Agreement on opt
out and agency workers
After
a continued stalemate on amendments to the Working
Time Directive and on the proposed Temporary
Agency Workers Directive, ministers at the EU
Council on Employment, Social Policy, Health and
Consumer Affairs have finally reached agreement on
both issues.
Working
Time Directive
A
number of amendments have been agreed in relation
to the Working Time Directive. These include the
following:
-
the standard maximum
limit on working hours will remain at 48 hours
per week, with workers retaining the entitlement
to opt out
-
a new protective cap
will apply to individuals who opt out of the
48-hour working week. This will be set at 60
hours per week, unless member states agree
otherwise
-
on-call time is to be
split into active and inactive on-call time
(this follows case law which examined the
definition of working time and whether it
extended to workers who were on call but were
inactive or were allowed to sleep). Active
on-call time will be counted as working time
-
the opt out will only
apply under certain conditions (e.g. it cannot
be signed during the first month of employment
and a worker should not be victimised for not
signing or withdrawing the opt
out)
Temporary
Agency Workers Directive
The
following issues have been agreed in relation to
the proposed Temporary Agency Workers
Directive:
-
temporary agency workers
should receive the same treatment as permanent
workers from day one in terms of pay and
maternity leave, unless it has been agreed
collectively or at a national level to derogate
from this
-
temporary agency workers
should be informed about permanent employment
opportunities and there should be equal access
to collective facilities (e.g. childcare
facilities)
-
there should be
penalties for non-compliance by temporary
agencies and end
users
It
should be noted that the UK has already agreed
that agency workers in the UK will be entitled to
equal treatment after 12 weeks (see our report
last week). Further detail on each
Directive will be available once formal texts are
produced and agreed.
NMW Regulations
published
The
draft National Minimum Wage Regulations 1999
(Amendment) Regulations 2008 have been published,
increasing the national minimum wage rates from 1
October 2008.
The
adult hourly rate is due to rise from £5.52 to
£5.73. The rate for 18 to 21 year olds will also
increase from £4.60 to £4.77 while the 16 to 17
year old rate will rise from £3.40 to
£3.53.
Striking out a claim
before evidence is heard
The
Employment Appeal Tribunal (EAT) has confirmed
that a Chairman (now Employment Judge) was
entitled to strike out a claim on the ground that
it had no reasonable prospect of success without
formally hearing evidence, where he considered
that the case was not, in any ordinary sense of
the term, fact-sensitive.
In Croke v
Leeds City
Council, the claimant was dismissed and
subsequently alleged victimisation against the
Council on the basis that he had made it aware,
prior to his dismissal, that he was considering
bringing a complaint against it for
discrimination. At a pre-hearing review, the
claimant failed to provide any material upon which
the Tribunal could properly conclude, as is
required, that there was a causal link between the
alleged less favourable treatment and the
protected act (the claimant said the relevant
protected act in this case was the Council's
knowledge that he would make a complaint of race
discrimination). The Tribunal struck out the
victimisation claim on the basis that it had no
reasonable prospect of success.
The EAT upheld the
Tribunal's decision. The Tribunal had appreciated
that it had not strictly heard any evidence. The
employee had, however, provided particulars in a
document running to 10 pages which was, for
practical purposes, a witness statement setting
out the account of his complaint. There was also a
lengthy debate between the employee and the
Chairman in which the latter sought to extract
relevant material and the employee did not suggest
there was any other material he would have wished
to put before the Tribunal. The EAT confirmed that
the Chairman was entitled not only to conduct the
hearing in a comparatively informal matter but
also to form the view that the case was one which
had no reasonable prospect of success and should
therefore be struck out.
TUPE - objecting to a
transfer
The
EAT has recently confirmed that an employee who
objected to transferring to a new employer, but
then agreed to work on "secondment" for that
employer, had not objected to the transfer for the
purposes of the Transfer of Undertakings
(Protection of Employment) Regulations 1981 (TUPE
1981). Although TUPE 1981 is no longer in force,
employees still have the right to object to a
transfer under TUPE 2006, so this decision remains
relevant.
In Capita Health
Solutions v (1) British Broadcasting Corporation
(2) McLean, the EAT confirmed that employees
are plainly entitled to object to being
transferred to the employment of another employer
and whether or not the employee has objected will
depend on the facts and circumstances of each
case. The effect of such an objection is that the
employee's contract of employment terminates and
the legislation cannot be interpreted so as to
allow for such termination to post-date the date
that the undertaking transfers from the transferor
to the transferee.
In
this case, therefore, it was held that the
claimant's employment transferred to the
transferee on the date of the transfer. As the
claimant was prepared to work for the transferee,
albeit for a limited period, she could not, at the
same time, insist that she objected to the
transfer. Interestingly, the EAT also noted that
the use of the word "secondment" did not change
matters.
What happened was not secondment in its
proper sense, which connotes a temporary
assignation regarded, at least, at the outset, as
being on the basis that the employee would return
to work directly for the seconding employer. It
was never intended that that would happen in this
case. The transferor had, post-transfer, no
requirement for the claimant to carry out work of
the type she had carried out for them prior to the
transfer. The employee's contract therefore still
transferred to the transferee on the transfer
date.
Heyday - date set for
ECJ hearing
Following
our earlier reports on the claim by the campaign
group Heyday challenging UK age
discrimination legislation, it has now been
reported that the first hearing in the European
Court of Justice (ECJ) relating to this claim will
take place on 2 July 2008.
Heyday will seek to
challenge the mandatory retirement age of 65 on
the grounds that it is a breach of the Equal
Treatment Directive. It is
likely to be the end of 2008 or the beginning of
2009 before the Advocate General issues his
opinion and we receive the ECJ's judgment.
ICO - good practice
note on transfer of employee
information
The Information
Commissioner's office (ICO) has published
new
guidance to help employers
comply with the Data Protection Act 1998 (DPA)
when providing information about their employees
under the Transfer of Undertakings (Protection of
Employment) Regulations 2006 (TUPE
2006).
Under
TUPE 2006, a transferor must provide the
transferee with specific information about the
transferring employees, known as "employee
liability information". This
include the identity and age of the employees and
disciplinary and grievance records. It must be
provided no later than 14 days before the relevant
transfer, unless special circumstances make this
not reasonably practicable. Failure to disclose
this information may give rise to financial
penalties.
There
have been concerns that this provision breached
data protection principles, since, under the DPA,
employers must ensure that employees' personal
data is processed properly. The ICO's good
practice note therefore intends to clarify what
employers should do to comply with the DPA when
providing employee liability
information.
The
guidance includes the following
statements:
-
the DPA will allow the
disclosure of employee liability information
because it is required by law, but both parties
must take care to comply with data protection
principles when handling this personal
information (e.g. they should ensure that the
information is accurate, up to date and
secure)
-
if employers receive
requests for information about their
transferring workforce in addition to that
required under TUPE, they should, wherever
possible, release information that is anonymous
or, at the very least, remove obvious
identifiers, such as names. Employers should
only disclose this extra information with the
consent of the individuals concerned or
implement appropriate safeguards to ensure the
information will not be kept once it has been
used for the proposed
transaction
-
in relation to whether
employment records can be given to the new
employer, the former
employer would not need the employees' consent
to the transfer of their personal information if
it is necessary for the purposes of the TUPE
transfer and the business needs of both
parties
Guidance on CRB checks
for volunteers
The Cabinet Office has
issued guidance to help
organisations that use volunteers to be clear
about when they do and do not need to carry out
Criminal Records Bureau (CRB) checks on
volunteers.
The guidance aims to
establish good practice in the application of CRB
checks (which are free for volunteers) and to
ensure
that there is the correct balance between the need
to protect vulnerable groups and the need to take
a proportionate approach to risk management, of
which CRB checks are just one
part.
Talent not
tokenism
The CBI and TUC have
issued a joint report, Talent not
Tokenism, highlighting the
potential rewards and business benefits of greater
diversity in the workplace. A number of employers
who have sought to achieve greater workforce
diversity feature in the report and 12 case
studies provide good practice examples on how
diversity can be promoted.