Workers' health

The Information Commissioner has just published part 4 of the Employment Practices Data Protection Code.

This part of the code recommends how employers can meet the requirements of the Data Protection Act when obtaining and handling information about workers' health.
As a whole, the code deals with the impact of data protection law on the employment relationship. It covers issues such as obtaining information about workers, the retention of records, access to records and disclosure of them.

You can access the code at www.informationcommissioner.gov.uk and follow the link under 'What's New'.

Sick note Britain

The TUC has produced a report countering the myth that UK workers - particularly in the public sector - are always going off sick.

Instead it shows that British workers are less likely to take time off than any European country other than Denmark, and that public sector workers take less sick time than those in the private sector.

It says that a bigger problem is the high number of workers (75%) who confess to having struggled into work when they were ill.

The report also takes a pop at commentators who suggest that many people who are off work with stress are not really that ill. It notes that the Health and Safety Executive estimates that workrelated stress costs employers £353 million and society £3.7 billion, and the symptoms suffered by stressed out employees are serious and include mental health and chronic physical health problems.

You can access a copy of the report at www.tuc.org.uk.

I&C Regulations out

The Information and Consultation Regulations, due to come into force in April, have now been approved by parliament.

The Department of Trade and Industry has also issued guidance setting out how to make best use of the new laws that give employees the right to be consulted and informed about matters that affect them at work.

Go to www.dti.gov.uk/er/consultation/proposal.htm for a link to the new regulations, the guidance and other relevant documents.

Disability Bill

The Disability Discrimination Bill is currently going through parliament. Among other things, it introduces a new duty on public bodies to promote equality of opportunity for disabled people.

It also extends rights under the existing Disability Discrimination Act (DDA) by ensuring that people with HIV, MS and cancer are covered from the point at which the condition is diagnosed. And it removes the requirement from the DDA's definition of disability that mental illnesses must be 'clinically well-recognised.'

The Department of Work and Pensions has now launched a consultation paper which sets out the government's proposals for using the regulation-making powers contained in the Bill in a number of further areas.

In particular, it is asking for views on the power that allows the Secretary of State to exclude certain types of cancer from the extended definition of disability.
The government is asking for responses to the paper by 18 March. You can access the document by going to

www.dwp.gov.uk/consultations/consult/2004/ddb/private_clubs_premises.pdf (PDF file).

Pay and pensions

The TUC has issued guidelines for companies about disclosing information on the pay and pensions of directors and other employees.

In particular, the TUC Shareholder Voting and Engagement Guidelines say that any difference in pension arrangements between the boardroom and the rest of staff should be made public.

The guidelines set out policy on a range of corporate governance issues. These have been developed as part of the TUC's work to develop a strong shareholder voice for the representatives of employee-owned capital in pension funds and other investment vehicles.

You will find copies of the guidelines at www.tuc.org.uk/pensions/index.cfm?mins=349&minors=349.

TUC equality book

The TUC has launched a new book about sex discrimination. The TUC Guide to Equality Law, by the head of equal rights at Thompsons, and the LELR editor, is available from TUC publications (020 7467 1294) price £6 to unions.

Fighting fire with the law

Following the Court of Appeal's decision in Mathews and ors v Kent and Medway Towns Fire Authority & ors (LELR 92), the Fire Brigades Union has been granted leave to appeal to the House of Lords. The union has instructed Thompsons to represent their members.

The case concerns thousands of part-time (or retained) fire fighters who claim that they are being treated less favourably than full timers in a number of ways:

  • by being denied access to statutory pension arrangements
    by being denied increased pay for additional responsibilities
    in the way their sick pay arrangements were calculated.

Employment relations

A number of provisions of the Employment Relations Act 2004 came into effect on 31 December.

Sections 15 and 18 extend the Secretary of State's powers to amend procedures relating to the recognition and derecognition of trade unions for collective bargaining purposes. They also enable the Secretary of State to deal with a situation where a trade union amalgamates or transfers its engagements or the employer involved ceases to be the employer.

Section 33 entitles a trade union to exclude or expel an individual wholly or mainly for taking part in activities of a political party. It also removes the minimum award to a member expelled solely for membership, if the union can prove that membership was not the main reason.

Section 34 says that certain applications which were previously made to the Employment Appeal Tribunal will be made to an employment tribunal. These relate to unjustified disciplinary action or expulsion by a trade union.

Section 54 provides a new power for the Secretary of State to widen the means of voting available in ballots and elections conducted under the Trade Union and Labour Relations (Consolidation) Act 1992.

Fixing terms

According to regulations introduced in 2002, fixed-term workers cannot be treated less favourably than permanent workers, unless the employer can justify the difference.

The Court of Appeal has just decided in Webley v the Department for Work & Pensions (LELR 91), that a failure to renew a fixed-term contract did not constitute less favourable treatment. The case was supported by PCS who instructed Thompsons.

Ms Webley started work as an administrative officer at the Leyton Job Centre on a short term, temporary contract on 4 February 2002, which expired on 3 May 2002. She was then given a succession of fixed-term contracts, the last of which expired on 17 January 2003, just short of the one-year qualifying period for unfair dismissal.

Someone else then had to be employed to do her work because fixed-term, casual employees (who are not appointed under full, fair and open competition rules) cannot be employed for more than 51 weeks. This is known as the 51- week rule.

The claimant complained that permanent employees would not have their contract terminated at 51 weeks, and that this constituted a 'detriment' contrary to the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.

The DWP justified the dismissal on the basis of the 51-week rule. It also said that there is no obligation under the regulations to convert a fixed-term contract into a permanent contract and so there can be no detriment when it expires.

And the Court of Appeal agreed, saying that 'the termination of such a contract by the simple effluxion of time cannot, of itself, constitute less favourable treatment by comparison with a permanent employee. It is of the essence of a fixed-term contract that it comes to an end at the expiry of the fixed-term.'

This decision means that employers who decide not to renew the contracts of their fixed-term employees will not be acting contrary to the regulations, although they may face claims for indirect race or sex discrimination or unfair dismissal. This is an important limitation on the scope of the protection given by the regulations. The union is considering an appeal to the House of Lords.