• Employment law update
  • Blacklisting ban now in force
  • Increase to statutory payments and new legislation in April
  • Changes to PAYE filing for annual returns and penalties for late payment
  • Equality Bill - amendment re pre-employment health questionnaires
  • Future changes to family rights?
  • Some interesting cases
    • WTR: carry over of statutory holiday following absence on sick leave
    • Discrimination: dress codes
    • Discrimination: age
    • Discrimination: agency workers
    • Changes to contractual terms
• Health and safety news
  • Fines for Corporate Manslaughter
  • Possible future extension to smoking ban
  • Swine flu helpline closed
• New on the website
• And finally....
  • Discrimination in recruitment or not?
  • Would you want a shorter working week?
• BusinessHR HRCare services
• This month's hot topic

Last month we reported on proposals to introduce new regulations which would ban the use of blacklists to discriminate on grounds of union membership or activities. These were expected to be introduced in April, however, the Government has moved more quickly than anticipated on this and brought these into force on 2 March instead.

Under the Regulations, current and former trade union members may bring a tribunal claim if they believe that they have been refused employment, subjected to a detriment, or unfairly dismissed for a reason relating to a blacklist. Employment agencies may not refuse their services to a worker who appears on a blacklist.

It is also unlawful to compile, use, sell or supply blacklists containing details of people who are, or have been, trade union members or who are taking part, or have taken part, in trade union activities where the blacklist may be used by employers to discriminate in relation to recruitment or the treatment of existing workers. (Such lists in themselves are OK if they are supplied in the public interest or with the consent of the people on the list - it is the use of them to discriminate unlawfully which is the issue.)

Similar to discrimination law, once the claimant has presented facts from which the tribunal could conclude that the regulations have been breached, the employer or agency has to show that it did not act unlawfully.

The tribunal may award compensation, including damages for injury to feelings, and/or an order that the respondent take action to reduce or remove the harm caused.

Just to alert you that the standard rates of statutory maternity, paternity and adoption pay will increase next month - from £123.06 to £124.88 per week from 4 April 2010.

Statutory sick pay (SSP) will however remain at the current rate of £79.15 per week.

Also as from next month:

• Employees in businesses with 250 employees or more will 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" will replace GP's sick notes. See this month's hot topic and also: /docs/legal/sickpay.html

• Employment tribunals will be able to pass information from whistleblowing claims to the relevant regulator. See: /docs/legal/whistleblowing.html

• The Information Commissioner may fine those who knowingly or recklessly breach the Data Protection Act. See: /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. Both men and women only need 30 years of NI contributions to receive a full basic state pension. See: /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/legal/paternity.html

HMRC is reminding employers that their Employer Annual Returns must be filed on-line by the 19 May deadline. Small employers with fewer than 50 staff may no longer submit paper returns as an alternative. Employers do not need to keep a hard copy of their Employer Annual Return if they file it on-line themselves.

To comply, employers must register with HMRC's PAYE On-line service: www.hmrc.gov.uk/paye. Small employers can use HMRC's free software to file their data, while larger employers can purchase a range of commercial software. Alternatively, a third party can file on an employer's behalf.

From May 2010, there will be new penalties for late (or partial) payment of PAYE-related bills (including Income Tax, National Insurance Contributions, student loan deductions and Construction Industry Scheme deductions), calculated as a percentage of the amount paid late. For in-year payments, the percentage increases if the number of late payments in the year increases.

Employers who may have problems meeting the payment deadlines are advised to contact the Business Payment Support Service on 0845 302 1435.

For further information on PAYE, see: /docs/guides/PAYE.html

An amendment has been made to the Equality Bill which will prohibit employers from asking candidates about any medical conditions they have, before an offer of employment has been made. The House of Lords has accepted the amendment, which now goes to the Commons.

Employers will still be able to ask questions for the purposes of disability monitoring and in order to make adjustments to interview facilities and will still be able to withdraw a job offer if a health questionnaire then finds that the candidate is not capable of doing the job and reasonable adjustments cannot be made.

The House of Lords did not however include a proposed amendment which would have abolished the default retirement age.

See: /docs/legal/equalitybill.html

It would seem that we may have to cope with yet more changes to family rights!

Firstly, the Government is considering the following:

• a change to the timescale under which a father gives notice to take his two weeks' paternity leave. Currently, fathers are required to give notice to take paternity leave not later than the qualifying week, ie fifteen weeks before the expected week of birth (the same timescale as the mother gives, but she may be taking up to a year's leave). BIS plans to consult publicly on this later in 2010 to see whether the notice requirement for fathers is too long.
• whether to introduce a new "paternity allowance" for fathers who do not qualify for paternity leave (due to insufficient service or earnings), similar to the maternity allowance available to mothers who do not qualify for statutory maternity pay.
• an increase in parental leave from 13 weeks to four months, to comply with the new European Parental Leave Directive, and a possible increase in the age of the child to which this applies (currently under 5).

And whilst our Government is looking at the above issues, the European Parliament has also passed draft legislation to extend maternity leave to 20 weeks on full pay. UK maternity leave and pay is currently up to a year off, with the first six weeks paid at 90%, followed by 33 weeks of statutory maternity pay at the fixed rate and 13 weeks' unpaid leave.

Employers can currently claim reimbursement for statutory maternity pay, but some commentators are concerned that the additional cost could be passed on to business. A spokesman for the Institute of Directors said: "The directive is a massive worry to us. We estimate that the UK will be hit with a bill of £1.5bn to £2bn a year - a very substantial cost...Given the state of the public finances, there has to be a strong risk that employers would end up being forced to pay." If so, there are also concerns that employers will discriminate unlawfully against women of child-bearing age because of the increased costs of their potential maternity leave.

WTR: carry over of statutory holiday following absence on sick leave

We now have the first UK tribunal case on this, following two major European Court of Justice (ECJ) rulings last year (Pereda v Madrid Movilidad SA and Stringer v HMRC) which held that an employee should be allowed to carry over his/her annual leave entitlement to the next year if he/she has been unable to take it.

The case is Shah v First West Yorkshire. Mr Shah was off work for three months between January and April 2009. During that period he received contractual sick pay, with the exception of the pre booked period of annual leave, when he received full holiday pay. His holiday year ran from April to end March. After his request to claim back four weeks' holiday that he had previously booked (and which fell within his period of sickness absence) was refused, he brought a claim. The tribunal found that:"Shah is entitled to take the holidays which he was prevented by ill-health from taking in March of 2009 at some subsequent time in the following leave year."

The UK Working Time Regulations (WTR) clearly state that if any employee does not take his/her statutory leave during the leave year, then whilst the additional statutory leave (1.6 weeks) may be carried forward with the agreement of the employer, the basic four weeks' statutory entitlement is lost. Whilst the European case may be binding immediately on public sector employers, some private employers may have decided to wait until the Government changed the WTR before changing their own practices. However, whilst this tribunal case is not binding on other tribunals, it does suggest that tribunals are prepared to comply with EU law regardless of what the UK legislation says, and employers wishing to follow best practice (or to minimise risk) should change their policies to allow leave to be carried forward due to illness.

For further details on this see: /docs/guides/holidays.html

Discrimination: dress codes

The Court of Appeal has now upheld the Employment Appeal Tribunal's (EAT) decision in Eweida v British Airways, that a dress code which prevented Mrs Eweida from wearing a small, visible cross with her uniform, was not indirect discrimination against Mrs Eweida on the grounds of her religion.

The EAT had commented that Christians "generally" do not consider wearing a cross to be a requirement of their religion. Whilst British Airways had amended its dress code to allow for the wearing of all religious symbols, it would not admit that the original policy was unlawful and refused to pay Mrs Eweida for the three months she was suspended from work.

The Court of Appeal noted that if a solitary employee could be indirectly discriminated against, this could place an impossible burden on employers. Therefore in order to uphold indirect discrimination, some identifiable section of a workforce, quite possibly a small one, must be shown to suffer a particular disadvantage which the claimant shares. The Court also found that BA's staff dress code and the ban on a visible neck adornment, was a proportionate means of achieving a legitimate aim.

Discrimination: age

This case deals with a lady who was deliberately trying to make money out of making age discrimination claims against employers who were prepared to settle, rather than fight a tribunal claim.

In Keane v Investigo, Ms Keane, an accountant in her fifties, applied for 20 vacancies for recently qualified accountants with limited experience. Ms Keane was clearly overqualified for these.

When not short listed for these, she lodged age discrimination questionnaires and subsequently age discrimination claims against the 11 agencies who rejected her, claiming that the adverts indicated they wanted someone junior, and therefore younger. Six settled, but five of the agencies went to a full hearing.

The tribunal said that in order to suffer a detriment or disadvantage as a result of a discriminatory act, any application for a job must be genuine. Since Ms Keane didn't actually want the jobs, her applications were not genuine and she suffered no detriment or disadvantage. The EAT agreed and said that even if the adverts could be found to be indirectly discriminatory, the application had to be genuine before a disadvantage could be suffered.

Discrimination: agency workers

The Court of Appeal, in quite a complicated case (Muschett vs HM Prison Service),found a loophole in the law and decided that agency workers are not necessarily entitled to protection under current discrimination legislation.

Employees, workers who are contracted to personally undertake any work, and agency workers who are actually employed by an employment agency directly ARE covered, but Mr Muschett was not!

Mr Muschett was supplied by Brook Street to work as a temporary laundry assistant at a prison.

The tribunal, the EAT and then the Court of Appeal found that he was not an employee of Brook Street, nor of HMPS: he was a temporary worker working under a contract for services. There was no contract to carry out the work personally: Mr Muschett was under no obligation to work for HMPS and could terminate his engagement with them at any time without giving notice. Brook Street could also substitute another person for him if he wished to end his assignment.

This judgement highlights a loophole in discrimination legislation for agency workers who are neither employed by either the employment agency that supplies them, nor the end-user.

The Equality Bill does not address this issue. Nor does the agency workers legislation stemming from the Temporary Workers Directive, which covers employees and 'workers' (which also implies that the services must be required to be carried out personally by the individual).

Changes to contractual terms

A nice decision for employers for once!

In Bateman v Asda Stores, the EAT found that Asda had set about making changes to terms and conditions in the right way. Asda had wanted to harmonise terms and conditions for all of its staff. There were two sets of terms and conditions: the majority of its staff were on one set of terms and conditions, 18,000 were on the old terms. Following extensive consultation, over 9000 staff agreed to change but others refused and, when those who refused were simply transferred to the new terms, 700 subsequently brought claims for unauthorised deductions from wages, breach of contract and unfair dismissal, resulting in 6 test cases.

The staff handbook stated that Asda "reserved the right to review, revise, amend or replace the contents of this handbook, and introduce new policies from time to time reflecting the changing needs of the business..." The handbook, which was contractual, also included details of pay and other conditions of employment.

The EAT said that a broad contractual right to alter terms and conditions of employment in line with business needs can, even if contained in a contractual Company Handbook, permit an employer to make unilateral changes to contractual terms, including rates of pay and hours of work, without the need for the express consent of employees, provided that the changes are properly implemented and the employer acts in line with the implied duty to maintain trust and confidence.

(Note that an employer who varies a contractual term without notice or consultation may still breach the implied term of mutual trust and confidence. Asda had consulted extensively with employees prior to making the change, and the majority of employees did not claim to have suffered any financial loss as a result of the change.)

For the full details of this case, see www.bailii.org/uk/cases/UKEAT/2010/0221_09_1102.html

Our January newsletter mentioned the draft new guidelines from The Sentencing Guidelines Council, which issues advice to the courts on sentencing for Corporate Manslaughter offences. The previous guidance suggested fines of between 2.5-10% of annual turnover for a first offence. The new guidelines have now been confirmed, and have removed the link with turnover.

The suggested minimum fines are as below, and will apply to organisations sentenced on or after 15 February 2010:

• for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 - fines of up to millions of pounds and seldom below £500,000. Note: Corporate Manslaughter offences involve both a gross breach of duty of care and senior management failings as a substantial element of the breach.
• for health and safety offences causing death, typically under sections 2 and 3 of the Health and Safety at Work etc Act 1974 - fines of up to hundreds of thousands of pounds and seldom below £100,000. This figure is lower because health and safety offences are committed whenever the organisation cannot show that it was not reasonably practicable to avoid a risk of injury or lack of safety. There may only have been a very limited falling below the standard required for an offence to be committed.

Note that actual fines imposed could be much higher and are meant to be punitive and sufficient to have an impact on the organisation.

When determining the fine, the court will take into account a lot of factors including how foreseeable the injury was, how common this kind of breach is in the business, how far up the organisation responsibility for the breach goes, whether there were other serious injuries involved, whether any prior warnings or other "near misses" had been heeded, whether the breach was because of cost cutting, whether the business previously had a good safety record and responsible attitude to safety etc. Size of the business is not a mitigating factor, and the law expects the same standards from large and small organisations. Other factors which would not be regarded as relevant include any impact upon the shareholders; the effect upon directors; that the organisation's prices may have to be raised as a result of the fine; the liability to pay civil compensation and the cost of meeting any remedial order.

The courts are also advised to make publicity orders in virtually all cases - these require organisations to publish statements about the conviction, give details of the offence, the amount of the fine and the terms of any remedial order. This should ensure that the conviction becomes known to shareholders, customers and also to local people in the case of public bodies.

A remedial order may also be served if any specific failings involved in the offence have not been remedied by the time of sentencing.

For further information on the Act, see: {HTTP:www.businesshr.net/docs/hasaw/manslaughter.html}

The government is considering extending the smoking ban to cover the area outside entrances to workplaces and offices.

The Department of Health had pledged a review of smoking laws this year to examine whether the legislation is working and where it can be improved, and will also enable assessment of what more can be done to extend protection.

The health secretary Andy Burnham, said: "I firmly believe we can halve smoking by 2020. In 10 years' time, only one in 10 people will smoke."

Famous last words?

The Government has now closed the national swine flu helpline and anyone with flu symptoms is advised to visit their GP as usual.

We have therefore removed our guide to managing swine flu from our health and safety section.

We've added a legal overview to time off for training (see: /docs/legal/training.html and a suite of letters and a form to help you manage the process (see: /docs/lf/train/index.html We've also added a guide to PAYE and Income Tax to the pay and benefits section, see: /docs/guides/PAYE.html

• Would you advertise for "cool and good-looking" staff?
• Is the term "junior stylist" ageist?
• Is the term "reliable" OK?

Abercrombie & Fitch (who last year found themselves subject to a lot of bad press for disability discrimination when they asked a girl to cover her prosthetic arm) are potentially risking further claims with a job advertisement for "cool and good-looking" staff. Since the job is based in Aberdeen, the word 'cool' may well apply to most applicants - but only owing to the weather up there at the moment! "Cool" in its other sense could be considered to mean "younger" and "good looking" could potentially result in claims from disabled people with facial disfigurements. Experts have warned that their advert leaves them wide open to discrimination claims.

The Jobcentre Plus in Newcastle refused to accept an advertisement from a salon for a 'junior stylist' because they said it would be ageist. The salon owner wanted someone who was nearly qualified but still in training. She said that she had had a 45-year-old junior stylist before, that the term refers to the level of qualification and "has been used for years in hairdressing and is widely known in the industry". The Department of Work and Pensions defended the Jobcentre's decision. So "junior stylists" must be renamed!

What about "reliable"? The Jobcentre Plus in Thetford refused to place an advert for a cleaner which stated that applicants 'must be very reliable and hard-working'. The JobCentre said that the word 'reliable' meant they could be sued for discriminating against unreliable workers. A firm of leading solicitors described this as "clearly absurd" and said that "the job centre employee has got it badly wrong." The Job Centre has now confirmed that the use of the word "reliable" is acceptable.

Read our guide to discrimination in recruitment - see: /docs/legal/recruitment.html

A report by nef (the new economics foundation), suggests that a 21 hour working week could become the norm in the future.

The report says the nine-to-five, five-day working week is "a relic of the industrial revolution", and suggests that a 21-hour working week could help distribute paid work more evenly across the population, reduce unemployment and overwork. Whilst people would earn less, they would benefit from an improved quality of life and would have more time to carry out worthy tasks. They also said that there is evidence that people who work shorter hours are "more productive, hour for hour."

The report says that earnings would have to be made more equal through a higher minimum wage and restraints on top pay, and that National Insurance contributions should be based on the number of hours worked rather than the number of employees.

See: neweconomics.org/sites/neweconomics.org/files/

Why not take a look at our HRCare range of services which offer employers of all sizes the opportunity, for a fixed price, to minimise the financial risk of employing staff. To learn more visit our new website at: www.businesshr.com

This month's hot topic will cover the new "fit notes".

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