Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

Employers should review carefully the detail of the new rules and adapt their time off work policies accordingly.

“Fit notes”

A new system of “fit notes” comes into use from 6 April 2010, replacing the old form of medical certificate issued by GPs. The purpose of the new fit notes is to focus attention on how an employee can be assisted in his or her return to work by encouraging communication between the patient and the GP, as well as between the employer and employee. The GP is required to complete a form indicating whether they consider a phased return to work, altered hours, amended duties and/or workplace adaptations would enable the employee to return to work. The responsibility, however, will be on the employer to determine whether an employee is fit to return to work in light of the GP’s advice. The new fit note regime will not remove the desirability of obtaining special medical reports, particularly where the employer suspects that the employee’s condition may amount to a disability.

For further information click on the link to the HSE website.

Employers are advised to revise their sickness policies to provide for return to work interviews following the issue of a fit note. The return to work interview will be for the purpose of discussing with the employee any additional measures that may be needed to facilitate their return to work, taking account of their doctor’s advice.

Regulators to be informed of whistleblowing claims

Where a claimant makes a whistleblowing allegation in his or her Employment Tribunal Claim Form (ET1), the Tribunal has, from 6 April 2010, the power to pass on the ET1 to the appropriate regulators provided the claimant consents (by ticking the relevant consent box on the form). The regulator will then be able to investigate the malpractice which has been referred to in the claim form. New ET1s containing the new tick box should be available as from 6 April 2010. The explanatory memorandum on the relevant new regulations explains that the new procedure will enable the whistleblowing allegation to be assessed by Tribunal administrative staff and, where appropriate, acted upon “without involving the release of unsubstantiated allegations into the public domain”. 

Employers should be aware that claimants may be tempted to tick the box indicating their consent to passing on relevant information to the appropriate regulator as a bargaining tool in negotiations in order to force a settlement of their claim. Another point to note is that where the claim is settled or withdrawn, there appears to be no mechanism for the regulator to be informed so presumably the regulator’s investigation may continue independently of the claim.

The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010

Employment Tribunal “Fast Track” Scheme introduced

A fast track scheme to help successful claimants recover compensation from their employer is introduced from 6 April 2010. If an employer fails to pay any Tribunal award, employees will have access to an extended service from the High Court Enforcement Officers. There will be a £50 court fee payable by the employee which will be added to the amount owed to them by their employer. 

For information see Ministry of Justice press release.

Additional Paternity Leave and Pay

Regulations introducing Additional Paternity Leave (APL) and pay are expected to come into force on 6 April 2010. For the moment they are still in draft form.  Once in force, the new regime will entitle eligible employees to take up to 26 weeks’ APL if the mother (or adopter) returns to work before using his/her full entitlement to 12 months’ statutory maternity/adoption leave. Eligible employees will usually be fathers but in the case of same sex couples, for example, it could include the partner of the mother or adopter who has not taken adoption leave. The father will need to have been continuously employed for 26 weeks or more by the end of the fifteenth week before the child’s expected week of birth (or being notified of having been matched for adoption). The earliest that the father (or adopter) will be entitled to take APL is twenty weeks after the child is born (or placed for adoption) and there is no further right to take leave after twelve months after the child’s birth (or placement). APL may be paid if taken during the mother or partner’s statutory paid maternity leave or paid adoption leave period;   leave taken after that period will be unpaid. Employees taking APL will qualify for Statutory Paternity Pay if they have average weekly earnings equal to or greater than the current lower earnings limit for National Insurance contribution purposes. Statutory Paternity Pay will be paid at the same rate as the standard rate of Statutory Maternity Pay. These new rights apply in respect of parents of babies born or expected to be born on or after 3 April 2011 or who have been notified of being matched for adoption on or after 3 April 2011.

For more information click on the BIS link.

Employers are advised to review carefully the new rules relating to Statutory Paternity Pay and Leave and to introduce new policies dealing with any employee who is expecting a baby on or after 3 April 2011.

Maternity, Paternity and Adoption Pay increased; SSP to remain the same

As from 4 April 2010 the standard rates of Statutory Maternity, Paternity and Adoption Pay will increase for £123.06 to £124.88. Statutory Sick Pay will remain unchanged at the current rate of £79.15 per week.

New anti-slavery laws

A new law protecting vulnerable workers from slavery and forced labour comes into force on 6 April 2010. The new criminal offence, which will help protect migrant workers from abuse by unscrupulous employers is made under section 71 of the Coroners and Justice Act 2009 and carries a maximum penalty of 14 years in prison. The offence will apply to anyone who holds a person in contravention of the Act, not just employers. We thought slavery had already been abolished but it would appear that the current law only covered trade in slaves and trafficking people for labour exploitation. However, the new law applies even if there is no trafficking. The Government has said that factors that may point to forced or compulsory labour include withholding the worker's documents, such as a passport; the worker being forced to live or remain in a particular area, perhaps in poor accommodation; and the employer not paying agreed wages.

Equality Bill

The Government confirmed in the Queen’s Speech on 3 December 2008 that it intends to introduce the Equality Bill in the next Parliamentary session. The Bill is intended to make discrimination law more accessible and easier to understand by combining nine pieces of discrimination legislation, and about 100 other laws into one single Act. The proposed legislation will enable the Government to make regulations about age discrimination in the provision of goods, facilities and services. It also contains a number of controversial proposals such as a ban on contractual clauses which ban employees from discussing their pay, and an increase in the scope of positive action in the workplace.

Children, Skills and Learning Bill

Also referred to in the Queen’s Speech, this Bill will reform education, training and apprenticeship for young people and adults. From 2013, it is intended that all suitably qualified young people will have the right to an apprenticeship place. Controversially, the Bill provides for all employees to have the right to request unpaid time off to undertake training.

Extension of the right to request flexible working

After some hesitation, the Government has now confirmed that it will press on with its plans to extend the right to request flexible working to parents of children aged 16 and under from 6 April 2009.

Statutory Holidays

The statutory annual leave entitlement for all workers increases from 4.8 weeks to 5.6 weeks on 1^st April 2009. Additionally, on 1^st August 2009, the maximum average weekly working time for doctors in training will be reduced from 56 to 48 hours.

Tips and the National Minimum Wage

The Government is currently consulting on its plan to change the law so that tips, gratuities and service charges can no longer be taken into account when deciding whether an employer is paying the National Minimum Wage. The consultation will end on 16 February 2009.

http://www.berr.gov.uk/files/file48899.pdf

Tribunal Procedure

As part of the dispute resolution reforms introduced by the Employment Act 2008, the Employment Tribunals (Constitution and Rules of Procedures) (Amendment) Regulations 2008 will take effect on 6 April 2009. These regulations amend the Employment Tribunal Rules of Procedure, deleting those rules which support the statutory dispute resolution procedures; amending the rules for Respondents’ applications for extension of time to present a Response; changing the rules on default judgements; allowing Respondents who are debarred from participating in proceedings to make a request for written reasons; and changing the rules on dismissing claims on withdrawal (including as a result of Acas settlement).

http://www.opsi.gov.uk/si/si2008/uksi_20083240_en_1

Safeguarding Vulnerable Groups Act 2006

Postponed from 2007, this Act introduces a centralised vetting system for people working with children and vulnerable adults. This is expected to come into effect in October 2009.

http://www.opsi.gov.uk/acts/acts2006/pdf/ukpga_20060047_en.pdf

Temporary Agency Workers

The UK has until 5 December 2011 to implement the EU Temporary Workers Directive which was published on 5 December this year. It is widely thought that, due to pressure put on the Government by various employer groups, implementation will be left until the last minute. The Directive provides that temporary workers will be entitled to equal treatment in terms of basic working and employment conditions, including pay, holidays, maternity leave, rest periods and working time. It will also ensure equal access to collective facilities, including canteens, transport services and childcare facilities and equal access to training. The Directive enables the UK to provide that an agency worker must be in a job for at least 12 weeks before such entitlements must be afforded.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:327:0009:0014:EN:PDF

Employment Act 2008

The Employment Act received Royal Assent on 13 November 2008. The Act will repeal the existing much criticised statutory dispute resolution procedures from 6 April 2009, as well as the related unfair dismissal rules set out in Section 98A Employment Rights Act 1996. Instead, Tribunals will have a discretion to adjust any award of compensation by up to 25% for unreasonable failure to comply with any provisions of the new ACAS Code in circumstances where the Code should be followed. The Act will also make other changes in the laws relating to the National Minimum Wage, employment agencies, trade-union membership and Tribunal powers. The Employment Act 2008 (Commencement No.1 Transitional Provisions and Savings) Order 2008/3232 sets out transitional provisions for the removal of the dispute resolution procedures.

http://www.opsi.gov.uk/acts/acts2008/pdf/ukpga_20080024_en.pdf

Dispute Resolution

The Government is consulting on secondary legislation to be made under the Employment Bill which will repeal the statutory dispute resolution procedures as from 6 April 2008. The consultation invites comments on:

• Permitting qualified HR professionals to be included in the definition of “relevant advisor” who can sign off a compromise agreement;
• Changing the approach on interest on Employment Tribunal awards;
• Allowing parties to straightforward Tribunal claims to consent to determination of a claim without a hearing;
• Adding holiday pay claims to hearings where Tribunal Judge can sit alone;
• Increasing Tribunals’ powers to make recommendations in discrimination cases;
• Making various changes to Employment Tribunal rules of procedure, as part of the wider Tribunal Services transformation;
• A number of miscellaneous issues including transitional provisions for the removal of the dispute resolution procedures (expected to be in effect from 6 April 2009)

http://www.berr.gov.uk/files/file46775.pdf

Additional Maternity Leave and Adoption Leave

The draft Maternity Leave and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008 have been published. These provide that employees will be entitled to the benefit of terms and conditions of employment, other than remuneration, throughout the entire maternity leave period, rather than just during Ordinary Maternity (or Adoption) Leave (OML or OAL) as at present. They also attempt to limit an employee’s right to pension benefits to the period in which they are in receipt of contractual or statutory maternity pay (currently all of OML and the first 13 weeks of Additional Maternity (or Adoption) Leave (AML or AAL)). However, under EU law it is arguable that pension benefits accrue throughout the whole period of maternity leave, not just paid maternity leave. Hence, despite the Government’s attempt to relieve employers of the burden of having to pay pension benefits for the final 13 weeks of AML, there will be a risk of discrimination claims if employers fail to provide such benefits. The same applies to death in service and permanent health insurance benefits.

http://www.opsi.gov.uk/si/si2008/draft/ukdsi_9780110819341_en_1

ACAS Code

ACAS has now published its draft guide on discipline and grievances at work. The guide supplements the revised new ACAS Code of Practice on discipline and grievances at work which is currently subject to public consultation (see Human Capital, May 2008). The guide gives detailed advice on practical aspects of disciplinary and grievances issues but will not be enforceable in an Employment Tribunal. A failure to follow the revised new Code will not, in itself, give rise to any liability (i.e. dismissals in breach of the Code will not be ‘automatically unfair’ dismissals). However, Tribunals will be able to adjust compensation awards by up to 25% for unreasonable failure to comply with any provision of the new Code. The draft guide which supplements the Code will not be taken into account when considering any unreasonable failure to comply with the Code for the purposes of applying the 25% uplift.

http://www.acas.org.uk/CHttpHandler.ashx?id=905&p=0

Working Time

The Council of the European Union has published its proposals to amend the Working Time Directive. As regards the right of individuals to opt-out of the 48 hour working week, it is proposed that workers will be required to renew their opt-out after a year (or less, if provided by national law) otherwise it will lapse. In addition, an opt-out will be void if signed at the same time as an employment contract or within 4 weeks of starting work. There will be some changes to the opt-in and opt-out procedure and no worker will be able to work more than 60 hours a week averaged over 3 months unless permitted in a collective agreement or agreement between social partners. Furthermore, working time plus inactive on-call time will not be able to exceed 65 hours a week averaged over 3 months, unless permitted in a collective agreement. “Inactive on-call time” is on-call time during which the worker is not required “effectively to carry out his activity or duties”. The proposed amendments to the Directive also envisage that inactive on-call time will no longer be considered working time.

These changes are not “set in stone”, as proposed wording will now be debated by the European Parliament and may well be amended before adoption at a future meeting of the Council of Ministers.

http://register.consilium.europa.eu/pdf/en/08/st10/st10583.en08.pdf

Consultation on carers

The Government has published a consultation paper “National Carer Strategy, Carers at the heart of 21^st Century, families and communities”. The paper includes a review of the definition of carer with a view to extending the right to request flexible working for carers. The Government is concerned that the current definition of carer in the flexible working legislation denies the right to request flexible working to about 20% of carers, many of whom provides significant levels of care. The paper confirms that the Government intends to consult on the Walsh review’s proposal to extend the right to request flexible working to those with parental responsibility for children up to the age of 16.

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085345

Consultation on employee right to request time off to undertake training

The Government has published a consultation on granting employees the right to request time away from their mainstream duties to undertake relevant training, provided they have worked for their employer for 26 weeks. The procedure for making and responding to such request will be similar to that used for the right to request flexible working. The legislation will contain a list of acceptable business reasons which can be used by an employer to turn down a request. These include relevance of training to business productivity and performance and burden of additional costs e.g. for arranging cover while the employee undertakes training. Training can be accredited programmes leading to a qualification or unaccredited training to develop job-related skills. There are no proposals to specify how training can be taken, whether on or off the job, or how much time employees should take for training – this will be for employer and employee to agree. Employees will be limited to one request per year. It is unlikely that the Government will implement this right before 2010.

http://www.dius.gov.uk/consultations/documents/TimeToTrain.pdf

Equality Bill

The Government has issued a White Paper containing proposals for an Equality Bill which is intended to make the law more accessible and easier to understand by combining nine pieces of discrimination legislation and about 100 other laws into one single Act.   See our last Human Capital alert (July 2008).

http://www.equalities.gov.uk/publications/FRAMEWORK%20FAIRER%20FUTURE.pdf