Changes in employment law generally arise twice a year in April and October. In this news update we cover key changes for October 2008 and take a glimpse at April 2009. In addition we have summarised some interesting cases and looked at the figures relating to employment disputes.

 

OCTOBER 2008

 

National Minimum Wage

In October of every year the National Minimum Wage is reviewed and the new rates from 1st October are:

22 years and over from   £5.52 to £5.73

16 – 17 year olds from    £3.40 to £3.53

 

Maternity Rights

Changes to Maternity Regulations now mean that employees are entitled to all their contractual benefits (excluding pay) for the full period of their maternity leave Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML). The amendments apply to employees with an expected week of childbirth on or after the 5th October 2008.

 

These changes also apply to Adoption Leave.

 

What does this mean to you...? Ensure that you amend your policies to reflect these changes (Practical HR are able to provide full details and updates).

 

Employers' Liability Insurance 

As of the 01st October it will be acceptable for Company's to 'display' their employers Liability (Compulsory Insurance) Certificate electronically provided that employees have reasonable access.

 

What does this mean to you...? If you have a company intranet or a shared drive and all employees have reasonable access the ECLI can be kept electronically. You should however advise employees of the location - send a memo!

 

Fixed Term Employees

(Prevention of Less Favourable Treatment)

As of the 27th October 2008 agency workers on contracts of less than three months will be entitled to Statutory Sick Pay (SSP).

Further changes are expected following the Governments recent deal with the EU that will increase temporary workers rights. We will keep you informed of any changes in this area.

 

What does this mean for you...? If you employ temporary workers through agencies there may be implications relating to costs as employment rights of temps increase.

 

 

APRIL 2009

 

Further Increases to Holiday Entitlement

In October 2007 statutory holiday entitlement was increased  to 4.8 weeks' for each holiday year (24 working days based on a five day week)

In April 2009 paid holiday entitlement will increase to 5.6 weeks (28 days based on a five day week). This can be inclusive of Bank Holidays i.e. 20 days plus 8 bank holidays will meet the new minimum.

 

What does this mean for you...? If your current entitlement is less that 5.6 weeks (28 days) you need to increase entitlement in April and update your documentation accordingly.

 

Dispute Resoloution - Further Changes for April 2009

Following an independant review of the Dispute Resolution Regulations (inc dismissal procedures) back in 2007, the current regulations are due to be repealed and new regulations introduced that would "ease the burdens for business and employees by abolishing rigid, statutory processes for dispute resoloution" (Minister Pat MC Fadden).

 

The New regulations are due to be confirmed in April 2009. We will provide further information as this becomes available. We are hoping that the new regulations will take a more practical approach to dispute resolution.

 

What does this mean for you...? Until changes are confirmed you must continue to follow the current 3 step proceedure to avoid claims for unfair dismissal.

 

Extension of Felxible Working Rights

The Government is planning to extend the right to request flexible working for those with children up to 16 years of age (currently the request is limited to those with children under six or a disabled child under 18 years to carers).

 

It is important to note that this remains a right to request flexible hours and employers will continue to be able to objectively justify if this is not possible on the basis of the burden of additional costs, detrimental effect on the ability to meet customer demands, quality or performance or the inability to reorganise work.

 

It is anticipated that this area of legislation will develop and we will continue to keep you updated.

 

What does this mean for you...? Make sure that you always follow the statutory procedure relating to flexible working and we recommend you communicate this procedure to employees.

 

 

KEY DATES FOR THE DIARY

 

01st October 08 - National Minimum Wage Increases.

05th October 08 - New Maternity Regulations.

23rd October 08 - Free briefing by Practical HR on HR & Employment Law.

April 09             - New Increased Holiday Entitlement.

April 09             - Extension of Flexible Working Rights.

April 09             - Changes to Dispute Resolution.

 

 

CASE LAW - RECENT CASES

 

One to Watch... AGE DISCRIMINATION:

European Court of Justice (ECJ) to make ruling by end of 2008:

There has been a challenge to Age Discrimination legislation relating to the fixed retirement age (65 years). Age Concern (in the case of Heyday) are arguing that the complusory retirement age is in conflict with EU law and discriminative.

 

The full case is due to be heard by the ECJ by the end of 2008.  However, in late September the Advocate General gave an opinion stating that the fixed retirement age could be lawfull provided that it was under pinned by legitimate labour market aims.

 

While the Advocate Generals opinion is leagally binding, it is a strong indication of how the ECJ may decide this case.

 

However, until the actual decision, the UK remain unsure of the current situation with regards to compulsory retirement. Some 260 people in Britain have cases at Employment Tribunals which depend on the European court's ultimate decesion.

We will keep you updated and advise you of the decision of the ECJ as soon as it is available.

 

What does this mean for you...? Be aware that until the decision in the ECJ, employees can challenge compulsory retirement.

 

NORTH SEA MINING PAYS OUT £2 MILLION

Redundancy:

For an employer thinking of cutting jobs, redundancy consultation is essential as highlighted in a recent case in which an award estimated in excess of £2 million was made against an employer for failure to enage with employees about the reasons for redundancies.

 

The size of the award was unusually large mainly as a result of the Company failing to consult effectively with the Union and the large number of employees involved.

 

However it highlights the need for all employers to take consultation obligations seriously in a redundacny situation or risk finacial consequences at a time when most can ill afford.

 

What does this mean for you...? If you have to consider redundancies, you must follow the correct procedures in order to avoid claims and possible penalties.

 

DRESS CODES RELIGION AND BELIEF REGULATIONS

Discrimination:

In October the case between Miss N Eweida vs. British Airways PLC will be heard by the EAT. Eweida had attended work wearing a visible silver cross. The Company uniform policy clearly states that visible items of jewellery are prohibited. Mandatory religious apparel was permitted only if it could be concealed by the uniform. Eweida claims she was a victin of direct and indirect discrimination.

 

In this case the EAT dismissed Eweida's claims, as it found there were no grounds for discrimination as BA had not treated Ewida any less favourably, all employees were treated the same regardless of faith or religious inclination. Although this is only the first instance decision and not binding on other tribunals it is consistent with the approach taken by the EAT as in the case of Azmi vs. Kirklees Metropolitan Borough Council (April 07), where by the EAT ruled that there had been no unlawfull discrimination on grounds of her religion or belief, as it had been proven that wearing a full face veil whilst teaching reduced the children's engagement in learning and therefore prevented the employee from doing their job effectively.

 

What does this mean for you...? Make sure that you have clearly set out your dress code / uniform policy and stick to it! The above cases do not mean that a ban on clothing associated with a particular religion or culture would automatically be lawfull. However, it may be appropriate to ban certain types of dress when this may be related to security, health and safety or when it prevents a worker from doing their job effectively.

 

£550,000 AWARDED - DISABILITY DISCRIMINATION

Selection criteria in a redundancy / unfair dismissal:

A recent case demonstrated the need to take Disability Discrimination Act (DDA) seriously and ensure that any selection criteria is not discrminatory. In a case against Lambeth Service Team, a London park worker who was made redundant was awarded compensation of £550,000 after the Employment Tribunal ruled he had been the victim of disability discrimination.

 

The Tribunal found that the system used for selecting employees for redundancy was weighted against disabled workers as it focused on the numbers of days absence, and whether or not staff drove a car.

 

It was therefore found that the 34 year old who had learning difficulties was unfairly dismissed. Compensation was awarded based on loss of earnings based on the number of years left until retirement.

 

What does this mean for you...? This case demonstrated the at the DDA must be considered and taken seriously in all situations and that selection crietria must be objective and non-discriminative.

 

 

OTHER NEWS

 

Increase in Application to Employment Tribunals

The ACAS Annual Report for 2007/8 has confirmed that the total number of applications to Employment Tribunals saw a further increase rising from 180,420 in 2006/7 to 227,782 in 2007/8.  The majority of all claims are still for unafir dismissal, accounting for 43,231 claims.

 

Due to the current economic climate we are anticipating a significant increase in claims and are already seeing a concerning trend towards employees making applications to Employment Tribuals - even when claims are spurious.

 

What does this mean for you...? This is a clear reminder for the need to follow correct procedures. All Managers who have responsibility for staff should receive training.

Remember: you cannot prevent an employee from making a claim - even if their claim is without foundation. However, following the correct procedure (and dealing with issues sooner rather than later) will minimise risks (and the likelihood of someone making a claim) and will mean you can robustly defend any claim. This will ultimately limit liability and exposure.

 

 

CONCLUSION

 

We hope our update has given you an overview of the key changes and what to expect for 2009.

 

If you would like any further infomation about any of the matters raised in this update, please do not hesitate to contact us.