The pace of change in employment legislation shows no signs of letting up. Since May 1997, when the Labour government came into power, four new powerful pieces of legislation have come into force.
The Employment Rights (Dispute Resolution) Act has made changes to the way in which tribunals are run in an endeavour to cope with the ever-increasing number of claims.
The new Advisory, Conciliation and Arbitration Service (Acas) arbitration scheme, created under the Act, will be launched in Greater London towards the end of this year and then extended to the rest of the UK.
The Public Interest Disclosure Act – dubbed the 'Whistleblower's Charter' – comes into force on 2 July and provides important new rights for employees who believe their employer is engaged in misdeeds.
Such misdeeds can include: committing a criminal offence; failing to comply with a legal obligation; health and safety risks; and environmental damage.
The Act will also apply if an employer deliberately attempts to cover up any of these misdeeds.
The Minister of State at the Department of Trade and Industry (DTI), Ian McCartney, said the aim is not to protect "for example, a worker who discloses that his boss smokes, drives a car or quite legitimately manufactures hazardous chemicals".
He continues: "If, however, his boss smokes in a munitions factory, that might be a different matter, as might the fact that the firm pollutes a river by discharging dangerous waste."
The Act is not intended to be a 'sneaks' charter'. It encourages employees to raise matters of concern with their employer, but provides means by which those concerns can be made public if that route is not open to the employee or if the employer fails to deal with them.
Employers need to ensure that adequate procedures are in place, which will allow an employee to raise concerns and have them dealt with appropriately, if they are to avoid external disclosures being made.
Significant protection is available to employees who make these disclosures; if they are subjected to any detriment for making disclosure, compensation will be open-ended, which if the detriment is dismissal, could be very large indeed.
The National Minimum Wage Act gave effect to a manifesto commitment of the Labour Party and provides for a minimum hourly rate of £3.60 for all workers except those aged under 22.
There are some difficult areas in the Act, which require clarification – for example what payments are to be taken into account when assessing whether an employer has complied? The Act is unclear on this and it will no doubt soon attract the attention of tribunals.
Perhaps the most controversial area of recent legislation has been the Working Time Regulations. These give effect to the EU Working Time Directive and provide new rights to workers in relation to paid holiday and rest periods as well as imposing limits on weekly hours and night work.
The case law in relation to these regulations is beginning to develop as claims, often alleging dismissal or adverse treatment as a result of refusing to opt out of the 48-hour week, start to come through.
The regulations will have an increasing impact now that the European Council has reached an agreement to extend the provisions of the Working Time Directive to provide protection to all non-mobile workers in the previously excluded sectors, including air, rail, road and sea transport.
Mobile workers in these sectors will have the protection of certain parts of the directive together with sector-specific legislation on the organisation of working time. Similar provisions are to be drafted for junior doctors.
On the domestic front the big issue is the Employment Relations Bill. Presently going through the legislative process, this is expected to receive royal assent towards the end of July. The Bill contains extensive reforms and changes to the law covering workers and trade unions, which include:
l an increase in the limit for the compensatory award in unfair dismissal cases from £12,000 to £50,000 (expected to take effect this autumn);
l a reduction in the qualifying period from two years to one year (which has been in force since 1 June);
l a new right to parental leave for both parents (which includes those who adopt);
l new rights for part-time workers;
l reform of maternity rights;
l a new legally enforceable right to recognition for trade unions; and
l new protection for striking workers.
Although the Government has said that the Employment Relations Bill represents a definitive reform of employment law, the Bill provides for at least four other sets of regulations as well as other guidance and codes of practice. These will come into force during the next 12-18 months following a period of consultation.
As well as new statutory frameworks, there have been decisions made by courts and tribunals, which are having a significant effect on the employer-employee relationship.
Successive decisions of the Court of Appeal have expanded the scope of those who will be regarded as 'employees' and have left open the possibility of further extension to cover those who, until now, would have been regarded as external contractors. Even something as basic as the concept of redundancy – which has been on the statute books since 1965 – has been reviewed and redefined.
The Appeal Court decision in Wilson v St Helens Borough Council has caused great difficulties for employers in situations covered by the Transfer of Undertakings Regulations.
Even if employees who transfer under the regulations agree to having their terms and conditions of employment changed – perhaps in return for a cash payment – to harmonise their terms with the rest of the employer's workforce, those changes are not lawful and will be regarded as void.
Perhaps even more surprisingly, 18 years after these regulations came into force, it is often still not clear what will constitute a transfer of an undertaking.
Recent employment appeal tribunal cases have given rise to considerable confusion in this area, caused largely by conflict with the approach recently adopted by the European Court.
The provisions of the Disability Discrimination Act continue to be refined by tribunals. An important Court of Appeal decision has clarified how to determine whether a disabled person has been treated less favourably and the employment appeal tribunal system has taken an expansive approach to the definition of disability, with the result that more people are likely to be protected by the Act.
Additionally, if a claim is made, procedurally tribunals seem, where there is a clear case of a disabled employee, to be looking primarily to the employer to justify his behaviour. The first government study of the Act has shown that stress-related conditions were included as some of the most common disabilities among applicants.
What else is to come? Of huge potential is the power which is to be given to the secretary of state to create regulations to extend the scope of statutory rights beyond just those who are employees.
This could extend unfair dismissal rights to agency workers and independent contractors; effectively, all but the 'genuinely self employed', as the Government calls them.
It reflects a determination on the part of the Government to prevent employers withholding employment rights from workers by artificially structuring relationships and unfairly exploiting increasing flexibility of the labour market.
We cannot forget future legislative change, which will inevitably come from Europe. In December, the Works Council Directive will become applicable to UK-based companies who have significant numbers of employees in other EU member states.
There is also a draft directive currently being negotiated between the Union of Industrial and Employers' Confederations of Europe (UNICE), and the European Trade Union Confederation (ETUC), to give those who work under fixed- term contracts the right to equality of benefits with those who work under open-ended employment relationships.
In particular, use of successive fixed-term contracts will be covered. Fixed-term contracts are an increasing feature of UK employment and will cause considerable concern for employers in those industry sectors where their use is widespread – particularly with an obligation likely to be placed on employers to provide those with fixed-term contracts the same benefits as permanent employees.
Consideration is also being given by the European Commission to a directive dealing with race discrimination. There is some doubt as to whether the necessary level of support can be achieved among member states for this, but the lobby in favour is strong.
Although the Race Relations Act has been on UK statute books for more than 20 years, the scope of any EU directive is almost certain to extend its operation.
We have seen the developments that have occurred in UK sex discrimination law as a direct result of European Court decisions in that field – there is no reason to expect that a European underpinning of our race discrimination legislation will be different. And, in the UK, the Commission for Racial Equality has put forward proposals for reform of the Race Relations Act, including extending its scope and clarifying the concepts of indirect discrimination and victimisation.
Growth of new technologies will also have an impact on employers. Tribunals are already dealing with cases of dismissals for abuse of
e-mail and the Internet in the workplace.
Issues such as bullying with 'flame mails', harassment, 'e-mail rage', defamation and breach of copyright are becoming an increasing concern, as well as the need for an employer to protect its system from viruses.
There is a draft directive currently being prepared on 'cyberlaw', which is likely to cover the employment relationship in areas such as use of the Internet at work.
David Widdowson is head of Bevan Ashford's employment department.