1 January 2010 1 February 2010 the maximum amount of
the compensatory award for unfair dismissal decreases from £66,200 to
£65,300 (where the effective date of termination is on or after 1
February 2010); the minimum amount of compensation where an individual
is excluded or expelled from a union in contravention of s.174 of the
Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992)
and not admitted or re-admitted by the date of a tribunal application
falls from £7,300 to £7,200; the maximum guarantee payment payable to an
employee in respect of any day under s.31(1) of the Employment Rights
Act 1996 (ERA 1996) falls from £21.50 to £21.20. In making the
calculation required by s.34, the figures are required to be rounded up
in certain ways. This has resulted in three of the limits remaining the
same and therefore they have not been included in the Order. The
unchanged limits are the following ones: • the £3,100 limit on
the amount of an award for unlawful inducement relating to trade union
membership or activities, or for unlawful inducement relating to
collective bargaining (TULRCA 1992, s.145E(3)); • the £4,700
limit on the minimum amount of the basic award of compensation where the
dismissal is unfair by virtue of TULRCA 1992, s.152(1) or s.153 (TULRCA
1992, s.156(1)); • the £4,700 limit on the minimum amount of
the basic award of compensation where the dismissal is unfair by virtue
of ERA 1996, s.100(1)(a), s.100(1)(b), s.101A(d), s.102(1) or s.103 (ERA
1996, s.120(1)). Nor does the Order revise the two specified
limits in ERA 1996, s.186(1)(a) and (b) and s.227(1). The Work and
Families (Increase of Maximum Amount) Order 2009 SI 2009/1903 increased
from £350 to £380 from 1 October 2009 the maximum weekly amount used for
the purposes of calculating certain awards made by employment tribunals
(including basic awards for unfair dismissal and statutory redundancy
payments) and certain payments made by the Secretary of State out of the
National Insurance Fund where an employer is insolvent. For a copy of the Employment Rights (Revision of Limits) Order 2009 SI 2009/3274, see www.opsi.gov.uk/si/si2009/uksi_20093274_en_1 2 March 2010 Blacklisting of union members prohibited • to refuse a person employment for a reason related to a prohibited list; • to dismiss an employee for a reason related to a prohibited list; and •to subject a worker to any other detriment for a reason related to a prohibited list. 4 April 2010 Increase in the standard rates of statutory maternity pay, statutory paternity pay and statutory adoption pay 6 April 2010 Right for employees to request time off for training. 6 April 2010 Employment tribunals to be able to pass information about whistleblowing claims under the PIDA to regulators 6 April 2010 Sick notes to be replaced with “fit notes” • The introduction of a new option – “May be fit for work taking account of the following advice”. •
Doctors will no longer be asked to issue statements stating someone is
fit for work. Increased space for comments on the functional effects of
the patient‟s condition with tick boxes to indicate simple adjustments
or adaptations that could aide their return to work. • Inclusion of telephone consultations as an acceptable form of assessment. •
A reduction in the maximum duration of statement during the first six
months of illness to three months. Simplifying the current system by
combining the Med3 and Med5 into one form. •
The “may be fit for some work” option will be replaced with “you may be
fit for work taking account of the following advice”. This acknowledges
that it is not the doctor, but the employer, in consultation with their
employee, who is best placed to make the decision as to whether they
can accommodate any changes to facilitate a return to work. The
Government recognises the importance of monitoring and evaluating the
outcomes of the new medical statement in order to improve processes and
outcomes where required. An evaluation will therefore be undertaken.
This will use a mixed methods approach and will involve commissioning
new qualitative and quantitative research to 6 April 2010 Introduction of additional paternity leave and pay Legislation
aimed at giving parents more choice and flexibility in how they use
maternity and paternity leave is due to be introduced in April 2010. •
this new provision will be available during the second six months of
the child‟s life, giving parents the option of dividing a period of paid
leave entitlement between them; • some of the leave may be paid
if taken during the mother‟s 39 week maternity pay period. This would
be paid at the same rate as statutory maternity pay (£123.06 per week
and rising to £124.88 in April 2010); • parents will be required
to “self certify” by providing details of their eligibility to their
employer. Employers and HM Revenue and Customs will both be able to
carry out further checks of entitlement if necessary.
Revised Acas Code of Practice on Time Off for Trade Union Duties and Activities into force
The
Employment Protection Code of Practice (Time Off for Trade Union Duties
and Activities) Order 2009 SI 2009/3223 brought the revised Acas Code
of Practice on Time Off for Trade Union Duties and Activities into force
on 1 January 2010.
Employees who are union representatives, or
members of an independent trade union recognised by their employer, are
permitted reasonable time off during working hours to carry out certain
trade union duties or to take part in trade union activities. The Code
of Practice, which includes guidance on time off for union learning
representatives, has been issued by Acas and replaces the code which
came into effect on 27 April 2003.
The aim of the revised Code is to
improve the effectiveness of relationships between employers and trade
unions by giving practical guidance on how the statutory provisions on
time off for trade union duties and activities should work. As well as
dealing with all the issues covered in the previous code, the revised
Code provides updated guidance on:
• the provision of cover when employees take time off;
• payment for time off;
• training and the importance of e-learning;
• the responsibilities of line managers and union representatives in ensuring time off arrangements are effective;
• access to facilities and the use of electronic communication technology.
The Code has sections dealing with the following:
• time off for trade union duties;
• training of union representatives in aspects of employment relations and employee development;
• time off for trade union activities;
• the responsibilities of employers and trade unions;
• agreements on time off;
• industrial action;
• resolving disputes.
There is also an annex covering the basic principles of the law on time off for trade union duties and activities.
To
complement the revised Code, Acas has produced two new guides. The
first of the guides deals with managing time off for union
representatives, the second with time off for non-union representatives.
Further information: www.acas.org.uk/index.aspx?articleid=2391
Revision in certain employment payments and awards
The
Employment Rights (Revision of Limits) Order 2009 SI 2009/3274 came
into force on 1 February 2010. The Order revises, from 1 February 2010,
the limits applying to certain awards of employment tribunals, and
another amount payable under employment legislation, as specified in the
Schedule to the Order. The revisions made by the Order apply where the
event giving rise to the entitlement to compensation or other payment
occurs on or after 1 February 2010.
Under s.34 of the Employment
Relations Act 1999, if the retail prices index for September of a year
is higher or lower than the index for the previous September, the
Secretary of State is required to change the limits, by Order, by the
amounts of the increase or decrease. The revised amounts made by the
Order reflect the decrease of 1.4 per cent in the index from September
2008 to September 2009.
Under the Order:
In
July 2009, the Department for Business, Innovation and Skills (BIS)
published a consultation document on proposed new regulations that will
make it unlawful for trade union members to be denied employment through
secret blacklists. Under s.3 of the Employment Relations Act 1999, the
Government has the power to introduce regulations prohibiting the
blacklisting of workers for their union membership or activities.
In
January 2010, the Employment Relations Act 1999 (Blacklists)
Regulations 2010 were laid in Parliament for approval. The Employment
Relations Act 1999 (Blacklists) Regulations 2010 SI 2010/493 came into
force on 2 March 2010. According to BIS, the Regulations are designed to
avoid interfering with normal listing or vetting practices which are
not intended to discriminate against trade unionists. For example, they
should not impact on the way trade unions and employers work with each
other in drawing up and using lists of trade unionists who pay their
union subscriptions from their pay at source (via the so-called
“check-off” system).
The Regulations generally prohibit the
compilation, use, sale or supply of blacklists containing details of
trade union members and activists
whose purpose is to discriminate against workers on grounds of trade union membership or trade union activities (reg.3).
The
Regulations make it unlawful to compile, supply, sell or use a
“prohibited list” (i.e. a blacklist). This core feature of the
Regulations is termed the “general prohibition”.
As well as the
general prohibition against compiling, selling, supplying and using a
blacklist, the Regulations also make it unlawful for an employer:
The
Regulations make it unlawful for an employment agency to refuse its
service to a worker for a reason related to a prohibited list.
The
Regulations give rights to persons to complain to the employment
tribunal in certain circumstances. These rights arise where a person has
been refused employment (reg.5) or employment agency services (reg.6)
or been subjected to a detriment (reg.9) for a reason related to a
blacklist.
The Regulations make amendments to the Employment
Rights Act 1996 to give a right of complaint to the employment tribunal
where a person has been unfairly dismissed for a reason relating to a
blacklist.
The Regulations provide for minimum and maximum
compensation available from the employment tribunal in specified cases.
Persons who have suffered or will suffer a loss due to the use or
apprehended use of a blacklist may apply to the court for damages,
including damages for injury to feelings, and for orders restraining or
preventing the compilation, use, sale or supply of the blacklist
(reg.13). A person cannot claim compensation from the employment
tribunal and damages from the court in respect of the same conduct
(reg.13(5)). Where a person is pursuing a complaint before the
employment tribunal, that person is permitted to apply to the court for
orders restraining or preventing the compilation, use, sale or supply of
the blacklist in question (reg.13(4)).
For a copy of the BIS guidance on “The Blacklisting of Trade Unionists”, see www.berr.gov.uk/files/file54675.pdf
For a copy of the Employment Relations Act 1999 (Blacklists) Regulations 2010 SI 2010/493, see www.opsi.gov.uk/si/si2010/uksi_20100493_en_1
The
standard rates of statutory maternity pay (SMP), statutory paternity
pay (SPP) and statutory adoption pay (SAP) rise from £123.06 to £124.88
per week (or 90 per cent of the person‟s average weekly earnings if that
is less than £124.88) from 4 April 2010. (SMP payment weeks typically
begin on a Sunday.) Meanwhile, statutory sick pay, which normally
increases on 6 April, will continue at the rate of £79.15 per week. Note
that the earnings threshold for these payments rises from £95 to £97
per week.
Further information: www.hmrc.gov.uk/news/statutory-payment-rates.htm
The
right to request time to train was included in the Apprenticeships,
Skills, Children and Learning Act 2009, which received Royal Assent in
November 2009. The introduction of the right is being phased and is
being made available to employees in organisations with 250 or more
employees from 6 April 2010 before being extended to all employees from 6
April 2011.
The new right closely follows the model used for agreeing requests under the flexible working arrangements.
The
Employee Study and Training (Procedural Requirements) Regulations 2010
SI 2010/155 relate to the right to make an application under s.63D of
the Employment Rights Act 1996 (ERA 1996) to enable the employee to
spend time undertaking study or training. They set out the way in which
an employer must deal with an application under s.63D for the purposes
of ERA 1996, s.63F.
The Employee Study and Training
(Eligibility, Complaints and Remedies) Regulations 2010 SI 2010/156
provide that the maximum amount of compensation that an employment
tribunal may award where it finds a complaint under ERA 1996, s.63J
well-founded is eight weeks‟ pay.
For a copy of the Employee
Study and Training (Procedural Requirements) Regulations 2010 SI
2010/155, see www.opsi.gov.uk/si/si2010/uksi_20100155_en_1
For a copy of the Employee Study and Training (Eligibility, Complaints and Remedies) Regulations 2010 SI 2010/156, see www.opsi.gov.uk/si/si2010/uksi_20100156_en_1
For guidance for employers, see www.businesslink.gov.uk/timetotrain For guidance for employees, see www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_183635
In
July 2009, the Government published a consultation document on how
employment tribunals can pass on details about whistleblowing cases to
appropriate regulators.
Employment tribunals determine
complaints made where claimants believe that they have suffered a
detriment at work, or have been dismissed for making a protected
disclosure (“whistleblowing”) under the Public Interest Disclosure Act
1998 (PIDA). The employment tribunals do not make any assessment of, or
take any action on, the issue underlying the allegation, as these
matters do not fall within their powers or area of expertise. Therefore,
before 6 April 2010, whilst claimants themselves can make
whistleblowing disclosures to a relevant regulator, there is no process
in place for employment tribunals to pass information about claims under
the PIDA to regulators.
The issue of how allegations of
underlying abuse in PIDA cases might be addressed was raised during the
passage of the Employment Act 2008. The Government committed to explore
whether there was a practical process which would enable the substance
of allegations giving rise to PIDA claims to the employment tribunals to
be assessed and where appropriate acted upon, without involving the
release of unsubstantiated allegations into the public domain. It was
envisaged this would involve information being passed from the
employment tribunals to the relevant regulators (“prescribed persons”
under the PIDA). This would mean that the regulator could take action
where appropriate in accordance with their own practices and procedures.
It would then be a matter for the regulator to address instances of
unlawful, fraudulent or dangerous behaviour.
The consultation
ran until 2 October 2009 and in January 2010 the Government published
its response to the consultation, confirming that, where a claimant
consents, the Employment Tribunals Service may pass information about
public interest disclosures to the relevant regulator. The change
applies to any revised ET1 form containing an accepted public interest
disclosure claim received on or after 6 April 2010.
Under the
system to apply from 6 April 2010, when a claimant agrees to the
information a protected disclosure is based on being passed to the
relevant regulator, he or she must tick a consent box on a revised ET1
claim form. In addition, the guidance which accompanies the ET1 claim
form will make it clear what happens if a claimant with an accepted PIDA
claim ticks the consent box and will explain that a claimant can go
direct to the regulator if they prefer, e.g. for reasons of
confidentiality. The ET1 claim form guidance will also provide links to
sources of PIDA guidance such as the Business Link and Directgov
websites. In those cases where a claimant has consented to their
information being provided to a regulator, the Tribunals Service will
write to the claimant and respondent to ensure there are no
misunderstandings about when an ET1 or extracts from it has been sent
and to whom.
The Employment Tribunals (Constitution and Rules of
Procedure) (Amendment) Regulations 2010 SI 2010/131 contain the
necessary changes and make provision to enable the Tribunals Service to
forward a claim to a regulator listed in the new Annex to Schedule 1 in
certain circumstances. The Annex reflects the list of prescribed persons
listed in the Public Interest Disclosure (Prescribed Persons) Order
1999 Order SI 1999/1549. They amend the Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2004 SI 2004/1861 with
effect from 6 April 2010.
For a copy of the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010, see www.opsi.gov.uk/si/si2010/uksi_20100131_en_1
In
2009, the Government undertook a consultation on draft regulations that
will support a revised medical statement. The aim is for the revised
medical statement to allow a doctor to consider not only whether their
patient is unfit for work, but also whether their patient may be able to
do work based on the doctor‟s assessment of the patient‟s health
condition; it also aims to simplify the suite of medical statements.
In
late January 2010, the Government published its response to this
consultation on the “fit notes” that are set to replace sick notes.
Subject to Parliamentary approval, the Social Security (Medical
Evidence) and the Statutory Sick Pay (Medical Evidence) (Amendment)
Regulations 2010 are intended to come into force on 6 April 2010.
The key changes are:
Under the new system:
•
The statement will list common changes which could be made to an
employee‟s work environment or job role to help facilitate a return to
work. Where a doctor considers another option is more appropriate, he or
she will have the opportunity to state this in the comments box.
be published in
2012/13. These will be supplemented by internal monitoring of sickness
absence data and other quantitative survey data covering the areas of
health and work from 12 months after implementation.
For more details, including a sample "Statement of fitness for work" form, see www.dwp.gov.uk/healthcare-professional/news/statement-of-fitness-for-work.shtml
A
press release issued by the Department for Business, Innovation and
Skills (BIS) on 28 January 2010 notes that when the legislation is in
force new fathers will be able to take advantage of additional paternity
leave and pay during the second six months of the child‟s life, if the
mother wishes to return to work with maternity leave outstanding.
According to BIS, this will enable parents to share a period of paid
leave between them, giving families greater flexibility in how they
choose to look after their children. In order to give employers time to
adjust, the changes will be introduced for parents of children due on or
after 3 April 2011.
BIS notes that the various sets of relevant regulations will mean:
• fathers will be entitled to up to six months extra leave, which can be taken once the mother has returned to work;
The
Government has tabled the regulations for Parliament to consider. They
will need to be debated and approved by each House before they can be
implemented. Subject to this, the Government intends that the law be in
force by April 2010 and have effect for parents of children due on or
after 3 April 2011.
The new rights are contained in three sets of draft regulations:
•
the Additional Paternity Leave Regulations 2010 which introduce the new
right to additional paternity leave. They implement the powers in the
Work and Families Act 2006 to introduce a new entitlement for employees
who are fathers or partners of mothers or adopters to take additional
paternity leave in the first year of their child‟s life or the first
year after the child‟s placement for adoption. The Regulations confer
the right to take additional paternity leave, following the birth of a
child, to fathers or spouses and partners (of either sex) of the child‟s
mother. In the case of adoption, the entitlement is granted to persons
who have
been matched with the child for adoption and who are
spouses or partners (of either sex) of the adopter who has elected to
take adoption leave;
• the Additional Statutory Paternity Pay
(General) Regulations 2010 which implement the powers in the Work and
Families Act 2006 to introduce a new entitlement for employees who are
fathers or who are the partners of mothers or adopters to receive a new
statutory payment of additional statutory paternity pay from their
employers; the Additional Statutory Paternity Pay (Weekly Rates)
Regulations 2010 which set the weekly rates for additional statutory
paternity pay payable.
For a copy of the Government‟s response to the consultation on additional paternity leave and pay carried out in late 2009, see www.berr.gov.uk/files/file54374.pdf