NEW LEGISLATION Abolition of default retirement age From 1 October 2011, the statutory "default retirement age" of 65 disappears. You can no longer terminate employment just because the person is 65. You will need to justify the dismissal/termination or risk costly claims of age discrimination and unfair dismissal. So be aware.

New rule on equal treatment for agency workers The temporary labour you employ to give flexibility to meet schedules has new rights. From 1 October, temporary/agency workers are entitled to have the same basic working and employment conditions, such as pay and holidays, as permanent employees, once they have worked continuously for 12 weeks in the same job.

From the first day of their assignment, agency workers will also have equal access to on-site facilities such as childcare and transport services, as well as the right to be notified of relevant job vacancies in the hiring organisation.

The legislation will enable agency workers to bring a claim if they feel that their rights under the regulations have been infringed or that they have been subjected to a detriment for asserting their rights under the regulations.

These regulations are expected to increase costs to printers and some have already outsourced sections of their labour requirement (such as bindery staff) to outsourcing companies in an attempt to reduce cost and pass this risk on to them.

Others are requiring rotation of temporary staff so they don’t reach the 12-week qualifying period. It’s a trade-off between continuity and increased cost.

Those with fixed-price temporary labour contracts may be insulated initially as the provider will have to foot the bill.

National minimum wage (NMW) The NMW for adults will increase by 15 pence from 1 October 2011 to £6.08. The other changes are £4.98 for 18- to 20-year-olds; £3.68 for 16- to 17-year-olds and £2.60 for apprentices.

2011 CONSULTATIONS

A new system of shared flexible parental leave Currently mothers are entitled to 52 weeks’ maternity leave and fathers have paternity leave rights. What’s proposed is that 18 weeks’ "maternity leave" would be reserved exclusively for mothers, with the remaining 34 weeks (which would be reclassified as "flexible parental leave") available to be divided between the mother and father as they see fit.

Right to request flexible working extension The government is committed to extending the right to request flexible working to all employees who have been continuously employed with the same employer for 26 weeks. The proposals include replacing the complex step-by-step process with a duty to consider requests "reasonably" taking into account a new Code of Practice. Employees can make more than one request in any 12-month period.

While some employers will welcome the dismantling of the current inflexible request process, others are likely to see this as a burdensome reform, particularly in light of the management time associated with dealing with the possibility of additional requests.

Annual leave In an attempt to resolve uncertainty following a series of problematic European and UK judgments on the rights of workers who are unable to take holiday due to sickness, the government also proposes to amend the Working Time Regulations 1998. The proposals include:

• Permitting a worker to carry over the first four weeks of statutory leave to the next holiday year where it has not been possible to take their annual leave due to sickness absence or reschedule the leave in the current leave year. Employers would be able to "buy out" the additional 1.6 weeks’ leave or require workers to defer that leave into the following leave year if this can be justified for business reasons.

• Permitting carry-over of the whole of the 5.6 weeks of statutory leave where a worker has been unable to take their annual leave due to absence on maternity, adoption, parental and paternity leave.

The government’s proposals should provide some welcome certainty and flexibility for employers in this notoriously difficult area. However, managers should remain cautious about making decisions about staff based on sickness absence without first investigating the cause of absence so as to avoid potential disability discrimination claims.

Equal pay audits The government is also proposing to introduce new legislation that will require employment tribunals to order an employer to conduct a pay audit where that employer has been found to have discriminated because of gender in relation to pay.

The government aims to legislate on flexible parental leave, flexible working and equal pay "as soon as possible" in this parliament. Secondary legislation to amend the Working Time Regulations is expected to be implemented sometime in 2012.

ANNOUNCEMENTS

Extension of employment law review to reduce the cost to business The good news is that government aims to reduce the financial burden on businesses while still being fair to employees.

As part of its review of employment "red tape", the Department of Business, Innovation and Skills has pledged to review further areas of employment law, particularly what is being called ‘the gold-plated awards’.

Top of its agenda is the unlimited compensation available in discrimination tribunal claims, which is thought not only to encourage weak, speculative or vexatious cases but also has attracted some very high awards . The view is that some have been disproportionate.

 Also in the spotlight are the consultation periods for collective redundancies, which some employers complain hinders their ability to restructure effectively. The government is also looking to reform TUPE by removing its ‘gold-plated’ protections, which go beyond those required under EU law.

A consultation on reforming the tribunal system to make it fairer for employers has already been undertaken this year. The outcome is awaited but possible changes include increasing the qualifying period for bringing an unfair dismissal claim from one to two years and introducing fees to lodge a tribunal claim, aimed at reducing the level of speculative claims.

2012 BANK HOLIDAY

Tuesday 5 June 2012 will be a bank holiday, to commemorate the Queen’s Diamond Jubilee. The late May bank holiday will be moved to Monday 4 June, to allow for a four-day weekend of celebrations.

However this does not necessarily mean employer’s have to pay for this extra day. Any right to time off or extra pay for working on a bank holiday will depend on the terms of the contract of employment.

Philippa Dempster is a partner at Freeth Cartwright