1. Esther Martin Anna Birtwistle Susanne Foster CM Murray LLP
Employment Law – What Every Employer Needs To Know
Esther Martin
Anna Birtwistle
Susanne Foster
CM Murray LLP
18 November 2010
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

2. The Agency Workers Regulations 2010 _________________________
The Equality Act 2010
Esther Martin
CM Murray LLP
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

3. THE AGENCY WORKERS REGULATIONS 2010
European Legislation: Temporary Agency Workers Directive 2008/104/EC
Due to come into force 1 October 2011
Coalition has confirmed no further amendments will be made
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

4. Who Will The Regulations Apply To?
“workers with a contract of employment or employment relationship with a temporary work agency who are assigned to user undertakings to work temporarily under their supervision and direction”
Article 1.1 – Temporary Agency Workers Directive
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

5. Twelve Week Qualifying Period
“To complete the qualifying period the agency worker must work in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments.”
Regulation 7(2)
Continuity can be broken or suspended in certain specific circumstances
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

6. Agency Worker Rights An agency worker (A) is entitled to:
“… the same basic working and employment conditions as A would have been entitled to for doing the same job had A been recruited by the hirer –
Other than by using the services of a temporary work agency; and
At the time the qualifying period commenced.”
Regulation 5(1)
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

7. Regulations only apply to
“basic working and employment conditions”
Pay
Duration of working time
Length of night work
Rest periods
Rest breaks
Annual leave
Comparator required
Terms must be ‘ordinarily included’
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

8. Pregnant Women And Nursing Mothers
Subject to the 12 week qualifying period
Agency workers are entitled to:
reasonable time off during working hours to attend ante-natal appointments
payment from employment agency during her absence
She may lodge a tribunal claim if a request is unreasonably refused
Duty to make reasonable adjustments on hirers
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

9. Anti-Avoidance Provisions
The Regulations contain a non-exhaustive list of factors to be taken into account whether a structure of assignments is intended to deprive the agency worker of rights.
Regulation 9(5)
Additional award of up to £5,000 where a hirer and/or agency are found to have breached the anti-avoidance provisions.
Regulation 18(14)
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

10. Access To Employment, Facilities And Training
No twelve-week qualifying period
Failure to provide access to on-site facilities can be justified on objective grounds
Regulation 12(2)
No further provisions required in relation to access to training.
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

11. Suggestions For Agencies And Hirers
Useful questions:
Is the worker a temp from an agency?
Have they ever worked for you (or a connected business) previously?
Are they likely to qualify for equal treatment?
What should they be paid and what working time arrangements should be in place?
What else will have to be offered?
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

12. EQUALITY ACT 2010 Protected Characteristics: Disability
Religion or philosophical belief
Race
Age
Sexual orientation
Sex
Marriage and civil partnerships
Gender reassignment
Pregnancy and maternity
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

13. Direct Discrimination
“A person (A) discriminations against another (B)
if, because of a protected characteristic, A treats B
less favourably than A treats or would treat
others.”
s13(1)
Perception
Association
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

14. Indirect Discrimination
“A person (A) discriminates against another (B) if A
applies a provision, criterion or practice which is
discriminatory in relation to a relevant protected
characteristic of B’s.”
s19(1)
Includes disability / gender reassignment
PCP ‘puts, or would put … at a particular disadvantage’ s19(2)
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

15. Harassment
“An employer (A) must not, in relation to employment by A, harass a person (B) –
(a) who is an employee of A’s;
(b) who has applied to A for employment.”
s40
Harassment must be related to a protected characteristic, but not necessarily that of the victim
Third party harassment
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

16. Victimisation
“A person (A) victimises another person (B) if A subjects B to a detriment because:
(a) B does a protected act, or
(b) A believes that B has done, or may do, a protected act.”
s27
No comparator required
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

17. Disability Discrimination
Discrimination arising from a disability
A person (A) discriminates against a disabled person (B) if –
A treats B unfavourably because of something arising in consequence of B’s disability, and
A cannot show that the treatment is a proportionate means of achieving a legitimate aim
Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
s15
No comparator required
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

18. Pre-Employment Health Questionnaires
A potential employer must not ask about the
health of an applicant before offering work
s60
May only support a claim by an individual
Conditional offer can still be made
Exceptions
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

19. Pay Secrecy Clauses
Clauses designed to prohibit or restrict discussions about pay are unenforceable…
…if the discussion is with a view to finding out whether there is a connection between pay and their having (or not having) a protected characteristic.
s77
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

20. Exceptions – When Discrimination May Be Lawful
Occupational Requirement
Schedule 9
General Positive Action
S158
Disability / Age
s13(3)/
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

21. Sections Not Yet In Force
Combined Discrimination
s14
Gender Pay Gap Information
s78
Positive Action (recruitment and promotion)
s159
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

22. Practical Considerations For Employers
Continue to ensure that all appropriate personnel are aware of the relevant changes in discrimination law regarding employees, potential employees and ex-employees
Audit employee documentation where necessary (e.g. contracts, staff handbooks)
Review policies (e.g. diversity, equal opportunities, anti-bullying and harassment)
Ensure effective complaints procedures are in place
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

23. Anna Birtwistle CM Murray LLP
Default Retirement Age _________________________ Family Friendly Rights _________________________ The Bribery Act
Anna Birtwistle
CM Murray LLP
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

24. Default Retirement Age
WHAT IS CHANGING?
Employers will no longer be able to
use the DRA of 65 to maintain a
compulsory retirement policy for their
workforce:
Up to 6 April 2011: Transitional arrangements
From 6 April 2011: No new notifications of retirement on basis of DRA to be issued
1 October 2011: DRA and statutory “duty to consider” retirement procedures will be
abolished
WHAT ISN’T CHANGING?
Objective justification: Employers may still operate a compulsory retirement age except that from April 2011 they will need to objectively justify it (as they have up to now for retirement ages below 65)
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

25. Avoiding an Unfair Dismissal Claim
From April 2011 no new notifications of retirement on basis of the DRA to be given.
What now?
Employers wishing to have a compulsory retirement age must objectively justify it by reference to such policy being a proportionate means of achieving a legitimate aim; or
Follow a fair procedures and rely on one of the 5 other fair reasons for dismissal:
Conduct
Capability/qualifications
Redundancy
Statutory restriction (e.g. breach of immigration rules, criminal record)
“Some Other Substantial Reason”: a catch all
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

26. Next Steps/Issues to Consider
Whether to continue to have a retirement age
Amending retirement policies/staff handbooks
Ensuring adequate performance procedures in place
Consider changes needed in relation to company pension schemes or health, disability or death in service benefits
Training requirements
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

27. Key Changes to Family Friendly Rights
Paternity Leave
Extension to the Right to Request Flexible Working
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

28. Current Regime Ordinary Paternity Leave: Maternity leave
Since 2003 eligible fathers have been entitled to up to two consecutive weeks’ paternity leave and pay
Statutory Paternity Pay: lesser of the “prescribed rate” and 90% of the employee’s weekly earnings
Additional Paternity Leave
Maternity leave
OML: 26 weeks
AML: 26 weeks
Statutory Maternity Pay for 39 weeks:
1st six weeks paid at “earnings related rate” (90% of her average earnings)
Remaining 33 weeks paid at “prescribed rate” (from April 2010: £124.88)
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

29. Additional Paternity Leave Regulations 2010
Applies to babies born/adopted on or after 3 April 2011
Mother must have returned to work without using up all of her OML/AML
The earliest APL can be taken is 20 weeks from the date of birth/date of adoption
Minimum 2 weeks up to a maximum of 26 weeks
Eligibility requirements
Additional Statutory Paternity Pay
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

30. How this works in practice…
30 weeks
22 weeks
9 weeks
Total leave: weeks
Total statutory pay: weeks
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

31. Practicalities Eligibility requirements Timing and notice
Evidence of entitlement
Effect on contract of employment
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

32. Flexible Working
2003: Right to request introduced and applied to carers of children under 6
2009: Right was extended to apply to children up to and including the age 16 (18 in the case of disabled children)
What’s changing?
From April 2011 this right will be extended to parents of children up to and including the age of 18
What next?
Coalition government has stated intention to extend the right to request to all employees regardless of whether they have children
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

33. The Right to Request
Right to request: It does NOT create a right to work flexibly!
Typical requests
Who can make a request
Statutory request procedure
Grounds for refusing a request
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

34. The Bribery Act Comes into force April 2011
Will apply to private sector transactions
Government guidance to be published early 2011 (draft available now)
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

35. Offences General Offences: Paying bribes (“Active bribery”)
Receiving bribes (“Passive bribery”)
Specific Offences:
Bribery of foreign public officials
Failure of commercial organisation to prevent bribery: the “Corporate offence”
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

36. The Corporate Offence Strict liability offence
Company/partnership will commit bribery if:
An “associated person” bribes another person for that organisation’s benefit.
“Associated person”: employees, agents, subsidiaries, intermediaries, joint venture partners
Corporate hospitality
Defence: “Adequate procedures”
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

37. Adequate Procedures Defence
Current draft guidance, six principles:
Risk Assessment
Top level commitment
Due diligence
Clear, Practical and Accessible Policies and Procedures
Effective implementation
Monitoring and review
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

38. Penalties/Other Consequences Of Non-Compliance
Criminal sanctions
Fine
Debarred from tendering for public-sector contracts
Adverse publicity
Fines from sector regulators (e.g. FSA)
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

39. Practical Tips
Policies – anti-bribery, corporate hospitality and gifts
Whistleblowing procedures to report bribery
Training to relevant staff
Assessment of risk
Investigation procedures and disciplinary sanctions
Appointing individual responsible for bribery issues
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

40. The CM Murray LLP
Team
Clare Murray
Managing Partner
Bettina Bender
Partner
Charis Damiano
Consultant
Susanne Foster
Senior Associate
Esther Martin
Associate
Anna Birtwistle
Associate
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

41. CM Murray LLP 37th Floor One Canada Square Canary Wharf London E14 5AA
+44 (0)
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law
CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law