Employment Relations Act starts to take effect

The Employment Relations Act 1999 completed its passage through parliament in the summer and its phased implementation is now underway, with important elements of the legislation being brought into force in October and December 1999. However, the Act's most contested provisions - concerning statutory trade union recognition - are not scheduled to take effect until after Easter 2000.

The Employment Relations Act 1999 implements the package of individual, collective and "family-friendly" employment rights set out in the Labour government's Fairness at work white paper issued in May 1998 (UK9806129F). Introduced in parliament in February 1999 (UK9902180F), the legislation completed its passage through parliament in the summer, receiving the Royal Assent on 27 July. Its various provisions are now in the process of being brought into force in stages by a series of commencement orders (though those concerning union recognition - arguably the most significant aspect of the new legislation - are not scheduled to take effect until after Easter 2000). In addition, the Act authorises the trade and industry secretary to bring forward regulations and other supplementary measures on a range of issues.

Phased implementation of the Act

Certain sections of the Employment Relations Act, including that enabling the trade and industry secretary to make orders and regulations under the Act by statutory instrument, came into force in September 1999.

A more substantial tranche of the new Act's provisions was brought into force on 25 October. These included:

• introducing strengthened legal protections against discrimination against employees on the grounds of trade union membership or activities, including omitting union members from benefits available to non-members;
• outlawing the use of waiver clauses in fixed-term contracts under which employees agree to forgo the right to claim unfair dismissal at the end of the term;
• abolishing two little-used public bodies - the Commissioner for Protection against Unlawful Industrial Action and the Commissioner for the Rights of Trade Union Members- and transferring certain of the jurisdictions of the latter (concerning breaches of union rules and legislation) to the Certification Officer (CO) as part of a wider extension of the CO's powers;
• authorising the government to make funding available to promote "partnership" arrangements between employers and employees or their representatives. In May 1999, the government announced the establishment of a GBP 5 million fund to support projects aimed at developing partnership at work and disseminating good practice (UK9906108F); and
• raising the compensation limit for unfair dismissal from GBP 12,000 to GBP 50,000, removing any limit in the case of dismissals for acting on health and safety concerns or for protected "whistleblowing" activity, and introducing the annual index-linking of awards.

Various sections of the Act giving the trade and industry secretary powers to make regulations and issue codes of practice also came into effect on 25 October 1999. The measures concerned are:

• regulations and code(s) of practice to eliminate discrimination against part-time workers and to facilitate the development of flexible working-time arrangements and opportunities for part-time work. The regulations will include provisions to implement the EU-level social partners' agreement (EU9706131F) and subsequent Council Directive on part-time work (97/81/EC), UK transposition of which is due by April 2000. Consultation on these will begin shortly;
• regulations governing the conduct of employment agencies and businesses. Following a recent consultation exercise, new employment agency regulations will take effect - subject to parliamentary approval - by early summer 2000;
• regulations prohibiting the "blacklisting" of individuals on grounds of trade union membership or activities. Consultation on these will take place during the course of 2000; and
• orders to rationalise and update the coverage of existing employment rights, consultation on which will also take place in 2000.

The Act's provisions affecting maternity leave, parental leave and time off for dependants - and the associated Maternity and Parental Leave Regulations 1999 - came into force on 15 December 1999. These are considered in a separate feature (UK9912144F).

The government's timetable for bringing the remaining provisions of the Act into force is as follows:

• by Easter 2000, amendments to existing legal requirements on industrial action ballots and notice to employers and on the unfair dismissal of strikers; and
• "shortly thereafter", the statutory procedure under which trade unions can pursue claims for recognition from employers and the new right for a worker to be accompanied by a fellow worker or trade union official at in-company disciplinary and grievance hearings.

Commentary

The Employment Relations Act 1999 is widely seen as the most important and wide-ranging piece of employment legislation in the UK for many years. According to government ministers, the aim of the Employment Relations Act is to promote best practice in employment by providing minimum standards for employees, helping parents to combine their work and family responsibilities and promoting partnerships between workers and employers. Trade unions have welcomed the advances in workers' rights the legislation represents, while expressing disappointment about certain government concessions to employer lobbying (UK9901173F). Employers' organisations still have major misgivings about key aspects of the legislation - and the growing volume of employment regulation more generally.

Although the government regards the Act as an "industrial relations settlement" to last for the remainder of the current parliament, the phased introduction of the Act's provisions and associated regulations will inevitably entail successive changes to the UK's employment law framework over the coming year and perhaps beyond, fuelling business concerns about the ability of employers, particularly small firms, to assimilate frequent regulatory reforms. On past experience (UK9903189F), it is the statutory trade union recognition procedure, which is not scheduled to become operative until mid-2000, which is potentially the most controversial aspect of the Act, both in principle and in practice. A future EIRO feature will examine the implications of the Act's recognition provisions. (Mark Hall, IRRU)