Employment Law and HR Update March 2015
What is new and what should employers be aware of
Tribunals
Claims are down around 70% since claimants have had to pay a fee to put in a claim against their employers. Fees can be claimed back but, the form that needs to be filled in is extremely complicated. A claimant’s assets have to be assessed, along with their partner. The cost to implement a claim is between £160 and £250; this is followed by the hearing fee which costs between £230 and £950. This obviously doesn’t take into account any independent legal fees.
Early Conciliation
Employees must notify ACAS of their intention to make a tribunal claim, so conciliation can be offered. The employee has to get a certificate from ACAS following conciliation; otherwise they cannot take their claim to a tribunal. The employer does not have to be told if employee gets a certificate number.
The employee must bring in a claim within 3 months of leaving the company. But if they go to ACAS at the end of that 3 month period for conciliation, they can get another 3 months.
Employers can also initiate the discussion with ACAS.
There are a lot of hefty legal issues going on in the background which will get dealt with through employment tribunals and EAT (Employment Appeals Tribunal).
Holiday Pay
The statutory holiday entitlement is 28 days holiday for an employee working 5 days a week.
The employer:
can include bank and public holidays as part of the statutory entitlement
must not round down the holiday entitlement, but may round it up
must provide holiday pay during the statutory leave
can provide more paid holiday - this will be in the employment contract and is called ‘contractual leave entitlement’
If the employee works variable hours, holiday should be averaged over a 12 week period.
A normal week’s pay shouldn’t be less than the amount normally received, so must include calculations for commission and overtime, if this is a regular part of the salary.
The ECJ (European Court of Justice) has ruled that no-one should be worse off when they are away on holiday. Commission and overtime systems should be taking holiday expressly into account.
An employee can claim for overtime and commission that they would have received if they hadn’t been on holiday. If the employer doesn’t pay it, it is an unlawful deduction from wages.
Time limit for bringing a claim is 3 months. But where the deduction is part of a series, then the time limit is 3 months from the last in the series. In theory, this would allow overtime claims stretching back for years. However, the EAT says that deductions are not in the same series if they are separated by more than 3 months.
As from July 2015 the time limit for claiming unlawful deductions will be two years.
Shared Parental Leave
This is an extremely complicated piece of legislation, but the basics are as follows:-
Both parents are entitled to this leave to care for babies due from April 2015. One year’s leave can be shared between two parents, though the mother must take the first two weeks of leave.
Both parents must have six months service to qualify for this leave.
The employee must give 8 weeks’ notice of their intention to take shared leave. Both parents can be absent at the same time.
Intermittent blocks of leave can be taken with the agreement of the employer, but the employee can book 3 periods of leave if 8 weeks’ notice is given of each period of leave. The employee must produce a statement from their partner’s employer.
Right to Request Flexible Working
Since June 2014, all employees have the right to request flexible working – any reason is valid.
Employers should consider requests in a reasonable manner and can only refuse them if there is a business reasons for doing so, this reason must be from the following list:
the burden of additional costs
an inability to reorganise work amongst existing staff
an inability to recruit additional staff
a detrimental impact on quality
a detrimental impact on performance
detrimental effect on ability to meet customer demand
insufficient work for the periods the employee proposes to work
a planned structural changes to the business.
Employees need to have 26 weeks’ service to put in a claim (one per year)
Employers need to be careful regarding direct and indirect discrimination.
If an employer grants the right to flexible working they should always have a review clause in the agreement.
Gender Pay Gap
The government has accepted implementation of section 78 of the Equality Act and the regulations will come into force within 12 months. It will be a duty of all employers with over 250 staff to publish gender pay gap information.
Disability Discrimination
Many cases have been before employment tribunals and the ECJ as to the meaning of disability including obesity and Type 2 diabetes. All employers should be aware of the following term in the act “An employee has the right not to be treated less favourably due to disability”
The Equality Act 2010 provides disabled people with protection from discrimination in the work place.
Employers must make reasonable adjustments to accommodate a worker with a disability.
Disabled employees are protected from harassment at work.
Employers should have polices in place to prevent discrimination.
It is not just about putting up with things because you can’t be bothered or are too afraid to do anything about it (e.g., not saying anything if they come in late, or leave early), it’s about make proper adjustments and making clear firm decisions.
Human Resources is our business, leaving you to focus on yours
