This update looks at two changes to UK employment law which came into effect from April 2007 and at the smoking ban which comes into force in England from July 2007. First, the Information and Consultation of Employees Regulations 2004 have been extended to companies with 100 or more employees from April 2007. Employers should be aware that 10% or more of its employees may make a request to the employer with a view to them being informed and consulted over matters such as corporate transactions.

Secondly, women who are due to give birth on or after 1 April 2007 will be entitled to enhanced maternity leave and pay. This will mean that employers will need to update their policies and procedures in accordance with the new law.

Thirdly, England's smoking ban begins on 1 July 2007. Similar legislation has already been implemented in Scotland, and in Wales and Northern Ireland “Smoke-free” regulations were implemented during April 2007. The Smoke-free regulations impose significant financial penalties on those who do not comply so it is essential that businesses understand the impact of the new Smoke-free rules.

Information and Consultation of Employees

Consultation with the Works Council has been a recognised feature of employment relations in continental Europe for sometime. The UK has largely limited its consultation to specific situations where, either there were large scale redundancies, or a transfer of an undertaking. In April 2005, a law came into force that implemented the EC Directive on information and consultation of employees. The Regulation initially applied to companies who have their registered office, head office or principal place of business in Great Britain and have 150 or more employees. However, it has now been extended to smaller companies and this may result in many more companies having to consult with their employees when contemplating corporate transactions.

The Regulation aims to foster a dialogue and co-operation between the employer and employees. It gives employees the right to demand that the employer enters into negotiations with a view to reaching agreement on a procedure for informing and consulting with employees’ representatives. From April 2007 it will apply to companies with 100 or more employees and from April 2008 it will apply to companies with 50 or more employees. The number of employees will be determined by the average number of employees in the company within the UK over a twelve month period.

A request for the workforce to be informed and consulted can be made directly to the employer or can be sent to the Central Arbitration Committee which will contact the employer on the employees’ behalf and thus protect them if they are concerned about retaliation. A request should be supported by 10% of the workforce and at least 15 employees. The employer should acknowledge the request and must respond within 3 months by arranging an election for the appointment of representatives whose function is merely to negotiate an information and consultation agreement. That agreement must provide for the appointment of employee representatives to receive the information and consult with the employer.

If there is already an existing agreement in place which addresses consultation with employees, steps can be taken by the employer to retain this agreement, provided it meets the necessary requirements. However employers cannot avoid an effective negotiation without good reasons. The Regulations contain a standard information and consultation agreement which will automatically come into place where the employer has failed to initiate the negotiation or to reach an agreement within six months after a valid request. Employers are not able to ignore the six month negotiation period as that would violate their obligations under the Regulations and a fine can be imposed. The standard provisions of the Regulations require the election of one employee representative for every 50 employees subject to a minimum of 2 and a maximum of 25 representatives. The employer must inform them of recent and future developments about the business. Consultation is required if the situation or structure of the business changes and if there is a development that affects the workforce (which will often be the case where there is a corporate transaction). For these purposes a workforce must be several employees and not just one single employee. The information and consultation obligations extend to probable future events and could have a significant effect when employers are considering transactions.

The provisions of the Regulations are vague on the extent of the information which should be supplied. Indeed entering into a specifically negotiated agreement with employees may well be useful, as it would give the employer the ability to set out more specifically what information should be provided.

Practical Steps

Employers who receive a request from their employees should assess it promptly to evaluate whether it meets the requirements for a valid request. In some cases employers may receive a request from employees for information about the number of employees so that they can establish what number of employees are required to make a valid request. Again the employer must respond and cannot ignore this enquiry.

Employers should consider whether they are communicating effectively with their workforce and whether there is likely to be a demand for additional information. It is often suggested that employers who have a good communication strategy are less likely to face a demand for formal procedures.

Enhanced Maternity Rights

The Work and Families Act 2006 and associated Regulations will affect those employees who are due to give birth on or after 1 April 2007. Employers must ensure they are up to date with the new law.

Employees will no longer be required to have 26 weeks’ continuous service in order to qualify for additional maternity leave. This means that all employees, regardless of length of service, will be able to take 52 weeks leave (i.e. 26 weeks ordinary maternity leave (“OML”) and 26 weeks additional maternity leave (“AML”)). The distinction between OML and AML still remains, including the difference in application of terms and conditions during these periods together with the difference in the right to return to work.

Statutory maternity pay will also be increased from 26 to 39 weeks.

The Government has introduced new ‘keeping in touch’ days. Employees can return to work for up to 10 days during their maternity leave, without losing their statutory entitlements. It is not clear if these days should be paid or unpaid and it appears that this should simply be agreed between the employer and employee. Employers will also be entitled to make reasonable contact with the employee and this again will not affect the employee’s maternity leave or pay.

Finally, employees whose babies are due on or after 1 April 2007 will now have to give eight weeks’ notice of any change in the date on which they intend to return to work. Employers should ensure that their policies and procedures are up to date and reflect the new law.

Smoking Ban

The ban applies to almost all enclosed and substantially enclosed premises which are open to the public and/or which are places of work. There are very few exceptions and the ban will apply to most work vehicles, including company cars.

Essentially, what the ban means for businesses is that their staff, clients and visitors will not be able to smoke in their premises which are enclosed or substantially enclosed. In addition, the occupiers and managers of such premises have a duty to display no-smoking signage and to prevent people from smoking in those premises. Failure to comply with these duties is an offence and results in financial penalties. The offences and fines are as follows:

It will be an offence to:

1. smoke in a smoke-free place – fixed penalty of £50 or fine of up to £200;

2. fail to prevent somebody from smoking in a smoke free place – fine of up to £2,500;

3. fail to display “no-smoking” signs – fixed penalty of £200 or fine of up to £1,000.

The onus is on employers and businesses to enforce the ban and so employers face a higher fine for failing to put up signs or prevent smoking in a smoke-free place than the employee who is caught smoking

There are some defences. A person charged with an offence of failing to prevent someone from smoking will have a defence if he can show that he took reasonable steps to cause the person in question to stop smoking, or that he did not know, and could not reasonably have been expected to know, that the person in question was smoking, or that on other grounds it was reasonable for him not to comply with the duty. There are similar defences to the offence of not fixing the correct “no smoking” signage.

There are certain exceptions for hotels and some private clubs.

The End of the Smoking Room

Many employers have already done away with the traditional smoking room and now require their employees to leave the premises should they wish to have a cigarette. Those employers who have not yet abolished the smoking room must do so by the time the ban is in place. These rooms will have to be cleaned and put to a new use.

Companies do not need to provide their employees and clients with any alternative smoking facilities, such as an outside shelter. In fact, there are good reasons to avoid providing any alternative facilities, as substantially enclosed premises are also included in the Smoke-free rules and areas such as walkways and shelters may well fall within the definition of substantially enclosed premises. It will be the responsibility of the person involved in the management or the occupier of such premises to ensure that people do not smoke within those premises and that the required signage is posted.

No-Smoking signs

The rules specify the signs which must be displayed, right down to their size and wording. Signs are readily available, free of charge, from the government. The signs must be displayed in a prominent position at each entrance to Smoke-free premises. In commercial premises, where there are multiple occupiers, it is likely that each occupier will need to display the smoke-free signs. The rules say that the sign must be displayed in a prominent position at each entrance to Smoke-free premises. This applies to an entrance to Smoke-free premises from other Smoke-free premises (although these signs would not need to contain the wording which is ordinarily required and may just display the no-smoking symbol). So, for example, in a shopping mall signs would need to be displayed at each entrance to the mall, and at each entrance to each shop inside the mall.

Practical Steps

 Order the free “no smoking” signs and assess where they should be displayed. 

  • Inform your employees that smoking on the business’s premises is not allowed and will be policed. 
  • Consider including smoking on smoke-free premises under gross misconduct in your disciplinary policy. If you do make this change, inform your employees immediately of it. 
  • Consider implementing a smoke-free policy. 
  • Consider providing your employees with assistance to quit smoking.