POWER to the people27 February 1998
The change of government has meant a change of emphasis—with greater focus on employee rights. The chief developments are explained by Jonathan Exten-Wright, a partner in the employment department of law firm Dibb Lupton Alsop.
Now that the government has signed the Social Chapter of the Maastricht Treaty, two European Directives will become applicable to the UK.
The first of these is the Parental Leave Directive. It must be implemented by June 1998 and entitles both male and female workers to a minimum of three months unpaid leave, following the birth or adoption of a child, to enable them to care for that child. That unpaid leave may be taken up to eight years after the birth or adoption and is in addition to the entitlement to maternity leave.
Signing up to the Social Chapter makes the UK subject to the European Works Councils Directive.
The Directive already affects some UK employers, and some have already set up voluntary arrangements. It will enhance the rights to information and consultation for employees of UK based multi-nationals with more than 1000 employees and with at least 150 employees based in two different European Economic Area states.
The Directive sets out a model for a works council, requiring meetings with representatives at least once a year, a place for such a meeting to be provided, and the giving of “trans-national” information to workers’ representatives. If requested by employees’ representatives or by at least 100 employees, the employer must set up a special negotiating body to try and establish a works council in line with the Directive.
Atypical working structures
Signing up to the Social Chapter also embraces a number of Directives currently in the pipeline. One relates to “atypical” workers—part-timers and temporary staff.
This Directive accords with the general expansion of part-timer’s rights under European case law, so that they may no longer be treated differently from full-timers, in most respects.
It also provides for pro rata protection, restricts the use of fixed term contracts, and expects recourse to “ordinary” full-time contracts as the norm.
There is also a Directive on the burden of proof in sex discrimination cases. The proposed implementation date is January 2001. This would require amendment of the relevant sex discrimination and equal pay legislation in the UK, so that an individual has only to show that there is a case for sex discrimination and the burden would then pass to the employer to prove that discrimination had not taken place. It would be the person bringing the claim, and not the employer, who would have the benefit of the doubt.
Working Time Directive
The Working Time Directive is now in force and provides for a maximum 48-hour week, with minimum rest periods and protection for night shift workers, as well as a minimum period of paid annual leave.
What is clear is that there will be an impact on the timing of breaks, shift work, night work and overtime where it is utilised. This will affect staff scheduling, particularly in those businesses which involve annual hours, and an early dialogue with recognised unions may prove beneficial.
It seems fairly certain that with the introduction of an entitlement to a minimum period of paid holiday each year, accrued holiday pay schemes will become a thing of the past.
The new Young Workers Directive protects those under 18, providing a minimum working age of 15 years, and regulating hours for adolescents between those ages. Work by children is prohibited except in categories of “light work”, with specific limitations on working time.
The Labour government’s manifesto made it clear that the key elements of the 1980s trade union reforms were to remain in place: in other words, ballots, picketing and industrial action. For the latter, Labour proposes to remove the employee’s protection, whereby the dismissal of workers on strike will not constitute an unfair dismissal.
Another proposal is to make recognition of trade unions compulsory where more than 50% of the workforce vote in favour of representation by a trade union. That legal obligation to recognise trade unions will embrace recognition for collective bargaining purposes as to pay, hours, holidays and training.
In addition, the Labour government proposes to enhance the right not to be discriminated against by employers on the basis of trade union membership.
Unfair dismissal protection remains available to those who have two years’ continuity of employment. Labour has also stated it will abolish checks previously required by employers of employees as laid down in the Asylum and Immigration Act 1996 (section 8). In Labour’s view this need to check an employee’s nationality risks race discrimination.
The Labour government is committed to rendering age discrimination unlawful, but has not yet issued proposals on the type of measures that will be adopted. It is not clear whether this will follow the recent disability legislation or the old race/sex discrimination legislation.
Following the Institute of Personnel Development’s statement on the negative impact of ageism in the selection process, combined with its policy to refuse advertisements which contain age limits and the growing public campaign decrying the trend of allegedly throwing those over 40 onto the industrial scrap heap, it seems that more employers are adopting a voluntary code and including anti-ageism as part of their equal opportunities policies.