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Press Releases from Employment Relations
Employment News April 2009
April is a time when there is frequently a raft of employment related changes. Here are some of the most important:
Dispute resolution procedures
A new semi-voluntary ACAS Code of Practice replaces the ill-fated 2004 compulsory dispute resolution procedure rules.
Holidays
Phasing in of increased entitlement to annual holiday is completed - 28 days for full time employees, pro rata less for less.
Flexible working
Increase from 6 to 16 in age of children whose parents will normally have the legal right to request flexible working.
Employment Agencies
Increased powers for the Employment Agencies Standards Inspectorate.
Enforcement of employment tribunal awards
Requirement removed for a tribunal award to be registered in the County Court (or High Court) as a pre-condition of enforcement.
Employment Tribunals
Detailed changes to the rules of procedure plus proposals for holiday pay claims to be heard by an employment judge sitting alone.
Statutory Maternity Pay etc
Weekly main rate of SMP (and Statutory Adoption and Paternity Pay) increased to £123.06 (from £117.18) and of Statutory Sick Pay to £79.15 (from £75.40).
Minimum wage enforcement
The current £5,000 limit to the maximum fine is abolished.
Work Permits
Tougher tests for tier 1 and tier 2 immigrants from non-EU countries.
Equality Bill
The government proposes to publish its big Equality Bill in April. Amongst other things this is intended to consolidate a mass of anti-discrimination law.
We will examine some of the more significant ones.
Dispute Resolution
The much unloved statutory procedures will be replaced from 6 April 2009 and the status quo will very largely be restored. However, the changes still have considerable scope to cause problems and will continue to do so for some time. For this reason, we have devoted a whole page on the website to discipline and grievance.
There were some very interesting developments on what constitutes a fair disciplinary hearing in the case of R (on the application of G) versus the governors of X school and Y council. Forgetting, the alphabet soup, the case is interesting because the teacher, who was the subject of disciplinary proceedings, claimed that he should be allowed to be legally represented at a disciplinary hearing. The allegations against him were of sexual impropriety with a person under 18 and abuse of a position of trust. The High Court held that because of the serious ramifications of any such finding, the right to a fair trial, enshrined in the human rights act, meant that legal representation was needed. With teachers, there is an obligation on the school to report such matters to the Department for Education with a view to a possible debarring order.
Because of the application of the European Convention of Human Rights, in particular article 6.1, this applies effectively to public authorities, which essentially are government, local authorities and quasi governmental agencies. At the moment, it is difficult to envisage this applying to employees in the private sector. However, the decision should not be seen as simply limited to school teachers. In our view, any worker for whom a Criminal Records Bureau record check is needed, because of their contact with children or vulnerable adults, could make a similar demand. This could therefore extend to nurses, social workers and care workers.
Family Policies
Any parent of a child under 16 will now have the legal right to request flexible working. The employer does not have to agree the request but should be able to show sound business reasons why it is not acceptable. It is unlikely that small changes could ever reasonably be refused. An example of a small change would be perhaps 30 minutes variation on the working day to allow for taking a child to school or nursery. Requests such as going part-time or working partially from home would need to be considered on a case by case basis. If employers are drawing up standard form policies for flexible working it is a good idea to suggest that the employees request should firstly specify the sort of changes they are looking for and secondly how the employee proposes these changes could be accommodated.
The weekly rate for statutory maternity pay, statutory adoption pay and maternity pay is increased to £123.86 per week. However, the government has baulked at extending maternity pay from 9 to 12 months.
The Equality and Human Rights Commission has interesting suggestions in a new report, Working Better. The Commission proposes that 26 weeks’ maternity pay and 2 weeks paternity pay be at the rate of 90% of salary. Presently, of course, the 90% of salary applies to the first 6 weeks of maternity leave only. The Commission then suggests that after the first 6 months of maternity leave there should be three blocks of parental leave to be taken at any time before the child’s fifth birthday. These blocks would each be 4 months; one for the mother, one for the father and one which either could take. The suggested reforms, if they ever come to pass, may well become known as “Sugar’s Law” after Alan Sugar was quoted last year as saying that he was less likely to hire a woman of child bearing age. The intention is to neutralise some of the negative views about women with children by making sure that fathers’ would be in much the same position as mothers. Possibly the Equality and Human Rights Commission is inadvertently ensuring that Sir Alan Sugar employs older workers who are less likely to be parents of young children.
Disability
We covered the effect of the Malcolm v London Borough of Lewisham case in a previous update. The rationale in that case has been followed in the case of Stockton on Tees Borough Council v Aylott. Essentially, the courts are now saying that in order to be discriminated against on the grounds of disability, the employee has to show that they have been treated differently on the grounds of their disability when compared to somebody who is not disabled. An obvious example of this would be sick pay, in that somebody with a disability is not entitled to sick pay over and above their non disabled colleague and similarly would not be able to resist dismissal on the grounds of health. In the case of Stockton on Tees, above, the appeal tribunal, somewhat unhelpfully, said that their decision did not leave disabled people disadvantaged as they could ask for reasonable adjustments. They gave as an example, an employee who was not able to drive because of disability and is disciplined for coming late on a night shift, would not be able to establish discrimination if a non disabled person with a similar record of bad time keeping would be disciplined. He might, however, be able to claim a reasonable adjustment on the part of the employer for not providing transport. One does wonder sometimes, what planet judges live on, since the likelihood of a company being required to provide a chauffeur for every disabled employee seems pretty remote. However, a simpler adjustment, but effectively precluded here, would be for an employer to acknowledge that a disabled employee reliant on public transport might have to be shown a bit of tolerance to allow for train delays and cancellations. That to us, seems like a common sense approach but the law and common sense are not always to be found in bed together.
Tribunals
From 6 April stage 1 equal value claims under the equal pay act and holiday pay claims can be dealt with by a judge alone rather than a full panel. This may seem some speeding up of very straightforward claims.
There is no escaping the fact that tribunal claims are ballooning. In the year 2007-8 189,348 claims were lodged which was 31.9% up on the year before which itself was 15% higher than the year previous to that. The full tribunal service report can be seen here. Equal pay represents a large percentage of this. Sex discrimination cases were in fact down.
Sir Fred Goodwin
The Times reported on 16 March that Cherie Blair has been retained by two local authority pension funds seeking compensation from the Royal Bank of Scotland and Sir Fred Goodwin. The claim suggests that on a number of occasions the bank and Sir Fred Goodwin “falsely reassured” investors that the bank was in good health when it was “effectively insolvent”.
Solicitors
Solicitors can end up on the wrong side of tribunal decisions as well. In the case of Osborne Clark Services vs Purohit, the well known Bristol firm was found to have unlawfully discriminated against an application for a training contract for someone from India simply because she did not have the requisite work permit at the time of making the application. It was held that there was indirect discrimination because the proportion of non EEA nationals that could comply with the work permit requirement was smaller than those who were not in that group and could comply. The appeal tribunal held that there was no evidence to support an assumption that an application for a work permit would not be successful, not least of all because the firm had never applied for a work permit for a trainee and it was for the employer to identify suitable candidates and make the case for a work permit, if appropriate. The firm should have considered the application on merit and dealt with work permits later, if appropriate.
No doubt, law firm Barnetts were very pleased when the Britannia Building Society transferred its conveyancing work from Leeds Lloyd Whitley to them. The Employment Appeal Tribunal held that two of the former staff from Leeds Lloyd Whitley had been TUPE’d across to Barnett’s and because their employment had been subjected to substantial changes in the working conditions to their material detriment they were entitled to treat their employment contract as terminated. The two individuals dedicated more than half of their working time to the affairs of the Britannia Building Society.
No doubt, the irony is that the building society moved its work because they felt they wanted an improved service but, potentially were dealing with the same staff if they were TUPE’d across. The law firm therefore found itself in no different position than the provider of a school’s meal service or a hospital cleaning contractor when changes come about. In reality, this is not new law, it is simply that a firm that did not expect to be hit with this particular worry . Perhaps the short lesson to be drawn is that those in the professional services sector should avoid having staff working on one client’s affairs alone. It may also be best practice from a regulatory point of view.
Press Releases
3 April 2009 - Employment Law Changes in April 2009
