The Companies Act 2006 is largely directed at the management and operation of corporate entities. However, from an employment perspective, some of the changes are of interest as they affect executive directors. Part 10 of the Act codifies directors’ duties. Part 11 improves rights for shareholders to sue directors in the name of the company; the shareholder may bring a claim against a director in respect of any act or omission by a director amounting to negligence, default, breach of duty or breach of trust. A derivative action will be expressly available in respect of a breach of duty by a director even where that director has not personally benefited from their breach.
The Act also introduces (s227 to s230) a new definition of “service contract” (which encompasses a contract for services and a letter of appointment to the office of director as well as a contract of service) together with further obligations on companies to retain directors’ service contracts and make them available for inspection in certain circumstances.
For further details please use this link:
http://www.andersonstrathern.co.uk/knowledge/html//ChangestoCompanyLaw270907.htm
Flexible Working (Eligibility, Complaints and Remedies) (Amendment) (No 2) Regulations 2007
The Regulations amend the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 by:-
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extending the term “adopter” to include those who are adopting a child where the child has not been placed by a UK adoption agency;
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adding “private foster carer” - and the spouse, partner or civil partner of a private foster carer - to the list of those people who are entitled to request a contract variation to care for a child.
Commission for Equality and Human Rights
The new Commission for Equality and Human Rights (CEHR) comes into being today. With the aim of reducing inequality, eliminating discrimination and promoting good relations between people, the CEHR combines the roles, responsibilities and powers of the Equal Opportunities Commission (EOC), the Disability Rights Commission (DRC) and the Commission for Racial Equality (CRE). It assumes responsibility for areas of the law which have had no separate Commission to date, namely religion, sexual orientation and age. It must also encourage compliance with the Human Rights Act.
The "general duty" of the Commission (as set out in s3 of the Equality Act 2006) is to support the development of a society in which:-
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people's ability to achieve their potential is not limited by prejudice or discrimination;
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there is respect for and protection of each individual's human rights;
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there is respect for the dignity and worth of every individual;
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every individual has an equal opportunity to participate in society; and
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there is mutual respect between groups based on understanding and valuing diversity and on shared respect for equality and human rights.
Whilst the CEHR will cover the whole of Great Britain, in Scotland and Wales there will be statutory committees responsible for the work of the CEHR. Morag Alexander has been appointed as the Scotland Commissioner for Equality and Human Rights and last month the first 6 appointments to the Scotland Committee were announced. See http://www.cehr.org.uk/news/docview.rhtm/465781 for details of these appointments.
The CEHR has an ambitious agenda to deliver and expectations for it are high. As a one-stop shop for all the strands of discrimination legislation, the CEHR is seen as an improvement on the current system. However, the absence of a Single Equality Act will mean the new Commission will have to work across all strands, whilst still applying the existing legal framework of separate legislation for each of the prohibited grounds.
With an inevitably restricted budget and power to only support individual claims as they arise, concerns have been expressed that the new Commission's ablility to effect change may be hampered. However, the Commission may prefer to use its powers of investigation - along with its ability to issue a request for the preparation of an action plan - to address ways of avoiding repetition or continuation of an act identified in an "unlawful act notice" and to combat more systemic discrimination. The Commission has to prepare and publish a strategic plan showing what activities it will undertake. The first review of this will be due in 3 years so there will be ample opportunity to follow the new Commission's progress.
Age discrimination
On the 1st anniversary of the introduction of the Employment Equality (Age) Regulations 2006, what progress has been made in tackling age discrimination in the workplace? Have the predicted 8000 claims per year materialised?
According to the Employment Tribunal Service annual report published last month, a total of 972 age discrimination claims were registered by Employment Tribunals in the 6 months to 31st March. Only 135 had been disposed of within this period. It would appear therefore that employers are not – as yet - being swamped by claims. Although default judgements have been issued in 6 cases in the first 6 months, no cases heard by an Employment Tribunal have been successful. We are therefore still waiting for cases to filter through the system to help with the interpretation of the Regulations.
However, despite the lower than expected number of cases brought, it would seem that the introduction of the Regulations has put the issue of "age" on the corporate agenda with anecdotal evidence of internal reviews of policies being undertaken and consideration of flexible retirement as a possibility as a matter of course. This may be evidence of a culture change if nothing else.
Further information
This e-briefing is sent to you by Anderson Strathern's Employment Unit and Discrimination Law Service. We hope you find it useful. If we can help with any matters arising from this e-zine or any other matters please contact Jill Bell 0131 625 7246 or Andrew Brown 0131 270 7938 or your usual contact in our Team.
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