Latest and upcoming changes to employment legislation
Parental leave extended from three to four months
In March 2010 the EU Council of Ministers adopted a new ‘Parental Leave Directive’ to increase parental leave entitlement. EU Member States are allowed an extra year to implement this if necessary, and so the UK is putting this directive into force in March 2013.
This requirement is in conjunction with the “Modern Workplaces” paper, published in May 2011, where the Government proposes increasing the existing right to unpaid parental leave from 13 to 18 weeks.
The result will be 18 weeks of unpaid parental leave per person per child from March 2013.
Increase in statutory pay
Statutory parental pay will increase with effect from 7 April 2013 from £135.45 to £136.78.
Statutory sick pay will increase with effect from 6 April 2013 from £85.85 to £86.70.
Pensions – Government confirms it will consult on technical changes to automatic enrolment
In March 2013 the Government will start consulting on proposals to make the process of automatic workplace pensions simpler. Employers and the pensions industry will be able to comment on the suggested changes.
Based on the feedback since automatic enrolment started in October 2012 with the largest organisations, a shortlist of areas that need practical or technical improvements has been drawn up. These include:
- Making assessment of the workforce easier
- Making it easier for money purchase schemes to show they meet the scheme quality requirements
- Removing the duty to enrol particular groups such as those who benefit from protection because they have already exceeded the lifetime allowance for tax purposes.
The Department for Work and Pensions said that any changes will recognise the need to give enough notice to allow employers to update their systems. Any improvements will benefit the small and medium sized businesses that are not yet included in the automatic enrolment, which will be extended to every employer in the country over the next five years.
Increase in employment payments and awards
From 1 February 2013 the Employment Rights (Increase of Limits) Order comes into force. This increases the maximum amounts that can be paid out in certain awards / payments through employment tribunals or legislation. These increases only apply to events that occur on or after 1 February 2013 – anything relating to an event before this date will fall under the old amounts.
The new limits are:
- £74,200 (up £1,900) for the compensatory award for unfair dismissal.
- £450 (up £20) as a week’s pay (for calculating redundancy payments), for the award for an employer’s failure to comply with a re-employment order, and for the weekly amount payable to former employees if their company becomes insolvent.
- £24.20 (up 70p) for guarantee payments when an employee is not provided with work on a day when they would normally be required to work.
- £5,500 (up £200) as the minimum basic award for unfair dismissal in health and safety, employee representative, occupational pension scheme trustee and trade union cases.
- £8,400 (up £300) as the minimum compensation for being excluded or expelled from a trade union (in contravention of s.174 of the Trade Union and Labour Relations (Consolidation) Act 1992) and not readmitted by the date of the tribunal application.
- £3,600 (up £100) for the award for unlawful inducement relating to trade union membership or activities, or relating to collective bargaining.
Rises for Compensation limits
All dismissals which take effect from 1 February 2013, the cap on a weekly pay rises to £450.
The maximum unfair dismissal basic award rises to £13,500.
The maximum compensatory award rises to £74,200.
Automatic workplace pensions
The Pensions Act 2008 means that employers must enrol all eligible employees into a workplace pension scheme. Employers must automatically enrol workers who:
- Are not already in a workplace pension scheme
- Are at least 22 years old
- Are below State pension age
- Earn more than £8,105 a year
- Ordinarily work in the UK
This process starts in October 2012, but individual employers’ duties will be introduced gradually. It will start with the largest employers and affect everyone by April 2017. Below is a timetable of when the scheme affects employers based on the number of people at the workplace:
Number of workers on payroll Date employer will be affected
|120,000 or more||1 October 2012|
|50,000 – 199,999||1 November 2012|
|30,000 – 29,999||1 January 2013|
|20,000 – 29,999||1 February 2013|
|10,000 – 19,999||1 March 2013|
|6,000 – 9,999||1 April 2013|
|4,100 – 5,999||1 May 2013|
|4,000 – 4,099||1 June 2013|
|3,000 – 3,999||1 July 2013|
|2,000 – 2,999||1 August 2013|
|1,250 – 1,999||1 September 2013|
|800 – 1,249||1 October 2013|
|500 – 799||1 November 2013|
|350 – 499||1 January 2014|
|250 – 349||1 February 2014|
|160 – 249||1 April 2014|
|90 – 159||1 May 2014|
|62 – 89||1 July 2014|
Implementation of the Agency Workers Directive
The Agency Workers Regulations 2010 SI 2010/93 („the Regulations‟) were laid before Parliament on 21 January 2010. They are due to come into force on 1 October 2011.
The Department for Business, Innovation and Skills (BIS) notes in its response to the consultation on draft regulations implementing the Agency Workers Directive that some stakeholders had pressed for an earlier implementation date, but BIS believes that all concerned should be given time to prepare for the changes that the Regulations bring about, especially given the important role the agency sector will play in the economic recovery.
As agreed in 2008 by the TUC and CBI, the changes will give agency workers the right to the same pay, holidays and other basic working conditions as directly recruited staff after 12 weeks in a given job.
According to BIS, the final Regulations retain the previously proposed approach on the calculation of the qualifying period, namely that it should be 12 calendar weeks regardless of working pattern (e.g. part-time work or full-time work). A new qualifying period will begin only if a new assignment with the same employer is substantively different or if there is a break of more than six weeks between assignments in the same role. Workers who are genuinely in business on their own account (e.g. self-employed or working through a corporate vehicle) will not be within scope, but those employed via umbrella companies or other intermediaries will be.
The rights on pay will apply not just to the basic hourly rate, but to all pay for work done, including bonuses that are directly related to the performance of the agency worker personally. However, as set out in the Directive, they will not extend to some of the wider benefits that permanent staff can enjoy in the context of their longer-term relationship with their employer, such as occupational pensions and sick pay.
To ensure that workers are not deprived of their rights by those who would seek to avoid equal treatment the Regulations include provisions that will deal with repeat assignments designed to prevent workers acquiring equal treatment rights. Agencies and hirers will face the prospect of having to pay out up to £5,000 to the worker if an employment tribunal finds that these specific anti-avoidance rules have been breached. To provide a greater deterrent in low-value cases there will be a general minimum award of two weeks‟ pay, subject only to tribunal discretion if that level of award does not seem reasonable.
As far as liability is concerned, the agency will be responsible for any breach of a right in relation to equal treatment for which they are responsible but will have a defence if they have taken “reasonable steps” to obtain the necessary information from the hirer and acted “reasonably” in determining the agency worker‟s basic working and employment conditions. In such cases, the hirer will be liable. The hirer
is also liable to the extent that they are responsible for any breach of a right in relation to equal treatment.
As far as the provision of information about equal treatment is concerned, after 12 weeks have passed, an agency worker will be able to request written information from the agency (and subsequently from the hirer) about any aspect of equal treatment which they do not believe they are receiving. The agency and, if necessary, the hirer will each have 28 days to respond, to run from the date of receipt of the request.
Other benefits that agency workers will gain from the first day of their assignment include:
• information about internal vacancies to give them the same opportunity as other workers to find permanent employment; and
• equal access to on-site facilities such as child care and transport services. For details of the BIS response to the consultation on draft regulations implementing the Agency Workers Directive, see www.berr.gov.uk/files/file54289.pdf
For a copy of the Agency Workers Regulations 2010 SI 2010/93, see www.opsi.gov.uk/si/si2010/uksi_20100093_en_1
1 January 2010
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
1 February 2010
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:
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
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:
• 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.
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
4 April 2010
Increase in the standard rates of statutory maternity pay, statutory paternity pay and statutory adoption pay
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
6 April 2010
Right for employees to request time off for training.
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
6 April 2010
Employment tribunals to be able to pass information about whistleblowing claims under the PIDA to regulators
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
6 April 2010
Sick notes to be replaced with “fit notes”
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:
• 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.
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.
• 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
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
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.
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;
• 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.
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