LEGISLATIVE CHANGES IN OCTOBER
A number of changes to employment law come into effect from October 2009. Make sure your organisation is not caught out. Some of the main changes are summarised below:
• The Working Families (Increase of Maximum Amount) Order 2009 SI 2009/1903 raises the maximum amount of a week’s pay, for the purposes of calculating certain statutory payments, from £350 to £380 as of 1st October. The weekly maximum is used to calculate statutory redundancy payments and basic awards for unfair dismissal, among other things.
• On 1st October, the National Minimum Wage Regulations 1999 (Amendment) Regulations 2009 SI2009/2009 raise the level of the National Minimum Wage (NMW) from £5.73 to £5.80 for workers aged 22 and over, from £4.77 to £4.83 for 18-21 year olds, and from £3.53 to £3.57 for 16 and 17 year olds. The Regulations also change the law so that tips can no longer be used to top-up wages and count towards the NMW. The Department for Innovation and Skills has promised a “Code of Practice” in relation to tipping and service charges.
• The vetting and barring scheme for checking the suitability for potential employees to work with children and vulnerable adults launches on 12 October. On this date, existing lists of barred individuals such as the list established under the Protection of Children Act 1999 will be replaced by two new “barred lists”. By 26 July 2010, applicants will be able to apply for registration with the Independent Safeguarding Authority (ISA). Once the scheme is fully implemented, anyone working or volunteering with children who are vulnerable adults in a “regulated” activity will have to be registered with the ISA. It will be an offence for an employer to hire a person in a regulated activity without first confirming his or her ISA registration. Employers will have a legal duty to refer appropriate information to the ISA.
MORE FATHERS AT HOME?
At present, employees may be eligible to take statutory paternity leave in relation to the birth or adoption of a child where they are the spouse, civil partner or partner of the child’s mother/adopter. Eligible employees are entitled to take one or two continuous weeks leave to enable the employee to care for the child or support the mother/adopter.
On 15 September 2009 the Department for Business Innovation and Skills announced plans to introduce additional paternity leave for births/adoptions on or after 3 April 2011. Mothers/adopters are currently entitled to 52 weeks maternity/adoption leave, and up to 39 weeks statutory maternity/adoption pay. Under the new proposals, up to six months of maternity/adoption leave could be transferred to the mother/adopter’s partner in the second six months of leave. This would enable mothers/adopters to return to work after six months while their partners use up their remaining six months of maternity/adoption leave. In addition, for a maximum of three months, the partner could receive statutory paternity pay if additional paternity leave was taken within the mother/adopter’s 39 week maternity/adoption pay period.
The proposals are subject to consultation and draft regulations are due to be published in due course. It will be interesting to see the take up of the additional parternity leave if these proposals become law.
ARE LAWYERS IN INTERNAL DISCIPLINARY HEARINGS A GOOD THING?
The Employment Relations Act 1999 gives employees a statutory right to be accompanied only by a work colleague or union official at disciplinary and grievance hearings.
In the recent case of R (on application of G) v The Governors of X School and another [2009] a music assistant facing disciplinary action sought to assert his right to legal representation at the internal disciplinary hearing on the basis that disallowing it would constitute a breach of his right to a fair trial under Article 6 of the European Convention on Human rights.
It was alleged that the teacher had engaged in inappropriate conduct with a 15 year old pupil. Given the circumstances, the school had a duty to report the teacher to the Secretary of State for Children, Schools and Families to decide whether he should be entered on the register for those who are unsuitable to work with children.
The High Court held that by reason both of the serious nature of the allegations of misconduct and the severity of the consequences of a referral to the Secretary of State, the teacher was entitled to enhanced procedural protection.
The scope of the ruling is limited to the specific facts of this case, but the decision highlights how important it is for employers to give appropriate consideration to the individual circumstances of each employee when carrying out disciplinary procedures.
It is only a matter of time before the argument is raised against a private sector employer. It could be argued that whenever an employee is dismissed for gross misconduct it will be difficult for them to obtain other employment. Should any employee accused of gross misconduct always be allowed legal representation? Where should the line be drawn?
Consideration should also be given to whether or not having legal representation at internal disciplinary hearings is in the interests of the employer or employee. The obvious downside to employers is delay and a significant escalation to costs and management time. Lawyers being present would change the informal nature of the internal hearing, which would in effect become closely akin to an Employment Tribunal hearing. On the other hand, allowing lawyers in could reduce future claims against an employer because the issues have been thoroughly addressed at an internal disciplinary hearing.
Unless the decision is overturned, employers should give careful consideration to any requests by employees to be legally represented at hearings, particularly where the employer is a public body or public authority.
SEMINAR AND TRAINING PROGRAMME 2009
BREAKFAST SEMINARS
These free 60-minute events start with registration and breakfast at 8.30am. Presentations begin at 9.00am finishing at 10.00am. All events are held at our Frederick Street offices. To book a place on any of these events please contact Luisa Deas, luisa.deas@balfour-manson.co.uk, tel: 0131 200 1402.
Tuesday 10 November:
Volunteers – Managing the risks
This seminar is particularly aimed at charitable and not-for-profit organisations.
During this free 60-minute seminar we will examine the legal position of volunteers within your organisation with particular emphasis on their status and distinction with employees.
Our employment specialists will give guidance on how to avoid potential claims and grievances. We will also be a look at the pros and cons of volunteer agreements and when they should be used.
Thursday 26 November:
Hiring, firing and retaining key employees
During this free 60-minute seminar we will examine the recruitment process, from advertising the position to drafting the employment contract. We will also look at how to resolve matters if an employee’s performance is below expectation and will discuss compromise agreements and dismissing staff. We will examine methods of retaining key staff in business units where commercially sensitive work is conducted by employees with a high market value and we will look at the risks of losing key people in key posts and retention strategies.
HALF-DAY SEMINARS
These free half-day seminars provide practical guidance on the most significant employment law developments during the year. The events start with a 9.30am registration, 10.00am presentation and finish at 1.00pm when a buffet lunch will be served.
Tuesday 8 December:
Round-up of employment law for 2009 and looking forward to potential developments in the year ahead.
To book a place on any of these events please contact Luisa Deas, luisa.deas@balfour-manson.co.uk, tel: 0131 200 1402.
TRAINING COURSES
We offer training on topics we have identified as key areas for HR professionals. These training sessions can be held either at our offices, in Edinburgh or Aberdeen, or, we can come to you.
The topic titles can be used as a template for a more bespoke in-house course for all levels of management including supervisors, directors or other senior officers within an organisation.
