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 Significant Changes in Employment Law (09/07/2013)

It is likely that as from 29th July 2013 the Government will introduce fees for issuing and pursuing employment tribunal cases. There will be two levels of fees to be paid by the applicant, the level depending upon the type of claim the applicant is making. There will be a fee on submission of the claim and a hearing fee before the full hearing.
There will also be a cap on the maximum award for unfair dismissal. It will be the lower of 52 weeks pay or £74,200.

In a rather surprising decision involving former staff of Woolworths, the Employment Appeal Tribunal has decided that there must be a 90 days consultation period if 20 or more throughout the whole of an organisation are being considered for redundancy. Previously, it had been accepted that there should only be need for such consultation if 20 or more employees were being considered for redundancy at one site.


 New 2 year qualification rule (05/04/2012)

For all employees starting employment with an employer on or after the 6th April 2012,
the qualifying period for them to be able to bring a claim for unfair dismissal will be
2 years continuous employment.



For any employee who is employed prior to the 6th April 2012, the qualifying period
is still 12 months.



An Employment Tribunal can now make an Order for Costs against an unsuccessful
party up to £20,000.00 rather than £10,000.00. To date the power to make Orders for
costs against the losing party has been sparingly exercised but this may not continue
in the future.



The Government also has plans to bring in to effect fees for starting and continuing
employment claims in an Employment Tribunal but the matter is still under consideration
and is not likely to come into effect until 2013 or 2014.



Charles Fox


 Changes to Unfair Dismissal awards (01/02/2012)

On the 1st February 2012 the limit of the amount of a weeks pay used to calculate the statutory redundancy payments and the basic award for unfair dismissal rises from £400.00 to £430.00 per week. The maximum compensatory award for unfair dismissal rises from £68,400.00 to £72,300.00.



Charles Fox


 Compensation and disciplinary procedure (17/01/2012)

The Supreme Court has decided that an employee cannot claim monetary compensation for any loss arising from the unfair manner of his dismissal in breach of a disciplinary policy which has become an expressed term of his contract of employment.



However the Supreme Court confirmed that it was still open to an employee to seek a declaration or injunction to stop the employer breaching the disciplinary policy. Moreover breach of the disciplinary policy could also be considered in relation to a claim for unfair dismissal.


Charles Fox


 Age Discrimination (01/10/2011)

The last Government introduced Regulations prohibiting age discrimination, included in those Regulations was a procedure for employers to be able to retire their employees in certain circumstances at the age of 65 years which was called ’the default retirement age’. The procedure was for the employer to give notice and the employee to give counter notice.



The present Government has decided to scrap the default retirement age as from the 1st October 2011. However an employer will still be able to use the old procedure until then. This means that if an employer employs an employee who will be over 65 years of age on the 1st October 2011 the employer will have to give notice under the old procedure, that he wishes the employee to retire on or after that date by no later than the 30th March 2011.



If the employer fails to do that, he can no longer use the old procedure. If he wants to retire an employee thereafter, he will have to follow a fair dismissal procedure. Retirement will cease to be an automatically fair reason for dismissal and he will have to prove that the discriminatory effect of dismissal is outweighed by an important legitimate aim.



It may well be that the employee has benefit schemes that are linked to retirement, for example permanent health or life insurance and those schemes may need to be re-negotiated. Pension schemes and share incentive schemes may also need to be re-considered.



There is of course nothing to prevent an employer and employee agreeing a retirement age in the employee’s Contract. However, even then, the procedure adopted to implement that retirement age will have to be a fair one.



Charles Fox


 Contracts of Employment & Staff Handbooks (22/02/2011)

Every employee whose employment lasts for at least one month must receive written details of the main terms and conditions of employment. The important ones must be included in a single document. Other particulars may be in another document or documents. Some employers provide staff handbooks. It is important for the employer to specify which terms in the staff handbook have contractual effect and which are merely policies for the better running of the business. The employer may be able to amend the policies without the employee’s consent but may not be able to amend the contractual terms and conditions without the employee’s consent.


 Happier Families (22/02/2011)

More family friendly employment rights will be available to employees in April 2011 involving maternity and paternity benefits and flexible working.



At present all women who qualify for ordinary maternity leave, automatically qualify for additional maternity leave if their expected week of childbirth is on or after the 1st of April 2007. Therefore they are entitled to 52 weeks maternity leave regardless of length of service. Maternity pay has been extended from 26 weeks to 39 weeks.



Women then have to give 8 weeks rather than 4 weeks notice to their employer of their wish to return to work. Employers and employees are entitled to make reasonable contact with each other during maternity leave, and with the agreement of the employer, women will be able to do up to 10 days work during their maternity leave to ’keep in touch’ without affecting their benefit rights.



Employed fathers are presently entitled to take 2 weeks statutory paternity leave within the first 8 weeks following the birth of their child. New Regulations introduced in 2010 now extend paternity leave and pay rights for fathers where the expected birth of their child falls on or after the 3rd April 2011. These Regulations allow new mothers to transfer the second 6 months of their maternity leave to the child’s father and where this is done, the father can claim statutory paternity pay for the time that she would have been able to claim statutory maternity pay. In order for the father to exercise this right, the mother must have returned to work. Also, the father cannot take this additional paternity leave until the child is 20 weeks old.
It is unlawful for any employer to prevent an employee from returning to the same or a similar job at the end of maternity or paternity leave.



For 3 years, flexible working has been the right of certain employees who care for a child or children under the age of 6. Those employees have the right to request a variation to the terms and conditions of their employment which the employer must consider. From the 6th of April 2007 the flexible working rules were extended to people to care for sick, disabled or elderly partners or relatives and from April 2011 the right to request flexible working will be extended to parents of children under 18 years.



Charles Fox


 Fit Notes Replace Sick Notes (22/02/2011)

From the 6th April 2010, Doctors have provided employees with ’A statement of fitness to work’ instead of a sick note.



The statement may say that the employee is not fit for work, or it may say that he/she is fit for work taking into account certain advice.



The advice may include a phased return to work, amended duties, altered hours or workplace adaptations.



Charles Fox


 Holidays from Work (22/02/2011)

Unless the employee’s Contract states to the contrary, a worker requesting to take leave or an employer requesting a worker to take leave at specified times must make the request at least twice the period of the leave to be taken.
As a general rule, untaken annual leave is lost at the end of the leave year and cannot be taken forward unless the employee’s Contract states to the contrary.



A recent Court case has decided that employees are entitled to holidays or pay in lieu during the leave year even if they are sick and that holiday entitlement continues to accrue during a sickness period.



Charles Fox


 Changes to the Disciplinary & Grievance Procedures (22/02/2011)

ACAS have published a new Code of Practice on discipline and grievance which will become law in April 2009. It does not apply to dismissals due to redundancy or non renewal of fixed term contracts.



The employer should still have written disciplinary and grievance procedures. The requirements are similar to those presently in force. However the emphasis will be on flexibility and speed of resolution.



However, failure by an employer to follow the Code will not be automatic unfair dismissal, but if the Code is not reasonably followed, an Employment Tribunal can award up to 25%
more to an employee or reduce an employee’s award by 25%
if he/she has behaved unreasonably.



Employees will no longer have to raise a formal grievance if they have a complaint against their employer.
Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently.



Charles Fox


 More Consultation Required by Employers (22/02/2011)

At the moment, employers have a duty to inform and consult with their staff if they employ at least 100 employees in the United Kingdom. The information and consultation relates to:-



1. Recent and probable developments of the businesses activities and economic situation. For this there is a requirement to provide information but not consult.



2. Information on the situation, structure and probable development of employment within the business and of any anticipatory measures (in particular where there is a threat to employment). Here there is a requirement to provide information and to consult.



3. Decisions likely to lead to substantial changes in work organisation or on contractual relations (including collective redundancies and business transfers). Here there is a requirement to provide information and to consult? With a view to reaching agreement? with the staff.



The penalty for breach is a fine but failure could also be used by employees as evidence against their employers in claims.


 Agricultural Wages Board (22/02/2011)

It is likely that the Agricultural Wages Board for England will cease to operate on or about the 30th September 2011 when the most recent Agricultural Wages Order expires. The Order applies to agricultural workers.



The Order presently specifies wages to be paid according to a grading system. When the Order expires, agricultural workers will only have the protection of the National Minimum Wage Regulations.



The provisions in the Order relating to sick pay, stand by pay, night work, holiday entitlement, bereavement leave, accommodation, birth and adoption grants and dog allowance may also be effected.



The Unite union is currently negotiating with the Government about the abolition of the Board but an employer needs to be aware of the present proposals.



However, if a current worker has a Contract of Employment containing any of these protected rates or benefits, then the employer will not be able to unilaterally change the terms of the Contract of Employment. The employer will need to discuss the Contract terms with the worker. If the employer does anything unilaterally, the worker could claim unfair dismissal or breach of a statutory right to receive their contractual pay.


For future workers, an employer will need to consider changing their standard Contracts of Employment.


 Was the Dismissal Unfair (22/02/2011)

If an employer dismisses an employee, the employer may have to persuade an Employment Tribunal that the dismissal was fair. To do so, the employer will have to prove that it made a proper enquiry, had an honest belief in the facts found and made the decision to dismiss on reasonable grounds. It will also have to prove that the decision to dismiss (rather than to issue a warning for example), was within the range of reasonable responses to the particular conduct. Reference to the employee’s Contract and what is stated to be gross misconduct may be relevant.


 National Minimum Wage Rates (01/10/2010)

As from the 1st October 2010 the National Minimum Wage rates will be as follows:-



£5.93 - The main rate for workers aged 21 years and over.



£4.92 - The 18-20 years rate.



£3.64 - The 16-17 years rate for workers above school leaving age but under 18 years.



£2.50 - The apprentice rate, for apprentices under 19 or 19 years or over and in the first year of their apprenticeship



The age at which you become entitled to the main rate was reduced from 22 to 21 years on the 1st October 2010. The apprentice rate was introduced on the same date.



Charles Fox


 The Equality Act 2010 - Discrimination Provisions (01/10/2010)

Many of the provisions of the Equality Act 2010 came into force on the 1st October 2010. The Act has been passed to harmonise previous Legislation relating to age, disability, race, sex, sexual orientation and religious belief discrimination. These together with gender reassignment, sexual orientation, marriage and civil partnership, and pregnancy and maternity are all called “protected characteristics”. It can be illegal to directly or indirectly discriminate against people with the protected characteristics and it can also be illegal to discriminate against someone because they associate with somebody else who possesses a protective characteristic or because it is perceived that they possess a protective characteristic.



The law has been strengthened to protect people with protective characteristics from harassment which is defined as ’unwanted conduct related to a relevant protective characteristic’.



Employers can be liable for harassment of their Employees if they directly harass them and potentially liable if one Employee harasses another or even if a third party who is not an Employee (such as a customer) harasses an Employee. All Employers should have an anti-harassment policy and should make sure it is adhered to.



Employers can be liable for victimising an Employee because they have made or supported a complaint or raised a grievance under the Equality Act.



One other provision has received a lot of publicity in the press. Employers are now prevented from asking personal health related questions to an Employee at a job interview unless those questions will help the Employer to decide whether they need to make any reasonable adjustments to the workplace or the working procedures if they employ that person, or whether that person can carry out a function that is essential to the job.



It is also unlawful for an Employer to prevent or restrict an Employee from discussing rates of pay which are related to protected characteristics (for example the difference between what men and women are paid in the employment).



Charels Fox


 CHANGES TO THE DISCIPLINARY & GRIEVANCE PROCEDURES (09/02/2009)

ACAS have published a new Code of Practice on discipline and grievance which will become law in April 2009. It does not apply to dismissals due to redundancy or non renewal of fixed term contracts.



The employer should still have written disciplinary and grievance procedures. The requirements are similar to those presently in force. However the emphasis will be on flexibility and speed of resolution.



However, failure by an employer to follow the Code will not be automatic unfair dismissal, but if the Code is not reasonably followed, an Employment Tribunal can award up to 25% more to an employee or reduce an employee’s award by 25% if he/she has behaved unreasonably.



Employees will no longer have to raise a formal grievance if they have a complaint against their employer.



Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently.



Charles Fox


 Employers Responsible - Fire Risk Assessments (01/10/2006)

Fire Safety Regulations were amended from October 2006 to put the obligation on an employer/property owner to carry out regular risk assessments in respect of fire and to put in place fire safety procedures as a result of risk assessments.



There is no requirement to carry out fire drills at any particular interval. The number of fire drills that are necessary will depend upon the risk assessment. A high risk industry or a high staffed turnover or significant changes to the premises may give rise to the need for more regular fire drills. Drills should be held at least once per year in any event.



Records should be kept of risk assessments and drills.


 Do You Need a Health & Safety Policy ? ()

Any employer with 5 or more employees must have a written Health & Safety Policy in place. The penalty for failure is a fine of up to £20,000.00 or 12 months imprisonment or both.



The Policy must specify the name of the individuals responsible for health and safety matters and must specify the general employee duties under the Policy. It must contain details of how you will consult your staff about health and safety issues, any significant risk management issues and how training will be provided.