EMPLOYMENT LAW TRAINING AND EMPLOYMENT LAW CONSULTANCY

Section One

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

October 2009
Statutory Redundancy Pay

A one-off increase in the level of a weeks pay used for calculating, amongst other things, Statutory Redundancy pay, becomes effective on 1 October. The maximum is increased from £350 per week, to £380 per week. Therefore the maximum Statutory Redundancy payment will rise to £11,400 (up from £10,500), where the employee has 20 or more years' service over the age of 40. (The calculations are the same for a Basic Award from an Employment Tribunal for Unfair Dismissal).

This increase will apply to employees whose notice of redundancy expires on or after 1 October 2009.

Normally this increase to a week's pay comes into effect in February; however there will not be another increase in February 2010.

Minimum Wage

Normally the Low Pay Commission reports to the Government each February. This year it was put back until May - to look at the recession, inflation and unemployment figures. Businesses wanted the NMW to be left at 2008 levels in the current economic climate, but a small increase will come in.

From 1 October the new minimum wage rates are increased as follows;

• Workers aged 22 and over - £5.80 (£5.73)
• Workers aged 18 to 21 - £4.83 (£4.77)
• Workers aged 16 and 17 - £3.57 (£3.53)

The Government states that around one million workers will benefit from the increases. (Why does it always seem to be a million??)

At the moment, a worker needs to be 22 to receive the top rate. The Government has indicated that it will lower the qualifying age for the top rate to 21, probably from October 2010. These rates exclude certain apprentices, but see below (under August) for a change to apprentice pay rates. The Low Pay Commission is currently investigating whether or not the NMW should apply to all apprentices and the report is due in February 2010.

As a result of case law, the use of "tips" from customers in service industries came under review.

Centralised Vetting System

The Government is introducing a new centralised vetting system for those working with children or vulnerable adults. This is due to come into effect on 12 October. In the past such information has been included in a variety of lists, making it potentially hard to find information. Collating this data, a very important task to ensure protection, is the responsibility of the Independent Safeguarding Authority (ISA).

Tribunal Awards

From 1 October - a week's pay for calculating statutory redundancy pay and basic awards from tribunals rises to £380. This was originally announced in the Budget. It has also been confirmed that this will not rise again in February 2010, but normal service will be resumed in February 2011.
The maximum basic award for unfair dismissal/statutory redundancy payment is now therefore £11,400
Unfair dismissal: the maximum compensatory award is unchanged at £66,200, and will be reviewed in February 2010
A surprisingly high number of claimants who are successful at tribunal never receive their compensation. The Ministry of Justice has published research that shows that 39% of claimants had not received any payment by the end of the 42-day period. (After this date, interest begins to accrue). The smaller the employer, the less likely it is that payments will be made.

Also a factor is the size of the award itself - where the compensation was over £5000, an amazing 44% of claimants never received their compensation!

The Government are looking at ways to assist claimants obtaining what is due to them.

(Also see recent case on Victimisation in Section three)

2010

Age

Review of the compulsory retirement age of 65, brought forward from 2011.

Maternity

Proposals for couples to "share" maternity leave, known as additional paternity leave, scheduled to come in April 2010

Pensions

The Pensions Act 2008 requires that by 2010 every Employer must provide a "qualifying workplace pension scheme". This will cover all workers aged 16 to 75 - the term "workers" will mean that Agency staff will be included. Furthermore eligible employees must be enrolled in the scheme automatically, but can choose to opt out.

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. (And this was before the recession!). The consultation closed in September 2008.

It is anticipated that the right will be similar to the rules on flexible working for family reasons. 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.

2011??

Temporary Workers Directive - New rights for agency workers

The Government has been under pressure for some years, both at home and in Europe, to improve the rights of temporary agency workers. Progress was finally made when, on 5 December last year, the Directive on temporary agency work was published in the Official Journal of the European Union. Member States now have until 5 December 2011 to implement its provisions, which give agency workers certain rights equal to those of comparable permanent staff from day one of employment. This will not confer employee status on agency workers.

In the United Kingdom the rights will not apply until after 12 weeks of employment.

The big question for many employers is: When will the Government implement the Directive? Back in May 2008, the Government stated that it hoped to introduce legislation by 2009. However, employers' groups, such as the Recruitment and Employment Confederation and the EEF, are urging the Government to make full use of the three-year implementation period.

In any event, employers should start thinking about their use of agency workers in preparation for the forthcoming changes - for example, they may want to consider using fewer agency staff or restrict assignments to less than 12 weeks or reorganise working patterns to make the most of permanent staff - for example, by using annualised hours.

Recent important news - just in case you missed anything!

April 2009

New ACAS Code replaces Statutory Discipline Procedures

Employers should be aware of the new ACAS Code of Practice on Disciplinary and Grievance Procedures. It came into effect on 6th April 2009, when the statutory dismissal and grievance procedures were abolished (Cheers all round).

A revised ACAS Guide has been published and 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 was under the Statutory Discipline Procedure, but employment tribunals will take the Code into account when considering relevant cases.

Note though that the new ACAS Code covers Employees only (so not Agency or casual workers) and does not apply to dismissal by redundancies or to the non-renewal of fixed term contracts.

A new book is also available to help managers deal with all aspects of the Discipline Process. Called "The Manager's Guide to Discipline", written by Derek Eccleston and ELT Associate Kate Goschen, this very practical soft back contains many checklists and sample letters.

Published by Gower, further details are available on our website, or by going to; Gower Publishing: http://www.gowerpublishing.com/isbn/9780566088551

Employers and employees should always seek to resolve disciplinary and grievance issues in the workplace. Where this is a not possible, employer and employees should consider using an independent third party to help resolve the problem. The third party need not come from outside the organisation but could be an internal mediator, so long as they are not involved in the disciplinary or grievance issue. In some cases, an external mediator might be appropriate.

Many potential disciplinary or grievance issues can be resolved informally. A quiet word is often all that is required to resolve an issue. However, where an issue cannot be resolved informally then it may be pursued formally. The ACAS Code sets out the basic requirements of fairness that will be applicable in most cases; it is intended to provide the standard of reasonable behaviour in most instances.

Employers would be well advised to keep a written record of any disciplinary or grievances cases they deal with.

Other changes contained in the new Employment Acts

The ACAS duty to become involved.

Legislation currently sets down circumstances in which Acas officers have a duty to try to conciliate before proceedings have been brought. This duty is to be replaced by a discretion so that Acas can prioritise cases sent to it and is relieved of the obligation to offer conciliation in pre-tribunal disputes where there is no prospect of success.

Other changes under the Tribunals, Courts and Enforcement Act 2007, such as making tribunal awards and Acas-conciliated compromise agreements directly enforceable in the county court, will come into force on 1 April 2009.

The Employment Act will also allow trade unions to expel or exclude members or potential members on the ground of their political party membership, provided certain conditions are satisfied. The change comes as a result of the decision in ASLEF v United Kingdom, in which the European Court of Human Rights held that, in accordance with Article 11 on the right to freedom of association, a union must be free to choose its members, and it could therefore expel a union member who was an active member of the British National Party.

Statutory Maternity Rights

It is looking increasingly likely that the proposed increases in Maternity and Adoption rights, due in 2010, will be delayed due to the recession. Maternity/Adoption pay was due to increase from 39 weeks to 52 weeks.

Additional Paternity Leave would allow Maternity leave to be "shared" by the parents, this is still scheduled to come into effect in April 2010.

Statutory Sick Pay

From 5 April, the standard rate of statutory sick pay increased to £79.15, for all payments on or after 6 April 2009

Flexible Working rights

The right to request flexible working was extended to all parents of school age children (under 17). The Government estimates that 4.5 million working parents benefit from this extension

Time off for Public Duties

Employees have certain rights to reasonable paid time off to carry out "public duties". The list of duties has been extended to cover such roles as members of probation boards and youth offender panels.

HR Professionals and Law Firms.

From April 2009 HR professionals can become either salaried or equity partners in Law Firms. This followed a change in the law contained in the Legal Services Act 2007. This allows up to 25% of a law firms partners to be non-lawyers, whereas prior to this only lawyers were eligible.

Holiday rights

Holiday rights increased to 20 days plus 8 public holidays. From 1 April, the final staged increase in statutory holiday entitlement up to 5.6 weeks (being 28 days for someone working a five or more days a week) comes into force. The transitional provisions, which allowed employers to permit staff to "buy out" the statutory days above 4.0 weeks also comes to an end. This is a domestic (UK) minimum, the European Working Time requirement remains at four weeks.

August 2009

• Review of "default" Retirement Age of 65 brought forward. It was announced that the planned review of the impact of the Age Discrimination regulations would be brought forward from 2011 (5 years after implementation was originally proposed) to 2010
• The Working Time Regs affecting working time for doctors in training changed on 1 August 2009. The previous 56-hour limit is now reduced to 52 hours per week. This will remain in place until 31 July 2011, when the aim is to have doctors covered by the 48 hours ruling that applies generally.
• The Government has started consultation on Regulations that will outlaw the use of "blacklists" containing details of union membership and activity. This follows the discovery of such a list, used by Employers in the Construction industry as part of their recruitment processes.
• Increase in pay for apprentices. August saw the minimum pay rate for apprentices rise to £95 per week from £80. The rate, set by the Department for Business, Innovation & Skills, increased on 1 August. Apprentices under the age of 19 and older workers in the first year of an apprenticeship are exempt from the National Minimum Wage (NMW). The Low Pay Commission is currently investigating whether or not the NMW should apply to all apprentices and the report is due in February 2010.
• "Fit notes" to replace traditional sick notes.
  To help reduce absenteeism in the workplace the government have developed a new fit note, which will focus on what tasks workers can perform as opposed to the traditional sick note, which concentrates on the tasks employees cannot do. The note allows GPs to say whether patients are fit for work as well as suggesting changes to work hours and tasks. It is hoped that the "well note" will encourage a conversation between doctor and patient about the possibility of returning to work as part of rehabilitation. The draft version of the "well note" has been welcomed by HR Professionals, whilst doctors are apprehensive and concerned about the practicalities. No firm date has been given for introduction, as trials have been taking place using the new system.

September 2009

Illegal workers

Pizza Hut and security firm G4S are confident their HR procedures are robust despite being fined for employing illegal workers.

Both firms insisted the incidents were isolated after the UK Border Agency fined more than 1,000 companies for employing illegal workers - the vast majority being in the restaurant and takeaway sector.

Pizza Hut branches in Reading and Hounslow had an illegal worker each, as did G4S.

But a spokeswoman for Pizza Hut said: "This particular incident took place almost a year ago at one of our franchised stores. We have since ensured that all our franchisees have reviewed their processes, to prevent this happening again."

A G4S spokesman said: "We can confirm that we were issued with a financial penalty in November 2008 after an enquiry ruled that an officer was working in excess of the 20 hours a week permitted for a resident on a student visa.

"This was an isolated incident and we have updated our IT systems to ensure this situation is not repeated."

Restaurant chain Chez Gerard and a BP garage in Southampton were also fined for employing an illegal worker each.

An average of £5,000 per illegal worker was paid out by firms - half the maximum possible penalty, introduced in February last year.

The UK Border Agency revealed 1,161 firms have been fined nearly £10m for flouting employment laws in the past 16 months.

STOP PRESS!

Attorney General Baroness Scotland has been fined £5,000 after being found to have employed a housekeeper who was not legally allowed to work in the UK. The UK Border Agency said she took steps to check Tongan Loloahi Tapui's right to work but had not kept a copy of documents, as required by law.

New workplace parking tax

The Workplace Parking Levy has now been approved by the Transport Minister, Sadiq Khan. Any business with 11 or more staff parking spaces will be charged £250 a year for each space, a cost that could rise to £350 within two years. Each business is free to decide whether or not to pass the cost on to its employees.

Nottingham City Council, the first authority to submit an application, estimates that the levy will raise £11.3 million. The tax is to be piloted in Nottingham in 2012, with similar plans lined up for Birmingham, Manchester, Bristol, Leeds, Newcastle, Liverpool and Sheffield.

The AA and representatives of business groups are opposing the scheme, which they describe as 'a stealth tax'.

Additional Paternity Rights.

Six months of maternity leave are to be transferable to father (or partner).

The Government has announced a consultation on allowing new mothers to transfer some of their maternity leave entitlement to the father. Under the proposals, mothers with maternity leave outstanding in the second six months of a child's life will be able to transfer up to six months of maternity leave to the father. Up to three months of that leave will paid at the same rate as Statutory Maternity Pay if the leave is taken during the mother's 39-week maternity pay period.

Consultation on implementing regulations will begin shortly. The Government intends that the law will be in force by April 2010 and will be effective for parents of children due on or after 3 April 2011, to allow employers time to adjust to the measures. As regards administering the new system, parents will be required to 'self certify' by providing details of their eligibility to their employer. However, employers and HM Revenue and Customs will both be able to carry out further checks on entitlement if necessary.