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 on 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 1 st 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
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