Employment Law Update

Blacklisting for Union Membership Prohibited (Feb-Mar 2010)
From early 2010, 'blacklisting' of workers from employment opportunities because of their current or previous union membership or activities will be prevented. The Government already has this power under the Employment Relations Act 1999. The new draft regulations can be found on the Department for Business, Innovation and Skills website at www.berr.gov.uk

'Blacklisting' - Definition……a list or register of persons who, for one reason or another, are being denied a particular privilege or service.

Decrease of Maximum Unfair Dismissal Compensatory Award (Feb 2010)
The number of limits on compensation awards has been rationalised and the award for unfair dismissal has been reduced from £66,200 to £65,300. Details of the new limits can be found at this Office of Public Sector Information (OPSI) link: http://www.opsi.gov.uk/si/si2009/uksi_20093274_en_1

Paternity Leave and Pay is Extended (Apr 2010)
Fathers will now be able to benefit from up to 26 weeks' additional paternity leave (if the mother of the child returns to work before the end of the maternity period). This is available during the second six months of the child's life and can be paid if taken during the mother's statutory maternity pay period. The Government intends that the legislation is to come into force in April 2010, with effect for parents of babies due from 3 April 2011.

Registering with the Independent Safeguarding Authority (dates to be confirmed)
As part of the Safeguarding Vulnerable Groups Act 2006, employers must check that workers in regulated sectors are registered with the Independent Safeguarding Authority with effect from 1 November 2010. The Independent Safeguarding Authority (ISA) has been created to help prevent unsuitable people from working with children and vulnerable adults. For the full Act visit: http://www.opsi.gov.uk/acts/acts2006/ukpga_20060047_en_1. For more information on the Independent Safeguarding Autority, visit: http://www.isa-gov.org.uk/

Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations 2010 (Apr 2010)
These regulations will replace the 'sick note' with the 'fit note'. The emphasis will be on whether a person is 'fit for work' or some work.

Right to Request Time Off for Training is Introduced (Apr 2010)
Employers must consider seriously such requests from employees, however, requests can be refused if a sufficicient business reason exists. Time off for training does not have to be paid, and the cost of the training does not have to be met by the employer. Initially, the legislation will apply to organisations of 250 employees or more.

Maternity pay is extended to 12 months (dates to be confirmed)
The Government is likely to extend paid maternity leave from 9 to 12 months. This follows the move to extend entitlement from 6 to 9 months in April 2007.

Agency Workers Directive (Oct 2011)
Due for implementation in October 2011, the Agency Workers Directive will ensure that agency workers in temporary work assignments receive the same basic employment conditions as comparable permanent employees at the same company. The outcomes of the Government's consultation on the draft regulations are likely to include a 12 week qualifying period (with a 6 week break criteria between assignments) and base pay and piecemeal bonuses only, used as the pay comparators. The relevant pay rate will be that of a comparable worker or the 'starting rate' if one is in place. Bonuses and or profit sharing relating to company performance are not likely to be included. The EU Direcive can be found at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:327:0009:0014:EN:PDF

Equality Bill (2013)
This bill will combine all existing equality legislation into one act. In addition, the new legislation will also include regulations (likely to take effect in 2013) for the compulsory publishing of details of any male / female pay differentials for organisations of 250 or more employees.

Questions & Answers

It has become apparent that our new Accounts Manager has lied on his CV about his experience and qualifications. What can we do?
One of our Consultants was recently subjected to sexual harassment at a lunch with a Client but is worried about losing the Client if she reports it. She insists on handling it herself. What are our legal responsibilities here?
A member of my Administration Team is visiting a strip club during his lunch break. He is never late back but it is upsetting some other members of the team. Can I stop him?
We have just received a quote for renewing our private healthcare policy and several members of the scheme have now reached 65. This increases the overall cost of the policy quite substantially. Can we exclude these workers from the policy?
One of our team is about to take maternity leave and they have recently joined our company pension scheme – are we obliged to continue payments for this period?
The Bank Holiday season is approaching and some of our part-time workers who do not normally work on Mondays are demanding they be given extra time off in lieu. What are our legal obligations?
Our Christmas Party resulted in several incidents of fighting and a member of staff claiming she was harassed. Should we have written rules of work-related social events?
I’ve heard that the new Corporate Manslaughter and Corporate Homicide Act (which places responsibility on the company for its employee’s negligent actions), includes driving offences?

Q. It has become apparent that our new Accounts Manager has lied on his CV about his experience and qualifications. What can we do?

A. As he has less than 12 months’ service, he could be dismissed for breach of contract, with or without payment in lieu of notice. If the deceit is serious enough to amount to a breach of mutual trust and confidence, summary dismissal could be justified. A more cautious approach would be to follow the statutory disciplinary and dismissal procedure so that the individual has an opportunity to explain himself; however, obtaining financial advantage by deception is a criminal offence. It is important that proof of qualifications and references are obtained to verify important information prior to employment commencing.

Q. One of our Consultants was recently subjected to sexual harassment at a lunch with a Client but is worried about losing the Client if she reports it. She insists on handling it herself. What are our legal responsibilities here?

A. Your legal duties here as an employer are to provide a safe working environment not only in the workplace but also at work-related social events, training courses, lunches, etc. You must ensure your employees are not subjected to unwanted conduct by other employees and by individuals they come into contact with while carrying out their duties. If no action is taken here, you could be held vicariously liable. You need to take steps to eliminate or prevent this situation from occurring again. If the employee is refusing to make a formal complaint, informal steps can be taken, such as re-assigning the Client to a male colleague or ensuring that the employee is accompanied on the next visit.

Q. A member of my Administration Team is visiting a strip club during his lunch break. He is never late back but it is upsetting some other members of the team. Can I stop him?

A. The fact he is visiting this club during his own time is very hard to stop unless you can show that it is having a negative impact on the business or team. If he wears a uniform for example, that could be seen to be bringing the name of the business into disrepute, however, if not, it would probably be best to treat this as a disagreement between staff. If it cannot be resolved informally, the company’s formal grievance procedure may be needed. Ultimately, if the objections from the other employees continue to such an extent that they refuse to work with the employee, and the individual refuses to stop visiting the strip club, you may have grounds to dismiss due to the disruption the issue is causing in the workplace. All efforts should be made to resolve the issue before reaching this stage.

Q. We have just received a quote for renewing our private healthcare policy and several members of the scheme have now reached 65. This increases the overall cost of the policy quite substantially. Can we exclude these workers from the policy?

A. Withdrawing any contractual benefit without the employee’s consent is breach of contract and could result in constructive or unfair dismissal claims. However, employment contracts often state that certain benefits are discretionary and, if the wording permits, can be withdrawn without consent. Withdrawing benefits from staff aged 65 or over is discriminatory under the Employment Equality (Age) Regulations 2006 unless this can be justified as a ‘proportionate means of achieving a legitimate aim’. Cost considerations alone are unlikely to justify discrimination, so other methods of cost saving within the business may need to be investigated rather than withdrawing benefits.

Q. One of our team is about to take maternity leave and they have recently joined our company pension scheme – are we obliged to continue payments for this period?

A. Pension contributions must continue during paid maternity leave and company contributions must be at the same rate as if the employee were still working normally.

Q. The Bank Holiday season is approaching and some of our part-time workers who do not normally work on Mondays are demanding they be given extra time off in lieu. What are our legal obligations?

A. This is quite a controversial issue with many employers taking the ‘normal working day’ approach meaning that a part-timer who does not usually work on a Monday will lose out. Whilst this does seem unfair, an employer is within their rights to refuse additional time off to those who do not normally work a Monday. A suggested course of action for employers is to pro-rata bank holidays for part-time workers in accordance with Department and Trade and Industry guidance.

Q. Our Christmas Party resulted in several incidents of fighting and a member of staff claiming she was harassed. Should we have written rules of work-related social events?

A. Yes, you should provide clear guidance to all employees prior to any social or non-social event about acceptable standards of behaviour and the disciplinary sanctions that could result from breaking these standards. It is unreasonable to expect everyone to stay completely sober but alcohol consumption can be monitored. Avoiding a free bar will reduce excessive alcohol consumption. You are responsible for the acts of employees on or off site, so assigning supervisory roles to managers is a good idea.

Q. I’ve heard that the new Corporate Manslaughter and Corporate Homicide Act (which places responsibility on the company for its employee’s negligent actions), includes driving offences?

A. This is true. The company may be held responsible for any driving offences or convictions committed whilst the employee is driving for business use regardless of whether it is in a company vehicle or not. For example, where an employee is driving to a meeting and takes a mobile call from a colleague causing an accident, it would be argued that the employer has not made policies on driving at work prominent enough and is thereby not compliant with prevailing Health and Safety legislation. Effective communication, monitoring of driving hours and clear and comprehensive driving-at-work policies are essential with this new legislation. Sanctions include unlimited fines, court orders and improvement notices.

Shepherd Stubbs takes all reasonable steps to ensure that legal information is up-to-date and accurate, but makes no representations, warranties, or assurances as to the accuracy, currency or completeness of the information provided. Information on this site is not intended to provide specific legal advice - in this case, clients should refer to their own employment law specialist.