CM Murray LLP: Specialists in Employment and Partnership Law HR in LAW David Fisher, Jenny Kerr & Bettina Bender CM Murray LLP 9 July 2013

CM Murray LLP: Specialists in Employment and Partnership Law EMPLOYMENT LAW REFORMS: SOME OF THE HIGHLIGHTS DATA PROTECTION ISSUES - KEY PRINCIPLES FOR EMPLOYERS FAMILY FRIENDLY LEGISLATION: THE CHANGES AHEAD David Fisher, Jenny Kerr & Bettina Bender CM Murray LLP 9 July 2013

CM Murray LLP: Specialists in Employment and Partnership Law EMPLOYMENT LAW REFORMS: SOME OF THE HIGHLIGHTS HR in LAW Speaker: David Fisher CM Murray LLP 9 July 2013

CM Murray LLP: Specialists in Employment and Partnership Law Employment law reforms Collective redundancies –Consultation period for 100+ redundancies –Removal of “one establishment” test (Usdaw v Ethel Austin Ltd (In Administration) (EAT, 2013))

CM Murray LLP: Specialists in Employment and Partnership Law Employment law reforms Transfers of undertakings: proposed changes to TUPE –Removal of “service provision change” provisions –Employee liability information –ETO reasons and place of work redundancies –Consultation about redundancies post-transfer –Information and consultation for micro-businesses

CM Murray LLP: Specialists in Employment and Partnership Law Employment law reforms Whistleblowing –Disclosures “in the public interest” –Requirement for “good faith” removed –Vicarious liability for acts of employees –Applies to disclosures on/after 26 June 2013

CM Murray LLP: Specialists in Employment and Partnership Law Employment law reforms Unfair dismissal –Further limits on compensatory awards –Dismissal for political opinion or affiliation Confidential pre-termination negotiations –Effect on “ordinary” unfair dismissal claims –ACAS Code of Practice

CM Murray LLP: Specialists in Employment and Partnership Law Employment law reforms Employment Tribunals –Changes to Tribunal rules from 29 July 2013 –Fees for Tribunal claims and hearings –Abolition of discrimination questionnaires from April 2014

CM Murray LLP: Specialists in Employment and Partnership Law DATA PROTECTION ISSUES KEY PRINCIPLES FOR EMPLOYERS HR in LAW Speaker: Jenny Kerr CM Murray LLP 9 July 2013

CM Murray LLP: Specialists in Employment and Partnership Law Key legislation Data Protection Act 1998

CM Murray LLP: Specialists in Employment and Partnership Law What is data? Data is information which is: Processed automatically (e.g. CCTV, swipe card records) Forms part of a ‘relevant filing system’ Is an accessible record (these tend to be held by public authorities)

CM Murray LLP: Specialists in Employment and Partnership Law Personal data Provisions of the DPA apply to personal data: This is information which relates to a living person who can be identified from that data. The data must be about a living person, whether in his personal or family life, business or professional capacity

CM Murray LLP: Specialists in Employment and Partnership Law Sensitive personal data Sensitive personal data is personal data consisting of information about the data subject’s: Racial or ethnic origin Political opinions Religious beliefs or beliefs of a similar nature Trade union membership Physical or mental health or condition Sexual life

CM Murray LLP: Specialists in Employment and Partnership Law The 8 data protection principles It must be fairly and lawfully processed Processed for limited purposes Adequate, relevant and not excessive Accurate and up to date Not kept for longer than necessary Processed in line with the data subject’s rights Secure Not transferred to other countries without adequate protection

CM Murray LLP: Specialists in Employment and Partnership Law Other conditions When processing personal data, there are additional conditions to be met contained in the Data Protection Act *Consent*

CM Murray LLP: Specialists in Employment and Partnership Law Penalties Individuals are entitled to compensation from data controllers for damage caused by any breach of the DPA Individuals can also obtain court orders for the rectification, blocking, erasure or destruction of data which is inaccurate Breaches of certain rules can give rise to criminal offences on the part of the controller e.g. knowing or reckless obtaining or disclosure of personal data

CM Murray LLP: Specialists in Employment and Partnership Law What should employers do? Data protection policy Appoint a data protection manager Conduct regular audits Overseas issues? Notification?

CM Murray LLP: Specialists in Employment and Partnership Law Internet and monitoring Be aware of employees’ right to privacy Consider the 8 data protection principles Part 3 of the Employment Practices Code -Impact Assessment -Inform employees

CM Murray LLP: Specialists in Employment and Partnership Law BYOD Growing trend Benefits – cheaper, improves employee engagement and productivity Risks – loss of control of data, reduced ability to monitor, security risks What should employers do?

CM Murray LLP: Specialists in Employment and Partnership Law Where to find further information? The Information Commissioner has published a four part Code of Practice (the Employment Practices Code) which covers recruitment and selection, employment records, employee monitoring, medical records. Supplementary Guidance Helpline

CM Murray LLP: Specialists in Employment and Partnership Law FAMILY FRIENDLY LEGISLATION: PRACTICAL ISSUES FOR LAW FIRMS CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law Speaker: Bettina Bender CM Murray LLP 9 July 2013

CM Murray LLP: Specialists in Employment and Partnership Law Maternity leave Employees only OML: 26 weeks, available to all employees (regardless of length of service) The first 2 weeks after childbirth are compulsory maternity leave AML: immediately follows OML and lasts for a further 26 weeks All employees who qualify for OML automatically qualify for AML CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law

Maternity Pay Statutory Maternity Pay (39 weeks): 1st six weeks paid at “earnings related rate” (90% of her average earnings) Remaining 33 weeks paid at “prescribed rate” (current rate £136.78) Employees will also be entitled to benefits of terms and conditions of employment except remuneration, so annual leave will accrue, still entitled to PHI, private medical etc. NB: Firms often offer enhanced maternity benefits Maternity Allowance payable to low earners and self-employed CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law

Key rights when on maternity leave Contract of employment continues throughout OML and AML Entitled to be paid for ten Keeping in Touch (‘KIT’)days Priority for alternative employment in redundancy cases Protection from dismissal, detriment or discrimination by reason of pregnancy or maternity CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law

Right to return to work CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law Following OML: right to return to the same job Following AML: same job or if not reasonably practicable a suitable alternative job on terms and conditions not less favourable than would have applied had the employee not been absent

CM Murray LLP: Specialists in Employment and Partnership Law Eligible employees are entitled to 1 whole week or 2 consecutive weeks Ordinary Paternity Leave (‘OPL’) within 56 days following the child’s birth or adoption. Employees may also be entitled to Additional Paternity Leave (‘APL’) Statutory Paternity Pay: lesser of the “prescribed rate” and 90% of the employee’s weekly earnings CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law Paternity Leave

CM Murray LLP: Specialists in Employment and Partnership Law Additional Paternity Leave Regulations 2010 Applies to babies born/adopted on or after 3 April 2011 ASPP: Mother must have returned to work without using up all of her OML/AML “Window”: from 20 weeks to 12 months from the date of birth/date of adoption Minimum 2 weeks up to a maximum of 26 weeks Eligibility requirements Additional Statutory Paternity Pay CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law

How this works in practice… CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment and Partnership Law 30 weeks 22 weeks 9 weeks Total leave: 52 weeks Total statutory pay: 39 weeks

CM Murray LLP: Specialists in Employment and Partnership Law The Coalition Government are keen to allow both parents to share in childcare responsibilities Introduction of shared parental leave (Children and Families Bill) Compulsory 2 week period of maternity leave will remain Remaining 50 weeks to be divided between parents, subject to the agreement of the respective employers Payment will be 6 weeks at 90% of earning and the subsequent 33 weeks at SMP In theory, leave can be taken concurrently or consecutively Administrative burden Unclear how this will work in practice Due to be introduced from 2015 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law The Future – Shared parental leave

CM Murray LLP: Specialists in Employment and Partnership Law Right to request: It does NOT create a right to work flexibly! The right to request consists of the right to request to work flexibly, a statutory request procedure, an obligation on the employer to consider the request properly and limited grounds on which the employer can refuse the request (which include cost, meeting customer demand, inability to reorganise work, inability to recruit additional staff, detrimental impact on quality or performance, insufficiency of work and planned changes). There is also a right of appeal. CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law Flexible working

CM Murray LLP: Specialists in Employment and Partnership Law The employee must have 26 weeks of continuous service and be employed on the date the request is made Not have made another request to work flexibly in the preceding 12 months Be either caring for a child or adult Agency workers are not entitled to make flexible working requests All set to change in 2014 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law Eligibility to apply for flexible working

CM Murray LLP: Specialists in Employment and Partnership Law From 2014, all employees who meet the 26 week continuous service requirement will be entitled to make a request for flexible working, regardless of whether or not they have dependants or caring responsibilities Idea is to encourage people to undertake charitable activities etc. In terms of procedure Acas launched a consultation on a draft code in February 2013, and intends to publish a good practice guide as well as a code CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law The Future - Flexible working for all

CM Murray LLP: Specialists in Employment and Partnership Law All employees regardless of length of service have the right to request “reasonable” unpaid time off work to take “necessary action” This is only available in emergencies and the time off must fall into a number of statutory categories, which cover caring for a dependant who is ill/injured, unexpected disruption to the care of a dependant, dealing with an unexpected incident at child’s school during school hours CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law Time off for dependants

CM Murray LLP: Specialists in Employment and Partnership Law Applies to birth and adoptive parents and anyone who has parental responsibility for a child The leave is unpaid and an employee cannot take more than 4 weeks leave in respect of any individual child during any particular year. Leave must be taken in one week blocks The right applies to each child - an employee with one qualifying child may take 18 weeks in total, 2 children may take 36 weeks etc To be taken any time before the child’s 5 th birthday (18 th birthday if the child is entitled to disability living allowance) CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law Parental Leave

CM Murray LLP: Specialists in Employment and Partnership Law Direct and Indirect Sex discrimination –Direct sex discrimination where, because of a protected characteristic, a person (A) treats another (B) less favourably than A treats or would treat others. –Indirect sex discrimination where A applies to B an apparently neutral provision, criterion or practice that A would equally apply to others, but which puts or would put those who share B’s protected characteristic at a particular disadvantage. There will be no discrimination if the provision, criterion or practice is objectively justified. CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law Family friendly rights – Potential claims

CM Murray LLP: Specialists in Employment and Partnership Law Pregnancy/maternity discrimination –treating a female job applicant or employee unfavourably during the protected period of her pregnancy or because of an illness suffered by her as a result of her pregnancy –treating a female employee unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise, or has exercised or sought to exercise the right to OML or AML Discrimination against part-time workers –The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 aim to ensure that part-time workers are not treated less favourably than full-time workers. This may well be relevant where, for example, a mother returning to work reduces her hours. NB: Compensation for discrimination claims is uncapped but loss-based with a duty to mitigate your losses. There can also be awards for injury to feelings. CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law Family friendly rights – Potential claims

CM Murray LLP: Specialists in Employment and Partnership Law Unfair dismissal –Unfair dismissal is a statutory claim, which arises where there is not a fair reason for dismissal and/or a fair procedure has not been followed. The remedy for the claim is usually compensation and is made up of a basic (calculated in the same way as a statutory redundancy payment) and compensatory award. This is a loss-based claim, subject to a duty to mitigate, but awards are currently capped at £74,200. Wrongful dismissal –Wrongful dismissal is a dismissal in breach of contract. Fairness is not an issue, the sole question is whether the terms of the contract, which can be express or implied, have been breached. The employee will have a claim in damages if the employer, in dismissing them, breached the contract, thereby causing them loss. –NB Constructive Dismissal CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law Family friendly rights – Potential claims

CM Murray LLP: Specialists in Employment and Partnership Law Issues on returning to work Possible flexible working requests: - part-time work - working from home - flexible start/leave time Different issues relevant depending on role of employee On return risk of maternity/pregnancy discrimination reduced but risk of direct/indirect sex discrimination claim remains CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law

Practical Handling: Maternity Leave Returners/Flexible work request Communication is key Follow your flexible working procedure Apply consistent objective criteria Keep decisions under review as technology evolves, people become more senior NB The rewards for law firms can be high – loyalty, commitment, staff retention CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment and Partnership Law

David Fisher, Jenny Kerr & Bettina Bender CM Murray LLP 37 th Floor Canary Wharf, London, E14 5AA England DD: FAX: E: E: