The government has now finished its consultations with employers and business organisations, and found that the vast majority were in favour of having set dates for the introduction of employment law changes, with most preferring two such dates each year.

The idea is that this will make it easier for employers to deal with, such changes will be well known in advance, and in order to keep businesses better informed of the changes, the DTI will publish an annual statement each January (starting in January 2004) detailing forthcoming employment regulations.

The two annual dates for changes in domestic legislation will therefore be as follows:

• 6 April (when tax changes are usually brought in) and

• 1 October (the current date for the annual increase in the National Minimum Wage).

• The annual review of rates for tribunal awards will however continue to take effect on 1 February each year.

With respect to European legislation, commencement dates already set for this year will not be changed (eg the forthcoming legislation relating to discrimination on grounds of religion and sexual orientation which come into force in December 2003). However, from January 2004, the DTI will review the enforcement dates for directives where deadlines have been set already, but not implemented, "on a case-by-case basis". The eventual aim (by 2006) is to negotiate 3-year implementation schedules for EU directives, which will allow both adequate time for consultation, and can still be aligned these with the two set dates.

Under the Equal Pay Act 1970, employers must not discriminate between men and women who do the same or broadly similar work, or whose work has been rated as equivalent under a job evaluation scheme, or whose work is of "equal value" in terms of the effort, skills, knowledge and responsibility required. "Pay" here includes bonuses, redundancy pay, holidays and sickness absence, pension schemes and other benefits. Both full and part-time employees are covered by the legislation and there is no length of service requirement.

An employee who feels he/she is being unfairly treated and is contemplating bringing an Equal Pay claim must identify a comparator of the opposite sex and show that this person is receiving more pay. If the reason for the greater pay is unrelated to sex (it may be due to greater experience, additional skills, higher productivity, greater responsibility, geographic location, or market forces for example) then the employer may be able to defend this successfully.

The Employment Act 2002 introduced an Equal Pay Questionnaire, which came into effect from 6 April 2003, and are similar to the ones currently in operation for race, sex and disability claims.

An employee making an equal pay claim can submit an equal pay questionnaire to his or her employer before deciding whether to commence proceedings. The aim is to resolve disputes earlier on and the questionnaire requests key information which will help to establish whether the individual is receiving less pay, and whether the employer accepts that the people chosen as comparators by the employee do in fact carry out "like work".

If you receive an equal pay questionnaire, you have 8 weeks to answer the questions. You will be asked whether you agree that the chosen comparator's work is equal to that of the employee - and to give reasons if this is not the case. You will also be asked whether the employee has received less pay than the comparator, and provide an explanation for any difference. It is advisable to do so as fully as possible (bearing in mind any issues re confidentiality - see below) as failure to provide answers, or to send back evasive or equivocal replies may work against you - a tribunal may draw inferences from these. Your response will be admissible in evidence if the employee goes ahead with his/her claim.

Concern has been expressed about the issue of confidentiality, especially under the Data Protection Act. Under the Act, confidential information may only be disclosed in specified circumstances: ie where you have the individual's consent, or if there is a legal obligation to do so, or if there is a strong public interest requirement. Particularly in small businesses, or where senior employees are claiming parity of earnings, it is not easy to preserve others' anonymity and maintain confidentiality. However, the questionnaire does contain useful guidance on this. If you cannot fully answer any question without breaching confidentiality towards another employee, then you should give a full explanation of why an answer is not being provided, giving as much general information as you can properly provide as to whether differentials exist and the basis for them (include details of any pay scales, job grading systems, bonus schemes etc).

The new equal pay questionnaire can be viewed on: www.womenandequalityunit.gov.uk/pay/update_question.htm

In addition, the Equal Opportunities Commission has published some very useful and easy to follow advice on carrying out an equal pay audit. Such audits are recommended at regular intervals to identify any inherent gender biases, and to ensure that everyone is on the correct rate for their job, especially new staff and those who are promoted. This guidance can be accessed on: {HTTP:www.eoc.org.uk/EOCeng/dynpages/Equal_Pay2.asp} - click on "Equal Pay, Fair Pay" for the small business guide.

We know that some of you currently follow the practice of "rolling up" holiday pay with your employees' normal hourly rate, and our advice now has to be to change this!

In order to ensure compliance with the Working Time Regulations, some employers have paid a specified, separate supplement for holiday pay (normally around 8% of pay) - the idea is that when the worker takes his/her holiday, they will have already been paid for this. This practice has particularly applied in the contracting industry, or where workers do not have standard hours of work, or are on short-term contracts or casual workers.

The Scottish Court of Session has recently ruled that this does not discharge an employer's liability to pay holiday pay under the Working Time Regulations 1998 and felt that this practice is contrary to the intention of the WTR. It said that holiday pay must be paid as and when the holiday is taken (this is not specified in the WTR). It also went further and said that neither could the employers offset the supplementary payments against any holiday pay that was due. The worker could claim his/her holiday pay at the time of taking the holiday, as well as the 8% supplement that had already been paid.

The case in question was MBP Structures Ltd v Munro. The employer expressly included an 8% allowance for holiday pay in Mr Monro's hourly rate. His contract (which had been agreed with Mr Monro) clearly stated that it was his responsibility to take his full holiday entitlement each year and to set aside these payments to cover holiday funding. The court felt that this did not satisfy the requirements of the Regulations, and that payment should be made around the time of taking the leave - workers might otherwise be discouraged from taking holiday, which would conflict with the aims of the Regulations and the Working Time Directive, which are to ensure that adequate rest periods are taken.

This ruling may of course go to appeal. However, it is likely to be extremely influential. In addition, a recent EAT decision in the case of List Design Group Ltd v Catley may mean that workers will be able to bring a claim for unpaid holiday pay (as unlawful deduction of wages) dating back to the introduction of the WTR in October 1998.

So our advice would be that if you have been paying holidays in this way, we would recommend that you certainly discontinue this practice for any new casual or short-term employees you take on. Ensure anyway that all casual workers are given a proper casual agreement - there is one on the website, see: /docs/ch/casual/custom.php If you wish to go further and change your method of payment for existing employees, take advice from the helpline.

The Employment Appeals Tribunal has also carified a further point which has caused some uncertainty regarding holiday pay. It held that holiday pay should be based on contracted hours only. This is the case even if the employee frequently works (and is paid for) much longer hours than those set out in the contract. Therefore when calculating holiday pay for an employee who works, but is not contractually entitled to overtime, the overtime should NOT be included in the calculation.

With effect from 27 April 2003, Trade Union Learning Representatives became entitled to paid time off work to undertake their duties.

A "Union Learning Representative" (ULR) is a member of an independent trade union which is recognised by the employer, and who has received training from the union enabling him or her to advise fellow union members on training and learning opportunities.

He/she is entitled to paid time off to undertake training relevant to the ULR role, to provide information on training and learning opportunities to fellow union members, to arrange training, to consult with the employer and to promote the value of learning and training in the workplace. Employers are not obliged to follow the ULR's training recommendations but would be advised to work together to meet both employer and employee training needs.

The right is to a "reasonable" amount of paid time off - the DTI estimate is 5 days for the initial training and then a further 9 days per year to undertake the duties and any further training. In addition, the ULR is entitled to protection against detriment for carrying out his or her duties.

As many of our clients do not have recognised unions, we have not included all of the details here: however, anyone who wishes to know more about this would be advised to read the ACAS Code of Practice - like other Codes, compliance with this is not a legal requirement but it outlines good practice and will be taken into account by tribunals - see www.acas.org.uk/publications.pdf.CP03.pdf.

If you are applying for a work permit for a foreign employee, you will now be required to pay a flat charge of £95.00.

The address to send completed work permit applications has also changed to:

Work Permits (UK), Integrated Casework Directorate, North (Sheffield), PO Box 551, Heavens Walk, Doncaster Carr, Doncaster, South Yorks DN1 1XU.

The TUC reports that racism is still present in the workplace, but now presents itself in many different and disguised forms.

They call for the most senior managers to take responsibility for equal opportunities policies, and to ensure that these are promoted more widely, especially in smaller businesses.

Amongst the suggestions they make to bring about improvements are:

• More black and ethnic minority managers and executives should be appointed to give confidence to black workers.
• Increased transparency on issues such as promotion and pay.
• Training for managers in understanding differences in culture, tradition, religion and behaviour.
• Induction procedures should be improved to positively promote cultural and racial diversity.
• Effective, independent complaints procedures.
• Policies should be extended to deal with racist customers, not just employees.
• Greater sensitivity to cultural differences - ie time off for religious holidays, uniforms and canteens should accommodate and reflect a range of cultures etc.

The government is proposing that racist employers should be "named and shamed" - the proposal is that the names of businesses that regularly lose cases, and also those which are settled or dropped should be publicised.

Do you have appropriate insurance cover for staff working from home?

It is likely that the new right to request flexible working, which came into force on 6 April 2003, may prompt requests for employees to work from home.

If you get such a request, do be aware that as you are responsible for your employees' welfare during their working hours, your employer's liability insurance cover may be need to be extended, and you also need to consider the insurance of any equipment or materials provided. Employees should also check that their home insurance is valid for home working.

You are also reminded of your existing obligations to carry out risk and workstation assessments for employees who work from home. Interestingly, a new report claims that whilst many may request home working to alleviate the stress of travel and time constraints, in fact, homeworking may be more stressful than office-based jobs! The respondents to a survey of homeworkers showed that:

• All of those with young children found it difficult to balance home and work responsibilities, especially if they can't afford childcare.
• Traditional homeworkers have less choice and control over the work they do (which can it itself be stressful) and often have less physical space in which to do that work.
• Those who see their home and work responsibilities as equal may experience greater tension between their home and working life.
• Whilst flexibility can be a benefit, there may be a tendency to overwork as the work is constantly available.
• Some find it difficult to relax or escape work because it effectively invades their home life.

Do encourage anyone requesting a change to homeworking to consider this fully and to talk to others who do this to appreciate the reality of the situation. You may find it better to agree such changes on a temporary basis initially, with a review after 3 or 6 months, or to make a written agreement that if the arrangement doesn't work out you reserve the right to require your employee to return to office-based working.

Under the Health and Safety at Work Act, all employers have a legal responsibility to protect the health, safety and well being of their employees and workers and to take all reasonably practicable steps to do so.

If your employees are likely to be required to travel, particularly to the Far East or Canada, or you are expecting visits from employees or contracts abroad, again specifically from those areas at present, you may wish to update yourself on the most recent advice, either from: the World Health Organisation at www.who.int/csr/sars/en/ or from the Department of Health website: www.doh.gov.uk/traveladvice/emerg.htm or the medical Services Overseas website at www.mso-uk.com

The main symptoms of the SARS illness are fever, dry cough and breathing difficulties or shortness of breath. The following may also occur: headache, muscular stiffness, confusion, rash, diarrhoea.

Precautionary steps you may wish to consider include postponing any non-essential travel to affected areas, conducting such business by telephone or video link, and checking the fine print of travel insurance of those who absolutely must travel to ensure cover.

If your employees choose, in a personal capacity, to travel to those areas notwithstanding advice telling them not to, depending on the advice available currently, it may be advisable to require them to remain at home for a minimum period of 10 days after their return to ensure that no risk is posed to other employees upon that person's return to the workplace. Consider whether they could usefully work from home during this period.

The HSE has asked employers to take extra care when assessing the risk from working in confined spaces. This follows four recent deaths, three of which related to oxygen deficient atmospheres and the other to the use of a highly flammable liquid. It is thought that the deaths occurred soon after entry to the confined space. In another incident painters were overcome by paint fumes while working in a confined space.

Remember the following hazards when considering confined space work:

• oxygen deficient atmospheres
• flammable substances and oxygen enrichment
• toxic gases, fumes or vapour
• the entry of harmful liquids
• the flow of solid materials such as grain.

When your employees turn up for work each morning they may not have considered that the person sat next to them in the office, or standing on the production line, or even the person responsible for the latest e-mail in their inbox may be a worker, not a fellow employee. However, what is the actual relationship between such workers and your business and what employment rights do they have? They could very well be doing the same or similar work to your employees but their contractual relationship with the business could be quite different. This can, and does have an impact on the rights they have through employment legislation.

We examine below some of the key issues you, as employers, need to consider when you enter into agreements with workers.

Employed workers

A useful place to start is to establish the difference between workers who are employed and those who are self-employed, which can be determined through the agreement entered into by the parties. A contract of employment is quite different from a contract to provide services.

In general you have an employee if you:

• have a duty to provide work to them (or pay them even if there is no work to be done) and they personally have a duty to perform this work (ie they cannot get someone else to do it)
• control how it is done. This may involve directions on how to do the work but in the case of highly skilled employees is more likely to cover whether the contract stipulates hours of work, paid holiday, disciplinary procedure etc.
• supply resources, tools, equipment to do the work
• pay tax and national insurance on the employee's behalf

A person is more likely to be self-employed if he or she:

• can work for more than one employer at the same time doing the same or similar work
• has the autonomy to decide what work to accept or reject
• makes his/her own provision for sickness and holiday absence
• pays his/her own tax and national insurance
• takes a degree of financial risk and responsibility
• provides his/her own equipment.

The distinction is important because an employee will benefit from all the rights during employment that have evolved through the terms of the contract, Acts of Parliament, EU legislation and case law. For more details of employee rights, see our website: /docs/legal/employmentrights.html

A non-employee will only benefit from some of these - however, they may have more protection than you think! Workers are protected under the Working Time Regulations, the National Minimum Wage Act, the Public Interest Disclosure Act, and the Employment Rights Act 1999 (including for example the right to be accompanied at a disciplinary or grievance hearing). The Part Time Workers Regulations applies to all workers. Such workers are also protected against discrimination on grounds of sex, race or disability and have the right to be provided with a safe place and safe system of work. Both employees and non-employees are classed as "workers" and where the legislation applies to them, a non-employee can pursue a claim through Employment Tribunals.

Agency Workers

The status of agency workers adds to the confusion for many employers. Whilst they may occupy your workplace, their employment contract is usually with a temporary work agency. The attraction for employers is that agencies can provide staff with specific skills at relatively short notice; ideal if you want cover for absence or busy periods. The host organisation still has obligations ie to provide a safe place or system of work, but issues such as tax, NI, rate of pay, holiday pay are the responsibility of the agency. The host organisation will normally just pay a fee at an agreed rate.

The situation is likely to be more complicated if the agency workers are used on a longer-term basis. In March 2002 the European Commission proposed a draft Directive concerning the rights of temporary and agency staff. The aim is to introduce a right to no less favourable treatment to a comparable worker once they have been employed for 6 weeks or more with one organisation. In particular the Directive covers pay, breaks, rest periods and night work. When the directive is adopted, it will need to be adopted in the UK within 3 years.

But even without the directive, difficulties can arise currently where agency workers are retained for long periods, say for a number of years. A recent Court of Appeal hearing involved a worker who found work through an agency and was told after five years that he was no longer needed. He claimed redundancy pay, breach of contract and also unfair dismissal and the whole issue of who was the employer came under the spotlight. The matter was compounded by the fact that there was very little documentation relating to any kind of relationship. So the Court of Appeal noted that the relationship should be examined to establish whether there was an 'implied' contract. They stated that while a person cannot become an employee by reason of the duration of the period they have worked, dealings between the parties over a period of years, as opposed to weeks or months, are capable of generating an implied contractual relationship. This case was referred back to tribunal to determine whether this was the case.

The message to employers is that if you retain agency workers for a number of years there is a risk that they could actually become employees. This means they would have the same statutory rights, which in the above case would be the right to a redundancy payment and possibly an award for breach of contract and unfair dismissal.

Part-time workers

The Part-time Workers (prevention of Less Favourable Treatment) Regulations were introduced to ensure that part-time workers received equitable treatment to comparable full-timers. In essence this means they should:

• receive the same rates of pay
• receive pro rata holiday entitlement
• have access to contractual sick pay and maternity pay and pension schemes
• have access to contractual maternity and parental leave and any career break schemes
• not be excluded from training just because they work part-time
• not be treated less favourably in criteria selecting workers for redundancy

If part-time workers believe the above rights have been infringed, they have a further right to request a written statement from the employer, within 21 days, explaining reasons for the treatment.

The Part Time Workers Regulations provide additional protection for both workers who are employees and those who are non-employees. For employed staff this essentially covers unfair dismissal and selection for redundancy where the main reason for dismissal is that:

• they exercised or sought to enforce rights under the regulations, refused to forgo them or alleged the employer had infringed them; or
• they gave evidence or information in connection with the proceedings brought by an employee under the regulations; or
• the employer believed the employee intended to do any of these things.

For non-employees, if their contract is terminated for any of the above reasons they also have recourse to an Employment Tribunal on the grounds that they had received detrimental treatment ie an agency worker giving evidence to support an employee. Compensation awarded is on the same basis as unfair dismissal.

For further details regarding part-time employees, see /docs/legal/parttimers.html

Fixed Term Workers

The Regulations define fixed-term contracts as contracts made for a specific term and contracts which terminate on the completion of a task or the occurrence/non-occurrence of a specified event.

Since October last year, fixed term workers now have a right to no less favourable treatment than a comparable permanent employee with regard to terms and conditions of employment. The rights extend to being informed of suitable permanent vacancies in the organisation.

Fixed term contracts can be renewed and if there are a series of renewals that effectively mean employment is longer than 4 years then the contract will be treated as if it were a permanent contract. The same is true of a contract that is fixed term for 4 years or more.

Irrespective of the length of service, when a fixed term contract ends, it is deemed to be a dismissal and if the employee has more than a year's service they may claim unfair dismissal if they believe the contract was ended without a fair reason and/or the employer did not follow a fair process.

There are some excluded categories of worker: apprentices, employees on certain Government training schemes, students on occupational placements as a part of a higher educational programme and agency workers are excluded from the Regulations. For further details regarding fixed-term contracts, see /docs/legal/fixedterm.html Our website also contains a contract for fixed-term workers, see /docs/ch/fixedterm/custom.php

Casual Workers

Some employers meet their staffing requirements through the use of casual workers. These are workers who are only used on an occasional basis and may, like agency workers, provide cover at short notice or during busy periods. One of the advantages to this arrangement is that there are no agency fees to pay, although you may need a significant bank of casual workers in order to have access to individuals who are readily available for work.

Although casual employees are protected by employment legislation in many areas, there are limitations because often legislation cover is linked to continuous periods of service. Employers should take care to ensure casual contracts of employment make a distinction that each period of work is regarded as separate and where there is no work this is not regarded as a temporary cessation.

We would advise anyone using casual workers to ensure that they are issued with a specific casual agreement, which clearly identifies the nature of the relationship and does not afford them employment rights. A casual agreement can be found on our website: see /docs/legal/parttimers.html

If employers are looking for periods of work that are greater than a few days or weeks then other arrangements, such as fixed term contracts, may be more appropriate. Take particular care with casual workers that you don't begin the arrangement properly and then allow this to drift into a regular pattern of work, whereby the nature of the agreement changes into that of an employee/employer one without you realising. Monitor the use of casual employees to ensure that where possible you don't use them for more than 10 weeks, and ensure that sufficient breaks are given to break the continuity of their employment.

Summary

It is clear that there are numerous types of worker relationships! For the employer it is important to choose the appropriate type of arrangement for your business needs and to be aware of the implications for workers rights, even when workers are non-employees.

If you treat individuals as self-employed and they are later found to be employees you will inherit a number of obligations, which may include redundancy payments, holiday pay, sick pay, unfair dismissal claims etc, and also the possibility of having to pay NI and tax which should have been deducted through PAYE from the employee's earnings.

We would also advise that you regularly review the situation to ensure that these arrangements do not develop into a different relationship by default, which was never intended.

A detailed analysis of almost 3,000 job applicants found that more than half contained lies or inaccuracies!

These ranged from gaps in employment to false qualifications and fraud committed against previous employers. Worryingly, this is a trend which also seems to be increasing - from 54% in the last quarter of 2001 to 62% of applications in the last quarter of 2002.

Amongst the worst offenders were the following:

• Women in their late twenties and men in their late thirties
• IT contractors - particularly with undeclared directorships

What always alarms us is how few employers take up proper references and also how few fail to check qualifications that are essential for the job. These are two easy ways of verifying factual information on the application form - use our templates on the website /docs/lf/reference/index.htmlto take up references, and also ask your applicant to provide photocopies of educational or professional qualifications which are essential for the job, (including driving licences where applicable).

A recent US survey showed than more than a quarter of workers believed meetings to be their biggest time waster. Unnecessary interruptions came a close second.

The report suggested that the following might be potential time-wasting activities:

• meetings without a leader. If no-one has reponsibility for keeping to the agenda, this can easily go into overtime.
• lack of objectives. What is the purpose of the meeting?
• too many participants. Whose participation is necessary? Consider carefully whether to go if you are invited out of courtesy rather than needing to be there.
• regularly scheduled meetings - these can lose their value over time - consider whether these routine meetings are still necessary/useful.

Research from the Third Age Employment Network (TAEN), reported that

• 30% of men aged over 50 are out of work
• 70% between 60 and 64 are out of work
• only 50% of unqualified men over 50 are working.

Although many of those between 50-65 have chosen not to work, discrimination prevents many of those who do want to work from doing so.

With 30% of the working population now aged over 50, and this figure set to rise to 40% by 2020, TAEN said that Britain could not afford to ignore the barriers to employment facing this group.