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Smoking ban comes into force in July

Under the provisions of the Health Act 2006, workplaces in England became smoke-free on 1st July 2007 and in Wales they became smoke-free on 2nd April 2007.

Virtually all workplaces, including offices, factories, shops, pubs, bars, restaurants, membership clubs, public transport and work vehicles that could be used by more than one person are now smoke-free environments.

It is also an offence for those employers who control or manage smoke-free premises to fail to stop people smoking on them. Employers have a valid defence if they take reasonable steps to prevent people smoking; do not know or cannot reasonably be expected to know that they are smoking; or can show other grounds why it is reasonable not to fulfil their duties.

Employers are also under a duty to ensure that statutorily compliant no-smoking signs are displayed at all entrances, unless they could not have been expected to know that signs previously in place had been removed by vandals.

Employers need to introduce appropriate no-smoking procedures and disciplinary policies and communicate them to their workforces before the new rules come into force.

Indoor smoking rooms, still common in some workplaces, are unlawful and employees and others wishing to smoke will have to go outside or into a compliant shelter that is neither "enclosed" nor "substantially enclosed" under the definitions set out in the draft smoke-free regulations.

Yet more change forecast as the Employment Simplification Bill is announced and the DTI is disbanded

Prime Minister Gordon Brown has disbanded the Department for Trade and Industry (DTI) and has replaced it with the Department for Business, Enterprise and Regulatory Reform (DBERR). The DBERR – now headed by Secretary of State for

Business, Enterprise and Regulatory Reform John Hutton - is responsible for employment regulation and also incorporates the Better Regulation Executive (BRE), formerly part of the Cabinet Office.

Employment regulation itself is now also pegged for a shake up, following the Government’s recent announcement of the Employment Simplification Bill.

The Bill looks set to implement the Gibbons review of workplace dispute resolution procedures and to lead to the repeal of the widely criticized statutory dispute resolution procedures and to the implementation of an as yet undefined replacement package. National Minimum Wage enforcement and employment tribunal reform are also on the agenda.

Sherrards added its voice in support of the abandonment of the unworkable and ill thought through dispute resolution procedures, principally via its contribution to the CBI’s Gibbons review consultation response. It remains to be seen what form the replacement package will take and when it is likely to come into effect as enacted legislation.

http://www.dberr.gov.uk/

European Court rules on important equal pay case

The European Court of Justice (ECJ) has ruled that employers are generally free to use length of service as a criterion in pay systems, even if the result is unequal pay between men and women.

The judgment in Cadman v Health and Safety Executive (HSE) established that employers do not need to provide specific justification for using length of service in appropriate circumstances – but employers must still be wary.

The ECJ left open the possibility of successful equal pay claims where workers can raise serious doubts about the appropriateness of rewarding length of service in particular jobs – and the employer cannot justify the practice.

The case has now gone back to the Court of Appeal to decide whether Mrs Cadman can establish that there are “serious doubts” about it being “appropriate” for the HSE to use of length of service in setting pay levels designed "to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better".

2007-08 statutory payment rates announced

Her Majesty's Revenue & Customs (HMRC) has announced that Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP) and Statutory Adoption Pay (SAP) will increase from £108.85 to £112.75 per week from 1 st April 2007. Flat rate of Statutory Sick Pay (SSP) will increase from £70.05 to £72.55 per week from 6 th April 2007.

Annual announcement of Tribunal compensation increases

The annual round of increased compensation limits for infringement of employment rights has been announced, raising ‘a week's pay' to £310 (from £290), the maximum compensatory award to £60,600 (from £58,400) and the minimum basic award for some forms of automatic unfair dismissal from £4,000 to £4,200.

The new limits are effective if the ‘appropriate date' (e.g. effective date of termination) falls on or after 1 st February 2007. The ‘appropriate date' can vary depending on the nature of the claim and advice should be sought on whether the new rates apply to a particular case.

Raft of new employment law legislation comes into force on 1 st October 2006.

In addition to the much publicised Employment Equality (Age) Regulations 2006, outlawing unjustified age discrimination in employment and vocational training, several other regulations came into force on 1 st October 2006:

The national minimum wage rates have increased to £5.35 per hour for workers aged 22 or over; to £4.45 for those between 18 and 21; and to £3.30 for those under 18 under the National Minimum Wage Regulations 1999 (Amendment) Regulations 2006.

Under the Maternity and Parental Leave etc and Paternity and Adoption Leave (Amendment) Regulations 2006 all pregnant female employees will now qualify for additional maternity leave, irrespective of their continuous service; the notice employees must give an employer of changes to their maternity leave plans increases from 28 days to 8 weeks; 10 ‘keeping in touch days' will allow employees on maternity leave to do a limited amount of work for their employer without losing their maternity leave and pay entitlements; and employers will be able to make reasonable contact with employees on maternity leave to make arrangements for their return. The regulations also mirror these changes in relation to adoption leave.

The Statutory Maternity Pay, Social Security (Maternity Allowance) and Social Security (Overlapping Benefits) (Amendment) Regulations 2006 and The Statutory Paternity Pay and Statutory Adoption Pay (General) and the Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) (Amendment) Regulations 2006 extend the period of maternity/adoption allowance to 39 weeks for mothers/adopters whose expected week of childbirth/adoption placement falls on or after 1 April 2007; and

The Working Time (Amendment) (No.2) Regulations 2006 clarify the definition of 'offshore work' for the purposes of the Working Time Regulations 1998.

Inadequate grievance handling leads to successful sexual orientation discrimination claim

The Employment Tribunal has upheld an employee's claims of discrimination on grounds of sexual orientation and constructive dismissal, indicating that employers that fail to take adequate steps when faced with grievances about homophobia are likely to be found to have discriminated and to have breached the contract of employment.

In Martin v Parkam Foods Limited (2006), the Employment Tribunal took a dim view of the employer's failure to address homophobia in the workplace and found that Mr Martin had been directly discriminated against and to have been unfairly constructively dismissed.

One of the main issues was failing to deal with anti-homosexual graffiti. The company had anti-discrimination policies and procedures and eventually put notices up threatening disciplinary action. The Tribunal found that the company had not followed its own procedures, had not used its ‘best endeavours' to address the discrimination at the root of the problem and had failed to apologise to Mr Martin for the distress and embarrassment caused.

This Tribunal judgment indicates the level of investigation and the kind of approach that an employer would be advised to take when faced with complaints of homophobia. It will not be enough to have policies in place and to carry out an investigation and it may also be necessary to challenge employees' attitudes towards homophobia and educate staff on this area of discrimination.

The employer's defence that it employed other gay and lesbian employees and therefore did not discriminate against the Mr Martin carried no weight with the Tribunal, sending a message that evidence of diversity of the employer's workforce may in some cases be of little assistance where the employer is seeking to argue that discrimination is unlikely to have occurred.

Age Discrimination unlawful from 1st October 2006

The much publicised Employment Equality (Age) Regulations came into force on 1 st October, making unjustified age discrimination in the workplace unlawful. However, a recent survey indicates that many employers may be more exposed than they think to claims of age discrimination.

The Employers Forum on Age survey has indicated that ageism is rife and that many in the working population are unaware or unprepared for the change in the law. The survey found that, of those surveyed:

• About 60% have experienced some form of ageism in the workplace

• 41% have seen people doing the same job being managed differently depending on their age;

• 31% believe that they have worked where an older person doing exactly the same job as a younger person was paid more because of their age;

• 23% know of a younger person in their current workplace being overlooked for promotion in favour of an older person, despite their having more experience; and

• 27% have seen someone being employed because they were of a similar age to themselves and their colleagues, to ensure a 'good team fit'.

The Age Regulations affect employers and potential employers alike and employers are being advised to: remove date of birth from the main section of their application forms; avoid asking for education dates and other age sensitive information except where necessary; vet job adverts for age discriminatory inferences and requirements; run updated Equal Opportunities training for staff; review handbooks and policies; and introduce Age Regulations compliant retirement policies and procedures.

No escape from prior decision to dismiss

The Employment Appeal Tribunal has handed down a judgment in Waters v Bankside Leisure Ltd that serves to underline to employers that a dismissal is likely to be held unfair where the decision to dismiss has been reached prior to the Step 2 statutory dismissal meeting.

The EAT remitted the case back to the Employment Tribunal for a rehearing, having established that approaching a disciplinary procedure with the decision already made could not be described as a procedural failing and that the fallback s.98A(2) Employment Rights Act 1996 'procedural error' escape clause could not be relied upon by the employer.

New Maternity and Adoption Leave Regulations published

The new Maternity and Adoption Leave Regulations have been published and will come into force on 01 October 2006, although their provisions will only affect employees whose expected week of childbirth, or expected date of adoption, is on or after 1 April 2007.

The Regulations remove the current requirement for 6 months service to qualify for Additional Maternity Leave (“AML”), meaning that any employee qualifying for Ordinary Maternity Leave (“OML”) will automatically qualify for AML. While the current OML/AML differences, such as return to work provisions, will largely remain, AML early returners will have to give their employers eight, instead of four weeks notice of their intention to do so.

The Regulations also provide for Keeping In Touch Days, an optional arrangement whereby employees will be allowed to agree up to 10 days work during statutory maternity leave without losing their maternity leave rights. The Employment Rights Act will be amended to provide protection from detriment or dismissal in respect of undertaking, or not undertaking work during Keeping In Touch Days.

The Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006 SI 2006/2014 can be found at:

http://www.opsi.gov.uk/si/si2006/20062014.htm

Draft smoking ban regulations published

The Smoke-Free (General Provisions) Regulations have been published in draft form by the Department of Health, beginning a consultation period that runs until 09 October 2006.

The draft legislation indicates that enclosed work premises (i.e. those with a ceiling and more than 50% walled separation from the outside) will be smoke-free and occupiers (including employers) will need to display prominent No Smoking signs. Employers will not be allowed to provide designated ‘smoking rooms' and company cars (except convertibles with the roof down!) will also be covered by the regulations; being deemed smoke-free if they might be used by more than one person. Bedrooms in residential accommodation will be exempted.

Any employee (or visitor) caught smoking will be subject to a £50 fine. Penalties will be variable as there will be a discount to £30 for penalties paid within 15 days and a potential uplift to a maximum of £200 (and a criminal record) if the penalty notice is unpaid or challenged.

Employers will be fined £200 for not displaying the required No Smoking sign and up to £2,500 for failure to take reasonable steps to prevent smoking (signs alone not being enough).

A large pdf file of the draft regulations can be found at:

http://www.dh.gov.uk/assetRoot/04/13/73/26/04137326.pdf

House of Lords allows harassment claims against employers

The House of Lords has upheld the Court of Appeal's ruling in Majrowski v Guy's and St Thomas ' NHS Trust that employees can bring harassment claims in the county court against their employers, under the principles of various liability.

Mr Majrowski, a clinical co-ordinator at Guy's and St Thomas' NHS Trust, claimed against his employer - under the Protection from Harassment Act 1997 - that he had been bullied, intimidated and harassed by his manager at work.

Having had his case struck out by the trial judge, Mr Majrowski appealed to the Court of Appeal, which ruled in his favour, establishing that employers can be held vicariously liable for breaches of statutory duty committed by their employees in the course of their employment, except where statute excludes such liability either expressly or as a matter of construction and public policy.

The House of Lords unanimously agreed with the Court of Appeal's decision and, having established the legal principle, Mr Majrowski will now be able to have his case heard at a full trial.

This decision confirms that employees will be able to bring proceedings for harassment against their employers where they have suffered “anxiety or distress”, even when the harassment does not fall into one of the statutory categories of discrimination, as long as they lodge their claims within six years of the alleged harassment.

Holiday pay must include productivity and attendance bonuses

The Employment Appeal Tribunal has ruled that holiday pay under the Working Time Regulations must be calculated using the normal average of 12 weeks' previous pay, but ‘previous pay' must include attendance and productivity bonuses, if based on the amount of work done in normal working hours.

The workers in May Gurney Ltd v Adshead & others were paid a fixed attendance bonus if they worked their full contracted hours in any given week and/or a productivity bonus if their team targets were met. The EAT decided that the workers' pay therefore varied, based on the amount of work done. This brought the bonuses within the definition in s.221 of the Employment Rights Act 1996, meaning that their holiday pay under Regulation 14 of the Working Time Regulations should have been calculated inclusive of their bonuses.

Employers should note that the May Gurney case does not mean that all pay and/or bonuses paid within the 12 weeks prior to holiday should be included in the calculation of average pay. Many types of payments, such as discretionary annual bonuses, exceptional overtime payments or quarterly profit share schemes do not vary with the “amount of work done” in normal working hours and therefore do not fall within the definition considered by the EAT in this case.

10 July 2006 marks beginning of permanent employment for ‘successive fixed-term' employees

From 10 July 2006 employers may find that they have more permanent employees than they thought. This is due to regulations covering the conversion of fixed-term to permanent status of employees on continuous fixed-term contracts.

Regulation 8 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the Regulations) prohibits the use of successive fixed-term contracts for more than four years, unless it can be objectively justified.

From 10 July 2006, employees with 4 years' continuous service with the same employer - based on the extension of fixed-term contracts; re-engagement under new fixed-term contracts; or on fixed-term contracts before or after permanent or casual contracts – are likely to be automatically regarded as permanent employees from now on. Fixed-term contracts that can be objectively justified as necessary to achieve a legitimate objective will still be allowed, but employers will normally have to prove justification on the particular facts of each case.

Employees who believe that they have become permanent under the regulations will now have the right to apply to their employer for a statement of variation of contract. Employers must respond within 21 days giving full reasons why they assert that the employee remains fixed term. Failure to respond is likely to lead to an Employment Tribunal inferring that the Employer accepts that permanent status of the employee concerned.

Employers must also give newly permanent employees written terms and conditions containing relevant notice periods (rather than the date of expiry under their previous fixed-term contract) within 4 weeks of the fourth anniversary. Failure to do so can result in an award of between two and four weeks pay.

The regulations do not apply to workers i.e. non-employees and they can also be varied under collective or workforce agreements to periods longer or shorter than 4 years. Such agreements can also list agreed permissible objective reasons for justifying fixed-term renewals and other matters otherwise governed by the regulations.

Employers should note that short gaps between fixed-term contracts are no guarantee that continuity of employment will be broken and the regulations avoided.

Work and Families Act paves the way for extended family friendly rights

Legislation that paves the way for extended family friendly rights received Royal Assent on 21 June 2006. The Work and Families Act 2006 extends the maximum period of maternity and adoption pay to nine months and the right to request flexible working to carers of adults with effect from April 2007. The Act also provides for regulations dealing with paternity leave and pay, increases in compensation and redundancy payments and annual leave entitlement.

The Government has already announced that it intends to use the Act to increase annual holiday entitlement to 28 days and consultation is ongoing. Consultation on maternity, paternity and adoption leave pay measures and the right to request flexible working will be published shortly.

Current proposals include options for fathers to benefit unused maternity leave and pay entitlement, Keeping In Touch (KIT) days to allow mothers on maternity leave to return to work for a few days without losing their right to ongoing maternity leave, a two month notice period for return to work changes and clarification of employers' rights to maintain reasonable contact with employees on maternity leave to allow for planning and easing their return to work.

Court of Appeal rules out ‘top-up' action for wrongful dismissal in High Court

The Court of Appeal has ruled out action in the High Court for ‘top-up' claims exceeding the £25,000 Employment Tribunal cap for wrongful dismissal/breach of contract.

Ending years of uncertainty about how claims for wrongful dismissal should be framed, employees with claims that exceed £25,000 must now take them directly to the ordinary courts, rather than to the employment tribunal, or risk ending up significantly out of pocket.

In Fraser v Hlmad Ltd , Mr Fraser claimed unfair dismissal and wrongful dismissal in the employment tribunal, expressly reserving the right to pursue an action in the High Court for any damages for wrongful dismissal that exceeded the statutory limit of £25,000 on awards for wrongful dismissal.

His claims for both unfair and wrongful dismissal were successful and Mr Fraser obtained an £80,000 award for the breach of contract element. This award was capped at £25,000, leaving some £55,000 to claim in the High Court.

The High Court refused to hear the claim and the matter was referred to the Court of Appeal. The Court of Appeal held that the High Court was right to refuse as the matter had already been heard in the employment tribunal and the ‘top-up' claim was not a separate cause of action.

The Court of Appeal made clear that its ruling does not affect unfair dismissal claims (which are normally capped at £58,400) but that wrongful dismissal claims over £25,000 should be reserved for the ordinary courts. Mummery LJ also suggested that the DTI might reconsider the employment tribunal limit for wrongful dismissal.

Equality Act 2006 receives Royal Assent

The Equality Act 2006 has received Royal Assent and will come into force on 06 April 2007.

The three main purposes of the Act are to:

1. establish the Commission for Equality and Human Rights (CEHR),

2. extend religion or belief discrimination to the provision of goods, facilities and services; and

3. create a duty on public authorities to promote equality of opportunity between women and men (“Gender Equality Duty” or GED) and to prohibit sex discrimination in the exercise of public functions.

The principal impact on employment law will be to require public authority employers to identify, publish, implement, monitor and review gender equality goals.

In preparation, public authority employers will have to review their employment practices, such as recruitment, promotion and training policies and conduct equal pay audits, in order to comply with their statutory obligations.

Private sector employers will not be immune from the effects of the new legislation as it is likely that many private businesses that supply goods or services to public sector organisations will be required to comply with the GED under the terms of tenders for contracts.

The CEHR will be established in October 2007 and will have powers to take proceedings against employers (and others) that are in breach of discrimination legislation. The CEHR will initially replace the Equal Opportunities Commission and Disability Rights Commission and have responsibility for sexual orientation, religion and belief and age discrimination. The Commission for Racial Equality will be replaced in April 2009.

Unfair dismissal for relying on ‘spent' warnings

Employers have been reminded of the risks of relying on ‘spent' disciplinary warnings when disciplining employees.

In Diosynth Limited v Thompson, the Court of Session ( Scotland 's Court of Appeal) has held that employers cannot rely on expired warnings as a determining factor when deciding to dismiss employees for misconduct.

Diosynth is a chemical factory and in 2000, Mr Thompson was given 3 days suspension without pay and a 12 month written warning for failing to follow safety procedures. 15 months later there was an explosion in the factory that led to the death of an employee and Mr Thompson was found, along with 17 others, to have ignored safety procedures.

After disciplinary hearings, Diosynth decided that Mr Thompson alone would be dismissed. The company admitted in the Employment Tribunal that it would not have dismissed Mr Thompson but for the prior disciplinary warning.

The Court of Session placed weight on the ACAS Code of Practice, which advises employers that warnings should normally be disregarded after a specified period. Employers are reminded to adhere as closely as possible to the ACAS Code and advised to remove ‘spent' warnings from employees' files.

Consolidated Shift Pay judgment clears BA of Working Time Regulations breach

The Court of Appeal has recently passed judgment in the case of British Airways plc –v- Noble, setting an important precedent on the calculation and payment of shift allowances.

The facts

British Airways (“BA”) pays a Consolidated Shift Pay allowance in equal instalments over a 52 week year. The allowance is only applicable to weeks worked (i.e. not during the 4 weeks allowed for annual leave). To simplify matters, BA spreads the shift allowance payable for the 48 working weeks across 52 weeks, so that each week's pay is effectively equal. This is part of a collective agreement.

Some BA employees claimed that spreading the shift allowance across the year was in breach of the Working Time Regulations 1998 (“WTR”) as it ‘rolled up' holiday pay; a practice which is generally prohibited under the WTR. The employees won first in the Employment Tribunal and again against BA's appeal in the Employment Appeal Tribunal.

Court of Appeal judgment

BA were eventually successful in the Court of Appeal, principally because the Court ruled that the claim had nothing to do with ‘rolled up' holiday pay at all. It decided that the collective agreement achieved precisely what the WTR - and the European Working Time Directive on which it is based – was designed to achieve; that workers should not be discouraged from taking their holiday by being paid less for the holiday period.

Lord Justice Mummery helpfully summarised: “The real cause of complaint by the Claimants is the agreed method for calculating the Consolidated Rate [i.e. the collective agreement] rather than BA's use of that method in the application of the Regulations.”

Hundreds of over-65s' unfair dismissal claims dismissed

The House of Lords has decided to dismiss the appeal in Rutherford v DTI (previously Harvest Town Circle), meaning that hundreds of pending unfair dismissal claims brought by over-65s will be dismissed by the Employment Tribunals.

Mr Rutherford, who was over 65, claimed that he had been unfairly dismissed and that the current statutory age limit of 65 for unfair dismissal claims (s.109 Employment Rights Act 1996) amounts to unlawful discrimination under European law (EU Article 141). It was argued that this is unjustified indirect discrimination against men because more men than women work beyond the age of 65.

In five difference speeches the Law Lords agreed, albeit for various reasons, to refuse Mr Rutherford's appeal. Their Lordships took the view that the wrong statistics had been used and that these statistics did not support the argument that there was an adverse impact. The finding that there was no discrimination means that the Lords did not go on to consider whether the age limit could be justified.

Hundreds of similar unfair dismissal claims by over-65s have been lodged since Mr Rutherford brought his claim but they had been stayed pending the outcome of the appeal. The effect of this ruling will be short lived as age discrimination legislation comes into force in October 2006 that abolishes the upper qualifying age. Over-65s will then be able to bring unfair dismissal claims within the normal time limits.

EAT rules on statutory requirements for redundancy consultation

In the recent case of Alexander & Hatherley v Brigden Services (2005) the Employment Appeal Tribunal (EAT) has ruled that, where a matrix system is used in redundancy selection, the statutory dismissal procedures require that each employee is told what the selection criteria are and what score he or she achieved - prior to the Step 2 meeting to consider dismissal. Otherwise the dismissal is likely to be automatically unfair and any compensatory award increased by between 10% and 50%.

It is worth noting that the EAT ruled that employers do not have to inform employees of the threshold matrix score for redundancy or the scores of other employees.

The EAT also indicated that the detailed basis for grounds for dismissal required by Step 2 of the statutory dismissal procedure does not have to be given in writing but must be provided prior to the Step 2 meeting to enable the employee to consider and prepare. Employers should be wary of relying on verbal information as letters and enclosures can be crucial evidence against unfair dismissal claims.

Grievance rules cause unexpected confusion

Dispute resolution rules introduced to simplify when and how employees complain to their employers before filing their applications with the Employment Tribunals are causing confusion and cost for employers and employees alike.

A raft of legal challenges have arisen, indicating that a grievance arises out of virtually any complaint, whether open or without prejudice, whether sent by an employee to their boss at work or at home, inside or outside company procedures, by a solicitor to a solicitor and even where a secondary complaint is included in a resignation letter…but only where enough information is given to indicate the particular grievance.

Employers are often obliged under the procedures to respond to grievances with a meeting. Failure can lead to increased compensation claims and awards of between 10 to 50%. Unwitting employees who fail to lodge a valid grievance before launching an Employment Tribunal claim can find that their claim is barred as a result.

Age Discrimination laws on track for 1 October implementation

The DTI has put an end to rumours that age discrimination legislation will be delayed, confirming that the new law will come into effect on 1 October 2006 (final draft Regulations available at http://www.dti.gov.uk/er/equality/age.htm )

Complex transitional provisions apply to retirements falling after 1 October and Sherrards is already advising clients to implement new retirement and other age discrimination policies to avoid being caught out.

The Regulations outlaw direct and indirect discrimination on grounds of age in the employment (and other) fields and introduce a minimum 6 month notice period for planned retirement. Employees will have a right to request working beyond retirement.

Corporate manslaughter Bill gets teeth

The much delayed corporate manslaughter Bill looks like becoming law, and in a much stronger form than commentators have been predicting.

Amendments likely after the select committee stages of the Bill's passage through Parliament include the introduction of a simpler legal test removing the need to show a ‘controlling mind', the reduction of Crown immunity and the introduction of unlimited fines and/or remedial orders.

New TUPE Regulations join the April shower of employment law changes

The Transfer of Undertakings (Protection of Employment) Regulations 2006 came into force on 6 April 2006. The Regulations are mainly a write-up of the body of case law that has developed since the 1981 TUPE Regulations were implemented.

There are a few notable changes: Liability for redundancy, notice and other payments claimed by employees of insolvent companies are not transferred to the new company. However, ‘outgoing' employers are now obliged to provide clearly defined 'employee liability information' to the new employer at least two weeks before transfer, with a minimum penalty of £500 per employee if the information is not given.

The transferor will be liable (jointly with the transferee) for awards for failure to inform and consult with trade unions or employee representatives.

New noise Regulations in force

The Control of Noise at Work Regulations 2005 came into force on 6 April and apply to virtually all workplaces where normal conversation cannot be heard at more than one to two and a half metres distance.

With the exception of the entertainment sector, all employers are now obliged to eliminate or reduce the risk of potentially damaging noise levels and, if possible, ban or reduce immediately noise over a maximum ‘action level' of 87dB(A) – equivalent to the sound levels found on a typical busy high street.

Previously employers were under a duty to manage risk by providing hearing protection. Under the new Regulations, some employers will have to ensure that hearing protection is actually worn.

No free standing claim under DDP

In theory, the statutory discipline and dismissal procedures ("DDP") apply from day one of employment; but to give rise to legal action a DDP claim has to be added to another primary claim, such as unfair dismissal, for which (in most cases) 12 months' service is required. In a recent Tribunal claim handled by Sherrards, an employee with under 12 months' service had his free standing claim under the DDP dismissed with costs awarded to the employer – comfort for all employers who have been concerned about applying these more elaborate procedures to short-service employees.

Disability Discrimination

From 5th December 2005, a number of changes came into force, with particular effect on who might be covered by the Act. Anyone diagnosed with HIV, cancer and multiple sclerosis will automatically qualify as disabled, and the stipulation that mental illness must be clinically well-recognised will no longer apply. Further changes come into force on 4th December 2006, mainly focusing on improvements in transport and the duty of a landlord to ensure rental property meets DDA requirements.

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