Many businesses should be aware of the two key months in the year when new employment legislation is introduced - April and October. With April now upon us, there are a number of important Regulations and Orders being released that could have an effect on any organisation. Dean Parnell, Partner and Employment specialist at Sydney Mitchell looks at the key changes that are taking place and what this means to companies.
The Corporate Manslaughter and Corporate Homicide Act 2007 introduces a new offence of corporate manslaughter replacing the common law offence of manslaughter by gross negligence for companies. This change will only apply to organisations and not individuals e.g. directors. However individuals will continue to be liable under the common law of manslaughter and health and safety legislation.
There are many types of organisations that will potentially be affected by the change, including corporations, partnerships, Government departments and other public bodies, the police force and trade union or employers' associations.
Under this act a company commits an offence if the way in which its activities are managed or organised causes a person's death, e.g. an employee, or amounts to a gross breach of a relevant duty of care owed to that person, e.g. health and safety. In order to secure a conviction the prosecution will need to show the jury that a substantial part of the breach related to the way in which the organisation's senior management managed or organised its activities.
It is important for organisations to know that the Act is not limited to health and safety matters and could cover any breach of the duty of care owed under the law of negligence, such as a breach of environmental law.
When hearing a case the jury will be able to take into account attitudes, policies, and systems that may have encouraged a management failure. There are certain factors that they must take into account when making their decisions and others that they can choose to consider. All the factors can be found in section 8 of the Act.
If a company is convicted of this offence the penalty will be an unlimited fine. The court could also impose a remedial order requiring the company to remedy the management failure, or a publicity order requiring the company to publicise the conviction.
"It is clear that there could be serious consequences for any company that does not comply with this Act, " says Dean Parnell. "We would encourage businesses to become familiar with its contents and to review their own policies regularly to ensure they do not fall foul of the legislation."
The Sex Discrimination Act 1975 (Amendment) Regulations 2008. From the 6th April changes are being made to the Sex Discrimination Act 1975 following on from the Equal Opportunities Commission Judicial Review. The changes include -
The definition of harassment will change to require only that the harassment be related to the sex of the victim or any other person. There will no longer be a need to show that the harassment was 'on the grounds of her sex'.
This change seems subtle but will in fact make the test for showing harassment much wider and therefore employers should be even more careful when investigating harassment claims.
Whilst employers will now need to be actively monitoring situations involving third party harassment which was not the case before, the third part of the test does give them some leeway to avoid liability by showing that they did not have knowledge of the treatment and that it did not happen on at least two occasions. It is advisable however that any harassment complaints are taken seriously regardless of this.
The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007. These regulations amend the Conduct of Employment Agencies and Employment Businesses Regulations 2003 and will enhance protection for those people seeking work and will reduce the regulatory burdens placed on employment businesses, such as recruitment agencies.
By way of example, Regulation 3 states that an agency or employment business must make sure that a work-seeker who chooses to take up additional services such as transport or accommodation, can give 5 business days notice to cancel those services without incurring a penalty. This should make the system fairer and more flexible for work-seekers.
Regulation 5 will provide an exemption for businesses sending workers on short term assignments in that they will no longer need to provide detailed information to the hiring company and the worker. This should ease administrative issues for businesses.
It is hoped that this legislation along with the 2003 regulations will provide further guidance and structure for the employment agency and business sector, however we will not know whether this is the case until the new regulations are put into practice.
The Social Security Benefits Up-rating Order 2008. From 6th April statutory sick pay will increase from £72.55 to £75.40 and the prescribed rates for statutory maternity pay, statutory paternity pay and statutory adoption pay will increase from £112.75 to £117.18.
The Information and Consultation of Employees Regulations 2004. These regulations stipulate that UK employers may, and in some cases must, put in place Information and Consultation agreements governing how they will consult their UK work forces about economic and employment-related matters.
The regulations will cover employers with 50 or more employees and will not cover workers.
The Occupational Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 & The Occupational Pension Schemes (Consultation by Employers) (Modification for Multi-employer Schemes) Regulations 2006. These regulations introduced a requirement for employers to consult before making changes to occupational and personal pension schemes and will now extend to cover businesses with 50 or more employees.
It is clear from the above that companies will need to review their policies and procedures and ensure that they comply with all the relevant sections in each Order or set of Regulations. For further information on any of the legislation's please contact Dean Parnell on 08701 417 154.
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