Fraudulent CVs:

The DWP arranged for almost 3,000 hoax applications to be sent out to research whether employers discriminate against people with "foreign sounding names" and found clear evidence that they did. The use of standard application forms seemed to reduce the risk of discrimination. And two professionals (Kerrie Devine and Lee Joseph Whitehead) who fraudulently claimed to have qualifications they did not possess were given criminal sentences. Kerrie Devine was also ordered to pay £9,600 in costs and to do 150 hours of unpaid community work. In the current economic climate, where people are more desperate to gain employment, it would seem likely that more candidates will be encouraged to 'embellish' their applications, and also that unsuccessful applicants will be more likely to bring a claim if they suspect discrimination. So do read our guides before embarking on any recruitment activity and ensure that your managers are properly trained to select the best candidates whilst avoiding any unlawful discrimination. See: /docs/TPrecruitment.html

Checking the right to work in the UK:

Following the increase in fines for those who fail to check the right of a new recruit to work in the UK (currently up to £10K), plus some fairly well publicised cases on the issue, it would seem that most employers are finally getting to grips with this. Do ensure that you check the right of ALL new employees - guidance on this can be found on: /docs/legal/righttowork.html

Foreign workers:

The 5-tier points based immigration system which started to come into force throughout 2008, beginning with tier one (highly-skilled individuals) and then tiers two (skilled individuals with a job offer) and five (temporary workers), was joined by tier four (students) in March 2009. Every non-EEA student must be sponsored by a UK Border Agency-licensed education institution, supply biometric information and meet the eligibility criteria.

The system continues to evolve. From April 1 2009, tier one applicants have to hold a master's degree and should previously be on an annual salary of at least £20,000. Also, from autumn 2009 a new 'sponsor management system' requires colleges/universities to inform the UK Border Agency when students fail to enrol on courses or miss lectures. And the voluntary trial period of the sponsorship management system for Tier 4 sponsors went live on 5 October 2009. This trial period is intended to allow sponsors to continue using visa letters while gradually adopting the use of the sponsorship management system to issue confirmations of acceptance for studies, prior to this becoming mandatory in February 2010.

Every month our newsletter seems to have reported tweaks to the points based system, so no doubt there will be future changes - it's one to keep any eye on if you recruit foreign workers.

See: /docs/legal/foreignnationals.html

For the future?

Well, the Equality Bill will probably introduce the most controversial change in that, if passed as it currently stands, it will allow employers to positively discriminate during recruitment in favour of disadvantaged groups when choosing between candidates who are otherwise equally suitable. This has generated much debate and some pretty strong views - and is likely to create a range of problems for employers. A new clause has also been introduced on the use of pre-employment medical questionnaires and disability. As ever, the key is to have sound objective selection criteria, to apply these fairly, and to take active steps to reduce discrimination in your employment anyway - read our guides to recruitment and ensure that all of your managers are trained to get the best person for the job.

See: /docs/TPrecruitment.html

On 1 April 2009, the minimum statutory holiday entitlement increased to 5.6 weeks (28 days for someone working a five or six day week). This can include bank/public holidays. We have tended to advise combining the bank and public holidays within the annual holiday entitlement thus making the calculation for part-timers, fixed-term and casual contracts and those who join/leave during the year easier, fair and straightforward - if you do this, update your holiday forms and contracts accordingly.

Prior to April 2009 the additional holiday entitlement (anything on top of the basic four weeks) could be replaced by a payment in lieu, but since 1 April 2009, payment in lieu can only be applied to any days you offer above 28 days in total.

The shock news in 2009 was the fact that those on long-term sick accrue their full holiday entitlement during periods of sickness - even if they do no work in the year at all - and may then take this in a future leave year! This led to a bit of scrambling when the more astute decided that the European ruling only applied to the basic four weeks - therefore resulting in a rewriting of absence policies and contracts to prevent full contractual holiday accruing during periods of long-term absence.

The Government plans to replace GP's sick notes with "fit notes", which will focus on what people can do rather than what they cannot. This may help in getting people back to work sooner rather than later.

See: /docs/legal/stathol.html and /docs/guides/holidays.html

The working time limits for trainee doctors were reduced to 48 hours per week as from August 2009 - but still with some exemptions.

See: /docs/legal/workingtime.html

The right to request flexible working was extended to parents of children aged 16 or under, in April 2009.

Mothers of babies due on or after 3 April 2011, or parents who have been matched for adoption by that date, will be allowed to transfer up to 6 months of their maternity/adoption leave (and 13 weeks of their pay) to the father/partner.

A new revised European Pregnant Workers Directive is under consideration: this will increase maternity rights further but is unlikely to come into force before 2011.

See: /docs/legal/maternityparental.html

Our newsletters reported a vast range of discrimination cases over the year.

Case law continued to develop and we saw the principle of 'discrimination by association' becoming more common. The case of Coleman v Attridge Law and Steve Law established that a woman who had no disability herself, but who was the principal carer of a disabled son, could claim disability discrimination as she was discriminated against on the grounds of her association with a disabled person.

We also saw a broader interpretation of what constitutes a belief. In Nicholson v Grainger plc and others, the Employment Appeal Tribunal agreed that an individual's (strongly held) beliefs about climate change and environmental concerns is capable of being a 'philosophical belief' for the purposes of the Regulations. In another case, Alan Power v Greater Manchester Police. a police trainer successfully argued that his belief that psychics can contact the dead is capable of protection (although he lost his case as he was found to have been dismissed for conduct rather than for his belief).

Two other cases were particularly worthy of note: London Borough of Islington v Ladele and McFarlane v Relate Avon Limited. In both cases, the employees requested not to have to undertake some of their duties as they felt these were contrary to their faith. The EAT in both cases confirmed that an employer may require the employee to undertake the full duties of the role, especially where refusal is contrary to its own equal opportunity policy. Employers should not be forced to compromise their commitment to equal opportunity to accommodate the wishes of an individual employee, even where those wishes are based on a strong religious conviction. The Court of Appeal went even further in Ladele and stated that it would be unlawful for a civil registrar to refuse to perform civil partnerships, given that it is unlawful for those providing a service or exercising functions of a public nature to discriminate on grounds of sexual orientation.

For the future?

The Equality Bill aims to streamline further all the different bits of discrimination legislation and is now scheduled for implementation in Autumn 2010. The draft Bill includes proposals on positive action, extension of age discrimination to suppliers of goods and services, extension of duties on public bodies to promote anti-discrimination in all areas, and a potential requirement to publish statistics on gender pay gaps. The most controversial clauses are probably those that enable employers to positively discriminate between two equally good candidates, and a potential 'non-gagging' clause preventing employees from being required not to discuss their salaries with their colleagues.

See: /docs/TPduringequality.html

By far the most significant change in 2009 was the repeal of the statutory dispute resolution procedures, which were replaced with a redrafted ACAS Code of Practice on Disciplinary and Grievance Procedures and accompanying guidance. Tribunals are now able to adjust awards by up to 25% (previously 50%) where either party has unreasonably failed to follow the Code of Practice (previously the statutory procedures). Where a tribunal award would also be increased because the employer has not issued a written statement of terms and conditions, the new adjustment is to be made first.

ACAS were given extended conciliation powers and the fixed periods were removed. They also extended their helpline hours to accommodate the increase in workloads.

Most current cases will be working to the new rules, so hopefully you have adjusted your policies on all things related to dismissal, such as fixed-term contracts, redundancy, and absence; and are aware of when the current Code of Practice applies. The changes were introduced to make life simpler for the employer but one of the problems we found was reverting to our previous practices for those cases where the statutory procedures no longer applied! Should we give redundant employees the right of appeal? Or those being dismissed on ill-health grounds? (The Code of Practice only covers dismissals due to misconduct or poor performance.)

Many employers chose to continue to work in accordance with the dispute resolution procedures, and there is no harm in doing this where it works for you, but you must be sure where the legislation ends and your own tighter procedures come in. Many employers also decided to retain the verbal warning stage in their disciplinary procedures - even though the ACAS Code does not require this stage, but puts more emphasis on trying to resolve issues at an early stage without formal disciplinary action.

Some interesting developments included the right to be accompanied. We experienced situations where employees brought a union representative without being a member of that union (there is nothing to prevent this if the representative is willing to provide that support) and the cases of Kulkarni v Milton Keynes Hospital NHS Trust and R (on the application of G) v The Governors of X School confirmed that where the employee might be unable to work in the future if the disciplinary charges are proved, that person has a right to legal representation at internal disciplinary hearings under Article 6 of the European Convention on Human Rights (the right to a fair trial). This would cover medical professionals, teachers and also anyone whose dismissal must be reported to a regulatory body with the result that they cannot work again in that industry (eg care workers, those in jobs regulated by the FSA etc).

See: /docs/TPduringdiscipline.html and /docs/TPduringgrievance.html

The Employment Rights Act 2008 changed the methods used to enforce the NMW and calculate arrears including an unlimited fine for underpayment of the NMW or employment agency offences; and it also strengthened the investigative powers of the Employment Agency Standards Inspectorate.

From 1 October 2009, employers were no longer allowed to include tips, gratuities or service charges within the calculation of the NMW (even when processed through the payroll) and in a recent case (Hamilton House Medical Ltd v Hillier) the EAT has confirmed that basic rates of pay must be at least the NMW even where the employee's pay is always enhanced by premium supplements.

From October 2010, it is expected that 21 year olds will receive the standard adult rate.

Employers with workers on or close to the NMW may wish to budget for the increases made each October as soon as they become known and to view the age profile of their workforce to plan for the extension of the adult rate.

See: /docs/legal/minimumwage.html

Following the outcome of the Heyday case, employers can still fairly dismiss employees on the grounds of retirement when they reach the age of 65 (or at any time after this). The statutory retirement procedure must be followed (giving at least 6 months' notice of retirement) and the employee must be aged 65 or over. However this is up for review earlier than expected: the government plans to review this in 2010, rather than 2011 as previously planned.

This year saw an increasing number of larger employers shutting their final salary pension schemes, many of which had been closed to new members for some time.

With effect from 6 April 2010, both men and women will only need 30 years of National Insurance Contributions in order to claim a full state pension.

As from 2012, it will be compulsory for employers to contribute to the new personal account pension scheme, which employees will automatically join when they start a new job, unless the employer provides an alternative which is as good or better. Again, this is something to start budgeting for.

See: /docs/guides/retirement.html and /docs/legal/pension.html  

Trade unions may now refuse membership on political grounds, eg a union can now expel a member of the British National Party.

On 1 October 2009, a revised code of practice was issued by ACAS, which seeks to clarify the rights to time off for union duties and how payments for these should be calculated. This took effect on 1 January 2010.

It will shortly be illegal to deny employment to anyone who appears on a so-called 'Trade Union blacklist'. This has come about as a result of recent blacklisting, which was happening across the construction industry in particular. The regulations will also apply to dismissing on such grounds, and agencies will be unable to refuse services to anyone on such a list. Unions, as well as individuals, will have a right to issue proceedings for compensation if they suspect they have been blacklisted, so do be careful not to do so! It is expected that this will be implemented in April.

See: /docs/legal/tradeunions.html

Organisations with at least 1000 employees within the EEA and at least 150 employees in each of two or more member states will be subject to a revised European Works Council Directive with effect from April 2011. This does not affect very many of our clients, so for those interested in learning more, see /docs/legal/consult.html

Employers of people who work with children or vulnerable adults are now required to follow a centralised, integrated pre-employment vetting procedure, which builds on the existing Criminal Records Bureau checks and will allow employers (and parents who employ child minders etc) to do a simple online check of an applicant's barred status and to be informed immediately if an employee becomes barred. Employers' failure to carry out the checks could result in a five-year prison sentence or fines of up to £5,000.

The scheme is being phased in up to 2015, but since 12 October 2009, the two barred lists (one for children and one for adults) are introduced and can be checked as part of an enhanced CRB check.

As from 26 July 2010 those who are new to working with children or vulnerable adults, or who currently work with children or vulnerable adults and who are changing jobs, can apply to become ISA registered.

From November 2010 there is a legal requirement for new employees (or those who are changing jobs) to register with the ISA and for employers to check their status.

From January 2011, all existing employees and volunteers working with children or vulnerable adults who have not been CRB checked will need to register. Those who have already been CRB checked will also need to register, starting with those who are not registered, and then with those whose CRB checks are the oldest. It is expected that employers will have until 2015 to ensure that all current employees and volunteers working in a regulated activity are registered. It is currently proposed that new and existing staff carrying out 'controlled activity' will not have to apply for ISA registration until this time.

See: /docs/legal/safeguarding.html

The school leaving age will rise to 17 in 2013, and 18 in 2015. Those who take jobs before they are 18 will have to do at least one day of accredited training. All 16 to 18-year-olds who meet the entry criteria will be entitled to an apprenticeship by 2013. These regulations are a way off but should be taken into consideration with regard to future manpower planning.

See: /docs/legal/youngpersons.html

From April 2010, employees who have more than 26 weeks' service, and who work for an organisation with 250 or more employees, will have a right to request time off for training, although if granted, this may be unpaid. It is envisaged that the procedure for making such requests will be similar to that for flexible working requests.

As from December 2011 at the latest, agency workers will have the right to the same pay and conditions as their colleagues after 12 weeks' employment. You may wish to review your use of long-term agency staff long before we get to this stage!

See: /docs/legal/agency.html

The Health and Safety (Offences) Act 2008 came into force on 16 January 2009. This Act raised the maximum fine which may be imposed in the lower courts to £20,000 for most health and safety offences; made imprisonment an option for more health and safety offences in both the lower and higher courts; and allows certain offences, which previously could only be tried in the lower courts, to be dealt with by either the lower or higher courts.

The Sentencing Guidelines Council has published new draft guidance on sentences for offences which resulted in the death of one or more persons. The new guidance suggests that fines should be calculated in millions of pounds (but with no fixed correlation between the amount of the fine and a company's turnover or profit) and should not usually be below £500,000. They also recommend that publicity orders should be imposed in virtually all cases and organisations may be made to put a statement on their websites.

See: /docs/hasaw/manslaughter.html

On 1 October 2009, the fees for registering or renewing an entry in the Data Protection Register were revised and from April 2010 the Information Commissioner will be able to fine any Data Controller who knowingly or recklessly breaches the Data Protection Act.

See: /docs/legal/dataprotection.html

The number of tribunal cases continued at a high level - the Tribunals Service Annual Report 2008-09 recorded 151,000 claims - maybe not unexpected given the recession and the number of people struggling to find jobs.

Since 6 April 2009, employment judges have been able to hear claims alone for holiday pay and stage 1 equal pay, without further panel members being present. Other changes include a rule providing for the automatic dismissal of proceedings where the parties to an ACAS settlement have confirmed in writing their understanding that the proceedings covered by the settlement will be dismissed and the claimant has withdrawn the claim.

For the first time ever, the review of compensation limits has resulted in a reduction! The new rates apply to dismissals taking effect on or after 1 February 2010.

See: /docs/legal/tribunals.html and: /docs/legal/keystatistics.html

Sadly, the news continues to be full of reports of redundancies and the closures of some of our well-known high street stores.

Despite concerns about potential age discrimination, case law (Rolls Royce plc v Unite the Union) has confirmed that including length of service as a criterion within a redundancy selection matrix which contains a number of other criteria is OK.

But any enhanced contractual payment schemes that do not mirror the statutory redundancy payment scheme need to be objectively justified - this is not easy to do.

See: /docs/sbs/redundancy/index.html and /docs/legal/redundancy.html