New responsibilities for employers in the region

Mar 13 2007 By Paul Johnstone, The Journal

April sees an increase in the range of rights available to workers with caring responsibilities for both children and adults. Paul Johnstone, employment partner at commercial law firm Robert Muckle LLP, explains the implications.

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With effect from April 1, 2007, pregnant employees are entitled to ordinary and additional maternity leave irrespective of length of service. This means that mothers will now have the right to stay on maternity leave for up to a full year to look after their newborn babies.

The payment period for SMP and maternity allowance is to be extended from 26 weeks to 39 weeks. In addition, keeping-in-touch days are to be introduced enabling a woman to come into work for up to 10 days during the maternity leave period without jeopardising her entitlement to receive maternity pay.

All women will have a right to return to work after maternity leave regardless of the size of the employer.

Furthermore, from April 6, certain employees who are responsible for caring for dependant adults will be able to request flexible working arrangements.

Employees must have 26 weeks' continuous service with their employer at the time of making the request.

The employee must be, or expect to be, caring for a person aged 18 or over who is either:

* Married to, or the partner or civil partner of, the employee;

* A relative of the employee, or,

* Living at the same address as the employee.

The term "relative" has been widely defined and includes parents, step-parents and parents-in-law; children and step-children; sibling, step-sibling and sibling-in-law; uncles, aunts, grandparents and all adoptive and half-blood relationships. The DTI estimates that this definition will cover approximately 80% of all carers.

This represents a considerable broadening in the scope of the right to request flexible working, which currently only applies to parents of young or disabled children. These new rights will impact on businesses because it may be necessary to re-organise teams to deal with additional workloads of those employees who need to re-structure their working lives to look after dependant children and/or adult relatives.

It is important to ensure from the employee relations perspective that an employer should have clear policies on accommodating the needs of workers with caring responsibilities. Employers need to ensure that all employees are treated fairly and to prevent any ill feeling developing between colleagues who work traditional full-time hours compared to those who work in a more flexible manner.

However, it should not be assumed that "flexible working" necessarily means working shorter hours - it simply recognises that the traditional model of working 9am-5pm may not be suitable for everyone in today's technologically advanced and highly competitive workplaces. In order for businesses to be able to recruit and retain the most talented people and to maintain profitability in tough market conditions, an organisation must assess how to get the best out of its people in terms of productivity and loyalty.

Failing to do so will increase costs in terms of employee turnover and general unrest which will undermine staff morale and, in turn, will have a negative impact on delivery of customer service.

It is also important for employers to note that employees will be protected from being subjected to less favourable treatment based on their domestic arrangements, so that if an employee was refused a job because of having childcare responsibilities or dismissed because of taking time off to care for an adult relative, the employer could face claims of sex discrimination or a claim for automatically unfair dismissal for asserting a statutory right.

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Promoting equality by pulling the public purse strings

With effect from April 2007, public authorities will have a statutory duty to take action to eliminate sex discrimination and harassment and to promote equality for men and women in accordance with the new "Gender Equality Duty". This duty will have an impact on policy-making, the provision of services, employment relationships and the outsourcing of public contracts.

There are already similar positive duties on public authorities in relation to the promotion of equality on the grounds of race. It is important for private sector organisations to appreciate the impact that these public sector duties could have on their business practices and on their ability to tender for public sector contracts.

The Public Contracts Regulations 2006 permit exclusion of organisations tendering for public sector contracts at the selection stage, should a company be discovered to have been found guilty of "grave misconduct" in the operation of their business.

This provision may be used by some public sector organisations to refuse to award publicly funded contracts to private sector employers who have been found, by an employment tribunal, to have discriminated against an employee in breach of the provisions of the Sex Discrimination Act or the Equal Pay Act.

The directors and managers with responsibility for awarding public sector contracts must ensure that private sector organisations tendering for those contracts are assessed as having measures in place to meet the Gender Equality Duty.

This means that private sector businesses should be asked to demonstrate that they have appropriate polices and procedures in place to promote gender equality in order to ensure that the public sector body can properly award the contract in accordance with its own statutory duty.

If your organisation is financially dependant upon receiving contracts from the public sector, you would be well advised to introduce and implement appropriate equality and diversity policies within your own organisation.

If you fail to do so, you may find that your company is unsuccessful in tendering for new contracts when the Gender Equality Duty comes into force.

The introduction of the new duty means that if the public body breaches its duty to promote gender equality, its decision-making processes could be subject to challenge by judicial review.

This may prove to be a fertile litigation battleground for companies seeking to use the courts to establish that their operational business practices are more equal than others.