In general, the Department for Business, Innovation and Skills
introduces legislative changes twice a year - April and October.
The idea is to make it easier for employers (and employees) to keep
abreast of the changes. The following are effective from April 2010.
We will publicise the changes that become effective in October 2010
in our September 2010 edition of HReSource, the most prominent being the
introduction of the provisions of the current Equality Bill.
APRIL 2010
Additional paternity leave and pay
6 April 2010
Under new rights available to parents of children due (or matched for
adoption) on or after 3 April 2011, mothers will be able to transfer
the last six months of their maternity leave to the father if she
decides to return to work before the end of her leave.
As with current paternity leave (which only lasts for two weeks),
additional paternity leave extends to partners and civil partners of
mothers. Some of the leave may be paid if taken during the mother’s 39
week maternity pay period at the same rate as Statutory Maternity Pay
(£124.88 per week as of 6 April 2010).
Right to request to train
6 April 2010
This new right gives employees working in organisations that employ
250 or more people the legal right to request time off for studying or
training. This will then be extended to all organisations from 6
April 2011. It is only applicable to employees who have worked for their
employer continuously for at least 26 weeks. As with a request to work
flexibly, the employer must consider the request to train and can only
turn it down if they have a good business reason for doing so.
Introduction of “fit notes”
6 April 2010
The Social Security (Medical Evidence) and Statutory Sick Pay
(Medical Evidence) Amendment Regulations 2010 change the format of the
medical statement so that doctors can indicate whether someone is fit
(as opposed to unfit) for work. They also allow doctors to suggest
arrangements that the person might take to return to work.
Increase in lower earnings limit
6 April 2010
Regulations increase the lower earnings limit for primary Class 1
national insurance contributions from £95 to £97. All other national
insurance contributions rates, limits and thresholds remain
unchanged.
Data Protection - monetary penalties
6 April 2010
When serving monetary penalty notices and notices of intent on data
controllers, the new law states that the Information Commissioner must
consider any written representations made by a data controller in
relation to a notice of intent, when deciding whether or not to serve a
monetary penalty notice. It also sets out a minimum 21-day period for
making written representations, and a minimum 28-day period after
service of the monetary penalty notice within which the penalty must be
paid. The maximum monetary penalty that can be imposed on a data
controller is £500,000.
Blacklisting union membership or activities
April 2010
New regulations outlaw the sale, use, compilation, or supply of a
blacklist of workers because of their union membership or activities.
Anyone who thinks they have been blacklisted can complain to a tribunal
and apply to the court for damages.
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Although the 1997 Protection from Harassment Act (PHA) was not
drafted with the workplace in mind, the Court of Appeal has said in Veakins
v Kier Islington Ltd that there is nothing in it to say it
could not be used to tackle workplace harassment. However, the conduct
has to be “oppressive and unacceptable” and sustain criminal liability.
What happened
Ms Veakins was employed by Kier Islington from September 2003 until
July 2005 with no problems, but went on sick leave with depression in
September and terminated her employment in June 2006 after a new
supervisor - Jackie Lavy - took over. Ms Veakins claimed the supervisor
had made life “hell” for her.
Ms Veakins claimed that, as her employer, Kier Islington was
vicariously liable for her behaviour under section 1(1) of the PHA.
Section 1(1) of the PHA states that a person must not pursue “a
course of conduct which amounts to harassment” of someone else and which
“he knows or ought to know amounts to harassment of the other”.
"Harassment" is not exhaustively defined but section 7(2) states that it
includes "alarming the person or causing the person distress"
Relying on the cases of Majrowski v Guy's and St Thomas' NHS
Trust and Conn v Council and City of Sunderland,
the county court judge ruled against Ms Veakins on the basis “that the
conduct concerned must be of an order that would sustain criminal
liability”. In this case, the judge said, it “plainly” was not.
The Court of Appeal, however, disagreed. It said that, since Majrowski,
the primary focus for judges, when deciding whether the harassment
satisfies the definition in the Act, is whether the conduct is
“oppressive and unacceptable” and would sustain criminal liability.
In this case, it said that the substantially unchallenged account
given by Ms Veakins of victimisation and demoralisation had reduced a
“usually robust woman to a state of clinical depression”. That, said the
court was not just unreasonable or part of "the ordinary banter and
badinage of life". Instead it had crossed the line into conduct which
was "oppressive and unreasonable."
It noted that since the case of Hatton v Sutherland
it was more difficult for employees to bring successful negligence
claims based on stress at work, as a result of which more employees were
turning to the harassment legislation for redress.
Although it was unlikely that Parliament had the workplace in mind
when it drafted the legislation, the Court stated there was nothing in
it to say it could not be used to tackle workplace harassment. Having
said that, however, it implied that in most cases, employees would have
to seek redress in the employment tribunal.
It also cautioned that “it should not be thought from this unusually
one-sided case that stress at work will often give rise to liability for
harassment. I have found the conduct in this case to be "oppressive and
unacceptable" but I have done so in circumstances where I have also
described it as "extraordinary". I do not expect that many workplace
cases will give rise to this liability”.
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Under the 1995 Disability Discrimination Act (DDA), employers have to
make reasonable adjustments in certain circumstances. In Secretary
of State for the Department for Work and Pensions v Alam, the
Employment Appeal Tribunal (EAT) said that employers do not have to make
adjustments if they knew or ought to have known about the employee’s
disability, but did not know and could not be expected to know that it
would have a specific effect on them.
What happened?
Mr Alam, an administrative officer for the DWP, suffered from
depression. On 7 March 2008 he left work early without permission.
Following a disciplinary hearing, he was given a 12-month written
warning. He then argued that his employers should have made a reasonable
adjustment for him as required under the DDA.
The tribunal agreed that Mr Alam was disabled and that the DWP should
have known this by March 2008. It had indirectly discriminated against
him by applying a provision, criterion or practice that “he should
either ask for, and get permission from his line manager before leaving
his workplace or receive a disciplinary sanction of a twelve month
written warning.”
It held that Mr Alam’s disability affected his ability to regulate
his feelings and he was therefore less able to control himself than a
non-disabled person. As he could not control himself enough to
clearly ask for permission to leave, he was much more likely than a
non-disabled person to receive a formal disciplinary sanction.
But the EAT disagreed. In deciding whether the DWP was under a duty
to make reasonable adjustments, it said that two questions had to be
answered - firstly, whether the employer knew the employee was disabled
and their disability was likely to put them at a disadvantage with
people who are not disabled? If the answer is no, then the second
question to ask is whether the employer ought to have known?. If the
answer to that question is also no, then there is no duty to make
reasonable adjustments.
In this case, the EAT said that the answer to the first question was
“no” as the DWP had not known that Mr Alam was suffering from depression
and did not know it was liable to have any effect on him. As for the
second question, although the department ought to have known that he had
a disability (i.e, depression) which meant that he sometimes had
difficulty in concentrating or controlling his temper, “none of those
features amount to or imply difficulty in asking for permission when it
was required”.
So the DWP could not reasonably be expected to have known that Mr
Alam’s depression would have this specific effect on him and it had no
duty to make reasonable adjusments.
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Parents of children due on or after 3 April 2011 will be able to take
advantage of new legislation announced recently by the Government. The
rights also apply to parents of adopted children matched on or after 3
April 2011.
Under the new rights, mothers will be able to transfer the last six
months of their maternity leave to the father if she decides to return
to work before the end of her leave. As with current paternity leave
(which only lasts for two weeks), additional paternity leave extends to
partners and civil partners of mothers.
The Government says that the idea behind the new regulations is to
enable parents to share a period of paid leave between them, giving
families greater flexibility in how they choose to look after their
children.
In essence, the regulations state that:
- Fathers who have been continuously employed for at least 26 weeks
will be entitled to up to six months extra leave, which can be taken
once the mother has returned to work
- Some of the leave may be paid if taken during the mother’s 39 week
maternity pay period at the same rate as Statutory Maternity Pay
- Parents will be required to “self certify” by providing details of
their eligibility to their employer. Employers and HMRC will both be
able to carry out further checks of entitlement if necessary
- The leave can start from 20 weeks after the baby’s birth (or
adoption) and must end 12 months after the child is born (or adopted)
- The minimum period of leave is 2 consecutive weeks and a maximum of
26 consecutive weeks
- In order to be entitled to take the leave strict notice provisions
will apply
The regulations are due to come into force on 6 April 2010, but will
only apply to parents of children due or matched on or after 3 April
2011.
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