From a legislative perspective 2009 could, like 2008, have been a rather quiet year, reports Sara Bean. But that wasn't allowing for the return of Mandy.

The impact of the recession, coupled with a speech by the then Secretary of State for the Department for Business, Enterprise and Regulatory Reform (BERR) John Hutton last May, stating that the Labour Government had reached the 'end of the era of employment legislation' made it seem unlikely that much new law would appear on the statute books.

But the return of Peter Mandelson as the Secretary of State at BERR, with his avowed belief in putting in place an 'element of fairness into the labour market' means that despite the recession, a series of new or altered legislation - including the Equality Bill, the right to request time off to train and an extension to the right to request flexible working are all in the pipeline.
 
Meanwhile a whole series of new regulations pertaining to pay, foreign workers, HSE and dispute resolution have recently come into play.

EMPLOYMENT BILLS

The Equality Bill
According to Harriet Harman, Minister for Women and Equality: "This Government is unconditionally committed to equality. We're not going to put it on the back burner just because times are difficult: fairness and equality are enduring principles of basic human dignity - and fairness doesn't cost anything."

In what would be of particular significance to facilities management teams working within the public sector, the new Equality Bill, which is expected pass through Parliament later this year, will increase duties on the public sector to eliminate age discrimination and promote age equality. The new regulations will also be applied to age discrimination in the provision of goods and services. This means not only public sector employers – but any private firms bidding for state work - will be required to report on whether they include disabled people in their workforce.

Within the private sector, the Bill also addresses inequalities in pay scales, with more openness encouraged to help expose gender pay gaps.

Five new measures are proposed:

• Outlawing clauses in employment contracts that prohibit employees disclosing their pay to each other
• Considering how public procurement can be used to deliver change
• Providing for an Employment Tribunal to be able to make a recommendation applying not just to the successful complainant but to everyone in the workplace
• Having the Equalities and Human Rights Commission conduct inquiries under its legal powers into sectors where most progress needs to be made, starting with the financial services sector, and
• Creating a new kite-mark system to challenge companies to report on equality.

Right to request time off for training

Within The Apprenticeships, Skills, Children and Learning Bill is the proposal that every worker should have the right to request time to train: "Those who are in work are able to get the time needed to go on a course of study to advance their careers and realise their potential, employees will be given a right to request time off for training, and employers must consider it properly."
 
Skills Secretary John Denham has argued the legislation will give many workers their first proper chance to have a serious discussion with their managers about their training needs. Aware of the strain this may place on employers, however, Ministers are also determined to ensure that the new right will not be a burden to business. So the proposals should fit with what the best employers are already doing, while encouraging others to follow those good examples.

Commenting on the proposals, Denham said: "Under the terms of the Bill, employers will be legally obliged to seriously consider requests for training, but could still refuse a request where there was a good business reason to do so in a similar way to how flexible working requests currently work."

It's not certain as yet when this Bill will come into law; it could be by the end of year or into early 2010.

New rules

Aside from a series of Bills, a raft of new regulation that impacts on facilities managers has recently come into force.

Extension of flexible working

There had been rumours that this change would be delayed to help businesses cope with the economic downturn but as of 6 April 2009, the right to request flexible working was extended to parents of children up to the age of 16. In a further extension to the Flexible Working (Eligibility, Complaints and Remedies) Regulations, this affects an extra 4.5m parents and follows the publication of the Government's independent review on flexible working.

New immigration system

The UK's new Australian-style immigration system will continue to be phased in this year to replace work permits and is designed to ensure that only skilled workers come to the United Kingdom, and only when needed. Under the new system, employers will act as sponsors of migrants and will be able to recruit from abroad only if necessary. The points based system applies to all migrant workers from outside the European Economic Area (EEA) and Switzerland. To work in the UK, migrants will need to pass a points-based assessment. The amount of points required will depend on the tier, but points will be awarded to reflect the migrant's ability, experience, age and when appropriate, the level of need within the sector the migrant will be working in. If an employer wishes to recruit a migrant under tiers 2, 4 or 5, they will have to apply for a sponsor licence.

Although mostly in place by now, the system will continue to have an effect over the coming year as employers put it to the test.

Increase of statutory holiday allowance

The holiday entitlement increased to 5.6 weeks (28 days for full time staff) from 1 April 2009, pro-rata for those working part-time. The holiday entitlement is inclusive of bank holidays.

Changes to dispute resolution

Last year, ACAS published a revised code of practice on discipline and grievance to implement the proposed repeal of the statutory disciplinary and grievance procedures contained in the Employment Act. The draft code, which came into force in April 2009, aims to provide basic practical guidance to employers, setting out principles for handling disciplinary and grievance situations in the workplace.

According to the Employment Act 2008, which came into force on 6th April, the mandatory 'three-step' processes for disciplinary and dismissal procedures undertaken by an employer and for grievances raised by an employee were repealed.

Instead, the Tribunal will consider the procedure that has been followed by the parties in dealing with the disciplinary matter or grievance. A revised statutory ACAS Code of Practice will set out the principles of what an employer and employee should do to achieve a reasonable standard of behaviour.

The Tribunal will consider whether a failure to follow the Code was unreasonable (taking into account factors such as the size of the business) and will have discretion to adjust awards up or down in relation to either party.

The new ACAS Code of Practice, which has been drafted with the benefit of experience of the defects of the old law, completely underpins the new system.

Ali Moran, one of Workplace Law's HR Advisors didn't feel the old statutory dispute resolution procedures had much of an impact on the day-to-day running of the workplace - until something went wrong: "The one thing that is absolutely fantastic [about the repeal of the statutory dispute resolution procedures] is that there will be no automatic unfair dismissal merely for failing to follow process," she says - though she does have some concerns about the supposed simplicity of the new ACAS Code.

"The ACAS Code is definitely more detailed than the three-step process and it will require a little bit more work on the part of the employer," Moran explains. "It introduces a new step - investigation - and because there wasn't anything in the statutory process that talked about investigation, it will put an extra bit of responsibility on the employer to actually prove that they have done some kind of investigation, whatever that might be."

For a copy of the 12-page booklet from ACAS, visit the ACAS website at www.acas.org.uk/dgcode2009 .

The Health and Safety Information (Amendment) Regulations

The Health and Safety Information for Employees Regulations 1989 required an employer to display certain HSE-approved posters or provide employees with HSE-approved leaflets. On the posters and in the leaflets, the employer was required to write or provide the name of the enforcing authority, their address and also the address of the local office of the Employment Medical Advisory Service. This information then had to be constantly updated to remain accurate.
 
The amendments, which came into force on 6th April 2009, allow the HSE to publish posters and leaflets which do not require the addition or updating of this information. According to the HSE, this will reduce 'an unproductive burden, whilst maintaining or improving employees' access to useful information'.

Importantly, the changes also stipulate that 'the documents must be understood by employees who have visual and/or learning difficulties, poor English reading skills, and work in an environment where the risk of being denied employment rights is high'.

More to come

Aside from employee-related issues, for FMs this year has already meant a growing number of energy management obligations such as Energy Performance Certificates (EPCs) and Display Energy Certificates (DECs). Over the coming year, FMs will need to prepare for the Government's Carbon Reduction Commitment (CRC), part of a package of measures within the Climate Change Act - which from April 2010 will require all firms with an energy bill of more than a million pounds a year to comply with new legislation to reduce carbon emissions and improve energy efficiency. The Government has issued some guidance to the Carbon Reduction Commitment to help firms prepare for the legislation. Visit www.defra.gov.uk/carbonreduction to download the guide and for the latest legal updates and advice visit www.workplacelaw.net .


Sara Bean is Managing Editor of Workplace Law Group.

www.workplacelaw.net