EMPLOYMENT LAW TRAINING AND EMPLOYMENT LAW CONSULTANCY

Section One

 

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

New Statutory payment levels announced from Feb 2010

The Secretary of State for Work and Pensions has announced the rates of various statutory payments for 2010. The Government has also published the Employment Rights (Revision of Limits) Order 2009, which revises downward, among other things, the maximum compensatory award for unfair dismissal. The reduction reflects the decrease of 1.4 per cent in the Retail Prices Index from September 2008 to September 2009.

It is also proposed that the earnings threshold for statutory adoption, maternity, paternity and sick pay would rise from £95.00 to £97.00 per week.

Statutory adoption, maternity and paternity pay and Maternity Allowance will all rise from £123.06 to £124.88, but statutory sick pay will remain at £79.15.
These changes will come into effect in April 2010.

Meanwhile, RPI-linked compensation limits have fallen.

The maximum compensatory award for unfair dismissal falls from £66,200 to £65,300

The maximum guarantee payment payable to an employee who is "laid off" falls from £21.50 to £21.20.

The revisions made by the Order take effect when the event giving rise to the entitlement to compensation or other payment occurs on or after 1 February 2010.

April 2010

"Fit notes" to replace traditional GP sick notes

What is the fit note?

The Statement of Fitness for Work, or 'fit note', is a new Medical Statement that GPs will issue from 6 April 2010. Concern has been expressed that there has not been enough time allowed for GP's and Employers in particular to familiarise themselves with the new form. It replaces the old 'sick note' and aims to focus on what an employee may be able to do at work rather than what they cannot do.

What's different about the new fit note?

In the past GPs have either said that 'you should refrain from work' or 'you need not refrain from work'. The fit note offers a new option - 'may be fit for work taking account of the following advice'. There will no longer be 'a fit for work' option as doctors were felt not to have the appropriate knowledge about individuals' roles and the risks involved to be able to assess this.

It is felt that it is not the doctor, but the employer, in consultation with their employee, who is best placed to make the decision as to whether they can accommodate any changes to facilitate a return to work.

A GP will be able to suggest ways of helping an employee get back to work. This might mean discussing:

The GP will also provide general details of the functional effect of the individual's condition. The maximum duration a medical statement can be issued for will be reduced from six to three months during the first six months of a health condition.

Fit notes will apply only to employees who are signed off sick on or after 6 April 2010. The DWP has now published guidance for employers and medical practitioners.
For more detailed guidance go to;

http://www.dwp.gov.uk/docs/fitnote-employer-guide.pdf

Trade Union "Blacklisting"

Blacklisting trade union members has been banned under new government regulations.

Under the Regulations, which were passed in March and are expected to be implemented in April - current and former trade union members may complain to an employment tribunal if they are refused employment, subjected to a detriment, or unfairly dismissed for a reason relating to a blacklist. Employment agencies are unable to refuse to provide a service because a worker appears on a blacklist.

It is also unlawful to compile, use, sell or supply blacklists containing details of people who are, or were, trade union members, or who are taking part, or have taken part, in trade union activities, where the blacklist may be used by employers to discriminate in relation to the recruitment or treatment of existing workers.

Courts may award damages, including damages for injury to feelings, where the relevant provisions are breached.

In March 2009, the Information Commissioner reported that 40 construction companies had subscribed to a database used to vet construction workers, which has now been closed under data protection law. Ian Kerr, the individual who operated the database, was fined £5,000 for committing a criminal offence under data protection legislation.

Additional Paternity Leave

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

Fathers will become entitled 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 in order for them to qualify.

Although the new rights do not arise until April 2011, employers will need to make sure that their policies have been updated to reflect them by mid 2010
when parents-to-be will no doubt start enquiring about their paternity and maternity rights.

Time off for Training rights

From April 2010, businesses with more than 250 employees will have to consider requests from employees for time off work to undertake training. This could be an accredited programme leading to a qualification or an unaccredited programme to help develop a particular skill relevant to their work. The right to request time off applies to employees who have worked for their employer for 26 weeks. Employers may want to draft policies dealing with this new right in readiness for requests. 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 relevant legislation is the Apprenticeships, Skills, Children and Learning Act.

The right will be similar to the rules on requesting 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" - again along similar lines to the flexible working rules. 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.

The Government announced (November 2009) that plans to introduce this for firms with fewer than 250 employees are under review.

The Employer is not expected to pay for the training.

Tribunal Statistics 2008/2009

The latest Tribunal statistics have just revealed a further rise in the number of unfair dismissal claims (up to over 52,000 in the year to April 09). Redundancy linked claims also rose significantly; in particular claims that the Employer failed to inform and consult staff or trade unions correctly. These claims have trebled over the previous year. Overall claims are slightly down, partly due to a reduction in the numbers of Equal Pay claims.

For more information go to: http://www.employmenttribunals.gov.uk/Publications/publications.htm

Whistleblowing changes.

The Department for Business, Innovation and Skills has clarified its proposals to give employment tribunals the power to pass on whistleblowing (Public Interest Disclosure Act 1998) allegations arising during claims to a prescribed regulator.

For claims (or amended claims) arising on or after 6 April 2010, a number of changes will be put into place:

Time off for Trade Union duties - new ACAS Code from January 2010

ACAS has updated the Code covering time off for union activity. Previous codes on this were produced in 1998 and 2003 - so what is new? The significant changes include a reference to the rights for trade union "learning reps" - a formal role created in 2002; and confirmation that paid time off is reasonable for reps engaged in negotiations connected with a TUPE transfer.

Some unions now have reps dealing with environmental and equality issues - but the new code confirms that these reps have no statutory rights to time off to carry out these duties, to attend training or to request facilities in the workplace.

In addition, terminology has been updated; some statements have been added to support the positive role that reps can play; references have been included to the role of reps in collective redundancy and tupe transfer situations and guidance is provided on providing cover for employees absent on rep duties.

To read or download the full Code and guidance, go to www.acas.org.uk

Looking into the Future...!

The Equalities Bill, if enacted (!) will impact on a number of areas of employment legislation. Briefly, proposals include;

For more on the Equalities Bill, see Section Two of this Newsletter

Temporary Workers Directive - New rights for a reported 1.3 million agency workers. The Regulations are expected to be finalised by the middle of 2010, but could be changed by a new Government .

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 most of the rights will not apply until after 12 weeks of employment.

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. The proposals currently include a concept of "linking" to prevent Employers having a short break between two assignments, to avoid the 12 week continuous rule. For example, breaks must be at least 6 weeks long, unless the worker is re-engaged on "substantially different work".

It will be the Agency that has the responsibility for complying with these Regulations - which means of course that they will have to obtain the necessary employment information on comparable employees who work for the "Hirer".

The Government announced in October 2009 that this would not come into effect in the UK until October 2011 - almost the latest possible introduction date to comply with EC regulations.

For more on this, refer to Section Two - the Law in more detail, below.

Parental leave to be extended to four months

The revised EU Parental Leave Directive means that current parental leave arrangements will need to be extended. The Directive will give each working parent the right to take at least four months' leave per child, but the Government may retain the UK's current qualification period. The new right will apply to all workers including fixed-term, part-time and agency workers.

The new directive will be formally adopted and Member States then have two years to introduce this, which is likely to be by early 2012.

Introduced in 1999, the take up rate for parental leave has been quite low, probably because it's unpaid! The decision on whether to give payment (or not) during parental leave is left for Member States to determine. In the current climate it is likely that it will remain unpaid, and therefore will not have a huge impact on businesses.

Recent important news - just in case you missed anything!

December 2009

New Rules for Employing Tier 2 non-EEA Nationals

From 14 December 2009 employers must advertise all job vacancies in Jobcentre Plus for a minimum of four weeks prior to appointing a non-EEA national. This is to give UK based employees greater employment prospects. Under immigration rules, employers are allowed to recruit certain categories of non-EEA nationals where the vacancy cannot be filled by a UK resident employee.
'We've always said that we would run our immigration system for the benefit of the UK, and that is why the Prime Minister announced that we will extend the amount of time employers must advertise jobs in Jobcentre Plus before they can bring in a worker from outside Europe.' says Phil Woolas, Borders and Immigration Minister

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 rose 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;

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.

On 1 October, new rules came in prohibiting the use of tips and service charges being counted by Employers towards the minimum wage levels.

Centralised Vetting System

The Government is introducing a new centralised vetting system for those working with children or vulnerable adults. This came into effect on 12 October 2009. 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

ACAS Dispute Resolution

The Dispute Resolution Review published in 2007 highlighted the need for services to help employers and employees resolve disputes quickly and effectively without the need to go through formal tribunal procedures.

As a result, Acas expanded its Pre Claim Conciliation Service nationally from April 2009. Initially the service was mainly restricted to unfair dismissal and discrimination cases, but from October 2009 the service was extended to all ET jurisdictions for which Acas has the power to conciliate.

To access this service, the individual, the employer or their representative simply rings the Acas helpline on 08457 474747. In simple terms, if internal efforts (such as disciplinary and grievance procedures) to resolve the dispute have been attempted without success, the dispute is likely to end in a formal ET claim (but no claim has yet been made) and there appears to be an entitlement to bring such a claim, outline details of the dispute will be passed to a conciliator who will quickly contact the parties to offer Acas' help.

To date (end December 2009) there have been over 6000 referrals from the Helpline to Acas conciliators, with around 40% of appropriate referrals resolved. Significantly, these cases are resolved quickly - the median duration of cases by calendar days is for Fast Track (mainly wages) 10 days, for Standard Track (primarily unfair dismissal) 17 days and for Open Track (discrimination) 19.

If conciliation fails for whatever reason, the individual retains their right to enter a formal complaint to the ET should they so choose, at which point Acas conciliation would again be made available. However, our experience shows that a significant number do not pursue ET claims, possibly at least in part because of the information they have received during the PCC process and the opportunity this has given to explore both sides of their dispute in more depth.

Increase in pay for apprentices.

August 2009 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.

September 2009 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'