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 2011

Abolition of the Statutory Retirement Age

From 1 October 2011 it will no longer be lawful to forcibly retire an employee on the basis they have reached the age of 65 (unless justified - see below). This age used to be known as the Statutory Retirement Age and provided a defence to Employers. The age of 65 is still the age at which State Pension becomes payable for most people - but this is also due to change in a few years time.

From 1 October, staff will be able to decide when to retire; unless the Employer has a business reason for retiring staff at a given age. This is known as an Employer Justified Retirement Age (EJRA). An ACAS guide on this topic is available, and makes it clear that Employers will be allowed to have discussions with staff about future plans. www.acas.org.uk

The Employment Rights Act has been amended to revert to five fair reasons for dismissal, by removing Statutory Retirement from the list of fair reasons. If an Employer attempts to justify a dismissal with an EJRA; this will be a dismissal for some other substantial reason.

An exemption has been introduced for group risk insured benefits provided to those over the employers normal retirement age (eg life assurance, private medical insurance),

Ensure all recruitment literature and policy documents have been reviewed to remove references to any compulsory retirement age. Ensure line managers are made aware of the changes to the law, and given guidance on how to discuss retirement plans with employees.

New Rights for Agency Workers

The Agency Workers Regulations 2010 (SI 2010/93) come into force on 1 October 2011. The Regulations give temporary agency workers the right to equal treatment in comparison to permanent employees as regards basic working conditions. The regulations do not give agency workers employee status - so no right to claim unfair dismissal or redundancy for example.

Comprehensive guidance has been produced by the Dept. for Business, Innovation and Skills (BIS) at www.bis.gov.uk; and a shorter guide is available in Section Two of this Newsletter.

Essentially the new rights cover "basic working and employment conditions": Pay; Duration of working time; Night work; Rest periods; Annual Leave. These will apply to an agency worker after 12 weeks, although some new rights will apply from day one of an assignment, such as access to "collective" benefits such as a canteen. A worker must work in the same role with the same hirer for 12 continuous calendar weeks during one or more assignments' before being entitled to equality in respect of basic working and employment conditions - but beware, as detailed anti avoidance measures have been added to prevent Employers abusing the 12 week rule - see Section Two of this Newsletter.

New National Minimum Wage Rates Announced

The Government has now enacted the anticipated increase in the National Minimum Wage. This took effect from 1 October 2011.

• £6.08 (£5.93) an hour for workers aged 21 and over
• £4.98 (£4.92) an hour for workers aged 18 to 20
• £3.68 (£3.64) an hour for workers aged 16 and 17

The Government also accepted a proposal from the Low Pay Commission to introduce a minimum rate of £2.50 per hour for Apprentices in October 2010. This rate will apply to all Apprentices under 19; or aged over 19 but in the first year of their Apprenticeship. October 2011 sees this increased to £2.60 per hour.

Recent important news - just in case you missed anything since our April Newsletter! (Oldest news first, in chronological order.)

Local Authority "Two-Tier" Code withdrawn.

On 23 March the Government announced the immediate withdrawal of the Code of Practice covering Local Authority Service Contracts. This Code required Contractors to offer the same terms and conditions to new recruits as those enjoyed by the Public Sector staff transferred across. Contractors are now free to offer different terms.

Note that some Local Authorities are still putting this clause into the Service Providers contracts; so it remains in force if agreed.

Employment tribunals: proposals for change

Following significant employer concerns about problems in the employment tribunal system, the Government has launched a consultation. Its intention is "to remove barriers to recruitment so that businesses have the incentive and ability to expand, ensure they provide maximum flexibility and promote competition without compromising fairness".

The consultation seeks views on early resolution of conflict, workplace mediation and the use of compromise agreements. The Government also wants to reduce the caseload of the tribunal service and reduce spending.
The key proposals include:

• Increasing the minimum length of service required to raise a claim of unfair dismissal from one year to two years.
• Imposing financial penalties on employers who are found to have breached the law. These penalties will be payable to the Exchequer, in addition to any award to the claimant, and it is proposed that they should be half of the amount of the total award subject to a minimum of £100 and a maximum penalty of £5,000.
• Requiring claims to be submitted to ACAS in the first instance before going to the tribunal service. The proposal is to allow one month for conciliation, and to allow a shortened claim form (ET1) to be used in an attempt to reduce costs.
• Allowing judges to strike out claims at any hearing (not just at a Pre-Hearing Review, as is currently the case), or without hearing the parties or giving them the opportunity to make representations.
• Increasing the deposit that either party can be required to pay where a case is viewed as having little prospect of success from £500 to £1,000.
• The maximum cap on a costs award or a preparation time order will be increased from £10,000 to £20,000.
• Additional information about the complaint will be required from claimants.
• Where a party makes a reasonable offer to settle, and the other party rejects that offer, such rejection will be taken into account when the employment tribunal is assessing any award of compensation.
• Widening the number of cases that can be heard by judges sitting alone (rather than a panel of three) to include cases concerning unfair dismissal.
• Introducing a fee for anyone making a tribunal claim

The consultation closed on 20 April 2011.

April 2011

Government confirms abolition of Default Retirement Age

As widely anticipated the default retirement age will be abolished from 1st October 2011 (with phasing in beginning in April). From 6 April 2011, Employers will no longer be able to issue new notifications of compulsory retirement under the DRA (Default Retirement Age rules), as a minimum of 6 months notice of retirement is required, and the abolition date is October 2011. Government guidance suggests that notice will have to be given by 6 April, and the retirement date must be before 1 October, but it is recommended that notification is given by the end of March to satisfy the 6 month ruling.

Employers wishing to "retire" older employees will need to ensure they have a fair reason for dismissal (e.g. incapability on the grounds of poor performance or ill-health) and they have followed a reasonable procedure in dismissing the employee.

Additional Paternity Rights.

The proposals for couples to "share" maternity leave and pay, known as additional paternity leave, were introduced in April 2010.

From April 2011, fathers/partners and adopting couples will become entitled to up to six months additional paternity leave in the second six months of their child's life if their child is due on or after 3 April 2011. The mother must have returned to work, and the child needs to be at least 20 weeks old, in order for them to qualify. For further information, download  the Statutory Guidance and application form (SC7)from the HMRC website www.hmrc.gov.uk

Deputy PM Nick Clegg has also proposed a totally flexible system of shared parental leave, but not to be introduced before 2015 to allow for full review and consultation.

Equality Act Update

Some parts out, two still in!!

A Public Policy provision in section 1 of the Act will not be enacted at all. It was not introduced last October when the main elements of the Act came into force, and will not now come in at all. The Government has announced that the "Socio Economic" duty on Public Authorities will not be implemented at all.

Also scrapped are Gender Pay Audits. These would have required all Employers with over 250 staff to report on gender pay comparisons, by 2013 at the latest. The Government has opted for a voluntary approach, with Employers encouraged to report on pay differences.  A third strand of the Act, that of preventing Dual Discrimination, (such as age and sex combined) has been delayed again and will not now be introduced in April. No new date has been given, but we have been promised at least 12 weeks notice of their introduction by the Equalities Office. Note that this will only be applicable to direct dual discrimination; not indirect, harassment or victimisation.

Effective April is the "Single Equality duty" (Section 149) that extends public sector duties to all protected characteristics. This general duty obliges public authorities to eliminate discrimination, advance equality of opportunity and foster good relations between groups.

Also confirmed from April, despite reports to the contrary, are the provisions on "Positive Action". These allow employers faced with two candidates "of equal merit" to choose a candidate from a group that is currently under represented in the workforce. (Look at it as a "tie breaker" between two equally matched applicants; it should not be used routinely). This is an option for the employer to choose, it is not mandatory to do this. This applies to external recruitment and internal promotions. The Government has clearly stated that this does not involve the use of "quotas" and that Positive Discrimination remains unlawful (there are exceptions, for example more favourable treatment for someone with a disability). Positive action does not allow an employer to appoint a less suitable candidate just because that candidate has a protected characteristic that is under-represented or disadvantaged.

General positive action provisions contained in earlier legislation remain and allow employers to target measures such as dedicated training to groups, such as women or people from ethnic minorities, who are under-represented or disadvantaged in the workplace, or to meet their particular needs.

Government Equalities Office has also published a Step-by-step Guide to using Positive Action in Recruitment and Promotion. This can be found at:
http://www.equalities.gov.uk

Right to request Time Off for Training

The Department for Business, Innovation and Skills announced in February that the right to request time off for training is not going to be extended to all employees from April 2011.

The right to request time off for training was introduced for employees of large employers (250+ employees) in April 2010, with a view to it being extended to all employers from April 2011. The maximum penalty for an employer which failed to consider such a request is eight weeks' pay. In November 2010, the government announced that employers with fewer than 50 employees would be exempt. This announcement means that the right will not be extended as previously anticipated.

Vetting and Barring Scheme

The Government has published its plans for a reformed vetting and barring regime.  Registration for the first wave of workers and volunteers with the vetting and barring scheme (VBS) was halted in June 2010 so that the system could be scaled back to ‘common sense levels'. The necessary legislative changes are included in the Protection of Freedoms Bill. The Bill is expected to receive Royal Assent by early 2012, with the new regime introduced as soon as possible after this. It is reported that up to 9 million people will no longer be obliged to register.

The proposals include:

• merging the Criminal Records Bureau and Independent Safeguarding Authority;
• providing an online checking function for employers and applicants;
• reducing the number of positions requiring checks to just those working most        closely and regularly with children and vulnerable adults;
• portability of criminal records checks between activities, thus avoiding the need for a new CRB check for each volunteering activity;
• removing a requirement for those working or volunteering with vulnerable groups to register with the VBS and then be continuously monitored by the ISA;  and preventing employers  from requesting criminal records checks on individuals even though they know they are  not entitled to them.

The Government will continue to review the scope of CRB checks to ensure that they do not deter people from volunteering.

Flexible Working Request - Update -Decision reversed March 2011

An extension to those with children aged under 18 (up from 17) will not now come into force from April 2011. The right therefore remains with those employees with a child aged 16 or under.
The Government launched a consultation last year which looked at how to extend the right to request flexible working to all employees. It now looks likely that this will come into place, probably in April 2012 according to a business plan published by the Dept. for BIS.

May 201

Definition of disability

The updated statutory guidance on the definition of disability came into force on 1 May 2011. While the definition is largely the same, ie "a physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities", there is no longer a prescribed list of day-to-day activities that must be affected.

July 2011

Bribery Act 2011

Originally due to come into force in April, this was implemented on 1 July. It now means that businesses are strictly liable for any bribery in their organisation. This covers paying bribes, receiving bribes and for commercial organisations, a failure to prevent bribery. The main defence will be to ensure that the organisation has "adequate procedures" in place to prevent acts of bribery. A separate policy will not be necessary in most businesses, but a risk assessment should be carried out.

To address business concerns, the Guidance on the Act suggests that reasonable and proportionate hospitality and promotional expenditure is not intended to be caught by this offence. It provides a helpful example to illustrate the point: an organisation's invitation to clients to attend a Six Nations match, Wimbledon tennis or Test Cricket as part of a public relations exercise designed to cement relations or enhance knowledge in the organisation's field is unlikely to be bribery. This is because it is unlikely to be evidence of an intention to induce improper performance of a relevant function.

There are four key criminal offences under the Act. The first is bribing another person (S.1). A person is guilty of a crime if he or she ‘offers, promises or gives a financial or other advantage to another person' intending that advantage to ‘induce the person to perform improperly a relevant function or activity' or to reward a person for such behaviour.

Being bribed is also an offence. S.2 provides that a person is guilty of this offence if he or she requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly.

Bribery of a foreign public official (S.6) occurs where a person offers, promises or gives a financial or other advantage to a foreign public official with the intention of influencing the official in the performance of his or her official functions. The person must intend to obtain or retain business or an advantage in the conduct of business by doing so. Importantly, there will be no offence where the official is permitted or required by the applicable local written law to be influenced by the advantage.

The fourth and final offence is the corporate liability offence of failure of a commercial organisation to prevent bribery (S.7). A commercial organisation will be liable to prosecution if a person ‘associated with' it bribes another person, intending to obtain or retain business or an advantage in the conduct of business for that organisation.

There will be a full defence for the organisation if it can show it had ‘adequate procedures' in place to prevent the persons associated with it from bribing.

The Ministry of Justice has issued a (45-page!) guide to commercial organisations about preventing bribery. See www.justice.gov.uk/guidance, click on "bribery".

Those responsible for HR should be reviewing policies such as Discipline (consider making bribery a gross misconduct offence for example) and any Whistleblowing policies; ensuring the new legislation is referred to appropriately. Any policies on the receipt of hospitality and gifts from customers or suppliers should also be reviewed to ensure standards are clear to staff.

Unlimited fines and even custodial sentences await!

September 2011

RIDDOR reporting changes

From September, most statutory reporting of accidents and injuries will have to be done on-line, rather than by phone and only fatal and major accidents should be reported by phone. Employers who do not have Internet access will have to use computers in libraries or other public buildings to meet the reporting requirements.

The Infoline telephone service, which provides a basic information service to callers, will close on September 30th. Businesses and members of the public seeking guidance are encouraged to use the HSE website instead.

Specific public sector equality duties now in force

The specific public sector equality duties, which are designed to ensure that public bodies meet their obligations under the general public sector equality duty in S.149 of the Equality Act 2010, came into force on 10 September 2011. Public bodies have had to comply with the general duty, which requires public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations, since April 2011.