Part 4 of The Employment Act, appropriately named Miscellaneous And General, is the sweeper part with all the remaining provisions. It includes the introduction of the important concept of Union Learning Reps, and the right to request flexible working for those with child rearing responsibilities. We have included the flexible working provisions under It's a family affair as these form part of the family friendly provisions.

Equal pay: questionnaires - Section 42 - The Bill provides for questionnaires to be used in equal pay claims and amends the Equal Pay Act 1970 by introducing a new section 7B into that Act. The questionnaire procedure is often used in sex, race and disability claim in tribunals. There is often difficulty in getting pay details of male staff which is vital in an equal pay claim. Where the union is recognised this can be available through the disclosure of information provisions of the Trade Union and Labour Relations (Consolidation) Act, but in non-unionised workplaces this right is not available. An applicant has to commence proceedings to obtain the details to help her establish her claim. The government's objective in introducing a questionnaire procedure in equal pay claims is to try and reduce the gender pay gap.

Section 42 gives the Secretary of State the power to prescribe forms that may be used by the complainant in seeking the information and the employer in responding. There may also be a time limit set down within which the questions and replies must be served. The suggestion is that an eight week period would be reasonable for an employer's response. In the context of sex, race or disability claims there is no time limit for replies.

As with sex, race or disability questionnaires, the questions and any replies may be used in evidence before any hearing. If a respondent deliberately or without reasonable excuse, fails to answer the questions within the time limit, or answers them in an evasive or equivocal fashion, the tribunal may draw any inference which it considers just and equitable, including an inference that an employer has contravened and equality clause.

Union Learning Representatives (ULRs) - Section 43 - The Act creates a new title: ULRs employees who are members of an independent trade union recognised by their employer and accredited by their union as a learning representative.
ULRs will have the right to reasonable paid time off for carrying out the following
activities:

analysing learning or training needs,
providing information and advice on learning and training matters,
arranging learning or training, and
promoting the value of learning or training

Paid time off will also be available to consult on these issues with the employer and, thirdly, to prepare for any of the above activities.

The union is required to give notice to the employer in writing that the employee is a ULR and for the rights to apply, the 'training condition' must be met by the ULR. The training condition is that the ULR has undergone sufficient training to enable him or her to carry on the activities stated above and that the trade union has given the employer notice in writing of that fact.

This new right is necessary because lay ULRs do not satisfy the definition of trade union 'official' who ordinarily have the right to take paid time off work for official trade union duties and training.

ULRs will be able to protect their exercise of these rights by bringing a claim to a tribunal which may award such compensation as it considers is just and equitable.

Where any employee is dismissed for exercising any of the new statutory rights, Section 104 of the Employment Rights Act 1996 will provide that the dismissal is automatically unfair.

The Act also enables ACAS and the Secretary of State to issue Codes of Practice as guidance for the practical application of new rights, although as yet no Codes have been drafted.

It is thought likely that they will follow the same pattern as time off for trade union officials.

Unfortunately the rights will not assist employees in non-unionised workplaces where the promotion of training and need for genuine dialogue about training needs is likely to be greatest.

Dismissal procedure agreements - Section 44 - The right to bring a complaint of unfair dismissal to an Employment Tribunal can already be excluded where there is an approved 'dismissal procedures agreement' between the parties. The Employment Rights Act 1996, section 110 gives the power to the Secretary of State to approve such an agreement if it meets certain criteria. Currently the criteria include that the agreement provides remedies that are on the whole as beneficial as those provided for an unfair dismissal claim at tribunal. It is a little used provision at present with the Electrical Contractors Association being one of the few schemes in operation.

Section 44 of the Bill gives the power to the Secretary of State to add to the current criteria. This is to ensure that the agreements comply with the Human Rights Act 1998.

Fixed Term Work - Section 45 - The Bill gives the Secretary of State power to make regulations to prevent less favourable treatment of employees on fixed term contracts as compared with permanent employees and prevent abuse arising from the use of successive fixed term contracts. The regulations are designed to implement EC Directive No.99/70 concerning the framework agreement on fixed term work. Originally due to be implemented in July 2001, delayed after the first round of consultation until 10 July 2002 and now after a second round of consultation further delayed until October 2002.

The first draft of the regulations excluded pay and pensions from the ambit of the regulations. After vigorous lobbying by the Trades Union Congress and education unions in particular, the second draft includes both. A detailed analysis of the draft regulations is in LELR 67, February 2002, pages 6-7.

Disappointingly the regulations still only apply to 'employees' narrowly defined as 'an individual who has entered into or works under...a contract of employment' not the wider definition of 'worker' to which other European legislation applies, for example the Working Time Regulations 1998. But with the government announcement of a review of the definition of employee in July, under S.23 Employment Relations Act 1996, there is opportunity for change in this area.

There is also a view that limiting the application of the regulations to employees is in breach of the European Directive.

The Regulations will specify the circumstances in which fixed term employment is to have effect as permanent employment and the classes of persons taken to be fixed term and permanent employees.

In Northern Ireland, the power to make regulations implementing the Fixed Term Work Directive is given in Northern Ireland to the Department of Employment and Learning. The regulations otherwise follow the scheme adopted for section 45 above.

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