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Decisions – Employment law – rights and wrongs

From April 2005, the Information and Consultation of Employees’ Regulations 2004 gives employees a right to be informed about an organisation’s economic situation, employment prospects, and decisions that are likely to lead to substantial changes in work organisation or contractual relations, such as the company merging or being taken over.

Previously, information rights were limited to consultation about collective redundancies, transfers of undertakings, and health and safety. Under the new regulations, employers will have to present their future plans at an early enough stage for workers or their representatives to influence them, and they must try to reach an agreement. Information and consultation also has to take place at an appropriate time and with the relevant level of management.

Lawyers say it is vital that employers look closely at these new rules and consider whether they should be setting up their own consultation arrangements, or have the standard default information and consultation arrangements.

From April, organisations employing 150 employees or more will be required to provide an employee consultative forum if just 10% of the workforce demand it. For companies with less than 150 employees, the rules will be phased in over three years. However, unless employees request a consultative forum, companies are under no obligation to set one up. Employers can also seize the initiative and put in place their own, less rigorous forum, which would stand unless more than 40% of the workforce voted against it.

The concept of consulting and negotiating on a meaningful level with the employee representatives or Work Councils is a familiar one in Europe, but not in the UK, says Warren Wayne, partner in the employment department of solicitors Bird & Bird. In the UK, he says, consultation has traditionally been restricted to establishments with recognised trade unions.

The Advisory, Conciliation and Arbitration Service (ACAS) says: “Having to justify decisions to employees can make a significant contribution to the quality of decision-making.”

Amendments to another piece of workplace legislation also came into force last October. While under the Disability Discrimination Act 1995, employers with more than 15 employees have been compelled to make “reasonable” changes to the workplace to accommodate staff with disabilities, the legislation states that any organisation providing a service to the public needs to tackle physical barriers to disabled people accessing their services. This means high street businesses including shops, banks, pubs, gyms, libraries, doctors and solicitors need to consider what they can reasonably do to become more accessible.

Furthermore, organisations need to make “reasonable” changes to the way in which they provide services to make sure they do not discriminate against disabled customers. The Act defines disability as a physical or mental impairment which has a “substantial and long-term adverse effect on the ability to carry out day-to-day activities”. Yet the government has indicated that the scope of the provisions of the Act could change over time. For example, it may extend its protection to more people with HIV, cancer and Multiple Sclerosis.

Sharon Purnell, a legal executive in the human resources practices group at law firm Eversheds, says “a lot of companies could fall foul of the legislation, either because they have done little to prepare for it, or because they have failed to understand how wide-reaching it can be”.

There have already been some high-profile cases, where employers have been found in breach of the regulations. Last July, the House of Lords’ decision in Archibald v Fife Council made clear the extent of an employer’s duty to make reasonable adjustments to accommodate disabled staff. Mrs Archibald was employed by the council as a road sweeper but was unable to walk after a rare complication during surgery. Although the council assisted her in trying to find alternative work by shortlisting her for other posts, she was systematically turned down.

The Lords upheld her discrimination claim that “reasonable adjustments” were not made which would have ensured she did not have to go through the competitive interview process and that, if qualified, she should have been given the job for which she had applied.

“Employers may have to discriminate so as not to discriminate,” said Simon Whysall, a lawyer with Reynolds Porter Chamberlain. “They may be required to ‘positively discriminate’ in favour of disabled employees even if they are less qualified for internal positions,” he explained.

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