employment law update changes oct 2014
DESCRIPTION
Employment law update changes Oct 2014TRANSCRIPT
EMPLOYMENT LAW UPDATE
23 October 2014
Presented by
Yeing-Lang Chong, Ben Power, Andrew Peters
Agenda
Equal Pay Audits
Tribunal Fees
Zero-Hours Contracts
Shared Parental Leave
Antenatal Appointments
Employer’s Rights on Termination
Redundancy and Discrimination
Forced Retirement
Social Media
Questions and Refreshments
Equal Pay Audits
Yeing-Lang Chong
Equal Pay Audits
• Compulsory equal pay audits
‒ If found liable under equal pay legislation
‒ Tribunal required to make order to:
o Carry out equal pay audit - wide discretion to Tribunal as to specifics
o Make public the results - on company website for up to 3 years
o Max. £5K penalty at each hearing to assess compliance if unreasonable failure to comply
‒ Limited exemptions
Tribunal Fees Update
Yeing-Lang Chong
Tribunal Fees Update
• Government figures show in 6 months following introduction of fees regime:
‒ 79% decline in claims across the board
‒ 85% drop in equal pay claims
‒ 94% reduction in working time claims
• UNISON seeking judicial review – principle of effectiveness of EU law
Zero-Hours Contracts
Yeing-Lang Chong
Zero-Hours Contracts
• Proposed new section to be inserted into ERA 1996:
‒ S.27A. Unenforceable: exclusivity clauses, or clauses requiring consent for work with third parties
‒ S.27B Powers to Secretary of State to make regulations that close ‘loopholes’
o Compliance if unreasonable failure to comply
o Remedies, including for detriment
Zero-Hours Contracts
• Codes of Practice dealing with:
- Identifying zero hours contracts
- Calculation of benefits e.g. annual leave
- Notice of work and cancellation of work
Shared Parental Leave
Ben Power
Shared Parental Leave: Background
• Additional Paternity Leave (‘APL’) a failure
• Aim to introduce more flexibility – hence complicated new rules
• Children and Families Act 2014 – amends ERA and introduces various Regulations:
‒ 1 December 2014: New rules in force. Mothers, fathers, or adopters will be able to opt to take Shared Parental leave (‘SPL’) within the first year after birth or adoption placement
‒ 5 April 2015: Expected week of confinement or placement for adoption must be on or after this date
• SPL is optional –opt-in
• Existing right to 52 weeks’ leave (39 paid) will stay in place but be shared
• APL will go
Shared Parental Leave: Background
Shared Parental Leave: Eligibility
• Defined terms:
‒ Births – mother (‘M’) / partner (‘P’)
‒ Child (‘C’)
• P’s relationship to C/M: father or married or civil partner orpartner
Shared Parental Leave: Eligibility
If M wants to take SPL she must:
• Pass the ‘continuity of employment’ test: continuous employment for 26 weeks up to and including 15th week before EWC
• Be eligible for statutory maternity leave
• Curtail or end statutory maternity leave
• Provide notice in prescribed form, with evidence if required
• Give requisite notice
• Have main responsibility for care of child
Shared Parental Leave: Eligibility
And P must:
• Pass the ‘employment and earnings test’: earning at least £30 p.w. in last 26/66 weeks, on employed or self employed basis
• Share responsibility for the child with M
If P wants to take SPL, he must
• Pass the ‘continuity of employment’ test
• Share main responsibility for care of child
• Give requisite notice
And M must
• Satisfy ‘employment and earnings’ test
• Be entitled to, and have curtailed, ML or SMP or MA
Shared Parental Leave: Eligibility
Shared Parental Leave: Entitlement
• 2 weeks’ compulsory maternity leave (4 if factory worker) remains leaving:
‒ 50 weeks’ shared parental leave
‒ 37 weeks’ shared parental pay
• Note:
‒ Leave can be taken concurrently between partners
‒ Part weeks treated as whole weeks
‒ SPL can only be taken once the child is born
Shared Parental Leave: Sharing
• Sharing starts on:
‒ Ending maternity/adoption leave or
‒ Date of curtailment
• Ends on date specified by M/P
Shared Parental Leave: Procedure
• Reg.8 Notice - M’s written notice (at least 8 weeks before start of first period of SPL):
‒ Specified information:
o M & P’s name
o Start and end dates of Maternity Leave taken and to be taken
o Total amount of SPL available to M & P, how much M&P intend to take and when M intends to take it
o EWC/Date of Birth
‒ Signed declarations from M:
o M’s eligibility to SPL satisfied
o M’s information is accurate
o M will immediately inform employer if ceases to care for C
‒ Signed declarations from P:
o P’s name, address, NI number
o Eligibility of M to SPL satisfied by P
o Relationship with M/C
o Consent to amount of leave M taking
o Consent to M’s employer processing data
Shared Parental Leave: Procedure
• Reg.9 Notice - P’s written notice (at least 8 weeks before start of first period of SPL):
‒ Specified information:
o M & P’s name
o Start and end dates of M’s Maternity Leave, or Maternity Pay or Maternity Allowance
o Amount of total SPL available to M and P, how much intend to take and when
o EWC/Date of Birth
Shared Parental Leave: Procedure
‒ Specified declarations from P:
o P’s eligibility to SPL satisfied
o Eligibility of P to SPL satisfied by M
o Information is accurate
o P will immediately inform P’s employer if P ceases to care for C or M informs him eligibility ceases
‒ Specified declarations from M:
o Name, address, NI number
o Relationship with P/C
o Consent to amount of leave M taking
o Consent to M’s employer processing data
o M will immediately inform P if she ceases to make him eligible
Shared Parental Leave: Procedure
Shared Parental Leave: Procedure
• Where Reg.8/9 Notice served, M/P’s employer may request:
‒ Copy of birth certificate (or declaration of place and date of birth if none)
‒ Name address of P/M’s employer
• 14 days to produce if requested
• Neither notice binding unless ‘otherwise indicated in the notice’. ‘Booking’ process needs to be followed under Reg.12
• Only 3 Reg.12 booking notices can be given
• Written curtailment notice also needs to be served under Reg.6 Leave Curtailment Regulations
Shared Parental Leave: Procedure
Shared Parental Leave: Variation
• Reg.11 Notice – must:
‒ Be given ‘under’ Reg.8 or Reg.9 (i.e. with same notice, information etc.)
‒ Set out old and new dates; and SPP notifications
‒ Contain declaration of agreement by M/P
• Not binding unless ‘otherwise indicated in the notice’, and ‘booking’ process needs to be followed
• Once binding, will count towards the 3 booking notices
Shared Parental Leave: Continuous/Discontinuous Periods
• Single continuous periods requested: employer must agree
• Discontinuous periods requested: employer has 2 weeks to:
‒ Accept
‒ Agree alternatives
‒ Refuse
Shared Parental Leave: Changes of Circumstances/Revocation
• Variation notice can be served
• Once notice of curtailment binding, this can only be revoked where SPL has not started and:
‒ Turns out that M&P not entitled to SPL or SPP; or
‒ Curtailment notice served before birth and revoked within 6 weeks of birth; or
‒ P dies
Shared Parental Leave: Changes of Circumstances/Revocation
• Where circumstances change and eligibility ceases less than 8 weeks before SPL due to start – employer may require leave is taken where not reasonably practicable to end it
Shared Parental Leave: ‘SPLiT’ Days
• 10 Keeping in Touch days – entitlement remains
• 20 additional ‘SPLiT’ days
• Mutual agreement needed
• Do not bring SPL to an end
Shared Parental Leave: Record Keeping
• The following records relating to pay must be kept for HMRC:
‒ Evidence given of eligibility
‒ Leave start dates
‒ Payments made
‒ Amounts reclaimed
Shared Parental Leave: Other Rights
• Standard position in respect of other rights:
‒ Terms and conditions continue to apply
‒ Enhanced rights on redundancy
‒ Right to return
‒ Protection from detriment/dismissal
Antenatal Appointments
Andrew Peters
Antenatal Appointments
• P entitled to accompany M to appointments:
‒ 2 x 6.5hrs, including travel, waiting time and appointment
‒ No qualifying period of employment
‒ Unpaid
‒ Appointment must be on medical advice
‒ Signed declaration of above and times/dates can be requested
Employer’s Rights on
Termination
Andrew Peters
Employer’s Rights on Termination
• Li v. First Marine Solutions Ltd – EAT
‒ Miss Li’s contract stated that she would pay equivalent of her salary to the company should she leave early
‒ Held: enforceable - not penalty and genuine pre-estimate of cost of hiring another senior engineer at short notice
• Sunrise Brokers LLP v Rogers – EAT
‒ Mr Rogers resigned early and company tried to stop him working for a competitor during notice period. No pay offered as no work undertaken. 1 year notice period
‒ Held: company could do this – repudiation not accepted, so duty of fidelity subsisted. No obligation to pay
Employer’s Rights on Termination
Redundancy and Discrimination
Andrew Peters
Redundancy and Discrimination
• London Borough of Southwark v Charles – EAT
‒ Mr Charles’ disability precluded him from attending interviews. Company insisted on interview about alternative employment on redundancy
‒ Held: reasonable adjustments should have been made –less formal process or ‘take a view’ given junior role
Redundancy and Discrimination
• Dominique v. Toll Global Forwarding Ltd – EAT
‒ Disability (stroke) led to poor scores on productivity and accuracy redundancy selection criteria
‒ Held: reasonable adjustments should have been made, even though the outcome would have been the same
Forced Retirement
Andrew Peters
Forced Retirement
• Seldon v. Clarkson Wright & Jakes – EAT
‒ Was compulsory retirement of partner at 65 justified?
‒ Held: yes it was, on grounds of retention, planning and default retirement age for employees of 65. But default retirement age now abolished
Social MediaAndrew Peters
Social Media
• Crisp v. Apple Retail (UK) Limited – Tribunal
‒ Employee posted derogatory comments about his employer on Facebook
‒ Dismissal was fair
‒ The Tribunal focused on the fact that Apple had a robust and all encompassing social media policy, making clear that derogatory comments would constitute gross misconduct
‒ Mr Crisp’s argument that he had a right to privacy failed
Social Media
• Teggart v. Tele Tech UK Limited- Tribunal
‒ Employee posted derogatory comments about a female colleague on Facebook and refused to remove
‒ Dismissal was fair, even though the comments did not bring the employer into disrepute because they amounted to harassment
‒ Mr Teggart’s arguments that he had a right to privacy and a right to free of expression both failed