Illegal and inappropriate images are a problem in the workplace, according to a survey which found that 71 per cent of companies have had to discipline employees over pornographic images on company computers.

The survey conducted by PixAlert, in conjunction with the Chartered Institute of Personnel and Development (CIPD) also found that 54 per cent of senior managers were unaware of their personal legal and civil liability for illegal and inappropriate images in the workplace. Sixty six per cent of companies surveyed had not kept their Computer Use Policy up to date, exposing them to potential criminal or civil claims.

The majority of companies surveyed had some technology to provide some protection to prevent illegal images getting on to the corporate network via the internet or email. However, 68 per cent have not installed technology that is capable of identifying improper images, which can enter through a desktop or laptop on memory sticks, CDs/DVDs and camera phones.

Imogen Haslam, CIPD adviser commented: “Employers need to have clear, consistent policies that leave no room for doubt in the minds of employees. A little tolerance could cause a lot of trouble later. They also need to keep up-to-date with the rapidly advancing array of technology that can make it easy for unwanted images to slip into the workplace unnoticed. This should not be left to the IT department alone. It is not computers that bring inappropriate or illegal images to work, it is people. HR needs to work closely with IT to make sure that the systems are in place to monitor and enforce policies. But ultimately bosses who want to be sure they are protected from prosecution resulting from illegal images stored on their systems need to get the people management policies right.”

The Employment Appeals Tribunal (EAT) has ‘simplified’ its rules for allowing a rolled-up holiday allowance as satisfying the requirements of paid annual holidays under the Working Time Regulations. The new guidance was given on 22 November as a result of a number of conjoined cases, the lead case being Smith v. A J Morrisoes & Sons Ltd.

There must be mutual agreement for genuine payment for holidays, representing a true addition to the contractual rate of pay for time worked.

The best way of evidencing this is for:

• the provision for rolled-up holiday pay to be clearly incorporated into the contract of employment;
• the percentage or amount allocated to holiday pay (or particulars sufficient to enable it to be calculated) to be identified in the contract, and preferably also in the payslip;
• records to be kept of holidays taken (or of absences from work when holidays can be taken) and for reasonably practicable steps to be taken to ensure that workers take their holidays before the end of the relevant holiday year.

The EAT accepts that such a provision could be ‘incorporated into the contract of employment’ as an express agreement, be it oral or in writing; as a collective agreement; or by custom or practice; or by statute. However, the EAT is also aware that the whole issue of the legality of a rolled-up holiday allowance satisfying the Working Time Regulations has been referred to the European Court of Justice (ECJ) as a result of Robinson-Steele v. RF Retail Services Ltd.

The Employment Relations Act 1999 introduced a number of significant changes to UK labour law.

As part of a commitment made by the Government before the Act came into being, the DTI announced in July 2002 that it intended to review the Employment Relations Act 1999.

At the start of 2003, the Government released a consultation document asking for comments on the findings of the review, and proposed changes to the existing legislation. An Employment Relations Bill was subsequently introduced into the House of Commons on 2 December 2003. It received Royal Assent on 16 September 2004.

The Employment Relations Act 2004 sets out provisions to:

1. Make the statutory recognition procedure work more effectively, such as:
   • Clarifying how the appropriate bargaining unit should be determined
   • Clarifying the ‘topics’ for collective bargaining
   • Permitting unions to communicate earlier in the process with workers
   • Making changes to the legislation in relation to supplying the Central Arbitration Committee and the Advisory Conciliation and Arbitration Service with information
2. Simplify the legislation on industrial action ballots and ballot notices and give greater protection to employees against dismissal for taking official and lawfully organised strike action by excluding ‘lock-out’ days from the eight-week protected period.
3. Define more closely the actions that employers and unions should undertake when taking reasonable procedural steps to resolve industrial disputes.
4. Implement the decision of the European Court of Human Rights in Wilson and NUJ v. United Kingdom [2002] IRLR 568, so that it is clear that union members have the right to make use of union services and employers cannot bribe them to give up significant union rights.
5. Improve the way some individual employment rights operate, e.g. setting out more clearly the role of the companion in discipline and grievance hearings, and introducing protection against unfair dismissal for eligible parents requesting flexible working where they have less than one year’s service.Allow regulations to be introduced to implement the TUC/CBI framework agreement on Information and Consultation (draft Information and Consultation Regulations were drawn up in July 2003).

   Improve the national minimum wage enforcement regime (following a consultation exercise which ended in October 2003).

6. Give greater powers to the Certification Officer to strike out weak or vexatious claims.
7. Improve the regulation of trade unions and give the Secretary of State the power to include non-postal methods of balloting in statutory union elections and ballots.
8. Tackle the intimidation of workers during recognition and derecognition ballots by introducing rules that define improper campaigning activity by employers and unions and by clarifying what ‘reasonable access’ unions have to the workers in the bargaining unit. (Note that on 2 December 2004 the DTI published a consultation document inviting comments on a draft code of practice entitled Access and Unfair Practices During Recognition and Derecognition Ballots. The guidance in the existing code of practice entitled Access to Workers During Recognition and Derecognition Ballots needs to be revised to reflect changes to the employer’s duty to provide access. It also needs to be revised to reflect the new provisions concerning unfair practices such as intimidation. The consultation period runs until 24 February 2005.
9. Widen the ability of unions to expel or exclude racist activists and others whose political behaviour is incompatible with trade union membership.
10. Give a power to the Secretary of State to make funds available to independent trade unions and federations of trade unions to modernise their operations. Note that on 9 December 2004 the DTI published a consultation document on how the Union Modernisation Fund (UMF) should operate. The consultation period ends on 3 March 2005. The DTI hopes that the UMF will be up and running some time during the summer of 2005. For a copy of the consultation document, see here.Explanatory notes to the Employment Relations Act 2004 have been prepared by the DTI. For details, click here.

    For a copy of the Access and Unfair Practices During Recognition and Derecognition Ballots consultation document, see www.dti.gov.uk/er/union/cofp-consult-021204.pdf

There are a number of statutory provisions which benefit employees as soon as they have entered into a contract of employment. Some of these are dependent on length of service, where this is so, indication is given in the summary below.

• The right to a written statement of the main terms and conditions of employment.
• The right to an itemised pay statement.
• The right to equal pay (for men and women) for work that is judged to be ‘like work’, work rated as equivalent under a job evaluation scheme, or for work of equal value.
• The right to statutory sick pay for employees who cannot attend work on the grounds of personal sickness, provided they are eligible.
• The right, under the Working Time Regulations 1998 (S.I. 1998, No. 1833), to work no more than an average of 48 hours over a seven-day period, and to enjoy certain specified weekly and daily rest breaks.
• The right, under the Working Time Regulations, to four weeks’ paid statutory annual leave.
• The right to time off work for public duties and certain other purposes.
• The right not to be discriminated against on the grounds of sex, race or disability, or on the grounds of being a part-time worker.
• The right to certain maternity benefits.
• The right for employees to belong, or not to belong, to a trade union of their choice.
• The right to statutory minimum periods of notice upon termination of employment.
• The right to a written statement detailing reasons for dismissal.
• The right not to be unfairly dismissed, which, under most circumstances, is dependent upon the employee having completed a minimum of one year’s service.
• The right to redundancy pay, subject to a minimum qualifying period of two years’ service.
• The right to continuity of employment and protected employment rights when there is a ‘relevant transfer’ of an undertaking or part of an undertaking to a new employer under TUPE.
• The right not to have unauthorised deductions made from pay.
• The right to guaranteed pay where employees are laid off.
• The right to a safe workplace and a safe system of work.

The Employment Act 2002 was introduced to Parliament by the Department of Trade and Industry on 7 November 2001. The Act received Royal Assent on 8 July 2002 and is coming into force in stages.

The explanatory notes issued with the Employment Act 2002 contain the following overview:

The main areas covered by the Act are paternity and adoption leave and pay, maternity leave and pay, flexible working, employment tribunal reform and resolving disputes between employers and employees.

In many cases the Act amends current legislation. More specifically it amends:

• The Employment Rights Act 1996 to make provision for statutory rights to paternity and adoption leave and amend the law relating to statutory maternity leave,
• The Social Security Contribution Benefits Act 1992 to introduce statutory paternity and adoption pay and to amend the law relating to maternity pay and maternity allowance,
• The Employment Tribunals Act 1996 in relation to costs and expenses, conciliation, powers to delegate the prescription of forms, determination without a hearing, practice directions and pre-hearing reviews,
• The Employment Rights Act 1996 to make provision in connection with the use of statutory procedures in employment disputes, and to introduce a new provision relating to procedural unfairness in unfair dismissal cases. In addition amendments are made to the Act’s provisions relating to the particulars of employment that employers are required to give to employees, and to provisions relating to compromise agreements and dismissal procedures agreements,
• The Equal Pay Act 1970 to make provision for questionnaires in relation to equal pay issues,
• The Trade Union and Labour Relations (Consolidation) Act 1992 to make provision for time off for trade union learning representatives in organisations where trades unions are recognised, and
• The Social Security Administration Act 1992 to make provision for work-focused interviews for partners of benefit claimants and to make provision about the use of information for, or relating to, employment and training.

Sections of the Act relating to pay and administration of statutory paternity and adoption pay, fixed term work, and statutory dispute resolution procedures are free standing and do not amend existing legislation.

A copy of the Act can be obtained from www.hmso.gov.uk/acts/acts2002/20020022.htm

Below is a timetable for implementing the Act, based on a similar timetable produced by the Department of Trade and Industry. Implementation Timetable - Employment Act 2002

• Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002, No. 2034) passed by Secretary of State (except Northern Ireland which has implemented separate provisions (Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (S.R. 2002, No. 298)). Implementation date - 1 October 2002
• Regulations in force (Equal Pay (Questions and Replies) Order 2003 (S.I. 2003, No. 722)). A copy of the questionnaire (which includes guidance) is available on the Women and Equality Unit website. Click here. Implementation date - 6 April 2003
• Regulations in force (Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002, No. 2789),Paternity and Adoption Leave Regulations 2002 (S.I. 2002, No. 2788), Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) Regulations 2002 (S.I. 2002, No. 2818), Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 (S.I. 2002, No. 2822), Statutory Paternity Pay and Statutory Adoption Pay (Administration) Regulations 2002 (S.I. 2002, No. 2820), Statutory Paternity Pay and Statutory Adoption Pay (National Health Service Employees) Regulations 2002 (S.I. 2002, No. 2819) and Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (S.I. 2002, No. 2821)). Implementation date - Operational where the expected week of childbirth is on or after 6 April 2003.
• Flexible working requests (s. 47) Regulations in force (Flexible Working (Procedural Requirements) Regulations 2002 (S.I. 2002, No. 3207) and Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (S.I. 2002, No. 3236)). Implementation date - 6 April 2003
• Rate of maternity allowance (s. 48) Regulations in force (Social Security, Statutory Maternity Pay and Statutory Sick Pay (Miscellaneous Amendments) Regulations 2002 (S.I. 2002, No. 2690)). Implementation date - 6 April 2003
• Dispute resolution (ss 29-41) Regulations in force (Employment Act 2002 (Dispute Resolution) Regulations 2004 (S.I. 2004, No. 752)). Implementation date - 1 October 2004
• Union learning representatives (s. 43) Revised ACAS Code of Practice produced, following public consultation. Provisions in force. Implementation date - 27 April 2003
• Tribunal reform (ss 22-28) Regulations in force (the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (S.I. 2004, No. 1861)).
  Implementation date - 1 October 2004
• Partner work-focused interviews (s. 49) Regulations in force (Social Security (Jobcentre Plus Interviews for Partners) Regulations 2003 (S.I. 2003, No. 1886)). Implementation date - 12 April 2004
• Dismissal procedures (s. 44) - Not yet known