The latest news from TeamHR

The latest HR and employment news from TeamHR. Breaking news stories are added every week to help keep you and your business up to date with the latest breaking news in employment, employment law, personnel management and HR.

More changes likely to maternity benefits in 2008

In February 2007, the government, in the form of the Department for Business, Enterprise and Regulatory Reform (BERR), were taken to court by the Equal Opportunities Commission. The case concerned alleged deficiencies in the Sex Discrimination Act. The key point for all employers to note is that amongst the issues raised was the inconsistency between the entitlement to contractual non-pay benefits during ordinary and additional maternity leave.

As many employers will know, at present employers are not obliged to continue to provide such contractual benefits as company cars, childcare vouchers and company holiday after the 26 week ordinary maternity leave period.

The only exception to this is the necessity to continue to make employer pension contributions throughout maternity leave - a maximum of 52 weeks, where the employer makes such a contribution. However, after losing the case, the government undertook a judicial review intends to change the relevant maternity and parental leave legislation.

It is likely that this change will come into effect during 2008, probably 1 April 2008 so employers should be planning now for the likely additional costs and the necessary process changes that will arise from continuing to provide contractual benefits such as company cars, childcare vouchers and company holiday throughout the 52 weeks of maternity leave.

A timely reminder about the new process for retirement that came into force on 1st October 2006.

One year on, remember if you don't follow the statutory procedure for age retirement you are at risk of an automatic finding of unfair dismissal, and potentially age discrimination, should someone choose to purse a claim at tribunal, to make it worse they can claim unfair dismissal AND discrimination on the grounds of age if you get it wrong.

Do you have any members of staff who fall into one of the following groups?If YES Other points to note
They reached their 65th birthday BEFORE 1 October 2006 and they are still work for you.Please contact your HR advisor without delay. If you do not have an HR advisor you are very welcome to contact us!You will almost certainly have to follow the statutory dismissal procedure should you wish to terminate their employment. Talk to your HR advisor today!
They have reached their 65th birthday since 1 October 2006 and are still employed by you.Contact your HR advisor and let them know how long you agreed to continue their employment for - was it until a particular date OR indefinite (open-ended)? If you do not have an HR advisor you are very welcome to contact us! EmailYou are likely to have to follow a statutory procedure should you wish to terminate their employment. Talk to your HR advisor today!
They will be 65 before 16th March 2008.You need to get a letter to them without any further delay. Contact your HR advisor NOW! If you do not have an HR advisor you are very welcome to us at TeamHR! EmailYou're a bit behind on the statutory retirement process; we can probably sort things out if you let us know the dates as soon as possible! There is a statutory right to request to be retained beyond aged 65 but no right that says you must agree to such a request.. but following the right process is key to avoid an automatically unfair dismissal outcome. You could be at risk of an age discrimination claim.
They will be 65 between 17 March 2008 and 16 September 2008Contact your HR advisor this week, you need to get a standard letter to them before the end of September 2007! If you do not have an HR advisor you are very welcome to us at TeamHR! EmailYou're just in time for the statutory retirement process, there is a statutory right to request to be retained beyond aged 65 but no right that says you must agree to such a request.. but following the right process is key to avoid an automatically unfair dismissal outcome. You could be at risk of an age discrimination claim.
They will be 65 between 17 September 2008 and 16 March 2009Contact your HR advisor no later than the end of February 2008; you'll need to get a fairly standard letter to them before the end of February 2008! If you do not have an HR advisor you are very welcome to us at TeamHR! EmailYou're in good time for the statutory retirement process, There is a statutory right to request to be retained beyond aged 65 but no right that says you must agree to such a request.. but following the right process is key to avoid an automatically unfair dismissal outcome. You could be at risk of an age discrimination claim.

SUGGESTED POLICY

The normal age of retirement at our company for all staff is 65 years. At least 6 months, and not more than 12 months, prior to a member of staff's 65th birthday we will write to them informing them of the date on which we plan to retire the staff member (their 65th birthday). At the same time they will be informed of:

RECENT CASE LAW

It is important to remember that there is NO limit at tribunal where the reason for termination is found to be discrimination and this includes age discrimination. So getting it right is important. One of the very first cases to test the new legislation at tribunal resulted in an out of court settlement PLUS re-instatement.

Minimum Wage Changes On 1st October 2007

Please note that the MINIMUM WAGE will change with effect from 1 October 2007.

New Rates

Employee AgeNew Rate with effect 1 October 2007Points to note
Adult rate (workers aged 22 and over)£5.52 per hourdti.gov.uk
Development rate for 18-21 year olds£4.60 per hourdti.gov.uk
Development rate for 16-17 year olds£3.40 per hourdti.gov.uk

Holiday pay should be paid at the basic rate of pay. If you are paying part time, hourly paid or casual workers at the minimum wage they accrue holiday pay at their basic rate of pay in addition to payments made for hours actually worked. If you are confused about entitlement to holiday for PART TIME of HOURLY PAID workers please contact us! Remember statutory holiday entitlement also changes with effect from 1 October 2007.

The rate for the accommodation offset will increase to £30.10 per week (£4.30 per day) from 1 October 2007. For more information go to berr.gov.uk

From 1 October 2006, the Employment Equality (Age) regulations abolished the Older Workers Development Rate and remove the age limit on the apprenticeship exemption.

The national minimum wage legislation only applies to "workers". So the key question is whether or not any particular person is a "worker". If not, then the minimum wage does not apply. "Worker" has a legal definition and depends on the existence of a worker's contract. Usually, workers have written contracts of employment so it is a straightforward matter to establish their status. But the "worker" definition says that people can count as workers if they have an oral contract or an implied contract. This leads to some 'grey areas' where status may be disputed. One such grey area is the issue of people doing work (or work-like activities) for therapeutic reasons. For more information please go to: berr.gov.uk

Statutory holiday entitlement changes on 1st October 2007 does your organisation need to change anything?

Holiday entitlement NOWChanges needed from 1 October 2007Changes needed from 1 April 2009
20 days per annum PLUS 8 days bank/public holidays per annumNo changes requiredNo changes required
19 days per annum plus 8 bank holidays per annumNo changes required*1 extra day holiday per annum
18 days per annum plus 8 bank holidays per annumNo changes required*2 extra days' holiday per annum
17 days per annum plus 8 bank holidays per annumNo changes required*3 extra days' holiday per annum
16 days per annum plus 8 bank holidays per annumNo changes required*4 extra days' holiday per annum
15 days per annum plus 8 bank holidays per annum*1 extra days' holiday per annum*4 extra days' holiday per annum
14 days per annum plus 8 bank holidays per annum*2 extra days' holiday per annum*4 extra days' holiday per annum
13 days per annum plus 8 bank holidays per annum*3 extra days' holiday per annum*4 extra days' holiday per annum
12 days per annum plus 8 bank holidays per annum*4 extra days' holiday per annum*4 extra days' holiday per annum
20 days per annum and NO bank holidays paid*4 extra days' holiday per annum*4 extra days' holiday per annum

*The exact amount due during 2007 will depend on when your leave year starts please contact us by responding to this email if you are in any doubt.

Other points to note

The Corporate Manslaughter & Corporate Homicide Act 2007 received Royal assent on 26th July 2007.

The new Act creates an offence called "corporate manslaughter" in England, Wales and Northern Ireland and "corporate homicide" in Scotland. The offence is committed where an organisation owes a duty to take reasonable care for a person's safety, but the way in which its activities have been managed or organised amounts to a gross breach of that duty and causes death.

A Company and other unincorporated organisations will face an unlimited fine if they are found to have caused death due to gross corporate failures in health and safety.

The Act does not provide for personal liability for individual directors and managers. However individuals will continue to be vulnerable under the existing law relating to manslaughter by gross negligence. Recently a Company's Sole Shareholder and Managing Director was jailed for twelve months and the Company's Area Manager jailed for nine months, both for gross negligence manslaughter. The Company which had an annual turnover of £11m and 104 employees was convicted of manslaughter and fined £75,000. They were ordered to pay £89,000 costs.

What should employers do?

Future changes to the SEX DISCRIMINATION ACT...

As a result of a recent High Court decision (EOC v Secretary of State for Trade and Industry) we note that it is likely that the Government will have to amend the Sex Discrimination Act. The areas of change are likely to be in the following areas:

The Department for Communities and Local Government will have the task of amending the legislation.

TeamHR said, "I think employers can get one step ahead of most of these changes by making certain changes now. For example making quite sure that a risk assessment is done in the workplace during pregnancy is not that difficult, these can be diarised in. We offer a framework for this process and if anyone needs one, just contact us, we'll provide a framework at no cost, and our new maternity guide is available for just £35.00 plus VAT on demand in PDF format. Secondly why not plan to use one of the "keeping in touch days" for an appraisal, this can be diarised in advance and the content focus on planning return to work and training needs arising from that planned return."

Debbie went on to say, "The potential for impact of unacceptable behaviours by a third party on staff in the workplace is very real and a very problematic area. Sometimes there is a tendency to ignore the issue and hope it goes away because of a fear that tackling the situation might jeopardise the commercial relationship between customer/client and the business. We see similar issues where a client/customer business tries to dictate the removal, discipline or dismissal of a member of staff in a supplier business. All of these situations are classic conflict management situations. It highlights the need to equip managers, and select managers with the appropriate soft and commercial, skills sets, to resolve such situations quickly, protecting both the rights of individuals and the commercial interests of the business - not always an easy balance to strike."

If you would like to order a copy of either of the following please contact us.

Proposal to Abolish Statutory Dispute Resolution Procedures

On Thursday 22nd March 2007 the DTI launched the consultation on proposed changes to the existing Statutory Disciplinary and Grievance Procedures. Readers may recall that Michael Gibbons was asked to review the 2004 regulations. You can read his findings at: http://www.dti.gov.uk/files/file38516.pdf

Michael Gibbons on commented, "I was struck by the overwhelming consensus that the intentions of the 2004 Dispute Resolution Regulations were sound and there was a genuine attempt to keep them simple. However they have had unintended consequences which have outweighed their benefits."

The key recommendations in the report are: Repeal of the statutory dismissal and grievance procedures Simplification of the tribunal applications forms Provision of a free mediation services for employment disputes Abolition of the Acas fixed conciliation periods Increase tribunal's powers to award costs (which should take into account the efforts the parties have made to resolve or settle a dispute). You can read the DTi consultation paper at: http://www.dti.gov.uk/files/file38553.pdf

If you want to contribute to the consultation please note consultation with close on 20th June 2007. You can use a template to comment on the proposals at the DTi website or by going to: http://www.dti.gov.uk/files/file38558.doc

Statutory discipline and grievance procedures to be reviewed

There has been a lot of criticism of the statutory discipline and grievance procedures. The Department for Trade and Industry (DTI) has formally confirmed that there is to be a review of the options for simplifying and improving all aspects of employment dispute resolution which will be led by Michael Gibbons, a member of the "Better Regulation Commission". Michael Gibbons is expected to make recommendations for change later this Spring.

TeamHR Ltd said, "The procedures were put in place with the best of intentions but I think their bureaucratic design by committee has resulted in procedures which are flawed - the assumption is that one size fits all situations and all sizes of business. There seems to be little appreciation of the practical implications for a small business when implementing these procedures; little or no account seems to have been taken of how stressful such cumbersome procedures can be for the employee and employer alike. We welcome the review process and hope that Michael Gibbons will identify improvements based on feedback from people using the procedures in practice. The Government needs to listen to the people actually using these procedures at micro SME and SME level in particular. We look forward to hearing about how people can input to the review."

Right to request flexible working extended to all Carers from April 2007

The existing legal right to request flexible working

In April 2003 the right to request was introduced for parents of children under six (or under 18 for a disabled child). This legislation requires employers to consider requests for flexible working seriously. Where an employer accepts a request, then this results in a change to the employee's contract of employment.

What's new?

The legislation is being extended from 6 April 2007 to include employees who care for, or expect to care for, adults.

A carer will be defined as an employee who is, or expects to be, caring for an adult who is married to, or the partner or civil partner of the employee; or is a near relative of the employee; or falls into neither of those categories, but lives at the same address as the employee.

For more information go to: http://www.carers.org/news/new-right-to-request-flexible-working-for-carers-of-adults,1570,NW.html

Expired Disciplinary Warnings

A decision a Employment Appeal Tribunal this month has underlined the need to ensure that expired warnings are NOT taken into account when deciding whether to dismiss an employee (Airbus UK v Webb Appeal No. UKEAT/0453/06/DA).

"The background to the case is that three weeks after a final written warning expired, the member of staff committed a similar offence (together with four other colleagues) to that for which the member of staff had previously been warned. The member of staff with the expired warning was dismissed. The others, who did not have an expired, or current warning, on file were not dismissed. The employment tribunal, by a majority, found the dismissal was unfair because of inconsistent treatment. The employer appealed, on the basis that it was legitimate for an employer to take an expired disciplinary warning into account. However, the tribunal held that "a tribunal is obliged, and not merely entitled, to ignore expired warnings" and so the decision of the tribunal of unfair dismissal was upheld."

Working with Cancer

Cancer is defined as a disability under the DDA 1995. It is important for employers to understand their obligations. The Chartered Institute for Personnel and Development, in association with Working with Cancer charity, has produced a booklet entitled 'Cancer and working: guidelines for employers, HR and line managers'. The booklet contains guidance on best practice for employers dealing with employees suffering from cancer, together with information on adjustments that can be made. To download a copy of the guide click on this link.

Freak Weather and Pay!

The snow fall on Thursday 7th February 2007 will leave many employers counting the cost of lost hours and productivity as employees subsequently fail to get into work. It is reasonable for employers to consider adverse weather to be insufficient grounds for additional paid leave (unless the contract of employment or local policy states otherwise).

TeamHR considers that although employers are well within their rights to cut employees' pay, they should look at reasonable ways to help staff continue their work - and get paid. TeamHR says, "staff have a contract with their employer to show up for work each day. There is no legal requirement to have a 'freak weather policy' but putting one in place manages expectations and should reduce scope for conflict or confusion."

"Employers should take a common sense approach to weather-related absence, if it is feasible for someone to work from home they should be encouraged to do so but clearly this does not apply to all jobs. For those who simply can't do their job at home, another approach may be to provide the opportunity for the lost hours to be made up over a 4 week period - that way both the employer and the employee win, the work gets done and the employee is paid for the hours of work undertaken", said Debbie.

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