Recent developments in employment law Andrew Hambler

Terrain Annual rises Agency Workers Equality Act Retirement Additional Paternity Leave Employment Tribunal task force

Annual rises National Minimum Wage (1 October 2011-) –£ the main rate for workers aged 21 and over –£ the rate –£ the rate for workers above school leaving age but under 18 –£ the apprentice rate

Annual Rises SSP - £81.60 per week SMP - £ (lower rate) Paternity pay/Adoption Pay - £ Statutory Redundancy pay – based on £400 per week. Maximum statutory redundancy pay - £12,000

Agency Workers Regulations 2010 Came into effect on 1 October 2011 After 12 weeks, basic employment conditions for temporary agency workers are not less favourable than if they have been recruited directly. From day one they will have equal access to facilities and job opportunities No employment status, however, so no unfair dismissal/redundancy pay Service is broken as a result of 6 calendar week break

Agency Workers Regulations 2010 Breaches of the regulations = minimum of 2 weeks’ pay in compensation If employers and agencies create false constructs to avoid regulations, then additional compensation of £5,000 to worker (apportioned between agency + hirer) ‘Swedish derogation’ clauses – agency can hire the temporary workers 50% of assignments last less than 12 weeks (CIPD, 2010). Cost. £1.8bn? Probably exaggerated.

Equality Act 2010 – Protected Characteristics age disability gender reassignment marriage and civil partnership race religion or belief sex sexual orientation

Equality Act 2010 – Prohibited Conduct direct discrimination combined discrimination discrimination arising from disability gender reassignment discrimination pregnancy and maternity discrimination indirect discrimination failure to comply with a duty to make reasonable adjustments Harassment victimisation

Equality Act - Innovations Combined Discrimination Contractual pay secrecy is now forbidden Positive Action at Point of Recruitment Public Sector Equality Duty Pre-employment health questionnaires

Retirement Since 1 October 2011, it is no longer lawful to apply a policy of compulsory retirement at the NRA of 65. But - it will still be possible under age discrimination law to maintain mandatory retirement if the policy can be objectively justified as 'a proportionate means of achieving a legitimate aim'. In practice, many organisations will need to consider using capability procedures in circumstances where retirement was, in the past, a sensitive alternative.

Additional Paternity Leave Work and Families Act 2006 – some delays in implementation Fathers can now claim APL in for any child born on or after April 3rd Mothers can return to work after taking their 6 months' ordinary maternity leave (OML), in effect ‘handing over’ their additional maternity leave (AML) to fathers in the form of 6 months' APL. To qualify, the mother must have taken at least 20 weeks’ leave following the birth of her child at the point APL starts. Also - The European Commission has published a draft directive which, if adopted by the Council of Ministers, will increase Compulsory Maternity Leave (CML) from 2 to 8 weeks (at full pay).

Employment Tribunal Task force Some Statistics ( ) –382,400 claims were accepted by employment tribunals (up by 40%+ compared to ) –Highest award - £289,167 (sex discrimination claim) –Average award for unfair dismissal - £8,924 –Plus estimated £8,500 legal costs –Coalition Government’s task force to address.

Unfair Dismissal Qualification period for claiming the right not to be unfairly dismissed will rise from 1 to 2 years on 6 April 2012 The reform will also include a fee for lodging a tribunal case, in a bid to prevent vexatious claims Other moves which may be expected as part of ‘an employer’s charter’: –Exemption of small firms from certain (as yet unnamed) legal obligations; and –Reduction in the number of weeks that workers are entitled to claim statutory sick pay.

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