We are having a team awayday on Wednesday 12 December and our helpline will be closed for the day as a result. In emergencies only, please call the helpline and leave a message - we will check for messages regularly and call you back as soon as possible.

Our helpline hours over the Christmas period will be as follows:

• Monday 24 December - 9.00am - 1.00pm
• Tuesday 25 December - closed
• Wednesday 26 December - closed
• Thursday 27 December - 10.00am - 3.00pm
• Friday 28 December 10.00am - 3.00pm
• Monday 31 December 9.00am - 1.00pm
• Tuesday 1 January - closed

Then back to normal!

As from 1 December, employment tribunal chairmen are retitled "employment judges".

The Queen's Speech last month contained some proposed changes to note:

• firstly the proposal to extend the right to request flexible working to parents of school-age children. Currently this right is restricted to those with children under 6 (or under 18 if disabled). Whilst newspaper reports have suggested that the extension may be for children up to 17 years, the upper age limit has not yet been decided. If the age limit of the child were raised to 17, 4.5 million parents could potentially benefit. A review will take place in Spring 2008, followed by formal consultation. The existing procedure for making a flexible working request, and the grounds for refusal will remain unaltered. Government figures show that 91% of workplaces receiving requests for flexible working in the last year approved them.

• secondly, a Pensions Bill that will aim to get more of us saving for our retirement by placing "a duty on every employer to contribute to good quality workplace pensions for their employees." It will be compulsory for employers to contribute to the new personal account pension scheme, which employees will automatically join when they start a new job, unless the employer provides an alternative which is as good or better. The scheme is due to be introduced from 2012.

• thirdly, an Employment Bill which will abolish the statutory dismissal and disciplinary and grievance procedures. It is not yet known what will replace these but they are expected to go in April 2009 - so we have another year at least! The Bill will also amend the legislation concerning exclusion from membership of trade unions on political grounds (allowing them to do this if membership of a political party is incompatible with the union's aims) and will clarify and strengthen the enforcement framework for the National Minimum Wage and employment agency standards (see below for more details on the latter).

• an Education and Skills Bill and a Apprenticeships (Draft) Bill. The former will raise the school leaving age to 17 in 2013, and 18 in 2015. Those who take jobs before they are 18 will have to do at least one day of accredited training. The Apprenticeships Bill will give all 16 to 18-year-olds who meet the entry criteria, entitlement to an apprenticeship by 2013. The Government has also announced a major expansion of apprenticeships to increase overall places from 250,000 to more than 400,000 over the next three years.

  In addition, the Low Pay Commission is to investigate whether minimum wage regulations should be extended to cover all apprenticeships. (Apprentices under 18, and older workers in the first year of their apprenticeship, are currently exempt.)

Finally, the single equality bill, which will bring together the nine pieces of existing discrimination legislation and around 100 pieces of ancillary legislation, will not now become law until 2009 at the earliest.

Not what we were expecting!

Following last month's information regarding the Spanish case on compulsory retirement (Palacios de la Villa v Cortefiel Servicios SA), it seemed more likely that the challenge to our UK retirement age of 65, currently being brought by Heyday, would not succeed. However, the EAT has decided that an existing claim - Johns v Solent SD Limited - should be "stayed" (put on hold) until the outcome of the Heyday case is known. Following this, the President of the Employment Tribunals has directed that all similar cases should also be stayed. This affects claims that have already been lodged as well as future ones. The direction only affects claims brought in England or Wales; we understand that Scottish cases will be referred to chairmen for individual decisions.

The Heyday case is unlikely to be resolved until 2009 - as it may need two visits to the European Court of Justice (ECJ) before going back to the High Court to decide the key issue of whether UK law is justified. And the High Court may refer the case back to the ECJ for further guidance!

Even if the Heyday challenge is successful, it will be unclear as to whether private employers can still rely on the UK legislation.

In the meantime, the first case of discrimination on the grounds of being too young has been won! Megan Thomas, aged 20, was dismissed from her job as a membership secretary at the Eight Member club in London after her six-month probation period. She claimed "I was told I was too young and if they had met me a few years later there may not have been a problem. They also said that I was deceitful, sly and lacked integrity, which was hurtful and untrue." The employer denied discrimination, claimed that the reason for the dismissal was because she had made some mistakes. They pointed out that many waiters and waitresses at the club were younger than she was, but lost their case.

The award is expected to be about £2000 - a relatively low amount because Megan Thomas found another, higher paid, job within four days of being dismissed, so will only be compensated for injury to feelings and unpaid notice.

Disability discrimination:

A reminder to carefully check your selection criteria for potential discrimination when making redundancies! A man with learning difficulties was one of 24 gardeners employed by the London Borough of Lambeth who brought claims for unfair dismissal. The selection criteria used by the borough was found to be weighted against disabled workers as it focused on the number of days of absence and whether staff drove a car or not. The claimant was awarded £550,000 for disability discrimination. He was aged 34 when he lost his job - the compensation covers loss of earnings until retirement.

Religious discrimination:

A Muslim woman, Bushra Noah, is claiming religious discrimination against the owner of a hair salon in King's Cross after she was refused a job for wearing a headscarf. The owner of the salon insisted that staff display their own hairstyle to the public. She said: "When a potential client walks past on the street, they look into a salon at the stylists to get an impression of what haircut they are going to get there. It has nothing to do with religion. If an employee were wearing a baseball cap or cowboy hat I would ask them to remove it at work,."

Noah, who apparently has been rejected for 25 different hairdressing jobs after interviews, is suing for more than £15,000 for injury to feelings and an unspecified sum for lost earnings. The case will be heard in January.

TUPE: preserves employment contracts but shouldn't improve them:

In Computershare Investor Services PLC v Mrs A Jackson , Mrs Jackson was transferred to Computershare. Computershare offered an enhanced redundancy payment scheme, which gave employees who had joined prior to March 2002 more favourable terms than those who joined after this date. Mrs Jackson joined the scheme following the transfer of her employment in 2004.

When she was made redundant in 2005, her redundancy payment was calculated according to her length of service backdated to 1999 but on the 'post-2002' terms. Mrs Jackson argued that she should be treated as a pre-2002 joiner and should receive the (better) terms.

The Court of Appeal confirmed that the purpose of TUPE is to safeguard the existing rights of employees on a transfer, not to give them additional rights or to improve their terms. So whilst employers may choose to improve the contractual terms of transferring employees (usually to bring them into line with other colleagues), this case confirms that the Regulations do not require them to do so.

Another TUPE case concerns employees who objected to working for their new employer after the transfer had taken place. In New ISG Ltd v Vernon, the new employer sought to rely on the restrictive covenants in the employees' contracts of employment, claiming that these had transferred over with them. Whilst this would normally be true, in this case, the employees had not known who the new employer was, as this information had been withheld from them. The transfer took place, and the employees objected two days after the transfer, once they discovered the identity of the new employer and realised they did not want to work for it.

The court ruled that a valid objection can take place after the date of transfer, where the employee does not initially know the identity of the transferee and objects promptly as soon as s/he finds out. The objection takes effect retrospectively and prevents TUPE applying. Therefore the restrictive covenants had not transferred to the new employer and they could not rely on these.

Be consistent in your application of your rules!

Do your absence notification rules require your employee to phone in, or do you allow other means of notification (eg email, text messages etc)? Ensure that you are clear about this, and that you apply your rules consistently!

In December 2006, Mr Morrison, a sales advisor, called his employer to say he would be off sick because his brother was dying. When his brother died, he sent a text to his boss to say he would be off until after the funeral. He returned to work after this, but then went off sick again and sent text messages to his employer on five consecutive days saying he was too depressed to come into work. He also informed his boss that his doctor had signed him off work for two weeks owing to depression. On return to work, he was called to a disciplinary hearing and dismissed for failing to follow company procedures. The employer's policy stated that absences should be notified by phone or by sending in a sick note.

The tribunal, unsurprisingly, weren't happy with this and found the dismissal unfair. Mr Morrison had not been warned, following his previous return to work, that text messages were unacceptable. The tribunal "did not believe that the claimant had been told he must not notify absence by way of text messages. Throughout these events, the [employer was] perfectly well aware of the reason for the claimant's absence. "

Mr Morrison was awarded £6977 for unfair dismissal.

The government has starting consultation on its implementation plans for the Safeguarding of Vulnerable Groups Act, and is seeking views on who the scheme will protect, who will need to join the scheme, how to refer information to the scheme, how applications will be made and how the scheme will be phased in.

The Act is due to come into force next autumn: its main provision are as follows:

• It will be a criminal offence for a barred individual to even seek a job in regulated activity working in close contact with children or vulnerable adults.
• Employers and parents will be able to make an online check that a prospective employee is not barred.
• Penalties, including fines of up to £5,000, will apply to employers who fail to carry out the necessary checks or recruit people who are not members of the scheme.

A new body, the Independent Safeguarding Authority, will decide who should be included in the lists of those barred from working with children and/or vulnerable adults.

If your employees work with children and vulnerable adults, you may wish to view the guidance and policies we have recently added to the website on this topic - see "new on the website" below.

The Government has recommended that the above code of practice, which recommends the time and resources that employers grant union reps to do their jobs, should be strengthened. Government figures suggest that properly trained and supported reps can reduce absenteeism, improve job retention rates and boost productivity.

When do agency workers become employees?

In the case of Brook Street Bureau (UK) Ltd v Dacas, the Court of Appeal recommended that, when considering the status of an agency worker, tribunals should consider the possibility of an implied contract of employment. More recent EAT decisions have questioned this and in James v Greenwich Council the EAT stated that in most circumstances this will not be appropriate and that time alone does not necessarily imply a contract of employment. They felt that such a contract is unlikely to arise where the arrangements with the agency are accurately recorded and the relationship is managed consistently with those documents.

The James case is going to the Court of Appeal, and the President of the Employment Tribunals has now directed employment tribunals to put on hold all current and future claims regarding the employment status of agency workers until the judgement.

In the meantime, the government's consultation on agency workers has concluded and resulted in revised regulations which will come in to force in April 2008.

In summary, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007, provide:

• Agency charges - whilst agencies can provide, and charge, applicants for additional services such as writing CVs, offers of work cannot be conditional upon the work-seeker using and paying for the additional services. As from April, those who choose to accept the offer of services will be able to subsequently withdraw from them (on notice), without suffering any detriment.

• Drivers - clearer guidance for driver agencies and the companies that use their services, regarding their working hours and limits on these.

• Short-term assignments - the requirements in the existing regulations for information to be provided will be relaxed for those working on assignments of fewer than five days provided the agency's terms are sufficiently clear.

• References - where an agency is unable to disclose the appropriate references where confirmation of, for example professional qualifications or references for those working with vulnerable persons are required, it will not only have to inform the hirer but also explain the steps it has taken to try to obtain these. In addition, the current obligation on the agency to inform the hirer if information suggesting a work-seeker may be unsuitable subsequently comes to light will be further clarified to confirm that this overrides any duties of confidentiality to the work-seeker.

Further changes re agency workers will take place if the draft European Directive on Agency Workers progresses.

New statistics from the Health and Safety Commission show that:

• 36 million days were lost due to work-related ill health and workplace injury in the last year.
• 30 million days were due to work-related ill health
• 2.2 million people suffered from an illness they believed was caused or made worse by their current or past work.
• 241 workers were killed at work and 141,350 other injuries to employees reported under RIDDOR.

The first publican has been convicted of breaching the smoking ban which came into force this summer. Hamish Howitt of Blackpool's opposition to the ban was well known - he had covered his bar with posters and banners and set up a website promoting his political party. Mr Howitt was given a written warning in July 2007, a number of fixed penalty notices were subsequently issued to customers on the premises and on 19 July, the council served him with seven court summonses. However, despite this, he still continued to allow smoking on the premises and another five were issued by the end of the month. Mr Howitt was fined £500 and ordered to pay £2000 in prosecution costs.

Whilst on this topic, a reminder to ensure that you comply with the requirement to have "no smoking" signs in vehicles. A survey by Vansunited.co.uk found that just 51% of the van drivers they questioned had been provided with a "no smoking" sticker for their van, and 44% were unaware of the new smoking law regarding smoking in company vehicles. Any vehicle used to transport members of the public or used by more than one person should be smoke-free - regardless of whether they are in the vehicle at the same time. "No-smoking" signs should be displayed in each area of the vehicle in which people can sit. Fines for non-compliance include a fine of up to £1,000 for failing to display the signs, and a fine of up to £2,500 for failing to prevent smoking in vehicles covered by the ban.

A recycling company in Uxbridge, Ethos Recycling, was recently fined £35,000 following an accident in which a Romanian worker lost a leg. The worker said that he had not understood the company's health and safety systems.

The Approved Code of Practice associated with the Management of Health & Safety at Work Regulations 1999 says that employers should make special arrangements for employees with limited English in order to ensure that they understand health and safety procedures. Such arrangements could include using more symbols, having a more thorough induction programme, appointing a translator for these sessions, providing translations of the employee handbook or important policies etc. So if you employ workers who are not fluent English-speakers, do ensure that they understand your rules and procedures - especially your Health and Safety and other critical rules!

If you have employees who use their own vehicles for business travel, do ensure that you make appropriate checks, as you may be liable for any accidents they may have whilst driving on business.

According to the HSE, there are 150 deaths and serious injuries each week in crashes involving someone driving on business. The police therefore have launched a new campaign to reduce this, and will prosecute employers who fail to ensure their employees drive safely. Following a collision, the police will check whether the employer had ensured the vehicle has an MOT and valid insurance, whether managers made excessive demands on the driver and required him/her to drive whilst tired. Apparently more than half of companies fail to check that employees using their own cars for work have insured them for business use; only 26% ask their employees to produce an MOT certificate and 17% make enquiries as to whether they have been maintained regularly - so there could be some problems here!

So:

• check the driving licences of all new appointments who are required to drive on business, prior to them doing so - take a photocopy and keep it on file
• make a periodic check thereafter - perhaps annually when you also update employee details and next of kin etc
• you may wish to take photocopies of MOT and insurance documents and/or to add a declaration to your expense claims which requires the employee to sign to confirm that his/her vehicle is insured for business use and fully MOT'd
• check the hours of work of your employees when driving on business and ensure that they take suitable breaks and plan their journeys properly

If you don't have a policy on driving on business, you may like to consider one - see our template on the website: /docs/pol/drivers/index.html When the Corporate Manslaughter Act comes into force in April 2008 it will be easier to bring cases against companies that cause death through negligence - so take action now!

We've been pretty busy this month and have added the following to the website: a guide to organising work-related functions (based on last month's hot topic); policies on working with volunteers, on working with children, young people and vulnerable adults and on work experience; guides to apprentices and working with children and vulnerable adults. See: /docs/guides/functions.html /docs/pol/volunteers/index.html /docs/pol/vulnerable/index.html /docs/pol/experience/index.html /docs/guides/apprentice.html /docs/guides/child.html

We've also added customisable versions of the maternity, adoption and paternity policy, the parental leave and time off for dependants policy and the maternity, adoption and parental leave guidelines for use by those clients who offer enhanced benefits in addition to the statutory ones.

Can we also remind you to take a look at our new premium service which costs just £100 per year extra, and offers you not only a wider range of documents, but, more importantly, allows you to store your customised versions of our template policies on our server and to then update and amend these easily and quickly - thus saving you lots of time and making updating your policies an easy and effective task. See: /intro/premiumservice.html

If you're thinking of changing your job, you might be interested to learn that your choice of career may also affect your life expectancy! New figures issued by the Office for National Statistics show that, whilst life expectancy has risen for all social classes over the last 30 years, and whilst women fare better than men:

• people in professional occupations (eg doctors, accountants, professionally qualified engineers) have the longest expectation of life - (male life expectancy 80 years; female 85.1 years),
• managerial and technical occupations (eg managers, journalists, teachers) - 79.4 and 83.2 years respectively
• skilled non-manual (eg clerks, cashiers, retail staff) 78.4 and 82.4 years
• skilled manual (eg supervisors, plumbers, electricians, goods vehicle drivers) 76.5 and 80.5 years
• partly-skilled (eg warehouse, security guards, care assistants, waiters and waitresses) - 75.7 and 79.9 years
• unskilled manual occupations (labourers, cleaners and messengers) fare the worst - (male expectancy of 72.7 years; female 78.1 years)

The report on life expectancy by social class is available on the National Statistics website at www.statistics.gov.uk/StatBase/Product.asp?vlnk=8460