1 AGM: November 2009 Employment Law Update By Andrew Monroe Employment Advice Service Manager ca Plus

2 Are You Up To Date? Employment legislation is constantly being introduced Since 2004 only happens twice a year Generally; 6 th April and 1 st October New Health and Safety legislation follows suit

3 Annual Leave Increase Since 1 st April Statutory minimum annual leave increased to 5.6 weeks (e.g. 28 days for nominal 5 day/week working). Can include any bank holidays or concessionary days that are provided. If current total annual leave is already 5.6 weeks (28 days) or more, then there is no requirement to increase further. The Statutory Minimum leave can be reduced pro-rata for part-time or term-time employees. Beware of any increase that occurs midway through your holiday year, it will have to be calculated pro-rata.

4 Family Friendly Policies Since 6 th April 2009 The right to request flexible working was extended to all parents with a child up to and including the age of 16 years, or up to 18 years for a disabled child. (This is in addition to the existing right [April 2007] for carers of adults over the age of 18 years) The expected increase in statutory maternity pay to a full 52 weeks has been delayed until at least 2011/12 due to the “economic climate”. (Similarly the shared maternity/paternity leave proposals).

5 Discipline and Grievance Since 6 th April 2009 The Employment Act 2008 has repealed (wholesale) the 2004 Statutory Dismissal and Disciplinary Procedures. Main changes are: The statutory 3-step procedures and automatic unfair dismissal for lapses of that procedure will go Replaced by a New ACAS Code of Practice with uplifts or reductions of up to 25% for non- compliance (of the Code) by either party Re-establishes the prior to 2004 position (Polkey case) “i.e. would it have made any difference ?”

6 What Else Changing? Quite a bit (in a subtle, not obvious way…. more later) No longer a MANDATORY requirement for employers to follow the 3-Step disciplinary procedures Must investigate fully before commencing any disciplinary action Employers MUST still set out allegations in writing, hold a meeting and a give right of appeal Similarly with Grievances, no longer a MANDATORY 3- step procedure BUT employee MUST submit in writing, attend a meeting and be given a right of appeal.

7 Tribunal Powers If there is an unreasonable breach of the Code and the case is successful, Tribunals have the power to uplift or reduce compensation by up to 25% (previously was up to 50%)

8 More … Grievances The Code indicates that “where appropriate” the grievance should be “dealt with informally”. HENCE: rather than immediately start a formal disciplinary or grievance process, informal mediation should as a minimum be considered and then tried where appropriate The Code indicates that if during a meeting it becomes obvious that further investigation is necessary, the meeting should be adjourned to allow this to take place. HENCE: employers policies might need amending to reflect this

9 New Requirements The Code indicates, in overlapping discipline and grievance situations, if a grievance is raised the disciplinary should be suspended whilst the grievance is investigated. The Code indicates, that it does not apply to “collective grievances”. HENCE: employers should consider how they would deal with such a situation i.e. revise your own policy?

10 Exclusions The Code specifically indicates that it DOES NOT apply to dismissals due to the ending/non-renewal of a fixed term contract or dismissals due to redundancy. Employer still have to deal with these fairly but no longer the formal 3-Step process. ACAS have issued new guidance for redundancy and will also do so for the ending of fixed term contracts (but they haven't done so yet !!!)

11 Forthcoming October 2009 Statutory Awards As of 1 st October 2009: maximum cap on a “week’s pay” for statutory calculations increases from £330 to £350. (no further increase until February 2011) National Minimum Wage rises, 1 st October 2009 i) Adult rate > 22 years of age£5.80/hour ii) Development rate >18-21£4.83/hour iii) Young persons >16 -17£3.57/hour iv) Apprentices£95/week min Next year the adult age range changes. From October 2010, adult rate applies to > 21 years

12 Recent Case Law: Entitlement to statutory annual leave whilst on long term sick leave, the Stringer case. The ECJ has indicated that employees are entitled to a statutory 4 weeks (as per the original WTR) annual leave (but only if they ask for it ??). Carry over situation not decided Entitlement to extra annual leave if this coincides with a period of sick leave, up to the statutory minimum. Discrimination by “association”, the Coleman case Is a default retirement age of 65 years compatible with Age Discrimination Legislation? The Heyday case has gone to the ECJ and the House of Lords. “Yes it is” hence it’s a fair and proportionate means to achieve a legitimate aim (for the time being).

13 Forthcoming Legislation New Equality Bill, to consolidate all existing discrimination law. Expected to be placed before Parliament in late Temporary Workers Directive. UK Government has 3 years to bring in legislation to protect “Agency” workers. This will entitle agency workers to the same basic working terms and conditions as those of the end user. This is expected to be rushed through in 2010 One of the deals to get the above Directive agreed was for the UK to retain its working week “opt-out” from the 48 hour week, in the Working Time Directive. However there will be an absolute upper limit of 60 hours/week. Expected same time in Safeguarding Vulnerable Groups Act 2006, the creation of the new Independent Safeguarding Authority and their Vetting and Barring scheme. Some aspects of this (duty to refer) already in force as from 12 th October 2009.

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