Legal: Employment law and the coalition government

The past month has seen the end of 13 years of Labour rule, and in its place is a new coalition government that has promised a widespread review of employment and workplace laws. This article will highlight some of the most crucial proposed changes, how they may affect your business, and practical changes you can make in anticipation of their introduction.

Equality

The most noticeable changes to employment law in the near future will be in relation to equality, more specifically the introduction of the Equality Act 2010. This is due to come into force in October. An article outlining the potential impact of the Equality Act (then the Equality Bill) was published in the January 11, 2010, issue of The Publican.

While the Liberal Democrats are generally in favour of the Act, the Conservatives have strongly hinted that they wish to curtail certain provisions.

Gender pay reporting

Contained in the Act is a provision that private businesses with 250 or more employees be required to publish information regarding the differences in pay between male and female employees.

Though not intended to be compulsory before 2013, such audits would nevertheless become very onerous for larger employers. The Conservatives have strongly indicated that they wish to scrap this particular provision, making it applicable only to employers that have previously discriminated on the basis of gender. Regardless of any potential changes, however, it would still be prudent to routinely ensure that there are no gender pay gaps in your workforce.

Secrecy clauses

The Equality Act will render unenforceable any clause preventing employees speaking to their colleagues about their salary. The Conservatives have previously indicated that they would seek to completely prohibit any such clauses in employees' contracts. Whether the wording used is one of 'unenforceability' or 'prohibition', it is inevitable that in the future employers will not be able to prevent employees disclosing and discussing details of their pay.

Positive action

In a Commons' debate immediately prior to the election, the Conserv-atives also stated that they would not introduce the provision relating to 'positive action'. This provision allows employers to take into account the under-representation of certain minority groups when selecting between two equally-qualified candidates for a position. Whether or not this will be removed remains to be seen, however, in practice it will be a rare situation where two candidates are identical, so the scope of positive action is likely to be limited.

National minimum wage

The coalition government has shown support for the national minimum wage. The wage rate is set to rise from October 2010, so from that date the rates will increase as follows:

• From £5.80 to £5.93 an hour for employees aged 21 and over

• From £4.83 to £4.92 an hour for employees aged 18-20

• From £3.57 to £3.64 an hour for employees aged 16-17.

Family-friendliness

The coalition government plans to build on existing 'family-friendly' legislation and has announced that it intends to extend the right to request flexible working to all employees. While no date has been published for its implementation, the recent Queen's Speech indicates that businesses will need to be fully consulted, so a hasty introduction seems unlikely. The government also plans to encourage shared parenting from the earliest stages of pregnancy; and has indicated that this will include a system of flexible parental leave.

Agency workers

Agency workers form a large portion of the workforce in the drinks and hospitality industry, with the main appeal being the flexibility they offer employers. Under European law, the Agency Workers Regulations must come into force by October 2011.

As currently drafted, the regulations will give temporary workers equal rights with permanent employees in respect of pay, hours and holiday after only 12 weeks in a job. Ultimately, it will become more costly for employers to hire agency workers for more than 12 weeks and the Conservatives have warned that the regulations may actually harm the agency market, as employers will be less inclined to hire such workers. The government may therefore seek to amend the regulations to make them less onerous for employers. However, they will still need to be compliant with the EU Temporary Agency Workers Directive and so it is difficult to see how any significant changes could be made.

Legal Q&A

My staff can't get back from holiday

Q One of my bar managers has been unable to return from holiday due to an airline strike? Do I still have to pay him?​

A​ Employers can treat those employees who cannot return to work at the end of an authorised holiday absence as taking an unauthorised period of absence and argue that there is no requirement to pay them. However, to make such a deduction in the absence of an express clause in the contract of employment could give rise to an unlawful deduction of wages claim.

What can I do then?

Q What other options are there?​

A​ You could suggest to the employee that they will continue to be paid as normal but they will be required to make the time up when they return. Alternatively, if they have accrued but not used holiday in the leave year, you could ask them to extend their current period of holiday or they could choose to take the time off as unpaid leave instead.

Does it call for a disciplinary?

Q Can I discipline an employee who is unable to return to work?​

A​ Provided the reason for the employee's failure to return is genuine and out of his or her control then this would not be grounds for disciplinary action. However, there may be grounds for disciplinary action if the employee does not attempt to contact their employer or keep them updated of their travel plans and when they anticipate they will be able to return to work.