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HR UPDATE FOR 2010
HR Update for 2010.
Last year was a reasonably quiet year with regard to employment legislation. However there were a few changes and some changes planned for the next year or so therefore we have summarised these as follows:
Tribunal Claims
The year 2008/2009 recorded the highest level of claims ever at 151000 which was to be expected due to the recession with large numbers of employees being made redundant or laid off unfairly.
Perhaps the most controversial change allows employers to positively discriminate in favour of disadvantaged groups when recruiting candidates who are otherwise equally suitable.
Senior clerics have warned that Harriet Harman's Equality Bill suggests some rights are considered "more important than others". The Bishop of Winchester said that clauses in the bill that attempt to prevent "harassment" could be used to punish Christians who simply offer to pray for someone or tell them: "God bless you."
Employers will also be prevented from stopping employees from discussing their salaries with other employees in order to aid equal pay claims.
Statutory holidays
The statutory minimum for full timers increased to 28 days in April 2009. Most reports seem to overlook the disproportionate affect this has had on part timers - particularly those who do not normally work on a Bank Holiday. As part timers need to be treated the same as full timers (but pro-rata). For instance an employee working three days is entitled to 16.8 days which he/she can take over the full 5.6 weeks. Whereas most full timers only have a say on when they may take four weeks holiday - the rest taken up by bank holidays.
Our advice is to set out the rules to ensure that employees take no more than 4 weeks "annual" holiday and allocate the remaining days over bank holidays - regardless of whether or not the employee would normally work on that day. Holidays need not be taken during working time so employers may pay all or part of the holiday entitlement on days that the employee does not normally work.
Remember that payments cannot be made in lieu of holidays not taken - except when an employee leaves.
Also, employees on long term sick are entitled to continue accruing holidays and are able to take those accrued holidays in a following year. This rule only applied to the basic 4 weeks statutory entitlement so ensure that your contracts of employment reflect this.
Sickness The government believes that replacing GP's sick notes with "fit notes" this April will get people back to work sooner. We believe that this will only assist where there is available "light duties" and where there are none employees will expect roles to be created for them.
Maternity Leave
Employees due to give birth or to adopt on or after 3 April 2011will be allowed to transfer up to 6 months of their maternity/adoption leave and 13 weeks of their pay to the father/partner. Government plans to extend maternity pay to 12 months have been shelved due to a shortage of money!
Discipline and grievances
Sigh of relief that during 2009 the statutory dispute resolution procedures were replaced with a revised ACAS Code of Practice on Disciplinary and Grievance Procedures!
The fixed periods on ACAS help were also removed and they extended their helpline hours.
The new code does have some peculiarities. The right of appeal of dismissal on the grounds of redundancy and ill health seem to have been omitted and "verbal" warnings seem to have been discontinued. Our advice is to continue to allow for appeals in these situations.
Tips
From 1 October 2009, employers are no longer allowed to include tips, gratuities or service charges within the calculation of the NMW.
Minimum Wage
It is expected that from October 2010 21 year olds will receive the standard adult rate so employers should be looking to accommodate this change.
Retirement
The national retirement age of 65 is up for review during 2010 and likely to be extended sometime in the near future. This should not make a lot of difference to most employers except when dealing with employees who are increasingly less capable due to their health - particularly in manual jobs.
It is important therefore that performance management policies and procedures are in place and regular reviews take place with the employee. Reasonable adjustments may enable the employee to carry on and contribute to the business but sudden decisions that an employee is "not up to the job" after a great number of years without complaint is bound to raise questions if their employment is terminated without apparent good reason.
Pensions
Coming in to force in 2012 will be the compulsory requirement for employers to contribute to the new personal account pension scheme, which employees will automatically join when they start a new job.
Alternatively employers may provide an alternative which is as good or better.
Trade unions
From April 2010 it will be illegal to refuse employment or dismiss anyone who appears on a so-called 'Trade Union blacklist' (for that reason)
Safeguarding of Vulnerable Groups Act
Employers of people who work with children or vulnerable adults are now required to follow a centralised, pre-employment vetting procedure. This builds on the existing Criminal Records Bureau checks and will allow employers to do a simple online check of an applicant's barred status and to be informed immediately if an employee becomes barred. The barred lists can be checked as part of an enhanced CRB check.
Employers who fail to carry out these checks could face a five-year prison sentence or fines of up to £5,000.
From July 2010 people who have not previously worked with children or vulnerable adults, or who are changing jobs, can voluntarily apply to become ISA registered. This becomes mandatory in October 2010 and all existing employees and volunteers who have not changed jobs will need to register.
Right to Training
From April 2010, employees of organisations employing more than 250 employees and who have been employed for more than 26 weeks will have a right to request unpaid time off for training.
Agency workers
Coming in to force from December 2011 will be the requirement to employ agency workers on the same terms and conditions as their employed colleagues after 12 weeks employment.
Data protection
As from April 2010 the Information Commissioner will be able to fine any Data Controller who knowingly or recklessly breaches the Data Protection Act.
Source: Alliance Corporate Risk Management
REDUCTION IN LIMITS FOR UNFAIR DISMISSAL
This year, for the first time, there has been a reduction in statutory payments/limits because of the decrease of 1.4% in the Retail Prices Index for the year to September 2009. From 1st February 2010: Maximum compensatory award will be £65,300 - currently £66,200. Statutory guaranteed lay-off payments will reduce from £21.50 to £21.20 per day. Minimum compensation award for exclusion or expulsion from a Trade Union will reduce from £7300 to £7200. Minimum basic award for certain specified unfair dismissals will remain unchanged at £4,700. A week's pay (used to calculate employment tribunal basic awards and redundancy pay), will remain at £380. The statutory rates for Statutory Maternity/Adoption and Paternity Pay due to increase in April are yet to be announced. Source: Alliance Corporate Risk Management
WORKING WITH CHILDREN AND VULNERABLE ADULTS
Working with Children and vulnerable adults A reminder that the Vetting and Barring Scheme (VBS) was introduced in October. This applies to all employers of staff who work with work with children and vulnerable adults and although it is being phased in over a lengthy period you do need to be aware of it's requirements. It covers both regulated and controlled activities: "Regulated activities" Covers teaching, training, care, supervision, treatment, transportation, fostering, childcare and any activity that involves people in positions of responsibility. "Controlled activities" Covers support work in general health settings (including cleaners, catering staff, caretakers and receptionists), the NHS and further education; individuals working for specified organisations that have frequent access to sensitive records about children and vulnerable adults and support work in adult social care settings. Key Dates 26 July 2010 New recruits or volunteers undertaking regulated activities or controlled activities can register with the Independent Safeguarding Authority (ISA). November 2010 Employers must check applicants' status with the ISA before recruiting them. Employers who employ somebody in to a regulated activity who fail to check their ISA registration will commit an offence; if they knowingly employ someone in a regulated activity who is barred from working with either children or vulnerable adults they will be liable to imprisonment and a fine of up to £5,000. 2011, Existing employees with no CRB check must apply for ISA registration Further Notes Employers have a duty to advise the ISA of any information that caused them to stop or consider stopping an individual working with these groups. The Protection Of Children Act (POCA), Protection of Vulnerable Adults (PoVA) and List 99 are replaced by two new lists - one for children and one for vulnerable adults. These are administered by the ISA. Checks of these two lists can be made as part of an enhanced CRB check. Source: Alliance Corporate Risk Management
National Minimum Wage
Pay rates (from 1 Oct 2008) (reviewed each October)
£5.73 hourly (workers 22 years and older)
£4.77 hourly rate (workers 18 to 21 years)
£3.53 hourly (workers 16 to 17 years)
New Compensation Limits Come Into Force On 1 February 2008
The Employment Rights (Increase of Limits) comes into force on 1 February, increasing the limits applying to certain awards of employment tribunals, and other amounts payable under employment legislation.
The notable changes are:
- the limit on the amount of a week's pay for the purposes of calculating, among other things, statutory redundancy payments and the basic award for unfair dismissal will increase from £310 to £330
- the maximum compensatory award for unfair dismissal goes up from £60,600 to £63,000
- the minimum basic award in cases where the dismissal was unfair by virtue of health and safety, employee representative, trade union, or occupational pension trustee reasons will increase from £4,200 to £4,400
- guarantee pay increases from the rate of £19.60 a day to £20.40 a day
Source: OPSI, 24/12/2007
Unlimited Fines For Employers Failing To Pay National Minimum Wage
The Government has issued its response to consultation on national minimum wage (NMW) and employment agency standards (EAS). Under measures included in the response, employers who fail to pay their workers the NMW will face tougher sanctions.
The moves, to be implemented in the forthcoming Employment Simplification Bill, will increase the maximum penalty for NMW and EAS offences from a £5,000 fine to an unlimited fine. The most serious cases of non-compliance will be tried in a crown court, which will have the power to impose an effectively unlimited penalty. The Government has also stated that underpaid employees will benefit from a new method of calculating arrears which will have retrospective application to all outstanding claims.
Further information:
Source: BERR, 6/12/2007
Current Tribunal Awards
Limits on pay for award calculations - 1 day £19.60, 1 week £310
Maximum compensatory award for unfair dismissal (excluding health and safety or whistle-blowing claims, which are uncapped) - £60,600
Maximum basic award for unfair dismissal - 30 weeks' pay or £9,300
Maximum award in breach of contract cases - £25,000
Source: BERR www.berr.gov.uk
Holiday Entitlement Increases From 1st October 2007
Since the Working Time Regulations came into being in 1998 workers have been entitled to 20 days holiday by law. The 20 days included 8 public bank holidays and this issue was hotly contested by the unions all the way to the European Courts.
The outcome is that there has now been a change in the law and from 1st October 2007 employees are entitled to 24 days and from 1st April 2009 all employees will be entitled to the full 28 days.
