News 2010

AMC Law lead the field at Ascot!

Thanks to all our guests we had a fabulous time at Ascot Ladies Day on the 17^th June, to find out more click here.

Be on the ball in time for kick off!

The 2010 FIFA World Cup has kicked off, but it could throw up some difficult issues for employers. Not only is there the issue of absenteeism but there is also the potential to become exposed to claims of discrimination and harassment. To avoid having to show your employee the red card click here for our guide.

Immigration legislation gets tougher

Following the Government’s agreement to make it harder for foreign skilled workers to work in the UK from 2010:

• All jobs must be advertised in a job centre for a period of four weeks (extended from two weeks) before employers can look for staff from outside Europe.
• Any overseas worker wishing to transfer to their employer’s UK base must have at least one year’s employment (currently six months) with their employer.
• The minimum salary which allows a worker to qualify as a skilled worker will rise from £17,000 to £20,000.

The move is intended to ensure that British workers are not only first in line for these jobs, but also have longer to apply.

Public Interest Disclosure

Amendments have been made to the Employment Tribunals (Constitution and Rules of Procedure) Regulations which now permit tribunals, with the consent of the whistleblowing claimant, to pass information about public interest disclosures to the relevant regulator who will then be able to investigate the alleged malpractice. Accordingly, since 6 April 2010 there is now an option box on the ET1 to tick if the Claimant would like such information to be passed on.

Fit notes

Since April 2010 sick notes have been replaced by fit notes.

The aim of the fit note is to focus on what an employee might be able to do at work rather than what they cannot do.

Changes:

• There will be no provision for the GP to select that the patient is ‘fit for work’.
• In the fit note GP’s will be given an option to state ‘may be fit for work taking account of the following advice’.  The note then lists common types of changes aimed to encourage further discussion between the GP and their patient and help the employee get back to work including:
• A phased return to work.
• Altered hours.
• Amended duties.
• Workplace adaptations.
• Where the GP considers another option is more appropriate for their patient they will have the opportunity to state this in the comments box provided as well as provide general details of how the individual’s condition may affect various functions.
• The maximum duration a ‘fit note’ will be issued for will be 3 months, currently GP’s can sign an employee off up to six months.

A sample of the new ‘fit note’ can be found at http://www.dwp.gov.uk/docs/med3-fitnote-sample.pdf and all doctors should have received guidance on how to complete the fit note.

The arrangements for Statutory Sick Pay (SSP) will not be affected by the introduction of fit notes and if a doctor recommends that an individual may be fit for work, but that employee and their employer agree the employee should remain off work they can still receive SSP.

Paternity Leave

Since 6 April 2003, fathers, subject to certain qualifying conditions, have been entitled to either one whole week or two consecutive weeks' ordinary paternity leave and statutory paternity pay (SPP) for up to two weeks.

From 6 April 2010 eligible fathers will be able to take up to 26 weeks’ additional paternity leave (APL) in the first year of their child’s life. However, for a father or partner to take APL, the mother or adopter must return to work having not exhausted their entitlement to statutory maternity or adoption leave.

The new rules will apply to parents whose babies are due on or after 3 April 2011 or who, in relation to adoption, are notified of having been matched on or after 3 April 2011.

To be eligible a father or partner will need to have qualified for ordinary paternity leave and have had continuous employment for at least 26 weeks and up to the date on which they intend to commence APL.

An employee will need to give a minimum of eight weeks' notice of their intention to take APL and will be required to “self certify” by providing details of their eligibility to their employer. Payment during APL will be same rate as Statutory Maternity Pay.

Right for employees to request ‘time to train’

From 6 April 2010, employees working for organisations with 250 or more employees will have the right to request time off to train. This right will be extended to cover all employees from April 2011.

To be eligible for making a time off to train request employees will need to have completed 6 months employment with their organisation and any training requested should be relevant to performance in that particular organisation.

Employers must consider any requests and respond within a set timeframe.  Employers do have the right to refuse requests but only if there is a legitimate business reason and, if refusing, they should explain why they consider the training request would not assist in improving business performance.

Blacklisting of trade unionists

On 2 March 2010 the Employment Relations Act 1999 (Blacklists) Regulations 2010 came into force making it unlawful to blacklist, deny employment, dismiss employees or subject workers to a detriment as a result of trade union membership or activities.

Under the regulations it is unlawful to compile, use, sell or supply "prohibited lists" containing details of trade union members or those involved in trade union activities.

However, the Regulations are subject to a number of exemptions including where use of a blacklist is in the public interest or used to obtain legal advice and also where the person is unaware they are supplying a prohibited list or cannot be reasonably expected to know.  

Coinciding holiday and sick leave

Shah v First West Yorkshire Limited is the first case to follow the decision in Pereda v Madrid Movilla. In Shah v First West Yorkshire Limited the employment tribunal held that where an employee’s pre-arranged annual leave coincided with a period of sick leave, and where the holiday year was near its end, he should be allowed to cancel his holiday and carry over leave entitlement to the subsequent year.

Religions discrimination

In Eweida v British Airways plc, a Christin employee sought to claim that she had individually suffered indirect discrimination on the grounds of her religion and belief as her employer, British Airways, had insisted that she conceal the cross on her necklace in line with its uniform policy.

The Court of Appeal rejected the argument of indirect discrimination and confirmed that instead it is necessary to show that there has been a disadvantage to a group rather than just the individual bringing a claim. However, it was found that no one but the Claimant had felt disadvantaged by British Airways’ policy.

The Equality Bill

The Equality Bill has now been approved by the House of Commons and has received Royal Assent.

Most of the provisions of the Bill will come into force in October 2010 with the remainder likely to be implemented the following year.

The Equality Bill represents the harmonisation of discrimination law in one single Act. Some of its key functions are to:

• Outlaw discrimination against anyone with one of the protected characteristics such as sex, race, disability, religion, sexual orientation, religion or belief, age, gender reassignment, marriage and civil partnership, pregnancy and maternity;
• Ban discrimination by association, which should protect spouses, partners, parents and carers who look after a disabled person or older relative from discrimination.
• Increase positive action to allow employers to take under-representation into account when selecting between two equally qualified candidates;
• Introduce discrimination by association;
• Outlaw pay secrecy clauses;
• Extend Tribunal powers to make recommendations in discrimination claims; which can apply to the whole workforce and not just a successful claimant;
• Ban age discrimination outside the workplace, for example in relation to insurance.
• Encourage employers with 250 employees or more to voluntarily to publish their pay statistics. This later may become compulsory.

Some of what comes into force will be highly dependent on the General Election as the Conservatives have already announced they intend to drop some aspects of the Bill such as positive action in the workplace.

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