星空传媒

No, this is not just an article for human resources managers. All managers in housing organisations need to have some knowledge of employment law and forthcoming changes. They may affect your budgets, your costings, your ability to bid for new work. They may challenge your assumptions about how to treat particular categories of staff.

There are two areas of new law of which you should be aware. The first is fixed-term contracts. These are common among registered social landlords, perhaps a little less so in local authorities. Major change is on the way. The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 will come into force on 1 October.

For many organisations the new laws probably remove any benefit there was in employing people on fixed-term contracts rather than permanent contracts.

Fixed-term employees will no longer be able to waive redundancy rights for any contracts agreed, renewed, or extended after 1 October 2002. But they will have the right not to be treated less favourably than comparable permanent employees simply because they are fixed term. If there is different treatment you will have to justify it by some objective measure.

You do not have to do the comparison condition by condition, but can look at the total package fixed-term employees receive. If it is equal to the value of a comparable permanent employee, you will not have a problem.

Fixed-term employees who have been continuously employed under one or more fixed-term contracts for four years or more will automatically be treated as permanent employees with continuous employment, starting on 10 July 2002. This will not apply if there is an objective reason why a fixed-term contract remains appropriate, so such contracts may still make sense for staff on projects that are funded for a limited life.

Part-time employees have had to be treated the same as full-time employees for some time and, from 1 October, part-timers on fixed-term contracts will be allowed to compare themselves with full-timers on permanent contracts, and vice versa.

Tiptoeing around TUPE
There are likely to be changes to the law relating to transfers of undertakings, a complex area on which the government has indicated it's likely to publish draft regulations in October. Some of the proposed changes may well be helpful to housing organisations bidding for new work which involves transfer of staff under the Transfer of Undertakings (Protection of Employment) Regulations 1981 (a TUPE transfer).

For example, the government is intending to introduce a definition of what counts as an undertaking. In practice this is still likely to leave a lot of questions open. The government may decide to make it clear that where the contractor changes under a service contract, such as a housing management contract or a domiciliary care contract, that is a transfer of an undertaking. This would be very helpful when taking on staff on such a contract as it would make it more likely that there would be an onward TUPE transfer when the contract came to an end.

It will probably be made clearer that it is possible to agree variations of contracts with employees after transfer where their contracts permit it.

It is also possible that employers who are transferring staff will have a new duty to provide information about the employees to be transferred. This may remove some of the arguments lawyers often have about provision of information and the need to have the information warranted as true and accurate.

The post-transfer pension problem
Much more complicated, and further in the future, is a suggestion that employees should keep some kind of rights to their occupational pension schemes after transfer. At the moment occupational pension schemes are not covered by TUPE.

But the issue of enabling employees to have some kind of comparable pension right after a transfer is very complicated. This would not have any real impact on transfer of employees from local government or the NHS, as there is nearly always a requirement to provide a broadly comparable scheme where such transfers take place.