Sex discrimination: following a case brought in the High Court by the Equal Opportunities Commission (now part of the Commission for Equality and Human Rights) in March of this year, the government was found not to have fully implemented the EU Equal Treatment Directive, which is designed to protect women from sexual harassment and discrimination during pregnancy. The government was therefore ordered to amend the Sex Discrimination Act 1975 (which was itself amended by the Employment Equality (Sex Discrimination) Regulations 2005). The changes were due to come into force on 1 October 2007 but were postponed to allow more work on the regulations. No new implementation date has yet been published.

Statutory Maternity Pay, Maternity Allowance and Statutory Adoption Pay: the planned increase to the period during which these are paid (from 39 weeks to 52 weeks) has been delayed. The change will now take place for babies due on or after 1 April 2010, or children to be adopted on or after this date. HMRC has also confirmed that the plans to introduce Additional Paternity Leave and Pay will not be introduced from April 2009, neither are they planning for an October 2009 implementation; it should therefore be assumed that this will be timed to correspond with the increase in maternity and adoption pay. A further change to maternity: a recent ruling of the High Court means that the government is obliged to change our current legislation to remove the distinction between entitlement to non-pay benefits during ordinary maternity leave and during additional maternity leave. No timetable has yet been announced for the latter change.

Centralised vetting system: the centralised vetting system for people working with children and vulnerable adults will now come into force in a phased rollout starting in autumn 2008. The Safeguarding Vulnerable Groups Act, which received Royal Assent in November 2006, will introduce a centralised vetting system for people banned from working with children and vulnerable adults. Employers will be able to make checks online, with information updated straight away when any individual is added to the list. Employers will be informed where possible if an individual becomes barred. There will be fines of up to £5,000 for employers that knowingly employ individuals on the list or fail to make the relevant checks. The Act can be viewed on www.opsi.gov.uk/ACTS/acts2006/60047--h.htm

The Employment Tribunals Act 1996 is amended with effect from 1 December 2007, so that employment tribunal chairmen will now be called Employment Judges.

Following a ruling by the Court of Appeal in Commissioners for HMRC v Thorn Baker Limited and others, the HMRC advised that SSP is not payable to agency workers whose contract is for a specified period of three months or less.

Prior to the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, all workers on contracts of less than 3 months were excluded from receiving SSP. The regulations introduced protection for all workers on short-term contracts, and therefore entitled them to SSP, but they specifically exclude agency workers. This loophole is now to be closed so that agency workers with contracts of less than three months will be entitled to statutory sick pay. We are not yet aware of an implementation date for this.

Meanwhile, a Private Member's Bill to give agency workers equal rights at work has had its second reading in the House of Commons. Whilst part-time and fixed-term contract workers enjoy the same employment rights as permanent staff, agency workers do not have the same protection, and may currently be hired on much lower hourly rates and on far worse terms and conditions to do exactly the same job as directly employed staff. Agency staff may therefore miss out on many benefits such as overtime rates, commission, sickness and maternity benefits and their employment insecurity has significant implications for their financial position - including the inability to obtain a mortgage.

Not strictly speaking employment law, but of relevance to many of our clients anyway!

The Companies Act 2006, which received Royal Assent in November last year, introduces sweeping changes to simplify and improve company law. The aim of the new Act is to make it easier to understand, more user-friendly and more flexible - especially for small businesses. The Act has over 1,300 sections and 16 schedules and according to the CIPD is the largest single piece of legislation in British legal history - we therefore do not intend to cover all of this here!

However, some of the provisions (which are introduced in phases over a two year period) which came into effect on 1 October 2007 do relate to employment and we therefore mention those.

As from Monday 1 October there is a statutory statement of directors' general duties to the company - these apply equally to public and private companies, and clarify the existing case law based rules. There are seven general statutory duties which directors must act in accordance with and comply with:

• to act within the powers set out in the company's memorandum of association
• to promote the success of the company. In doing so, the director must have regard (among other matters) to:
  • the likely consequences of any decision in the long term.
  • the interests of the company's employees.
  • the need to foster the company's business relationships with suppliers, customers and others.
  • the impact of the company's operations on the community and the environment.
  • the desirability of the company maintaining a reputation for high standards of business conduct.
  • the need to act fairly as between the members of the company
• to exercise independent judgement
• to exercise reasonable care, skill and diligence
• *to avoid conflicts of interest
• *not to accept benefits from third parties
• *to declare interest in proposed transactions or arrangements with the company.

* These latter duties will come into force on 1 October 2008.

Companies should

• ensure that any directors' and officers' insurance is sufficient to cover the new potential liabilities and also the possible cost of dealing with and defending derivative claims (these are claims brought against a director on behalf of the company).
• ensure that their directors are aware of the new duties and act accordingly - this can be done, for example, by Boards receiving a briefing on the new duties, which should also be provided to all new directors on their appointment.
• consider whether your directors' service agreements need reviewing in line with this (we have updated our template Director's Service Agreement to include the statutory duties). It is also worth reviewing any mention of directors in your existing employment policies in areas such as confidentiality, outside work, conflicts of interest, personal relationships, ethics, compliance and corporate responsibility to take into account the new statutory duties.

As from 6 April 2008, private companies will not be required to have a company secretary and as from October 2008, the minimum age for a director will be 16 (any directors under 16 will automatically cease to be a director) and all companies must have one natural person as a director - ie they cannot have all corporate directors. (The maximum age for directors of PLCs, which was 70, was removed from 6th April 2007.)

As from 1 October 2008, directors will automatically have the option of filing a service address on the public record (rather than their private home address). This will help particularly to protect those concerned in controversial work such as animal testing and commercial activities detrimental to the environment. (Note that any existing addresses will still appear on the Companies House register of companies.)

The full commencement timetable can be found at: www.gnn.gov.uk/Content/Detail.asp?ReleaseID=267665&NewsAreaID=2

A copy of the Companies Act 2006 is available from the Office of Public Sector Information www.opsi.gov.uk/acts/acts2006a.htm, or from the Companies Act publications page of the Companies House website.

Further details are also on the Companies House website: www.companieshouse.gov.uk/companiesAct/faq.shtml

A number of new surveys have revealed that employers are still not abiding by the age discrimination laws, which came into force just over a year ago in October 2006.

The Employers Forum on Age found that 59 per cent of the employees it surveyed claimed to have witnessed some form of ageist behaviour in the workplace during the past year. They report:

• 30 per cent of respondents were aware of an older person getting paid more than a younger person for doing the same job
• 31 per cent had witnessed people being managed differently depending on their age
• 27 per cent were aware of employers hiring people of a similar age to the rest of the workforce to ensure they fitted in.

Research by Thomas Eggar solicitors found that 39% of their respondents felt that the regulations had not changed the way UK businesses are working. Separate research by Eversheds solicitors found that three-quarters of the HR professionals they surveyed said that the new laws have not reduced discrimination and there has been little change to stereotypical attitudes. Recruitment and retirement were the areas in which they felt most exposed, and they reported that

• 35% of employers still ask for a minimum period of experience
• 42% of employers continue to offer service-related benefits with a qualification period in excess of five years.

And it would seem that our compulsory retirement age is more likely to continue. The lobbying group, Heyday, has been campaigning against this, but is likely to find its job harder following a Spanish case which went to the European Court of Justice (Palacios v Cortefiel Servicios SA). The ECJ decided that European equal treatment legislation does not overrule national laws allowing compulsory retirement if the national legislation is a "proportionate means of achieving a legitimate aim". The Spanish government had introduced the compulsory retirement law at a time of high unemployment as part of a national policy to promote better access to employment - basically it was felt that older workers should move aside to make room for the young. The ECJ thought that the promotion of full employment was a legitimate aim.

There is no guarantee that the outcome of the UK case will be the same as the Spanish one, and in order to defend its own position, the UK government will have to be able to show that our law is similarly justified. Our retirement age was intended to meet the concerns of employers in relation to workforce planning and avoiding an adverse impact on the provision of occupational pensions and other work-related benefits. One aspect of 'workforce planning' was to avoid the blocking of jobs. However, in contrast to the approach of the Spanish government, the main concern in the UK appears to have been with enabling organisations to manage their businesses effectively rather than deal with the problem of high unemployment.

A decision in the Heyday case is not expected until the end of 2008. In the meantime, the CBI reports that almost three-quarters of employee requests to continue working beyond retirement age have been granted - so maybe this aspect of the age regulations is not such a big issue after all.

New guidance booklets explain the National Minimum Wage (NMW) rules for employers and workers in the hotel sector. They include examples covering the provision of clothing, accommodation and meals, the payment of tips, and payment by output, eg by the number of rooms cleaned.

The booklets also provide a number of common scenarios in the hotel sector to help employers and workers determine whether the NMW rules apply.

For further information see:

The national minimum wage and hotel sector: a guide for workers www.berr.gov.uk/files/file41546.pdf and

The national minimum wage and the hotel sector: a guide for employers www.berr.gov.uk/files/file41467.pdf

There are lots this month!

Firstly, redundancies and collective consultation

A huge change in the requirements for collective consultation! Until this case, UK courts have consistently held that there is no obligation for an employer to consult over the reason for redundancies - but instead could concentrate on addressing the consequences of the proposals, even though this may limit the scope for consulting about ways of avoiding the redundancies. In UK Coal Mining Ltd v (1) National Union of Mineworkers and (2) The British Association of Colliery Management the EAT decided that in the context of a site closure where redundancies were likely to result, the employer had a duty to consult over the reason for making redundancies in the first place, as well as the fact of the redundancies themselves.

An employer who would previously have presented the decision to close a site as a 'fait accompli' and proceeded to then consult about the potential dismissals arising from the closure will now have to start consultation much earlier - ie at the stage of proposing to close the site, since at this stage, the employer will already be proposing redundancies. Full consultation should include consultation about the business and economic reasons for the proposed redundancies. Consideration should be given to preventing the leak of commercially sensitive information, and employers should bear in mind that this extension to the consultation duty may result in an extension to the period of consultation.

This decision - which will be applied to future similar cases - will bring us closer in line with our European neighbours, where worker representatives are involved in consultation about the reasons for redundancies and closures.

Constructive dismissal and grievance procedures

It's encouraging for us lesser mortals to note that sometimes the unions, as employers, also get it wrong! In GMB Union v Brown, Ms Brown had a grievance against her line manager, a regional secretary of the GMB, largely as a result of the breakdown of their working relationship. She wanted someone other than her line manager to deal with the grievance, as she was suffering from stress. Her manager refused to vary the contractual grievance procedure, which provided he should hear the grievance first, resulting in months of argument, stress absence and Ms Brown's eventual resignation.

The tribunal's decision, which was upheld by the EAT, was that the GMB's refusal to depart from the grievance procedure amounted to a breach of trust and confidence - and thus Ms Brown's constructive dismissal claim succeeded.

So - in cases where the grievance is against the manager him/herself, don't stick rigidly to your procedure but allow for the matter to be resolved using other parties if possible.

Dismissals - investigations, procedure and timescales

Some useful clarification regarding disciplinary investigations:

The EAT (in Corus UK Ltd v Mainwaring) has said that:

• an employer is under no obligation to take a statement from a person who 'tips-off' the employer about the issue - in this case, possible malingering, if the employer then relies on medical/video evidence (rather than the original statement) when dismissing
• there is no obligation to seek a report on malingering from a consultant - an occupational health physician will suffice.

More controversially, they decided, in Homeserve v Dixon, that a step 1 letter (the first stage in the statutory procedure, and the one inviting the employee to a disciplinary hearing) need not state that the employer is contemplating dismissal. In this case, the employer caught the employee red-handed in an act of gross misconduct. The letter invited him to a 'formal disciplinary meeting' for 'breach of contractual obligations' but did not state that dismissal was a possible outcome. Surprisingly, the EAT overturned the original tribunal decision that this was unfair, and said it was sufficient that the letter invited the employee to a 'formal disciplinary meeting', as it was implicit in that that the employer was contemplating dismissal or some other disciplinary action. (Despite this, we would still strongly advise that in cases where dismissal is a possibility, you should mention this in your letter.)

Regarding timescales,, in Asda Stores Limited v Kauser, the EAT decided, again contrary to the original tribunal's decision, that it would have been reasonably practicable for an employee suffering from stress to lodge her claim within the normal 3 month time limit. Mrs Kauser was dismissed for stealing. Asda had alerted the police, who then arrested her and investigated the matter. The time limit for her to lodge an unfair dismissal claim expired on 21 September 2006, and she only discovered that the police did not intend to bring any charges against her on 19 September 2006. She requested to be allowed to bring a claim for unfair dismissal out of time on the basis that she did not think she could commence proceedings whilst the police investigation was ongoing, and she was suffering from stress as a result of her arrest.

The EAT considered both points. They said that "stress" was not sufficient and cannot be compared to illness or incapacity and more was needed to establish a medical impediment. With regard to the police investigation, Mrs Kauser could have found out from any advisor in the period before 19 September (the date she received word from the police) about the practicalities of bringing a claim, completed the form in advance if necessary, and could have lodged her claim on 19, 20, or 21 September.

And a warning that the timescales really ARE tightly policed! Our September newsletter covered the case of Beasley v National Grid Electricity Transmissions - you may recall that Mr Beasley was 88 seconds out of time and was judged to have missed the deadline. But 8 seconds has now been judged to be too late! In Miller v Community Links Trust, the claimant's ET1 was sent electronically at 1 second before midnight on the last day for presenting the claim. It arrived 9 seconds later - but that was 8 seconds too late! The EAT confirmed the claim was out of time and also penalised the sender - a law student who was charging for the services and who wasn't registered with the new Regulated Claims Management Service. The Compensation Act 2006 prohibits non-lawyers from representing claimants (other than for free, or in limited cases such as charities) unless they are formally registered with, and regulated by, the Regulated Claims Management Service. The EAT referred this student to the RCMS - breach of the registration requirements can carry a sentence of two years in prison! (Not the best start to your career!)

Discrimination: disability and reasonable adjustments

The EAT, in Scottish & Southern Energy plc v Mackay has reinforced the view that an employer's failure to consult a disabled employee over alternatives to dismissal (or to conduct a risk assessment) is not, itself, a failure to make reasonable adjustments giving rise to liability. An employer who fails to investigate redeployment or reasonable adjustments will not necessarily be in breach of the DDA - the claimant needs to establish precisely what reasonable adjustments could have been made to retain him/her in the workplace.

Holidays and nominated days

The Working Time Regulations permit employers to require workers to take their annual leave on particular days, as long as they give them notice. This is particularly common for general periods of closure in the summer and between Christmas and the New Year. But would it be reasonable to insist that holidays are taken as single days?

Apparently, yes! In Sumsion v BBC Scotland , Mr Sumsion, a standby carpenter, was contracted to work on a fixed-term contract from 5 May to 26 October 2003. His contract required him to work up to six days per week, and his sixth working day was always a Saturday - although he was often only required to work every other Saturday and then often only half a day.

Mr Sumsion asked to take the leave owing to him in one block, and the BBC refused, stating that he could only take his leave in single days - on every second Saturday.

Mr Sumsion felt this was unfair, but both the tribunal and the EAT agreed that since there was nothing in the regulations to stop the BBC from stipulating when he should take his holidays (nor how many days he could take at one time) provided it was within the duration of the contract, his claim could not succeed. The EAT took a broad view, and said that Mr Sumsion's arguments would mean that "on call" days (when a worker might not physically be at work) could not qualify as leave days. It also meant that employers would not be able to close their business and require their employees to take their leave at the same time. That would result in teachers, for instance, asking for statutory paid leave during term-time.

Neither the regulations nor the parent directive prevent employers from stipulating in a contract that leave has to be taken in single days, nor are there any restrictions on the days that employers can nominate as leave days. (Although we suspect that many employers would not be so happy if their employees wished to take all of their holidays every Friday for example!)

The National Cancer Research Institute has found that in the three month period following the introduction of the smoking ban in July this year, hospitality workers' exposure to second-hand smoke had dropped by 95% and, in addition, non-smoking hospitality workers had four times less continine (a by-product of nicotine and indicator of tobacco smoke exposure) in their saliva in August as opposed to June. They calculated that on average, employees' exposure was the equivalent to smoking 190 cigarettes a year before the legislation, and this dropped to the equivalent of around 44 cigarettes after.

Research was also conducted on the air quality within pubs, restaurants, bars, clubs, bingo halls, betting shops, cafes and private members clubs across the country. Researchers discovered that levels of "small particles" in the air that are contained in cigarette smoke had fallen from the near hazardous levels in June to levels that are similar to the outside air in August.

However, although their health might be improving, hospitality workers are also now prone to more abuse. Research undertaken by the recruitment site, Caterer.com, found that one in ten catering staff has suffered violence or abuse after asking a customer to stop smoking. They interviewed over 5,000 workers, some of whom reported being hit, spat at, strangled and sexually abused. However, nearly 80% of workers said they felt happier at work after the implementation of the ban and 79% said they felt healthier.

It's now 40 years since breathalyser testing was introduced (on 9 October 1967) and since that time, deaths and serious injuries caused by drink driving have fallen from 13,000 fatal and serious casualties each year to 2500. RoSPA is campaigning for a reduction in the permitted levels of alcohol from the current drink-drive limit, of 80mg of alcohol per 100ml of blood to 50mg of alcohol per 100ml of blood - a move which they calculate would save around 65 lives and 230 serious injuries each year. According to RoSPA, at levels between 50mg and 80mg, people are two to two-and-a-half times more likely to be involved in an accident and six times more likely to be in a fatal crash than with no alcohol in their system.

And the Highways Agency has launched a new campaign to warn the public about the dangers of running out of fuel on motorways. Between 2000 and 2004, 67 people were killed and 950 people were injured on the hard shoulder. Many of these vehicles were hit from behind by another vehicle, with a number of them having run out of fuel.

The Highways Agency has the following advice for those who do break down on a motorway:

• In the case of a break-down, drivers should try to get the car as far over to the hard shoulder as possible.
• Get everyone out of the car by the passenger side and find a safe place to wait, over the barrier and away from the carriageway.
• Highways Agency traffic officers will check that people are safe but will not recover vehicles, so drivers need to have arrangements with a recovery service.

Last month's hot topic - lone workers - has been added to our health and safety section - see /docs/hasaw/loneworkers.html

We've also added the following:

• a letter for non-return from maternity/adoption leave - see /docs/lf/nonreturn/custom.html
• a policy for driving on business /docs/pol/drivers/index.html
• and a new guide, to occupational testing (added to our recruitment section) /docs/guides/testing.html

The next major new development to the website is one we're pretty excited about and have spent a lot of time developing - it will give clients the ability to store their customised policies (created from our templates) on our server and to quickly access and review these whenever they choose to update their policies, with a special tool which shows very clearly the client's own additions and our suggested updates to the templates. We think that this will save clients an awful lot of time and effort and make the process of updating policies much much easier. Further details will be announced this week and the new service and webpages will be available from Monday 12 November.

It's not uncommon to see research about people taking time off sick when they are actually perfectly capable of working, but research is now also finding examples of the opposite - ie people going to work when they should be in bed taking medicine.

The "Quality of Working Life" report from the Chartered Management Institute (CMI) and Simplyhealth found that half (48%) of those reporting symptoms relating to stomach bugs in the past year did not take sick leave and only 9% suffering from stress took time off from work, despite one in three citing stress symptoms. Only 36% of respondents claim to be operating at or near peak productivity.

Older workers would seem to be more honest than younger ones - 99% of workers polled by Unum claimed not to have taken any time off sick when they did not need to, as opposed to 25% of 16-24 year olds. Workers in Scotland are also apparently the least likely to take time off sick when they do not need to!

HM Revenue and Customs has announced that it will not, after all, seek to collect income tax/NIC on medical check-ups or health screenings in the 2007/08 tax year, including in situations where check-ups or health screenings have not been made "available to all employees".

The "all employee" requirement was introduced from 6 April 2007 although the effective date was later put back to 14 August 2007.

A poll by Office Angels found that a third (33 per cent) of employees waste over an hour every day because of distractions. Of the 1,292 office workers polled, they found the top 10 distractions were:

1. loud and very chatty colleagues (71%)
2. mobile phones left unattended and annoying ring tones (61%)
3. pointless meetings or questions (58%)
4. colleagues' coughing and spluttering when they're ill (44 %)
5. arrival of new email (34%)
6. smell of people eating at their desk (30%)
7. instant messenger (15%)
8. social networking sites (12%)
9. offers of a cup of tea (11%)
10. an office crush (10%)

No doubt you all have your own suggestions to make to this list! At BusinessHR we're all home based, so number 9 would be a welcome introduction!

A survey by YouGov has revealed that British office workers print off an average of 22 pages each working day - this is 1,120 billion pieces of paper, equivalent to an 8,000 mile high pile of paper every year!

More than half admitted to printing out the same document several times by mistake and to printing off emails before reading them. Less than half of workers (47%) said they avoid printing hard copies unless absolutely necessary. A quarter (23%) of office workers did not "give much thought to printing off documents" and a further 13% did not worry about how many documents they send to print as long as they recycle them.

One in three (33%) workers said that they would change their printing behaviour if their company had a policy on this. Only 16% said that their company emails carry a footer asking whether it's necessary to print out the email, whilst 48% of company emails included legal disclaimers.

And despite the above, according to Fujitsu Siemens Computers, only two-thirds of companies provide paper recycling bins!