Employment Practice

References

noreply@blogger.com (Unknown) — Tue, 09 Jul 2019 08:15:00 +0000

Key points

As the High Court remarked in Lawton v BOC Transhield Ltd [1987] IRLR 404, an employer is under no legal obligation to give a former employee a reference. But, if he (or she) does do so, he owes a duty to that employee to take reasonable care to ensure that the opinions he expresses in it are based on accurate facts and, in so far as the reference itself states facts, that those facts are themselves accurate. When an employer approaches another employer for information and opinions about one of the latter's employees (past or present), it should be self-evident, said the court, that the employee in question has proffered his (or her) former employer's name as referee, that he is being seriously considered for employment elsewhere, that he is relying on the former employer to get his facts right, and that an adverse report would almost certainly result in his being taken off the short list or remaining unemployed for an unspecified period. In other words, the employer's duty of care extends not only to the person seeking the relevant information but also to the employee in respect of whom that information is being sought.

Defamatory references

There are a number of pitfalls facing employers who provide inaccurate, dishonest or malicious references. An employee may be prompted to bring an action for damages if a reference supplied by a former employer contains false or derogatory statements about him (or her) which result in the loss of his livelihood or affect his ability to find work or pursue his chosen trade or profession.

Note

In Spring v Guardian Assurance plc [1993] IRLR 122, the High Court awarded damages and costs to an insurance salesman when it ruled that his former employer had been negligent in giving him a job reference that was the 'kiss of death' to his career. The reference, said Judge John Lever QC, was carelessly written, although not malicious. One of the main authors behind the reference, he said, had 'told a lie to bolster a conclusion he honestly believed to be true'. The other, while not malicious in intent, had failed to give 'a careful and accurate view' of the salesman's qualities. 'There should have been a careful and judicious review', added Judge-Lever, 'but his prejudice led him to play fast and loose with the facts.'

If a defamatory reference is given in writing, it constitutes libel. If it is given orally (ie, over the telephone), it constitutes slander. For obvious reasons, slander is somewhat more difficult to prove than libel – which explains why many employers and personnel managers prefer to discuss a difficult employee's capabilities and recent conduct in person or over the telephone.

An employer has three defences to an action for libel. He can plead, in the first instance, that the words used in the reference were incapable of having any defamatory meaning. He can also plead 'justification'. In other words, while admitting the truth of the employee's allegations, he can argue that the information given in the reference is true in substance and in fact. Finally, he can claim that the reference enjoyed 'qualified privilege', in the sense that the employer or person to whom it was given had an interest in learning of the employee's capabilities and shortcomings in order to assess his suitability for employment, and that no malice was intended. If either of the latter defences fails, the court will very likely order the employer who gave the reference to compensate the employee for the damage done to his reputation and employment prospects.

Note

It is because of the possible legal pitfalls that many employers nowadays refuse to supply more than a written statement of service – confirming a former employee's job title, length of employment, and his wage or salary at the time he or she left their employ.

Disclaimer of responsibility

Giving an employee a wholly complimentary reference, which attributes to him (or her) skills, qualities and a level of competence which he does not possess, can be just as risky as giving him a reference which negligently misrepresents or downgrades his worth in the eyes of a prospective employer. Any employer who is deceived into hiring an employee on the strength of a commendatory or untrue reference may bring an action for damages against the employer who supplied the reference for the time, inconvenience and expense involved in taking-on an employee who is wholly unsuitable. To prevent this happening, an employer should always protect himself with a disclaimer of responsibility.
As Mr Justice Tudor Evans remarked in the Lawton case referred to earlier, there is 'no reason why a disclaimer [in a reference] cannot be so framed as to exclude a liability not only to the recipient but also to the subject of the reference, and further to protect the actual servant who writes the reference. As to the subject of the reference, I cannot see,' he added, 'why an employer cannot effectively protect himself, either in the reference itself or by writing separately to the subject, indicating a willingness to give a reference but stating that it will be given without responsibility.
Personnel managers and others charged with the responsibility for giving references (or 'vetting' them before they are issued) should ensure that every reference given to, or on behalf of, a former employee includes a statement to the effect that it is given 'without legal responsibility'. However, it is as well to sound a note of caution. While a disclaimer of responsibility couched in those terms will free an employer from liability when faced with an action for negligent misrepresentation, it unfortunately provides no defence against an action for libel. Indeed, it will be of little help if it can be shown that the employer (or person) who provided the reference deliberately and fraudulently misrepresented the employee's qualifications, skills, experience and capabilities.

The issue of confidentiality

As a reference is usually given in confidence, an employer will not normally reveal its contents to the employee concerned without the express permission of the person or organisation who gave it. However, as the House of Lords remarked in the joined cases of Nasse v Science Research Council and Vyas v Leyland Cars [1979] IRLR 465, 'there is no principle in English law by which documents are protected from discovery by reason of confidentiality alone'. If a job applicant or employee believes that he (or she) has been the victim of unlawful discrimination or was denied employment (or dismissed) because of what was said about him in a reference, he has every right to apply to the tribunals or courts for a disclosure order.
Under the Data Protection Act 1998, references issued by an employer (concerning an existing or former employer) are exempt from disclosure. But that exemption doesnot apply to references received by an employer from a former employer.

Written reasons for dismissal

A sympathetic employer might well be prompted to provide a 'charitable' or vaguely-worded reference to a dismissed employee (or to a prospective employer) rather than undermine his (or her) chances of finding work elsewhere. However, an employer should be alert to the possibility that that same employee might well decide to exercise his statutory right under section 92 of the Employment Rights Act 1996 to be given written reasons for his dismissal. If there is any contradiction between the opinions expressed in the one and the statements made in the other, an employment tribunal might well decide that the employee's dismissal was unfair.

Note

In Castledine v Rothwell Engineering Ltd [1973] IRLR 99, a dismissed employee produced a reference supplied by his former employer which stated that he 'had carried out his duties satisfactorily, often under difficult conditions'. The written statement of reasons for dismissal, also supplied by his employer, claimed that the employee had been dismissed on grounds of incompetence. When confronted with such conflicting evidence, an industrial tribunal had no difficulty concluding that the dismissal had been unfair.

Spent convictions

Unless a former employee is known to be applying for a job in respect of which he (or she) is obliged to supply details of all criminal convictions – spent or otherwise – and the prospective new employer specifically asks for that information and gives reasons for doing so, an employer is under no legal obligation whatsoever to reveal particulars of spent convictions known to him when supplying a reference for that employee (section 4(2), Rehabilitation of Offenders Act 1974).

Redundancy (Rights of employees)

noreply@blogger.com (Unknown) — Thu, 04 Jul 2019 12:31:00 +0000

Key points

The Redundancy Payments Act 1965 (whose provisions have long since been repealed and largely re-enacted in the Employment Rights Act 1996) came into force on 6 December 1965. The two principal objectives of the Act were to require employers to compensate redundant employees for the loss of their livelihoods and to establish a Redundancy Fund from which employers would recoup a percentage (or rebate) of any statutory redundancy payment due and paid to a redundant employee. However, the already (by then) much-mutilated redundancy rebates scheme was abolished when the Employment Act 1989 came into force on 16 January 1990.
It should be noted that the purpose of the redundancy payments scheme is to compensate a redundant employee for the loss of his (or her) investment in his job – not, as might be supposed, to provide him with sufficient funds to help him survive a period of unemployment. Accordingly, any employee who has lost his job because of redundancy may legitimately claim income support or the jobseeker's allowance, notwithstanding that he may already have received a substantial tax- free redundancy payment from his employer (see Wynes v Southrepps Hall Broiler Farm [1968] ITR 407).

Employer's liability to pay

Subject to certain conditions (discussed in the following paragraphs), an employer is liable to pay statutory redundancy pay to any employee of his who has either been dismissed on grounds of redundancy or laid-off or kept on short-time working for a period of four consecutive weeks (or for an aggregate of six weeks in a period of 13 consecutive weeks) (sections 135 and 148, Employment Rights Act 1996).
An employer cannot contract-out of his (or her) duty to pay a statutory redundancy payment to those of his employees who are entitled to receive such payments. Any provision in a contract of employment (or otherwise), which purports to exclude or limit that duty, or to deny an employee his right to bring proceedings before an employment tribunal, is null and void (ibid. section 203). However, there are two exceptions to this rule. A COT 3 agreement, concluded with the intervention of a conciliation officer of ACAS under section 18 of the Employment Tribunals Act 1996, is legally binding on both parties to the relevant dispute and serves to waive the right of the employee to bring proceedings in respect of that dispute before an employment tribunal. The same applies to a compromise agreement properly concluded between an employee and his or her employer.
There can also be an exemption in the case of a redundancy agreement concluded between an employer and one or more trade unions representing employees. If the employees covered by such an agreement have a right in certain circumstances to payments on the termination of their employment, and those payments are not less beneficial to those employees than the redundancy payments to which they would otherwise be entitled under the provisions of the 1996 Act, the Secretary of State for Education & Employment may (on the application of all parties to the agreement) make an order exempting that agreement from those provisions. However, the Secretary of State will not make such an order unless satisfied that the agreement allows questions to be put to an employment tribunal concerning the amount of (or the entitlement of an employee to) a payment under that agreement (ibid. section 157). To date, few redundancy agreements have been the subject of an exemption order by the Secretary of State.

Qualifying conditions

As a general rule, a redundant employee will not qualify to be paid a statutory redundancy payment unless, at the relevant date, he or she:
- was under age 65 or below the normal retiring age (whichever is the lower of those ages) for a person (male or female) holding the position which that employee held;
- had been employed for a minimum period of two years calculated from the date on which his or her period of employment began or from his or her 18th birthday (whichever is the later) and ending with the relevant date; and
- had not unreasonably refused an offer of suitable alternative employment (whether in writing or not) made by his or her present employer, an associated employer, or by the new owner if the employer 's undertaking was sold or transferred to another employer.

Meaning of 'relevant date'

The expression relevant date means the date on which the notice given to a redundant employee by his employer expired. However, if the employee was dismissed without notice or was given less than the minimum number of weeks' notice prescribed by section 86 of the 1996 Act (namely, one week's notice for each year of service up to a maximum of 12 years), the relevant date (for the purposes of calculating an employee's entitlement to a statutory redundancy payment) will be the date on which that statutory minimum period of notice would have expired had it been given on the date on which notice was actually given.

Excluded categories

The following categories of employee are excluded from any entitlement to a statutory redundancy payment:

an employee who is dismissed on grounds of gross misconduct (whether with or without notice) while under notice of dismissal on grounds of redundancy (ibid. section 140(1)); and

an otherwise redundant employee who unreasonably refuses an offer of suitable alternative employment or who has agreed to 'try out' another job but unreasonably terminates his (or her) employment during the trial period (ibid. section 141(2) and (3)).

Note

Since 25 October 1999, when section 32 of the Employment Relations Act 1999 came into force, employees who are made redundant while outside Great Britain (including employees who ordinarily work outside Great Britain) no longer forfeit their right to a statutory redundancy payment on the termination of their employment. Furthermore, with the coming into force on 1 October 2002, of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, waiver clauses, in a fixed-term contract lasting or expected to last for two years or more, are no longer permissible or enforceable – unless the contract in question (or its accompanying waiver clause) was agreed or inserted before 1 October 2002.

Meaning of redundancy

A redundancy situation arises when an employee is dismissed from his (or her) employment, and the dismissal is wholly or mainly attributable to:
- the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed; or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed; or
- the fact that there is a reduced need for employees of the same category as that employee to carry out work of a particular kind in the place where that employee is employed (ibid. section 139(1) and (2)) – which underlines the rationale behind the inclusion of an employee's job title in the written statement of terms of employment prescribed by Part I of the 1996 Act.
In other words, an employer may decide for sound commercial reasons (1) to close down his (or her) business altogether; (2) to move his business to a different location; or (3) to reduce the number of people he employs in certain departments or sections within the business. For example, a sudden and apparently permanent decline in export orders may prompt a manufacturer to reduce the number of production workers in his factory. In an extreme situation, he may very well be forced to shut down completely.

Lay-offs and short-time working

A redundancy situation will also arise if an employee has been repeatedly laid off or kept on short-time working for four or more weeks. It must be emphasised at this point that an employer may not lay-off an employee or transfer him (or her) to short-time working – however serious the situation may be – unless the employee's contract of employment contains a clause which allows the employer to do so. An employee may, of course, agree to be laid off or placed on short-time working (as the more desirable alternative to redundancy); but that agreement (preferably in writing) must be sought and obtained by the employer before he puts any such arrangement into effect.
Subject to the foregoing, any employee who has been laid-off or kept on short-time working for a period of four consecutive weeks (or for an aggregate of six weeks within a 13-week period), may serve written notice on his (or her) employer that he intends to claim a redundancy payment. However, the notice must be served not later than four weeks after the end of the last of the weeks in which the employee was laid- off or kept on short-time working. Furthermore, it must be accompanied by at least one week's notice of termination of employment (or such longer period as the employee is required to give under the terms of his contract of employment).
If the employer does not dispute the employee's claim to a redundancy payment and/or cannot guarantee to provide the employee with a period of full employment lasting at least 13 weeks (to commence not later than four weeks after the date of service of the 'notice of intention to claim'), the employee is entitled to be paid a statutory redundancy payment (provided, of course, that he qualifies for such a payment in terms of his age and length of employment at the relevant date) (ibid. Part XI, Chapter III).

Employee anticipating expiry of employer's notice

A redundant employee working out his (or her) employer's notice will still qualify for a redundancy payment even if he hands in his resignation to take effect on a date earlier than the date on which his employer's notice is due to expire (so long as he does so within the 'obligatory period of notice' (see next paragraph) and provided always that his employer does not object to his leaving prematurely). However, this rule does not apply if the employer writes to the employee instructing him to withdraw his letter of resignation and to continue working until the date originally specified in the employer's notice. An employee who unreasonably refuses to carry on working in such circumstances thereby forfeits his right to a redundancy payment, although the question as to whether the employee's refusal was 'unreasonable' will be a matter for an employment tribunal to decide (ibid. sections 136(3) and 142) (but see next paragraph).

Note

Section 142 of the 1996 Act endorses the right of an employee under notice of redundancy to look for and, if need be, take up alternative employment before the expiry of his (or her) employer's notice. Provided that his employer does not insist on the employee working out his notice period, the employee will retain his right (if any) to a statutory redundancy payment on the termination of his employment.

The 'obligatory period of notice' referred to in the previous paragraph is the period of notice to which an employee is entitled under his (or her) contract of employment, or the minimum notice required to be given by the employer in accordance with section 86(1) of the 1996 Act (that is say, a minimum of one week's notice for each of a maximum 12 years' continuous employment), whichever is the greater. Even though a redundancy situation exists, or is imminent, there can be no entitlement to a redundancy payment if an employee terminates his employment before the beginning of that obligatory notice period (ibid. section 136(4)).
In Pritchard-Rhodes Ltd v Boon and Milton [1979] IRLR 19, two employees each received a letter from their employer informing them that they were to be made redundant at some future (unspecified) date. But the letter assured them that their jobs would last 'for at least seven months'. Taking the initiative (or, more appropriately, 'jumping the gun'), both men terminated their contracts some six weeks later and put in a claim for redundancy payments. The Employment Appeal Tribunal held that, as the employees had not tendered their notices within the obligatory period of notice required to be given by their employer under section 86(1) of the 1996 Act, they were not entitled to statutory redundancy pay.

Voluntary redundancies

Voluntary redundancies occur when an employer and one or more of his employees agree to part company. This situation quite often arises when an employer invites employees to take part in a voluntary redundancy programme – the purpose often being to encourage older employees to accept dismissal in deference to younger workers. So long as there is a genuine redundancy situation, an employee's willingness to be made redundant will not deny him his (or her) statutory entitlement to a redundancy payment.

'Bumping'

The question arises as to whether an employee is truly redundant (and therefore entitled to a redundancy payment) if he (or she) is 'bumped' out of his job in order to make way for a more senior or longer-serving employee whose own job has been made redundant. In Gimber v Spurrett (1967) 2 ITR 308 (followed by the EAT in Elliott Turbomachinery Ltd v Bates [1981] ICR 218), it was held that an employee dismissed in such circumstances had indeed been dismissed by reason of redundancy. But, in a more recent case, that of Church v West Lancashire NHS Trust [1998] ICR 423, the EAT ruled otherwise, declaring that, although 'bumping' was one way of managing a redundancy situation, the 'bumped' employee's dismissal was not of itself attributable to a diminution in the requirement for employees to do work of the kind done by that employee. Although the Church decision has been appealed to the Court of Appeal, the 'bumping' issue appears to have been resolved by the decision of the House of Lords in Murray v Foyle Meats Limited [1999] ICR 827; [1999] IRLR 562. There, the Law Lords held that an employee's dismissal could be due to redundancy even if the work on which he (or she) was engaged was unaffected by a fall in demand or a business set-back elsewhere within the employing organisation. There was no reason, they said, why the dismissal of such an employee should not be attributable to a diminution in the employer's need for employees to do work of a particular kind, although an employer in such a case would nonetheless need to explain the causal connection.

Offer of suitable alternative employment

If an employer makes a written or verbal offer to an otherwise redundant employee, either to renew his (or her) existing contract of employment or to re-engage him under a new contract, the employee will not be entitled to a redundancy payment if he unreasonably refuses that offer. However, the employer's offer must be made to the employeebefore his previous contract comes to an end. Furthermore, the new job must not only be suitable in relation to the employee (see next paragraph) but must be available to the employee either immediately on the end of his former employment or within the next four weeks (ibid. sections 138(1) and 141 (1)).
To be suitable, the terms and conditions under which the employee would be employed under the new or renewed contract (including the location and capacity in which he (or she) would be employed) must either be the same or similar to those enjoyed by the employee under his previous contract (ibid. section 141(1), (2) and (3)).

Trial period in new employment

If, on the other hand, an otherwise redundant employee is offered re- employment in a job whose terms and conditions differ wholly or in part from the corresponding provisions of his (or her) previous contract, the employee has the right to try out that alternative job for a period of up to four weeks (or for an agreed longer period, if retraining is required) (ibid. sections 138(2) and 141(4)).
If, during or at the end of the trial period, the employee decides that the new job is unsuitable, he (or she) will be treated in law as having been dismissed on the day his previous contract of employment came to an end, and will be entitled to be paid a redundancy payment calculated to that earlier date. If, however, the employee unreasonably terminates his new contract, for reasons which are not immediately apparent, his employer may dispute his obligation to pay a redundancy payment. As always, the matter may be referred to an employment tribunal for a determination (ibid.).
The question whether an offer of alternative employment is 'suitable' in relation to an employee is one of fact to be decided by an employment tribunal (see Hitchcock v St Ann's Hosiery Company Ltd [1971] ITR 98, QBD). Having decided that an offer is suitable, an employment tribunal will then need to decide whether an employee had acted reasonably or unreasonably in refusing that offer. Factors to be taken into account may include matters such as distance, family commitments, the unemployment situation in the area, etc (see John Laing & Son Ltd v Best [1968] ITR 3).

Redundancy consultations

An employer who has it in mind to make 20 or more employees redundant within a period of 90 days or less, is duty-bound to discuss his (or her) proposals with persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals (per section 188, Trade Union & Labour Relations (Consolidation) Act 1992, as amended by the Collective Redundancies & Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999).

For these purposes, the appropriate representatives of any affected employees are:
- representatives of an independent trade union (shop stewards or works convenors), if the employees in question are of a description in respect of which the trade union is recognised by their employer as having collective bargaining rights (ibid. section 188(1B)) or, if there is no trade union representation;
- existing employee representatives or representatives specifically elected by their colleagues or workmates to represent their interests, to be consulted about their employer's redundancy proposals, and to receive information from their employer concerning those proposals (ibid.).
In short, if the would-be redundant employees are of a description in respect of which an independent trade union is recognised by their employer, their employer must consult representatives of that trade union. If there is no trade union representation, the employer must consult existing employee representatives. If there are no existing employee representatives, the employer must ensure that the would- be redundant employees are allowed sufficient time (and the facilities) to elect one or more of their number to represent their interests in consultations with their employer. It is up to the employer to decide how many employee representatives should be elected (ibid.sections 188 and 188A).
If, in spite of having been invited to do so, the affected employees fail within a reasonable time to elect one or more of their colleagues to represent their interests, their employer must nonetheless ensure that each of those employees receives the written particulars referred to below.

When must the redundancy consultations begin?

Consultations with appropriate representatives should begin at the earliest opportunity, and must in any event begin:
- at least 90 days before the first of the dismissals is to take effect, if 100 or more employees at one establishment are to be dismissed as redundant within a period of 90 days or less; or
- at least 30 days before the first dismissal takes effect, if 20 or more, but fewer than 100, employees at one establishment are to be dismissed as redundant within a period of 90 days or less.
An employer who refuses or fails to consult with the appropriate representatives is liable to be ordered to pay each affected employee an amount not exceeding the equivalent of 90 days' pay

Scope of consultations

Consultations with the appropriate representatives must include consultation about ways to:
1. avoid the dismissals;
2. reduce the number of employees to be dismissed; and
3. mitigate the consequences of the dismissals,
and must be undertaken by the employer with a view to reaching agreement with those representatives (ibid. section 188(2)).

Written particulars

For the purposes of the redundancy consultations, the employer must write to each of the relevant representatives:
1. explaining the reasons for the proposed redundancies;
2. listing the numbers and descriptions of employees whom it is proposed to make redundant;
3. specifying the total number of employees of any such description who are currently employed at the establishment in which the redundancies are to take place;
4. outlining the proposed method for selecting the employees who may be made redundant; and
5. explaining what severance payments (if any) are to be made to the redundant employees – in addition to their entitlement (if any) to statutory redundancy pay – and how those severance payments are to be calculated.
The letter or document containing the above particulars must either be delivered by hand to each representative or be posted to an address nominated by the representatives. In the case of trade union representatives, the letter should be sent by post to the union's head office (ibid. section 188(5)).
Representatives involved in the consultation process must be allowed to talk to the employees who are on the list of likely candidates for redundancy and must be afforded access to an office and telephone ('such accommodation and facilities as may be appropriate') so as to enable them to conduct such meetings in private (ibid. section 188).
It is neither acceptable nor lawful for an employer to refuse or fail to enter into consultations on the grounds that the decision to make 20 or more employees redundant was taken by a parent or holding company (perhaps located elsewhere in Great Britain, or overseas) and that he does not have the authority to explore ways and means of avoiding the redundancies or reducing the number of employees to be dismissed, or to take steps to mitigate the consequences of the dismissals. Nor can he use that same (or a similar) excuse to justify his refusal or failure to give the written particulars referred to earlier.
For information about complaints to, and the penalties to be applied by, an employment tribunal, when an employer refuses or fails to comply with his obligation to enter into consultations with employee or trade union representatives (or with any associated duties)

Notifying the Secretary of State for Trade and Industry

An employer proposing to make 20 or more employees redundant must not only consult with the appropriate employee representatives but must also notify the Secretary of State for Trade & Industry (in practice, the nearest Redundancy Payments Office of the Department of Trade & Industry (DTI)) before those proposals are put into effect (ibid. section 193).
The notification must be given in writing (using form HR 1 supplied by the DTI):
- at least 90 days before the first dismissal is to take effect, if 100 or more employees at the same establishment are to be dismissed as redundant within a period of 90 days or less; or
- at least 30 days before the first dismissal is to take effect, if 20 or more employees (but fewer than 100) at the same establishment are to be dismissed as redundant within a period of 30 days or less.
A copy of form HR 1 must also be sent to each of the employee and/or trade union representatives involved in the consultation process described earlier in this section (ibid. section 193).
At any time after receiving formal notification of impending redundancies, the DTI may approach the employer in question for further information. Any employer who refuses or neglects to forewarn the DTI about his redundancy proposals, or who refuses to respond to a request for additional information, is guilty of an offence and liable, on summary conviction, to a fine of up to £5,000 (ibid. section 194).

Calculation of redundancy payments

The method used for calculating redundancy payments is outlined in section 162 of the Employment Rights Act 1996. Just how much a redundant employee is entitled to be paid (assuming he (or she) satisfies the minimum qualifying conditions discussed earlier in this section) is determined by reference to his age, length of service (including any service with a previous employer which counts as part of his total period of continuous employment), and weekly pay at the effective date of termination of his contract of employment. Thus a redundant employee under normal retiring age at the time of his (or her) dismissal, who has worked for his employer for a minimum continuous period of two years (excluding any period of employment before his 18th birthday) must receive at least:

one-and-a-half weeks' pay for each year of employment in which he (or she) was not below the age of 41;
one week's pay for each year of employment in which he (or she) was below the age of 41 but not below the age of 22; and
a half week's pay for each year of employment in which the employee was below the age of 22 but not below the age of 18.

Calculations may lawfully exclude any period of service in excess of 20 years (counting backwards from the date on which the employment ends or is due to end) and may ignore weekly earnings (or average weekly earnings) in excess of £260 per week – which upper amount is reviewed in January of each year. Thus, the maximum statutoryredundancy payment currently payable to an employee is £7,800 (ie, 20 x 1.5 x £260). Employers are, of course, free to 'top up' the statutory amount if they so wish.

Note

A Ready Reckoner for Redundancy Payments (Form RPL2) will be supplied on request by local employment offices of the Department for Work & Pensions. The Ready Reckoner is also reproduced in booklet PL 808 available from Job Centres, and (Redundancy Payments) available from Job Centres and local offices of the Employment Department.

Furthermore, if a redundant employee (male or female) has already had his or her 64th birthday before the relevant date (see below), the amount of redundancy pay otherwise payable to that employee can legally be reduced by one-twelfth for each complete calendar month by which his or her age exceeds 64. Thus, a redundant employee aged 64 years and eight months when dismissed can expect to have his (or her) redundancy pay reduced by eight-twelfths (or two-thirds) (ibid., section 162(4) and (5)).
Reckonable employment, excluding periods which do not count but which do not break continuity, but including, where applicable, any relevant employment with a former employer must be aggregated to make complete years. No payment is due for a fraction of a year. But excess reckonable employment in a higher age bracket will count towards employment in the age bracket immediately below. And, because of the upper service limit of 20 years referred to earlier, the number of complete years of continuous employment must be reckoned backwards from the date of expiry of notice

A week's pay

A week's pay in the case of an employee paid monthly (whose salary is invariably expressed as an annual sum) is his (or her) annual income divided by 52. When an employee's pay varies with the amount of work done, as when pay is partly made up of bonuses or commission, the amount of a week's pay will be the average of that employee's weekly earnings over the 12-week period ending with the last complete week in which he or she actually worked. The same applies in the case of hourly- paid employees, when a week's pay will be the average of an employee's earnings over the same 12-week period. However, overtime premium payments will not feature in calculations – unless the employee's contract requires the employer to provide a specified number of overtime hours each week and requires the employee to work those extra hours. The fact that a redundant employee may have worked overtime, week in and week out, for many years will not entitle him to have his overtime income included in calculations for redundancy pay. If overtime working is in any sense voluntary, it (and the premium payments it generates) will be disregarded.

Note

If an employee's contract stipulates that he (or she) will be paid an annual bonus calculated as a fixed percentage of his salary or earnings during the previous period of 12 months, the relevant proportion of that bonus must be included in the amount of a week's pay. If, on the other hand, payment of a Christmas (or equivalent) bonus is at the absolute discretion of the employer, that bonus will not be included in calculations.

For most employees, whose contracts of employment stipulate normal weekly working hours, it is relatively easy to calculate the amount of a week's pay. An Employment Department booklet titled Rules Governing Continuous Employment and a Week's Pay (Ref PL 711) explains the method for calculating a week's pay in the case of shift-workers and others whose working hours often vary from week to week. Copies of the booklet are available on request from any office of the Employment Service.

Note

In certain situations, an employer may choose to offset pensions (and lump sum payments) provided under an occupational pension scheme against statutory redundancy payments. Full details of the statutory provisions on account of pension, and examples showing the calculations are set out in Department for Work & Pensions leaflet PPL 1 (which should be readily available from Job Centres or unemployment benefit offices).

Calculations must be explained

Every statutory redundancy payment must be accompanied by a written statement explaining precisely how that payment was calculated. Any employer who fails to comply with this requirement, without reasonable excuse, is guilty of an offence and liable on summary conviction to a fine of up to £200. An employer who fails to respond to a letter sent by a redundant employee demanding to be sent (or given) the explanatory statement within a specified period (not less than one week), is guilty of a further offence and liable on conviction to a fine of up to £l,000 (ibid. section 165).

References to an employment tribunal

Any question as to the right of an employee to a redundancy payment, or as to the amount actually paid, must be referred to an employment tribunal within six months of the date of the employer's refusal or failure to pay (ibid. sections 163 and 164). If a tribunal upholds the employee's complaint, it will make a declaration to that effect and will order the employer to pay the amount of the redundancy payment due.
If an employer is liable to pay a redundancy payment to an employee, but has either refused or is unable to do so because he (or she) is insolvent or in serious financial difficulties, the employee may apply to the Secretary of State for Education & Employment for a payment out of the National Insurance Fund. If the Department of Employment is satisfied that there is little chance of the employer being in a position to pay, it will pay the money directly to the claimant employee. The Department will then take the necessary steps to recover the money from the defaulting employer (or, as appropriate, from the relevant liquidator or trustee in bankruptcy) (ibid. sections 166 to 169).

Redundancy during maternity absence

An employee absent from work on ordinary or additional maternity leave, who is not permitted to return to work because of redundancy, is entitled to be offered suitable alternative employment or (if there is nothing suitable for her to do) a redundancy payment.

Unlawful selection for redundancy

Any employee dismissed or selected for redundancy for an inadmissible or unlawful reason, or for asserting one or other of his (or her) statutory employment rights will be treated in law as having been unfairly dismissed (ibid. sections 104 and 105)

Racial Discrimination (Employment and other fields)

noreply@blogger.com (Unknown) — Mon, 01 Jul 2019 09:22:00 +0000

Key points

Under the provisions of the Race Relations Act 1976, it is unlawful for any person in Great Britain to discriminate against another person on grounds of colour, race, nationality or national or ethnic origins – whether in the field of employment or in the provision of goods, facilities or services.
The 1976 Act, which repealed and replaced earlier Race Relations Acts, identifies three forms of racial discrimination, each of which is unlawful. These are:
1. direct discrimination (which occurs when a person is treated less favourably than other persons because of his or her colour, race, nationality, etc);
2. indirect discrimination (which occurs when a person is effectively denied access to employment opportunities, goods, facilities, services, etc by the imposition of an unjustifiable condition or requirement which places him or her at a disadvantage relative to persons of a different racial group); and
3. discrimination in the form of victimisation or racial harassment which can also occur when a person is treated less favourably by his (or her) employer, or some other person, for having brought proceedings for an alleged infringement of his rights under the 1976 Act.

Commission for Racial Equality

The Commission for Racial Equality (CRE), which replaced the earlier Race Relations Board, has broad powers to undertake investigations for any purpose connected with the elimination of racial discrimination and the promotion of equality of opportunity and good relations between persons of different racial groups generally. Where the CRE uncovers evidence of racial discrimination, it may issue a non-discrimi- nation notice requiring this to cease. It may bring proceedings against persistent offenders, and has similar powers to deal with unlawful discriminatory advertisements. It undertakes advisory and educational work, and may provide advice and assistance to persons or groups where there are special reasons for doing so. A Code of Practice on Race Relations, produced by the CRE, is available from The Stationery Office

Discrimination in the employment field

It is unlawful for an employer in Great Britain to discriminate against an applicant or candidate for employment on racial grounds:
1. in the arrangements he (or she) makes for the purposes of determining who should or should not be offered that employment; or
2. by refusing or deliberately omitting to offer that person that employment,
unless being of a particular racial group is a genuine occupational qualification for the job in question (see below) (ibid. sections 4(1) and 5(l)(A)).

It is unlawful for an employer to discriminate on racial grounds:

by paying an employee less than his (or her) colleagues in the same employment or offering him less advantageous terms and conditions of employment;
by denying an employee equal access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

by dismissing him or subjecting him to any other detriment (ibid. section 4(2)).

Note

Section 8 of the Asylum & Immigration Act 1996 cautions employers that they are liable to prosecution and a fine of up to £5,000 if they employ any person subject to immigration control who is aged 16 and who has not been granted leave to enter or remain in the UK or who does not have a valid and subsisting right to take up employment while in the UK. However, the mere act of screening job applicants (or a short-list of candidates for employment) in compliance with section 8 could unwittingly give rise to allegations of racial discrimination

Direct discrimination

Direct discrimination occurs when a person is treated less favourably than other persons in the same employment because of his (or her) colour, race, nationality, or national or ethnic origins. An example is an employer's refusal to interview coloured applicants for vacancies, or a trade union's refusal to extend membership rights to coloured workers or foreign nationals. It can also manifest itself after employment has begun when an employer refuses (for no good reason) to promote coloured or foreign workers, or denies them access to training and facilities. Direct discrimination can be justified only if being of a particular racial group is a genuine occupational qualification for a particular vacancy (discussed below).
An employer who openly or covertly instructs an employment agency not to submit coloured or foreign candidates for vacancies within his (or her) organisation, not only risks being served with a non-discrimi- nation notice by the Commission for Racial Equality (with the attendant penalties if he does not mend his ways), but may also be ordered by an employment tribunal to pay compensation of such amount as the tribunal considers appropriate in the fight of a job applicant's loss of prospective earnings and injured feelings. The employment agency may likewise be served with a non-discrimination notice and, if it fails to comply with the terms of that notice, could be served with a county court injunction (or sheriff court order) restraining the agency from further unlawful acts (ibid. sections 14, 30, 56, 58 and 62). See also Questions and repliesbelow.

Indirect discrimination

An employer indirectly discriminates against an employee (or candidate for employment) on racial grounds by applying a condition or requirement which effectively excludes that person because of his (or her) race, colour, nationality, or national or ethnic origins. Thus, it is prima facie unlawful for an employer (employment agency or trade union) to require job applicants (or candidates for membership) to complete an unnecessarily complicated aptitude test, or to possess technical or professional qualifications which could only have been acquired in Great Britain either of which requirements might well deter otherwise suitable applicants from applying for work or membership, or taking their applications further, whether or not this effect was intended by the employer at the time.

In Hussein v Saints Complete House Furnishings [1979] IRLR 337, an employer had stipulated that job applicants should reside outside Liverpool 7 and 8 postal districts. Persons recruited from those districts in the past had tended to bring with them their unemployed friends who were given to loitering outside the front entrance to his premises. An employment tribunal found that, although the employer had not intended to discriminate against coloured persons, his refusal to recruit persons from those two inner city postal districts had effectively eliminated some 50 per cent of the black community in Liverpool.

Note

In a not dissimilar case, a confectionery manufacturer in Edinburgh insisted that employees handling the company's products should be clean-shaven. A Mr Singh, a Sikh, applied for a job at the factory and was informed that he would not be accepted unless he agreed to shave off his beard. Mr Singh, whose religion forbade him to do so, refused. On a complaint of unlawful discrimination, the Employment Appeal Tribunal held that it was not unreasonable for a manufacturer of foodstuffs to insist on the highest standards of personal hygiene in order to avoid the possibility of food contamination. Mr Singh's appeal was dismissed (Singh v Rowntree Mackintosh Ltd [1979] IRLR 199).

Discrimination by way of victimisation

An employer is guilty of racial discrimination by way of victimisation if he treats the employee victimised less favourably than he would other persons in similar circumstances, and does so because the employee in question:
1. has brought proceedings against him (or some other person) under the Race Relations Act 1976; or
2. has given evidence or information in connection with proceedings brought before a tribunal or court by any other person under the 1976 Act.
The same rule applies if an employee is victimised or harassed for alleging that his employer's recruitment or employment policies amount to unlawful racial discrimination under the 1976 Act unless the evidence shows that the employee's allegations were false and not made in good faith (ibid. section 2).

Dismissal on racial grounds

The dismissal of an employee on grounds of colour, race, nationality or national or ethnic origins is unlawful and automatically unfair and will nowadays attract a prohibitive award of compensation – including compensation for loss of earnings and damages for injured feelings (plus interest).

Instructions to discriminate

It is unlawful for an employer to instruct any person over whom he (or she) has a measure of authority (eg personnel manager, head of department, foreman, supervisor, etc) to do any act which constitutes unlawful discrimination on racial grounds; or to induce, or attempt to induce, such a person to do any act which is unlawful (sections 30 and 31, Race Relations Act 1976).

Note

In Zarcynska v Levy [1978] IRLR 532, a barmaid was dismissed when she disobeyed her employer's instructions not to serve black customers. The Employment Appeal Tribunal held that the employer's instructions constituted unlawful discrimination on racial grounds and that the barmaid (who was herself white and the innocent victim of that discrimination) had been unlawfully and unfairly dismissed.

Discriminatory advertisements

It is unlawful for an employer to publish, or cause to be published, a job advertisement which indicates a clear or ill-concealed intention to discriminate against potential applicants on racial grounds, unless the advertisement indicates that persons of any class defined otherwise than by reference to colour, race, nationality or ethnic or national origins are required for employment outside Great Britain (ibid. section 29).

Note

Proceedings in such cases may be brought only by the Commission for Racial Equality. Nowadays, of course, it is extremely unlikely that any newspaper proprietor or publisher will agree to publish an advertisement which is patently discriminatory (unless it was reasonable for the publisher to rely on a statement by the person wishing to publish that advertisement that it would not be unlawful under the 1976 Act) (ibid. section 29(4)).

Genuine occupational qualification

It is not unlawful for an employer to discriminate against job applicants on racial grounds if being of a particular racial group is a genuine occupational qualification for the vacancy, or vacancies, in question (ibid. section 5(1)). Being of a particular racial group is a genuine occupational qualification for a job if it involves working in a place where food or drink is (for payment or not) provided to and consumed by members of the public or a section of the public in a particular setting for which, in that job, a person of that racial group is required for reasons of authenticity (ibid. section 5(2)(c)).

Note

It is therefore lawful for the proprietor of a Chinese restaurant to advertise for Chinese waiters and to turn away people who are not Chinese. The same is, of course, true of Indian restaurants, Pakistani restaurants, and so on. Whether an employment tribunal would take the same view in the case of advertisements for kitchen hands and 'bottle washers' in such establishments is another matter.

Questions and replies

An employee (or candidate for employment), who believes that he or she may have been discriminated against on racial grounds (whether by his employer, or by a prospective employer), has the right under the 1976 Act to question the person concerned on the reasons for his apparently unlawful actions. If dissatisfied with that employer's answers (if answers were given), the employee or job applicant may admit them (or a refusal to answer) as evidence in proceedings before an employment tribunal (ibid. section 65). The purpose is to enable the person aggrieved to decide whether or not to bring legal proceedings against the employer concerned (the respondent).

The procedure for submitting questions to an employer in such circumstances has been formalised by the Race Relations (Questions & Replies) Order 1977. The prescribed form is Form RR65 (available from any employment office, Job Centre or unemployment benefit office of the Department for Work & Pensioins; or from the Commission for Racial Equality).

Note

Form RR65 is an eight-page document which not only provides space for preparing the questionnaire to be submitted, but also contains a deal of practical advice both to the person framing the questions and to the person to whom those questions are put. Although the document acknowledges that an employer is under no legal obligation to answer the questions put to him in Form RR65, it does caution that his failure or refusal to do so within a reasonable period could well put him in a difficult position should the questioner decide to refer the matter to an employment tribunal.

To be admissible as evidence before an employment tribunal, the complainant's questionnaire (Form RR65) must be served on the respondent employer either:
1. before a complaint of unlawful racial discrimination is sent to the Regional Office of the Tribunals, but not more than three months after the date on which the alleged discrimination occurred; or
2. if the complaint has already been lodged, not later than 21 days after the date on which it was received by the Secretary to the Tribunals.

Complaint to an employment tribunal

Any person who has been dismissed from his (or her) employment on racial grounds, or who considers that he has otherwise been discriminated against or subjected to any detriment (by his employer or by a prospective employer) in contravention of the Race Relations Act 1976, may present a complaint to an employment tribunal. An employee does not have to resign from his job in order to present a complaint of unlawful discrimination. Indeed, any employee victimised by his employer for complaining to an employment tribunal, or for alleging that his employer has committed an act of unlawful racial discrimination, can pursue a separate complaint on those grounds alone. An employee has the right to pursue a complaint of unlawful discrimination under the 1976 Act regardless of his (or her) age or length of service at the material time. However, he must present his complaint before the end of the period of three months beginning with the date on which the act complained of was done or, as appropriate, within three months of the effective date of termination of his contract of employment (ibid. section 68(1)).

Note

To pursue a complaint of unlawful racial discrimination (including a complaint of dismissal on racial grounds), the complainant should complete Form ET1, copies of which are available from employment offices, Job Centres and unemployment benefit offices of the Employment Department. Once the complaint has been received and registered, the Secretary to the Tribunals will send a copy of Form IT1 to a conciliation officer of ACAS who will intervene to promote a settlement before the matter is put to an employment tribunal. Anything communicated to a conciliation officer (either by the complainant or by the respondent employer) is not admissible in evidence at any ensuing tribunal hearing, except with the express consent of the person concerned (ibid. section 55).

If an employment tribunal decides that a complaint of unlawful discrimination is well-founded, it will make a declaration to that effect and will order the respondent employer to pay the employee or job applicant such compensation as it considers appropriate, including compensation for lost earnings or prospective lost earnings (if any) and injury to feelings. There is no upper limit on the amount of compensation which a tribunal can award in such cases (per the Race Relations (Remedies) Act 1994, which came into force on 3 July 1994). If the complainant is still employed, the tribunal will also recommend what the employer must do to avoid any further acts of discrimination against that employee (ibid. section 56). If the complainant has been unlawfully dismissed on racial grounds, the employer will be ordered to reinstate or re-engage that employee in the same or an equivalent job. If the employer refuses to comply (or the complainant indicates that he or she does not wish to be reinstated or re-engaged), the tribunal will take that factor (and the complainant's wishes) into account when calculating the amount of compensation to be awarded.

Compromise and COT 3 agreements

An employee considering bringing a complaint of unlawful racial discrimination against his (or her) employer may agree to settle 'out of court' by entering into a compromise agreement with his employer. Such an agreement is binding on both parties, so long as it is willingly entered into and is prepared in accordance with section 72(4A) of the 1976 Act

So-called COT 3 agreements are likewise binding on both parties;

Note

Under section 212A of the Trade Union & Labour Relations (Consolidation) Act 1992 (as inserted by section 7 of the Employment Rights (Dispute Resolution) Act 1998), the Advisory, Conciliation & Arbitration Service (ACAS) is empowered to arbitrate in disputes involving proceedings or claims which could be the subject of unfair dismissal proceedings.

Assistance by Commission for Racial Equality

A person contemplating bringing legal proceedings against his employer (or a particular employer) for alleged unlawful discrimination under the Race Relations Act 1976, may apply to the Commission for Racial Equality for help in preparing his (or her) case. If the Commission is agreeable (eg, on the ground that the case raises a question of principle), it may advise the complainant, attempt to procure an 'out of court' settlement (see previous paragraphs), arrange for the giving of advice or assistance by a solicitor or counsel, arrange for representation by any person (including all such assistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings), or give any other form of assistance which the Commission may consider appropriate (ibid. section 66(2)).

Public Interest Disclosures

noreply@blogger.com (Unknown) — Fri, 28 Jun 2019 13:47:00 +0000

Key points

Under the Public Interest Disclosure Act 1998, which came into force on 2 July 1999, any worker who makes a so-called protected disclosure has the right not to be dismissed, selected for redundancy or subjected to any other detriment (demotion, forfeiture of opportunities for promotion or training, etc) for having done so. Any term in a contract of employment or other document (such as a 'worker's contract') which purports to undermine or override a worker 's right to make a protected disclosure is null and void.

Note

The relevant provisions of the 1998 Act (commonly referred to as 'the Whistleblower 's Act') have been inserted as Part IVA (sections 43A to 43L) of the Employment Rights Act 1996. Provisions in the 1998 Act relating to a worker's right not to be dismissed, selected for redundancy or subjected to any detriment for making a protected disclosure are to be found in sections 47B, 103A and 105 of the 1996 Act. The latter Act is hereinafter referred to as 'the 1996 Act').

Meaning of 'qualifying disclosure'

Section 43A of the 1996 Act defines 'protected disclosure' as meaning a qualifying disclosure, that is to say, any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:
1. that a criminal offence has been, is being or is likely to be committed;
2. that a person has failed, is failing or is likely to fail to comply with a legal obligation to which he (or she) is subject;
3. that a miscarriage of justice has occurred, is occurring or is likely to occur;
4. that the health and safety of an individual has been, is being or is likely to be endangered;
5. that the environment has been, is being or is likely to be damaged; or
6. that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.
It is important to note the use of the word 'worker', in this context. A worker is a person who is either an employee in the accepted sense (that is to say, a person employed under a contract of employment) or a person who undertakes to do or perform personally any work or service for an employer (perhaps as a freelance operator, a trainee, a casual labourer, or agency worker). The term does not however apply to any person who is genuinely self-employed.
A worker prompted to make a disclosure about alleged wrongdoing by (or within) the organisation for which he (or she) works may do so:
1. to his employer (either directly or in accordance with established procedures for dealing with such allegations) or to another person whom the worker reasonably believes to be solely or mainly responsible for the alleged unlawful or criminal conduct;
2. to a legal adviser (if made in the course of obtaining legal advice);
3. to a Minister of the Crown (if the disclosure is made in good faith, and the worker in question is employed by a government- appointed person or public body);
4. to the appropriate enforcing authorities (such as the Health & Safety Executive, the Commissioners of the Inland Revenue, the Environment Agency, etc (see below));
5. (subject to certain conditions) to some other person or agency, if the disclosure relates to an exceptionally serious failure on the part of the worker's employer or some other person; or
6. (subject to certain conditions) to some other person or agency (eg, the media, or a professional body responsible for policing standards and conduct in a particular field).

Disclosure to employer or other responsible person

A worker may make a qualifying disclosure directly to his (or her) employer, or to some other person whom he reasonably believes to be solely or mainly responsible for the alleged wrongdoing, and will enjoy the protection available to him under Part IVA of the 1996 Act, so long as he acts in good faith (ibid. section 43C).
If an employer has developed or authorised a simple and readily accessible procedure to encourage workers to air their concerns about alleged wrongdoing within his organisation (eg, breaches of health and safety legislation), then those procedures should be exhausted before a worker takes it upon himself (or herself to air those concerns or allegations elsewhere. He may choose, on the other hand, to present his allegations of wrongdoing directly to the appropriate enforcing authorities (so long as he does so in good faith and reasonably believes those allegations to be substantially true).
An employer's in-house procedures for dealing with allegations of wrongdoing are unlikely to inspire confidence unless they involve other members of the workforce or workforce representatives elected or appointed by their peers to deal with such issues and make representations to their employer. A reasonable employer will, of course, respond positively to qualifying disclosures about supposed criminal activities or other wrongdoing within his organisation. So long as those disclosures were made in good faith, it would be wholly irresponsible (not to mention costly) for an employer to react by disciplining the worker or workers concerned, or by dismissing them or subjecting them to some other detriment.

Disclosure to the 'appropriate authorities'

A worker who makes a qualifying disclosure to a prescribed person or body – such as the Health & Safety Executive, the Inland Revenue, HM Customs & Excise, the Environment Agency, the Audit Commission, the Director General of Fair Trading, and the like (see Note below) – will enjoy the protection afforded by the 1996 Act, so long as he (or she) does so in good faith and reasonably believes that the allegations of wrongdoing he is making are substantially true (ibid. section 43F).

Note

A list of the persons and descriptions of persons prescribed for the purposes of section 43F of the 1996 Act is to be found in the Schedule to the Public Interest (Prescribed Persons) Order 1999 and is reproduced in DTI Booklet URN 99/511 (Guide to the Public Interest Disclosure Act 1998), copies of which are available free of charge from the DTI's Publications Orderline (Telephone: 0870 1502 500).

Disclosure in other cases

A worker who makes a qualifying disclosure to some other person or body (other than his employer or the appropriate enforcing authority) will enjoy the protection of the law, if he (or she):
1. made the disclosure in good faith;
2. reasonably believed that the information disclosed, and any allegation contained in it, were substantially true;
3. did not make the disclosure for the purposes of personal gain;
4. reasonably believed (at the time he made the disclosure) that he would have been punished, dismissed, selected for redundancy or subjected to some other detriment had he made the disclosure to his employer or to the appropriate enforcing authority;
5. (in the absence of an appropriate enforcing authority) reasonably believed that his employer would have concealed or destroyed any incriminating evidence; or
6. had previously made the same or a similar disclosure to his employer or the appropriate enforcing body without avail.
Whether or not it was reasonable for the worker to have made the qualifying disclosure to a person or body other than his (or her) immediate employer (or the appropriate enforcing authority) will depend in large part on the identity of the person or body to whom the disclosure was made. An employment tribunal will also consider the seriousness of the alleged wrongdoing (and the likelihood of its happening again), whether the disclosure in question contained information in breach of the employer 's duty of confidentiality to another person (eg, a customer or client), the employer's or the prescribed enforcing authority's response (or failure to respond) to a previous disclosure of the same (or substantially similar) information, and whether, in making the same or similar allegations to his employer on a previous occasion, the worker had complied with any procedure whose use by him was authorised by his employer (ibid. section 43G).
Challenging an employer 's failure to pay the appropriate national minimum wage, or to comply with his (or her) duties under the Working Time Regulations 1998, or to provide personal protective equipment, or for discharging toxic chemicals into the environment, or for defrauding the Inland Revenue etc, may not achieve the desired result if made directly to the person allegedly responsible for such breaches of the law, or if doing so is likely to prompt the concealment of any damaging documents or other evidence before the relevant authorities have had an opportunity to make their own assessment of the situation.
A worker might also be concerned about the risk to his livelihood, the more so if his previous allegations on the same or a similar theme have been dismissed out of hand or 'swept under the carpet', or he has been warned 'to keep his mouth shut'. Whether influenced by such considerations or otherwise, a worker has the right to make his disclosures about alleged wrongdoing to the body, person or authority responsible for investigating and enforcing the particular law which the worker reasonably believes has been, is being or is about to be broken.

Disclosures about exceptionally serious failures

A worker who has made a qualifying disclosure (eg, to a newspaper) about an exceptionally serious failure (either by his or her employer or by some other person) will enjoy the protection afforded by the 1996 Act if, but only if, he:

made the disclosure in good faith;
reasonably believed that the information disclosed, and any allegations contained in it were substantially true;
did not make the disclosure for the purposes of personal gain; and
in the circumstances, it was reasonable for him to have made the disclosure.

Whether or not the failure in question was exceptionally serious is a matter of fact, not of opinion. In other words, a worker's reasonable belief that a particular failure was exceptionally serious will not be enough. The failure must in fact have been exceptionally serious.
In determining whether or not it was reasonable for the worker to have made the disclosure in question, an employment tribunal will have regard in particular to the identity of the person or organisation to whom the disclosure was made (ibid. section 43H). These requirements suggest that a worker would be well advised to obtain legal advice before making a qualifying disclosure which, if aired in the public domain, could not only undermine his right not to be dismissed or subjected to a detriment for doing so but could also lead to his being sued for defamation.

Other forms of protection

It should be remembered that the 1996 Act offers considerable protection to employees who allege (in good faith) that their employer has infringed their statutory rights under that Act, the Trade Union & Labour Relations (Consolidation) Act 1992, or the Working Time Regulations 1998. Under the National Minimum Wage Act 1998, for example, Inland Revenue enforcement officers have the right to question workers and to act on any information supplied by those workers concerning their employer's alleged failure to pay the appropriate national minimum wage rate. There are any number of similar examples, all of which complement a worker's rights under the 'protected disclosures' provisions of the 1996 Act (eg, the right of employees under section 100 of the 1996 Act to bring to their employer's attention (by reasonable means) circumstances connected with their work which they reasonably believe to be harmful or potentially harmful to health or safety).

Complaint to an employment tribunal

A worker may complain to an employment tribunal that he (or she) has been penalised, victimised or subjected to some other detriment for making a protected disclosure. Should the worker 's complaint be upheld, his employer will be ordered to pay him such compensation as the tribunal considers appropriate in the circumstances (including compensation for the loss of any benefit that the worker might reasonably be expected to have enjoyed) but for his employer's conduct or failure to act.
A worker (as 'employee') who has been dismissed (or selected for redundancy) for making a protected disclosure may complain to an employment tribunal and will be awarded a substantial amount of compensation if his (or her) complaint is upheld. A worker who is not an employee in the strict legal sense, but whose detrimental treatment amounted to a termination of his contract, may likewise complain to an employment tribunal, and will also be awarded compensation if his complaint is upheld. It is as well to point out that there is no upper limit on the amount of compensation that may be awarded in such cases.
Complaints to an employment tribunal, in the circumstances described above, must be presented within three months of the effective date of termination of an employee's contract of employment, or within three months of the alleged detrimental treatment (including, in the case of a worker who is not an employee, detrimental treatment amounting to a termination of the worker 's contract). Such complaints may be presented regardless of the worker's age or length of service at the material time.

Pregnant Employees and Nursing Mothers (Rest facilities, risk assessment and suspension from work)

noreply@blogger.com (Unknown) — Mon, 24 Jun 2019 14:45:00 +0000

Key points

Pregnant employees, breastfeeding mothers, and women who have given birth within the previous six months, enjoy a variety of rights under contemporary employment law and health and safety legislation. A pregnant employee has the right to be permitted a reasonable amount of paid time off work to attend at a clinic or similar place for ante-natal care. If her expected week of childbirth (EWC) begins on or after 6 April 2003, she has the right also to 26 weeks' ordinary maternity leave and, if she qualifies, a right to 26 weeks' additional maternity leave (beginning on the day immediately following the day on which her ordinary maternity leave period ends). If she has worked for her employer for at least 26 weeks by the end of the 15th week before her expected week of childbirth, and earns an average of £77 or more per week, she is entitled to up to 26 weeks' statutory maternity pay (SMP). Finally, she has the right to return to work with her employer after her baby is born and the right to take up to 13 weeks' unpaid parental leave (sections 47C and 99, Employment Rights Act 1996, supplemented by the Maternity & Parental Leave etc Regulations 1999).

Right not to be unfairly dismissed

It is inadmissible and automatically unfair for an employer to dismiss a woman, select her for redundancy or subject her to any detriment because she is a woman; or because she is pregnant or has given birth to a child; or for having been suspended from work on maternity grounds (see below); or for exercising her statutory right to ordinary or additional maternity leave, parental leave or time off work for ante- natal care. The same rules apply if she is dismissed either for challenging her employer's refusal or failure to acknowledge her rights or, for bringing proceedings before a tribunal or court in order to enforce those rights (ibid. section 104) – as to which, please turn to the sections referred to at the end of the previous paragraph.

Health and safety legislation

There is also legislation which requires an employer to provide suitable rest facilities for pregnant employees and nursing mothers, to pay (or otherwise accommodate) women who have been suspended from work on maternity grounds, and to transfer a woman from night work to day work if her doctor or midwife certifies that this would be advisable.

Rest facilities

Every employer (whether the proprietor of a fish and chip shop or the managing director of a multi-national corporation) is duty-bound to provide suitable rest facilities for those of his (or her) employees who are pregnant or nursing mothers, including (where necessary) the facility to lie down. Common sense will dictate what is suitable in relation to one workplace, and what is unsuitable in relation to another. In a large factory, office block, hotel or department store, an employer would be expected to set aside a small, well-ventilated room equipped with a toilet and washbasin and furnished with one or more beds or reclining chairs. In a small establishment, employing just a handful of employees, a small curtained-off area with a comfortable reclining chair would probably satisfy the requirement. However grand or modest, the room or facility must either be equipped with a toilet or washbasin or be conveniently situated in relation to the staff wash- rooms and toilets. A failure to provide such a facility is a criminal offence which could lead to prosecution and a heavy fine under the Health & Safety at Work etc Act 1974 (per regulation 25(4), Workplace (Health, Safety & Welfare) Regulations 1992).

Suspension from work on maternity grounds

Under the Management of Health & Safety at Work Regulations 1999, the 'risk assessment' exercise necessarily carried out by every employer must include an assessment of the risk to the health and safety of new or expectant mothers (or to that of their babies) arising out of their working conditions, the type of work in which they are engaged (eg, manual handling of loads, noise, vibration, hot or humid conditions, etc), or their exposure to hazardous physical, biological or chemical agents. If there is a risk, the employer must either transfer a pregnant employee or new mother to suitable alternative employment or suspend her from work on full pay until that risk has passed (ibid. regulation 16).

Note
The expression 'new or expectant mother' means an employee who is pregnant; who has given birth within the previous six months; or who is breastfeeding (ibid. regulation 1(1)).
The right of a new or expectant mother to be paid her normal wages or salary while suspended from work on maternity grounds is to be found in sections 66 to 68 of the Employment Rights Act 1996. Any woman denied her statutory rights in this respect may obtain redress by presenting a complaint to an employment tribunal.
Similar provisions are to be found in the Control of Lead at Work Regulations 2002 and in the Ionising Radiations Regulations 1999, both of which require the suspension of a pregnant employee in specified circumstances. Indeed, both sets of Regulations caution that a 'woman of reproductive capacity' (that is to say, a woman who is capable of bearing a child, but who is not necessarily pregnant at the time) must be suspended from work involving exposure to lead or ionising radiation, on the advice of an employment medical adviser or HSE- appointed doctor, if her blood-lead or urinary-lead concentration or, as appropriate, the radiation dose limit for her abdomen is likely to be (or has been) exceeded.

Night work

If a doctor or registered midwife certifies that a particular employee who is pregnant or breastfeeding (or has given birth to a child within the previous six months) should not work at night, her employer must either offer her suitable alternative work on the day shift or, if that is not reasonably practicable, suspend her from work on full pay until the danger has passed (regulation 17, Management of Health & Safety at Work Regulations 1999 (qv)).

Further information

The HSE publications listed below are available from HSE Books, PO Box 1999, Sudbury, Suffolk C010 6FS (Telephone: 01787 881165):

New and Expectant Mothers at Work: A Guide for Employers (1994) ISBN 0 7176 0826 3

Infections in the Workplace to New and Expectant Mothers (1997) ISBN 0 7176 1360 7

Posted Workers

noreply@blogger.com (Unknown) — Fri, 21 Jun 2019 10:23:00 +0000

Key points

The term 'posted worker' is used to describe a worker who is sent from one EU Member State to another to carry out work (albeit for a limited period) in that other Member State. The relevance of the term is to be found in European Parliament and Council Directive 97/71/EC of 16 December 1996 'concerning the posting of workers in the framework of the provision of services'. The purpose of the Directive, which came into force in the UK on 16 December 1999, is to ensure that employers sending workers on temporary assignments to other EU countries, or tendering for contract work in another Member State, do not acquire a competitive edge by paying their workers less, or by offering terms and conditions below the legal minimum in that other Member State. A 'limited period', for these purposes, is a period of up to one year from the beginning of the posting (including any previous periods for which the post in question was filled by a posted worker).

Implementation of the 'Posted Workers' Directive in the UK does not require specific legislation. However, the Directive has prompted minor amendments to the Sex Discrimination Act 1975, the Race Relations Act 1976, the Trade Union & Labour Relations (Consolidation) Act 1992, the Disability Discrimination Act 1995, and the Employment Rights Act 1996, each of which previously limited the application of certain employment rights to persons who ordinarily work in Great Britain. Those limitations have now been removed.

Note

The territorial limits in the enactments referred to above were repealed by section 32 of the Employment Relations Act (which came into force on 25 October 1999) and by the Equal Opportunities (Employment Legislation) (Territorial Limits) Regulations 1999 (which came into force on 16 December 1999).

Duties of employers

UK employers sending one or more of their workers to carry out work for a limited period in another EU Member State must familiarise themselves with the laws, regulations and administrative provisions of that Member State, and/or (so far as building work is concerned) with any collective agreements or mandatory arbitration awards in that Member State which relate to:
- maximum work periods and minimum rest periods;
- minimum paid annual holidays;
- minimum rates of pay (including overtime rates);
- conditions for hiring out workers, notably workers supplied by temporary employment businesses (or 'employment agencies', as they are often, if incorrectly, referred to in the UK);
- health, safety and hygiene at work;
- protective measures with regard to the terms and conditions of employment of children, young persons and new or expectant mothers; and
- equality of treatment between men and women, and other provisions prohibiting discriminatory treatment on specified grounds;
and must guarantee that the workers posted to that Member State enjoy no less favourable terms and conditions during their periods of posting.
It is, of course, open to employers to apply more favourable terms and conditions to those of their workers who are posted to other EU Member States for a limited period. If they are entitled (in any respect) to more favourable terms under their existing contracts of employment (whether imported by statute or otherwise), those more favourable terms must, of course, prevail.
Article 4 of the Directive acknowledges that employers may have some difficulty 'tracking down' the employment laws and health and safety legislation of other Member States. To that end, Article 4 imposes a duty on each of the Member States to designate one or more liaison offices or one or more competent national bodies to provide that information. Furthermore, they must cooperate with each other to ensure that such information is disseminated and freely available. Until such time as the network, so to speak, is complete, interested readers should direct their enquiries to the labour attachés at the relevant embassies.
Employers in other EU Member States who post their workers to the UK for a limited period will, of course, need to familiarise themselves with (in chronological order):
- the Employment of Women, Young Persons & Children Act 1920;
- the Children & Young Persons Act 1933;
- the Children & Young Persons (Scotland) Act 1937;
- the Equal Pay Act 1970;
- the Health & Safety at Work etc Act 1974;
- the Sex Discrimination Act 1975;
- the Race Relations Act 1976;
- the Workplace (Health, Safety & Welfare) Regulations 1992;
- the Disability Discrimination Act 1995;
- the Employment Rights Act 1996;
- the Working Time Regulations 1998;
- the National Minimum Wage Regulations 1999;
- the Maternity & Parental Leave etc Regulations 1999;
- the Management of Health & Safety at Work Regulations 1999;
- the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000;
- the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
- legislation relating to adoption leave and pay, paternity leave, and flexible working (see Index);
and with health and safety legislation (such as the Diving at Work Regulations 1997, the Control of Lead at Work Regulations 2002, the Control of Substances Hazardous to Health Regulations 2002, etc) which contain measures for the protection of workers engaged in prescribed hazardous activities.

Categories of workers

The Directive identifies three categories of workers. These are:
1. workers sent by their employers to another EU Member State to carry out work for customers or clients in that other Member State;
2. workers sent by their employer to work in a subsidiary or associated company established in that other Member State; and
3. temporary workers employed by an employment business (or placement agency) who are hired out on agreed terms to a client employer in another EU Member State.

Category (1) workers

Typical of 'Category (1)' workers are people sent by their employers to carry out building work (see Note below) in another Member State (for a limited period) or to install plant and equipment (eg, a ventilation system or a refrigeration unit) purchased by a client or customer in that other Member State (where the installation of such equipment is an integral part of the contract for the supply of such equipment).

Note

The expression 'building work' includes all work relating to the construction, repair, upkeep, alteration or demolition of buildings, and, in particular: excavation, earthmoving, actual building work, assembly and dismantling of prefabricated elements, fitting out or installation, alterations, renovations, repairs, dismantling, demolition, maintenance (including upkeep, painting and cleaning work) and improvements.

However, the terms of the Directive do not apply to skilled or specialist workers sent by their employer (the supplier) to install plant and equipment in a customer or client's premises in another EU Member State (so long as the work in question does not amount to building work) if their posting to that other Member State does not last for more than eight days.

Although it is uncommon nowadays for UK building workers to be sent by their employers to work on a construction site in another Member State, UK employers planning to do so should be alert to the existence (and complexity) of a variety of collective agreements and mandatory arbitration awards (peculiar to several EU Member States, notably Germany) which might well reduce the cost-effectiveness of such postings. It is more usual for UK workers to travel independently to other EU Member States looking for work on a building or construction site (as they have every right to do).

Note

Article 3(3) of the Directive allows that a Member State may ('after consulting employers and labour') legislate for a derogation from the Directive's provisions relating to minimum rates of pay and overtime rates for workers in Categories (1) and (2) who are posted to another EU Member State for a period of one month or less. The UK government has decided (for the time being at least) not to exercise that option.

Category (2) workers

The 'Category (2)' worker is a worker temporarily transferred by his (or her) UK employer to another branch of the organisation, or to a subsidiary or associated employer situated in another EU Member State, and who remains in the employ of his or her UK employer during the period of posting. Such workers must be treated no less favourably than resident workers during their stay in that Member State in terms of minimum pay rates, maximum working hours, minimum rest breaks and rest periods, annual holidays, equal treatment regardless of gender, race or disability, and health and safety protection.

Category (3) workers

The third category of worker is the 'temp' or agency worker, who is employed under a contract of employment with an employment business (or placement agency) in one Member State, and who is hired out for a limited period to a 'user undertaking' in another EU Member State. So long as he or she remains in the employ of that business or agency throughout the period of posting, the hired-out worker must be paid no less than the minimum rates of pay and overtime rates applicable to comparable workers in the Member State in question and enjoy the same statutory protection (in terms of working hours, period of employment, rest breaks, holidays, health and safety measures, etc).
Furthermore, Article 9 of the Directive provides that a Member State may take steps to ensure that employment businesses and placement agencies established in other Member States provide a guarantee that temporary workers posted to its territory are hired-out on terms and conditions no less favourable than those that apply to its own temporary workers.

Enforcement

Any worker sent by his employer to work for a limited period in another EU Member State, whose wages or salary, working hours, holiday entitlement, etc are less favourable than those prescribed for workers normally resident in that Member State, may enforce his or her rights under the Posted Workers Directive by instituting proceedings before the appropriate tribunal or court in that Member State or in the Member State in which he normally works.

Likely implications for UK employers

Nowadays, it is uncommon for relatively lowly paid workers in the UK or elsewhere to be sent by their employers to carry out short-term assignments in other EU Member States. Such postings are usually confined to businessmen and women, accountants, bankers, technicians, engineers, and the like (whose terms and conditions of employment are unlikely to fall below the minima prescribed for workers engaged in comparable activities in those other Member States). This will not necessarily be true of nurses, waiters, waitresses, secretaries, interpreters, bricklayers, carpenters, plumbers, etc employed by employment businesses (or placement agencies) who are hired out to clients in other Member States for limited periods. In the latter case, the Posted Workers Directive is applicable if, but only if, the workers in question remain in the employ of the relevant business or agency throughout the period of their postings.

Free movement of workers

The nationals of one Member State who travel to another Member State in search of work (eg, as waiters, waitresses, builders, etc) usually do so independently – exercising their right under Article 39 (formerly Article 48) of the Treaty of Rome 'to move freely within the territory of Member States', 'to accept offers of employment actually made', 'to stay in a Member State for the purpose of employment', and 'to remain in the territory of a Member State after having been employed in that State'.

Further information

Readers seeking further information about the Directive may telephone the DTI's Helpline on 0645 555105.

The Directive itself may be viewed at:

www.europa.eu.int/eur-lex/en/lif/dat/1996/en 396L0071.html

Picketing | Public Interest Disclosures

noreply@blogger.com (Unknown) — Tue, 18 Jun 2019 01:17:00 +0000

Key points

It is lawful for a person, in contemplation or furtherance of a trade dispute, to attend:

at or near his own place of work, or
if he is an official of a trade union, at or near the place of work of a member of that union whom he is accompanying and whom he represents,

for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from work. Picketing is not actionable in tort if it meets these criteria. But it is actionable as a form of industrial action if it does not have the support of a ballot or is done in order to put pressure on an employer to dismiss a non-union member (or to discriminate against him) or to 'persuade' him not to hire non-union workers (sections 219, 220 and 222, Trade Union & Labour Relations (Consolidation) Act 1992).

Note

For these purposes, an official of a trade union is a full-time officer of the union or of a branch or section of the union. The term also applies to an employee who has been elected or appointed (in accordance with the rules of the union) to represent fellow- employees in negotiations with his (or her) employer, ie a shop steward. Section 220(4) of the 1992 Act states that a full-time official of a trade union is regarded as representing the interests of all the union's members, whereas a shop steward is treated as representing the interests of only those members who work at his own place of work.

Attendance at or near his own place of work

The 1992 Act does not explain what is meant by the expression 'at or near his own place of work'. However, the Code of Practice: Picketing (1992) (see below) explains that lawful picketing normally involves attendance at an entrance to or exit from the premises (such as a factory, depot, shop or office block) at which the picket actually works. In other words, it is unlawful for a picket to attend at an entrance to, or exit from, any place of work which is not his own – even if those who work at that other place are employed by the same employer or covered by the same collective bargaining arrangements. Nor is it permissible in law for a person to picket in any part of premises which are private property. Pickets who trespass may be sued in the civil courts.

Note

Section 220(2) of the 1992 Act does, however, draw a distinction in the case of employees (eg mobile workers) who work at more than one place, and those for whom it is impracticable to picket at their own place of work because of the remoteness or location of the site. In those circumstances, it is lawful for such employees to picket those premises of their employer from which they work or from which their work is administered. Thus, it may be more appropriate for contract workers to register their protest at the entrance to their employer's administrative headquarters.

In the case of an employee who is no longer employed and whose previous employment was terminated in connection with a trade dispute, his 'place of work' for these purposes will be his former place of work (ibid. section 220(3)).

Secondary action and picketing

As was indicated above, it is lawful for employees, who are in dispute with their employer, to picket peacefully at or near their own place of work – always assuming that the industrial action they have embarked upon is 'official'. In other words, it must have the support of a ballot conducted in accordance with the provisions of section 226 to 235 of the 1992 Act, must have been authorised or endorsed by the person specified on their ballot papers, and must have started within the period of four weeks beginning with the date of the ballot. Such pickets will be immune from any civil action for damages notwithstanding that they may have induced other employees to break their contracts of employment, or that they have disrupted the flow of goods and services to and from their employer's premises (ibid. sections 219 and 220).
Cases may arise, however, where a trade union may induce its members employed by a supplier not to deliver goods to the premises of the employer in dispute with his workers. This is known as secondary industrial action (or 'sympathy' action). Such action is no longer lawful. In such cases, the supplier would be well within his (or her) rights to sue the trade union (and/or its representatives) for damages arising out of inducing his employees to break their contracts of employment and the interference with his contract to supply goods or services to the employer in dispute.
In other words, secondary industrial action is lawful and immune from actions in tort if, but only if, it is done by employees in the course of peaceful picketing at or near their own place of work.
Pickets who obstruct the highway, who damage property, or who use violent, intimidatory, threatening or abusive language or behaviour to 'persuade' workers, members of the public, van drivers, and the like, not to cross their picket lines are liable to arrest and could be prosecuted under the criminal law.

Code of practice on picketing

The Code of Practice: Picketing (1992) referred to earlier was made by the Secretary of State for Employment and came into force on 1 May 1992 (replacing an earlier code made under section 3 of the Employment Act 1980). The code, which is available from The Stationery Office contains practical guidance for employers and trade unions on, amongst other things, picketing and the criminal law, the recommended number of pickets, the organisation of picketing, the role of the police, and so on, and should be studied with care

Pension Schemes (Contracting-out certificates, pension scheme trustees, etc)

noreply@blogger.com (Unknown) — Wed, 13 Apr 2011 14:20:00 +0000

Key points

The written statement of employment particulars issued to an employee, when he (or she) first starts work with an employer, must include particulars of any terms and conditions relating to pensions and pensions schemes, and must include a note stating whether a contracting-out certificate under the Pension Schemes Act 1993 is in force for the employment in respect of which the statement is given (sections 1(4)(d)(iii) and 1(5), Employment Rights Act 1996).

Information about pensions and pensions schemes

If the employer has no occupational pension scheme, the written statement must say as much. If the employer does operate such a scheme, the statement must (a) mention its existence, and (b) indicate whether the employee is eligible to contribute to it, and on what terms. However, the statement need not go into any great detail, so long as it directs the employee to some other document (such as a pensions handbook) which explains what the employer's scheme is about and gives the employee sufficient information so as to enable him (or her) to decide for himself whether or not to join the scheme or take out a pension plan of his own. The employee must either have reasonable opportunities of reading that document in the course of his employment or be afforded reasonable access to it in some other way (ibid. section 2(2)).

Note

On 28 September 1994, the European Court of Justice ruled that part-time employees should have the same access to occupational pension schemes as their full-time colleagues. To do otherwise, said the Court, is to discriminate against part-timers, the vast majority of whom (in the UK) are women.

Contracting-out certificate

A contracting-out certificate will be issued in respect of an occupational pension scheme if the Occupational Pensions Board (OPB) is satisfied that the scheme will provide its members with pension benefits on retirement at least equivalent to the additional pension otherwise available to employees under the State Earnings Related Pension Scheme (SERPS). Furthermore, the employer's scheme must provide a guaranteed minimum pension for widows equal to at least half the additional pension under SERPS, the remaining half being paid by the state. Members of an occupational scheme must also be assured of a preserved pension after two years' pensionable service at least equivalent to the amount which would otherwise have been available to them had they contributed to the state scheme. The decision whether or not to contract-out of SERPS is one for the employer to make. But, before setting up his own pension scheme, he must first consult with his employees and with representatives of any independent trade union recognised by him and with the trustees and managers of the scheme. The rules for contracting-out are quite complicated, and it is not proposed to deal with them here.

Recent developments

Until recently, employees have had one of two choices. They could either contribute to SERPS or contribute to their employer's occupational pension scheme (either voluntarily or in compliance with a term to that effect in their contracts of employment). With the coming into force of the Social Security Act 1989, employees now have the right to opt out of SERPS and to contribute to a (portable) pension plan of their own choosing. Furthermore, they can leave their employer's pension scheme (regardless of any contrary term in their contracts or in the scheme itself) after only two years' pensionable service (instead of five years, as was previously the case).

Member-nominated trustees

Section 16 of the Pensions Act 1995 requires the appointment of member-nominated trustees (pension scheme trustees) to represent the interests of their fellow-employees in the administration of the scheme and the funds invested in the scheme for a period of between three and six years. Unless the scheme comprises less than 100 members, there must be at least two member-nominated trustees comprising at least one-third of the total number of trustees.

The equal treatment rule

Under the Pensions Act 1995, occupational pension schemes which do not contain an equal treatment rule will be treated as including such a rule. An equal treatment rule is a rule which relates to the terms on which (a) persons become members of the scheme, and (b) members of the scheme are treated. In short, if a woman is employed on like work, or work rated as equivalent, or work of equal value, to that of a man in the same employment, any term in an occupational scheme which is (or becomes) less favourable to the woman than it is to the man, shall be treated as so modified as not to be less favourable (ibid. section 62). There are exceptions to the equal treatment rule, which will be familiar to the managers and trustees of occupational pension schemes and are beyond the scope of this handbook.

Disabled persons

Section 17 of the Disability Discrimination Act 1995 cautions that every occupational pension scheme will be taken to include a non-discrimination rule relating to the terms on which persons become members of the scheme and on which members of the scheme are treated. The rule will also be taken to impose a duty on the trustees or managers of the scheme to refrain from any act or omission which, if done by an employer in his dealings with his employers, would amount to unlawful discrimination under that Act.

Further information

As mentioned earlier, the rules about the establishment and management of occupational pension schemes (and the rights of employees in relation to such schemes) are somewhat complicated. However, the DSS has produced two useful books on the subject, which are available on request from most DSS offices. They are titled, respectively, New Pension Choices: Information for Employers and New Pensions Choices: Information for Employees (ref NP 41). With the coming into force of the Pensions Act 1995, these are likely to have been updated.

Paternity Leave | Public Interest Disclosures

noreply@blogger.com (Unknown) — Sat, 09 Apr 2011 11:49:00 +0000

Key points

With the coming into force on 8 December 2002 of the Paternity & Adoption Leave Regulations 2002, the biological father (or the responsible parent) of a child born on or after 6 April 2003 (or expected to be born on or after that date) has the qualified right to take one or two consecutive weeks' paternity leave (either, but not both) within 56 days of the child's date of birth. That same right extends to one or other of the parents of a child notified of having been matched with them for adoption (or placed with them for adoption) on or after that same date. A parent who qualifies for paternity leave (birth or adoption) may also be entitled to statutory paternity pay (SSP) during his or her absence from work.
To be eligible for paternity leave, an employee must:
1. have been continuously employed by his employer for a period of not less than 26 weeks by the beginning of the 14th week before the expected week of the child's birth (or would have been continuously employed for that prescribed minimum 26-week period, but for the fact that the child was either born before the beginning of that 14th week or was stillborn after 24 weeks of pregnancy or has died); or
2. in the case of an adopted child, have been continuously employed by his or her employer for 26 or more weeks by the end of the week in which the child was placed with him or her and/or his or her wife or partner for adoption;
3. have or expect to have responsibility for the child's upbringing; and
4. be the child's biological father; or the mother's husband or partner; or, in the case of an adopted child, the adopter's spouse or partner.
Employees claiming paternity leave must, if asked to do so by their employers, provide a form of self-certificate as evidence that they meet the eligibility conditions listed above. To that end, employers may either design their own self-certificates or use either of the Inland Revenue's model forms of self-certificate (Form SC3 [birth] or Form SC4 [adoption] available on request from Employer's Orderline on 08457 646 646.
It is as well to point out that when a child is placed with an individual or with a couple for adoption, only one of them (male or female) is entitled to take up to 52 weeks' adoption leave. It is up to the couple in question to decide which of them is to take adoption leave. The other partner will then have the right (if eligible) to take one week or two consecutive weeks' paternity leave.

Timing of paternity leave

An employee who qualifies for paternity leave must take his or her full entitlement to either one or two consecutive weeks' leave:
1. within 56 days of the child's date of birth or, if the child was born prematurely, within the period from the actual date of birth up to 56 days after the mother's expected week of childbirth (EWC); or
2. in the case of an adopted child, within 56 days of the date on which the child was placed with him or her and/or his or her partner for adoption (whether that date occurs sooner or later than expected).
It should be noted that paternity leave can start on any day of the week beginning with the date on which the child is born or placed with the adopter for adoption or from the first day of the expected week of the child's birth, or from a chosen number of days or weeks after the date of the child's birth or adoption (whether this is earlier or later than expected) so long as the selected start date ensures that the full period of leave is completed within the prescribed 56-day period. Only one period of paternity leave is available, regardless of the number of children born or placed with an individual or couple for adoption.

Notification procedure

To exercise their right to paternity leave, eligible employees must inform their employers of their intentions either by the end of the 15th week before the mother's expected week of childbirth (EWC) or, in the case of an adoptive parent or a couple who are adopting, within seven days of the adopter or adopters being notified by an approved adoption agency that he, she or they have been matched with a child. At the same time, an employee must:
1. specify the mother 's EWC or the date on which the child is expected to be placed for adoption;
2. whether he (or she) wishes to take one or two weeks' paternity leave; and
3. when he (or she) wants that period of leave to start.
Employees who have correctly notified their employers of the date on which they intend to start their paternity leave may change their minds about that start date so long as they inform their employers of that change of mind at least 28 days before the revised start date (or as soon as is reasonably practicable, if circumstances dictate that they are not in a position to give 28 days' advance notice).

Statutory paternity pay

To qualify for statutory paternity pay (SPP) during the paternity leave period, an eligible employee must have average weekly earnings equal to or greater than the current lower earnings limit for National Insurance purposes. For 2003/04, that lower earnings limit is £77 per week. SPP is payable at the same standard rate as statutory maternity pay (SMP), ie, £100 a week or 90% of the employee's average weekly earnings at the time, whichever is the lower of those amounts. Employers who have lawfully paid SPP to an employee will (as is the case with payments of SMP) be able to recover an amount equal to 92 per cent of the amount paid by deducting it from PAYE tax and NI contributions routinely remitted to the Inland Revenue at the end of each income tax month. Small employers (the total of whose NI contributions did not exceed £40,000 during the preceding tax year) will, on the other hand, be able to recover 100 per cent of the amount of SPP paid, plus a further 4.5 per cent to recoup the additional NI contributions paid on such payments. These figures are reviewed every year.

Return to work after paternity leave

Employees returning to work after a period of paternity leave have the legal right to do so in the jobs they held immediately before that period of leave began, without any loss of seniority or pension rights, or any other terms and conditions that would have prevailed but for their absences from work.

Claims and remedies

Eligible employees who are denied their entitlement to paternity leave (paid or otherwise), or who are dismissed, selected for redundancy, victimised, or subjected to any other detriment for asserting their rights under the Paternity & Adoption Leave Regulations 2002, may complain to an employment tribunal and will be awarded appropriate compensation if their complaints are upheld.

Part-Time Workers | Public Interest Disclosures

noreply@blogger.com (Unknown) — Tue, 05 Apr 2011 15:17:00 +0000

Key points

With the coming into force on 1 July 2000 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, any part- time worker who is treated less favourably (or believes that he (or she) has been treated less favourably) than a comparable full-time worker employed in the same establishment is entitled to demand and receive from his employer a written statement explaining the reasons for such treatment. If dissatisfied with his employer's explanations, the part- time worker may seek redress from an employment tribunal. Any part- timer who is dismissed, selected for redundancy or subjected to any other detriment for exercising or asserting his statutory rights under the 2000 Regulations, or for bringing proceedings before an employment tribunal, may complain (yet again) to an employment tribunal and will be awarded appropriate compensation.
The 2000 Regulations (as amended by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002) implement EC Directive 97/81/EC of 15 December 1997 'concerning the framework agreement on part-time work'.

Rights extended to all workers

Under the Employment Protection (Part-Time Employees) Regulations 1995 – not to be confused with the Part-time Workers (Prevention of Less Favourable Treatment Regulations 2000 under discussion – part- time employees (as distinct from workers who are not 'employees' in the strict legal sense of the word) have long since enjoyed the same statutory rights as their full-time contemporaries (regardless of the number of hours they work, or are contracted to work, each week). However, the 2000 Regulations add a new dimension to that earlier legislation, by giving all part-time workers (whether 'employees' or otherwise) the right to be treated no less favourably than comparable full-time workers.

Meaning of comparable full-time worker

For these purposes, a full-time worker is a 'comparable full-time worker ' in relation to a part-time worker if, at the time when the allegedly less favourable treatment occurred, both workers are:
1. employed by the same employer under the same type of contract (see below);
2. are engaged in the same or broadly similar work, having regard, where relevant, to whether they have a similar level of qualifications, skills and experience; and
3. work at the same establishment (or, where there is no full-time worker working or based at the same establishment as the parttime worker, work at or are based at a different establishment within the employer's organisation).

Same type of contract?

Regulation 2(3) of the 2000 Regulations (as amended) states that the following are not to be regarded as being employed under the same types of contract:
1. employees employed under a contract of employment, that is not a contract of apprenticeship;
2. employees employed under a contract of apprenticeship;
3. workers who are not employees;
4. any other description of workers that it is reasonable for the employer to treat differently from other workers on the gound that workers of that description have a different type of contract.
For example, (a) is not the same type of contract as (b), (c) not the same type of contract as (a); and so on. In short, part-time workers who are not 'employees' do not have the right under the 2002 Regulations to compare their terms and conditions of employment with those of their full-time colleagues who are employees.

Less favourable treatment of part-time employees

Part-time workers must not be treated less favourably than comparable full-time workers solely because they work part-time, unless different treatment is justified on objective grounds. For instance, a part-time employee should be paid the same basic rate of pay as a comparable full-time employee, and a part-time worker who is not an employee, the same as a comparable full-time worker engaged in the same or similar work. But a different hourly rate of pay may be justifiable on grounds of performance, so long as levels of performance are measured by a fair and consistently applied performance appraisal scheme.
It is not uncommon for occupational sick pay schemes to provide more generous benefits to full-time workers (eg, full salary or wages for a period of up to three months in every 12-month period). By the same token, it is not unusual for part-time workers to receive no more than their entitlement to statutory sick pay (SSP) when incapacitated for work on health grounds. Such a sweeping differential is no longer acceptable, or justifiable. Indeed, it could give rise to allegations of unlawful sex discrimination, let alone a complaint to an employment tribunal under the 2000 Regulations. That same general prohibition applies to differential treatment in relation to occupational maternity and parental leave schemes, annual holiday entitlements, unpaid career breaks, access to occupational pension schemes, access to opportunities for training and promotion, redundancy selection criteria, etc (ibid. regulation 3).

To avoid infringing the rights of part-time workers in their employ, employers will need to scrutinise the relative terms and conditions of their full-time and part-time workers and eliminate any discrepancies or anomalies that cannot be justified on objective grounds. In determining whether a part-time worker has been treated less favourably than a comparable full-time worker, the principle of pro rata temporis must be applied – unless it is inappropriate. It would be inappropriate, for example, to apply that principle to basic rates of pay (see above), access to pension schemes, opportunities for training, transfer or promotion, career break schemes, contractual maternity or parental leave, or redundancy selection criteria.

Note

The principle of pro rata temporis means that where a comparable full-time worker receives (or is entitled to receive) pay or any other benefit, a part-time worker is to receive (or be entitled to receive) not less than the proportion of that pay or other benefit that the number of his (or her) weekly hours bears to the number of weekly hours of the comparable full-time worker (ibid. regulation l(l)).

Exception in relation to overtime payments

The 2000 Regulations acknowledge that part-time workers have no right to premium payments in respect of overtime work until such time as their working hours (including overtime hours) during a particular pay reference period exceed the number of hours ordinarily worked by comparable full-time workers in that same period. But, once that point is reached, premium payments, for hours worked in excess of those full-time hours, must be the same as those paid to full-time workers (ibid. regulation 3(4)).

Written statement of reasons for less favourable treatment

Any part-time worker, who considers that he (or she) is being treated less favourably than a comparable full-time worker, may ask his employer for a written statement explaining the reasons for that treatment. The employer must provide that statement within 21 days. The written statement is admissible in evidence before an employment tribunal (ibid. regulation 4).

If an employer deliberately, and without reasonable excuse, fails to provide that written statement, an employment tribunal may draw any inference from that failure that it considers just and equitable (including an inference that the employer has infringed the part-time worker's statutory rights). It may also do so if the written statement is evasive or equivocal (ibid.).

Note

There is no need for a separate written statement if a part-time worker (qua employee) who has been dismissed has already requested and received a written statement of reasons for dismissal under section 91 of the Employment Rights Act 1996

Unfair dismissal and detrimental treatment

A part-time employee (who is not a worker) and is dismissed or selected for redundancy will be treated in law as having been unfairly dismissed if the reason (or, if more than one, the principal reason) for his (or her) dismissal or selection was that he:
1. had complained to an employment tribunal about an alleged infringement of his rights under the 2000 Regulations;
2. had asked his employer for a written statement of the reasons for his less favourable treatment;
3. had given evidence or information in proceedings before an employment tribunal brought by another worker;
4. had alleged (in good faith) that his employer had infringed the 2000 Regulations;
5. had refused (or proposed to refuse) to forego a right conferred on him by the 2000 Regulations; or
6. that his employer believed or suspected that the employee had done (or intended to do) any of the things mentioned in (a) to (e) above
(ibid. regulation 5(1), (3) and (4)).
A part-time worker who has been victimised, disciplined or subjected to any other detriment (including dismissal in the case of a worker who is not an employee), on any of the grounds (a) to (f) specified above, has the right to refer the matter to an employment tribunal without having to resign in order to do so (ibid. regulation 5(2), (3) and (4)).

Complaints to employment tribunals, etc

A part-time employee (regardless of his or her age or length of service at the material time) may complain to an employment tribunal that his employer has infringed his statutory rights under the 2000 Regulations – either by subjecting him to a detriment or some other punishment, or by dismissing him or selecting him for redundancy. Such a complaint must be presented within three months of the alleged detrimental treatment or, if the employee has been dismissed, within three months of the effective date of termination of the employee's contract of employment. A tribunal may consider a complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
If a complaint of unlawful detrimental treatment is upheld, the tribunal will make a declaration to that effect and may order the employer to pay compensation to the worker and/or recommend that the employer take appropriate corrective action (within a specified period) to obviate or reduce the adverse effect on the worker of any matter to which the worker's complaint relates. A failure to take such corrective action will prompt the tribunal either to increase the amount of compensation already awarded to the worker or (if no compensation had previously been awarded) order the employer to pay compensation to the employee. The amount of compensation awarded in such circumstances will be such amount as the tribunal considers just and equitable, and will include compensation for the loss of any benefit which the worker might reasonably be expected to have had but for his employer's infringement of his rights under the 2000 Regulations (or the employer's failure to take the recommended corrective action) (ibid. regulation 6).
A worker (qua employee) who has been dismissed (or selected for redundancy), in contravention of the 2000 Regulations, will be treated as having been unfairly dismissed (regardless of his or her age or length of service at the material time) and will be awarded compensation comprising a basic and compensatory award (maximum £7,800 and £53,500, respectively) and, where appropriate, an additional award of compensation of between 26 and 52 weeks' pay.

Parental Leave—Public Interest Disclosures

noreply@blogger.com (Unknown) — Tue, 29 Mar 2011 15:22:00 +0000

Parental Leave

Key points

Legislation giving employees (in their capacities as parents or adoptive parents) to be granted up to 13 weeks' unpaid parental leave (18 weeks, in the case of a child awarded a disability living allowance) is to be found in Part III of the Maternity & Parental Leave etc Regulations 1999, as amended by the Maternity & Parental Leave (Amendment) Regulations 2001, implementing Council Directive 96/34/EC of 3 June 1996 'on the framework agreement on parental leave'. Before the 1999 Regulations were amended, the right to take a period of unpaid parental leave was restricted to the parents of children born to (or placed with them for adoption) on or after 15 December 1999. Following a challenge mounted by the TUC, and the likelihood of proceedings before the European Court of Justice (ECJ), the UK Government conceded that the right to parental leave should have been made available to all employed parents with children under the age of five on 15 December 1999 as well as to adoptive parents of children under the age of 18, who were placed with them for adoption before that date.
The right to parental leave is available only to those employees who have been continuously employed with their respective employers for a period of one year or more and who are either the parents of a child under the age of five (or under the age of 18, if the child has been awarded a 'disability living allowance') or who adopted a child on or after that date.

Nature of the right

The natural or biological parents of a child born under the age of five may (as employees) each take up to 13 weeks' unpaid leave during the first five years of the child's life (that is to say, up to and including the child's fifth birthday). If the mother gives birth to twins, the entitlement applies to each of those children.
The parents of a child placed with them for adoption may likewise (as employees) each take up to 13 weeks' unpaid parental leave during the first five years following the adoption or until the child turns 18, whichever occurs sooner.
The parents of a disabled child (that is to say, a child who has been awarded a disability living allowance) may each take up to 18 weeks' unpaid parental leave until the child's 18th birthday.
A week's leave, for these purposes, is a period of absence from work which is equal in duration to the period for which an employee is normally required to work in any week. For an employee whose working hours (under his or her contract) vary from week to week, a week's parental leave is a period of absence from work which is equal in duration to the total of the employee's contractual working hours in any one year divided by 52. An employee who takes parental leave for a day or two at a time, will have taken a full week's parental leave when the aggregate of those days equates to the number (or average number) of days in a week in which he or she is normally required to work. Overtime hours should not be included in calculations unless an employee is required under his or her contract to work a specified number of overtime hours each week.
When dealing with a first request for parental leave, an employer has the right to ask for documentary evidence of parental responsibilities in the form of a birth certificate or adoption papers, or (in the case of a disabled child) evidence that a child has been awarded a disability living allowance. An employer may decline a request for parental leave until such time as that evidence is produced for his inspection.

How much leave can be taken at a time?

The amount of parental leave that can be taken at any one time is a matter for negotiation and agreement between employees and their employers. If there is nothing in an employee's contract of employment (eg, in the written statement of employment particulars, a staff or works handbook, or in a company policy document) concerning an employee's right to parental leave – including the amount of parental leave that may be taken at any one time – the default (or fallback) provisions outlined in Schedule 2 to the 1999 Regulations will apply
Collective and workforce agreements can also be used to determine procedures for dealing with requests for parental leave, the amount of leave that may be taken at any one time; and so on. If an employee's terms and conditions of employment are determined by a collective agreement between the employer and a recognised independent trade union (and those terms are imported into each employee's contract of employment), that same forum may be used to give practical effect to an employee's statutory right to parental leave. A workforce agreement may be used for parental leave purposes if the terms and conditions of employees (or certain identifiable groups of employees) are not otherwise determined by agreement with a recognised independent trade union.
An employer wishing to conclude a workforce agreement on parental leave must oversee the conduct of a secret ballot for the election of an appropriate number of employee representatives to negotiate the agreement with him. The number of representatives to be elected is a matter for the employer, depending on the size of the workforce or of the group of employees to be covered by the agreement. The employer must ensure that every employee is afforded an opportunity to vote in the ballot and to put his or her name forward as a candidate for election as an employee representative. The employer must provide the necessary facilities and must ensure that votes are counted fairly and accurately.
To be valid, the resultant workforce agreement must be in writing; must be signed by the negotiating parties; must be shown to all affected employees (together with a guide explaining what the agreement means); and must last for no longer than five years. The agreement should (advisedly) lay down procedures for applying for parental leave, indicate how much leave may be taken at any one time; and, where appropriate, explain the circumstances in which the employer may postpone a request for parental leave (including the employee's right to take that postponed leave at a later date). If negotiations fail to produce a workforce agreement, the fallback parental leave scheme explained below automatically applies.
Any term in a contract of employment (or in a collective or workforce agreement) that purports to override or undermine an employee's statutory right to parental leave is null and void. However, there is nothing to prevent an employer providing more generous parental leave provisions, including a period of paid parental leave.

Contractual and statutory rights during parental leave

Although the continuity of a period of employment is not broken by periods of unpaid parental leave, the only contractual rights that prevail during such absences are those relating to notice periods, severance payments (that is to say, payments in excess of statutory redundancy pay), and access to the employer's disciplinary or grievance procedures. Both parties to the employment contract are bound by their mutual and implied contractual duty of trust and confidence. From the employee's standpoint, this means that, during any period of parental leave, the employee must not work for any other employer and must not disclose to any unauthorised person confidential information relating to his (or her) employer's trade secrets, business activities, etc.
Apart from the express and implied contractual rights referred to in the previous paragraph, all other terms and conditions of employment (eg, the right to be paid, accrual of occupational sickness benefits, holidays in excess of the statutory minimum, occupational pension rights, etc) are held in suspense when an employee is absent from work on parental leave. An employer may, of course, choose to override these statutory limitations and may, for example, continue to allow an employee the use of a company car or mobile phone during his or her absence on parental leave.
An employee's statutory rights remain undisturbed during parental leave, including the right not to be unfairly or unlawfully dismissed, the right to be paid a statutory minimum redundancy payment if dismissed for redundancy, and the entitlement to accrue paid annual leave under the provisions of the Working Time Regulations 1998.

Returning to work after parental leave

An employee who takes parental leave for a period of four weeks or less (other than immediately after taking additional maternity leave) is entitled to return from leave to exactly the same job that he (or she) held before that period of leave began. That same rule applies if (having completed a minimum of one year's service) a woman takes parental leave for a period of four weeks or less immediately after the end of her ordinary maternity leave period.
An employee who takes parental leave for a period of more than four weeks is likewise entitled to return from leave to the job in which he (or she) was employed before that period of absence began – unless it was not reasonably practicable for his employer to permit him to return to that job; in which case, the employee has the right to return to another job which is both suitable for him and appropriate for him to do in the circumstances. That same rule applies if (having completed one year's service with her employer), a woman takes more than four weeks' parental leave immediately after her ordinary maternity leave period.

A woman who takes parental leave for a period of four weeks or less immediately after her additional maternity leave period is entitled to return from leave to the job in which she was employed before her maternity absence began – unless it would not have been reasonably practicable for her to return to that job if she had returned at the end of her additional maternity leave period, and it is still not reasonably practicable to permit her to do so at the end of that period of parental leave.

Note

As is demonstrated elsewhere in this handbook, an employee who is made redundant during her ordinary or additional maternity leave periods has the right to be offered suitable alternative employment under a contract that takes effect on the day following the day on which her original contract came to an end. Should she accept such an offer, her right to return to work after her ordinary or additional maternity leave is a right to return to work in that alternative job (not the job she held before her absence began). If the same employee takes parental leave immediately after either of her ordinary or additional maternity leave periods, it is the alternative job (not her original job) to which she has the qualified right to return.

The fallback scheme

In the absence of any alternative arrangements (negotiated individually or under the terms of a collective or workforce agreement), the fall- back scheme outlined in Schedule 2 to the 1999 Regulations comes into play. There is anecdotal evidence that most small- to medium-sized firms have adopted the fallback scheme.
Under the fallback scheme, an employee may take parental leave in blocks (or tranches) of one week or more, unless the child in question is entitled to a disability living allowance, in which case the leave may be taken in single days or periods of less than one week. No more than four weeks' parental leave may be taken in any one year. For these purposes, a year is the period of 12 months which begins on the date on which the employee first became entitled to take parental leave in respect of the child in question (that is to say, either the day following the date on which the employee completed 12 months' continuous service with his (or her) employer, or the date on which the child was born or placed for adoption, whichever occurs later).
Employees seeking parental leave under the fallback scheme must (if asked to do so) provide their employer with evidence of parental responsibility (in the form of a birth certificate, adoption papers or evidence that a child has been awarded a social security disability living allowance). Such evidence need only be produced on the first occasion that a parent submits a request for parental leave in respect of a child born or placed for adoption on or after 15 December 1999 (although, strictly speaking, an employer has the right to demand such evidence each time the same employee seeks further tranches of parental leave). The procedure may, of course, be repeated in the case of a second or subsequent child.
As a rule, a request for parental leave must specify the dates on which the period of leave is to begin and end, and must be submitted to the employer at least 21 days before the date on which the requested period of leave is to begin. If the applicant is a father-to-be, the request for leave must be made at least 21 days before the beginning of the expected week of childbirth (EWC), and must specify that EWC and the duration of the intended period of leave. If a period of parental leave is to begin on the date on which a child is to be placed for adoption with an employee, the request for leave must be submitted at least 21 days before the beginning of the week in which the placement is to occur, and must specify the week in question and the duration of the intended period of leave. An employer's unreasonable refusal to agree to a request for parental leave will very likely be scrutinised by an employment tribunal, the more so if an employee's child was born prematurely or the intended adoption date was unexpectedly brought forward.
The fallback scheme allows that an employer may postpone the intended start date of a requested period of parental leave for a period of up to six months. This is permissible if the employee's absence from work during that period is likely to cause undue harm to the employer's business. Such a situation might arise if a key worker has asked for parental leave at a very busy time of the year or if a number of employees have asked for overlapping periods of parental leave, leaving the employer seriously understaffed. However, postponement is not permissible if the requested period of parental leave is intended to begin on the day of a child's birth or on the day on which a child is to be placed with an employee for adoption.
Within seven days of receiving a request for a period of parental leave, an employer intent on postpoing that period of leave must write to the employee explaining his reasons for the postponement and setting out alternative dates for the beginning and end of that leave. Before doing so, the employer must discuss the postponement with the employee and agree alternative start and finishing dates. A postponed period of parental leave must be of the same duration as the period of leave originally requested. An employee may take the postponed period of leave, even if the revised start date occurs after the child's fifth birthday (or after the fifth anniversary of the date on which the child was placed with the employee for adoption; or, in the case of a child entitled to a disability living allowance, after the child's 18th birthday).

Unfair dismissal

An employee will be treated in law as having been unfairly dismissed if the reason (or principal reason) for the dismissal or selection for redundancy was that the employee had taken (or sought to take) parental leave. The same rule applies if the employee was dismissed or selected for redundancy for refusing to sign a workforce agreement or (as appropriate) for performing or proposing to perform or carry out his (or her) legitimate functions or activities as a workforce representative or as a candidate for election as such a representative.

Detrimental treatment

An employee has the right also not to be punished, victimised or subjected to any other detriment (demotion, transfer, loss of promotion prospects, forfeiture of opportunities for training, etc) for exercising or proposing to exercise his (or her) statutory right to parental leave, or for refusing to sign a workforce agreement, or (where appropriate) for performing or proposing to perform his functions or activities as a workforce representative or as a candidate for election as such a representative.

Rights of disenfranchised parents

As indicated in the preamble to this section, the rights of parents effectively disenfranchised by the 1999 Regulations, as originally enacted (including those who have since changed jobs and are now working for different employers), were reinstated on 10 January 2002 by the Maternity & Parental Leave (Amendment) Regulations 2001. What this means is that the parents of a child born or placed with them for adoption before 15 December 1999, and who have (or had) been continuously employed by their present (or a previous) employer for one year or more during the period from 15 December 1998 to 9 January 2002, inclusive, may take the parental leave previously denied to them (so long as they do so by 31 March 2005) – even if (in the case of employees who have since changed employers) they have yet to complete one year's continuous service with their new employers.
Disenfranchised parents 'deemed' (in the circumstances described) to have worked for their present employers for the minimum qualifying period of one year, will forfeit their restored entitlement to parental leave until and unless they produce the child or children's birth certificates (or adoption papers) and, in the case of a disabled child, confirmation that the child has been awarded a disability living allowance. Disenfranchised parents who resigned or were dismissed from their previous jobs on or after 15 December 1999 must also produce evidence supporting their assertion that they had worked for a previous employer for one year or more during the period from 15 December 1998 to January 9, 2002, inclusive.

Further Information

The Department of Trade & Industry has published a booklet titled Parental Leave: A Guide for Employers and Employees (Ref URN 99/1193) copies of which may be obtained (free of charge) from:
DTI Publications Orderline
ADMAIL 528
London
SW1W 8YT
Telephone: 0870 1502 500
Fax: 0870 1502 333
email: publications@dti.gsi.gov.uk

Overtime Employment

noreply@blogger.com (Unknown) — Fri, 25 Mar 2011 14:01:00 +0000

Overtime Employment

(Statutory restrictions)

Key points

Until the coming into force, on 1 October 1998, of the Working Time Regulations 1998, there were few legal restrictions in the UK on the number of hours which an employee could be required to work. The 1998 Regulations, which extend to Great Britain only (there are cognate provisions in Northern Ireland legislation) implement Council Directive 93/104/EC of 23 November 1998 'concerning certain aspects of the organ- isation of working time'. They also incorporate Council Directive 94/33/EC of 22 June 1994 'on the protection of young people at work'.
The reader will note that the protection afforded by the 1998 Regulations extends to all workers, and not just to those who are employees in the strict legal sense of the word. In short they apply to any person (casual, seasonal, freelance, trainee on work experience, agency 'temp', and so on) who undertakes to do or perform personally any work or service for an employer – whether for a day or two here an there, for a couple of weeks, or whatever. However, they do not apply to persons who are genuinely self-employed. An employer should not accept at face value any statement by a worker that he (or she) is self-employed. There must be documentary evidence to support such a claim (eg, business accounts, letterhead, pre-printed invoices, VAT registration, etc). In doubtful cases, an employer should always seek the advice of the Inland Revenue.

The 48-hour week

Under the 1998 Regulations (as amended by the Working Time Regulations 1999 and the Working Time (Amendment) Regulations 2002) adult workers (ie, workers aged 18 and over) cannot be required to work more than an average 48 hours a week (including overtime hours), calculated over a rolling or fixed reference period of 17 weeks. That reference period may be extended in prescribed circumstances to 26 or 52 weeks. However, there is no provision for averaging in the case of young workers under the age of 18, who have legally left school. A worker under the age of 18 cannot lawfully work, or be required to work for more than 8 hours a day or for more than 40 hours a week.
However, there is an opt-out facility that enables an adult worker to agree to work more than that average 48 hours, so long as he (or she) does so individually, voluntarily and in writing. That option is not, repeat, is not, available to workers under the age of 18. A purported general opt-out for the adult workers at large or for a particular group of workers, under the terms of a workforce or collective agreement, is void and unenforceable. The same applies to any term in a contract of employment that presumes to override a worker's rights under the 1998 Regulations. Furthermore, the opt-out agreement signed personally by an adult worker must remind that worker of his (or her) right to cancel the agreement on giving a specified period of notice (not exceeding three months). If the opt-out agreement makes no mention of the worker's right to change his mind, it may be cancelled by the worker giving his employer seven days' advance written notice of that decision (ibid. regulations 4 and 5).
Any attempt on the part of an employer to pressurise a worker into opting out of the 48-hour week will not only invalidate the agreement but could also lead to criminal prosecution and a fine of up to £5,000, or more if a conviction is obtained on indictment.

Exceptions to the 48-hour rule

The upper limit on working hours does not apply to managing executives and other persons with autonomous decision-making powers; nor does it apply to people whose working time is not measured or predetermined by their employers or who determine their own patterns of work (ibid. regulation 20(1)).
The exception also applies to workers (such as travelling salesmen, repairmen, etc) whose working time is partly measured, predetermined or determined by the worker, and partly not. In such cases, the provisions in the 1998 Regulations which relate to weekly working time and night work apply only in relation to that part of the worker's work which is measured, predetermined or cannot be determined by the worker himself (or herself) (ibid. regulation 20(2), as inserted (with effect from 17 December 1999) by regulation 4 of the Working Time Regulations 1999).

Extending the reference period

The standard reference period of 17 weeks, over which an adult worker's average weekly hours (including overtime hours) are calculated, may be extended (in special cases) to up to 26 weeks by an employer, or up to 52 weeks under the terms of a collective or work- force agreement – so long as the extension is for objective or technical reasons or reasons concerning the organisation of work. However, no collective or workforce agreement can override an adult worker 's statutory right not to work more than an average 48-hour week. As was explained earlier, that is entirely a matter for the individual. The optout option is not available to workers under the age of 18, however willing a 16 or 17-year-old may be to work more than 48 hours in any week.

Work at night

An adult worker (aged 18 and over) whose contract requires him or her to work at night (ie, for seven or more hours, including the period between midnight and 5:00 am) cannot legally be required to work more than an average eight hours in any 24-hour period calculated over a static or rolling reference period of 17 consecutive weeks. That said, employers must nonetheless see to it that adult night workers engaged in work involving special hazards or heavy physical or mental strain do not work at night for more that eight hours in any period of 24 consecutive hours.
With the coming into force on 6 April 2003 of the Working Time (Amendment) Regulations 2002, young workers under the age of 18 must not be employed between 10:00 pm and 6:00 am or, where their contracts require them to work after 10:00 pm, between the hours of 11:00 pm and 7:00 am. However, those restrictions do not apply to young workers employed in hospitals or similar establishments or in connection with cultural, artistic, sporting or advertising activities. Young workers employed in agriculture, retail, hotels, bakeries, postal or newspaper deliveries or in catering activities (including bars and restaurants) may be employed up to midnight or after 4:00 am (but not between those hours) so long as they are given an opportunity of a free assessment of their health and capacities before being assigned to such work.

Enforcement

Responsibility for enforcing the upper limits on working time (and night work) rests with health and safety inspectors and local authority environmental health officers. The latter have sweeping powers to enter an employer's premises, examine records, and talk to workers. Evidence of non-compliance could lead to prosecution and a heavy fine. A failure to maintain appropriate records or to obstruct an inspector in the exercise of his (or her) functions is also a serious matter which will attract swingeing penalties under the Health & Safety at Work etc Act 1974.

Complaints to an employment tribunal

A worker may complain to an employment tribunal that he (or she) has been disciplined, dismissed, selected for redundancy, or subjected to some other detriment (eg, denial of overtime, forfeiture of a promised pay rise, etc) for challenging his employer's failure to comply with his rights under the 1998 Regulations, or for refusing to forego those rights, or for asserting those rights before a tribunal or court. If such a complaint is upheld, the employer will be ordered to pay the employee a substantial (or further substantial) award of compensation (per sections 45A, 48(lZA), 49(5A), 101A, 104(4)(d) and 105(4A), Employment Rights Act 1996).
It is as well to point out that a worker (whether employee or otherwise) has no need to resign in order to pursue his (or her) statutory rights before an employment tribunal, so long as the complaint is presented within three months of the employer's refusal or failure to comply. If the worker has resigned or been dismissed, the complaint must be presented within three months of the effective date of termination of his contract of employment or within such further period as the tribunal considers reasonable in the circumstances.

Written statement of employment particulars

A worker who is an employee, in the strict legal sense of the word, has the legal right to be issued with a written statement explaining the principal terms and conditions of his (or her) employment. The statement must include information about any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours, night work and, by definition, time off for meals or rest) (per section 1, Employment Rights Act 1996). Any written statement (often inaccurately referred to as the 'contract of employment') which purports to override or undermine the employee's rights under the Working Time Regulations 1998 is void and unenforceable.

Note

The fact that the right to be issued with a written statement of employment particulars is restricted to workers who are employees (as distinct from workers who are not employees), does not undermine the protection afforded to every worker under the 1998 Regulations.

Overtime premium payments

Until the repeal on 30 August 1993 of Part II of the Wages Act 1986, wages councils were the only statutory bodies with the legal authority to require employers to pay premium payments to employees who work more than a specified number of hours a week.
Blue collar workers, shop assistants, restaurant and hotel workers, clerical, administrative and secretarial staff, ordinarily expect to be paid at premium rates if they agree to work hours in excess of their normal weekly hours, or if their contracts of employment require them to do so – but they have no statutory right to such payments. Overtime premium payments are less likely to be paid to professional and managerial staff and are almost unheard of in the ranks of senior managers and company directors. Much will depend on what is written into an employee's contract of employment, bearing in mind that the written statement issued under Part I of the Employment Rights Act 1996 (see above) must include particulars of 'any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours)' (ibid. section 1(4)(c)).

Collective agreements drawn up between employers and representative trade unions, and 'imported into' a worker 's contract, usually specify overtime premium payments for all hours worked in excess of the standard working week. Workers in certain industries are traditionally paid double time for overtime hours on Sundays and bank holidays, supplemented in some cases (eg, in the hotel and catering industry) by equivalent paid time off work to be taken at a later date.

Note

The Sunday Trading Act 1994 and the Betting, Gaming & Lotteries Act 1963 (as amended) gave shop workers and betting workers the right to opt-out of Sunday work. But neither of those enactments (the relevant provisions of which are now to be found in the Employment Rights Act 1996) requires employers to pay premium rates for overtime working.

Compulsory and voluntary overtime

Whether or not an employee can be fairly dismissed for refusing to work overtime will depend, in large part, on any related express or implied term in his (or her) contract of employment. If an employee's contract requires him to work a minimum of 10 overtime hours a week, he must work those hours (subject, of course, to any overriding legal restriction on the maximum number of weekly hours (including overtime hours) under the 1998 Regulations, discussed earlier in this section). If, having accepted employment on those terms he then refuses to work any overtime at all, let alone 10 hours a week, he will have repudiated a fundamental term in his contract of employment and can be dismissed with impunity bearing in mind that difficulties of this sort will ordinarily be identified, discussed and resolved long before any such employee qualifies to pursue a complaint of unfair dismissal.
If the same employee decides after one or more years' service that he is unhappy about working 10 hours' overtime a week, his dismissal for refusing to comply with the terms of his contract will still be held to have been fair so long as his employer can satisfy an employment tribunal that he had acted reasonably in treating the employee's refusal to work overtime (and his reasons for doing so) as a sufficient reason for dismissing him.
If an employee's contract is silent on the question of overtime, or simply states that overtime hours will be remunerated at such-and- such a rate, his (or her) refusal to work overtime on a single occasion is likely to be less damaging to his prospects of survival than his refusal to work overtime on any occasion. A great deal will depend on the particular circumstances and the employee's general attitude to his work

Complaint to an employment tribunal

On the termination of his (or her) employment, a worker (qua employee) can bring a 'breach of contract' claim before an employment tribunal if his employer had denied him his contractual right to work a specified number of overtime hours each week, and/or (provided that he had been continuously employed for one year or more) a complaint of unfair dismissal if dismissed for refusing to work overtime. Unfair dismissal and 'breach of contract' claims must be presented to a tribunal within three months of the effective date of termination of the employee's contract of employment. If such a complaint is upheld, the tribunal will make a declaration to that effect and will order the employer to pay damages or compensation (and/or, in the case of a dismissal) to reinstate or re-engage the employee in his original (or in an equivalent) job

Notice of Termination of Employment

noreply@blogger.com (Unknown) — Mon, 21 Mar 2011 13:59:00 +0000

Notice of Termination of Employment
(Statutory minimum notice)

Key points

The written statement of employment particulars (often referred to as the 'contract of employment'), given to an employee when he (or she) first starts work with an employer, must include particulars of 'the length of notice which the employee is obliged to give and entitled to receive to determine his contract of employment' (section 1(4)(e), Employment Rights Act 1996).

Notice to be given by the employer

By section 86(1) of the 1996 Act, a person who has been continuously employed for a period of one month or more is entitled to receive the following minimum notice from his employer to terminate his (or her) contract of employment:
1. at least one week's notice of termination if he has been continuously employed for less than two calendar years;
2. at least one week's notice of termination for each complete calendar year of continuous employment, if he has been continuously employed for two years or more but less than 12 years; and
3. at least 12 weeks' notice of termination if he has been continuously employed for 12 years or more.
  So far as the term 'continuous employment' is concerned, an employee is deemed to be in continuous employment if he (or she) is employed under a contract of employment. This means that every employee (regardless of the number of hours he normally works in a week) is entitled to notice to terminate his employment, as described above, so long as he has been continuously employed for the requisite period.

Notice to be given by the employee

Unless his (or her) contract specifies a longer period of notice, an employee who has been continuously employed for one month or more need only give his employer a minimum of one week's notice to terminate his contract of employment. That minimum notice period of one week does not increase with length of service (ibid. section 86(2)).

Summary dismissal

Any employee, who is summarily dismissed for gross misconduct (which is effectively a repudiation of his (or her) contract of employment), thereby forfeits his entitlement to notice (statutory or contractual).

Waiver of right to notice

There is nothing in law to prevent either party to a contract of employment (whether employer or employee) waiving his or her right to notice on any occasion, or from accepting a payment in lieu of notice. For instance, an employer may agree to allow an employee (who has resigned) to quit his job earlier than the date on which the employee's notice expires. However, it is unlikely that he can insist on his doing so. If the employee agrees to leave early, his employer must nonetheless pay him money in lieu of wages or salary for the whole (or the remainder) of the notice period. Likewise, an employee, who has been dismissed, in circumstances which do not warrant summary dismissal, is under no obligation to accept an offer of money in lieu of notice (unless the contract of employment stipulates otherwise) and may insist on working out his notice period. Finally, if an employer 's conduct is such that an employee is entitled to terminate his contract of employment without notice, the employee may do so either with or without notice

Rights of employee during notice period

If, during his (or her) period of notice (whether given by the employer or the employee), an employee has normal working hours and during any part of those normal working hours he (or she) is ready and willing to work, but no work is provided for him (or her) to do, or he is incapable of work because of illness or injury, or he is absent from work on approved holidays, parental leave, or wholly or partly because of pregnancy or childbirth, his employer must pay him his normal remuneration during that notice period. However, that right arises if (but only if) the period of notice required to be given by the employer under the terms of the employee's contract of employment is the same as (or not more than one week more generous than) the statutory minimum notice required by section 86(1) (ibid. sections 88 and 89, as amended by Schedule 4, Part III, paragraphs 10 and 11, Employment Relations Act 1999).

Note

Any payment already made by the employer to the employee during the relevant part of the notice period (whether by way of sick pay, statutory sick pay, maternity pay, statutory maternity pay, holiday pay, or otherwise) will go towards discharging the employer's liability under sections 88 or 89, and 90, of the 1996 Act.

For example, an employee with 10 years' continuous service, who is dismissed while absent from work on sick leave, will be entitled to be paid his (or her) normal wages or salary while serving out his notice (so long as the notice to which he is entitled under his contract of employment does not exceed 11 weeks) – even if he has long since exhausted any contractual or statutory entitlement to sick pay. An employee who resigns during a period of sick leave is likewise entitled to be paid a week's pay (in respect of the period of notice prescribed by ibid. section 86(2)) so long as the notice which he is entitled to receive from his employer does not exceed the prescribed statutory minimum by more than one week).
The same general rules apply to the employee who has no normal working hours under the contract of employment in force during the notice period. Subject to the proviso that the notice required to be given by the employer to terminate the contract must not be more than one week more generous than the statutory minimum period of notice, an employee who resigns or is dismissed must be paid his or her normal remuneration during that statutory notice period. However, the employer's liability to pay in these circumstances is conditional on the employee being ready and willing to do work of a reasonable nature and amount to earn a week's pay (ibid. section 89(1)).

Exceptions to the rule

However, no payment is due in consequence of a notice to terminate given by an absentee employee if, after the notice is given and before that notice expires, he (or she) takes part in a strike or other industrial action against his employer (ibid. section 91(2)). The same rule applies if the employee breaks the contract by failing to serve out his full notice period. Indeed, where the notice was given by the employee, the employer 's liability to pay does not arise until that notice period expires (ibid. sections 88(3) and 89(3)).
Nor is there any entitlement to payment in respect of a period during which the employee is absent from work either with his (or her) employer's permission (eg, approved leave of absence without pay) or in consequence of a request for time off work (within the meaning of Part VI of the 1996 Act or sections 168 to 170 of the Trade Union & Labour Relations (Consolidation) Act 1992: time off for trade union duties and activities).
Likewise, if an employee who has resigned or been dismissed breaks his (or her) contract of employment and is summarily dismissed for gross misconduct while serving out his notice period, his employer may lawfully withhold any amount otherwise payable to the employee in respect of that part of the notice period which falls after the date on which that summary dismissal took place (ibid. section 91(4)).

Wrongful dismissal

An employee who is wrongfully dismissed (ie, without benefit of the notice to which he (or she) is entitled under his contract of employment, or in law) may nowadays pursue a claim for damages before an employment tribunal. But, if the amount he is claiming exceeds £25,000, he would be best-advised to pursue his case through the civil courts which have concurrent jurisdiction in these matters.

Note

The jurisdiction of the employment tribunals was extended on 12 July 1994 to include all breach of employment contract disputes which arise or are still unresolved at the end of a period of employment. The relevant statutory orders, saved by section 3 of the Employment Tribunals Act 1996, are the Employment Tribunals Extension of jurisdiction (England & Wales) Order 1994, and the Employment Tribunals Extension of jurisdiction (Scotland) Order 1994.

National Minimum Wage—Notice of Termination of Employment

noreply@blogger.com (Unknown) — Thu, 17 Mar 2011 13:06:00 +0000

National Minimum Wage

Key points

Since the coming into force on 1 April 1999 of the National Minimum Wage Regulations 1998 (as amended), every UK worker aged 18 and over now has the statutory right to be paid no less than the national minimum wage (NMW) appropriate to his or her age.

From 1 October 2002 to 30 September 2003, the NMW for workers aged 22 and over is £4.20 an hour. For workers aged 18 to 21, inclusive, it is £3.60 an hour. And, for workers aged 22 and over who are in receipt of 'accredited training' (on at least 26 days in their first six months of employment) it is also £3.60 an hour. At present, there is no NMW for workers under the age of 18. Certain payments made to workers (such as overtime premium payments, shift allowances, cost of living allowances, and the like) do not count towards the NMW; nor do most benefits in kind. Some deductions from pay also do not count. Deductions and payments which do or do not count towards the NMW are discussed later in this section.

Note

The term 'accredited training' means training undertaken with a new employer during normal working hours (at or away from the workplace) which leads to a vocational qualification approved by the Secretary of State for Education. It does not apply to in-house training devised and provided by employers. At present, there is no NMW for workers aged 16 and 17

A refusal or failure to pay the appropriate NMW is an offence, the penalty for which, on summary conviction, is a fine of up to £5,000 for each offence. Inland Revenue enforcement officers have the right to enter an employer's premises and to inspect wage records. A failure to keep adequate or accurate records, or an attempt to obstruct inspectors in the exercise of their functions, will also lead to prosecution and a fine of up to £5,000.
Workers who are dismissed, selected for redundancy, or subjected to any other detriment, for questioning or challenging their employer's refusal or failure to pay the NMW, or for bringing proceedings before a tribunal or court, will likewise be entitled to compensation. Indeed, a worker who suspects that he or she is being paid less than the NMW may write to his or her employer demanding to see the relevant wage records, and must be supplied with those records within 14 days. An employer who fails to comply with such a request will be ordered to pay the worker in question the sum of £288 (that is to say, 80 times the level of the NMW), as well as compensation for the shortfall in pay.

Practical guidance

Meaning of 'worker'

A 'worker' is a person who does work for an employer, either under a contract of employment or under a contract sui generis (that is to say, of its own kind). In short, the term encompasses employees, seasonal and casual workers, freelances, agency 'temps', pieceworkers (or output workers), workers paid entirely on commission, and homeworkers. All such workers must be paid no less than the appropriate NMW rate. As a 'rule of thumb', a worker's employer is the person (or organisation) who (or which) pays the worker 's wages or salary, and deducts payments in respect of PAYE tax and NI contributions. It is important to stress that workers over normal retiring age or the state pension age (60 or 65, as the case may be) must be paid the appropriate NMW rate if they are workers.
The only category of person who is not a 'worker' in this sense, and who does not qualify for the NMW, is the self-employed person. The genuinely self-employed person is engaged under a contract for services to carry out a specific task or activity in return for an agreed fee. The self-employed person prepares his (or her) own annual accounts for submission to the Inland Revenue, pays his own taxes and National Insurance contributions, submits his own invoices (preferably on a preprinted form), is (where appropriate) registered for VAT, provides his own tools and equipment, and is not under the direction or control of any other person. An employer would be well-advised to demand proof of 'self-employed' status from any person who holds himself out to be self-employed.
Employers who choose to categorise some or all of their workers as 'self-employed', in order to avoid paying the appropriate NMW rate, are liable to prosecution and heavy fines – unless they are in a position to convince Inland Revenue enforcement officers that the workers in question are indeed self-employed.
Agency 'temps' are usually employed by the employment business which hires them out to client employers. It is the employment business (not the client employer) that is responsible both for paying a temp's wages (within clearly defined time limits) and for ensuring that their workers are paid the appropriate NMW rate.

Excluded categories

The NMW need not be paid until their 19th birthdays to 18-year-old apprentices who began their apprenticeships at 16 or 17. Nor need it be paid to apprentices age 19 and over during the first 12 months' of their apprenticeships or until their 26th birthdays, whichever occurs sooner. An 'apprentice', for these purposes, is a person who is either employed under a contract of apprenticeship or who is taking part in the Government's Modern Apprenticeship programme.
Also excluded from the NMW during their placements with employers are 'sandwich course' students, students obtaining work experience, teacher trainees, and trainees on Government-funded schemes (such as the 'New Deal', 'Work-based learning for adults', and so on).

Note
Also excluded are members of the armed forces, share fishermen, voluntary workers (who receive no pay for their time apart from genuine expenses), and prisoners.
But those exclusions do not apply to students taking a 'gap year ' between school (or college) and university. Nor do they apply to students undertaking post-graduate studies (whether taking up employment independently or as an adjunct to their studies). All such people must be paid no less than the appropriate NMW rate during their employment.

Deductions and payments that do or do not count towards the NMW

As was mentioned above, there are some payments included in a worker's gross wages or salary (such as overtime premium payments and shift allowances) which do notcount towards the NMW; and there are others which do. Likewise, there are certain benefits in kind and deductions from pay (or payments made to an employer) which must be excluded from calculations. There is, for example, no upper limit on the amount of rent that an employer may charge a worker for 'live-in' accommodation (a not uncommon feature of employment in the hotel and leisure industries). However, as is explained below that portion of the rent paid by a worker, which exceeds a specified hourly, daily or weekly amount, does not count towards the NMW. In short, the excess amount must be deducted from the worker's gross wages or salary in order to establish whether the worker in question is being paid the appropriate NMW rate.
Other deductions (or payments by a worker) that do not count include deductions in respect of meals compulsorily purchased by a worker from his or her employer; and deductions in respect of uniforms or protective clothing and equipment. The object of the exercise here is to ensure that employers do not use deductions from pay (or demands for certain payments from workers) as a means of 'clawing-back' (or reducing the effect of) the NMW.

Deductions and payments that do not count

The following components of a worker's gross wages or salary in a particular pay reference period (week, fortnight or month) do not count as part of the NMW:
- overtime premium payments;
- shift allowances;
- premium payments for work carried out on a bank or public holiday;
- unsociable hours payments;
- danger money;
- standby or on call allowances;
- travel allowances;
- cost of living allowances (eg 'London weighting' payments); and
- payments carried forward from a previous pay reference period.
Benefits in kind provided by an employer (whether taxable or not) do not count towards the NMW. These include:
- a company car;
- petrol, oil and lubricants;
- meals (or the notional value of such meals) if, as is unlikely, a worker is required by his (or her) contract to take his meals in a staff or works canteen;
- luncheon vouchers (or the notional value of such vouchers);
- the employer's contributions to an occupational pension plan;
- relocation expenses;
- free health insurance; and
- that part of the rent charged by an employer for live-in accommodation which exceeds a specified hourly, daily or weekly amount

Furthermore, tips paid directly to a worker (or distributed amongst fellow workers), which are not paid through the payroll, do not count towards the NMW. The same applies to deductions from pay (or payments made to an employer) in respect of protective clothing and equipment, uniforms, dry cleaning or laundry costs, tools, etc.

Deductions and payments that count towards the NMW

Deductions or payments that do count towards the NMW include:

incentive payments, bonuses, commission;
tips, gratuities and service charges collected centrally by the employer and distributed to a worker through the payroll (but not otherwise);
deductions in respect of PAYE tax and NI contributions;
a worker's pension contributions;
fine imposed in accordance with a worker's contract for misconduct (including authorised deductions in respect of cash shortages or stock deficiencies);
deductions in respect of overpaid wages or salary (or overpaid expenses);
deductions (or payments) in respect of live-in accommodation up to a prescribed maximum;
voluntary deductions in respect of trade union dues, private health insurance, membership of a social club;
deductions or payments in respect of meals voluntarily purchased by a worker from a staff or works canteen; and
deductions in respect of goods and services voluntarily purchased by a worker from his or her employer.

Live-in accommodation

Live-in accommodation is a common feature of employment in the hotel and leisure industry, both for the convenience of employers and that of workers. Although technically there is no upper limit on the amount of rent that a worker may be required to pay for live-in accommodation, the 1998 Regulations make it clear that employers will not lessen the effect of the NMW Regulations by charging more than a prescribed amount for such accommodation.
The most that an employer may offset against the NMW by way of accommodation charges is 57 pence for each hour of a worker 's contractual weekly hours or £19.95 a week, whichever is the lower of those two amounts. In short, the maximum that may be offset against the NMW is £22.75 a week. If a worker works a 35-hour week, the maximum that may be offset against his or her NMW is £19.95 a week; if a 30-hour week, £17.10; and so on.
If a worker occupies live-in accommodation for less than a whole week (eg, five days a week), the maximum daily amount that may be offset against the NMW is whichever is the lower of 57p per hour for each of the worker's contracted (or average) daily hours or £3.25. A day for these purposes is the period from midnight to midnight.

Categories of worker

Most workers in industry and commerce can be categorised as salaried or hourly-paid. Other categories include seasonal workers, casual workers, workers paid wholly or mainly by commission, agency 'temps', and homeworkers.

Salaried workers

The ranks of salaried workers traditionally include senior executives, managers, accountants, clerks, secretaries, etc, most of whom are paid at regular monthly intervals by cheque or credit transfer to their bank accounts. A salaried worker's pay usually remains the same month after month (unless absent from work because of illness or injury or on maternity or parental leave, or on approved leave of absence without pay). A salaried worker's pay will also encompass meal and rest breaks, and annual holidays.

Many salaried workers (especially those in the middle and higher echelons of management) are not paid for overtime working, it being a feature of their contracts that they work such additional hours as may be necessary for the more efficient performance of their duties. Given that salaried jobs are no longer the exclusive preserve of 'white-collar' workers, there will, of course, be salaried workers who are relatively lowly-paid (eg, in the region of £8,000 to £10,000 per annum), whose hourly rate of pay in a particular pay reference period may dip below the appropriate NMW rate – the more so if any such worker routinely works overtime hours (paid or otherwise) or is paying more than £22.75 a week in rent for 'live-in' accommodation provided by his or her employer. As was explained earlier, there are a number of payments or deductions from pay that do not count towards the NMW.

Note

The term 'pay reference period' means the period (not exceeding one month) in respect of which wages or salary are normally paid (monthly, weekly, fortnightly, etc). Workers who are paid weekly have a pay reference period of one week. Those who are paid monthly have a pay reference period of one month. Some workers, notably casual workers will have a pay reference period of one day. Workers who are paid less frequently than once every month (eg every three months) nonetheless have a pay reference period of one month. In short, the maximum pay reference period for any worker (under the 1998 Regulations) is one month.

Example

24-year-old Mary Brown works as an Assistant Manager at a small London hotel. She earns a salary of £9,600 per annum, and is contracted to work a 5-day, 40-hour week (including meal and rest breaks). She is paid monthly, receives all her meals free of charge, but occupies 'live-in' accommodation, provided by her employer, for which she pays rent of £200 a month. Mary often works more than 40 hours a week when the hotel is busy or there are staff shortages. She is paid time-and-a-half for all hours worked in excess of 173 hours a month.
Mary's gross salary for June 2003 (before the deduction of PAYE tax and NI contributions) was made up as follows:

Monthly pay (£9,600, divided by 12):
£800.00

Overtime pay (23 hours @ £6.92/hour):
£159.16

Gross pay:
£959.16

less rent of £200:
£639.38

Was Mary paid less than the NMW for June 2003? To answer that question, Mary's overtime premium payments (£53.05) must be disregarded, as must all rental payments in excess of £22.75 a week (or £98.58 a month) (ie, £101.42). These 'specified reductions' effectively reduce Mary's gross pay for May 2000 from £959.16 to £804.69. As Mary worked a total of 196 hours during May, her hourly rate of pay for that month was £4.11, that is to say, £0.09 per hour less than the NMW of £4.20 for her age. It follows that Mary's employer must pay her an additional £17.64 for June 2003.

Hourly-paid workers

As the term implies, hourly-paid workers are paid for the number of hours they work each week or month (whatever the pay reference period). They are traditionally paid overtime for all hours worked in excess of their standard (or contractual) working hours, but are not normally paid for meal and rest breaks. If they work a system of shifts, they may be paid a shift allowance. If they work normally on a bank or public holiday, or on a rest day, they may be paid at a higher hourly rate for such work or they may have a contractual right to an equivalent amount of paid time off work to be taken at an agreed later date. If employed under a contract of employment, their terms and conditions of employment (including working hours, rate of pay, shift allowances, overtime premium payments, and the like) must be explained in the written statement of employment particulars necessarily issued to each of them within two months of the date on which their employment began.
Hourly-paid workers must be paid no less than the appropriate NMW rate for all hours worked in the standard pay reference period. Working hours do not include recognised meal and rest breaks (even if the worker is paid during such breaks, or works throughout a recognised meal or rest-break), absences from work occasioned by annual holidays, sick leave, maternity leave, parental leave, time off for dependants, and so on. Nor do they include time when a worker is engaged in a strike or other form of industrial action (including a 'go slow' or 'work to rule'). Whether or not a worker is entitled to be paid all or part of his (or her) wages when sick or injured will depend on the terms of his contract (although he will have the qualified right to be paid statutory sick pay at such times). Payments in respect of maternity leave and annual holidays are regulated by statute.
An hourly-paid worker who is on standby or 'on-call', at or near his (or her) workplace (or who is at work, as required, but is not actually provided with work, or is unable to work because of a machine or plant breakdown) must be paid no less than the NMW for that time. The same applies when a worker is travelling between jobs, but not when he is travelling from and to his home and place of work.

Piece-workers and 'output' workers

There are workers who do not receive a basic wage, but are paid entirely on the basis of the work they do, the sales (or number of telephone calls) they make or the goods they produce. Such people may work from home or in premises provided by their employer. Unless (as is unlikely) they are genuinely self-employed, every such worker must be paid no less than the appropriate NMW wage rate for every hour worked (based on what their employer agrees is a fair estimate of the hours they work). The NMW rules for pieceworkers, output workers, and the like, are complicated. Interested employers are advised to acquire a copy of the DTI's Detailed Guide to the National Minimum Wage(Ref URN 99/662), copies of which are available from the address given at the end of this section.

Records

Regulation 38 of the 1998 Regulations imposes a duty on employers to keep records 'sufficient to establish that he is remunerating [workers] at a rate at least equal to the national minimum wage'. Those records must be kept in a form which enables the information about a worker in respect of any one reference period to be produced in a single document. Furthermore, the employer must keep those records (either in paper form or on a computer or computer disk) for a rolling three-year period and must make those records available either to a worker (on request) or an Inland Revenue enforcement officer (on demand). An employer who fails to keep such records, or who keeps or produces false or inaccurate records, is guilty of an offence and liable on summary conviction to a fine of up to £5,000 – for each and every such offence.

Enforcement and penalties for non-compliance

As was mentioned above, the National Minimum Wage Act 1998 and its accompanying regulations are policed and enforced by Inland Revenue enforcement officers. Section 14 of the 1998 Act cautions employers that enforcement officers have the power to enter an employer's premises (at reasonable times), to inspect and take copies of pay records, to require an explanation of any such records, to ask questions, and to talk to workers. Enforcement officers can also issue enforcement notices requiring an employer to pay the appropriate rate of NMW to identified workers or to make up the shortfall between the NMW and the wages actually paid to those workers (backdated as appropriate). A failure to comply with the terms of an enforcement notice will prompt the issue of a penalty notice requiring the recalcitrant employer to pay £7.40 a day to each affected worker for every day of continued noncompliance.
There are a number of criminal offences under the 1998 Act, each of which attracts a penalty of up to £5,000 for each offence. These are:
- a refusal or wilful neglect to pay the appropriate NMW rate;
- a failure to maintain adequate and accurate payroll records and time sheets;
- keeping false or inaccurate records;
- intentionally obstructing an Inland Revenue enforcement officer in the exercise of his or her authority; and
- refusing or neglecting to give information to an Inland Revenue enforcement officer.

Complaints by workers

Workers who know (or suspect) that they are not being paid the appropriate NMW rate have the right to ask to see their payroll records. Any such request must be made in writing. An employer who fails or refuses to produce those records within 14 days, or who prevaricates or refuses to make those records available, will be ordered by an employment tribunal to pay the worker in question an amount equal to 80 times the appropriate NMW rate. A worker may also apply to a tribunal or county court for the recovery of any amount of wages or salary which fell short of the NMW. Any such application must be lodged with the nearest Regional Office of the Employment Tribunals on Form IT1 within three months of the employer's alleged refusal or failure.
Workers have no need to resign in order to pursue their statutory rights before an employment tribunal. If denied their right to be paid no less than the appropriate NMW rate, they may complain to an employment tribunal and/or invoke the assistance of an Inland Revenue enforcement officer. An employer who dismisses such a worker, or selects him (or her) for redundancy, or subjects him to some other detriment (eg, by demoting or transferring him, withholding a promised pay rise, or by denying opportunities for overtime, etc) for challenging or questioning the employer's refusal or failure to pay the NMW (before a tribunal or court, or otherwise), or for asserting his statutory rights, will be ordered to pay the worker a substantial amount of compensation. In such situations, workers may pursue their rights before the tribunals regardless of their age or length of service at the material time.

Further information

The Department of Trade & Industry's (DTI) Detailed Guide to the National Minimum Wage (Ref URN99/662) may be obtained without charge from the DTI Publication Orderline, ADMAIL 528, London, SW1W 8YT (Telephone: 0870 1502 500; fax: 0870 1502 333; or email: publications@dti.gsi.gov.uk).
For further assistance on the national minimum wage, employers may call NMW Enquiries on 0845 6000 678 or write to the following address:
NMW Enquiries
Freepost PHQ1
Newcastle upon Tyne
NE98 1ZH

Medical Reports, Access To

noreply@blogger.com (Unknown) — Sun, 13 Mar 2011 15:54:00 +0000

Key points

An employer will often ask an employee – or a job applicant – for permission to approach his (or her) family doctor (or GP) for a report on his recent medical history and current state of health. This is acceptable so long as the employer first informs the person concerned of his (or her) statutory rights under the Access to Medical Reports Act 1988.
An employer may have a number of reasons for wanting to see a medical report on an employee (or prospective employee). Very often, an offer of employment will be subject to the receipt of a satisfactory medical report. It could be that a job applicant has an unsatisfactory health or attendance record. If an employer has it in mind to dismiss a long-serving employee on health grounds, he should not take the matter further without first obtaining a report from the employee's doctor . Furthermore, there are certain industries or processes where people with specific health problems (eg, asthma or dermatitis) should not be engaged in work involving exposure to hazardous substances.
It has always been an employee's (or job applicant's) prerogative to refuse to allow his (or her) employer (or putative employer) to make any direct approach to his doctor. A doctor will not willingly disclose information about a patient without that person's express permission.
The whole business of seeking and obtaining a report on an employee's state of health was put on a statutory footing on 1 January 1989 when the Access to Medical Reports Act 1988 came into force.
In broad terms, the Act gives any person applying for a job, and any person already in work, the right:
1. to agree or to refuse to allow his (or her) employer (or prospective employer) permission to approach his doctor for a medical report on his state of health;
2. to intercept any medical report prepared by his doctor for employment purposes;
3. to challenge the accuracy or relevance of any of the information given in the medical report;
4. to attach a statement of his own views to the medical report (if, in the event, his doctor refuses to amend it) before it is sent to the employer;
5. to refuse to allow the medical report to be sent to the employer; and
6. to be given access to any medical report supplied for employment purposes during the previous six months.

Meaning of 'medical report'

Under section 2(1) of the Act, a medical report is a report on the physical or mental health of an individual prepared by a doctor or physician who is or has been responsible for his or her clinical care. In this context, the word care means any 'examination, investigation or diagnosis for the purposes of, or in connection with, any form of medical treatment' (ibid.).
For most people in employment, their family doctor or GP is the doctor normally responsible for their clinical care. Company doctors, and other doctors specifically nominated by an employer, may carry out routine or occasional medical examinations of employees when asked to do so. But they are not responsible for the clinical care of the employees they examine. If they diagnose a health problem in a particular employee (or job applicant) they will urge that person to make an appointment to see his or her own doctor. A company doctor will not willingly intrude on the relationship which exists between a patient and his usual doctor.
It follows that a medical report prepared by a company doctor will not normally fall within the scope of the Access to Medical Reports Act 1988. An employee or job applicant will have no statutory right of access to that report and no right to stop the report being sent forward to his or her employer or would-be employer.
An employer cannot compel an employee (or job applicant) to submit to a medical examination for employment purposes. But he can refuse to engage any person who refuses to attend a pre-employment medical examination. Indeed, he may have no choice but to dismiss an existing employee who unreasonably refuses to be medically examined either by his or her own doctor or one nominated by (and paid for) by the employer. Contemporary health and safety legislation often includes provision for the routine health surveillance of employees engaged in hazardous work. Thus, regulation 6 of the Management of Health & Safety at Work Regulations 1999 imposes a duty on every employer to provide his employees with such health surveillance as is appropriate 'having regard to the risks to their health and safety'. Paragraph 30 of the accompanying Approved Code of Practice adds that health surveil- lance procedures can include 'clinical examination and measurements of physiological or psychological effects by an appropriately qualified practitioner'.

The contents of medical reports

While the Access to Medical Reports Act 1988 accepts that an employer may have good reason for wanting a medical report on an employee's state of health, it recognises also that some medical reports may contain information which could prejudice a person's chances of finding and keeping work.

Does an employer really need to be told that a job applicant is homosexual or that he once had a sexually-transmitted disease? Should a doctor tell an employer that one of his staff has the HIV virus or an alcohol or drug-related problem?

Note

Principle 5 of the data protection principles in the Data Protection Act 1998 states that personal data must not be processed (eg kept on file) for longer than is necessary, given the reason for securing that data in the first place. Information which relates to an employee's physical or mental health or condition or his sexual life falls within the category of 'sensitive personal data' and should not be processed other than in accordance with the 1998 Act.

In the final analysis, it is up to an employee's (or job applicant's) own doctor to decide whether such information should be supplied – given the nature of the employee's job and the questions raised by the employer. What the 1988 Act does is give an employee the right to intercept his (or her) doctor's medical report, to challenge the relevance or accuracy of some of the information contained in the report, to ask his doctor to remove any prejudicial or irrelevant information, to add his own comments and, as a last resort, to refuse to allow the report to go forward.

Procedure

In the text that follows, the expression employee should be taken to include job applicant; and the expression employer to include prospective employer.
If an employer wishes to apply to an employee's own doctor for a report on his recent medical history and current state of health he must:
1. notify the employee in writing that he wishes to make the application;
2. obtain the employee's written consent (reminding him at the same time that he has the right under the 1988 Act to withhold that consent);
3. advise the employee (again in writing) that he has the right also to see the medical report before it is supplied (even if he has previously indicated that he does not wish to see it); to ask his doctor to amend any part of the report which he considers to be inaccurate, misleading or irrelevant; to attach his own written comments to the report if his doctor is unwilling to alter the report; and (in the final analysis) to refuse to allow the report to go forward;
4. make sure that the employee understands that it is his responsibility (and his alone) to approach his doctor and arrange with him to see or take a copy of the medical report before it is sent forward, emphasising that he must do so within 21 days after the date of the employer's application.
When applying to an employee's doctor for a medical report, the employer should not only confirm that the employee has consented to his doing so, but must also indicate whether the employee wishes to be given access to the report before it is sent.
If the employee does not exercise his (or her) statutory right to see the report within 21 days after his employer's application to his doctor, the doctor need wait no longer and can send the report to the employer. If the doctor has been told that the employee does not wish to preview the report, he (or she) is free to send it as soon as it is ready. The employee can change his mind about not wanting to see the report. But he will need to act swiftly if he is to have any chance of intercepting the report before his doctor mails it to the employer.

Exceptions

The 1988 Act recognises that a doctor may be reluctant to show some parts of his (or her) medical report to a patient if doing so would cause distress. The medical report may, for example, indicate that the man or woman is suffering from an incurable illness or that major surgery is required. In those circumstances, the doctor may either withhold the report from the employee altogether or allow him or her to see only parts of it. If he adopts either course, he must write to the employee explaining what he has done and his motives for doing so. At this point the employee may refuse to allow the report to go forward.

Enforcement of the 1988 Act

If an employee or job applicant is denied (or seems likely to be denied) his (or her) statutory rights under the 1988 Act, he may apply to the county court (or sheriff 's court in Scotland) for an order directing his employer or doctor to comply with the relevant requirement of the Act. A refusal to comply with the terms of any such court order would be a contempt of court.

Maternity Rights—Medical Reports, Access To

noreply@blogger.com (Unknown) — Wed, 09 Mar 2011 14:28:00 +0000

Maternity Rights

(The rights of employees before and after childbirth)

Key points

Overview

Legislation governing the rights of employees before and after childbirth is currently to be found in Part VIII of the Employment Rights Act 1996, as substituted by section 7 and Schedule 4 (Part 1) of the Employment Relations Act 1999 and 'fleshed out' by the Maternity & Parental Leave etc Regulations 1999, which latter were amended (on 24 November 2002) by the Maternity & Parental Leave (Amendment) Regulations 2002. The law regulating an employee's entitlement or otherwise to statutory maternity pay (SMP) or the state maternity allowance (MA) is to be found in Parts II and XII of the Social Security Contributions & Benefits Act 1992 (referred to in this section as 'the 1992 Act'), and in Regulations made under (or saved by) that Act. The 1992 and 1996 Acts apply to persons employed in England, Scotland and Wales. Cognate legislation covers persons employed in Northern Ireland.

The old and the new

This section is concerned solely with the right of a pregnant employee, whose expected week of childbirth (EWC) begins on or after 6 April 2003, to take up to 52 weeks' maternity leave and her (new) right to be paid up to 26 weeks' Statutory Maternity Pay (SMP) during her ordinary maternity leave period. In the interests of space, the rights of employees whose EWCs occur (or occurred) before 6 April 2003 are not discussed in this section. Suffice to say that a pregnant employee whose EWC begins before 6 April 2003 is restricted to the former maximum of 18 weeks' ordinary maternity leave, supplemented (if she qualifies) by up to 29 weeks' additional maternity leave starting with the Sunday of the week in which childbirth occurred. In her case, the former rules prevail, even if she gives (or gave) birth on or after 6 April 2003.

Ordinary and additional maternity leave periods

Subject to certain procedural requirements (discussed later in this section), every pregnant employee whose expected week of confinement (or childbirth) (EWC) begins on or after 6 April 2003 has the legal right to a minimum 26 weeks' ordinary maternity leave, regardless of her working hours or length of service. If she has been continuously employed for 26 or more weeks by the end of the 15th week before her EWC, she is entitled also to take up to 26 weeks' additional maternity leave. The additional maternity leave period begins on the day immediately following the day on which the employee's ordinary maternity leave period ends.

Statutory maternity pay (SMP)

A pregnant employee who has worked for her employer for 26 weeks or more by the end of the 15th week before her EWC and who has average weekly earnings equal to or greater than the current 'lower earnings limit' for National Insurance purposes (ie, £77), is entitled to be paid up to 26 weeks' statutory maternity pay (SMP) during her maternity pay period. The 'maternity pay period' is the period of up to 26 weeks that begins on the day immediately following the day on which an employee began her ordinary maternity leave, and ends with the payment week immediately preceding the date on which she returned to work. An employee who does not qualify for SMP, may be entitled to receive the state maternity allowance (MA) or a payment from the Social Fund. SMP is discussed in more detail later in this section.

Recovery of SMP

An employer who has lawfully paid SMP to an employee can recover 92 per cent of the gross amount paid by deducting that amount from the total amount of employees' and employers' National Insurance contributions payable (together with income tax) to the Collector of Taxes within 14 days of the end of each income tax month. An employer who qualifies for Small Employer's Relief can recover 100 per cent of the gross amount of SMP payments made, plus an additional 4.5 per cent as compensation for National Insurance contributions paid on SMP (vide the Statutory Maternity Pay (Compensation of Employers) Amendment Regulations 2002). See below for further details.

Return to work after childbirth

A woman returning to work after her ordinary maternity leave period is entitled to do so in the job in which she was employed before her absence began. A woman who takes additional maternity leave is also entitled to return to work in the job in which she was employed before her absence, or, if it is not reasonably practicable for her employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances. But see Parental leave.

Note

An employee entitled to additional maternity leave is no longer obliged to inform her employer in advance that she intends to exercise her right to return to work on completion of that period of leave; nor does her employer have any right to insist that she does so. Nor may her employer write to her (as was previously the case) before the end of her ordinary maternity leave, asking her to confirm whether or not she intends to return to work at the end of the additional maternity leave period.

Meaning of 'childbirth'

Section 235(1) of the 1996 Act defines childbirth as meaning the birth of a living child or the birth of a child whether living or dead after 24 weeks of pregnancy. The expected week of childbirth is the week, beginning at midnight between Saturday and Sunday and ending at midnight on the following Saturday, in which it is expected that childbirth will occur. The word confinement no longer appears in the 1996 Act. However, it is still used in the social security legislation (and means exactly the same as childbirth).

Interaction of contractual and statutory rights

An employee who has a contractual as well as a statutory right to maternity leave may take advantage of whichever of those rights is the more favourable to her (not both). The same applies if she has a contractual right to be paid the whole or part of her normal wages or salary during her ordinary maternity leave period. In that event, her employer may offset SMP (if any) paid to that employee against the amount paid under her contract (and vice versa), but only in respect of weeks in which both the contractual and statutory amounts are due. For example, an employee may be entitled under her contract to 32 weeks' paid maternity leave, but her employer cannot insist that she delay her return to work until the end of that contractual entitlement, as that would deny her her legal right to return to work (on full pay) at the end of her 26-week ordinary maternity leave period.

Change of employer

If there has been a change of employer (for example, in circumstances in which there is no break in the mother-to-be or new mother's period of continuous employment), the new employer (who may be an associate or successor employer) inherits her former employer's contractual and statutory obligations in relation to that employee including her right to maternity leave and pay, and her right to return to work after childbirth. If her former employer had started paying her SMP before the change in ownership, her new employer must continue paying SMP until her maternity pay period ends.

Ordinary maternity leave

Every pregnant employee expecting a baby on or after 6 April 2003 is entitled to take up to 26 weeks' ordinary maternity leave, whether she is in full-time or part-time employment and regardless of her length of service at the material time. If she is healthily pregnant, she has the right also to decide when her maternity leave period is to begin (subject to the proviso that, unless she gives birth prematurely, she may not begin her maternity leave before the beginning of the 11th week before her EWC. Furthermore, her maternity leave period begins immediately if she is absent from work with a pregnancy-related illness at any time during the four weeks immediately preceding her EWC (see Pregnancy-related illnesses below).

Notification procedure

Once she has made up her mind, a pregnant employee must inform her employer by the end of the 15th week before her EWC of the date on which she intends her maternity leave period to begin (in writing, if her employer insists). At the same time, she must specify her EWC and (if asked to do so) produce for her employer's inspection a certificate of expected confinement (Form MatB1 or the equivalent) signed by her doctor or registered midwife. If for one reason or another, the employee is unable to give the required advance notice by the end of that 15th week, she must do so as soon as is reasonably practicable. If she later changes her mind about the date on which she intends to start her maternity leave, she must give her employer at least 28 days' advance notice of the revised start date. The employee's maternity leave period begins on the notified date, unless she gives birth or is taken ill with a pregnancy-related illness before that notified date, as to which see Premature birth and Pregnancy-related illnesses below.

Note

Form Mat B1 (Maternity Certificate) is the standard form of certificate issued by doctors and midwives, although any form of certificate signed by a doctor or registered midwife, and couched in similar terms, will satisfy the legal requirement. A doctor or midwife will not normally issue Form Mat B1 until the beginning of the 14th week before the expected week of childbirth. Form Mat B1 is in two parts. Part A nominates the week in which childbirth is expected to occur; while Part B (Mat B2) certifies the date on which childbirth actually occurred.

An employee, who neglects (or wilfully refuses) to give the prescribed advance notice of the date on which she intends to start her maternity leave, runs the risk of forfeiting her right to maternity leave and, very possibly, her right (if any) to SMP.
An employer who has been correctly informed of an employee's pregnancy and EWC, and of the date on which she intends to start her maternity leave, must respond in writing within the next 28 days. In doing so, he must inform her of the date on which her full entitlement to maternity leave ends. By 'full entitlement' is meant her entitlement to ordinary maternity leave or, where appropriate, her entitlement to both ordinary and additional maternity leave). If he fails to reply in those terms within that 28-day period, he may not prevent her returning to work sooner than the due date and may not legitimately dismiss or discipline her for returning to work later than expected. The reader should note also that, with the coming into force on 6 April 2003 of the Maternity & Parental Leave (Amendment) Regulations 2002, an employer may no longer write to an employee towards the end of her ordinary maternity leave period asking her to confirm whether or not she intends to return to work at the end of her additional maternity leave period.

Premature birth

If an employee gives birth prematurely (that is to say before her EWC and before the date on which she intended to begin her maternity leave, whether or not she had already notified her employer of that intended start date), her ordinary maternity leave period begins with the day on which childbirth occurs. But she risks forfeiting her entitlement to ordinary maternity leave (and, where appropriate, SMP) unless she informs her employer as soon as is reasonably practicable that she gave birth on such-and-such a date.

If she has not done so already, she must also inform her employer of her EWC (supported by a Form Mat B1, if her employer asks her to produce that document or its equivalent), bearing in mind that it is her EWC, not the actual date of birth, which determines her entitlement, if any, to SMP and additional maternity leave. It is useful to note that one side of Form Mat B1 is a 'Certificate of Expected Confinement'; the other, a 'Certificate of Confinement'. If an employee gives birth prematurely, she should ask her doctor or midwife to sign both sides of the form before sending it off to her employer.

Note

An employee whose baby is stillborn within the first 24 weeks of pregnancy has no legal right to maternity leave (but will usually qualify for statutory sick pay (SSP) and, very likely, occupational sick pay, for so long as it takes for her to recover and return to work). But, if the stillbirth occurs after 24 weeks of pregnancy, she retains her right to ordinary maternity leave and, if she qualifies, to additional maternity leave also.

Pregnancy-related illnesses

If a pregnant employee falls ill (or is still ill) with a pregnancy related illness at any time on or after the beginning of the fourth week before her EWC, her ordinary maternity leave period must begin immediately (regardless of the date on which she had otherwise intended to start her leave). If she has been receiving SSP in respect of her illness, those payments must cease, to be replaced (if she qualifies) by SMP. No further payments of SSP are permissible during the maternity leave period, even if the employee does not qualify for SMP during that period. In these circumstances also, she must notify her employer as soon as is reasonably practicable that she is absent from work wholly or partly because of pregnancy.

Note

A pregnant employee who is on sick leave (because of an illness or injury that has nothing to do with her being pregnant) may continue to draw statutory sick pay or invalidity benefit until her notified leave date (ie, the date on which she intended her maternity leave period to begin) or until her baby is born, whichever occurs sooner.

Application of terms and conditions during ordinary maternity leave

An employee who takes ordinary maternity leave is entitled, during that period of leave, to the benefit of all the terms and conditions of employment that would have applied but for her absence (other than her right to be paid her normal wages or salary), and is bound, during that period, by any obligations arising under those terms and conditions.
If, for example, an employee's entitlement to paid annual holidays or occupational sick pay (or, indeed, a pay rise) is determined by reference to her length of service, her absence on maternity leave counts as part of her total period of continuous employment. If her employer pays pension contributions while she is at work, he must continue to pay those contributions at the same level while she is absent on ordinary maternity leave (that is to say, based on her normal wages or salary). However, unless she volunteers otherwise, her own pension contributions must be based only on the amount of any contractual remuneration or SMP actually paid to her during her maternity leave (persection 23 and Schedule 5 to the Social Security Act 1989). The point is that, save for the suspension of her right to be paid her normal wages or salary, an absentee employee's remaining terms and conditions of employment (as well as her statutory right to four weeks' paid annual holidays) prevail throughout her ordinary and additional maternity leave periods.

Return to work after ordinary maternity leave

An employee returning to work after her ordinary maternity leave has the right to do so in the job she occupied before that period of leave began (that is to say, in her original job) – unless, as is explained below, she takes four or more weeks' parental leave before returning to work. If she intends to return to work on the day following the day on which her ordinary maternity leave period comes to an end, she need do no more than turn up for work on the day in question. However, different rules apply if she wishes to return to work sooner than expected (see An early return to work? below). While it would be sensible for an employee approaching the end of her ordinary maternity leave period to keep in touch with her supervisor or head of department, to ensure that everything is in readiness for her return to work, this is by no means a legal requirement. A woman who does not intend to return to work after her ordinary (or additional) maternity leave period must give her employer the notice of termination required by her contract of employment.
A woman who takes up to four weeks' parental leave immediately after the end of her ordinary maternity leave period retains her right to return to work in her original job on the same terms and conditions as if she had not been absent. But, if she takes more than four weeks' parental leave at that time, she may have to forego that right and accept an offer of suitable alternative employment if it is not reasonably practicable for her employer to permit her to return to her original job. It is as well to point out that a woman who wishes to take a period of parental leave immediately after her ordinary (or additional) maternity leave period must apply to take that leave at least 21 days before the end of her maternity leave period. A woman does not qualify to take a period of parental leave, of whatever duration, at the end of her ordinary maternity leave (or at any other time) unless she has completed one or more years' continuous service by the time the requested period of parental leave is set to begin
A woman's ordinary maternity leave period will usually end after 26 weeks (unless she has a contractual right to a longer period of leave), but must continue for so long as may be necessary to accommodate the 'compulsory maternity leave period' referred to in the next paragraph. If she is prevented by illness from returning to work at the end of her ordinary maternity leave, she must comply with such procedures for notifying sickness absence as are laid down in her contract of employment or in any associated document. An employer does not have the right to postpone an employee's return to work after the end of her ordinary (or, indeed, her additional) maternity leave period (ibid. regulation 11).

An early return to work?

But if an employee plans to return to work early – bearing in mind that she may not lawfully do so within the compulsory maternity leave period, that is to say, within two weeks of giving birth (or within four weeks of that date if she works in a factory (per section 205, Public Health Act 1936) – she must give her employer at least 28 days' notice of her intentions, although there is no need for her to do so in writing. If she returns to work unannounced and earlier than the due date, or after having given less than 28 days' notice, her employer has every right to send her home and to insist that she delay her return to work until those 28 days have elapsed or until the end of her ordinary maternity leave period, whichever occurs sooner. An employer has no right to delay an employee's return to work beyond the end of her ordinary maternity leave period. An employee who is denied her right to return to work after that period will be treated in law as having been unfairly dismissed and may pursue the matter before an employment tribunal.

Dismissal during ordinary maternity leave

Section 99 of the 1996 Act (supported by Regulation 20 of the Maternity & Parental Leave etc Regulations 1999 (qv)) cautions employers that it is unlawful and automatically unfair to dismiss an employee (or select her for redundancy) during her ordinary (or additional) maternity leave period if the reason (or, if more than one, the principal reason) for her dismissal or selection is that she is (or was) pregnant or had given birth to a child, or because she had exercised her statutory rights in relation to pregnancy and childbirth.

Redundancy during ordinary maternity leave

If an employee is made genuinely redundant during her ordinary maternity leave, her employer is nonetheless duty-bound to offer her suitable alternative employment before her employment under her old contract comes to an end. The alternative employment must begin on the day following the day on which her previous employment ended and, to be 'suitable', must involve work that is both suitable and appropriate for her to do in the circumstances (given her qualifications, experience and skills) and on terms and conditions of employment not substantially less favourable to her than those that would have applied had she continued to be employed in her original job. In short, she should enjoy the same or equivalent status or seniority under the new contract, work in the same location (if not in the same department or section), receive the same or a comparable rate of pay, and be entitled to the same annual holidays, the same sickness benefits; and so on (ibid. regulation 10).
If an employee is made redundant during her ordinary maternity leave period without being offered suitable alternative employment, or without being consulted about the suitability of any available vacancies, her dismissal will be held to have been unfair. If she believes that she has been unfairly treated, she has the right to pursue her case before an employment tribunal. If the tribunal finds in her favour or believes that she was selected for redundancy principally because she was pregnant or because she had given birth to a child (or for a connected reason), it will order her employer to pay a substantial award of compensation – the more so if she elects to pursue her complaint under the Sex Discrimination Act 1975.
If the employer 's defence is that there was no suitable alternative employment to offer the employee, or that she had unreasonably refused an offer of what would ordinarily be considered to be suitable alternative employment, or that there was nothing untoward about the employer's motives in selecting her for redundancy, the case will be decided on its merits.

An employer should be extremely cautious about dismissing an employee (for a reason other than redundancy) during her ordinary (or additional) maternity leave period – bearing in mind that her contract of employment subsists during her absence and that she is accordingly entitled to the same consideration as any person who is absent from work on holidays or sick leave. To dismiss an employee in absentia will usually be held unfair – the more so if the evidence shows that she was not told about the reasons for her dismissal, had not been forewarned of the likelihood of her being dismissed, and not been afforded an opportunity either to put her side of the case or to appeal against her employer's decision to dismiss her – issues of procedural fairness reemphasised by the House of Lords in Polkey v Dayton Services Limited [1987] IRLR 503.

Note

Unless dismissed for an unlawful or inadmissible reason (or for a reason connected with her having been pregnant or given birth to a child), an employee dismissed during her maternity leave period for a reason other than redundancy (eg, misconduct) will not normally qualify to bring a complaint of unfair dismissal unless employed by her employer for a continuous period of at least one year ending with the effective date of termination of her contract of employment. However, there is nothing to prevent her pursuing her complaint (regardless of her length of service) if she is convinced that the real reason for her dismissal was an unlawful or inadmissible reason;

Additional maternity leave

In addition to her right to a minimum of 26 weeks' ordinary maternity leave, a woman who has been continuously employed for 26 weeks or more by the end of the 15th week before her EWC, is entitled to 26 weeks' additional maternity leave beginning on the day immediately following the day on which her ordinary maternity leave period ends. Furthermore, she has the right to return to work at the end of (or, subject to certain conditions, during) that additional maternity leave period.

Notification procedure

An employee who has the right to take additional maternity leave has no need to inform her employer in advance that she intends to take advantage of that right; nor need she inform her employer (as was the case under the previous regime) that she intends to exercise her right to return to work after her additional maternity leave period ends. As was explained earlier, the only advance notice she need give her employer (before the end of the 15th week before her EWC) is notice confirming that she is pregnant (with supporting documentation) and specifying the date on which she intends to start her maternity leave. Her additional maternity leave period commences automatically on the day immediately following the day on which her ordinary maternity leave period ends.

Contractual rights during additional maternity leave

The Maternity & Parental Leave etc Regulations 1999 (as amended) make it clear that an employee's contract of employment continues during her additional maternity leave period although not necessarily to the same extent as her contractual rights during her ordinary maternity leave period.
Regulation 17 of the 1999 Regulations states that, during her additional maternity leave, an employee is entitled to the benefit of her employer's implied obligation to her of trust and confidence and to any terms and conditions relating to:
1. notice to terminate her employment;
2. compensation in the event of redundancy; or
3. disciplinary and grievance procedures.
In short, if she is dismissed during her additional maternity leave, she must be paid her normal wages or salary during the notice period (or money in lieu of notice), as well as any accrued entitlement to holiday pay. If she is made redundant, she must also be paid any entitlement to statutory redundancy pay, plus any 'top up' payment by way of severance pay (to which she would otherwise be entitled but for her absence). If she is to be dismissed, or has a grievance against her employer, she is entitled to be treated in the same way as any other employee facing dismissal or intent upon pursuing any such grievance.
For her part, an employee intent on resigning during her additional maternity leave, must give her employer the prescribed notice to terminate her contract of employment; must not disclose to an unauthorised third party any confidential information concerning her employer's business affairs (trade secrets, pricing policy, marketing strategy, etc); must not accept any gifts or benefits in breach of her implied contractual duty of trust and confidence; and must not participate in any other business in competition with her employer.

Dismissal during additional maternity leave

Section 99 of the 1996 Act (supported by Regulation 20 of the now amended Maternity & Parental Leave etc Regulations 1999 (qv)) cautions employers that it is unlawful and automatically unfair to dismiss an employee (or select her for redundancy) during her additional (or ordinary) maternity leave period if the reason (or, if more than one, the principal reason) for her dismissal or selection is that she had given birth to a child, or because she had exercised any of her statutory rights in relation to pregnancy and childbirth (including her right to ordinary or additional maternity leave).
If an employee is dismissed during her additional period maternity leave (for a reason other than redundancy), it will be for an employment tribunal to decide whether her dismissal was fair bearing in mind that the tribunal is likely to question her employer's motives in dismissing her in absentia and his (or her) failure to follow the correct procedure when doing so. If the tribunal finds that the employee was dismissed for an unlawful or inadmissible reason, it will make a declaration to that effect and will order the employer either to reinstate or re- engage the employee in her old job or pay her an additional award of compensation (over and above the amount of the basic and compensatory awards of compensation for unfair dismissal)

Redundancy during additional maternity leave

An employee made redundant during her additional maternity leave period is entitled to the same consideration as an employee made redundant during her ordinary maternity leave period. In short, she is entitled to be offered suitable alternative employment beginning on the day immediately following the day on which her previous employment ended, and on terms and conditions of employment not substantially less favourable to her than those that would have applied had she continued to be employed in her original job

Right to return to work after additional maternity leave

When an employee returns to work after her additional maternity leave period, she is entitled to do so in the job in which she was employed before her ordinary maternity leave period began – unless it is not reasonably practicable for her employer to permit her to return to work in that job, in which case she is entitled to return to work in another job which is both suitable for her and appropriate for her to do in the circumstances. Whether she returns to work in her original job or in a 'suitable and appropriate' alternative job, she must be permitted to do so:
1. on a salary or wage (or rate of pay) not less favourable to her than the remuneration that would have been applicable to her had she not been absent from work at any time since the commencement of her ordinary maternity leave period;
2. with her seniority, pension rights and similar rights as they would have been if the period (or periods) of her employment prior to her additional maternity leave period were continuous with her employment following her return to work; and
3. otherwise on terms and conditions no less favourable than those that would have applied to her had she not been absent from work after the end of her ordinary maternity leave period (ibid. regulation 18).
An employee who takes a period of parental leave of four weeks or less, immediately after the end of her additional maternity leave, retains her right to return to work in her original job unless it would not have been reasonably practicable for her to have returned to that job at the end of her additional maternity leave period and it is still not reasonably practicable for her to do so. If she takes more than four weeks' parental leave immediately after the end of her additional maternity leave, she is entitled to return to her original job or, if that is not reasonably practicable, to a similar job on terms and conditions no less favourable to her than those to which she was entitled in her original job.

Exercise of right to return to work after additional maternity leave

An employee who intends to return to work at the end of her additional maternity leave period need do no more than turn up for work on the due date. However, if she intends to return to work early, that is to say, before the end of that period, she must notify her employer at least 28 days beforehand that she intends to return to work on that earlier date. If an employee's return to work is delayed because of illness or injury, she need do no more than inform her employer of that fact (in accordance with her employer's rules in relation to sickness absence) and provide the necessary evidence of incapacity.

Note

Employers should note that they no longer have the statutory right to delay an employee's return to work after childbirth (for whatever reason); nor do would-be- returning employees forfeit their right to return to work if illness or injury intervenes to prevent them doing so within four weeks of the notified date. Those provisions of the Employment Rights Act 1996 have long since been repealed.

If an employee returns to work early and unannounced, without having given the prescribed 28 days' advance notice, her employer has every right to send her home and to insist that she delay her return until those 28 days have elapsed or until the end of her ordinary maternity leave period, whichever occurs sooner. She has no right to be paid if she ignores her employer's instructions and remains at work during the notice period.

Failure to permit a return to work treated as a dismissal

An employee who is denied her statutory right to return to work after either of her ordinary or additional maternity leave periods will be treated in law as having been unfairly dismissed if her dismissal is solely or mainly attributable to the fact that she exercised her right to maternity leave or took advantage of the benefits of her terms and conditions of employment to which she was entitled during that leave. In short, her employer will need to satisfy an employment tribunal that he (or she) had a legitimate reason for dismissing the employee (unconnected with her having taken advantage of statutory maternity rights) and had acted fairly and reasonably in doing so.

If an employer can satisfy an employment tribunal that the employee's original job was no longer available because of redundancy and that he (or she) had acted fairly and lawfully in selecting her for redundancy – there being no suitable available vacancy to offer her, or that she had been offered suitable alternative employment by an associated employer which she had either accepted or unreasonably refused – her dismissal will be held to have been fair (ibid. section 81).

Note

If the evidence before an employment tribunal shows that the employee was selected for redundancy for an inadmissible reason (eg, because of her sex or for reasons connected with her having taken advantage of her statutory rights in connection with pregnancy or childbirth, including her right to maternity leave), her dismissal will be held to have been inadmissible and unfair (ibid. regulation 20(2)).

Finally, an employee who has been denied her right to return to work after additional maternity leave will not be held to have been unfairly dismissed:
1. if, immediately before the end of her additional maternity leave period (or immediately before her dismissal, if her additional maternity leave ended with her dismissal) the number of persons employed by her employer (including the employee herself, added to the number employed by any associated employer, did not exceed five; and
2. her employer (who may be the same employer or a successor) can satisfy the tribunal that it was not reasonably practicable either to permit her to return to work in her original job or to offer her suitable alternative employment or for an associated employer to offer her a job of that kind (ibid. section 96(2)).
As was indicated earlier, the alternative employment (or job) offered to an employee who has been denied her right to return to work in her original job, must involve work that is both suitable and appropriate for her to do (given her qualifications, experience and skills) and must be on terms and conditions of employment not substantially less favourable to her than those that would have applied had she been permitted to return to work in her original job. In short, she should enjoy the same or equivalent status or seniority, be employed in the same place (if not in the same department or section), receive the same or a comparable rate of pay, and be entitled to the same annual holidays, the same sickness benefits; and so on.

Written statement of reasons for dismissal

An employee who is dismissed (for whatever reason), either while pregnant or after having given birth (in circumstances in which her ordinary or additional maternity leave period ends by reason of the dismissal) must be provided by her employer with a written statement explaining the reasons for her dismissal – regardless of her working hours or length of service at the relevant time and regardless of whether she has asked to be issued with such a statement. Furthermore, the statement must be given or sent to the employee within 14 days of the date on which her dismissal took place (ibid. section 92(4)).
On a complaint to an employment tribunal, an employer who has refused or failed to provide the written statement, or has failed to do so within the prescribed 14 days, or provides a statement containing information that is inadequate or untrue, will be ordered by the tribunal to pay the employee a sum equivalent to two weeks' pay. Where appropriate, the tribunal will also make a declaration as to what it finds the employer's real reasons were for dismissing the employee – bearing in mind that a complaint arising out of an employer's failure to provide a written statement will very likely be heard at the same time as a complaint of unfair or unlawful dismissal (ibid. section 93).
The written statement of reasons for dismissal referred to in the previous paragraph is admissible in evidence in proceedings before a tribunal or court (ibid. section 92(5)).

Statutory maternity pay (SMP)

Summary

A pregnant employee who has been employed by her employer for a continuous period of at least 26 weeks by the end of the 15th week before her EWC, and has average weekly earnings of £77 or more per week – the current (2003/04) 'lower earnings limit' for NI contributions purposes – is entitled to be paid SMP for a period of up to 26 weeks during her ordinary maternity leave period. SMP is payable in weekly amounts only (a week, for these purposes, being a period of seven consecutive days, eg, Wednesday/Tuesday). Unlike statutory sick pay (SSP), there is no equivalent daily rate of SMP.
An employee's maternity pay period cannot begin before the Sunday of the 11th week before her EWC, unless she gives birth before the beginning of that 11th week, in which event it will start on the day after the day on which childbirth occurs. If a pregnant employee is absent from work wholly or partly because of a pregnancy or confinement, on or after the beginning of the fourth week before her EWC (but not later than the week immediately following the week in which childbirth occurs) the first week of her maternity pay period is the period of seven consecutive days that begins on the day immediately following the day on which she is so absent.
The period during which SMP is payable is referred to as the 'maternity pay period'. An employee's right to be paid SMP persists if she leaves her employment at any time after the beginning of the 11th week before her EWC and before the start of her maternity pay period, but not later than the week immediately following the week in which she gives birth. In that situation, the first week of her maternity pay period is the week after the week in which her employment ends. In this situation only, a 'week' is the period of seven consecutive days that begins on a Sunday and ends on the following Saturday.
An employee with eight or more weeks' continuous service, who is dismissed by her employer solely or mainly for the purpose of avoiding liability for SMP, will retain her right to SMP if, but for her dismissal, she would have completed 26 weeks' service by the end of the 15th week before her EWC (per regulation 3, Statutory Maternity Pay (General) Regulations 1986 (discussed later in this section)).

SMP rights on resignation or dismissal

The maternity pay period for an employee entitled to SMP, who resigns or is dismissed (for whatever reason) after the beginning of the 15th week before her EWC, but before the beginning of the 11th week before her EWC, begins on the Sunday of that 11th week, not on the day immediately following the day previously notified as the day on which she intended her maternity leave period to begin.
The maternity pay period for an employee entitled to SMP, who resigns or is dismissed, on or after the beginning of the 11th week before her EWC but before the day previously notified as the day on which she intended to begin her maternity leave (the notified date), begins on the day immediately following the day on which her employment came to an end.
A woman who resigns or is dismissed on or after the beginning of her maternity pay period must continue to be paid SMP by her (former) employer until the payment period ends. However, if she starts work for another employer during what remains of her maternity pay period, she must notify her former employer of that fact – in which event, her maternity pay period ends with the last weekly payment before the date on which she started work with that other employer.

SMP rates

There are two rates of SMP: the higher rate and the lower rate. The higher rate, which is equal to nine-tenths of an employee's average weekly earnings (see below), is paid for the first six weeks of the maternity pay period. The lower rate is payable for the remainder of that period, but not for more than 20 weeks. From 6 April 2003, the lower rate of SMP is £100 a week or 90 per cent of the employer's average weekly earnings, whichever is the lesser of those amounts.

Note

An employer can recover 92 per cent of the gross amount of SMP due and paid to an employee by deducting the amount in question from the total of the employers' and employees' Class 1 national insurance contributions payable (together with income tax) to the Inland Revenue accounts office at the end of each month. If he (or she) is entitled to Small Employers' Relief, he can recover 100 per cent of the SMP due plus a further 4.5 per cent in compensation. See Recovering SMP below.

As is the case with payments under the employers' statutory sick pay (ESSP) scheme, all payments of SMP are subject to the deduction of income tax (PAYE) and National Insurance Contributions (NIC). Attachment of earnings orders do not apply to payments of SMP, but other amounts normally deducted from an employee's pay, such as pension contributions, are permitted.
SMP should be paid on a normal payday, using the method of payment normally used for paying wages and salaries. SMP must not be paid in kind. Nor may it be paid in the form of board or lodgings or by way of a service. If an employee normally collects her wages in cash (eg, from the wages office), she should talk to her employer about a more convenient way of receiving her SMP, or arrange to have a relative or friend collect the money on her behalf.

Qualifying conditions for SMP

To qualify for SMP, an employee:

must have been employed (or be deemed to have been employed) by her employer for at least 26 weeks up to and into the 15th week before her EWC;
must have 'average weekly earnings' equal to or higher than the current earnings threshold for SMP purposes (ie, £77 a week) – which average weekly earnings are to be calculated over the eight- week period ending with her last payday before the end of that 15th week;

must either still be pregnant at the beginning of the 11th week before her EWC or have already given birth.

Note

If an employee's baby is stillborn before the beginning of the 16th week before the EWC, the mother will not be entitled to SMP (but should qualify for either or both of statutory or occupational sick pay). But, if her baby is born (alive or dead) after the beginning of that 16th week, she will still qualify for SMP if she has average earnings equal to or higher than the then current 'lower earnings limit' for National Insurance contributions and would have satisfied the 26-week rule but for the premature birth.

To exercise her right to be paid SMP during her absence on maternity leave, an employee must serve notice on her employer (in writing, if he insists) of the date from which she expects his liability to pay her SMP to begin, so long as she does so at least 28 days before that date or, if that is not reasonably practicable, as soon as is reasonably practicable.

The 26-week rule

The first and, perhaps, most important condition for entitlement to SMP is the so-called '26 week rule', which states that a pregnant employee will not qualify for SMP unless she has been (or is deemed to have been) employed for a period of at least 26 consecutive weeks up to and into the 15th week before the expected week of her confinement (the 'qualifying week').

Note

If there has been a change of employer or if an employer's business or undertaking is sold as a going concern, the new owner (employer) inherits the contracts of employment of the persons employed in that business or undertaking at the time of the transfer or sale (vide regulation 5, Transfer of Undertakings (Protection of Employment) Regulations 1981). He also inherits the former employer's duty to pay or to continue to pay SMP to an employee who satisfies the qualifying conditions for the payment of SMP (or would have done so had the transfer or sale not intervened). Regulation 14 of the Statutory Maternity Pay (General) Regulations 1986 provides that, when a business is transferred as a 'going concern, an employee's employment with her former employer (the transferor) must be treated (for SMP purposes) as continuous with her employment with her new employer (the transferee). When deciding whether or not an employee is entitled to SMP, the transferee employer must (if need be) take into account her earnings and period of employment with her former employer.

Certain breaks in employment can count as periods of employment for SMP purposes. If, for example, an employee had previously resigned or been dismissed because of ill-health or injury, each of the intervening weeks of absence will count as a period of employment so long as she is re-employed by the same employer (or a successor of his) within 26 weeks of that resignation or dismissal. The same 'rule of thumb' applies to gaps in employment occasioned by the seasonal nature of an employee's work or by some unexpected occurrence (such as a fire or flood) that results in the termination of her employment – so long as she has been given to understand that she would be re-hired (and is re- hired) at the start of the new season or on completion of renovations, or whatever
If an employee has been unfairly dismissed and subsequently reinstated or re-engaged, the period between the date on which her dismissal took effect and the date on which she was reinstated or re- engaged counts as part of her period of continuous employment for SMP purposes.
A week during the whole or part of which a woman does no work because of a stoppage of work due to a trade dispute does not break the continuity of her employment. However, that week must be discounted when computing her total period of employment for SMP purposes – unless she can prove that at no time did she have a direct interest in the trade dispute in question (regulation 13, Statutory Maternity Pay (General) Regulations 1986). For example, a pregnant employee, who had otherwise worked for her employer for, say, 28 weeks by the end of the 15th week before her EWC, would forfeit her right to SMP during her maternity leave period if her employer 's records reveal that a trade dispute had prevented her from working during three of those 28 weeks, unless she can satisfy her employer (or, indeed, an Inland Revenue 'decision-maker') that she had no direct interest in the dispute in question. However, if not entitled to SMP, she might well qualify for the state maternity allowance (MA) discussed at the end of this section.
There are two points to be emphasised in relation to the 26-week rule. First, a pregnant employee will not satisfy that rule (and will not, therefore, qualify for SMP) unless she continues to be employed by her employer up to and into the 15th week before the expected week of childbirth. If she is employed for at least one day in that 15th week, the whole of that week will count in computing her length of service for SMP purposes. She will also satisfy the 26-week rule if she gives birth (unless her child is stillborn within the first 24 weeks of pregnancy) before the beginning of that week if, but for that event, she would have completed 26 weeks' service by the end of that 15th week. However, she will not be entitled to SMP if she resigns or is dismissed before the beginning of the 15th week, regardless of her length of service at that time.
To qualify for SMP an employee must not only satisfy the 26-week rule but must also have average earnings equal to or higher than the current earnings threshhold for SMP purposes. From 6 April 2003, that threshold is £77 per week.
For SMP purposes, the expression 'earnings' means a woman's gross wages or salary derived from her employment, plus any and all overtime payments, bonuses, fees, commission, holiday pay, payments received under an occupational sick pay scheme, and statutory sick pay (SSP). Earnings in this context also include any sum payable by way of arrears of pay, or remuneration under a protective award in pursuance of an order by an employment tribunal under the provisions of the Employment Rights Act 1996. For a more exhaustive definition, the reader should consult the current DSS leaflet NP15: Employer's Guide to National Insurance Contributions.

If an employee is paid a salary of £10,000 a year, her employer should not have to reach for his pocket calculator to confirm that she earns an average of £77 or more a week. A calculator will only be needed if an employee's gross weekly earnings vary with the amount of work done and occasionally dip below that 'lower earnings limit'. Average weekly earnings are calculated by adding together the gross amounts paid to an employee over the period of eight consecutive weeks up to and including the last payday immediately preceding the end of the 15th week before the expected week of childbirth.

Note

If an employee gives birth before or during the 15th week before the expected week of childbirth, her average weekly earnings must be calculated over the period of eight weeks ending with the last payday before the baby was born.

If an employee is paid weekly on or about the same day of the week, her average weekly earnings will be one-eighth of the aggregate of the gross amount paid on each of the eight paydays preceding the Saturday of the 15th week before her expected week of childbirth. If she is paid monthly (eg, on or about the last working day of the month), her average weekly earnings will be calculated (i) by adding together the gross amount paid to her on the last payday before the end of that 15th week and all gross payments made to her during the eight weeks preceding that payday, (ii) then by multiplying the total by six, and finally (iii) by dividing the resultant figure by 52.

Excluded categories

An employee is excluded from entitlement to SMP, whatever her earnings or length of employment, if, at any time during the week in which her maternity pay period begins she is in (or is taken into) 'legal custody' (that is to say, is detained by the police, arrested, or in prison).
Also excluded from SMP is any foreign-going mariner employed by a UK employer while under contract for which her employer pays a special rate of National Insurance contributions.
The steps to be taken when an employee is excluded from SMP are outlined in Procedure when SMP stops later in this section. It is important to stress that, once an employee is excluded from SMP, the exclusion persists throughout the remainder of the relevant maternity pay period.

When SMP must stop

In the normal course of events, an employer must stop paying SMP to an employee once she has been paid her full 26-week entitlement or when she returns to work, whichever occurs sooner. As SMP payments are for calendar weeks only, payments must end with the last weekly payment immediately preceding the date on which the employee returned to work. If an employee occasionally interrupts her maternity pay period to help out in the office (or wherever) for a day or two (in one week) or for several days (spanning two or more weeks), she cannot lawfully be paid SMP for any such week. Although SMP payments can restart for weeks in which she does no work, her maternity pay period cannot be extended to compensate for the loss of SMP for any intervening weeks.
There are a number of other circumstances that will bring an abrupt end to SMP payments – whether or not the employee in question has received her maximum SMP entitlement. Thus, SMP payments must stop (and stop altogether):
1. if the employee dies – in which event her last weekly payment of SMP will be for the payment week ending with the week in which death occurred;
2. if she is taken into legal custody – in which case, her employer's SMP liability ends with the last weekly payment before the date on which she was taken into custody;
3. if she starts work for another employer during her maternity pay period – in which event, her (former) employer's liability to pay SMP, ends with the last weekly payment immediately preceding the day on which her new employment began.
It follows that an employee, who has not exhausted her full entitlement to SMP, must inform her (erstwhile) employer if she starts work with another employer, or if she is taken into legal custody during her maternity pay period. A woman is said to be in legal custody if she is arrested by the police, but not if she is voluntarily helping the police with their enquiries.

Procedure when SMP stops: Form SMP1

Employers who cannot pay (or are obliged to cease paying) SMP to an employee because she is either in an excluded category or is in (or has been taken into) legal custody, must complete and sign form SMP1 (available from local Benefits Agency offices) and send it to the employee within seven days of deciding that she is not entitled to SMP or within seven days after the end of the week for which the last payment of SMP was made. If they have not already done so, they must also return the original of the employee's Certificate of Expected Confinement (Form Mat B1 or its equivalent). The employee will need that certificate in support of her claim for the state maternity allowance (MA) discussed at the end of this section. The employer should first make photocopies of Forms SMP1 and Mat B1, to be kept on on file for a period of at least three years from the end of the tax year in which they were issued.

Disagreements between employers and employees

The very complexity of the SMP scheme suggests that employers have a moral obligation (if not an implied duty in law) to ensure that female employees are aware of their rights under that scheme. To encourage or pressurise a pregnant employee into resigning, before she has satisfied the 26-week rule, could be construed by an adjudication (or decision- making) officer of the Inland Revenue (or, indeed, by an employment tribunal) as an attempt by her employer (albeit fruitless) to avoid liability for SMP. A dismissal for that reason alone would also be self-defeating. In either situation, the employer would almost certainly be ordered to pay SMP to the employee or face prosecution and a heavy fine.

Instruction and training

In organisations employing sizeable numbers of women, the personnel and training departments may take it upon themselves to conduct a series of in-house seminars – not only for the benefit of pregnant employees and those of 'reproductive capacity' (to borrow a phrase from the Management of Health & Safety at Work Regulations 1999), but also as a means of ensuring that managers and supervisors are well- placed to counsel (and not inadvertently to mislead) such employees about their maternity rights should they become pregnant, and to instruct them about the correct procedures for securing those rights. In smaller companies (that may or may not have a personnel function), the company secretary or site manager should nonetheless encourage pregnant employees to discuss their situation with him (or her) in confidence to determine what they need to do to secure and protect those rights.

Explanation and written statement

If an employer is of the opinion that a particular employee does not qualify for SMP, or that SMP payments must stop at a certain point during an employee's maternity pay period (eg, before she had been paid her full entitlement to SMP), he should explain his reasons to that employee (preferably in person) before issuing Form SMP1. There may, for instance, be disagreement about the method used to calculate the employee's average weekly earnings or her total period of employment, and so on. Such issues may be explored and possibly resolved using normal grievance procedures. But if, in the event, the employee is still unhappy about her employer's decision, she has the legal right to insist on a written statement containing the following particulars:
- the reasons why the employer considers that the employee is no longer entitled to SMP or why SMP payments must end;
- the weeks when SMP can be paid, and the weeks for which the employer disclaims any liability to pay SMP; and
- the amount (if any) of SMP payable during specified weeks.
An employer must respond to the employee's request for a written statement within a reasonable time. Given that he (or she) must issue Form SMP1 not later than seven days after his decision not to pay (or to cease paying) SMP, it is suggested that he would be acting unreasonably if he failed to provide an accompanying written statement within that same seven-day period.

Intervention of 'decision maker'

If, having received a written statement from her employer that he is unable to pay (or is about to cease paying) SMP, the employee concerned is still unhappy about his (or her) decision, she may apply to an officer of the Inland Revenue (the 'decision maker') and ask for her complaint to be investigated.

Note

An employer is not free to approach an officer of the Inland Revenue concerning his (or her) decision to pay or not to pay SMP. Such an approach can only be made by an employee or by the Secretary of State (per the Statutory Sick Pay & Statutory Maternity Pay (Decisions) Regulations 1999.

On receipt of a complaint about the amount of SMP paid, or about an employer's decision not to pay (or to cease paying) SMP, the decision maker will ask for further written particulars from both parties, together with any evidence to support their respective points of view. However, neither party will be asked to appear before the officer. Nor will there be an exchange of evidence between the parties unless the officer's decision is appealed to a Social Security Appeals Tribunal. The officer will convey his (or her) decision to both the employer and the employee.
If it is decided that SMP should be (or should have been) paid, the employer must comply with that decision within a specified period – unless he (or she) decides to appeal. If it is decided that SMP is not payable (or that the amount paid is correct), the employee may either accept that decision or register an appeal with the same appeals tribunal. The procedure for doing so (and the time limits for registering an appeal) will accompany the decision maker's decision.

Appeals

In most cases, the decision of the Social Security Appeals Tribunal will be final and binding on both parties. In some circumstances there will be a further right of appeal to a Social Security Commissioner. An employer who fails or refuses to pay SMP, when ordered to do so, is guilty of an offence and liable on conviction to a fine of up to £1,000.

Recovering SMP

Briefly, an employer can recover 92 per cent of the gross amount of any SMP due and paid to a qualified employee by deducting that amount from the total amount of employees' and employers' National Insurance contributions payable (together with income tax) to the Collector of Taxes within 14 days of the end of each income tax month. An employer who qualifies for Small Employer's Relief may recover 100 per cent of the gross amount of SMP payments made, plus a further 4.5 per cent as compensation for National Insurance contributions paid on SMP.

Note

An employer qualifies for Small Employer's Relief in 2003/04 if he (or she) paid less than £40,000 total gross Class 1 National insurance contributions in 2002/03. The figures are routinely reviewed/adjusted each year.

While an employer is free to recover 92 per cent or more of the SMP he (or she) has paid, either at the end of the tax month in which the SMP was paid or at the end of any subsequent tax month, he should endeavour to recover the full amount due by the end of the relevant tax year. If he is unable to do so, he should seek the advice of his local Benefits Agency office before taking any action to recover the amount outstanding.
Any reader directly involved in the recovery of SMP will find the procedure fully explained in the Employer's Helpbook (Ref. E15(2003)) copies of which are available on request from the Employer's Orderline on 0845 7 646 646.

Mandatory and voluntary SMP records

The Statutory Maternity Pay (General) Regulations 1986 (as amended) require employers to maintain specified records associated with the payment of SMP. Furthermore, those records must be kept for a period of at least three years after the end of the tax year to which they refer. The penalty for non-compliance is a fine of up to £1,000, plus a further fine of up to £40 for each day of continued non-compliance.
SMP records that must be maintained are:
- a record of the date notified by a pregnant employee as being the date on which she intends her maternity leave period to begin;
- a record of any week (or weeks) within the maternity pay period for which SMP was not paid, and the reasons for non-payment; and
- the original of Maternity Certificate Form Mat B1 (or its equivalent) provided by an employee who has been paid SMP;or a copy of that certificate (or its equivalent) if the original was (necessarily) returned to the employee, eg when the employer's liability to pay SMP ended.
An employer may keep SMP records in whatever form he chooses, so long as they are conveniently accessible and contain the required information. However, the Inland Revenue has produced an information sheet (Form SMP2) which most employers will find helpful. Supplies of these forms are available on request from the Employer's Orderline on 0845 7 646 646.
Inland Revenue inspectors have the right to enter an employer's premises and to insist on the production of SMP records in pursuit of their investigations into the payment (or non-payment) of SMP. It is an offence for an employer to fail to maintain or produce such records. The production of false or 'doctored' records could lead to prosecution and a fine of up £5,000 and/or imprisonment for a term of up to three months.

Suggested additional records

An employer has the right to decide how a pregnant employee should notify him (or her) about her intended absence on maternity leave. If he wants notification to be given in writing (perhaps on a form he has designed and provided for that purpose), it follows that he must see to it that his (female) employees know and understand what procedure to follow should they become pregnant. Furthermore, he should keep details of his 'notification' rules (and evidence as to how those rules were promulgated) on file, to be produced for inspection by Inland Revenue inspectors should an employee decide to challenge her employer's decision not to pay SMP.
Other useful records will include the employer 's calculation of an employee's average weekly earnings for SMP purposes and details of the periods of employment (including employment with a previous or associated employer) which were taken into account when determining an employee's entitlement (if any) to SMP.

Dealing with mistakes

If an employer has paid too much or too little SMP; or pays SMP to an employee who is not entitled to receive it; or mistakenly issues form SMP1 when SMP should have been paid; or makes too great or too small a deduction from his end of month NIC payments to the Collector of Taxes, he should act quickly to remedy the situation.
If an employer has overpaid SMP, he (or she) may or may not consider it appropriate to recover the overpayment from the employee herself. But if, as seems likely, he has deducted too great an amount from moneys otherwise payable to the Collector of Taxes at the end of the relevant tax month, he must restore the amount overpaid at the end of the following tax month. If the error is not discovered until after he has sent his end-of-year return to the Inland Revenue, and the return is no longer held by his local tax office, he should contact his local Social Security office for advice on what to do next.
If an employer has underpaid SMP to an employee, he (or she) need not raise the matter with the employee's local DSS office unless he has also incorrectly issued Form SMP1. However, the underpayment must be made good to the employee at the earliest opportunity.
If an employer discovers that he (or she) has mistakenly withheld SMP from any employee (having already issued her with Form SMP1), he should notify her of his error and commence SMP payments immediately. At the same time, he must contact the employee's local benefits office to prevent (or halt) any payments of the state maternity allowance (MA).
SMP payments should ordinarily be made on the employee's usual pay day. While there is nothing in law to prevent an employer paying the full amount of SMP due in a lump sum at the beginning of an employee's maternity pay period, he (or she) could face problems recovering part of that amount if the employee dies or starts work with another employer before the expected 26-week maternity pay period has run its course. Whether or not an employer in such a situation manages to retrieve the amount of SMP overpaid, he will still be liable to pay back to the Collector of Taxes the amount wrongly deducted from his monthly NIC payments.

Maternity Allowance (MA)

The State Maternity Allowance (MA) is a weekly benefit payable for a period of up to 26 weeks to employees who do not qualify for SMP. The allowance is also available to self-employed women and to women who have recently been employed. There are two rates of MA. To qualify for MA, a woman must have been employed or self-employed in at least 26 of the 66 weeks ending with the week before her EWC (the test period). There are two rates of MA: the standard rate and the lower rate. The standard rate is £100 a week (or 90 per cent of average weekly earnings, if these are less than £100) payable to a woman with average earnings at least equal to the current MA threshhold limit of £77 a week. Women whose average weekly earnings are less than £77, but at least £30, will receive 90 per cent of their average weekly earnings during that 26-week period, subject to a maximum of £100 a week. A woman who does not qualify for MA, may be entitled to a maternity payment from the Social Fund (using Form SF 100).
MA is not payable until an employee either stops work or begins her ordinary maternity leave – bearing in mind that an employee who does not qualify for SMP does not thereby forfeit her right to ordinary or additional maternity leave. An employee who is in receipt of MA must notify the DSS if she is taken into legal custody, as this may affect her continued entitlement to the allowance.

SSP and SMP

As was indicated earlier in this section, an employee cannot legally be paid statutory sick pay (SSP) and SMP in respect of the same week. Unlike SSP, which can be paid for a single qualifying day of sickness absence, SMP is payable in respect of whole weeks only. Accordingly, once the maternity pay period begins, payments of SSP must end. The same rule applies once an employee who is not entitled to SMP begins her ordinary maternity leave period (in respect of which period, she might well qualify for the MA.

Lock-Outs

noreply@blogger.com (Unknown) — Sat, 05 Mar 2011 15:57:00 +0000

Key points

Section 235(4) of the Employment Rights Act 1996 defines lock-out as meaning 'the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute, done with a view to compelling those persons, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment'.
Section 238 of the Trade Union & Labour Relations (Consolidation) Act 1992 cautions that an employment tribunal will not entertain a complaint of unfair dismissal from any employee if, at the time of his (or her) dismissal, his employer was conducting a lock-out affecting him and other workers unless the employee can show that one or more relevant workers had not been dismissed, or that one or more of them had been offered their jobs back within three months of his own dismissal, but that a similar offer had not been made to him.
This means, in effect, that the only way an employer can avoid a complaint (or complaints) of unfair dismissal in such circumstances is to dismiss every worker involved in the dispute that prompted the lock-out and not to re-employ any of those workers within three months of the date on which the last worker was dismissed.
However, it must be remembered that, in order to bring a complaint of unfair dismissal, an employee must have been employed for a continuous period of one year or at the effective date of termination of his (or her) contract of employment. He must also have been under normal retiring age at that time. There are, on the other hand, circumstances in which an employee can pursue such a complaint regardless of his or her age or length of service at the material time. The meaning of the terms 'effective date of termination' and 'normal retiring age' are also explained in that section.

Lock-outs and continuity of employment

Absence from work because of a lock-out does not break the continuity of a period of employment. However, days 'lost' because of a lock-out (ie, the number of days lost between the last working day before the lock-out began and the day on which work was resumed) must be discounted when computing an employee's total period of continuous employment. This is done by postponing the beginning of the employee's period of continuous employment (that is to say, the date on which employment began) by the number of days falling within that intervening period (1996 Act, sections 211(3) and 216(3)).

Lay-Offs and Short-time working—Lock-outs

noreply@blogger.com (Unknown) — Tue, 01 Mar 2011 14:34:00 +0000

Lay-Offs and Short-Time Working

Key points

In some situations, an employer will prefer to lay-off his employees or place them on short-time working rather than make them redundant. One or other of those options will usually be considered when the employer is in financial difficulties (or has related business problems, such as the non-delivery of essential raw materials) and believes that those problems are likely to be short-lived.
However, whatever his difficulties, an employer does not have the right either to lay-off any employee or keep him (or her) on short-time working unless there is an express term to that effect in the employee's contract of employment. If he takes unilateral action (that is to say, in the absence of any such express term), he is in breach of contract and could force the employee to resign and pursue a complaint of unfair constructive dismissal (including a claim for damages for breach of contract).
There is, of course, nothing to prevent an employee agreeing to accept a cut in pay or a reduction in working hours if persuaded by his employer that the only other alternative is redundancy. But that would be a matter for discussion and formal agreement.

Meaning of 'lay-off' and 'short-time working'

An employee will be held to have been laid-off by his (or her) employer for a week, if:
1. his contract of employment states that he will be paid only if he is provided with work of the kind that he is employed to do; but
2. he earns no pay at all in respect of that week because his employer has not provided him with any such work to do.
An employee will be treated as having been kept on short-time working for a week if his employer gives him some work to do during that week (being work of the kind that he is employed to do), but the money he earns as a result is less than half a week's pay (section 147, Employment Rights Act 1996).

Guarantee payments

In the absence of any term in an employment contract or collective agreement, that provides for a fall-back or guaranteed minimum payment on such occasions, an employee who is not provided with work throughout a day on which he (or she) is normally required to work may nonetheless be entitled to be paid a statutory guarantee payment of a specified minimum amount for each of a maximum five workless days in any period of three consecutive months. But, to qualify for a guarantee payment, an employee must have been employed for a continuous period of at least one month ending with the day immediately preceding the relevant workless day.

Lay-offs, short-time working and redundancy

An employer may face a claim for a statutory redundancy payment if he repeatedly lays off one of his employees or keeps him (or her) on short-time working (even if he has the contractual right to do so or the employee in question has agreed to those arrangements). Section 148(2) of the 1996 Act (qv) states that an employee who is laid off or kept on short-time working for four consecutive weeks (or for a series of six or more weeks, of which not more than three were consecutive, within a period of 13 weeks) – discounting any weeks where the lay-off or short-time was attributable to a strike or lock-out – may write to his employer announcing his intention to claim a redundancy payment. However, he must do so not later than four weeks after the end of the last week on which he was laid off or kept on short-time working. He must also (either at the same time or not later than three weeks afterwards) give his employer one week's written notice of his intention to terminate his employment (or such longer period of notice as he is required to give under his contract of employment) (ibid. section 150).
When served with an employee's written notice of intention to claim a redundancy payment, an employer may respond in one of two things. He may:
1. either dismiss the employee and face the likelihood of a claim for a redundancy payment arising out of that dismissal; or
2. write to the employee within the next seven days declaring his intention to contest any liability to pay him (or her) a redundancy payment and inviting him to withdraw his notice of intention to claim.
However, the employer would be ill-advised to serve the counter- notice in (b) above unless he reasonably expects to provide the employee in question with at least 13 weeks of employment (during which the employee would not be laid off or kept on short-time working) beginning not later than four weeks after the date on which the employee served his notice of intention to claim. But if, during that four-week period, the employee is again laid off or kept on short-time working for each of those weeks (discounting any weeks where the layoff or short-time was attributable to a strike or lock-out), it will be presumed without more that the employer is (or was) unable to comply with his commitment to provide those 13 consecutive weeks of uninterrupted employment (ibid. section 152).
If an employee declines to withdraw his notice of intention to claim (in spite of having received a counter-notice from his employer contesting any liability to pay him a redundancy payment), he must (if he has not already done so) write to his employer within the next three weeks terminating his employment by a week's notice or by such longer period of notice as he is required to give under his contract of employment (ibid).
In the final analysis, it will be for an employment tribunal to decide whether or not an employee, who has terminated his employment in the circumstances described above, is entitled to a redundancy payment.
It should be pointed out that a redundant employee will not qualify for a statutory redundancy payment unless employed for a continuous period of two or more years (excluding any period of employment that began before his or her 18th birthday) and under normal retiring age or 65 (whichever is the later) at the effective date of termination of his contract of employment.

Jury Service

noreply@blogger.com (Unknown) — Thu, 24 Feb 2011 17:31:00 +0000

Key points

Section 1 of the Juries Act 1974 (as amended by the Criminal Justice Act 1988) states that 'every person shall be qualified to serve as a juror in the Crown Court, the High Court and county courts and be liable accordingly to attend for jury service when summoned under this Act, if:

he is for the time being registered as a parliamentary or local government elector and is not less than eighteen nor more than sixty-five years of age; and
he has been ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man for any period of at least five years since attaining the age of thirteen,

but not if he is for the time being ineligible or disqualified for jury service'.

This means, in effect, that every person between the age of 18 and 65, who is on the electoral roll (and not otherwise ineligible or disqualified), may be summoned to attend as a juror in court proceedings. Furthermore, he (or she) must attend in court for as many days as may be directed in the summons.

Persons excused, ineligible or disqualified from/for jury service

The following persons may be excused from jury service:

any person who can satisfy the court that he (or she) has served on a jury at any time during the preceding period of two years;
any person who, on account of physical disability or insufficient understanding of English, is considered unlikely to act effectively as a juror; and
any person who can satisfy the court that there is good reason why he (or she) should be excused from attending.

There are also persons who are excusable as of right. These are:

peers and peeresses, members of the House of Commons, officers of the House of Lords, and officers of the House of Commons;
full-time serving members of any of Her Majesty's naval, military or air forces (including any Voluntary Aid Detachment serving with the Royal Navy); and
medical practitioners, dentists, nurses, midwives, veterinary surgeons and veterinary practitioners, and pharmaceutical chemists, if they are actually practising their respective professions and are registered, enrolled or certified under the enactment relating to those professions.

Persons ineligible for jury service include:

barristers or solicitors, whether or not in actual practice as such; solicitors' articled clerks, barristers' clerks and their assistants, legal executives in the employment of solicitors, and others (including judges and justices of the peace) employed by the judiciary or concerned with the administration of justice;
the clergy (including avowed members of any religion order); and
any person who suffers or has suffered from mental illness, subnormality, severe subnormality or a psychopathic disorder.

Also disqualified from jury service is any person who has, at any time, been sentenced in the United Kingdom, the Channel Islands or the Isle of Man, to custody for life or to a term of imprisonment or youth custody for five years or more; or who, at any time in the last 10 years, has served any part of a sentence of imprisonment or detention (being a sentence for a term of three months or more), or been detained in a youth custody centre.

Offences and penalties

Any person who fails to comply with a summons for jury service, or who is unfit for service by reason of drink or drugs, shall be liable to a fine not exceeding £1,000, unless, in the case of a failure to comply, he (or she) can show some reasonable cause for that failure. A person who makes a false representation, or gives false information, with the intention of evading jury service, is liable on summary conviction to a fine of up to £5,000. A person who serves on a jury when disqualified is liable to a fine of up to £1,000.

Payment for jury service

A person who serves as a juror is entitled to receive payments for travelling and subsistence; and an allowance for loss of earnings or social security benefit (ibid. section 19).

At present (2003), the following allowances are payable:

full bus and tube fares; second class rail fares; and taxi fares (if no public service transport is reasonably available);
if a private motor car is used, a mileage allowance of a maximum 25.3p per mile (each way), although this may increase to 38.4p per mile if use of a private car results in a substantial saving in time;
parking fees necessarily incurred by a juror who travels in his (or her) own car (unless it would have been cheaper for him/her to have used public transport);

Note

If fellow jurors are carried as passengers in the same car, a supplement of 2p per mile is payable in respect of the first passenger and 1p per mile for each additional passenger.

if a juror travels by private motorcycle, he is entitled to a mileage allowance of 25.3p per mile (regardless of engine capacity) or 26.4p per mile if using a motorcycle saves time;

plus:

a subsistence allowance to meet the extra expenses of meals and other incidental expenses incurred while attending court – the amount of which will depend on the length of time for which a juror is necessarily away from his or her home or place of business, as follows:

not exceeding 5 hours £2.22

between 5 and 10 hours £4.51

more than 10 hours £9.86

a loss of earnings or benefits allowance of £26.32 a day if a juror loses earnings, or social security benefits or has other expenses during a part of a day that is up to and including four hours in the first 10 days of jury service, or £52.63 a day during a part of a day that is up to and including four hours on the 11th and subsequent days of jury service;

or:

a loss of earnings or benefits allowance of £52.63 a day if a juror loses earnings, social security benefits or has other expenses during a part of a day that is more than four hours in the first 10 days of jury service, or £105.28 a day during a part of a day that is more than four hours on the 11th and subsequent days of jury service.

Note

A juror claiming a loss of earnings or benefits allowance must produce a certificate completed and signed by his or her employer or local benefit office confirming the loss of earnings or benefits.

An allowance is also payable in respect of overnight accommodation – £72.58 a day, if the accommodation is within a five-mile radius of Charing Cross in London; and £66.91 a day, if elsewhere.

National Insurance contributions

An employee, whose earnings during jury service fall below the 'lower earnings limit' for the payment of National Insurance contributions, will be entitled to NI contribution credits for each week or part-week in which that situation arises – as if his (or her) earnings were equal to that lower limit. The allowances described above do not count as 'earnings' for this purpose. To apply for those NI credits, the juror must write to his local social security or benefit office before 1 January of the year immediately following the end of the tax year in which the jury service occurred. These credits are not available to married women and widows who have elected to pay reduced NI contributions.

Duties of employer

An employer is under no legal obligation to continue to pay an employee his (or her) normal wages or salary during any absence from work on jury service. But it would be unwise of an employer to dismiss an employee who is necessarily absent from work for that reason – given that the employee is under a legal obligation to comply with a jury summons and that the reason for his absence from work could not normally be said to amount to 'some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held' (section 98(1)(b) of the Employment Rights Act 1996).
Even if the employee is (or was) a key worker, the employer would need to satisfy an employment tribunal that he had acted reasonably in treating the employee's absence on jury service as a reason for dismissing him (or her). The tribunal might well need answers to the following questions: How long was the employee likely to be absent from work? Could not the employer have found a suitable replacement to cover for the employee during his absence? Did the employer write to the court asking for the employee to be excused from jury service? And so on.

Job Title—Jury Service

noreply@blogger.com (Unknown) — Mon, 21 Feb 2011 10:56:00 +0000

Job Title

Key points

The written statement of terms of employment issued to a new employee (as well as any amended statement issued to an existing employee) must contain – in the principal statement itself – particulars of 'the title of the job which the employee is employed to do or a brief description of the work for which the employee is employed' (section 1(4)(f), Employment Rights Act 1996).
Section 235(1) of the 1996 Act defines 'job', in relation to an employee, as meaning 'the nature of the work which he is employed to do in accordance with his contract and the capacity and place in which he is so employed'.
It follows that a newly-recruited employee (as well as one who has been newly-promoted or transferred) has the legal right to be told about the work he (or she) has been employed to do, his duties and responsibilities, the limits of his authority, the place where he works, and his duty (if any) to accept a transfer from one department or location to another when instructed to do so by his employer.

Job description?

Although an employer is not duty-bound to provide his employees with job descriptions as such, he has little to gain by denying an employee his (or her) implied contractual right to be informed about the nature and extent of his duties and responsibilities. Furthermore, such an employer could be prosecuted under section 2(2)(c) of the Health & Safety at Work etc Act 1974 for failing in his general duty to provide his employees with the information, instruction and training they need to ensure their health and safety at work. He could also be held vicariously liable under section 36 of that Act for an offence unwittingly committed by an employee who was misinformed (or not informed at all) about the true nature of his job and the precautions needed to carry out his duties safely. Section 2 of the 1974 Act is reinforced by the Management of Health & Safety at Work Regulations 1992 which, inter alia, requires employers to assess the risks to the health and safety of their employees and to provide them with 'comprehensible and relevant' information on those risks and the preventive and protective measures that have been put in place to minimise or eliminate those risks.

Dismissal for misconduct

The employee who is dismissed for misconduct may be able to persuade an employment tribunal that he (or she) had been misinformed about the true nature of his job and had never agreed to undertake the additional duties demanded of him at the time of his dismissal. The redundant employee may claim that there had been no cessation or diminution of the work he was employed to do, or that he was unfairly selected for redundancy, given that other persons similarly employed were not made redundant. The female employee, who has exercised her right to return to work after childbirth may complain that, on her return to work, she was relocated in a job which bore little (if any) resemblance to the type of work she had been doing (and had been employed to do) before her maternity leave period began. There are other examples in which the nature and capacity of an employee's job will be an important and, in many cases, determining factor – on a reference or complaint concerning a breach of an employee's statutory rights or in proceedings arising out of an alleged breach of contract.
In a small organisation, with few employees, it makes sense for an employer to expect a degree of flexible working from his staff. Indeed, the employment tribunals have long since recognised and upheld the employer's right to manage his business to the best of his ability. In many situations, the dismissal of an uncooperative employee will be held to be fair. However, the tribunals also recognise an employee's right to be told what is expected of him (or her) when carrying out the work he has been employed to do. Accordingly, it makes sense to forewarn employees, particularly in the small organisation, that they will be expected to work overtime during busy periods, or to 'double-up' or help out in other departments when there are staff shortages or other unforeseen problems. If a degree of job flexibility or mobility is required, that requirement should be spelled-out either in the individual 'contract of employment' (ie, the written statement of particulars of employment) or in a related document (such as a job description or letter of appointment) handed to a new employee when he first takes up his duties.

Itemised Pay Statement

noreply@blogger.com (Unknown) — Thu, 17 Feb 2011 10:06:00 +0000

(Employer's duty to provide)

Key points

An employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement (section 8, Employment Rights Act 1996).
This right extends not only to employees who are paid in cash but also to those employees whose wages or salaries are paid by cheque or by credit transfer to their bank or building society accounts.

Note

This right does not extend to merchant seaman or share fishermen, or to any employee who (under his contract of employment) ordinarily works outside Great Britain (ibid. sections 196 and 199).

Information to be included in the statement

An itemised pay statement must include the following particulars:

the gross amount of the wages or salary payable to the employee on that occasion;

Note

Curiously, an itemised pay statement need not show how the employer arrived at the gross amount or what that amount comprises. However, it is unlikely that any self-respecting employee will for long tolerate a system that denies him an opportunity to challenge the accuracy of a gross figure that purports to include his (or her) overtime earnings, any bonus, commission or shift allowance payments that are his due.

the amount of any fixed deductions and the purposes for which they are made;

Note

Fixed deductions are those amounts specifically authorised in writing by an employee. They include contributions to a National Savings Scheme (SAYE) or sports & social club, private or company-sponsored medical plan (eg, BUPA or PPP), trade union dues, etc. The alternative to an itemised account of fixed deductions is a Standing Statement of Fixed Deductions (discussed below).

the amount and purposes of any variable deductions; and

Note

Variable deductions are deductions which vary from week to week or from month to month (or whatever), such as income tax (PAYE), National Insurance Contributions (NIC), contributions to an occupational pension scheme, or payments to the court under an attachment of earnings order.

the net amount of the wages or salary payable on that occasion.

Note

If an employer has agreed to pay part of an employee's wages or salary in cash (or by some other means) and part, perhaps, by cheque or by credit transfer to the employee's bank or building society account, the itemised pay statement must list the amounts in question and the methods by which they are paid.

Tax credits also to be recorded on the itemised pay statement

With the coming into force on 1 March 2003 of the Working Tax Credit (Payment by Employers) Regulations 2002, employers are liable to pay Child Tax Credits and Working Tax Credits through the payroll to the nominated employee, and when as instructed to do so by the Tax Credits Office (TCO). Every such payment must be recorded as a 'tax credit' on the itemised pay statement (or payslip) issued to such employees (ibid. regulation 9(4)).

Standing statement of fixed deductions

There will be occasions when the sheer number of fixed deductions authorised by an employee make it administratively impossible for an employer to itemise each of those deductions on a pay packet or payslip every time that employee is paid his wages or salary. To overcome that problem, the employer may (if he chooses) simply aggregate those fixed deductions on the itemised pay statement (without explaining their purpose) so long as he supplies the employee in question with a so-called Standing Statement of Fixed Deductions.
A Standing Statement must be issued on or before the date on which an employee receives his (or her) first payslip or pay packet showing only the aggregate amount of fixed deductions from his wages or salary. The Statement becomes effective on the date of issue and is valid for 12 months. However, it must be amended and re-issued every time one or other of those fixed deductions is adjusted or stopped. An amended Statement, in its turn, is valid for 12 months, provided no other changes occur in the interim.

A refusal or failure to comply

An employee may require a reference to be made to an employment tribunal if:

his (or her) employer has refused or failed to supply him with an itemised pay statement; or
the statement he gives does not comply with sections 8 or 9 of the 1996 Act.

The complaint or reference must be presented within three months of the alleged refusal or failure to comply or (if the employee is no longer employed) before the end of the period of three months beginning with the date on which his or her employment ended (ibid. section 11(4)).

A conciliation officer of the Advisory, Conciliation and Arbitration Service (ACAS) will ordinarily be informed about a complaint or reference arising out of an alleged breach of an employee's rights under section 8 of the 1996 Act and will offer to mediate with a view to resolving the dispute amicably and informally. Should he fail to do so, the matter will proceed to a full tribunal hearing.
If an employment tribunal upholds the employee's complaint, it will make a declaration to that effect and will instruct the employer to set matters to rights. If it finds that any unnotified deductions have been made from the employee's pay during the period of 13 weeks preceding the date on which the employee made his complaint (whether or not the deductions were made in breach of the employee's contract of employment), it will order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made (ibid. section 12(4)). For these purposes a deduction will be treated in law as 'unnotified' (even if agreed to by the employee) unless declared on the employee's pay packet or payslip in the form of an itemised pay statement.

Inventions, Patents and Copyright

noreply@blogger.com (Unknown) — Fri, 11 Feb 2011 09:58:00 +0000

Key points

Although not a matter that is likely to be of particular concern to every employer, there will be occasions when an employee invents a machine, product or process that is new and capable of industrial application.
The question may arise as to the ownership of such an invention. That question has largely been resolved by sections 39 to 43 of the Patents Act 1977 in respect of inventions made after 1 June 1978.
Section 39 of the 1977 Act states that an invention made by an employee will be taken to belong to his employer if:

it was made in the course of the normal duties of the employee in circumstances such that an invention might reasonably be expected to result from the carrying out of those duties; or
it was made in the course of the duties of the employee, and the nature of those duties and his particular responsibilities were such that he had a special obligation to further the interests of his employer's undertaking.

In any other circumstances, an invention made by an employee is his own property.

There are very few people who are employed specifically to invent tools, plant, machinery or equipment. If a kitchen porter in a hotel designs a new type of dishwashing machine, his (or her) employer would be hard put to it to convince a court that doing so was within the scope of the porter's normal duties.
If the ownership of an invention clearly vests in an employee, he (or she) has the right to apply for and obtain a patent and to be named as the inventor. The form of application to be used is Patents Form 2/77. The inventor may subsequently grant a licence or licences to another person or persons (including his employer, if he chooses) to supply the product or work the invention, as the case may be, on reasonable terms.
If an employer owns an invention produced by one of his employees, that need not be an end to the matter. Once a patent has been granted, the inventor has every right to apply to the Comptroller-General of Patents, Designs and Trade Marks or, if need be, to the High Court (or the Court of Session) for an award of compensation – that is to say, a fair share of the benefit that his employer has derived, or may reasonably expect to derive, from the patent. In determining what constitutes a 'fair share', the court or the comptroller will, among other things, take into account:

the nature of the employee's duties, his remuneration and any other advantages he derives, or has derived, from his employment;
the effort and skill that the employee has devoted to making the invention;
the effort and skill that any other person has devoted to making the invention jointly with the employee concerned and other assistance contributed by any other employee who is not a joint inventor of the invention; and
the employer 's contribution to the making, developing and working of the invention, eg by giving advice, by providing the necessary facilities and other technical assistance, and by offering his managerial and commercial skills.

An order directing an employer to pay compensation to the employee may be an order for the payment of a lump sum or for periodical payments, or for both.

An employee's application to the Comptroller-General for an award of compensation must be made on Patents Form 26/77, accompanied by one copy of the Form and a statement in duplicate setting out fully the facts relied on. The application may be submitted at any time after the relevant patent is granted to the employer, but not later than one year after the patent ceases to have effect.

Contract of employment

Any term in a contract of employment that purports to diminish an employee's statutory rights in inventions of any description made by him, or in or under patents for those inventions (or applications for such patents), is void and unenforceable. Notwithstanding such a term in his contract, the employee may still pursue his claim for ownership of an invention, or an award of compensation, as the case may be. His right to do so does not, on the other hand, derogate from any duty of confidentiality that he may owe to his employer by virtue of his contract of employment.

Collective agreement

If a collective agreement between a trade union and an employer provides for the payment of compensation in respect of employee inventions, the relevant terms of that agreement will supersede the rights of the individual employee under sections 39 to 43 of the 1977 Act. However, the agreement must encompass all employees of the same description as that employee, and must envisage inventions of the same description as the invention produced by the employee. In the event of a dispute, it will be for the courts to determine the issues.

Copyright

Under section 11 of the Copyright, Designs & Patents Act 1988, the copyright in any literary, dramatic or artistic work produced by an employee in the course of his (or her) employment (that is to say, arising out of the duties of his employment) belong to his employer – unless there is an agreement to the contrary.

Note

Section 11 of the Copyright, Designs & Patents Act 1988 reads as follows: '(1) The author of a work is the first owner of any copyright in it, subject to the following provisions. (2) Where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary…'

Thus a public relations executive (as an employee) cannot claim ownership of any material written by him for the purposes of advertising or promoting his employer's business. That is what he is paid to do. On the other hand, a security guard in a factory, who writes a best-selling book when he should have been patrolling his employer's premises, may be dismissed for gross misconduct but would retain the ownership of the copyright in his book (section 11, Copyright, Designs & Patents Act 1988).

Note

Under UK law, copyright comes into existence when an original literary, dramatic or artistic work is produced. There is no formal procedure for registering the ownership of the copyright in any such work. Copyright protection persists tor the lifetime of the copyright owner and for 75 years after his (or her) death (increased from 50 years on 1 July 1995, to accommodate EC legislation).

Employers all too often lose sight of the fact that many of their personnel (eg, computer programmers, research chemists, public relations experts, advertising managers, copywriters, training officers, personnel executives, and the like) are routinely employed to write software programs, reports, statistical analyses, advertising and promotional copy, training manuals, etc, that should not be published or divulged to unauthorised third parties. So far as the issue of copyright ownership is concerned, employers should perhaps insert a clause in the contracts of employment of such persons to the effect that 'any publicity material, brochures, training manuals, software programs, research reports or documents [etc] produced or prepared by you in the course of your employment by the company shall be the sole copyright of the company'.
If need be, personnel engaged in sensitive work should also give a written undertaking to submit the manuscripts of magazine articles, theses, etc, for scrutiny by a senior member of management (or by the company's solicitors or legal department) before that material is released for publication.
Contracts of employment should likewise remind employees of their common law duty to return all company property in their possession (documents, notes, manuals, computer discs, etc) on the termination of their employment. They should, at the same time, be asked to sign a form accounting for any readily-identifiable property known to be in their possession, as well as a declaration to the effect that they have not retained any other documents, copies of software programs, etc, that are properly their employer's property.

Note

It is curious that while an employer is legally entitled to a fair share of any benefit that accrues to his (or her) employer from an invention he has made in the course of his employment, there is no equivalent provision in the 1988 Act that gives an employee the legal right to claim a share of the royalties earned by his employers from the sale of a book which the employee has researched and written on their behalf (although there is nothing to prevent some contractual provision to that effect).

Insolvency of Employer (Rights of employees)

noreply@blogger.com (Unknown) — Sun, 30 Jan 2011 15:23:00 +0000

Key points

§ For many years, wages or salaries owed to employees by an insolvent employer have been treated in law as 'preferential debts'. However, that preference is accorded only to the first £800 of any claim in respect of wages earned during the four months preceding the date of the receiving order or of the appointment of the provisional liquidator. Amounts in excess of £800 (or for periods longer than four months), and other monies owed to an employee at the time his employer became insolvent, rank as ordinary debts (per Insolvency Act 1986, Schedule 6).

§ In recognition of the fact that it could take years for employees to recover unpaid wages or salaries, let alone any other monies owed by an insolvent employer, sections 182 to 190 of the Employment Rights Act 1996 empower the Secretary of State for Trade & Industry to borrow from the National Insurance Fund and to pay some or all of those monies on the employer's behalf. The Secretary of State would then assume the role of preferred and ordinary creditor in an attempt to recover part at least of that money from the employer's remaining assets.

Note

The Secretary of State will not normally pay monies from the National Insurance Fund, in respect of an amount owed by an insolvent employer, until the relevant liquidator, receiver, manager or trustee in bankruptcy confirms in writing that the employee in question is entitled to that amount. If that information is not forthcoming within six months of an employee's application to him, the Secretary of State may decide to pay the employee out of the Fund if he is satisfied that a further delay appears likely and that the employee's claims are genuine.

Eligible debts and upper limits

§ There are limits on the amounts payable from the National Insurance Fund and the debts to which they relate. Section 184 of the 1996 Act empowers the Secretary of State (in practice, the Employment Department) to pay an employee:

a. arrears of pay (see Note below) for a period not exceeding eight weeks at a maximum £260 per week;

b. unpaid pay in lieu of the statutory minimum period of notice due (again subject to a maximum of £260 per week);

c. up to six weeks' holiday pay in respect of a period or periods of holidays to which the employee became entitled during the 12 months ending with the date on which the employer became insolvent (at a maximum £260 per week); and

d. any basic award of compensation for unfair dismissal or so much of an award under a designated dismissal procedures agreement as does not exceed any basic award of compensation for unfair dismissal to which the employee would be entitled but for the agreement;

e. where appropriate, any reasonable sum by way of reimbursement of the whole or part of any fee or premium paid by an apprentice or articled clerk.

Note

For these purposes, the expression arrears of pay (see paragraph (a) above) includes not only unpaid wages, salaries, overtime earnings, commissions, and the like, but also statutory guarantee payments, remuneration on suspension on medical or maternity grounds, payment for time off work, statutory sick pay, and remuneration under a protective award made by an employment tribunal in consequence of an employer's failure to consult trade union representatives about his redundancy proposals (ibid. section 184(2)). These matters are dealt with elsewhere in this handbook under the relevant subject heads.

§ The current (2003/04) upper limit of £260 on the amount of a week's pay for these purposes will in future be increased (or reduced) by order of the Secretary of State, in line with the September-on-September rise or fall in the retail prices index.

§ Statutory Maternity Pay (SMP) owed to an employee at the time her employer became insolvent is the responsibility of the Department for Work & Pensions. SMP due and payable after that date becomes the responsibility of the Secretary of State.

§ If an employee is denied the whole or part of any statutory redundancy payment due to him (or her) because of his employer's insolvency, the Secretary of State will pay the amount due out of the National Insurance Fund (ibid. section 189).

Procedure

§ To set matters in motion, an employee owed money by his (or her) insolvent employer on the termination of his employment should complete Form IP1 – available from the employer's representative or relevant officer (see Note below) – and return it to him as soon as possible.

If he wishes to apply for a payment to compensate him for not receiving the correct statutory notice of the termination of his employment, he will also need to complete and return Form IP2. The relevant officer will deal directly with the Department for Work & Pensions (DfWP) on the employee's behalf.

Note

The relevant officer is a person appointed in connection with an employer's insolvency, that is to say, a trustee in bankruptcy, a liquidator, administrator, a receiver or manager, or a trustee under a composition or arrangement between the employer and his creditors or under a trust deed for his creditors executed by the employer. In this connection, trustee, in relation to a composition or arrangement, includes the supervisor of a voluntary arrangement proposed for the purposes of, and approved under, Part I or VIII of the Insolvency Act 1986.

Unpaid contributions to a pension scheme

§ The trustees of an occupational pension scheme may apply in writing to the Secretary of State for Employment claiming that an insolvent employer has failed to pay pension contributions (either on his own account or on behalf of the employee) into the scheme during the 12 months preceding the date on which he became insolvent (per section 124, Pension Schemes Act 1993).

§ Subject to certain conditions (that are not explored here), and once satisfied that there are unpaid contributions, the Secretary of State will withdraw the money from the National Insurance Fund and pay it into the resources of the occupational pension scheme.

Complaints

§ Should the Secretary of State decline or fail to pay any of the amounts referred to in the preceding paragraphs, the affected employee may refer the matter to an employment tribunal for determination. Any such complaint must be lodged within three months of the alleged failure to pay.

§ If an employment tribunal finds that the Secretary of State ought to have made those payments, it will make a declaration to that effect and will also declare the amount of any such payment that it finds the Secretary of State ought to make (ibid. section 188).

Induction Training

noreply@blogger.com (Unknown) — Wed, 26 Jan 2011 13:58:00 +0000

Key points

§ The term 'induction training' is generally understood to mean the process by which a new employee is informed about his (or her) employer's business, the terms and conditions of his employment and his new duties and responsibilities – complemented by an introduction to the people with or for whom he will be working, the materials, machines, plant or equipment he will be expected to use, information and training about safe working methods, (hazardous substances, and the like), fire precautions and fire evacuation procedures; and so on.

§ In the smaller organisation, such as a light engineering works, depot, garage, workshop, retail outlet, restaurant, insurance office, public house, etc, induction training may consist of a brief chat with the immediate supervisor followed by an introduction to another employee who will 'show him the ropes'. In larger premises, such as factories, major manufacturing plants, chemical works or headquarters buildings, a more systematic approach may be adopted. The new employee may be required to spend a certain amount of time with several supervisors or managers, will be issued with a job description and a staff or training handbook, and will be expected to attend a series of lectures and discussion groups designed to explore every facet of his (or her) employer's business and his own role within the organisation.

Health and safety at work

§ Although an employer is under no strict legal obligation to provide induction training as such, he does have a duty under section 2(2)(c) of the Health and Safety at Work etc Act 1974 (and under Regulations made under, or saved by, that Act) to provide 'such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees'. Should a new recruit be injured in the course of his (or her) employment, the employer's failure to provide suitable training before setting the employee to work will be an important factor in any subsequent civil proceedings for damages. It may prompt a health and safety inspector to institute criminal proceedings. The penalty on conviction is a fine of a maximum of £20,000 and, on conviction on indictment, a fine of an unlimited amount (ibid. sections 33(l)(a) and 33(3)).

§ The prudent employer will interpret his obligations under the 1974 Act as meaning a duty to provide exhaustive training to every new recruit before setting him to work in any area where inexperience and lack of instruction could lead to injury to himself and others.

The Management of Health & Safety at Work Regulations 1999

§ Regulation 13 of the Management of Health & Safety at Work Regulations 1999 – which apply to every employer (and to every self- employed person), regardless of the type of business in which he (or she) is engaged, the size of his premises, or the number of people he employs – cautions that, when entrusting tasks to his employees, every employer must take into account the capabilities of those employees as regards health and safety. Furthermore, every employer must ensure that his employees receive adequate health and safety training:

a. when first recruited; and

b. when exposed to new or increased risks following a promotion or transfer, or when introduced to new or amended systems of work, new technology, or new or modified plant and equipment.

§ Furthermore, all such training must take place during normal working hours, must be repeated periodically (where appropriate), and must be adapted to take account of any new or changed risks to the health and safety of the employees concerned.

Note

Similar provisions relating to training are to be found in the Control of Asbestos at Work Regulations 2002; the Health & Safety (Display Screen Equipment Regulations 1992; the Control of Lead at Work Regulations 2002; the Provision & Use of Work Equipment Regulations 1998; the Control of Substances (Hazardous to Health) Regulations 2002; and so on.

§ Under the Health & Safety (Young Persons) Regulations 1997, which came into force on 3 March 1997 (and are now incorporated in the Management of Health & Safety at Work Regulations 1999 (qv)), the risk assessment exercise every employer is obliged to carry out must take particular account of the inexperience of young persons, as well as their immaturity, and ignorance about the risks they may face. In short, employers must take particular care to train young persons thoroughly before exposing them to such risks.

Fire prevention and training

§ A fire certificate issued in accordance with the provisions of the Fire Precautions Act 1971 (as amended) will impose requirements 'for securing that persons employed to work in the premises receive appropriate instruction or training in what to do in case of fire, and that records are kept of instruction or training given for that purpose' (ibid. section 6(2)(c)). The following extract from a fire certificate is quite specific:

'All members of the staff shall each receive a personal copy of prepared written instructions (on fire prevention and evacuation procedures), and shall initially receive two periods of at least half an hour of verbal instruction given by a competent person. Such instructions shall include details of how to call the Fire Brigade. These two periods shall be given within one month. In the case of newly-engaged staff, this shall be as soon as possible after engagement.'

§ The penalty for contravening any requirement of a fire certificate is a fine, on summary conviction, of a maximum £20,000 and, on conviction on indictment, a fine or imprisonment for a term not exceeding two years, or both (ibid. section 7(4)).

§ In premises that do not require a fire certificate, the occupier nonetheless has a duty to provide 'such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees' (section 2(2)(c), 1974 Act) (see above), a duty that should not lightly be set aside.

Independent Trade Union—Itemised Pay Statement

noreply@blogger.com (Unknown) — Sat, 22 Jan 2011 10:20:00 +0000

Independent Trade Union

Key points

The expression independent trade union is the term used to describe a trade union that:

a. is not under the domination or control of any one employer, or of a group of employers, or of one or more employers' associations; and

b. is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control;

and, in relation to a trade union, the word independent must be construed accordingly (section 5, Trade Union & Labour Relations (Consolidation) Act 1992).

Certification as independent trade union

§ Furthermore, in order to take advantage of the statutory rights available to trade unionists (officials as well as members) under current industrial relations legislation, a trade union must apply to the Certification Officer (who fulfils the functions of the former Chief Registrar of Friendly Societies) for a certificate that it is 'independent' – which application must be accompanied by the prescribed fee (ibid. section 6).

§ The Certification Officer will not come to a decision on the application before the end of the period of one month after it has been entered on the record. Before he does make a decision, he will make such enquiries as he thinks fit (taking into account 'any relevant information submitted to him by any person') (ibid. section 6(4)).

§ Once issued, a certificate of independence will (for all purposes) be conclusive evidence that the recipient trade union is indeed independent. If the Certification Officer refuses to issue (or subsequently withdraws or cancels) a certificate of independence, the trade union in question may appeal to the Employment Appeal Tribunal to have that decision reversed. However, a trade union has no legal right to challenge a decision by the Certification Officer to issue a certificate of independence to another trade union (such as a staff association), however much it may disagree with that decision. See General & Municipal Workers Union v Certification Officer [1977] ICR 183.

Relevance of certificate of independence

§ A trade union that has been certified as independent by the Certification Officer has access to the statutory rights listed in the following paragraphs.

§ For example, any term in a collective agreement, that purports to exclude or restrict the right of employees to engage in a strike or other form of industrial action, will be invalid and unenforceable unless each trade union party to that agreement is an independent trade union (ibid. section 180).

§ An employer is not duty-bound to disclose information to a trade union for the purposes of collective bargaining (ie, information without which a representative of that union would be impeded to a material extent in negotiations with that employer) unless the trade union in question is an independent trade union (ibid. section 181).

§ A trade union representative has no legal right to be consulted in advance concerning proposed redundancies unless the trade union he or she represents is independent (ibid. section 188).

§ An employee, who is victimised or otherwise discriminated against by his (or her) employer, with a view to preventing or deterring him from joining a trade union, or from taking part in the activities of a trade union, may apply to an employment tribunal for compensation, provided that the union in question is independent (ibid. section 146).

§ An official of a trade union has no legal right to take paid time off work to carry out his functions, unless the trade union he or she represents is an independent trade union (ibid. section 168).

§ Likewise, the right of a member of a trade union to take time off work (albeit unpaid), in order to participate in the activities of that trade union, does not arise if the trade union in question is not independent (ibid. section 170).

§ The dismissal of an employee for being or proposing to become a member of a trade union, or for taking part in trade union activities, is inadmissible (that is to say, automatically unfair) only if the trade union in question is an independent trade union (ibid. section 152).

Monthly pay (£9,600, divided by 12):	£800.00
Overtime pay (23 hours @ £6.92/hour):	£159.16
Gross pay:	£959.16
less rent of £200:	£639.38

Employment Practice

References

Redundancy (Rights of employees)

Racial Discrimination (Employment and other fields)

Public Interest Disclosures

Pregnant Employees and Nursing Mothers (Rest facilities, risk assessment and suspension from work)

Posted Workers

Picketing | Public Interest Disclosures

Pension Schemes (Contracting-out certificates, pension scheme trustees, etc)

Paternity Leave | Public Interest Disclosures

Part-Time Workers | Public Interest Disclosures

Parental Leave—Public Interest Disclosures

Parental Leave

Overtime Employment

Overtime Employment

(Statutory restrictions)

Notice of Termination of Employment

Notice of Termination of Employment(Statutory minimum notice)

National Minimum Wage—Notice of Termination of Employment

National Minimum Wage

Medical Reports, Access To

Key points

Maternity Rights—Medical Reports, Access To

Maternity Rights

(The rights of employees before and after childbirth)

Lock-Outs

Key points

Lay-Offs and Short-time working—Lock-outs

Lay-Offs and Short-Time Working

Jury Service

Job Title—Jury Service

Itemised Pay Statement

(Employer's duty to provide)

Inventions, Patents and Copyright

Insolvency of Employer (Rights of employees)

Induction Training

Independent Trade Union—Itemised Pay Statement

Notice of Termination of Employment
(Statutory minimum notice)