Welcome to the latest Employment Update which
focuses on recent developments in all
aspects of employment
and health & safety law.
Contents
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News
Equal Pay - Immunity from Investigation Proposed
Forty years since the Equal Pay Act came into force, women are still paid on average 20.2% less per hour than men (when both full-time and part-time earnings are combined). The gap is wider in the private sector (25.6%) than in the public (18.8%).
The Equality Bill which is currently progressing through Parliament contains a power which could lead to mandatory equal pay reporting by businesses with more than 250 employees if progress has not been made on a voluntary basis by 2013.
With this is mind, the Equality and Human Rights Commission (EHRC) has now proposed a menu of voluntary measures to report on pay by gender. These include reporting:
- the single figure difference between the median hourly earnings of men and women
- the difference between the average basic pay and total average earnings of men and women by grade and job type
- the difference between men's and women's average starting salaries.
As an incentive to companies to adopt these reporting measures, the EHRC is offering a limited degree of immunity from investigation for firms that participate. This will mean that participating companies are unlikely to receive a formal request for further information during the next two years.
Workers' Memorial Day - Official Recognition
The Government has announced that the UK will officially recognise Internation Workers' Memorial Day, an annual commemoration which takes place on 28 April each year.
Formal recognition will reinforce the significance of the Day and raise awareness of the number of people who are killed, disabled, injured or made unwell through their work.
The Government press release quotes official figures showing that 180 people were killed at work last year. This official figure as a true reflection of the extent of workplace deaths is disputed by campaigners who argue that it is a headline figure limited to deaths reported to the HSE and local authorities. It does not include those from other enforcement agencies, such as the Maritime and Coastguard Agency, and excludes work-related deaths on our roads, and members of the public killed by work activities. Campaigners say the figure is nearer 1500-1600 when these deaths are taken into account. They also argue that the annual figure could be as many as 50,000 if those killed as a result of occupational illnesses were also counted.
To read more about International Workers' Memorial Day, click here.
Acas Conciliation - Pre-Claim Service
"Remember it doesn't have to get ugly" - that's the line advertising the Acas Pre-Claim Conciliation Service. This is a free service offered in certain circumstances to employers, employees, or their advisers.
The service is accessed via the Acas helpline and can be offered where:
- efforts have been made to resolve the matter internally, for example, using discipline and grievance procedures
- you believe that the situation will end in an employment tribunal claim if you don't get help to resolve it
- you are prepared to discuss the matter in good faith with a view to finding a solution.
To find out more about the service, and the number to call, click here.
Blowing the Whistle - ET's to Pass Info to Regulators
For employment tribunal (ET) claims lodged on or after 6 April 2010, the tribunal claim form is set to be amended so that claimants can tick a box indicating that their claim contains allegations of a protected disclosure and, if so, that they want the ET to refer the allegations on to a prescribed regulator, such as the HSE or FSA. This could increase the bargaining power of claimants who are bringing claims about whistle blowing.
Such cirucumstances are less likely to end up before a tribunal if internal processes are in place for dealing with them.
Occupational Health - Performance Standards
For the first time in the UK, performance standards for occupational health services have been published.
These have been developed by the Faculty of Occupational Medicine in partnership with a multi-disciplinary, multi-agency stakeholder group.
Over the next 12 months, the Faculty will develop an accreditation system to underpin the standards with a view to piloting it in late 2010 and having it fully operational by early 2011.
To read more and to view the standards, click here.
Useful Information
New introductory guidance on HIV and AIDS in the workplace has been produced by the CIPD. Click here to access.
Legislation
Fit Notes - April Implementation Date
The new "fit notes" proposed as an alternative to sick notes are due to be in use as of 6 April 2010.
Blacklisting Regulations - Final Draft Published
The Government has published the Regulations which will implement its commitment to outlaw the "unfair and insidious" practice of blacklisting.
There is a prohibition against compiling, using, selling or supplying any list which contains details of any person who is, or has been, a member of a trade union, or who has taken part in trade union activities.
An individual can complain to an employment tribunal where they are refused employment or subjected to a detriment by an employer or employment agency for a reason relating to a blacklist. If a claim is successful, the minimum award of compensation will be £5000.
These Regulations are likely to take effect in April 2010. For more information, click here.
Data Breach Penalties - £500,000 Fines
New powers, designed to deter personal data security breaches, are expected to come into force on 6 April 2010. Where a serious breach of the Data Protection Act is committed, the Information Commissioner's Office will be able to order organisations to pay up to £500,000 as a penalty.
When setting the limit of a monetary penalty the Information Commissioner will consider all the circumstances including: the seriousness of the breach; the likelihood of substantial damage and distress to individuals; whether the breach was deliberate or negligent; and what reasonable steps the organisation has taken to prevent breaches.
To read the ICO's press release, click here.
Paternity Leave - Proposals Finalised
The Government has announced that the right to additional paternity leave (APL) for fathers will come into force for babies due on or after 3 April 2011.
The new system will give fathers a right to a maximum of 6 months APL, which can be accessed once the mother has returned to work.
Mothers are entitled to 52 week's maternity leave. The earliest a dad will be able to take leave is 20 weeks from the birth of the child, or, in the case of adoption, 20 weeks from the date of placement.
If the dad takes leave during the mother's maternity pay period, he will receive additional statutory paternity pay at a flat rate equivalent to statutory maternity pay (currently £123.06).
Currently, to be eligible for statutory paternity leave, a father must be employed and have completed 26 weeks' service with their employer into the 15th week before the week the baby is due. To be entitled to APL, he must satisfy those conditions and also have been in continuous employment with his employer up to the start of the APL period.
It is proposed that the father and mother self-certify to the father's employer key personal facts affecting the father's eligibility, and that 8 weeks' notice of intention to take APL be given. This mirrors the minimum notice period required to be given by a mother to indicate she wishes to return to work early from maternity leave.
Agency Workers - Final Regulations Published
The Government has now published the final version of the Agency Workers Regulations 2010, which will implement the terms of the Temporary Agency Workers Directive*. These are not due to come into force until 1 October 2011.
They will help ensure that temporary agency workers receive equal treatment in relation to basic working and employment conditions after they have been in a given job for 12 weeks.
Changes from the draft Regulations include:
- the definition of "pay" now includes bonuses that are directly related to individual performance
- clarification that a 26-week period of absence related to pregnancy, childbirth or maternity will count towards the 12-week qualifying period
- clarification that when a workplace is effectively closed, for agency teachers during school holidays for example, this period will not count towards the qualifying period.
We will bring you more news on these Regulations nearer the implementation date.
*with this flurry of legislative activity, anyone would think there's a General Election in the offing...
Tribunal Awards - Annual Change of Limits
On 1 February, certain tribunal award limits change. These usually increase, but as the limits are linked to the Retail Prices Index, they all fall.
- The maximum compensatory award for unfair dismissal falls from £66,200 to £65,300 where the effective date of termination is on or after 1 February 2010.
- The minimum amount of compensation to be paid to an individual unlawfully excluded or expelled from a union and not admitted or re-admitted by the date of a tribunal claim falls from £7,300 to £7,200.
- The maximum guarantee payment payable to an employee in respect of a day of lay-off falls from £21.50 to £21.20.
The amount of a week's pay for the purposes of calculating statutory redundancy pay, for example, usually also changes on 1 February, but because of the change in October 2009, this will remain at £380 until February 2011 at the earliest.
Cases
Disability Discrimination - Definition of Disability
In order to be protected by the Disability Discrimination Act, a person's impairment must have lasted 12 months, or be likely to last at least 12 months. In the recent case of Patel v Oldham Metropolitan Borough Council and The Governing Body of Rushcroft Primary School the tribunal had to consider whether two separate but related conditions could be aggregated.
The teacher who brought the claim had a condition called myelitis (inflammation of the spinal cord) and went on to develop muscular or myofacial pain. Neither had lasted, or were likely to last, more than 12 months on their own. But, taken together, they had lasted more than 12 months.
The employment tribunal ruled that the teacher should not be protected under the DDA. However, this was overturned by the EAT. As a result, HR teams will need to be alert to the possibility of a wider class of individuals being classified as disabled.
Disciplinary Hearings - Legal Representation
In G v X School the Court of Appeal has ruled that an individual may be entitled to be afforded access to legal representation during a disciplinary process if that process is determinative of his/her right to practice a particular profession.
In this case, G was a teaching assistant who was alleged to have kissed and had inappropriate [word omitted] contact with a 15 year old boy who was carrying out a brief period of work experience at the school.
The school governors convened a disciplinary hearing and G was dismissed. He brought judicial review proceedings to challenge the governors' decision not to allow him legal represenation at the disciplinary, or, as yet to be heard, appeal hearing.
The Court held that article 6 of the European Convention on Human Rights (which enshrines the right to a fair trial), meant that in this instance, legal representation should have been permitted. The Court was of the opinion that these proceedings were in effect determinative of his right to continue teaching as the dismissal decision meant the governors were required to inform the Secretary of State so that the appropriate steps could be taken to determine whether or not G should be included on the list of those who should not be permitted to work in teaching, or in other work directly or indirectly involving children.
For advice on disciplinary issues - whether you are disciplining or being disciplined - please contact a member of our Employment Team.
Pregnant Workers - Risk Assessments
In a controversial decision, the EAT has decided in O'Neill v Buckinghamshire County Council that pregnant workers are not automatically entitled to a work risk assessment under regulation 16 of the Management of Health and Safety at Work Regulations 1999 if there is a lack of evidence that the work involves a risk to the health and safety of the expectant mother.
It might legitimately be asked - how is an employer to determine that there is no risk unless a risk assessment is in fact carried out?
For advice on pregnancy-related issues, please contact Amanda Jones, a partner in our Employment Team.
Recruitment Fraud - The Consequences
A senior HR manager who lied about her qualifications to Devon Primary Care Trust (PCT), has received a six month prison sentence, been ordered to pay £9,600 in compensation, and must carry out 150 hours of unpaid community work after pleading guilty to six counts of fraud by false representation.
Ms Devine had falsely claimed to be part way through a Chartered Institute of Personnel and Development (CIPD) course and to hold a degree in Human Resource Management. She also made false claims about holding certificates in marketing.
When East Devon PCT - where she had been appointed HR Manager in 2003 - was dissolved and Devon PCT was formed, staff were required to submit expressions of interest in new posts at the new PCT. Devine submitted a number of expressions of interest quoting the false qualifications. Her deception was uncovered by the NHS Counter Fraud Service.
To read more, click here.
Minimum Wage - Basic or Premium Rates
In Hamilton House Medical Ltd v Hillier, Mrs H worked nights and her basic rate of pay was £5.01, a figure below the national minimum wage rate. However, because she worked nights, she received more than1.3 times her basic rate of pay for nights worked during the week (£6.67) and approx 1.6 times her basic rate for weekend nights (£8.09).
The employer argued that it had met its obligation to pay at least the minimum wage, because Mrs H always received either £6.67 or £8.09 per hour. However, the EAT held that the employer had failed to meet its minimum wage obligations as Mrs H's basic rate of pay was less than the minimum wage.
Seminars
Breakfast Seminars
Our first round of quarterly seminars is being planned for March. Look out for further details in the next edition, or visit sign up to register to receive Employment Seminar invites.
HR Services
Recovery of Training Costs
Are you fed up spending lots of money on training employees, only for them to take that experience elsewhere? If your contracts provide for training costs to be repaid on termination of employment, then such sums can be recovered inexpensively. Our Debt Unit works on a fixed fee basis and can help you with this.
For more information, please contact our Debt Recovery Manager, Sue Morrin.
And Finally...
Your editor had to check that time hadn't fast forwarded to April when she read a story about a novel new job role. A human bed-warming service is being trialled at three Holiday Inn hotels. Yes, you read right...human.
A spokeswoman for the chain is quoted as saying: "The new Holiday Inn bed warmers service is a bit like having a giant hot water bottle in your bed". Reuters reports that the company confirmed the warmer would be fully dressed and leave the bed before the guest occupies it. But, that they could not confirm if the warmer would shower first...
Photographic evidence of how the human hot water bottles might look is provided courtesy of The Telegraph website.
Contact Us
If you think your organisation may be affected by any of the above, or if you have any other questions, please contact:
Louise Taggart
Associate
0131 228 7125
louise.taggart@mms.co.uk
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