It's oh so quiet...

Despite the lack of major legislation in progress, don't assume that 2008 will be a quiet year for employment law developments

The Journal, February 2008, page 40

As the serious social commentator Björk (said with tongue firmly in cheek) once sang: “It’s oh so quiet – ssshh ssshh – it’s oh so still…”. These words, for the year ahead, can be applied to employment law developments…or can they?   

A first glance at the legislation timetable will not reveal anything earth shattering. The annual increase in compensation limits on 1 February raised the limit on a week’s pay for the purposes of statutory redundancy payments and basic awards from £310 to £330, and the maximum compensatory award for unfair dismissal from £60,600 to £63,000.

Aside from this, a number of regulations are scheduled to come into force on 6 April, none of which make huge changes. The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007 are intended to increase protection for work-seekers, while reducing the administrative burden on agencies and businesses. It was originally intended to introduce wide-ranging reforms, but these have been watered down after consultation. The final tranche of the Information and Consultation of Employees Regulations 2004 (which have not made a huge splash) also come into effect in April, applying the regulations to those with 50 or more employees. For employment practitioners who also cover pensions, the Occupational Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (and associated regulations) are similarly extended.

Don’t drop your guard

So far, it remains “oh so still” and, with no employment legislation apparently scheduled for October 2008, you might think the year ahead will be largely free from the need to mug up on new provisions. You would be wrong. A number of legislative developments will progress during the year which are not yet firmly fixed in the calendar, along with a large number of important cases which are on appeal, or are the subject of a reference to the ECJ.

Regulations to amend the Sex Discrimination Act 1975 are expected to be published this month (but were not available at the time of writing). These will make the changes deemed necessary following the successful judicial review – instigated by the then Equal Opportunities Commission – of amendments made by the Employment Equality (Sex Discrimination) Regulations 2005. The new provisions will affect the areas of pregnancy and maternity leave discrimination, along with harassment. It can be expected that the changes will take effect during 2008.

Preparations will also take place this year for the Employment Bill, which will:

• clarify and strengthen the enforcement framework for the national minimum wage and employment agency standards;
• amend trade union membership law in light of a judgment of the European Court of Human Rights which involved the expulsion of a BNP member from a trade union; and
• repeal and replace the statutory dispute resolution regulations.

Practitioners will doubtless wish to respond to any further consultation exercises in the lead up to these provisions being finalised, particularly those who have found themselves in the quagmire often created by the dispute resolution regulations.

Busy times at the ECJ

While keeping one eye on these developments will take time, keeping an eye on case law is likely to prove the more onerous task this year. By way of a snapshot, two important ECJ decisions are expected, following references from UK tribunals and courts. In the past month, the Advocate General has handed down his opinion in both cases. In Stringer v HM Revenue and Customs C-520/06 he considered that an individual can accrue paid annual leave while off sick, but cannot take that leave while he or she remains off sick. In Coleman v Attridge Law C-303/06 the Advocate General opined that the EC Equal Treatment Framework Directive prohibits discrimination by association in relation to direct discrimination and harassment. This opens the way for carers of disabled people (such as Ms Coleman) to argue they have been discriminated against on the grounds of disability, whereas the Disability Discrimination Act 1995 is currently restricted to prohibiting discrimination on the grounds of the disabled person’s disability. The reference, once finally determined by the ECJ, is likely to have wider ramifications across discrimination law.

It is often said that in the majority of cases the ECJ’s judgment mirrors that of the Advocate General. However, there has been quite a spate of employment cases over the last year or so in which this has not happened: International Transport Workers Federation v Viking Line ABP C-438/05; Palacios de la Villa v Cortefiel Servicios SA C-411/05; Kiiski v Trampereen Kaupunki C-116/06; and Cadman v Health and Safety Executive C-17/05, to name but a few. So don’t be surprised if the ECJ disagrees with the Advocate General in the two references currently ongoing.

I hope this run through what lies ahead in 2008 is not liable to make you “Blow a Fuse” (the original song by Betty Hutton, covered by Björk).

Jane Fraser, Head of Employment, Pensions and Benefits, Maclay Murray & Spens

COLEMAN OPINION: HOPE TO CARERS

The Advocate General’s opinion in Coleman v Attridge Law considers that the EU Equal Treatment Framework Directive prohibits discrimination against a disabled person’s carer on grounds of disability, as well as discrimination against the disabled person him or herself.