EMPLOYMENT LAW TRAINING AND EMPLOYMENT LAW CONSULTANCY

Section One

 

Employment Legislation - Recent Important changes and a Timetable for the coming months

Statutory Discipline Procedures

Just as we start to understand them, they will be changing again!

The 2004 Dispute Resolution Regulations have attracted universal criticism from the TUC, employers, lawyers and tribunals alike. We now know they are to be repealed.

Until the law is amended though, it is important that all cases of discipline, particularly those involving dismissal, closely follow the Statutory process.

A revised ACAS Guide has been published and it is proposed that a failure to follow this, by either party, will result in an increase (or decrease) in compensation awarded by up to 25%. However, the guide is not statutory, and a failure to follow it will not mean the dismissal is automatically unfair, as it is under the Statutory Discipline Procedure.

This months free policy download is a sample Disciplinary Policy.

April 2008
Information and Consultation of Employees Regulations extended

The Regulations, which implement the Information and Consultation Directive, now cover undertakings with 50 or more employees.

Corporate Manslaughter (Corporate Homicide in Scotland) law in force

Corporate Manslaughter law came into force on 6 April. Organisations are responsible for the actions (or omissions) of managers. Under previous legislation, only one individual ("a controlling mind") could cause the employer to be found guilty. Hence it tended to be the smaller employers who found themselves in court. Employers who take a proactive approach to Health and Safety are said to be unlikely to be overly concerned about the new laws, as they bring no new obligations for diligent firms. However the Act will make it possible for employers to be prosecuted if someone is killed at, or by, work activity. Workplace deaths will in future be investigated by the police, not the HSE, and a report sent to the Crown Prosecution Service. During the investigation, the workplace will effectively be a "crime scene" and be sealed off whilst forensic work takes place.

July 2008
A National Staff Dismissal Register

A National Staff Dismissal Register for retail employers is expected to go live shortly. The register is a commercial initiative championed by the Action Against Business Crime (AABC) Group. It already boasts some high profile supporters, including Harrods, Mothercare and Selfridges, who, it says, have already signed up.
The register will apparently hold data on individuals who are dismissed for prescribed 'dishonesty' reasons, including theft and/or damage, and on individuals who resign part way through a disciplinary process or investigation based on such reasons. The organisations that have signed up to the scheme will have access to this information and are likely to use this in their employee vetting process.

August 2008

ACAS has reported that the total number of complaints received in the past 12 months rose by nearly 26% to 227,497. Employment Tribunals also received much higher numbers of claims, up 42% to 189,300. This rise is in part due to Equal Pay claims.

Trade Union membership has continued to decline according to a recent report by the UK Statistics Authority. The rate of union membership in the workforce fell to 28% in 2007, continuing the trend of recent years which shows a fall of 4.5% since 1995.

October 2008
New Minimum Wage rates

From 1 October the new minimum wage rates increase by around 3.8% to the following:

This is again above inflation, and based on a 40 hour week, takes the adult rate to just over £11,900 per annum, so do check that all workers are paid at or above the correct rate, including any casual or seasonal workers.

SSP Changes and SSP Rights for Agency workers

Following a Court of Appeal decision last year (HMRC v Thorn Baker), Agency workers were left without the right to Statutory Sick Pay (SSP) if the contract was for less than 3 months. The Government has moved to re-instate this right, with Regulations proposing to give effect to this from October.

The Fixed Term employees (Prevention of Less Favourable Treatment) (Amendments) regulations 2008 come into force towards the end of the month. This states that agency workers on contracts of less than three months are not excluded from statutory sick pay with effect from 27 October 2008. Therefore agencies need to be aware of this change and amend their contracts and policies accordingly.

Another change from October is the removal of the "linking" rules when an employee changes job and moves to a new Employer. The form SSP (1)L is scrapped from 27 October, employers will no longer be obliged to tell another Employer about SSP paid to the departing employee. Apparently the form was little used anyway!

Rules on "linking" periods of SSP with the same Employer remain the same. If an employee is off sick within 8 weeks of a previous absence, which attracted SSP (ie more than 3 days), the waiting days do not apply. The two absences "link" and SSP is payable from day one of the second absence.

Maternity Rights

The contractual distinction between Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML) is about to disappear. The background to these amendments is that the now defunct Equal Opportunities Commission challenged the Government over the introduction of an Equal Treatment Directive. The EOC argued that the UK Regulations did not afford the protection required in the Directive, and their challenge was successful, necessitating further changes in the UK.

Putting OML and AML on the same footing is the change likely to attract most attention from employers and employees alike. A woman's terms and conditions, bar remuneration, continue to apply during OML. The effect of the Regulations is that employers who remove benefits during AML that are available during OML - such as company cars, gym membership, health insurance, etc - are likely to face claims of unlawful discrimination. This is a significant change, and likely to have cost implications for employers. In addition, some employers may currently discount AML for the purposes of accruing contractual annual leave or for assessing seniority or financial non-contractual benefits based on length of service. Employers are advised to amend such policies sooner rather than later.

A woman's right to return to work following ordinary maternity leave remains slightly different from returning after she has taken the additional leave. A woman returning from OML is entitled to her old job back (barring redundancy/business closure etc). However, the law still recognises that a year off is a long time in business, and suitable alternative work can be offerred if it was not practicable to hold the job for this long. The alternative must be at the same location, pay, status etc, so there is not too much room for change in most organisations.

Note that these amendments only take effect in respect of women whose expected week of childbirth falls on or after 5 October 2008.
Migrant workers

The new points-based system (PBS) is the biggest shake up of the immigration system for 45 years. The aim is to help British business recruit the skills it needs from abroad and also to assure the British public that only those skilled migrants needed come to the United Kingdom. Under the points-based system, employers will need a sponsor licence to bring in skilled or temporary workers from outside the European Economic Area or Switzerland. Companies requiring a licence are being encouraged in a media advertising campaign to apply for their licence in good time.

Tier Two of the new system is due to come into effect in November. Tier Two is skilled workers with a job offer to fill gaps in United Kingdom labour force. The Borders Authority (BA) recommends that Employers who wish to recruit workers in this category have to register as a sponsor. To take early advantage, the employer is being urged to register by 1 October 2008, so that the admin can be dealt with in time for the employer to recruit in November.

Penalties for breaches of the asylum rules changed again back in February. Employers could now face up to £10,000 fine for each illegal worker they have negligently employed. Prison sentences of up to 2 years await those who ignore the law and "knowingly" engage illegal staff.

Make sure thorough pre-employment checks are carried out on all recruits, and that periodic follow up checks are done where employment continues for any period. Avoid any suggestions of discrimination by following the same approach for all recruits, without any assumptions as to status to work in the UK. Retain good copies of all documentation used to confirm someone's immigration status - this is an important defence if documents later turn out to be false or forged.

The renamed Borders Agency has a helpful website with checklists etc. at
http://www.ukba.homeoffice.gov.uk/

April 2009

Holiday rights increase to 20 days plus 8 public holidays.

Flexible Working rights

The right to request flexible working is to be extended to all parents of school age children (under 16). The Government estimates that 4.5 million working parents are likely to benefit from this extension

Time off for Training rights

The right to request time off for training is also on the agenda. The Government launched a consultation on this new right. It is reported that one third of employers do not provide any staff training and 8 million employees go without training each year. The consultation closed in September.

It is anticipated that the right will be similar to the rules on flexible working for family reasons (see above). The right will be for employees with 26 weeks service to request time off for training, and the employer will be under an obligation to seriously consider the request. The employer will be able to reject the request for "business reasons" - which are still to be defined. What is included though is the right for the employer to reject the request where the training has no relevance to the business. Government estimates suggest that 400,000 employees a year will make a training related request for time off.