Tpp HR Employment Law update march 2015
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Transcript of Tpp HR Employment Law update march 2015
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
www.juliefewtrell.com
Providing:
• Employee relations advice
• Training on HR matters: e.g. Performance
Management, Appraisal and Supervision,
Recruitment and Selection, Using HR
Policies