HR Breakfast SeminarEmployment Law Update

Julie Fewtrell, HR Consultant

Tuesday 24 March 2015

Topics

General ElectionShared Parental LeaveHoliday PayObesity as a disabilityFit for Work service

General Election

No party has yet published its manifestoSome indications of proposed changes

were set out at party conferences in autumn 2014

Further announcements will be made in the coming weeks

The following indications come from a summary published by Birketts in February

Conservatives

Significant changes to existing rules on industrial action, such as:

- Minimum voting threshold for lawful ballot in health, transport, fire and education

- Time limit after a ballot within which strike must take place

- Minimum of 14 days’ notice of industrial action- New rules to restrict picketing

- Remove existing ban on use of agency workers to cover striking employees

Introduction of new Bill of Rights to replace Human Rights Act

Preventing use of exclusivity clauses in zero-hours contracts

Capping enhanced redundancy payments paid to public sector employees at £95k

Labour

Increase NMW to £8 by 2020, improving enforcement measures, new tax break to employers who pay living wage

Promoting equal pay Increasing statutory paternity leave to four

weeks and pay to £260 per week Increasing free childcare to 25 hours for 3 and 4

year olds Improving flexible working for family carers

Restricting use of zero hours contracts Reviewing tribunal fees system – probably better

system for means testing Taking action to prevent exploitation of migrant

workers Changing law on employment agencies,

including ban on overseas-only recruitment Reinstating third party harassment provisions in

Equality Act

Liberal Democrats

Increase NMW for apprentices Consult on introduction of living wage to be paid

by all central government departments and executive agencies by April 2016

Recruitment in pubic sector to be anonymous, to reduce possibility of discrimination

Disclosure of equal pay information compulsory for companies employing over 250 people

Providing an additional 4 weeks paternity leave

UKIP

Campaigning for UK’s exit from European Union and withdrawing from jurisdiction of European Court of Human Rights

Would lead to radical changes to employment law

Shared Parental Leave

For parents of babies due on or after 5 April.

Enables both parents, where eligible, to share the care of the baby in its first year.

NB Relates to mother and main adopter. For ease, I will refer to mother.

The Basics

1. Mother must end their maternity leave.

2. SPL must be taken between baby’s birth and first birthday.

3. Mother must take 2 weeks’ compulsory maternity leave.

4. Remaining 50 weeks may be shared if both eligible.

5. Parents can take leave at the same time or alternate the time off.

6. SPL can be taken in up to 3 blocks (more if employer agrees).

7. A block must be a minimum of one week.

The Process

Mother must formally end, in writing, her maternity leave – curtailment

Initial Notice of Entitlement and Intention to take SPL must be provided, in writing, at least 8 weeks before start date of first period of SPL

Notice to Take a Period of SPL is a firm request to take SPL

Employees can submit up to 3 NoticesEach Notice can contain one or more

periods of leaveWhere a Notice contains one period of

leave (continuous), employers must agree to it

Where a notice contains more than one period of leave (discontinuous) employer can refuse

Eligibility - leave

To take leave, the employee must:Be the mother, father, or main adopter, or partner of mother or main adopterHave main responsibility for care of child, or share this with other parentHave 26 weeks’ continuous service at end of 15th week before EWCRemain in employment until week before any SPL taken

In addition…..

The other parent must meet the employment and earnings tests as follows:

Have worked in an employed or self-employed capacity in at least 26 of 66 weeks immediately before EWC, andEarned an average of at least £30 a week based on any of those 13 weeks

NB

One parent may not qualify for the leave but may meet the employment and earnings test – which means that if the other parent is eligible for the leave, they can take the full amount of SPL.

Eligibility - pay

To receive pay, the employee must:Have average weekly earnings equal to or above Lower Earnings Limit over 8-week period

Statutory pay is paid at the same basic rate as statutory maternity pay.

The amount is reduced by however much the mother has taken, ie overall amount of 39 weeks.

Enhanced pay?Government has been very clear that there is no requirement to enhance ShPP, even if you enhance maternity/adoption/paternity payFor a sex discrimination claim – who is the comparator? Another employee on SPL? A woman on maternity leave?

Process in practice

Where the employer refuses a request, there is a process to follow, with timescales

There are situations where requests can be withdrawn and one of the three Notices is reinstated

Requests can be varied once given, but they usually count as one of the three Notices

Take care to ensure that line managers know how to deal with applications and timescales

Create a new policy and ensure line managers are briefed and staff are aware of their new rights (ACAS has useful guidance and a policy, forms, letters etc)

Employees on SPL continue to hold all the same rights as mothers on maternity leave, including right to return, redundancy-related rights, SPLIT days, holiday accrual etc

Other related points

Additional Paternity Leave abolishedReplaced by this new, more flexible,

entitlement to SPLExisting maternity and adoption leave

remain in placeExisting two weeks’ paternity leave

remains

New rights for adoption pay and leave

Leave becomes a right at day one of service

Pay mirrors maternity pay, ie 90% of normal pay for weeks 1-6, then 33 weeks at statutory weekly rate

Holiday Pay

If this is likely to effect your organisation, you are advised to take separate legal advice due to the uncertainty around this issue.

EAT decision, Nov 2014, Bear Scotland Ltd v Fulton & Baxter, plus other cases

Issue:

Whether overtime earnings should be taken into account when calculating workers’ holiday pay, in order to comply with the Working Time Directive.

Background:Court of Justice of EU – under WTD, pay during annual leave should reflect “normal remuneration”.WTR and Employment Rights Act exclude overtime for holiday pay calculations if worker has “normal working hours”, unless overtime is compulsory and guaranteed.

This means that non-guaranteed overtime (ie worker must work if offered but employer does not have to offer) should not be taken into account when calculating holiday pay if there are normal working hours.

EAT decision

Holiday pay for worker’s annual leave entitlement of 20 days, under WTD, should be calculated on typical average day, including non-guaranteed overtime.

EAT distinguished 20 days provided by WTD from extra 8 days provided by WTR and any extra contractual entitlement.

EAT also clarified that those 20 days would be the first to be agreed upon during the course of a leave year.

For simplicity, some employers may decide to calculate all holiday pay in the same way.

Cases did not decide position on voluntary overtime (where worker can refuse).

Likely that reasoning in these cases will be broad enough to cover regular voluntary overtime, and bonuses/allowances, where these can be viewed as part of workers’ “normal remuneration”.

Pension implications? Depends on pension plan and definitions.

Back claims?

Claims in respect of deductions from wages must be brought within 3 months of end of that series.

EAT decided any interval longer than 3 months between underpayments, in series of deductions from wages, will break the series.

However, this is for claims brought at an ET. Does not cover breach of contract claims in civil courts (6 years).

What should you do?

Consider whether this decision effects your organisation

Decide your strategy for dealing with potential back claims - enter into a negotiated settlement with employees or unions to deal with historic claims in order to have certainty?

Decide how you will deal with this in the future Remember that there may be pension

implications

Obesity as a disability

Kaltoft v Municipality of Billund (Denmark)Case does not say that being obese is a disabilityOrganisations need to take matters on a case-by-case basis and assess each employee individually

Case details

Kaltoft worked at a children’s nursery for 15yrs. Dismissed on grounds of redundancy. He argued his selection was due to his weight. He satisfied WHO’s definition of obesity.

Danish court asked CJEU to specify whether:

1)EU law prohibits discrimination on grounds of obesity

2)obesity constitutes a disability

Outcome

No EU treaty prohibited discrimination on grounds of obesity as such.

However, definition of disability includes a long term physical, mental or psychological impairment which may hinder an individual’s ‘full and effective participation in professional life’ on an equal basis with others.

Obesity may amount to disability if it limits a person’s participation at work.

If the only reason an employee can participate fully at work is because of adaptations made by employer, employee could be regarded as disabled.

Implications

Decision is binding on all EU member states. Controversial because some regard obesity as a

life choice rather than an illness. Advocate General very clear that it does not

matter what caused obesity. Crucial issue is whether or not employee is suffering from a long term impairment.

What does it mean in practice?

Remember - an obese person is not necessarily disabled.

But, if an underlying medical condition is contributing to their weight, it will be easier for the employee to show they are disabled.

If size causes diabetes, mobility problems, joint pain etc, likely to be disabled.

If they are disabled, employers need to look at reasonable adjustments in same way as for other disabled employees.

Sensitive area in terms of having conversations with employees who may be affected.

Look at health and well-being initiatives. Consider whether policies need to be updated. Ensure line managers are aware.

Fit for Work Service

Government-commissioned report in 2011 on Health at Work: Review of Sickness Absence. Themes:

1.After 4 weeks’ absence, many employees slip into long-term absence.

2.Early interventions are highly effective in reversing this trend.

3.Employers (especially small ones) are in need of independent, bespoke advice.

Recommendations

State-funded independent assessment and advisory service to support return to work

Revised Fit Note guidance Tax relief for employers on medical treatments

or vocational rehabilitation Retention of tax relief on EAPs Abolition of percentage threshold scheme Abolition of SSP record-keeping requirements New job brokerage service to help long term sick

employees find work

Focus here on the assessment and advisory service, to be known as the Fit for Work service.

To be funded by the savings from abolishing the percentage threshold scheme.

How it will work

1. GP referral after 4 weeks’ absence

2. Initial telephone assessment

3. Further telephone assessment if needed

4. Face-to-face assessment

5. Return to work plan sent to employee

6. Return to work plan sent to GP and/or employer (providing employee consents)

7. Process ends when employee returns to work (including on a phased return basis), or Fit for Work can offer no further assistance, or return to work has not proved possible after three months.

NB Whilst under Fit for Work, Fit for Work may assume control over issuing Fit Notes.

Three important caveats

1. Participation is voluntary for all concerned.

2. Four weeks’ absence must be consecutive.

3. Not every employee will be eligible. Focus will be on those who can realistically be helped after a three month period.

What should you do?

It has been effective since December 2014, so ensure relevant managers are aware.

Consider how this will interact with existing occupational health arrangements

Revise policies and procedures to accommodate this, as appropriate.

Communicate with staff.

Julie Fewtrell

HR Consultant

julie@juliefewtrell.com

www.juliefewtrell.com

Providing:

• Employee relations advice

• Training on HR matters: e.g. Performance

Management, Appraisal and Supervision,

Recruitment and Selection, Using HR

Policies

• 1-to-1 coaching and team days – using

Myers Briggs where appropriate

• Facilitation of staff and trustee away days

• Governance advice: developing board

appraisal, facilitating strategy days