A recent raft of amendments to employment legislation covering maternity leave, flexible working and agency workers have added further weight to the perceived regulatory burden born by Britain’s businesses.

What do these changes mean for employers and what are the practical effects on business? John McNeilly talks to employment solicitors in a bid to demystify the law.

Maternity leave

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As it stands, an employee on Ordinary Maternity Leave (OML)­ the first 26 weeks - is still entitled to the non-monetary benefits of their job, such as a company car and holiday entitlement. Employers have not, however, been obliged to extend these benefits to the further 26 weeks of Additional Maternity Leave (AML).

THE CHANGE

However, the European Court of Justice has ruled that employees on AML should be entitled to the same benefits as those on OML. Changes to legislation will therefore oblige employers to provide non-monetary benefits throughout the maternity leave period.

The amendment is to the Sex Discrimination Act and took place in April. However, the change will only take effect for mothers expecting children from 5 October onwards.

THE EFFECT

Employment solicitor Kitty Falls of law firm Eric Robinson (right), says that although this may be good news for employees, it could cause problems to small employers.

However, pension payments during maternity leave may be a particular issue, she says. At present the government is advising that during maternity leave employers need only make statutory pensions contributions. Falls, however, suggests that to be on the safe side employers may be wise to make full contributions. Despite the government’s advice, payment contributions could be considered non-monetary benefits and thus be affected by the changes.

David Wilson, an employment solicitor at Warners Solicitors (left), also warns of another possible extension of maternity leave legislation. This would require that the employee¹s position be left open for the full course of maternity leave, an amendment that Wilson suggests “could be onerous for employers”.

Flexible working

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Currently parents of children under the age of six or a disabled child under 18 or carers of adults are entitled to request their employer to make provisions for flexible working. Such employees are only entitled to request flexible working conditions and employers can refuse their submission.

However, John Quigley, a partner at employment solicitors William Sturges (right), warns that employers must be able to prove that they have given serious consideration to such a request and that it has been rejected for sound business reasons.

Quigley says that it is, in fact, sex discrimination legislation that is relevant, warning that requiring an employee to work full-time could be considered indirect discrimination. In such a situation an employer may have to prove that the job requires a full-time employee and that they have explored employing someone else to make up the remaining days, such as by advertising for the position.

THE CHANGE

This right to request flexible working is to be extended to cover parents of children up to the age of 16, encompassing an additional 4.5 million employees on top of the 6 million who currently have the right. The government is currently consulting on the proposed changes with the date for completion being 18th November 2008.

THE EFFECT

According to David Wilson, the change "will mean more red tape for employers." He says that they will need advice on how to put in place procedures to deal with requests. To demonstrate that they have given serious consideration to a request, “employers should have a well-drafted flexible working policy in place," Wilson says.

Agency workers

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Current laws do not entitle temporary employees to the same rights as permanent employees. This has lead to trade union complaints of a two-tier workforce where an agency worker can be paid less for doing the same job as a permanent member of staff as well as not being entitled to holiday and sick leave.

THE CHANGE

The EU has reached an agreement on the Agency Workers Directive that, for Britain, will mean that a temporary employee is entitled to equal pay and holiday leave after 12 weeks in the job. The new agreement does not however cover sick leave or pension payments and agency workers will have to work for the same amount of time as permanent staff to deserve maternity leave.

The EU is expected to adopt the Agency Workers Directive before spring 2009 and the new UK rules should be implemented in April or October 2010.

THE EFFECT

Solicitors interviewed did not predict too much cause for concern for most employers. David Wilson says "any sensible employer will not reach the 12 week limit" and suggests that businesses will simply have to monitor how long agency workers are on board and have an appropriate system in place to prevent such a situation being reached.

However, Kitty Falls does warn employers that difficulties could arise during dismissal. She says that up until now it had been a question of whether agency workers counted as employees with all the usual benefits. Once temporary employees have been granted full rights, however, it will be harder to argue against this.

Useful links

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