In force from today are a number of legislative changes which will be of interest to employers. These include the new right to request time off to train and the replacement of sick notes with “fit notes”. Also expected to come into force today are various regulations relating to additional paternity leave which will affect parents of babies born or expected to be born on or after 3rd April 2011 and parents who are notified of having been matched for adoption on or after that date. For the moment, however, they still appear in their draft form but will no doubt come into force shortly.
New right to request time off to train
From 6 April 2010 employees working for employers with 250 or more employees have a new right to request time off to train. As from 6 April 2011, the right will extend to all employees, regardless of the size of their employer. The right will be available to employees only (not to other “workers”) and is subject to a qualifying period of service of 26 weeks. Employers are required to consider all requests seriously and follow a prescribed procedure. They may only refuse a request if they think that one of a number of specified business reasons set down in section 63F(7) of the Employment Rights Act 1996 apply. An employee whose application is refused can bring a claim before an Employment Tribunal but their remedies are limited to compensation of up to eight weeks’ pay and/or an order for the employer to reconsider the application.
For more information see the Government’s business link website.
Employers should review carefully the detail of the new rules and adapt their time off work policies accordingly.
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.
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.
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.