In general, the Department for Business, Enterprise and Regulatory Reform 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 October 2008.
We will publicise the changes that become effective in April 2009 in our March edition of HReSource.
OCTOBER 2008
The National Minimum Wage Regulations 1999 (Amendment) Regulations 2008
1 October 2008
The adult rate of the National Minimum Wage goes up from £5.52 to £5.73 per hour; the development rate for workers aged 18 to 21 inclusive increases from £4.60 to £4.77 and the rate for workers aged 16 to 17 inclusive increases from £3.40 to £3.53 per hour.
The Employers' Liability (Compulsory Insurance) (Amendment) Regulations 2008 1 October 2008
As of 1 October 2008, employers will be able to satisfy the requirement to display their employer liability insurance certificate by making it available in electronic format as long as "each relevant employee to whom it relates has reasonable access to it in that form."
Changes to terms and conditions during maternity and adoption leave
5 October 2008
Women employees with an expected week of childbirth on or after 5 October 2008 will be entitled to the same terms and conditions of employment during additional maternity leave as they currently do in relation to ordinary maternity leave. The same change applies to employees who expect to have a child placed with them for adoption on or after this date.
The Fixed-term Employees (Prevention of Less Favourable Treatment) (Amendment) Regulations 2008
27 October 2008
This amendment to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 ensures that agency workers on contracts of less than three months are eligible for statutory sick pay.
NOVEMBER 2008
Tiers two and five of the government’s points-based immigration system opened
November 2008
From November 2008, sponsored skilled workers with a job offer have to apply to come to work in the UK under tier two of the government’s points-based immigration system. This includes individuals with work permits to do specific jobs, overseas qualified midwives, ministers of religion and elite sports people, among others.
Likewise sponsored temporary workers (such as voluntary workers and those on training and work experience schemes) and those on youth mobility schemes (such as au pairs and gap year students) have to apply to work in the UK under tier five of the points-based immigration system.
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The 1976 Race Relations Act says that it is discriminatory to victimise someone for bringing proceedings under the Act. In Bayode v Chief Constable of Derbyshire, the Employment Appeal Tribunal (EAT) said it was not discriminatory for the police force to protect itself against further claims by asking officers to record incidents involving a colleague in their notebooks.
What happened?
Mr Bayode first lodged a claim in May 2003 for race discrimination concerning incidents during his time as a probationer. After a period of sick leave for depression, he transferred to another station. He was told there that his colleagues had been advised to record any problems in case he made another race discrimination claim.
He then brought a claim for race discrimination in September 2005, arguing that he was being treated less favourably by his colleagues by virtue of "recording and reporting matters which were unnecessary and unjustified". The tribunal said it was fair enough for Mr Bayode’s colleagues to make sure they had a record of any behaviour that concerned them. The question was whether that amounted to less favourable treatment.
It relied on the decision of the House of Lords in St Helens Metropolitan Borough Council v Derbyshire which said that an employee could not legitimately complain about a sense of grievance "engendered by an employer's reasonable steps to defend itself in litigation." The tribunal therefore concluded that "the mere act of making a written record of issues" where no inappropriate action was then taken could not constitute a detriment.
Mr Bayode appealed saying that the tribunal should have taken the effect the less favourable treatment had on him, particularly given his history of sick leave.
But the EAT disagreed, saying that the tribunal had made clear that the disadvantage or detriment had to be judged from the standpoint of the alleged victim. It said there was plenty of evidence from which the tribunal could conclude that "in the context of this particular case the making and content of the [notebook] entries did not amount to a detriment". Mr Bayode could not therefore have any justified sense of grievance from those entries having been made.
That was not to say that if the entries had been used in some different way "the use might, depending on the circumstances, have provoked a legitimate and reasonable sense of grievance in Mr Bayode".
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The law says that employees are entitled to compensation if they are unfairly dismissed. In Cowen v Rentokil Initial Facility Services (UK) Ltd, the Employment Appeal Tribunal (EAT) confirmed that employers may still be liable to pay compensation if their employee gets a replacement job that turns out to be temporary.
What happened?
Mr Cowen was made redundant on 6 October 2006 and brought a claim of unfair dismissal, among others. He found a new job on 23 October on a higher salary, but was dismissed after the end of the probationary period in January 2007 (five months before the tribunal hearing).
The tribunal agreed he had been unfairly dismissed but refused to make an order for re-engagement because he had refused an offer during "without prejudice" negotiations with Rentokil of a different job on a higher salary. It decided he had mitigated his financial loss from 23 October and could not recover any compensation for the period following his dismissal in January.
Mr Cowen appealed, saying that the tribunal should have ignored the fact that he had been offered another job by Rentokil as it was made during "without prejudice" negotiations and that it was unjust to decide he could only claim financial loss up to 23 October.
The EAT agreed that the tribunal should not have taken into account the "without prejudice" negotiations. Although the company tried to argue that it was entitled to waive the privilege unilaterally as it had made the job offer, the EAT said that the waiver must be consensual.
As to the issue of mitigation, the EAT relied on the Court of Appeal decision in Dench v Flynn and partners which said that the loss flowing from a dismissal does not automatically comes to an end once permanent employment is obtained.
The EAT said it was obvious that, in this case, when Mr Cowen took the new job, it might only last for the probationary period. As a result, the period of time for which he could claim compensation continued after the new job came to an end.
However, it stressed that did not mean that when a job only lasted a short time that causation would necessarily be broken. "It depends on all the circumstances. The reason why the employee lost the second job may have a bearing on the question. If it is for culpable misconduct, for example, one can readily see how that might break the chain of causation... But there is no evidence or suggestion that that was the situation here."
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The Government has announced that it will amend the law so that tips can no longer count towards payment of the National Minimum Wage (NMW).
This means that employers will no longer be able to use gratuities and service charges processed through the payroll to "top up" staff wages to meet the current hourly NMW rate.
The Government will launch a consultation on implementing these recommendations n the autumn. It will then issue guidance for both workers and employers to ensure a smooth transition when the regulations are changed, probably in 2009.
Currently, when tips and gratuities are given directly to workers by customers and are retained by the workers without any other party being involved, they cannot count towards NMW payment.
Where there is evidence that cover charges, service charges, tips and/or gratuities are paid by the employer to the worker via the payroll then the tip can count towards NMW pay.
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