September 2005 Contents Features print (pages 2-4) for this section Consultation paper proposes banning smoking in the workplace........................ more 2007 is the deadline to stop smoking at work New legislation - Autumn 2005 and beyond....................................... more Our handy timetable alerts you to new laws affecting employers Disability discrimination...................................................... more More employee protection from December 2005 Case law update print (page 5) for this section Collective consultation - new guidance on the costs of failure.......................... more Amicus v GBS Tooling (In Administration) (EAT) Appeal No. EAT/0100/05/SM) Hot topics print (page 6) for this section Explanation of changes to sex discrimination legislation.............................. more New ACAS guidance on bullying............................................... more Contacts 1
Features Consultation paper proposes banning smoking in the workplace In March 2004, the Republic of Ireland introduced regulations which banned smoking in most workplaces. The UK Government has now unveiled its proposals with the Health Improvement and Protection Bill ("Bill") which is due before Parliament in November 2005. The Government's aim is that by the time the legislation comes into effect, smokefree enclosed public places and workplaces in England will extend from: hospitals and schools offices and warehouses restaurants mainline train stations and airports. This legislation seeks to deliver the Government's objective of protecting people from the health risks associated from secondhand tobacco smoke. Consultation on the Bill ran from 20 June to 5 September 2005. Proposed timetable The timetable proposed for this legislation is as follows: by the end of 2007, all enclosed public places and workplaces, other than licensed premises (and those specifically exempted), will, subject to legislation be smokefree. by the end of 2008 arrangements for licensed premises (preparing and serving food) will be in place. Proposed exemptions It is proposed that these should be restricted to: licensed premises that do not prepare and serve food membership clubs such as working men's clubs, cricket and rugby clubs; and specially exempt places such as living accommodation. Offences and penalties It is proposed to have three types of offence as described below. Enforcement will be a matter for the appropriate local authority enforcement officers. Offence Penalty Not displaying the prescribed no-smoking notice in smokefree premises Fine up to 200 Failing to act to prevent smoking in a smokefree premises by manager or licensee Fine up to 200 (subject to specific defences) Knowingly smoking in a smokefree premises 50-200 Reactions so far The proposals set out in the consultation paper have provoked strong reaction, with Action on Smoking and Health (Ash) and Cancer Research UK stating that 73% of 1000 people polled said that a ban on smoking in the workplace should be applied without exception. The same action groups have also polled MPS across the political spectrum and found that 69% of the 140 MPs questioned would support a smokefree law covering all workplaces without the current exemptions being proposed. By contrast a spokesman for the smokers' rights group Forest has argued that "Surveys show that most people do want to see further restrictions in public places - and we are happy to acknowledge that - but the vast majority do not want an outright ban in pubs". 2
Actions for employers Employers are already legally obliged to comply with the Health & Safety At Work Etc Act 1974 and the Management of Health and Safety At Work Regulations 1999 to provide a workplace environment which is healthy. In addition, employers have a common law duty to provide a safe workplace and system of work. This does not necessarily mean a smokefree workplace, though the trend is that way. Whatever the final wording of this latest Bill, it will be incumbent on employers to ensure that: the new legislation is complied with; that their health and safety policies and current anti-smoking policies are revised where necessary to achieve compliance with the new laws; and that managers are fully aware of their personal obligations under this legislation. by Kathryn Clapp New legislation - Autumn 2005 and beyond What? When in force? New statutory definitions of sex-related and sexual harassment will be introduced into the 1 October 2005 Sex Discrimination Act 1975 under the Employment Equality (Sex Discrimination) Regulations 2005. They will introduce a new definition of indirect discrimination, prohibit harassment and sexual harassment and make it clear that less favourable treatment of women on the grounds of pregnancy or maternity leave is unlawful sex discrimination (see also Hot Topics). The National Minimum Wage will increase from 4.85 to 5.05 for workers aged 22 and 1 October 2006 over. For younger workers (18-21) the increase will be from 4.10 to 4.25. New Tribunal claim and response forms become mandatory. 1 October 2005 The Civil Partnership Act 2003 comes into force. Gay and lesbian couples who register their 5 December 2005 relationship will have similar rights and responsibilities to married couples. Some of the provisions of the Disability Discrimination Act 2005 ("DDA 2005") will come 5 December 2005 into force (see article in this issue) including extending the Disability Discrimination Act 1995 ("DDA") to cover from the point of diagnosis, people with multiple sclerosis, cancer or HIV infection, and ending the requirement for a mental illness to be "clinically well-recognised" before it can be regarded as an impairment under the DDA. The timetable for introducing new TUPE Regulations has been postponed from October 2005 6 April 2006 due to a large number of responses to the Consultation Document. A unified tribunal service is to be introduced which will be known as the Administrative 6 April 2006 Justice Council (currently it is the Employment Appeals Service) The UK is required to introduce legislation prohibiting discrimination on the ground of age. 1 October 2006 Draft regulations have now been published. The Government has announced its intention to introduce a default retirement age of 65. Employees will have the right to request working past this age and employers will have the right to justify an earlier default retirement age in certain circumstances. The remaining provisions of the DDA 2005 come into force including a duty on public 4 December 2006 authorities to provide equality of opportunity for disabled people. Information and Consultation of Employees Regulations 2004 are extended to cover 6 April 2007 undertakings with 100 or more employees. Weekly working limits for doctors in training to be reduced to 56 hours. 1 August 2007 3
Disability Discrimination The new provisions of the Disability Discrimination Act ("DDA") 2005 provide more protection to employees than ever before. In advance of the implementation of the first set of new provisions, which come into force on 5 December 2005, we summarise the main changes that will effect employers and the way in which they can prepare themselves. Automatic disability Subject to the provisions of Schedule 1, a person has a disability under the current DDA if they have a physical or mental impairment which has a substantial and long term adverse affect on their ability to carry out day to day activities (section 1). There are no medical conditions currently deemed automatically to be a disability. Changes Schedule 1 will be amended in the new Act to provide that persons who have cancer, HIV infection or multiple sclerosis are deemed to be disabled. Regulations may be made to exempt people suffering from prescribed forms of cancer from automatic protection. Effects on employers Employers will need to take extra care when dealing with employees suffering from these conditions, particularly given that they may not display obvious signs of a disability. Employers should be aware that reasonable adjustments for people suffering from cancer, HIV infection or multiple sclerosis may be less obvious than those for people suffering from other physical disabilities: ask staff and doctors about sensible changes. Mental impairment Changes The requirement in the current Schedule 1 to the DDA 1995 that mental impairment is only a disability if it is "clinically well recognised" will be deleted in the DDA 2005 Act. This amendment is made in response to recommendations from those working in the medical health profession who argue that many mental conditions are difficult to diagnose and are often not clinically well recognised. As a result of this amendment the new Act will cover a wider range of mental conditions, although employees will still need to demonstrate that their condition is long term and has a substantial adverse affect on their ability to carry out day to day duties. Effects on employers Employers should pay careful attention to employees demonstrating symptoms of stress and depression. These conditions are more likely to be a disability under the DDA 2005 than previously. In particular, sufferers of depression will no longer need to be diagnosed with clinical depression. Public authorities The Act contains provisions which from December 2006 will impose wide reaching obligations on public authorities to promote equality of opportunity between disabled persons and other persons. Specific duties to ensure that public authorities comply with their general duties towards disabled people will also apply. This may impact on requirements of tenderers. Timetable for implementation The Department of Work and Pensions has recently announced the timetable for implementation of all the new provisions under the new DDA Act on either 5 December 2005 or 4 December 2006. Action points Review discrimination policies to ensure that the new changes to the DDA are covered. Make sure that all line managers are aware that discriminating against people who are HIV positive, have MS or cancer is unacceptable and constitutes disability discrimination. Consider a staff questionnaire to identify potential concerns. Ensure that recruitment, promotion and training procedures do not discriminate against those with a disability under the provisions of the new Act. by Gemma Lane 4
Case law update Collective consultation - new guidance on the costs of failure Amicus v GBS Tooling (in administration) EAT 0100/05 Why care? Section 188 Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA") sets out the procedure to be adopted when carrying out collective redundancies. If 20 or more staff are to be dismissed, employers should consult their representatives for 30 days. This rises to 90 days if 100+ staff are to be dismissed. A "protective award" of up to 90 days' pay per employee can be ordered for breaches of section 188. The case GBS Tooling Limited ("GBS") went into administration on 26 January 2004. A letter was sent to every employee on 6 February giving formal details of the administration and giving no assurances as to the long term prospect for GBS, but indicating the intention to keep the business as a going concern for as long as possible. On 19 February production stopped. GBS wrote to almost all of the employees on 20 February, terminating their employment. The last three employees were dismissed on 27 February. Between 26 January and 20 February three meetings took place between Amicus (the employees' trade union) and the insolvency practitioners. These meetings were not part of a formal consultation procedure. Amicus was given no reason to believe that jobs could be retained. Amicus claimed a protective award for failure to carry out collective consultation properly. It was accepted by GBS that there had been a breach of section 188, and the Employment Tribunal only had to decide the amount of the award. The Employment Tribunal decided on a protected award of 70 (rather than the maximum 90) days' pay, calculated by reference to a beginning with 20 February 2004 when it said consultation of requirements should have started. The mitigating factor for GBS was that the company had taken steps to keep Amicus and the employees informed in general terms of its situation. The decision of the Employment Appeals Tribunal Amicus appealed the decision, arguing that the Tribunal should have found that once there was a breach of section 188, it had to make the maximum award. It also argued that the Tribunal should not have taken into account events prior to 19 February when assessing the award. Previous cases had indicated that the protective award is punitive and not compensatory. An award of 90 days' pay should be assumed and the amount should only be reduced if there are mitigating factors, which indicate that a reduction would be just and equitable. The EAT disagreed with Amicus. The Tribunal was entitled to find that the earlier meetings mitigated the severity of the breach. This differentiated GMS from an employer who deliberately or negligently breached the rules. What to take away This provides some comfort that an employer's intentions and efforts to keep in touch with staff will be taken into account when assessing a protective award. However, even here, the award per employee was over two months' uncapped pay. In a large-scale redundancy exercise, the financial liability could be substantial. The EAT seemed surprised that GBS did not argue that the start of the protected period should have been earlier. GBS also did not try to use the "special circumstances" defence, which allows an employer to claim that circumstances were such that collective consultation was not possible. This omission was commented on by the EAT. The defence is rarely successful and even insolvency situations have not been deemed "special" enough to qualify for the defence: perhaps it should be tried more often. 5
Hot topics Explanation of changes to sex discrimination legislation The Women and Equality Unit at the DTI have issued draft guidance on the changes to the Sex Discrimination Act 1975 and the Equal Pay Act 1970, due to come in force this October. They will issue final guidance once the final version of the regulations has been published. For the each of the changes the draft guide explains what the law says now, what this means in practice and provides illustrative examples. New ACAS guidance on bullying ACAS have also updated their bullying and harassment guidance to reflect the changes to the harassment and sex provisions in the Sex Discrimination Act 1975. 6
Contacts If you would like to receive a hard copy of, be taken off the recipient list, or add a colleague's name, please send an email to s.nesbitt@taylorwessing.com. If you are asking to be taken off the recipient list please insert 'Unsubscribe' in the subject line. Taylor Wessing employment specialists For further details on any of the topics raised in this update please contact your usual employment contact at Taylor Wessing or one of the practice leaders below, who will be pleased to answer your queries. Practice leaders: Employment Sean Nesbitt +44 (0)20 7300 4294 s.nesbitt@taylorwessing.com Pensions Carolyn Saunders +44 (0)20 7300 4752 c.saunders@taylorwessing.com Immigration Gavin Jones +44 (0)20 7300 4730 g.jones@taylorwessing.com Taylor Wessing has offices in Berlin, Brussels, Cambridge, Düsseldorf, Frankfurt, Hamburg, London, Munich, Paris. Representative offices: Alicante and Shanghai. Associated office: Dubai www.taylorwessing.com For events and seminars, please contact: Mike Clark 020 7300 4926 m.clark@taylorwessing.com If you would like to receive a copy of our other newsletters please contact us on london@taylorwessing.com This bulletin is correct to the best of our knowledge and belief at the time of going to press. It is however written as a general guide, so it is recommended that specific professional advice be sought before any action is taken. We are required by law to protect personal data. Please write to Carmelite, 50 Victoria Embankment, Blackfriars, London EC4Y 0DX if you no longer wish to receive any of our future publications and we will amend our records accordingly. September 2005 Taylor Wessing All rights reserved 7