New law expected in 2007. By Charles Price

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Barrister Charles Price details the new legislation expected in 2007.

Smokers forced into the open
As the law stands there is no specific provision requiring or preventing employers from banning or allowing smoking at work. This changes in England on 1 July 2007 when smokers will find that virtually all substantially enclosed public places and workplaces including vehicles will become 'smoke free'.

New criminal offences will see the following changes:

  • Fines or penalties introduced for failure to:
  • Provide no smoking signs in smoke-free premises or vehicles
  • Enforce no smoking rules
  • For smoking any substance where smoking is prohibited

Enclosed premises under the new Regulations means to: 'have a ceiling or roof' and except for doors, windows and passageways are wholly enclosed either permanently or temporarily. This would include rooms with a sliding roof or canvas awning.

The premises in which smoking is banned will include any enclosed premises used as a place of work by more than one person, even intermittently. It follows that it will be illegal to smoke even if a room is set aside as a dedicated "smoking room". The "smoke free" provisions will be implemented by regulations in force from 1July 2006.
In Scotland, similar rules came into effect on 26 March 2006 and on 2 April 2007 in Wales.

New discrimination laws
The Equality Bill was enacted as the Equality Act 2006 on the 16 February 2006. Its main purpose is to make unlawful discrimination on the grounds of religion or belief in the provision of goods, facilities and services, premises, education and the exercise of public functions.

Another purpose is to impose a duty on public authorities to promote equality of opportunity between men and women and to prohibit sex discrimination in the exercise of public functions.

Another important feature of the Act is the establishing of a Single Equality Commission 'The Commission for Equality and Human Rights' or CEHR or replace the Equal Opportunities Commission the Commission for Racial Equality and the Disability Rights Commission. The CEHR will start operation in October 2007.

£75,000 fines for employers who fail to consult with employees on management decisions
From April 6 2005, employees in larger firms have the right to request their employer to inform them of, and consult with them about, business matters which affect their employment. The Information and Consultation of Employees Regulations 2004, SI 2004/3426 2004, drawn up after discussion with the CBI and TUC, implement in Britain the National Information and Consultation Directive 2002/14/EC, formally adopted on 11th March 2002. The directive requires affected employers to have in place arrangements giving employees the opportunity to be informed and consulted on management decisions affecting their future. The following decisions are encompassed by the new Regulations:

  • Changes in work
  • Organisation
  • Contractual relations
  • Redundancies
  • Job transfers

The new law applies to companies with over 100 employees from 6 April 2007 and more than 50 employees from April 2008. If at least 10 percent of the workforce exercise this right the employer must set up a regular system for information and consultation as per the Regulations.
It is automatically unfair dismissal for an employer to dismiss an employee for seeking to exercise rights to which he is entitled under the Regulations.

Right to flexible working extended
With effect from the 6 April 2007 the right to request flexible working is extended to employees with responsibility for caring for;

  • Spouses / partners
  • Adult relatives
  • Adults living at the same address as the employee.

The new rights extend the existing law introduced from 6 April 2003, whereby parents and others who are responsible for looking after children aged under (or under 18 if the child is disabled) have the legal right to ensure that requests they make for flexible working arrangements are taken seriously by their employers. The employee must have been employed in his job for at least six months to be eligible.

Holiday boost
Proposals have been put forward for the current four week statutory minimum holiday entitlement to be increased. The two stage increase will mean that four weeks will turn into 4.8 weeks from 1 October 2007 and from 4.8 weeks to 5.6 weeks on 1 October 2008. There still exists no statutory right to time off on bank and public holidays with or without pay.

Work and Families Act 2006
The main aim of the legislation is to improve the 'work life balance'. The most important provisions allow for:

  • 52 weeks statutory maternity leave for all working mothers regardless of service
  • Extension of the period for maternity pay from 26 weeks to 39 weeks from April 2007 with provision to extend to 52 weeks
  • Enabling the father to be able to take paid additional paid paternity leave of up to 26 weeks if the mother returns to work without using up her entitlement
  • Providing arrangements whereby the employers and employees can keep in contact during the leave period and requiring an employee to give eight weeks notice if intending to return to work before the end of the maternity leave period.

New rights for temporary agency workers
An EU inspired move is under foot to give temporary agency workers have the same basic employment law rights throughout the EC. The only trouble is that until further discussions the proposals have been 'temporarily shelved'. If and when the directive is eventually adopted employers will have to provide the same terms and conditions for temporary agency workers as for their permanent workers, subject to an exception for agency workers who are on fixed term contracts and are paid between placements. This will include a right for temps to be informed about permanent vacancies and to have access to all training and social facilities.

Recent case law has rejected the recent trend in employment tribunals of merely implying from a contract that the end user of such a worker is the employer.

Junior doctors get a break
Originally, the 48 hour maximum working week introduced by the Working Time Directive did not apply to junior doctors. A subsequent amending directive closed the loophole on the Government and now from the 1 August 2007 to 31 July 2009 it will be 56 hours; and from 1 August 2009 it will be the normal 48 hours.

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