• Employment law update
  • Reminder of changes this month
  • Future increase in the National Minimum Wage
  • P60s go electronic
  • Changes to the points-based immigration system
  • Update on the Equality Bill
  • Future extensions to family friendly leave?
  • Pensions - more news on NEST
  • More guidance
  • Some interesting cases
    • Discrimination: sex - part-time working
    • Constructive dismissal: behaviour towards other employees
• Health and safety news
  • First Corporate Manslaughter case adjourned
  • IIP award for healthy workplaces
• New on the website
• And finally....
  • How "extreme" is your overtime?
  • Staff unable to get to work due to the transport strikes?
• BusinessHR introduces HRCare services
• Opportunities at BusinessHR
• This month's hot topic

Just to remind you that the standard rates of statutory maternity, paternity and adoption pay increase from 4 April 2010, from £123.06 to £124.88 per week. Statutory sick pay (SSP) remains unchanged, at £79.15 per week.

Also as from this month:

• Employees in businesses with 250 employees or more have the right to request (unpaid) time off work to undertake training that will benefit them and their employer. See: /docs/legal/training.html
• "Fit notes" replace GP's sick notes. (See last month's hot topic and also:/docs/docs/legal/sickpay.html
• Employment tribunals will be able to pass information from whistle-blowing claims to the relevant regulator. See: /docs/docs/legal/whistleblowing.html
• The Information Commissioner may fine those who knowingly or recklessly breach the Data Protection Act. See: /docs/docs/legal/dataprotection.html
• Members of any registered occupational or personal pension scheme will normally only be able to draw their pension when they are 55 or older. The upper pension age, at which all pensions must start to be taken, remains 75. Both men and women only need 30 years of NI contributions to receive a full basic state pension. See: /docs/docs/legal/pension.html
• Fathers will be able to take up to six months of the mother's maternity leave, once the mother has returned to work. Effective from April 2010 but applies to babies due on or after, or children matched for adoption on or after, 3 April 2011. See: /docs/docs/legal/paternity.html and also this month's hot topic.

We also have new tax rates, which are as predicted a few months ago. The only difference of which we were not previously aware is a change in the rules regarding employer-supported childcare. Currently, in order to be tax-exempt, this must be made available generally to all employees. If lower-paid employees cannot benefit from the scheme (because a salary sacrifice for childcare vouchers would take their wages below the National Minimum Wage), strictly speaking the exemption is lost. The proposed changes (which will be introduced via a Finance Bill in the next Parliament) will allow the tax exemption in cases where the only reason employees are excluded is because of low earnings - this will be applied retrospectively for the tax year 2005/06 and subsequent tax years.

We have a few months' notice in which to accommodate the increase in the NMW, which will increase from 1 October 2010 as follows:

• adult rate for those aged 21 or over: £5.93 (increase from £5.80)
• those aged 18-20: £4.92 (increased from £4.83 per hour)
• those aged 16 and 17 (provided they are above compulsory school age): £3.64 (increased from £3.57)
• apprentices not otherwise covered by the NMW: £2.50.

Those quick off the mark will have spotted the change in the age bands - as from October, 21 years olds will receive the standard adult rate (prior to October, the age is 22).

And for the future? The European Parliament has been discussing the concept of an EU-wide minimum income, which MEPs agreed would help to reduce poverty. Currently 24 out of 27 countries have a minimum income system; only Bulgaria, Greece and Italy have nothing.

for further information on the National Minimum Wage, see: /docs/legal/minimumwage.html

HMRC has announced that P60s may be issued electronically as from this current tax year (2010/11). As from 6 April 2010, eP60s may be issued to employees rather than the paper version, however the effect of this will not be seen until next year as P60s are issued at the end of the tax year. Employers who opt for the electronic version should ensure that all employees have access to their P60s.

Details of the amended Income Tax (Pay As You Earn) Regulations 2010 are on www.opsi.gov.uk/si/si2010/plain/uksi_20100668_en#Backf00005

The Migration Advisory Committee has announced some changes to tiers one and two of the points-based immigration system. There will be:

• new points tables for the two tiers
• a simpler route for very highly-skilled workers without Master's degrees
• greater flexibility for short-term transfers by multi-national companies
• more protection against such transfers being used to fill long-term vacancies that should go to resident workers.

The changes to Tier 1 and Tier 2 can be viewed on pull.xmr3.com/p/2392-158708-1940/48609069/clickto31_nts-news-statement-of-policy.html

Applications will be considered under the rules in place on the date of the application.

Further changes will include altering the provisions on English language qualifications for those applying for permanent residence.

For further information on employing foreign workers, see: /docs/legal/foreignnationals.html

Nearly there! The third and final reading of the Equality Bill in the House of Lords took place on 23 March 2010, and has now been passed with some minor amendments which now go back to the House of Commons to consider.

A few more points to note:

• A proposed amendment to remove the default retirement age was withdrawn. (The Government is to formally consult on reforms to the default retirement age but has confirmed that no changes will be made before April 2011.)
• A clause on disability or health-related questions in recruitment was amended to make it an unlawful act to ask candidates questions about any disability or health conditions except in prescribed circumstances.
• 'Caste' may be included within the definition of 'race' at a future date.

It looks as though the Bill will be granted Royal Assent shortly, before the forthcoming election. The main provisions will come into force in October 2010.

The Equalities and Human Rights Commission (EHRC) is currently consulting on draft non-statutory guidance on the Bill for employers and employees, and draft statutory Codes of Practice, including the employment Code of Practice. These seem to have created yet more confusion! The EHRC draft employment Statutory Code of Practice says that vegans, atheists and Scientologists could be given the same protection against discrimination as religious groups, under the legislation. However, a spokesman for the Government Equalities Office said the Equality Bill does not change the existing definition of religion or belief. "The government does not think that views or opinions based on scientific, or indeed on political, theories can be considered to be akin to religious beliefs or philosophical beliefs. Nor was it the intention in introducing the legislation that such beliefs should be covered." He added that interpretation was a matter for the courts.

The Government has also announced plans for a benchmarking and improvement tool - The National Equality Framework for Business - which, it is hoped, will help businesses understand equality legislation and encourage best practice. The framework has a self-assessment test which allows employers to measure how well they are doing in tackling inequality at work, and to see what else they could do to make their workplace more diverse, and more attractive to the widest possible range of customers.

For more information on the Bill generally, see: /docs/legal/equalitybill.html

More proposals from the EU, concerned with family-friendly leave - a possible increase in paid maternity leave, the introduction of a maternity allowance for the self-employed, and an increase in parental leave. Needless to say these are going down like a lead balloon with some commentators who feel the economy cannot sustain these sorts of increases which would impact badly on our chances of economic recovery.

• Maternity leave: the Women's Rights Committee of the European Parliament has voted in favour of the following:
  • paid maternity leave (on full pay) of 20 weeks
  • paid paternity leave (on full pay) of 2 weeks
  • both of the above to apply where a child aged less than 12 months of age is adopted
  • additional paid maternity leave for particularly difficult situations, eg premature childbirth, children with disabilities, teenage mothers, multiple births and births occurring within 18 months of previous births.

  Currently, Statutory Maternity Pay in the UK is largely state funded, but there are concerns that employers may be called upon to contribute. The above proposals will go before the full European Parliament early next month.

• Maternity allowance: the EU Council has considered a draft Directive which proposes a paid maternity allowance of at least 14 weeks for self-employed women, assisting spouses and life partners of self-employed workers, such as farmers' wives. The amount of the maternity allowance will be decided by the individual member states.

• Parental leave: the EU Council of Ministers has adopted a Directive extending parental leave to four months for each parent. At least one of the four months cannot be transferred to the other parent (ie it is lost if not taken). All workers are covered, regardless of the type of their contract (eg fixed-term, part-time and temporary agency workers). A worker applying for or taking parental leave must not be treated less favourably for doing so and, when returning from parental leave, workers may request changes to their working hours for a limited period.

  Member states have two years in which to transpose the new Directive into national law.

Watch this space!

Not yet launched, and already some commentators are labelling this a "disaster".

The Government has announced the expected charging structure for the National Employment Savings Trust (NEST). The annual management charge is expected to be 0.3% of the value of the fund (this is low by industry standards). However, rather than paying for the start up costs, the Government will make a loan to NEST and the initial level of charges will include a 2% additional charge on all contributions (employer and employee) to repay this. It is estimated that the 2% additional charge could be in place for between 10 and 20 years.

Changes to the proposed automatic enrolment arrangements have also been made, resulting in further draft Regulations in January 2010 and in final Regulations on 11 March 2010. They come into force on 1 October 2012.

Finally, the Pensions Advisory Service has confirmed the government's intention to abolish contracting out of the State Second Pension from 6 April 2012. From that date, members of defined contribution occupational pension schemes, contracted-out personal pension schemes and stakeholder pension schemes will automatically be brought back into the State Second Pension. The change only applies to future state pension benefits and will not affect contracted-out rights accrued up to 6 April 2012.

For more general information on NEST, see: /docs/legal/personalaccounts.html

Firstly on data protection: the Information Commissioner's Office has published a Plain English Guide to Data Protection which aims to provide advice to businesses and organisations to help them comply with the law. It includes practical, business-based examples to help achieve this. For more details see {HTTP://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/the_guide_to_data_protection.pdf } Note that whilst it may be in plain English, this is not a quick read and it is not for the faint hearted as there are 192 pages!!

Secondly, on the vetting and barring scheme: the Home Office has issued guidance on the Vetting and Barring Scheme (VBS) which introduces tighter rules and checks for employers and employees who work with children or vulnerable adults. The guidance document contains detailed information about the action employers and employees will be required to take and outlines what they should do before July 2010, when voluntary registration starts. (It will be mandatory from 1 November 2010 for those starting or moving to a new role in a regulated activity to be registered.)

The guidance document can be found at www.direct.gov.uk/en/campaigns/Vetting/index.htm and is also on the ISA website, see www.isa-gov.org.uk/PDF/VBS_guidance_ed1_2010.pdf Sector specific guidance is also promised in due course.

Discrimination: sex - part-time working

Do be wary of refusing part-time work to your female employees and of insisting that they work full-time!

There have been a number of past cases where refusals of flexible working requests have been found to be indirect discrimination as more women than men are unable to work full-time. The case of Miller v Bellway Homes Ltd is another slant on this, in this case in a redundancy situation. Ms Miller, who was show homes manager, worked part-time. Prior to her maternity leave, she had worked full time as a sales manager. The company needed to make redundancies, one of the sales managers volunteered for this, and Ms Miller was offered his role, provided she took the post on a full-time basis. Ms Miller refused to change to full-time working and was made redundant.

She won her claim of unfair dismissal and sex discrimination. The Company appealed to the Employment Appeal Tribunal (EAT) who agreed with the tribunal. Since a requirement to work full-time is indirectly discriminatory, Bellway needed to be able to objectively justify the requirement of full-time work - it failed to do this.

Constructive dismissal: behaviour towards other employees

Does the unacceptable treatment of other employees justify a claim of constructive dismissal?

It can, is the answer! In Hunter v Timber Components (UK) Limited, Mr Hunter claimed constructive dismissal on the basis of the behaviour of one of the directors of the company. The behaviour in question (intimidating and bullying) was not directed at him personally, but towards his fellow employees. The original employment tribunal found that the employer had not committed a repudiatory breach of the claimant's contract, so the constructive dismissal claim did not succeed. The Employment Appeal Tribunal however decided that the behaviour of an employer does not necessarily have to be directed at the employee who resigns in order for a constructive dismissal claim to succeed. However, in this case the claim failed because the employer's conduct did not amount to a breach of trust and confidence in relation to this particular employee.

The first trial under the Corporate Manslaughter Act (R v Peter Eaton and Cotswold Geotechnical Holdings Ltd) has been adjourned as a result of Mr Eaton requiring urgent and intensive medical treatment. The case was to consider the death of an employee, Alexander Wright, who was crushed to death in 2008 when the sides of a pit collapsed while he was collecting soil samples. Because of Mr Eaton's medical treatment, it is unlikely that the case will be heard before the Autumn.

For more information on the Corporate Manslaughter Act, see: /docs/hasaw/manslaughter.html

Investors in People now has an award which recognises employers who invest in the health and well-being of their employees. IIP claim that effective and proactive management of health and well-being can improve business performance by increasing productivity, reducing sickness and absenteeism and enhancing employee retention. The award can be achieved by companies that already hold the IIP Standard, or as a stand-alone initiative.

Amongst the first companies to gain the "Health and Well-being Good Practice Award" are Claridge's, Kimberley-Clark and NHS Suffolk.

More details are available on the IIP website: see www.investorsinpeople.co.uk/Interactive/Awards/HWAward/Pages/GettingStarted.aspx

We're currently reviewing and updating all of our guides, and we've added a new page on Statements of Fitness for Work - see /docs/legal/fitnotes.html

If you work more than 10 hours unpaid overtime per week, you are considered by the TUC to be working "extreme overtime".

Whilst "Work Your Proper Hours Day" (the day when the average person who does unpaid overtime would start to get paid if they did all their unpaid overtime at the start of the year), was on 24 February, for those doing more than 10 hours per week, it would fall on 26 April.

The TUC identified those most likely to do extreme unpaid overtime as teachers, lawyers, health and social service managers.

One in four (25.3%) public sector workers worked unpaid overtime in 2009, compared with one in six in the private sector (18.3%). Public sector workers are also more likely to do extreme unpaid overtime, according to the TUC, especially if they are single women.

The predicted rail strike may result in a number of employees being unable to get to work next week. This is threatened for 6-9 April by members of the RMT and TSSA, and unions have warned the rail network will "effectively be shut down".

Our guidance is the same as for severe weather conditions - ie if you remain open and the employees are not able to get to work, or arrive late, then they are not entitled to be paid unless there is a specific clause in the contract of employment covering payment for this. However, simply not paying staff who are willing but prevented from getting to work is not likely to go down well. Better solutions include planning for such strikes and considering options such as allowing those who can to work from home; allowing people to take annual leave if they wish, or to make the time up where possible; setting up a system to put staff in touch with each other to share lifts; giving more flexibility in working time to permit people to travel in by other means.

If you decide to close down as you know that sufficient staff, or key staff, will not be able to get to work to justify opening, then check their contracts. If there is a lay-off clause, then you may use this. Otherwise, unless the employees agree to a period of unpaid time off, you will have to pay the employees their full pay.

Those whose employers take a hard line and whose pay is docked are unlikely to feel happy if they are also hit by the levy imposed by Unite on its members. Unite, which is paying the striking workers £30 a day, has announced that it is imposing a 2% levy on subs in April, May and June to support striking British Airways cabin crew.

Finding it difficult to keep abreast of all of the above changes?

Why not let us help you? We can review your contracts, handbook and HR policies, advise on any suggested additions and update them for you - and then keep them updated. Take a look at our HRCare range of services: www.businesshr.com

We are looking to expand further and need people to assist us with our business development on a regional basis. As this would be on a self-employed, commission basis, we are therefore looking for people who already have an established business base, good networking skills and a knowledge of HR or business consulting and who feel they could help us grow our business.

If you are interested, call our MD, David Lennan, on 07736 775767 for an informal chat, or email him at david.lennan@businesshr.com.

This month's hot topic will cover the new right of fathers to take some of the mother's maternity leave.

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