HR Update

OVERVIEW

To keep our users informed of the latest developments, we email monthly updates on developments in HR Law and practice via email. To subscribe click here. Click on an article above to view some of the recent updates.

NEW HR Update: Recent announcements

October Update

Last Modified on: 2011/10/12 11:23
Last Reviewed on: 2011/10/12 16:39

Earlier this month, George Osborne announced two forthcoming changes to Employment Law and Employment Tribunal practice and procedure in order to reduce the number of claims made to the Employment Tribunal, and boost the economy by encouraging employers to recruit more freely without the fear of claims.

From April 2012, the qualifying period after which an employee will be eligible to bring a claim of unfair dismissal, will be increased from 1 year to 2 years.  As previously, the qualifying period for unfair dismissal will not apply to those who make a complaint about health and safety, or who claim to be a whistleblower or who claim to have been victim of discrimination.

From April 2013 the Government has confirmed that it will introduce fees for Tribunal claim to deter baseless claims.  It has been suggested that the fees for issuing a claim in the Employment Tribunal will be £250 and a further £1,000 will be payable by the Claimant once the claim has been listed for a hearing, with a higher fee if the claim is over £30,000.  Such fees may be refunded if the Claimant wins but lost if they lose.  Fees are likely to be waived for 'poor' claimants, those on income support, in low paid work or without work so most ex-employees will automatically qualify for the waiver (but those in a job will not).

 

HR Update: Agency Workers Regulations

September Update

Last Modified on: 2011/07/15 13:15
Last Reviewed on: 2011/10/12 11:26

What are the Agency Workers Regulations?

It’s the latest piece of Government legislation (from the EU) which aims to ensure temporary agency workers are provided with equal treatment in terms of basic working and employment conditions as if they had been employed directly to do the same job.  This means that temps through agencies will get access to Company facilities and permanent vacancies from Day 1 and the same pay and other basic terms and conditions from 12 weeks.

When does it take effect?

It will be implemented in the UK on 1 October 2011.  It is not retrospective so qualifying periods will only commence from 1st October, regardless of the temp’s previous length of service.

Which workers are affected?

All workers who are not directly engaged by you but are supplied by another organisation to work temporarily under your supervision and control. This can extend to Managed Service contract (outsourced) staff if they are under your supervision and control as opposed to the supplier’s.

Who falls outside of the Regulations?

Workers who are genuinely self-employed and working through their own account or who are engaged by companies providing a genuinely out-sourced service to you.  Similarly, they do not cover permanent employees of the Agency, secondees from other organisations and temporary workers directly engaged by you (this category of worker is already covered by the Fixed Term Workers Regulations).

What will workers who are covered be entitled to?

Put simply, agency workers are to receive equal treatment concerning pay and conditions compared to those received by someone directly employed by you, doing the same or broadly similar job with the same qualifications and skills.  Specifically;
• From day 1 they have access to employees’ facilities such as canteen, car park or crèche, unless there is an objective reason for not offering such facilities and equal access to apply for internal vacancies.
• From 12 weeks they should have the same “pay and other working conditions” as if they were hired permanently

What is included in ‘pay and conditions’?

• Basic rate of pay
• Overtime and shift premiums
• Bonuses related to the quality or quantity of work done
• Lunch or childcare vouchers with monetary value (not as part of salary sacrifice)
• Hours of work, rest and breaks
• Holiday entitlement above the statutory minimum 

What is excluded from ‘pay and conditions’?

• Bonuses and benefits intended to reward loyalty or long service
• Pensions
• Sick, maternity, paternity or adoption pay above the statutory minimum
• Redundancy payments
• Staff discount schemes

How is the 12 week qualifying period calculated?

It doesn’t matter if a worker works for all or part of the week for it to count as a qualifying week, nor if they have worked in the job through different agencies.  The BIS guidance helpfully uses the analogy of a clock in terms of calculating the 12 weeks when looking at various circumstances:

Clock resets to zero when –
new assignment with a different Company,
new (substantively different) role within the same Company
breaks between assignments of at least 6 weeks

Clock pauses when –
Break between assignments of less than 6 weeks (at the same Company in the same role)
worker is absent due to sickness for up to 28 weeks
workers takes annual leave
the Company shuts down e.g. school holidays/Christmas break

The clock keeps ticking when –
Worker has absent due to pregnancy-related sickness or maternity, paternity and adoption leave.

How will complaints about unequal treatment be made?

After their qualifying period, a worker has the right to request from their agency details of how their pay and conditions have been determined.  If the agency does not respond within 28 days the worker can come to you (the hirer) for the same information. Neither have the legal duty to respond but failure to provide the information will be regarded adversely should the worker make a claim.

If the worker still believes they have not received their entitlement, they must make a claim though the Employment Tribunal system, usually within 3 months of the assignment.

Who is liable?

Failure to provide the day 1 entitlements lies solely with you, the hirer.  For equal pay and conditions, the Employment Tribunal will assign the liability to either the agency or the hirer, whichever has caused the disadvantage.  If the agency can show that it has made all reasonable efforts to establish and apply equal treatment, then the liability will lie with you, the hirer.

What are the penalties?

The immediate award will be to make up the difference with a minimum level of 2 weeks’ wages but, should the Employment Tribunal decide that assignments have been deliberately structured to avoid falling under the Regulations, an additional £5,000 penalty can be applied.

Is there any way of avoiding this?

Potentially, yes.  The following are ways to avoid falling foul of the Regulations:
• the Regulations will not apply to an agency worker who has a permanent contract of employment with the agency (with terms and conditions that will apply across assignments agreed) and is paid between assignments.   The agency must take reasonable steps to seek and offer a suitable new assignment to the agency worker and, during any period between assignments, it must pay the worker at least 50% of the highest basic pay (but not below the national minimum wage) that they received in the last 12 weeks of the previous assignment.  Therefore, companies which get the agency to agree to sign up to this type of working relationship could be exempt.
• limiting the use of agency workers for assignments to a period of fewer than 12 weeks, although there are anti-avoidance provisions in the Regulations that address situations where a pattern of assignments emerges that is designed deliberately to deprive an agency worker of his or her entitlements;
• engaging self-employed contractors instead of agency workers;
• creating a bank of in-house casual staff; 
• offering overtime to existing staff;
• outsourcing any discrete services that are performed by agency workers

With less than 3 months to go until its’ implementation, what action should organisations be taking?

• Review your current usage of agency temps and length of their assignment(s). How many of your agency workers will meet the 12-week qualifying period?
• Identify your reasons for using them and the risk of their assignments going beyond 12 weeks.
• Engage in discussions with your agencies to see whether they can/are willing to employ staff permanently.
• Consider how will you communicate the day 1 and week 12 entitlements to the agency and/or the staff.
• Review your contracts with agencies; any clause preventing agency staff from being “snapped up” by the hirer should be removed and make it clear who is responsible for what and when.
• Think about how you will make job vacancies available to agency workers
• Check your managed service (outsourced) arrangements clearly to ensure the supplier (and not you as the hirer) is responsible, contractually and in practice, for supervising and directing staff.

Further guidance

The Department for Business, Innovation and Skills (BIS) guidance provides assistance on how to establish the qualifying period, for the full guidance click here.  However, it is likely to be a contentious area so case law is expected to provide further guidance.

HR Update - Changes to look out for

Last Modified on: 2011/02/02 15:17
Last Reviewed on: 2011/07/15 13:21

The next 3 months is a busy time in the HR world; take the time to familiarise yourself with the forthcoming changes:

New tribunal award limits:  The maximum unfair dismissal compensatory award rises from £65,300 to £68,400 and the maximum amount of a week's pay for the purpose of calculating a statutory redundancy payment and the basic and additional awards for unfair dismissal increases from £380 to £400. The rise in the limits applies where the event that gives rise to the award or payment occurs on or after 1 February 2011.

Additional paternity leave and pay comes into force:  Employees who are fathers, or spouses or partners of mothers are entitled to take additional paternity leave of up to 26 weeks in the first year of their child’s life.  The employee must give the employer at least eight weeks’ notice of his or her start and finish dates for the additional paternity leave.  The leave may be paid if taken during the mother or partner’s Statutory Maternity Pay period / Maternity Allowance period. Leave taken after this period has ended would be unpaid. This new provision will provide parents with more choice and flexibility in child care and more equitable sharing of leave entitlements. Effective for babies born on or after 3rd April 2011.  This also applies to paternity leave in adoption circumstances. 
 
Default retirement age (DRA) abolished: The Government have confirmed that the default retirement age will be phased out between 6 April and 1 October 2011 using transitional arrangements.  Under the DRA employers must give a minimum of 6 months notice of retirement but no more than 12 months notice. Retirements notified on or before 5 April 2011 can continue through to completion provided that the following conditions are met:
    * the DRA procedure, as set out in the previous Employment Equality (Age) Regulations 2006, is followed correctly (including the employee's right to request to stay on is given serious consideration by the employer)
    * the employee retiring has reached age 65 before 1 October 2011.
 
If an employee requests an extension of their period of notice of retirement an employer can agree to this and still rely on the DRA provisions to enforce the retirement, providing that the extension is no more than 6 months and the employee retires on or before 5 October 2012. The employee's right to request to work beyond retirement ceases on 5 January 2012.
 
Employers will still be able to use a compulsory retirement age to dismiss employees after the transitional arrangments have ended but only where they can demonstrate that it is a proportionate means of achieving a legitimate end (ie they can justify retirement at that age).  Where employers do not have this justification for compulsory retirement, the dismissal of an older employee will have to follow a fair dismissal procedure that relies on one of the reasons set out in section 98 of the Employment Rights Act 1996 (i.e. capability, conduct, redundancy or some other substantial reason).

Statutory sick pay increase:  The standard rate of statutory sick pay increases from £79.15 to £81.60 per week.

Positive action provisions of the Equality Act come into force:  Section 159 of the Equality Act 2010, which permits employers to treat individuals with a protected characteristic more favourably than others in connection with recruitment or promotion, comes into force. This applies only to candidates of equal merit and the more favourable treatment must enable or encourage an individual to overcome or minimise a disadvantage or participate in an activity where he or she is under-represented in that activity.

HR Update - Increase in Tribunal cases

Last Modified on: 2010/11/01 16:48
Last Reviewed on: 2011/02/02 15:36

1.  Employers Beware: Employment Tribunal Cases on the Increase
2.  Interesting case: Be specific with allegations

1. Employment Tribunal Cases on the Increase
From the recent Tribunal statistics published last month, companies have never been so vulnerable to potentially litigious staff members.  Employment tribunal cases continued to rise during 2009-10 to 236,100, a whopping 56% increase on the number of claims lodged in 2008-09. However, this huge increase is misleading for employers due to the fact that claims during a recession by the very nature, are likely to increase, and that there was a large rise in the number of multiple claims arising out of the same or very similar circumstances.

The numbers at a glance:
• There was a 14% increase in the number of single claims accepted by Employment Tribunals.
• There was a 17% increase in the number of tribunal claims associated with unfair dismissal, breach of contract and redundancy, a probable consequence of the recession.
• There was a 22% increase in the number of disposals by Employment Tribunals.
• Of the 50,900 unfair dismissal claims, 12,200 were withdrawn, 22,400 were settled by ACAS, 3,900 were struck out, 5,200 were successful and 7,200 were found in favour in the employer.
• In 2009-10, the Tribunals Service received 793,900 appeals, an increase of 26% on the previous year. 
• And interestingly, the median award was under £5,000 and the average award was under £10,000.

2. Employers Beware: Be specific with allegations

In Celebi v Scolarest Compass Group Ltd, the EAT found that the 'loss of £3,000' is not the same as 'theft of £3,000' and consequently Ms Celebi’s dismissal was unfair.  The employer believed that Ms Celebi had stolen £3,000.  The allegation put to her in the disciplinary proceedings, though, was the 'loss of £3,000'. She was dismissed following the disciplinary process.  Interestingly, in reality Ms Celebi knew she was actually being accused of theft, but despite this, the EAT found the dismissal was unfair.

The case has been remitted to the Tribunal for consideration of the compensation award and whether there should be any reductions for contributory fault.  However, the case highlights the importance of describing the allegations clearly and accurately.

 

HR Update - Equality Act 2010

Last Modified on: 2010/09/22 16:29
Last Reviewed on: 2011/09/05 13:52

1. Equality Act 2010 – what you need to know
2. National Minimum Wage

1. Equality Act 2010 – what you need to know

Next month we see the introduction of the Equality Act 2010.  The intention of the Act is to bring together all the fragmented discrimination legislation which has been passed over the last 30 years but it also introduces some new provisions which employers need to be aware of.  The Act introduces the concept of “protected characteristics” which correlate to the existing discrimination strands (with the exception to those contained in the Sex Discrimination Act).

Below are the main differences, from an employment perspective, which are due to come into force on 1st October 2010:

Direct discrimination – the definition of direct discrimination will apply where someone is treated less favourably “because of a protected characteristic”.  This deliberately broad definition extends to associative and perceptive cases; where someone is discriminated against because of their association with a member of a protected group or because they are perceived to have a protected characteristic.

Indirect discrimination – this will now cover circumstances where someone is put at a disadvantage but also where they would be put at a disadvantage and applies to all protected characteristics.

Harassment – is “unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”.  This means that harassment is now based on perception and association, as well as “on the grounds of” from the previous definition, ie employees will now be able to complain about behaviour that they find offensive even if it is not directed at them.  Employers will also be liable for harassment by third parties in the workplace if they fail to take reasonably practicable steps to prevent the third party from harassing an individual in circumstances where they have been harassed on two previous occasions. 

Victimisation - the definition is no longer based on less favourable treatment and now occurs when an employee is subjected to a detriment, such as being denied a training opportunity or a promotion because he or she made or supported a complaint or raised a grievance under the Equality Act 2010, or because he or she is suspected of doing so, or being about to do so.

Discrimination arising from disability – the Act has made it easier for someone to show they are disabled; if they have a mental or physical impairment which has a substantial and long term adverse effect on their ability to carry out normal day-to-day activities, which would include using a telephone, reading instructions.  The Act includes a new protection; stating that it is discrimination to treat a disabled person unfavourably because of something connected with their disability.

Positive action – the Act allows an employer to take positive action if you think that employees or prospective employees who have a “protected characteristic” suffer a disadvantage connected to that characteristic.

Pre-employment questionnaires – the Act will limit the circumstances when you can ask a candidate about their health.  Employers can only ask health-related questions 1) to decide whether you need to make any reasonable adjustments for the person for the interview process 2) to decide whether an applicant can carry out a function that is intrinsic to the job 3) to monitor diversity 4) to assist disabled people 5) to assure yourself that a candidate has the disability where the job genuinely requires the jobholder to have a disability.

Equal pay - a claim for 'equal pay' can be made in the absence of a comparator under the remit of direct sex discrimination where the treatment can be shown to be because of a person's sex.  For example where an employer says 'I would pay you more if you were a man'.

Secrecy clauses – it will be unlawful to prevent or restrict your employees from having a discussion to establish if differences in pay exist that are related to protected characteristics.

What to do next: Check your policy:

• Ensure the policy covers all nine 'protected characteristics” in the Equality Act 2010. These are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
• State that is unlawful for staff to discriminate directly or indirectly, or harass customers or clients because of the protected characteristics of disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation in the provision of goods and services.
• Make clear that perceptive and associative discrimination are covered in the Equality Act  (the exemption of harassment because of marriage and civil partnership, and pregnancy and maternity).
• Ensure your policy covers third-party harassment where the harassment is related to a protected characteristic (although this does not cover harassment because of marriage and civil partnership, and pregnancy and maternity), by third parties such as clients or customers.
• Update your definitions of victimisation and harassment to conform to the new Equality Act definitions.

National minimum wage increases

From the 1st October, the national minimum wage will increase as follows:

• Workers aged 22 and over: £5.93 per hour 
• Workers aged 18-21 or aged 22 and over and on accredited training: £4.92 per hour
• Workers under the age of 18 who have ceased to be of compulsory school age: £3.64 per hour
• An apprentice rate of £2.50 per hour will apply to apprentices who are under 19 or those who are aged 19 and over but in the first year of their apprenticeship.

HR Update - Default Retirement Age

Last Modified on: 2010/08/02 16:43
Last Reviewed on: 2010/09/22 16:35

After much debate, the long awaited decision to scrap the default retirement age from 1 October 2011 has arrived.  After 1 October, employers will not be able to use the default retirement age to retire employees; only employers who can demonstrate that a retirement age is objectively justified will be able to do so, possibly for physically demanding jobs such as police officers.  The proposals allow for a six-month transition from the existing Regulations as the proposals state that from 6 April 2011 only people who were notified before 6 April, and whose retirement date is before 1 October, can be compulsorily retired. 

The Default Retirement Age has been challenged repeatedly in the courts by campaigners who believe it is unfair to experienced workers who have no problems continuing to perform in their jobs and who want to keep working. Campaigners claim that this move is a moral victory, ending discrimination against older workers facing forced retirement and they claim that it will boost productivity.

However, objectors to this decision, including business leaders, question what will replace it and how employers will be able to legally retire staff when the time comes.  Also, the question of extortionately expensive critical illness, private healthcare and life assurance cover are issues which need to be addressed.

We await further news from the Government on guidance for employers facing retirement issues post October 2011.

HR Update - Employee mistakes

Last Modified on: 2010/06/11 15:36
Last Reviewed on: 2010/08/02 16:47

Employee mistakes and client complaints
Surviving the World Cup; avoid scoring an own-goal with your staff!

Employee mistakes and client complaints

Everyone makes mistakes; that is a fact.  But what happens when a staff member makes a mistake that has disastrous consequences for the Company, or the client of a Company?  And how does a small business handle the fall out?  In this month’s HR update, prompted by feedback from the last update, we take a look at this thorny subject.

You may remember last year Ealing Council’s IT network was infected by a computer virus that brought all its services to a halt after an employee plugged an infected USB memory stick into their computer which then infected every single Council computer and tried to connect with over 500 Internet sites.    Ooops.  What are the employment law implications of this situation? How does an employer deal with these kinds of mistakes, particularly those which can result in financial loss or reputational damage?

For the answer, an employer needs to investigate the error and what exactly happened.  Was it a case of negligence, deliberate disregard for procedure or perhaps a genuine error on the employee’s part?  And what happens if the mistake affects a particularly valuable client?
Supposing, in the case above, the employee had deliberately disregarded the IT policy by bringing in external IT equipment; this would be subject to disciplinary action, and subject to the explanation, action could be taken against the employee.  If it was a genuine mistake, perhaps she picked up the wrong USB stick, then probably the fact that her actions caused such disruption would prevent similar occurrences.  Check your policy and if issues occur, consider amending and reissuing it to staff.

What if a client is particularly disrupted and financially affected by a mistake an employee has made?  And what if they demand action to be taken against the employee?  This could mean a warning, removal from working on their account or even dismissal.   Such dismissals may potentially be fair - under the 'some other substantial reason' – however, caution should be taken here.  You’ll need to consider, amongst other factors, the severity of the mistake, the resources and size of the Company and the significance of the client.
The lesson here is that, you need to be fair, firm and consistent in dealing with employee mistakes, and make sure policies and procedures are amended in the wake of any mistakes; i.e. you must learn from mistakes!

Surviving the World Cup; avoid scoring an own-goal with your staff!

We’re less than a month away from the World Cup; with all the excitement (and probable disappointment) that ensues.  Clearly not every employee will be glued to the TV during this time, but it’s fair to expect a large proportion to be interested in watching the games, some of which will be transmitted during work time.  So have you decided how you’ll handle the disruption to your workforce?  Here are some suggestions:

Introduce World-Cup flexitime

Consider, if feasible, allowing staff to work outside the normal hours, on a temporary “World Cup” basis, in order to make up time spent watching the games in work time. 

Internet use

Will you let staff keep track of scores on the internet?  With minute to minute updates this could also be a source of distraction, and whatever you decide, let staff know what is and isn’t acceptable both in terms of your IT policy and specifically, during the world cup if different.

Offer holiday or unpaid leave

You could consider providing unpaid leave for staff, like Asda did during the 2006 World Cup where it gave its 150,000 UK employees the chance to take up to two weeks’ unpaid leave during the tournament, subject to operational requirements.

Radio broadcasting

Will you allow employees to listen to the games on the radio while they work?  This is an option but be warned; they may well not be focused on work and with that comes the risk of mistakes, especially concerning if there are health and safety considerations.

Make a team bonding event of it

Probably the most popular solution from a staff perspective is screening the games during work time, if you have the room. An on-site screening, or even a trip down to the local pub, is a good opportunity to build team spirit; however, it should be remembered that not everyone will be interested in watching the football, or even the same football games, so consideration needs to be given to this. If you have a TV in a rest room but don’t allow time off for the game, some employees may be tempted to not return to work after their breaks are over if matches are at a crucial point.

Fit note v Sick note

The Government introduced the 'Statement of Fitness to Work' in 2010 in an effort to support employees returning to work. This article examines the process and what an employer should do in light of the change.

Last Modified on: 2010/03/15 11:17
Last Reviewed on: 2011/03/09 15:54

The Department of Work and Pensions announced that from April 2010, GP sick notes replaced by “fit notes” (aka Statement of Fitness for Work) in an effort to support people in getting back to work.  Whilst most would agree that something had to be done to improve the current sick note system, the new fit note system has not been universally welcomed by employers and GPs.

What can we expect to see on “fit notes”?

The new fit notes will mean that doctors can advise that an employee is unfit for work or may be fit for work and will give more information on how your employee’s condition may affect the role they perform.  The statement is still not required until after the 7th calendar day of sickness.

Fit notes will focus on what employees can do, with GPs listing changes that employers can make to help an employee back to work.  The changes included are:

• A phased return to work
• Altered hours
• Amended duties
• Workplace adaptations

Where the GP has ticked “may be fit for work”, there is a large space for the doctor’s comments on the effects of your employee’s condition and what adaptations could help them return to work.

The DWP advise that the notes are not about trying to get people back into work before they are ready, but about moving the challenges to the returning. The scheme places an onus on employers and employees working together to get staff back to work despite their illness or injury.  The advice is not binding, it is the employer’s prerogative on how to act on the doctor’s advice.  If the adaptations suggested by the doctor are not possible, employers should explain the reason to the employee then treat the note a “not fit for work” note.

What’s the prognosis?

The scheme has not been universally welcomed.  There is concern within the medical profession that GPs are not occupational health specialists and as such, should not be given the responsibility of making thorough recommendations regarding someone’s condition and possible adaptations to their role, which they may have no knowledge of, particularly within a 5-10 minute appointment.

From an employer’s perspective, there is the unknown of what the implications are, particularly under the Equality Act/Disability Discrimination Act, of not implementing the GP’s advice.  Although the DWP state that the statement is not binding, the system has yet to be tested at Tribunal level.  On a separate note, as many HR professionals are too aware, deciphering doctor’s writing in terms of the condition can be tricky enough.

From an employee’s point of view, there could be concern that even with the adaptations, the employee is still not fit for work and refuses to return.  Although this is an unlikely scenario, it is one which should be considered carefully before any disciplinary action is taken. 

So what can/should employers do?

It is important that your sickness absence policy gives you the flexibility to manage your employee’s return to work in the face of the advice of a Statement of Fitness for Work. It is therefore advisable that any sickness absence policy and contract allow you to make the final decision regarding fitness for work based on your knowledge of the role. 

HR Update - Who's left holding the baby?

Last Modified on: 2010/01/29 17:03
Last Reviewed on: 2010/03/15 11:24

Welcome to January's HR Update.

In this month's update:

1.  Holding the baby: Dads to have 6 months paternity leave

2. Real-life problem: Missing retirement dates

 

1. Holding the baby: Dads to have 6 months paternity leave

Under new Government plans, due to take effect for babies born after 3rd April 2011, fathers will be able to take up to six months' paternity leave while their child's mother returns to work.  This is in addition to the current paternity leave legislation which gives fathers 2 weeks paternity leave but offers more flexibility for the last 6 months of maternity leave as under the new plans, parents can transfer the second half of the mother’s maternity leave to the father.

So will it be paid?  Yes but not full pay.  During the paid element, the fathers would be eligible for statutory government pay of £123 a week. They would then be allowed to take an additional unpaid three months off, which would effectively allow couples to have a total of 12 months' leave between them (6 for the mother, 6 for the father).

Whilst these measures allow for more flexibility, particularly for families where the mother is the higher earner, there has been criticism from many sectors that these plans put more pressure on businesses in an already difficult economic climate.  It is difficult to predict how many families will take up this alternative, however, ministers estimate that between 4% and 8% of those eligible for the new leave will take it, with only 1% of small businesses expected to be affected.

There is also a question over whether this scheme is open to fraudulent claims.  Official documents reveal there will be no eligibility checks by the Government when fathers have the right to extended leave.  Fathers are only entitled to take the leave if their wife or partner has gone back to work but Government papers suggest that employees will be able to 'self-certify' that they are eligible, prompting concerns that businesses could be de-frauded by men whose partners have not really returned to work.

2: Real-life problem: Missing retirement dates

Q.  As an organisation we hire staff of all ages and we have a number of employees who are over 65.  We didn’t go through the statutory retirement procedure when they turned 65, so how do we go about retiring them now? 

A.  As long as you still follow the statutory retirement procedures, it is still possible to retire someone even when the retirement date has passed.  The process is as follows:
• write to the employee giving them six months notice of an intended retirement date
• inform them that they have a right to request to work beyond this date
• consider any request to continue working
• give them the right of appeal if you refuse their request

We advise that you do not give reasons for why you are turning down their request; retirement is a fair reason for dismissal and attempting to justify the decision could lead to a number of problems from causing offence to risking a potential tribunal claim.

HR Update - Employment Law Update

Last Modified on: 2009/11/24 17:04
Last Reviewed on: 2010/03/15 11:24

1. You don’t qualify!: What constitutes a break in service?

Continuous service is a fundamental concept that most HR professionals are all too aware of.  After all, for staff it means the difference between qualifying, and not qualifying, for a number of benefits; including entitlement to request flexible working, maternity and paternity pay, and of course, it is an important factor in assessing period of notice and any compensation which may due, for example, redundancy pay and unfair dismissal compensation.

Some staff may at some point leave your employment, perhaps to study, perhaps to travel or for a career break and return within a short period.  But what constitutes a break in service for the purposes of employment?

The law states that an employee’s continuous service is broken if their employment is interrupted by “a week or more”.  Sounds straightforward?  At first glance yes, it is.  However, a week is defined as “a period of seven consecutive days that begin on a Sunday and ends at midnight on the following Saturday”.  Again, sounds straight forward until you’re faced with someone who leaves your employment on a Tuesday and is re-hired 10 days later, on the Friday.  Although your employee has been out of the business for 10 days, the requirement of a Sunday to a Saturday interruption has not been met, and therefore, their employment is continuous.

Several of our clients have come across this exact issue: and have experienced problems when calculating length of service for redundancy pay.  We advise employers who re-hire staff after a short period to leave a gap of 2 weeks and to re-issue them with a whole new contract, making it clear that their employment starts on the new date, and that no period of service prior to this date counts towards their continuous service.

2. Case of the month:   Belief in climate change is a “philosophical belief”

This month saw the judgement in Grainger Plc v Nicholson: an Employment Appeal Tribunal has held that a belief in man-made climate change, and the alleged resulting moral imperatives, is capable of being a 'philosophical belief' for the purpose of the Employment Equality (Religion or Belief) Regulations 2003.

This is the interesting case where Nicholson, the head of sustainability, was made redundant from property company Grainger Plc and claims he was unfairly dismissed because of his belief in climate change.

The Employment Equality (Religion or Belief) Regulations 2003 (the Religion or Belief Regulations) came into force in December 2003 and implement the religious discrimination aspects of the Equal Treatment Framework Directive 2000/78/EC. They prohibit direct discrimination, indirect discrimination, discrimination by way of victimisation or harassment in the workplace by reason of any religion or belief. The term 'belief' is defined as 'any religious or philosophical belief'.

This is the first reported case where a claimant has successfully argued a belief not related to a religious belief may be protected under these regulations. Previously, tribunals have taken a slim interpretation of what could amount to a “belief” so watch out for further updates on other protected beliefs.