Employment Update February 2010
Employment update calendar
With the dawn of a new year comes a veritable menagerie of upcoming employment law reforms.
Below we have set out a month-by-month list of some of the most significant reforms coming in 2010.
FEBRUARY
Unfair dismissal compensation awards
As of 1 February 2010 the following limits now apply:
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Maximum award for unfair dismissal will fall from £66,200 to £65,300; and
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Maximum amount of a week’s pay (used to calculate, among other things, redundancy pay) shall remain at £380.
Default retirement age
The Department of Work and Pensions and the Department for Business, Innovation and Skills' joint investigation paper – the Survey of Employers’ Policies, Practices and Preferences – closed on 1 February. The responses are expected to shape the Government’s decision on the default retirement age, the date for which is as yet unknown.
APRIL
Right to request time-off for training
From 6 April 2010, employees who work for organisations with at least 250 staff will have the right to request time off work for training purposes; provided the employees have at least 26 weeks continuous service. These requests will be known as ‘time to train’ requests. Some of the key features are:
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‘Training’ can include obtaining further qualifications, or getting more training which is relevant to the employee’s job;
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The right will not apply to agency workers, members of the armed forces, or employees of school age (i.e. those up to the age of 18);
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The process will entail the employee making an application containing all relevant information, with the employer discussing, considering and then responding to the application;
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If the employer refuses the application, the employee is afforded a right of appeal within 14 days of the decision being communicated. The employer thereafter has 14 days to respond;
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There is no requirement to continue paying an employee whilst they are on training, or to fund the training itself;
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From 6 April 2011, the ‘250 employees’ limit will cease: employees from organisations of any size will be able to make the request.
New ‘fit notes’
We first mentioned this reform back in June 2009. New fit notes are set to take effect from 6 April 2010, with the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations coming into force a couple of months beforehand (which are currently being prepared by the Department for Work and Pensions).
The fit notes will be issued by GPs, and will set out for employers what the employee can do rather than simply stating that the employee is sick/injured and will not be able to work for a certain period. For example, if an employee breaks an arm then it may be possible for them to return to work earlier but be restricted to certain tasks. Employers should however be aware that the wording of Sickness Absence Policies may have to be amended to reflect this new development.
Additional paternity leave and pay
The Additional Paternity Leave Regulations 2010 are set to come into force on 6 April 2010. The Regulations allow for new fathers to take up to six months paid paternity leave where the mother returns to work without using her full entitlement to maternity leave, which is currently 52 weeks. The paternity leave will be paid if taken during the second sixth month portion of the mother’s entitlement which is unused if the mother returns to work early. Paternity pay will be the same as for statutory maternity pay (which is currently £123.06 per week for those earning more than £90 per week).
The Regulations are scheduled to formally come into effect for fathers of babies born on or after 3 April 2011, however it is envisaged by HMRC that they could apply in exceptional circumstances from November 2010.
Although in some outlets it is reportedly anticipated that uptake may be fairly low, employers are nevertheless advised to review these Regulations and consider them in light of their policies on maternity and paternity leave.
OCTOBER
Equality Act 2010
Perhaps the most significant update to UK employment law of the year will be the coming into force of the Equality Bill.
Very briefly, the Bill aims to consolidate existing discrimination legislation by:
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Introducing the idea of ‘protected characteristics’, rather than having separate legislation governing age, sex, race, etc discrimination;
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Simplify the meaning of direct and indirect discrimination, harassment, and the justification for discrimination (i.e. where the practice is a proportionate means of achieving a legitimate aim);
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Simplify and codify the law on disability discrimination, including introducing ‘indirect’ disability discrimination; and
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Introduce protections for those undergoing gender reassignment and transsexuals.
There are a great many other provisions which may or may not make it to the final version, as the Bill is still working its way through the committee stages of Parliament. Stay tuned for further updates.
INTO 2011…
The Agency Workers Directive has proven to be a bit of a hot potato – with the Government announcing last October that the implementation of the Directive would be delayed until October 2011 rather than coming into force in the Spring of 2010. However the Agency Workers Regulations 2010 were published at the end of December 2009 in draft form, so it is likely that this subject will stay in the public spotlight for much of this year.
The EAT heard the case of Dansie v The Commissioner of Police for the Metropolis which concerned a male police officer’s claim for sex discrimination. He had been required to cut his long hair for safety and cosmetic reasons, whereas female colleagues had not been so required. He claimed he had been discriminated against.
The EAT refused the claim. The Dress Code was not discriminatory as between men and women just because a female employee would not in similar circumstances have been required to cut her hair. The EAT concluded that, provided the Dress Code was equally balanced between the sexes, there could be no discrimination.
The legal test to apply in this situation is whether, depending on the profession and applying contemporary standards of conventional dress wear, the employer is asking men to display an “equivalent level of smartness” to that required of female staff; be it by requiring them to wear a collar and tie or cut their hair.
Although Mr Dansie’s challenge was unsuccessful, readers are recommended to consider their dress code policies to ensure that parity of treatment is applied.
Working for two masters
The Prison Officers Association v Gough has re-raised a matter which is an exception to the general concept in employment law that an employee cannot have more than one contract of employment: “a servant cannot have two masters”.
The EAT held that it is indeed possible for employees to have more than one contract of employment, provided that the jobs are compatible with one another. Whether or not multiple jobs are ‘compatible’ is dependant on the facts and circumstances of particular cases. In Gough there was nothing problematic with the employees being members of the prison service and the Prison Officer’s Association.
Risk assessments for pregnant workers
The Employment Appeal Tribunal has offered useful guidelines for employers in carrying out risk assessments for pregnant workers.
O’Neill v Buckinghamshire County Council is a decision of the Employment Appeal Tribunal (EAT) which sheds light on the circumstances in which employers come under a duty to conduct a risk assessment for a pregnant worker. It has now been held that pregnant workers do not automatically require to have a risk assessment carried out by their employer in terms of the Management of Health and Safety at Work Regulations 1999.
The EAT concluded that an employer’s duty to carry out a risk assessment only applies if:
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The employee notifies the employer that she is pregnant in writing;
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The work is of a kind which could involve a risk of harm or danger to the health and safety of a new expectant mother or to that of her baby; and
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The risk arises from either processes or working conditions or physical biological chemical agents in the workplace.
Employers should be aware that if a risk assessment has to be carried out, and for whatever reason is not, then there is a risk of the employer facing a discrimination claim.
Readers are advised to consult their own health and safety policies on risk assessments carefully in light of this ruling.
Long-term impairment in the Disability Discrimination Act 1995
There are questions over what constitutes ‘long term impairment’ in terms of the Disability Discrimination Act 1995 (DDA). The effect of an impairment is a long term effect if it has lasted at least 12 months or is likely to last that long (or for the rest of a person’s life).
In the case of Patel v Oldham MBC, Mrs Patel suffered mild myelitis (inflammation of the spinal cord). Approximately a year after developing this, she developed a secondary myofacial pain syndrome (MPS). The Tribunal which heard the case first decided that the MPS did not develop from the myelitis. Mrs Patel appealed to the Employment Appeal Tribunal.
The question before the EAT was whether the effects of the two illnesses could be aggregated for the purposes of the 12 month period.
The EAT held that this question is very much a matter of fact and circumstance, and should be left to “the good sense of the tribunal”. In the circumstances, the EAT was satisfied that the Tribunal was wrong, and that Mrs Patel’s myelitis had indeed developed into the myofacial pain syndrome, and thus the two illnesses could be aggregated.
The case is a challenging one for employers. It requires that a heightened awareness be maintained when it comes to the reasons behind employees’ absences, in case their illness develops into something else. It also requires employers to put themselves in an employment tribunal’s position and decide whether a tribunal would ”have the good sense” to view illnesses as linked.
Holiday entitlement: use them or lose them
Whether employees are entitled to claim their full holiday entitlement in any given year is a subject that is often discussed.
In a recent case, Lyons v Mitie Security, the Employment Appeal Tribunal (EAT) has held that the right to statutory leave, enshrined by Article 13 of the Working Time Regulations, is not absolute. Holiday entitlement notice requirements can be found in employees’ contracts of employment, or in the Working Time Regulations. If the leave cannot be accommodated within the current leave year, because the employee has not given the appropriate notice, then loss of the entitlement might follow. The EAT confirmed that the right to statutory leave as provided for in the Regulations is subject to notice provisions.
Power to the whistleblowers
The Department for Business, Innovation and Skills has issued its consultation responses to its proposals to update current statutory provisions concerning whistleblowing.
From 6 April 2010, claimants who wish to make protected disclosures about workplace wrongdoing, or whistleblowing, will be able to tick a box in an employment tribunal claim form (an ET1). The tribunal then considers whether or not the disclosure is a ‘protected’ one: if so, and if the claimant consents, it will be able to pass on the disclosure to a separate regulatory industry body, or person, which will consider the disclosure. This will be confirmed to the parties in writing.
Whilst convenient for concerned employees, it is potentially a major headache for employers. Employees may be seen to have a significant bargaining tool in threatening to get another organisation involved in an employment tribunal claim unless their conditions are met. Irrespective of this, primary legislation and the tribunal rules will be amended shortly to give effect to these proposals.
The matters covered in this ebulletin are intended as a general overview and discussion of the subjects dealt with. They are not intended, and should not be used, as a substitute for taking legal advice in any specific situation. Semple Fraser LLP will accept no responsibility for any actions taken or not taken on the basis of this publication.
for more information please contact: alison gow