It is intended that as from the 6th April 2010, Doctors will provide 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.

Was the Dismissal Unfair

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.

Holidays from Work

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 state 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.

Contracts of Employment and Staff Handbooks

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.

Charles Fox

As from October 2009 the National Minimum Wage is increased as follows:-

• Workers aged 22 and over = £5.60

• Workers aged 18 to 21 = £4.83

• Workers aged 16 & 17 = £3.57

Charles Fox

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

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.

As from the 1st October 2007 the Government is working towards including an allowance equal to statutory public holidays into every employee’s holiday entitlement.

In any holiday year beginning on or after the 1st April 2008, holiday entitlement is increased from 20 to 24 days per annum.

In any holiday year beginning on or after the 1st April 2009, holiday entitlement is increased from 24 to 28 days per annum.

These increases work pro-rata from the 1st October 2007.

An employee still does not have the right to take a holiday on a Bank Holiday.

A fraction of a day’s entitlement is entitled to a whole day’s entitlement in the employee’s first year under the new scheme.

The right to request flexible working has been available to categories of employees for quite some time. As from the 1st October 2007 flexible working will be extended to a wider range adopters and foster carers.

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.

As from the 1st April 2008 these obligations are extended to employers with at least 50 employees.

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

The Employment Equality (Age) Regulations came into force on the 1st of October 2006 with the aim of reducing discrimination in the workplace. It adds to existing legislation relating to discrimination on the grounds of sex, race, disability, sexual orientation, and ethnic origin, and harassment.

Employers will no longer be able to discriminate on the grounds of age when advertising jobs, making offers of employment, agreeing terms of employment, considering workers for promotion or training, determining dismissals or subjecting a person to any other disadvantage in the workplace due to their age (whether young or old).

Potentially discriminatory conduct by an employer is not always unfair. Age discrimination can be lawful if it is a proportionate means of achieving a legitimate business aim.

The Regulations introduce a default retirement age of 65. Employers who operate a retirement age lower than 65 will have to objectively justify it. To enforce retirement at 65 years or above, the employer will have to give the employee notification of his right to request not to retire on the intended date of retirement. The employee can take up his right by giving the employee counter notice. If he does so, the employer must arrange a meeting to discuss the matter. If the employer follows this procedure then any dismissal is automatically fair. If the employer fails to do so then any dismissal is potentially unfair.

The Department for Trade and Industry have estimated that workers will bring approximately 8000 claims in the next year alone and there is no limit on the amount of compensation which an Employment Tribunal can award in respect of age discrimination.

Sarah Beddows

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

All women who qualify for ordinary maternity leave will 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 will be extended from 26 weeks to 39 weeks.

Women will then have to give 8 weeks rather than 4 weeks notice to their employer of their wish to return to work. Employers and employees will be 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. The government is proposing to give the right to a further 26 weeks maximum leave to be taken before the child‘s 1st birthday but only if the mother has returned to work. There will be provision for statutory paternity pay to be extended to cover this period.

It will be 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 will be extended to people to care for sick, disabled or elderly partners or relatives.

Charles Fox