05 Mar 2007

Employment and Personnel Advice Update

EPAS stands for Employment and Personnel Advisory Services. We provide a complete employment law and HR support service. Whilst our qualified employment law and HR consultancy staff are experienced in dealing with employment disputes (both in and outside the Employment Tribunal), we firmly believe that prevention is better than cure. By staying fully informed and taking pre-emptive measures, Tribunals can be avoided and our aim is to help our clients do just that.
As employers/managers, you are making employment law decisions everyday, and as ignorance of the law is no defence, this newsletter, delivered quarterly, aims to help you stay one step ahead of the ever changing employment law agenda.

Work and Families Act 2006

From 1 April 2007, new rights apply to women whose babies are due or adopted on or after 1st April 2007. They key provision are:


• Statutory Maternity Pay (SMP), Maternity Allowance and Statutory Adoption Pay (SAP) is payable for nine months (39 weeks)This is set to increase 12 months “before the end of Parliament”.

• The length of service requirement for Additional Maternity Leave (AML) is removed so that any employee entitled to Ordinary Maternity Leave will be automatically entitled to AML and be able to take up to one year off work, regardless of length of service;

• new rights for employers and employees to “keep in touch” during maternity or adoption leave. Women will be able to go into work for up to 10 “Keeping in Touch” days without losing their SMP for that week.

• employees need to give 8 weeks of their intention to return to work; and

• There is no longer a small business exemption regarding returning to work after maternity leave.

• The right to request flexible working. Is extended beyond parents of young and disabled children to include those caring for an adult partner or relative


And still to come :

Future changes in 2008 will bring about additional Paternity Leave” (APL) and additional Paternity Pay (APP). Eligible fathers will be able to take up to 26 weeks APL before their child’s first birthday.

The Work and Families Act is likely to have a major impact on businesses, and employers are therefore advised to seek early advice as to their obligations regarding these changes.
Increased holiday on the horizon?
The Department for Trade and Industry has announced a second public consultation on plans to increase the statutory minimum holiday entitlement to include bank holidays. Under the proposed changes, the entitlement would increase from the current 20 days per year (in the case of a worker who works 5 days a week) to 24 days on 1 October 2007, with a further increase to 28 days to follow on 1 October 2008. The Government estimates these changes will affect 5.9 million workers, and cost businesses £4 billion per year.
An initial consultation took place between June and September 2006, in which the Government declared an intention to increase the entitlement in two stages and sought views on when to introduce the second stage. The option of October 2008 – which has now been adopted – was the earliest on offer. The second consultation will close on 13 April 2007.
SMOKING BAN COMES INTO FORCE IN JULY 2007
Workplaces in England will become smoke-free from 1st July 2007 and in Wales from 2nd April 2007, under the provisions of the Health Act 2006. Virtually all workplaces, including offices, factories, shops, pubs, bars, restaurants, membership clubs, public transport and work vehicles that could be used by more than one person will become smoke-free environments. It will also be an offence for those employers who control or manage smoke-free premises to fail to stop people smoking on them. Employers will also be under a duty to ensure that statutorily compliant no-smoking signs are displayed at all entrances. Employers will need to introduce appropriate no-smoking procedures and disciplinary policies and communicate them to their workforces before the new rules come into force. Indoor smoking rooms, still common in some workplaces, will be unlawful and employees and others wishing to smoke will have to go outside or into a “compliant shelter”.


Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP) and Statutory Adoption Pay (SAP) will increase from £108.85 to £112.75 per week from1 April 07
Flat rate of Statutory Sick Pay (SSP) will increase from £70.05 to £72.55 per week from 6 April 2007.














AGENCY WORKERS:
In James v Greenwich Council, the EAT upheld the finding of an employment tribunal that the claimant, whose services were supplied to the respondent by an employment agency, was not working under an implied contract of employment because there was a lack of mutuality of obligations. In doing so, the EAT offered guidance to tribunals on when a contract of employment should be implied which, if followed, is likely to severely reduce the scope for an agency worker to claim that he or she is an employee of the end-user of his or her services.
Parallel Contracts
The EAT, in Cairns v Visteon Ltd, has handed down a judgment dealing with whether a worker can be employed both by an employment agency and by the end-user to which the agency provides the worker’s services. It held that, on the facts of the case, an employment tribunal had been correct in determining that no contract existed between the worker and the end-user.
The case concerned C, who worked for V Ltd from 1998 until 2005. However, from 2001 C was employed under a contract of service by an agency, MSX, which provided her services to V Ltd. Following an issue over timesheets, V Ltd informed MSX that it no longer required C’s services, and with MSX unable to find her alternative work, C’s employment was terminated. Having received payment in lieu of notice and a redundancy payment from MSX, C brought a claim of unfair dismissal which was initially against MSX but was later amended to name V Ltd as respondent. An employment tribunal found that, since there was already a contract in existence between C and MSX, the test of necessity required for it to imply a contract of employment between C and V Ltd was not made out. C appealed but the appeal was dismissed.
Employers not usually required to extend sick pay for disabled employees
A difficult question under the disability discrimination legislation has been how employers should treat disability-related sickness when it comes to payments of occupational sick pay, and decisions to dismiss on grounds of capability. This point has been considered in the case of O’Hanlon v Commissioners of Her Majesty’s Revenue and Customs. This case concerned how much if any additional sick pay should be awarded to employees suffering disability related sickness absences. Under the employer’s sick pay rules, occupational sick pay was payable for 6 months at full pay and a further 6 months at half pay, within any period of 4 years. Ms O’Hanlon argued that a reasonable adjustment for her disability would be to exempt her from these limits on payment, and continue to pay her sick pay, to the extent that her sickness absence was the result of her disabilities.
The Employment Appeal Tribunal (EAT) concluded that in the vast majority of cases, it would not be reasonable to require an employer to continue paying full pay to a disabled employee on sick leave, once the company sick pay has run out. If the tribunal were to decide whether, and if so for how long, an employer should continue to pay sick pay over and above the contractual requirements, this would amount to usurping managements’ functions in determining these questions. Only in exceptional cases would it be required as a reasonable adjustment that employers should pay what the EAT suggested amounted to ‘charity’ payments, as distinct from steps to encourage or facilitate a return to work – the latter being the principal purpose of reasonable adjustments.
Inadequate grievance handling in discrimination claim
The Employment Tribunal has upheld an employee's claims of discrimination on grounds of sexual orientation and constructive dismissal, indicating that employers that fail to take adequate steps when faced with grievances about homophobia are likely to be found to have discriminated and to have breached the contract of employment.
In Martin v Parkam Foods Limited (2006), the Employment Tribunal took a dim view of the employer's failure to address homophobia in the workplace and found that Mr Martin had been directly discriminated against and to have been unfairly constructively dismissed. One of the main issues was failing to deal with anti-homosexual graffiti. The company had anti-discrimination policies and procedures and eventually put notices up threatening disciplinary action. The Tribunal found that the company had not followed its own procedures, had not used its ‘best endeavours' to address the discrimination at the root of the problem and had failed to apologise to Mr Martin for the distress and embarrassment caused.
This Tribunal judgment indicates the level of investigation and the kind of approach that an employer would be advised to take when faced with complaints of homophobia. It will not be enough to have policies in place and to carry out an investigation and it may also be necessary to challenge employees' attitudes towards homophobia and educate staff on this area of discrimination. The employer's defence that it employed other gay and lesbian employees and therefore did not discriminate against the Mr Martin carried no weight with the Tribunal, sending a message that evidence of diversity of the employer's workforce may in some cases be of little assistance where the employer is seeking to argue that discrimination is unlikely to have occurred.
Our advice for employers is to ensure not only that they have comprehensive policies and procedures in place, dealing with discrimination and harassment issues, but also that such policies have been properly implemented, otherwise there is a risk that employers will be held liable for discriminatory acts carried out by employees, even if carried out without the employers consent or knowledge.
Things to think about with EPAS
The amount of law you have to put up with; the decisions you have to make can be a constant headache. So to ease that pain, why not consider:
- Regular employment law support
- Outsourcing your HR
- Mentoring support for your HR managers
Or just having a one off, comprehensive audit of your employment law and HR policies and procedures to find out whether you are along the right track or perhaps need some help to get there.

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