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Employment law has been undergoing radical changes for some time and reforms seem set to continue indefinitely. Recent advancements both in Europe and in the UK are overwhelmingly legislative. The flood of employment legislation relates to the ambitious goal, set at the Lisbon European Council, of making the EU "the most dynamic, competitive, sustainable knowledge-based economy, enjoying full employment and strengthened economic and social cohesion".
Although Europe's commitment to promoting full employment and better jobs underlies recent legislative developments, social concerns are secondary to plans for economic advancement. Improved working conditions will promote productivity and give Europe a competitive advantage. In a nutshell, this legislative bonanza is designed to further the European economy while also benefiting society.
Domestic legislative advances are largely in response to EU developments. The Department of Trade and Industry (DTI), through its Employment Relations Directorate, is ostensibly working towards a legislative framework to promote a skilled and flexible labour market that is founded on principles of partnership between workers and their employers. Many employers complain that new laws impose disproportionate burdens on them, despite the DTI's assertion that new legislation balances the conflicting interests of employers and employees.
The Employment Bill
In the UK this year, the Employment Bill has dominated over all other developments. The bill was introduced in the House of Commons in November 2001 and has since been the subject of much commentary.
The bill amends existing legislation and establishes new rights, many of which are reliant on regulatory implementation to clarify the finer details, but there appears to be an emphasis on fair procedures.
Upon the bill's introduction, Secretary of State for Trade and Industry Patricia Hewitt stated: "This government is committed to delivering for working families and to simplifying regulation for business."
The bill represents a step forward for employment relations. It achieves this by promoting the consideration of employees' family needs by establishing paternity, adoption and maternity rights to enable flexible working arrangements and by encouraging improved communication between workers and employers by way of statutory grievance and disciplinary procedures. Less publicised, but equally fundamental, are provisions: varying employment tribunal procedures and regulations; preventing the less favourable treatment of fixed-term employees; altering rules on written statements of employment; expanding the scope of compromise agreements to enable the full and final settlement of all claims; and establishing rights for union learning representatives.
The bill met with positive reactions, but some concerns have nevertheless been raised. New rules that tribunal applications may not proceed unless claimants have raised the matter in statutory grievance proceedings could disadvantage workers in small companies where the abuser is the very person to whom complaints would have to be made. Another concern is that employers may try to exploit a loophole outlining that "minor" breaches of dismissal procedures will no longer matter.
The bill has reached the House of Lords and was amended by the Grand Committee on 22 April. The new law is expected to come into force in April next year.
The Draft Directive, amending the Equal Treatment Directive
The 1976 Equal Treatment Directive remains a fundamental source of discrimination law. But to reflect the inevitable changes of the past 26 years, the Draft Directive, amending the 1976 directive, has been progressing slowly through the European institutions. The Council and Parliament Conciliation Committee agreed further amendments in April to incorporate European Court of Justice (ECJ) case law and two recent EU directives - the General Framework Directive and the Race Directive.
The main modifications are the introduction of paternity rights and the extension of the definition of sex discrimination to include sexual harassment, thus providing the first legislative definition of what constitutes sexual harassment: "Any form of unwanted verbal, non-verbal or physical conduct of a sexual nature [which] occurs with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment." For many European countries this will initiate radical change, but in the UK it mostly confirms rights that are already recognised in our courts. The Draft Directive shifts the burden onto employers to prevent harassment and the ECJ will become the final appeal forum.
The Conciliation Committee's amendments also include extending the definition of discriminatory conduct to include instructions to discriminate on grounds of sex, and strengthening post-maternity rights. In addition, member states and employers must actively prevent discrimination and promote equal treatment between men and women. Companies will have to produce regular equality reports containing gender breakdowns of the workforce.
The Draft Directive remains subject to approval by the European Council and Parliament, which is anticipated by early June, thereby adopting the legislation that is expected to come into force in 2005.
The UK has begun implementing proposals from the Race Directive and the General Framework Directive following the DTI consultation 'Towards Equality and Diversity'. The resulting bills are now before Parliament.
The Disability Discrimination (Amendment) Bill deems HIV and cancer to be disabilities, extends the application of the Disability Discrimination Act 1995 and expands the available remedies. The Religious Discrimination and Remedies Bill renders it an offence to discriminate against employees on grounds of religious belief or membership (or non-membership) of a religious group. It reflects the sex and race discrimination legislation, but the absence of a definition section on publication means that it is unclear to whom it will apply. It was also silent on remedies (despite the title) and enforcement procedures. The Age Discrimination Bill makes it unlawful to discriminate on grounds of age and establishes an Age Equality Commission.
In a climate where tribunal claims are up, it remains to be seen whether additional employee rights will lead to more claims or whether encouraging dispute resolution will result in fewer. However, we can be certain that these already far-reaching changes will lead to further developments. The Employment Bill provisions enabling parents to request flexible working arrangements may constitute a first step towards a more general right for any employees to request flexibility. The scope of discrimination legislation is to be extended still further and the DTI is already consulting on a number of other issues.
While some argue that the influx of legislation places an excessive burden on employers, others advocate still greater protection for workers. All will agree that we are far from seeing the end of the employment law overhaul and can expect further developments, both from legislation and the interpretation of provisions by the courts.
Donna Moxham is the employment editor at Lawtel
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