member support HR & Employment Law Update support when you most need it Sarah Linden Deputy Senior Solicitor, ASCL 4 June 2015

Transcription

1 member support support when you most need it HR & Employment Law Update Sarah Linden Deputy Senior Solicitor, ASCL 4 June 2015

2 Contacting ASCL ASCL Hotline

3 PART 1 Legislative changes

4 Collective consultation period reduced Employment Tribunal fees Recent reforms Pretermination negotiations Third party harassment abolished Acas early conciliation DBS filtering 2013/14 Whistleblowing public interest test Settlement agreements New unfair dismissal statutory cap New TUPE regs Financial penalties for losing employers Flexible working rights extended

5 The year ahead April Shared parental leave Adoption pay & leave Autumn (expected) Fit for Work scheme 2015 May General Election Autumn (expected) Whistleblowing reporting Caste discrimination

6 Conservative proposals

7 Industrial action Strike ballots in education: Minimum 50% of voters must turn out to vote 40% of those voting must vote in favour 3 month time limit after ballot for strike to take place Prevention of intimidation of non-striking workers during strike Transparent opt-in process for political fund of trade union subs

8 Industrial action continued Manifesto pledges not currently included: 14 days notice before strike action Removing ban on using agency workers to cover striking employees Criminalisation of some forms of picketing Requiring unions to set out on ballot paper the exact form proposed action would take with a vote on each aspect of the dispute

9 Other Conservative proposals British Bill of Rights To replace Human Rights Act 1998 Cap on public sector enhanced redundancy payments Limited to 95,000 Employees earning less than 27,000 p.a. exempt Other No income tax, VAT or National Insurance contribution rises for individuals, employees or employers for 5 years Free childcare for parents of 3 and 4 year olds, providing they work 30 hours a week for at least 38 weeks a year Extremism Bill ability for employers to check and banning extremists from working with children

10 Shared parental leave April 2015

11 5 April 2015 Shared parental leave(1) SPL optional for parents defaults to 52 weeks maternity leave for mother If opt out partner still gets 2 weeks ordinary paternity leave Who is eligible to share? Births mothers entitled to statutory maternity leave Adoptions primary adopter entitled to stat. adoption leave Both parents must be economically active in either an employed or self-employed capacity for at least 26 of the 66 weeks before EWC or date notified of adoption match

12 Shared parental leave (2) Max. 52 weeks: Parents can share 50 weeks leave & pay First 2 weeks is compulsory maternity leave for mother Parents may take leave consecutively or concurrently Single period or discontinuous periods multiples of complete weeks Employer not required to accept discontinuous SPL requests Employee must give 8 weeks notice when requesting SPL Employer responds to request within 2 weeks Pay & protections 39 weeks statutory pay (SMP rate) shared during SPL Enhanced maternity pay entitlement extended to men on SPL Men acquire same protections to women on maternity leave

13 Example: Where a mother is an employee but the father is either selfemployed or has recently lost his job, the father will not qualify for SPL as he has no employer. However the mother still qualifies for SPL because she is an employee & the father has been economically active for at least 26 weeks of the previous 66 weeks. Therefore the mother is not restricted to taking maternity leave & instead may access the more flexible SPL scheme. Using SPL she may take part of her maternity leave, then go back to work & then take further periods of SPL at a later date up to 52 weeks after birth..and VICE VERSA

14 Zero hours contracts - exclusivity ban 26 May 2015

15 Zero hours exclusivity ban Small Business, Enterprise and Employment Act 2015 Ban on exclusivity clauses in zero hours contracts Power for SoS to introduce regulations: o Anti-avoidance measures o Redress to ET for zero-hours workers suffering a detriment o Penalties for employers seeking to avoid ban o Widening protections to include low income contracts Check contracts kitchen and cleaning staff? Availability of staff could be an issue where they have several employers

16 Fit for Work scheme Expected Autumn 2015

17 Fit for Work (1) Free Occupational Health advice & support for employees & employers Free helpline and on-line advice service - operational from 15 December 2014 Free independent assessment rollout has commenced Referral by GP (or employer) after 4 weeks absence o Employers can refer from autumn 2015 Return to work plan & recommendations for employers After assessment: o No need for fit (sick) note unless discharged from FfW return to work plan is evidence of absence Compliance voluntary but beware of discrimination

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19 Rollout: GPs can start referring: Sheffield South Yorkshire & Bassetlaw North Yorkshire & the Humber Kent & Medway Thames Valley Betsi Cadwaladr Abertawe Bro Morgannwg Powys Teaching Coming soon: Surrey & Sussex Derbyshire & Nottinghamshire Leicestershire & Lincolnshire Greater Manchester Cheshire, Warrington & Wirral Birmingham & the Black Country London Cwm Taf Cardiff & Vale Later rollout: West Yorkshire Arden, Herefordshire & Worcestershire East Anglia Essex Hertfordshire & South Midlands Cumbria, Northumberland, Tyne & Wear Durham, Darlington & Tees Bath, Gloucestershire, Swindon & Wiltshire Bristol, North Somerset, Somerset & South Gloucestershire Devon, Cornwall & Isles of Scilly Wessex Merseyside Shropshire & Staffordshire Lancashire Hywel Dda

20 Fit for Work (2) Govt guidance for employers: Neither employer nor GP may refer to FfW unless employee consents Employee consent required to disclose RTW plan to employer FfW may contact employer if RTW plan is not being actioned 500 tax exemption per employee where employer funds medical treatment recommended by FfW or other OH Next steps: Consider making FfW referral if GP has not after 4 weeks Training managers when to refer & response to FfW recommendations Nominate central point of contact? Revise policies & procedures Impact on employer s existing OH service?

21 Whistleblowing reporting Autumn 2015

22 Whistleblowing Small Business, Enterprise & Employment Act 2015: prescribed persons to consider disclosures received produce annual report consideration of employer s whistleblowing policy MPs as prescribed person Prescribed persons for education includes: Ofsted & Ofqual Effective whistleblowing policies: Who can make a disclosure? About what? (public interest) To whom?

23 Caste discrimination Expected autumn 2015

24 Caste discrimination Equality Act 2010 Currently caste is not a protected characteristic EqA 2010 to be amended to include caste expected autumn 2015 But may already be covered under race Race is already a protected characteristic under EqA 2010 & includes ethnic origin Chandok and another v Tirkey (2014) Ethnic origin is wide enough to include caste Clarified that claims for caste discrimination can be brought under current law

25 PART 2 Recent case law developments

26 Collective consultation trigger USDAW and Wilson (Woolworths) Duty to conduct collective consultation = where 20 or more redundancies are proposed at one establishment Applicable where the employer has several sites Redundancies are not included from across the whole employer/business

27 Deduction from pay for strike action Hartley and others v King Edward VI College [2015] Deduction of wages at daily rate of 1/260 (based on the number of working days in the year) for teachers on one-day strike Beware does not apply to Burgundy Book terms and conditions o 1/365 deduction instead

28 Settlement agreement payments Mr A v HMRC [2015] Settlement agreement payment for potential discrimination claim did not constitute taxable earnings Irrelevant that it was calculated with reference to earnings Not necessary to consider whether claim would have been successful No need for agreement to mention discrimination Lack of apportionment not relevant

29 Staff uniform Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) Nursery told job applicant at interview at staff clothes must not be a tripping hazard Muslim applicant wore ankle length jilbab Applicant brought unsuccessful claim for religious discrimination

30 Questions?