLP