Employment Update Seminar Preparing for Imminent Changes - - PowerPoint PPT Presentation

Employment Update Seminar – Preparing for Imminent Changes

Presenters: Danielle Kingdon, Richard Clegg, Lloyd Davey, Kath Sadler-Smith and Frances Lewis Tuesday 2 March 2010

Banking Law Firm of the Year

Agenda

• The right to request time off to train
• The "fit note" system
• Whistleblowing claims and regulators
• Additional paternity leave and pay
• Annual leave and sickness absence
• Recent case law developments
• The Agency Workers Regulations

Right to request time off to train Introduction of the "fit note" system

The right to request time off to train

• The Apprenticeships, Skills, Children and

Learning Act 2009

• Amends the Employment Rights Act 1996
• Detail in three sets of statutory regulations
• In force from 6 April 2010
• Applies to employers with 250+ employees

(but expected to extend to all from April 2011)

The right to request time off to train – Conditions for entitlement

• Available to employees with 26 weeks' service
• Not available to agency workers
• Only one application can be made in any 12 month

period

• Statutory provisions provide for some earlier applications to

be ignored

• Must be for the purpose of improving the employee's

effectiveness at work and the performance of the employer's business

The right to request time off to train

• No limit to the amount of time, study or

training that can be requested

• Employer can grant all or part of the request
• No right to paid time off
• Unpaid time off or flexi working to make up

time could be considered

The right to request time off to train – Employee procedure

• Application must be in writing, dated and specify the

following:

• Statement application made under s.63D ERA 1996
• Subject matter of the training
• When and where the training will take place
• Who will provide and supervise the training
• What qualification (if any) the training will result in
• How the study or training will improve effectiveness and

business performance

• The date of any previous applications and how they were

made

The right to request time off to train – Employer procedure

• On receiving an application an employer

must:

• Grant the application; or
• Within 28 days – meet to discuss the application

and within 14 days of the meeting confirm the decision in written form incorporating the prescribed information

• Requests must be carefully considered

The right to request time off to train – Grounds for refusal

• Legitimate grounds for refusing all or part of

application:

• Would not improve employee's effectiveness or business

performance;

• Burden of additional costs;
• Inability to reorganise work or recruit additional staff;
• Detrimental impact on quality, performance or meeting

customer demand;

• Insufficiency of work during proposed work period; and
• Planned structural changes during the proposed

study/training period.

The right to request time off to train – Process for appeal

• Employee has a right of appeal
• Must appeal within 14 days of receiving the decision
• On receipt, employer has 14 days to:
• uphold the appeal and notify the employee in writing; or
• hold a meeting to discuss the appeal and within 14 days of

that meeting, confirm its decision in writing (and which must incorporate specified information).

The right to request time off to train

• Time and place of meetings must be convenient to

both parties

• Time periods may be extended by agreement
• Employee has the right to be accompanied (by a

work colleague only)

• An employer may treat an application as withdrawn if:
• notified by the employee;
• the employee misses more than one meeting without good

reason; or

• the employee fails to provide the required information

The right to request time off to train – Remedies for breach

• Right to bring a tribunal claim for:
• Failure to meet deadlines
• Refusal of an application for non-specified reason (and not

corrected on appeal)

• Refusal on incorrect facts (not corrected on appeal)
• Denial of the right to be accompanied or companion rights
• Claims to be brought within 3 months of breach
• Compensation – up to 8 weeks' pay and/or 2 weeks'

pay for breach of right to be accompanied

• Protection from dismissal or detriment

Fit note system

• Statement of Fitness to Work ("fit note") to

replace current sick notes.

• In force from 6 April 2010
• Move focus from sickness onto fitness
• GP can certify either:
• Not fit for work
• May be fit for work

Fit note system

• If "may be fit for work" GP will be asked to suggest

arrangements to enable the employee to continue

• working. Available options are:
• A phased return to work
• Altered hours
• Amended duties
• Workplace adaptations
• Where employer unable to make suggested changes,

for sick pay purposes, employee should be treated as "not fit for work"

Fit note system

• GPs will have the option to comment on the

functional effects of the employee's condition

• No change to employer's existing obligations to pay

statutory sick pay and make reasonable adjustments under the Disability Discrimination Act

• Guidance has been published for employers,

employees and GPs available at: http://www.dwp.gov.uk/fitnote

• Sample fit note

Whistleblowing Claims and Regulators Additional Paternity Leave

Whistleblowing – regulators to be notified of PIDA claims

• Public Interest Disclosure Act 1998
• Applies to all whistleblowing claims submitted
• n or after 6 April 2010
• Tribunal will have the power to notify

"prescribed persons" of whistleblowing claims (HMRC, Office of Fair Trading etc. )

• Claimant must indicate express consent by

ticking box on ET1

Whistleblowing – regulators to be notified of PIDA claims

• Details passed to regulator before ruling

made on merits

• Negotiating tool for Claimants
• Regulatory investigation will be time

consuming and costly for employers

• Bad publicity

Additional paternity leave

• Draft regulations published – come into force 6 April

2010

• For babies born on or after 3 April 2011
• Right extends to partners and civil partners of

mothers and adopters

• Father/partner must have 26 weeks' service at EWC

and remain in employment until he starts his APL

• Mother must transfer her remaining maternity

entitlement

• Earliest start date – 20 weeks after birth of child and

must be taken before child's 1st birthday

Additional paternity leave

• Fathers/partner must self-certify eligibility by

providing the employer with a declaration

• Mother must also submit a declaration
• Father/partner can use 10 keeping in touch

days without breaking the paternity leave period

Additional paternity leave

• Maximum of 26 weeks
• Minimum of 2 weeks
• SPP paid at standard SMP rate
• Fathers must give 8 weeks' notice
• Employers must confirm entitlement within 4

weeks

Interaction between annual leave and sickness absence

Holiday and sick leave

• The Stringer case (ECJ)
• The Pereda case (ECJ)
• Shah v First West Yorkshire (ET)
• Lyons v MITIE Security Ltd (EAT)

Holiday and sick leave

• Stringer (ECJ)
• Workers unable to take annual leave during the relevant annual

leave year (whether they are absent for all or part of that year through sickness) must be allowed to carry it over to the next annual leave year

• On termination, workers have the right to payment in lieu of

annual leave that they were unable to take due to sickness

• absence. Such payment in lieu should be at the worker's

normal remuneration rate

• Workers can bring claims for statutory holiday under the

deduction from wages provisions of the Employment Rights Act 1996

Holiday and sick leave

• Pereda v Madrid Movilidad (ECJ)
• Where a worker has lost the opportunity to

exercise the right to take previously scheduled annual leave because of illness, the worker should be able to request to take that lost leave at another time including carrying it over to another holiday year.

Holiday and sick leave

• Shah v First West Yorkshire (ET)
• UK ET decision following Pereda
• Entirely consistent with "underlying thrust" of

the WTR to allow carry over where an employee has been unable to take holiday due to sickness absence

• UK ET are not bound by this decision but are

likely to follow it.

Holiday and sick leave

• Lyons v MITIE Security Ltd (EAT)
• Employees who fail to comply with prescribed notice

requirements associated with taking annual leave can lose their right to take such leave within the leave year

• Provided that the proper opportunity and mechanism

has been put in place

• Employers must still take care not to operate in an

"unreasonable, arbitrary or capricious" way so as to deny any entitlement lawfully requested.

Recent case law developments

Recent case developments - Dress codes

• Eweida v British Airways PLC (CA)
• A Christian employee did not suffer indirect

discrimination on grounds of her religion or belief where her employer insisted that her cross be concealed, in accordance with its uniform policy.

• Ms E failed to show that there was any disadvantage

to "a group". There was no evidence that any other practicing Christians at her employer objected to the rule.

Recent case developments – Dress codes

• Dansie v The Commissioner of Police for the Metropolis (EAT)
• Mr D was not discriminated against on the grounds of his sex by

being required to have his hair cut or face disciplinary proceedings, albeit that a female recruit with long hair would simply have been permitted to wear her hair tied up (as Mr D had been).

• A gender neutral dress code, as was the case here, needed to

be considered as a whole. A female police recruit would have similarly been threatened with disciplinary proceedings in a comparable (albeit not the same) situation where her dress was not conventional in accordance with the policy.

• Consequently, there was no discrimination on the grounds of

sex in the enforcement of the dress code.

Recent case developments – Constructive dismissal

• Hunter v Timber Components (UK) Ltd (EAT)
• An employee can base a constructive dismissal claim
• n their employer's conduct towards other

employees.

• The key question is whether:
• the employer has behaved in a manner which, viewed
• bjectively, is calculated or likely to destroy or seriously

damage the duty of trust and confidence between employer and employee; and

• the employer's conduct amounts to a repudiatory breach of the

employee's contract.

Recent case developments – Constructive dismissal

• Aberdeen City Council v McNeill (EAT)
• An employee cannot terminate his contract on the basis of his

employer's breach of the implied term of trust and confidence, where he himself is already in breach of that term.

• Mr M resigned claiming constructive dismissal on the grounds

that a disciplinary investigation against him was a "witch hunt". However, the EAT found that Mr M's conduct uncovered during the investigation was such as was likely to "seriously damage or destroy the relationship of trust and confidence" with an employer.

• Since such conduct was only uncovered during the

investigation, the employer here had not affirmed Mr M's employment contract in knowledge of this breach or waived its right to rely on it.

Recent case developments – Legal proceedings and victimisation

• Abiola v North Yorkshire County Council and others (EAT)
• An employer did not unlawfully victimise an employee by failing

to provide a substantive response to an employee's letter (the "Letter") in ongoing discrimination litigation.

• The matters raised by Mr A in his Letter were all the subject of
• ngoing race discrimination proceedings. He was simply

attempting to bypass the ET process and obtain advance disclosure of the respondent's defence and evidence.

• The respondent had been entitled to protect its position and had

given a full reply after witness statements had been exchanged – taking the "not unreasonable view" that the delay would cause Mr A no substantial prejudice.

The Agency Worker Regulations

Agenda

• Introduction
• Overview of rights
• Scope – who is covered?
• Who will be liable for breach?
• Possible work arounds
• Conclusions

Introduction

• Final Regs published 22 January 2010
• Come into force 1st Oct 2011
• 2 consultations in 2009 (first proposed in 2002 and

blocked by UK Government for 5 years)

• Implement European Agency Workers Directive -

became law in December 2008

• Gives "agency workers" the right to equal treatment

Overview of rights

• Same basic working and employment conditions
• after 12 weeks in same assignment with same hirer
• as a comparable perm employee doing the same/broadly

similar work at same establishment (NB if no comparator at that establishment will look at other establishments)

• do NOT confer or imply employment rights
• Pay, working time, night work, rest periods, rest

breaks, annual leave (NB could be > statutory minimum)

Overview of rights

• What does "Pay" include?
• fee, bonus (linked to work undertaken and personal

performance), commission, holiday pay

• pay scales, collective agreements, established custom or

practice will be relevant for comparison purposes

• excludes occupational benefits, e.g. contractual

maternity/paternity pay above statutory minimum, pensions, financial participation schemes, car allowances

• 12 week qualifying period
• very difficult to break 12 week period – Regs contain robust

anti avoidance provisions

Overview of rights

• Access to facilities
• canteen
• child care
• transport
• Access to employment vacancies
• right to be informed of relevant vacancies
• at same establishment (or another establishment if no comparator at same

establishment)

• information only – general announcement OK
• BIS confirmed no requirement to apply re internal moves in context of a

headcount freeze = restructuring, not vacant posts

• Access to training
• encourage training through public skills system, e.g. Government sponsored

training programmes

Scope – who is covered?

• Wider than you might expect
• workers working "for and under the supervision and direction
• f a hirer"
• PAYE temps
• anyone "employed" by one entity for

supply/secondment to user within group/consortium – NB definition of "temporary work agency" is very wide

• umbrella contractors (unless employed on perm

contracts providing for pay between assignments – see later)

Scope – who is covered?

• BIS has indicated that the following will NOT fall

within scope

• limited company contractors who are in business on their
• wn account
• genuinely self employed
• managed service arrangements, i.e., where there is a

supply of a service rather than just staff, e.g. outsourced service

• Therefore will require an assessment of whether

genuinely self employed - not always straightforward

Who will be liable for breach?

• General approach
• agency liable, but
• each liable to extent they were responsible for the breach
• agency has defence if taken "reasonable steps" to obtain

information from hirer

• if can establish defence liability passes to hirer
• hirer solely responsible for access to facilities
• agency worker has right to request information from agency or hirer

– 28 days to respond

• minimum award of 2 weeks pay and no cap on compensation
• additional £5000 award for attempts to avoid 12 week qualifying

period

Possible work arounds

• Employed temp/contractor model with pay between

assignments will be outside scope provided:

• contract of employment before assignment starts
• no less than NMW during non assignment periods (for up to 4

weeks)

• umbrella contractors could be supplied out of scope if compliant

payment arrangements comply

• Structure as a managed service rather than supply of staff
• Engage limited company contractors on project basis so

that they do not, in contract or practice, work under the "supervision and direction of the hirer"

• Treat agency workers as trainees for pay scale purposes -

but may have limited application

Conclusions

• Identify which, if any, of your temporary workforce may be

affected and break down by skill sets and grades

• Final Regs?? Conservatives may re-open if win next election
• Guidance will help clarify many areas of uncertainty, particularly

re scope and comparator issues

• Wait for guidance later this year
• Don't panic – a lot of misreporting, wrong assumptions about

scope and scaremongering – it will still be possible to engage temporary resource on a cost effective basis after Oct 2011

Any Questions?