We did mention these in last month's newsletter, but a few more details have emerged subsequently.

Those whose babies are due on or after 5 October will benefit from the removal of the distinction between ordinary and additional maternity leave. For these employees, benefits other than remuneration (including the accrual of contractual holiday, life insurance, medical cover, gym membership and company cars) will continue throughout the entire period of maternity leave.

The confusion has arisen in relation to pension contributions. The new definition of "remuneration" in the SDA is "wages or salary", so legal advisors are saying that the implications are that employers may now be liable for pension contributions throughout the maternity leave. This would extend the period of pension contributions from 39 weeks to potentially a year. A Department for Business spokeswoman insisted the changes made to the SDA would not increase employers' costs. "When a woman is taking additional maternity leave but is not being paid, the employer is not required to make pension payments for her during this time." However clarity is definitely needed on this point!

Whilst employees see the increases in benefits, their chances of fair treatment seem to be diminishing. A survey of 1,100 company bosses and HR managers found that during recruitment, 52 per cent privately weighed up the chances of a candidate getting pregnant, taking into account her age and whether she was recently married, and more than three-quarters (76 per cent) of bosses would not take on a new recruit if they knew she was going to fall pregnant within six months of starting. More than two-thirds (68 per cent) said they would like more rights to ask female job candidates about their plans for a family.

Where tips are paid through the payroll as part of wages they can count towards the National Minimum Wage. If the money does not go through the payroll, tips cannot count as part of the minimum wage. Most restaurants run a "tronc" system, where someone holds the tips to be passed to waiting and kitchen staff.

The House of Lords have been debating the powers the government has to ensure tips go to staff and not to restaurant owners - Pizza Express for example was featured in the news as one of those who make deductions to cover staff national insurance payments. Peers also asked whether restaurants could be required to put their tips policy on their menus. They were told that the only rule currently is that customers should be forewarned if a service charge is automatically added to the bill.

BERR has agreed to consider the issue and "take all representations into account".

Since October 2004, the ability of ACAS to conciliate prior to a tribunal hearing has been limited to a fixed period (either 7 or 13 weeks, depending on the type of claim). However, in the light of the government's intention to abolish fixed periods of conciliation, ACAS has decided that as from now it is prepared to conciliate in all cases, irrespective of whether the fixed period has expired.

Whilst on the subject of tribunals, it would seem that tribunal judgements may be available online in the future.

Currently, copies of tribunal judgements can be obtained by sending the details of a case to Bury St Edmunds and paying a fee of £10. However, there is no easy way of searching for cases on particular subjects.

The tribunal service has a new computerised case management system, called Case Flow. Once this is implemented across all regional offices, a decision will be made about providing tribunal judgements online.

If this goes ahead, details of how employers handled a dispute would be public, and claimants would be named. So potential recruits would be able to check out a company, and also employers could check whether recruits had made previous claims and on what basis! This may cut down the number of claims - especially speculative ones from past employees - and also encourage more settlements where employers are reluctant to have their procedures and their staff all named and shamed publicly.

As from 1 May 2008, the rates payable to magistrates increased as follows:

• for self-employed magistrates: from £52.96 to £56.63 for a half-day (up to 4 hours) and £105.92 to £113.26 for a full-day (over 4 hours).
• for employed magistrates, from £42.37 to £45.30 for a half-day sitting and from £84.74 to £90.61 for a full day sitting.

You will be aware from previous newsletters that the government has started to replace the previous work permit system with a new 5-tier points based system.

There has been some confusion about highly skilled migrants, resulting in an embarrassing u-turn by the government. Around 50,000 highly skilled migrants entered the UK between 2002 and 2006. These people were told that they were required to reapply for their visas following the implementation of the new points-based system on 29 February this year. The changes to the system meant that many of these would not meet the new criteria and may have been forced to leave the UK. The High Court decided that the Home Office acted unlawfully and that those people who were admitted to the UK before 29 February 2008 have the right to live and work in the UK on the terms under which they originally applied. The High Court ruled that the original HSMP rules should apply to the non-European nationals who had migrated to the UK in the "legitimate expectation" they were entitled to a year-long stay, a two-year visa extension, then a further three years before applying for settlement.

And the government is also receiving bad publicity for "deceiving migrant workers" into paying for something which they will now get free. The Home Office website encourages migrant workers to pay £90 to register under the Accession States Worker Registration Scheme (WRS) and says: 'Once you have been working legally in the United Kingdom for 12 months without a break you will have full rights of free movement and will no longer need to register on the WRS.' However, the WRS ends on 30 April 2009 and from that date workers from the eight Accession States will have full rights of free movement.

To turn to the new points-based scheme, a few more details are available:

Tier 1 will have four categories:

1. general (already partly in force)
2. entrepreneurs
3. investors (this is similar to the existing investors route but will be a sub-category of the points-based system)
4. post-study work.

Tier 2 is for those who need a sponsor in order to apply to work here. As from later this year, possibly 1st October, any company wishing to take on an individual on a work permit or apply for an extension to an existing work permit, must be licensed as a sponsor. Companies wishing to apply for a licence as a sponsor may do so now - the application process involves an online application and then the submission of specified documentation within ten working days of the application date. Most applicants will then receive a visit from an officer of the Border and Immigration Agency as part of the evaluation procedure.

For more information, see the BIA website: www.bia.homeoffice.gov.uk/

In an attempt to cut the legislative burden, the Government is asking the European Commission to exempt UK companies that employ fewer than 20 people from future EU regulations. If approved, the exemption would be included in the draft European Small Business Act. If not, the government is requesting that small companies should be able to take a simpler approach to implementing the regulations. It also wants the European Commission to let it introduce key legislation on only one or two days a year, as the UK does.

"Some other substantial reason" is not the same as redundancy - so no entitlement to a redundancy payment

In Martland v Cooperative Insurance Society the EAT confirmed that a dismissal for "Some Other Substantial Reason", when the workers are immediately offered re-engagement on new terms and conditions of employment, is not the same as a redundancy dismissal (entitling them to redundancy payments).

The employees had argued that there was a reduction in the need for employees to do 'work of a particular kind'. The EAT said that 'work of a particular kind' referred to the generic type of job - in this case, insurance salesmen. The original tribunal had been entitled to find that the jobs were still essentially the same, despite the substantial changes to the terms and conditions of employment. There was no lesser requirement for people to do work of that particular kind, therefore no redundancies - and no entitlement to the employer's contractual redundancy payment scheme.

This decision will be binding on future cases.

At what stage is an employee deemed to have accepted a change to the contract?

If an employee does not agree with his/her employer's unilateral variation to the contract, he/she should protest - otherwise, he/she may be assumed to have agreed to this.

Mr Robinson's contract (GAP Personnel Franchises Ltd v Robinson) stated that he would be provided with a company car for which he could claim 25 pence per mile and that he would be given a month's advance notice of any significant changes. The mileage rate was incorrect - the company's policy was that the 25p rate applied to the use of private, not company cars and they had a lower rate, 15p per mile, for mileage in company cars. When Mr Robinson submitted his first expenses claim, he was therefore paid at the lower, company car rate. He queried this, and was told that the correct rate should be 15p per mile. He continued to claim the lower rate.

Five months later, when he resigned, he lodged a tribunal claim for breach of contract and unlawful deduction of wages.

The EAT decided that Mr Robinson was contractually entitled to the higher rate for the first month. The company was only in breach for the first month as Mr Robinson knew that it would continue to pay him at the rate of 15 pence per month after that.

Is it age discrimination, in a flexible benefits scheme, to ask some (older) employees to pay more for their benefits?

Possibly not. In Swann v GHL Insurance Services UK Limited, GHL Insurance Services was found not to have discriminated unlawfully. Its scheme gave employees a fixed 'flex-fund'. The fund was a percentage of basic salary used to "buy" a range of benefits which included private medical insurance (PMI), additional pension contributions, life assurance, critical illness cover, childcare vouchers, dental insurance, travel insurance, gym membership and payroll giving. Older individuals who wanted to take out the private medical insurance had to pay more out of their fund than younger employees: an employee, Mrs Swann, therefore brought a claim for age discrimination on the basis that the premiums for the PMI element of the flex package were age-related and therefore more costly for her than for a younger employee.

The tribunal decided that since the calculation of the flex fund was age-neutral, Mrs Swann had not been treated any less favourably than younger employees.

But they also - unusually - took the arguments one stage further, and considered what the outcome would be if they were wrong on this point. The tribunal considered if so, whether such treatment was justified as a "proportionate means of achieving a legitimate aim". They accepted that the main aim of the scheme was to enhance the recruitment/retention of staff; this was a legitimate aim and they also felt the scheme would achieve that aim. Before introducing it, the company had considered the views of its employees and sought external advice from a management company experienced in flexible benefits schemes. They had also established the PMI would be an attractive benefit to staff. The premiums within the PMI scheme were calculated by reference to actuarial assessments of the risk of an employee making a claim - all PMI providers calculate premiums based on age-banded tables. The tribunal noted that, after the first year, the premium would be adjusted to take into account the actual claim history of an individual employee and that the same discounts were available to all employees regardless of age. Two of the three tribunal members therefore felt that the company would have been able to justify any age discrimination in the scheme.

It may seem obvious, but a tribunal recently had to consider whether a manager who "habitually grabbed colleagues...in the testicles", called a senior salesman "the old parsonage", "old buzzard" and "old git" and who subjected underperforming salesmen to the "hairdryer treatment" was submitting his staff to unreasonable and bullying behaviour!

The EAT decided that Mr Parsons, in Parsons v Bristol Street Motors, was subjected to conduct which was plainly and unarguably likely to destroy the employment relationship. Mr Parsons was a sales executive who complained that his new manager, Mr Lawrence, "repeatedly and gratuitously physically assaulted him". A witness corroborated this complaint, saying that he had seen Mr Parsons beaten quite black and blue and he also spoke of Mr Lawrence habitually grabbing colleagues or striking them in the testicles. Mr Parsons also complained of the manner in which Mr Lawrence referred to him (see above), and also of instances of dangerous behaviour in the work place either instigated or condoned by Mr Lawrence including the use of an air gun, a mini motorbike and a go cart (the mind boggles).

What is so fascinating about this case, was that the original tribunal in Reading found that there had NOT been a constructive dismissal!

Gill Switalski, a City lawyer with one young son with cerebral palsy and another with Asperger's syndrome, claimed she was subjected to an 18-month campaign of bullying, leaving her with a mental illness and forcing her to resign from her £140,000-a-year job as head of the legal team at F&C Asset Management.

The tribunal found sex discrimination and harassment by senior management. It said she was treated less favourably than a male colleague with a special-needs child.

She won her claim for a record £13.4m for sex discrimination: for the psychiatric damage, loss of earnings, pension rights and career prospects.

Once an employer has been notified in writing of the pregnancy, birth or the fact that an employee is breastfeeding, the employer is under an obligation to do all that is reasonable to remove or prevent exposure to any significant risk that has been found. The employer should inform the employee about any risk and what action has been taken under The Management of Health and Safety at Work Regulations 1999. Failure to carry out a risk assessment is respect of a pregnant employee is unlawful sex discrimination.

In Stevenson v J M Skinner & Co, the employer held a meeting with the pregnant employee, and assessments were made and an agreement reached on the relevant risks. The employee tried to argue that a risk assessment had not been made as this was not confirmed in writing. The EAT decided that the employer is required to record the findings of a risk assessment but is not obliged to hand over those findings to the employee if information about the risks is provided orally to that employee.

But it's always better to be safe than sorry - ensure that your employee is given a copy of the assessment.

The HSE has launched a dedicated website section for new and expectant mothers which includes advice, FAQs, and case studies See: www.hse.gov.uk/mothers/index.htm?ebul=hsegen/10-mar-2008&cr=4

The examining body Edexcel has launched an online learning programme to provide students undertaking a work placement with the knowledge and understanding of potential risks and hazards in their workplace.

The learner participates in interactive exercises and completes health and safety theory and self assessment questions. Students who complete the programme will be recognised with a Level 2 BTEC award in Safe Learning in the Workplace.

More information is available at www.edexcel.org.uk/safelearner. The cost is £10 per learner.

Just one letter this month - an addition to our recruitment letters which is to an invite a candidate to a second interview. See: /docs/lf/recruit/index.html

Can we also remind you of our new premium service? For an extra £100 per year, any policies you generate on our website are then stored on our server. When you want to update your policies a special programme is run automatically which compares your tailored version against our latest template versions, shows you the differences and allows you to update the policy as desired. An update therefore can be done in minutes - easy! See: /intro/premiumservice.html

Apparently women are four times more likely than men to give away passwords for chocolate!

An interesting experiment done by Infosecurity Europe on 576 office workers outside Liverpool Street Station in London found that 45% of women (10% of men) were prepared to give away their password to a stranger masquerading as a market researcher with the lure of a chocolate bar as an incentive for filling in the survey. (The previous year was worse - in 2007 64% of people were prepared to give away their passwords for a chocolate bar!)

61% revealed their date of birth, and 60% of men and 62% of women provided their names and telephone numbers so that they could be entered into a draw to go to Paris. Armed with date of birth, name and phone number criminals are well placed to extract more valuable information that can be used in ID theft or fraud.

Over half of those questioned said they used the same password for everything (eg work, banking etc.) and half said that they knew their colleagues' passwords. Most people used only one (31%), two (31%) or three (16%) passwords at work. 43% rarely or never changed their password.

Those involved in the survey ARE aware of what they did and probably won't do it again as, after the survey was completed, each one was told that the survey was part of an exercise to raise awareness about information security!

And it's not just strangers we should be wary of! Many of us regard our work spaces as safe. Insurers Sheila's Wheels discovered a huge risk of identity theft caused by people trusting their colleagues - possibly too much!

The respondents in their survey reported:

• 83% claim to completely trust their colleagues
• 22% believe that their colleagues know as much about them as their closest friends
• 66% of office workers make private phone calls from their desks, openly disclosing personal information
• 20% have regularly overheard colleagues answer security questions, giving details of their mother's maiden name, place of birth, and credit or debit card security codes

Staff are also overlooked, as well as overheard. 61% said that their computer screen was clearly visible to colleagues sitting nearby. This poses a real identity theft risk, with 36% of office workers using the internet for personal banking. Almost a million make online financial checks on a daily basis.

3% admitted to letting a colleague use their bank or credit card for work purposes, even withdrawing money from an ATM on their behalf. And 14% used their office bins to dispose of private documents, such as utility bills, containing address information.

And also think of the risk of those who talk loudly on their mobiles!

How many conversations have you overheard on the train which possibly were confidential? Vodafone UK found that over 70% of workers admit to "talking shop" in public. One in five said they discussed business-critical subjects such as sales leads, and 15% added that they openly discuss confidential new products or services. More than a quarter had followed up on a lead overheard in someone else's conversation! Just 6% use code names for people, places or projects when talking in public.

It would seem that our employees are naively trusting and do not realise the risks they create - both for themselves and for the business. Take a look at our IT and mobile phone policies - if you don't have these in place, you may wish to implement them. If you do have them, then it's worth reminding your employees from time to time of these, and also ensuring that people are aware of your rules and do change their passwords etc regularly!

See: /docs/pol/IT2/index.html and /docs/pol/mobile/index.html

If you wonder what has happened as you travel into work on Thursday 15 May 2008, your absent fellow travellers may be participating in "National Work From Home Day". Organised by Work Wise UK, a not-for-profit initiative, with the approval of the TUC, CBI and British Chambers of Commerce, 'National Work From Home Day' offers employers and staff the chance to work at home for the day and experience the benefits of no commuting!

If you're considering more flexible forms of working - which has been shown to improve recruitment, retention, morale and absence levels - then do read our guide - see /docs/guides/flexible.html