FirstHR Legalease

A SUMMER OF SPORT– WILL IT AFFECT YOUR BUSINESS?

2012-05-22T14:15:00.001+01:00

EURO 2012 - Friday 8th June 2012 to Sunday 1st July 2012
OLYMPIC GAMES – open on 27th July 2012

Have you risk assessed your business to determine if these sporting fixtures will impact on you ?

If you have not already done so, we advise you do so now! As an employer, you must be clear what you expect from your employees during these sporting fixtures and communicate your expectations to your employees, then deal effectively with any issues that may occur.

The Olympic Games are on during the busy holiday period, so managing requests for holiday/time off could potentially be an issue. Employers should establish how many staff they can give permission to take time off without it effecting the business and deal with any requests for time off fairly and in a non-discriminatory manner e.g. first come, first served or by taking names out of a hat.

Businesses located in or around London and those near Olympic venues may find their employees are delayed due to disrupted journeys, which could result in less productive time at work. Employers should consider how they wish to deal with this potential issue, possibly consider allowing flexible working or home-working where this is likely to be a significant problem.

Employers should also consider reducing potential absenteeism by screening the big events at work, which will also have the added benefit of motivating staff and promote good employee relations.

Any sick absence or unauthorised absence should be investigated and dealt with under your Company disciplinary procedure in the normal way.

Employees should be informed of the rules beforehand and given clear guidance on what the Company expects, for example, employees are not allowed to watch events on the internet at work instead of working and if an employee is found to be doing so, it will be considered as misconduct and dealt with under the disciplinary procedure.

Social Media Networking Sites

2012-05-22T09:00:00.000+01:00

The growing popularity of social networking sites has raised various employment related issues. If you opt to allow employees access, you need to be very clear on what is acceptable use and ensure your employees are fully aware of any policy implemented. Depending on your business need for social media, you may wish to have a separate Social Media Policy or you can incorporate the policy into an existing Communication/Internet Policy. Tackling this issue head-on and having a well drafted policy in place should discourage misuse.

The Policy should clearly define who owns professional social media networking accounts and any material published online. In addition, employers should also ensure that they have well drafted confidentiality and non-compete clauses confirming ownership of these accounts, as it may assist the employer in enforcing well drafted restrictive covenants.

Any policy introduced must be communicated to all employees, reinforced and re-communicated at regular intervals. You may wish to consider asking your employees to sign the policy to confirm they are aware of it and agree to comply. If you have a business need to monitor and record internet usage, this should be included within the policy so your employees are aware that this may happen.

The Policy should allow you to take disciplinary action against employees who abuse or breach the policy. For example, an employee posting something onto a site that may damage your business reputation, breach of confidentiality and derogatory comments regarding co-workers, clients or others. This Policy can extend to comments posted outside the employee's hours of work. It should also include posting of photo’s that have not been approved.

This is a fast growing area so employers should review this policy on a regular basis to ensure it keeps up to date with date with current trends.

RIDDOR reporting change

2012-04-20T13:31:00.002+01:00

From 6 April 2012, the requirement for reporting people injured at work changed from absences lasting over three days, to absences lasting more than seven days.

This means that you now only have to report injuries that occurred as a result of an occupational accident or injury, that then result in a worker being incapacitated and unable to work for more than seven consecutive days (not including the date of the accident) – this report must still be made to the HSE within 15 days of the date of the accident.

Employment Tribunal Update

2012-03-30T12:46:00.003+01:00

Employment Tribunal Reform
Unfair dismissal qualifying period increases to 2 YEARS for new employees after this date only (for existing employees it remains 12 months)

Judges to Sit Alone in Unfair Dismissal Cases
Unless They Direct Otherwise Employment Tribunals normally consist of an Employment Judge and two lay members. On or after 6 April 2012, Employment Judges will hear unfair dismissal cases alone, unless they are directed to do otherwise.

Witness Statements "Taken as Read"
Traditionally in Employment Tribunals, witnesses are asked to read the content of their witness statement out loud, so that the Tribunal can see and hear the evidence presented orally. Cross examination can then follow. For claims submitted to the Employment Tribunal on or after 6 April 2012, witness statements will normally be "taken as read", unless an employment judge directs otherwise.

Deposit Orders
Deposit Orders require a party (either the claimant or the respondent) to pay a sum as a condition of being permitted to continue to pursue all, or any part, of the respective claim or response. The Judge can require a deposit to be made if any contentions put forward by a party have "little reasonable prospect of success".

Currently, Judges can order deposits to be paid only in pre-hearing reviews, with a £500 limit. For claims submitted to the Employment Tribunal on or after 6 April 2012, Employment Tribunal Judges will be able to order claimants (at any stage of the claim) to pay a deposit of up to £1,000 if they believe that weak claims are being pursued.

Costs Orders
There are currently three types of awards:
1. Costs awards (for fees, charges, or expenses incurred by or on behalf of a party)
2. Preparation time orders (made in favour of a party who has not been legally represented)
3. Wasted costs orders (made against a representative as a result of the representative's conduct).

Currently the maximum sum that Tribunals can award under the first two types of order is £10,000 and there is no cap for wasted Costs Orders. For claims submitted to the Employment Tribunal on or after 6 April 2012, the maximum Costs Order that can be awarded increases to £20,000.

State Funded Expenses to Be Withdrawn
For claims submitted to the Employment Tribunal on or after 6 April 2012, the option for parties, (including their witnesses and any voluntary representatives) to apply to the Tribunal to recover some of the travelling costs and other expenses associated with attending a Tribunal hearing to give evidence is removed.

Judges will also be able to order parties in a Tribunal hearing to pay some or all of the expenses incurred by witnesses "for the purposes of, or in connection with, that witness's attendance at the Tribunal".

2012-03-26T13:41:00.000+01:00

National Minimum Wage - October 2012

The Government has accepted the Independent Low Pay Commission's recommendations for October 2012's National Minimum Wage rates. Therefore, with effect from 1 October 2012 the national minimum wage is as follows:

The adult rate (workers aged 21 and over) will increase from £6.08 to £6.19 per hour

The rate for 18-20 year's will remain at £4.98 an hour

The rate for 16-17 year's will remain at £3.68 per hour

The rate for apprentices will increase from £2.60 to £2.65 per hour

Legal Timetable 2012

2012-02-03T17:31:00.003Z

1st February 2012
Employment Rights (Increase of Limits)
The limit for unfair dismissal will increase from £68,400 to £72,300

Redundancy payment will rise from £400 to £430. The maximum award and statutory redundancy increases from £12,000 to £12,900.

1st March 2012
Paternal Leave
As a result of the revised Parental Leave Directive (2010/18/EU), the amount of unpaid parental leave available to those employees with parental responsibility increases from three to four months per child under the age of five years. This amendment must be implemented by member states by 8 March 2012, and will require changes to the existing Maternity and Parental Leave Regulations 1999.

1st April 2012
The standard Statutory Maternity (SMP), Paternity (SPP) and Adoption (SAP) Leave pay rate increases from £128.73 to £135.45 or the earnings-related rate, which is 90% of the employee's average weekly earnings.

6th April 2012
Contracting Out Of State Additional Pension Abolished
The Pensions Act 2007 and the Pensions Act 2008 abolish contracting out of the state additional pension on a defined-contribution basis for occupational, personal and stakeholder pension schemes and the rules governing contracted-out rights in schemes.

6th April 2012
Statutory Sick Pay
The standard rate of Statutory Sick Pay (SSP) increases from £81.60 to £85.85 per week

6th April 2012
Qualifying Period For Unfair Dismissal Increases To Two Years
The qualifying period for employees to bring a claim of unfair dismissal increases from one year to two years. The increase will apply only to employees who start a new job on or after 6 April 2012.

6th April 2012
Changes To Tribunal Procedure Come Into Force
The maximum amount of a deposit order, which a Tribunal can order a party to pay as a condition to continuing with Tribunal proceedings, increases from £500 to £1,000. The maximum amount of a costs order, which a Tribunal may award in favour of a legally represented party, increases from £10,000 to £20,000. Other changes are made to Employment Tribunal procedure, including changes to witness statements, which are no longer read aloud, and are instead taken "as read", unless the Tribunal directs otherwise. Tribunals have the power to direct that the parties to a dispute are responsible for paying witnesses' expenses and that the party who loses the case should reimburse the successful party for any such costs already paid out.

Employment judges will hear unfair dismissal cases alone in the employment tribunal, unless they direct otherwise, and judges will hear all cases alone in the Employment Appeal Tribunal, unless they direct otherwise.

27th July 2012 to 12th August 2012
The Olympic Games
The key to avoiding workplace conflict will be clear and early communication with employees to ensure that everyone knows what is expected of them. Any special rules introduced must then be enforced consistently.

29th August 2012 to 9th September 2012 (close)
The Paralympic Games
As above

1st September 2012
Employers’ Duties (Implementation) Regulations 2010 Come Into Force
The Regulations set out the details of how employers' duties under the Pensions Act 2008 and the Pensions Act 2011, which require employers to auto-enrol staff into a qualifying pension scheme and pay a minimum contribution, will be staged in over time.

1st October 2012
Automatic Enrolment Comes Into Force
The Pensions Act 2008 provides that employers must auto-enrol all eligible employees not already participating in a workplace pension scheme into a qualifying pension scheme. The threshold for automatic enrolment is aligned with the personal allowance for income tax.

To encourage participation, employees’ pension contributions will be supplemented by employers' contributions and tax relief. The Act also introduces the concept of "prohibited recruitment conduct", which prohibits employers from making recruitment decisions on the basis of whether or not an individual intends to opt out of automatic enrolment.

1st October 2012
National Minimum Wage
Any agreed annual increase of the National Minimum Wage is implemented.

HR NEWSFLASH - QUALIFYING PERIOD FOR UNFAIR DISMISSAL CLAIMS

2012-01-31T17:27:00.001Z

We have previously reported that with effect from April 2012, the qualifying period for bringing an unfair dismissal claim will increase from one year to two years. However, it is also now confirmed that the increase in the qualifying period will not be retrospective.

This means that the two year qualifying period will apply only to employees who start their employment on or after 6 April 2012. Those employed before this date will be able claim unfair dismissal after one year’s service.

Employment Law Update - December 2011

2011-11-30T12:44:00.003Z

UNFAIR DISMISSAL PERIOD WILL INCREASE TO TWO YEARS FROM APRIL 2012

It has been confirmed that the Government intends to increase the qualifying period for bringing unfair dismissal claims from 12 months to 2 years from 6 April 2012. However, other employment rights that are available from the beginning of the employment relationship, such as those on discrimination, will remain in place.

EMPLOYMENT TRIBUNAL FEES

The Chancellor, George Osborne announced his proposal to introduce a fee structure for bringing an employment tribunal claim. The fee structure aims to reduce the number of ‘vexatious’ claims.

Although not confirmed by the government it is speculated that a claimant will be charged an initial fee of £250 when they submit their claim. A further fee of £1,000 will be charged when the matter is listed for hearing. Both fees will be refunded if the Claimant is successful but forfeited if the Claimant loses his or her claim.

It is also anticipated that there will be an exemption for ‘low income Claimants.’ The Government has not yet announced what threshold it will apply for this exemption. Given that Claimants are likely to be unemployed (usually the reason for bringing a claim), it is feasible a large number of claimants will fall outside the proposed fee structure.

BAD WEATHER DURING THE WINTER MONTHS

We have been warned that it will be another cold winter (although not the case so far!), so we thought it prudent to remind employers should be done to avoid being caught out if the bad weather arrives.

If you do not wish to pay employees when they are unable to attend work due to bad weather the rules should be made clear in the employee’s contract of employment and the Company Handbook, otherwise it could be viewed as an unlawful deduction.

Employer’s will normally only have the right to withhold pay if an employee’s absence is unauthorised. Therefore, employers need to consider whether the employee’s contract of employment makes it clear that absence due to bad weather is not an authorised absence or whether custom and practice prevails through actions that have taken place in the past. If it is not clearly stated, employers should amend their contract of employment and gain employees’ consent to the change.

It is important that employers communicate what process an employee should follow if they are not able to attend work due to bad weather and what will happen as a consequence.

REMINDER …. NATIONAL MINIMUM WAGE INCREASED ON 1 OCTOBER 2011

2011-10-07T15:41:00.001+01:00

the main rate for workers aged 21 and over increased to £6.08

the 18-20 rate increased to £4.98

the 16-17 rate for workers above school leaving age but under 18 increased to £3.68

the apprentice rate, for apprentices under 19 or 19 or over and in the first year of their apprenticeship increased to £2.60

Agency Workers Regulations 2010

2011-10-07T09:00:00.000+01:00

THE AGENCY WORKERS REGULATIONS 2010 CAME INTO FORCE ON 1 OCTOBER 2011.

The Agency Workers Regulations 2010 provide that agency workers working for the same hirer for more than 12 weeks will be entitled to equal treatment in certain basic terms and conditions, including pay, as directly recruited employees of the hirer doing the same job. This right kicks in after the agency worker has served a 12 week qualifying period with the end-user.

The Regulations also give agency workers certain “day one” rights, including the same access to job vacancies as permanent members of staff and collective facilities such as staff canteens, childcare facilities and transport services - from the first day of their assignment.

Although some absences will have the effect of breaking service, certain breaks taken by the agency worker will only pause the time during which the worker accrues service during the qualification period. Breaks between assignments with the same organisation will pause the clock if they last for six weeks or less. Some other absences, such as sickness absence, jury service and annual leave, will also pause the clock.

Where the most likely explanation for the structure of a series of assignments is that the agency or the hirer is attempting to avoid the impact of the Regulations, it is likely to fall foul of the anti-avoidance provisions.

An example of where assignments of less than 12 weeks could fall within the anti-avoidance provisions is where an agency worker works two assignments of 10 weeks each with a gap of seven weeks between them (so they are not linked for the purposes of calculating the 12-week period) and is then, after a further seven-week gap, invited back for a third assignment and the Employment Tribunal considers that the most likely explanation for this structure is to avoid the impact of the Regulations.

The anti-avoidance provisions apply only where there is a series of assignments or changes of role. Therefore, they would not prevent a policy of using agency workers for assignments of less than 12 weeks, if the same agency workers are not subsequently rehired for a further assignment.

Employment Case Law Update

2011-09-02T09:00:00.000+01:00

DIRECT RACE DISCRIMINATION

An Employment Tribunal has recently ruled that using the name "Borat" to refer to a worker from Eastern Europe amounts to direct Race Discrimination.

The Tribunal held that a Polish worker had been harassed on the grounds of race by a colleague calling him "Borat" and that the use of the nickname created a degrading and humiliating working environment for him. The nickname constituted direct race discrimination. The judgement explained that someone who had all the characteristics of the Polish Worker but was neither from Poland, nor perceived to be of Eastern European origin, would not have had the nickname applied to him.

Other similar examples that have been found by the Tribunals to be discrimination include calling an Irishman 'thick Paddy' and references to Hitler and the making of Nazi salutes to a German worker.

PAY IN LIEU OF NOTICE

An employee was dismissed by their employer as redundant with only four days' notice. Her contractual entitlement required three months' notice of dismissal. The employee was paid statutory redundancy pay, holiday pay and a payment the employer termed an "ex gratia payment" equivalent to three months' salary. The employee claimed damages for dismissal without notice, but the employer argued the employee had already received damages for the notice period by way of the ex gratia payment. This argument was rejected by the Tribunal. The employer's letter did not state that the ex gratia payment was a payment which the employee was contractually entitled to (i.e. notice pay) – in fact it stated the opposite. Therefore the employee was entitled to seek damages for the unpaid notice pay.

If you allow an employee to leave before their contractual notice period has ended, the employer must make a payment to the employee in lieu of the notice period (PILON) and this will normally be subject to tax because it relates to the employee’s earnings. This payment should be detailed in the employee’s dimissmal letter.

ALCOHOL AT WORK

The Employment Appeal Tribunal decided that an employee who drank an alcoholic drink during the working day had been unfairly dismissed. The employee had been seen drinking in a pub during his lunch break. The Employer’s policies included statements that being under the influence of alcohol during working hours was a gross misconduct offence and that consumption of alcohol while performing company business or in the workplace was prohibited. So, when the employee wasn’t able to give a satisfactory explanation he was invited to a disciplinary hearing and ultimately dismissed.

The Tribunal found that the employee was not aware of the alcohol policy and decided that dismissal was not within the range of reasonable responses. The Tribunal also noted that the policy seemed to confuse “consumption of alcohol” and “being under the influence of alcohol”. Although the company appealed, the EAT agreed that the wording of the policy was not tight enough to permit dismissal for drinking a single alcoholic beverage outside the workplace even if it was during working time.

The case highlights the importance of ensuring that policies are clear and precise and that they are communicated to each employee effectively.

We would advise that employers always ask their employees to sign and date important documents. This may seem onerous, but it offers you protection when you need to apply the policy, especially in a gross misconduct situation.

IF YOUR BUSINESSS NEEDS ANY HR SUPPORT, ADVICE OR ASSISTANCE, PLEASE CONTACT US ON 0845 450 0898

Agency Workers Regulations 2011

2011-07-08T09:00:00.000+01:00

Agency workers currently benefit from workplace discrimination protection and from statutory minimum rights, such as holidays, under the Working Time legislation and Statutory Sick Pay.

However, from October 2011, new legislation should finally come into force which will provide agency workers in the UK new rights and benefits. However, these regulations have been continually argued over and regularly postponed so more changes could emerge!

The new Regulations “WILL” cover:
Any worker who is not directly employed by your business, but supplied by an agency to work under a temporary arrangement, who is supervised by your business for a period of time. This will also include workers sourced via an intermediary such as some payroll services.

The Regulations “DO NOT” cover:
· Workers who are acting as professionals, such as doctors, accountants, lawyers, professional consultants or who those individuals who are genuinely self-employed and working through their own account.
· Those individuals who are engaged by companies providing a genuinely out-sourced service to your business.
· Permanent employees of the agency, an individual on a secondment from other organisations or temporary workers directly engaged by you.

The benefits that agency workers will receive from day one:
There are certain entitlements that agency workers will receive from the first day of the assignment, which are not subject to the 12 week qualifying period. These include:
· The right of pregnant agency workers to have time off for ante-natal clinics.
· The right to be informed about job vacancies within the hiring organisation.
· The right to the same amenities and facilities enjoyed by direct employees,including on-site canteens, child care facilities and transport schemes.

The benefits agency workers will receive after the twelve week qualifying period:
Agency workers will be entitled to the same basic working and employment conditions, as if they had been directly employed by the hiring organisation. This includes:
· Pay in line with direct employees
· Overtime and shift allowances
· Hours of work, rest and breaks
· Restrictions on night work
· Bonuses related to the quality or quantity of work done
· Company holiday entitlement above the statutory minimum
· Luncheon vouchers or similar voucher style rewards

There are exclusions to agency workers having equal treatment after 12 weeks, which includes the following:
· Any benefit which could encourage or reward loyalty or long service
· Bonus's which are not based on the individual's performance
· Financial participation schemes (such as company share options)
· Company sick pay above the statutory minimum
· Maternity, paternity or adoption leave in excess of statutory entitlement.
· Company pension scheme
· Redundancy payments
· Non monetary staff discount schemes
· Pay for time on Trade Union duties
· Salary sacrifice, company loan or advance of pay schemes

This introduction to the new Agency Worker Regulations only scratches the surface in terms of the regulations complexity. The guidance does not address some of the more challenging questions and the Employment Tribunal will be left to tackle the trickier issues – as usual !!

IF YOU NEED ASSISTANCE WITH IMPLEMENTING
A POLICY THEN PLEASE CONTACT US ON 0845 450 0898

NEW ANTI BRIBERY LEGISLATION

2011-06-03T09:00:00.001+01:00

The Bribery Act 2010 will come into force on 1 July 2011. It is considered to be one of the strictest pieces of anti-corruption legislation worldwide. Essentially, bribery is defined as giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly or to reward that person for having already done so.

There are four main criminal offences under the Act:
* Bribing another person, including offering, promising or giving a bribe.
* Being bribed, including requesting, agreeing to receive or accepting a bribe.
* Bribing a foreign public official.
* The corporate offence of a failure by a commercial organisation to prevent persons associated with it from bribing another person on its behalf.

The first three offences are mainly committed by an individual e.g. employee. However, the last offence only applies to businesses and will be the biggest concern to employers, who could find themselves liable for failing to prevent bribery committed by those who provide them with services. However, employers will have a defence if they can prove they had “adequate procedures” in place to prevent bribery.

If a prosecution is successful under the Act, the penalties could be:
* Directors, Partners and Senior Managers could face up to 10 years imprisonment and/or an unlimited fine, if found guilty of one of the first three offences as detailed above.
* Additionally a Director may be given a Disqualification Order for up to 15 years (under the Company Directors Disqualification Act 1986).

Adequate procedures depend on the bribery risks you face and the nature, size and complexity of the business. As a business, considerations include:
1. Proportionality – how large and widespread is your business?
2. Commitment – top level commitment from the business leaders to create an anti-bribery culture in the company.
3. Risk Assessment - Who do you do business with? Where might bribery be common place?
4. Due Diligence - a company must know its clients, employees and agents. Carry out checks on who you are dealing with.
5. Communication - a company must ensure that its employees and agents know and understand the company’s anti-bribery policies. Explain to all people who may cause risk (whether internal or external) what you are attempting to avoid.
6. Monitoring and review - markets change and companies move into new markets. In either case, the assessment of risk must be continual.

Corporate Hospitality and other Business Expenditure
The guidance adopts a permissive tone on this topic. It states that “bona fide hospitality and promotional, or other business expenditure which seeks to improve the image of a commercial organisation, better to present products and services, or establish cordial relations, is recognised as an established and important part of doing business and it is not the intention of the act to criminalise such behaviour”. Therefore, it is still permitted to provide genuine hospitality (if reasonable and proportionate). Tickets to sporting events, lunches, paying for travel expenses is still acceptable.

Your business could be at risk if you do not review / update or introduce the relevant policies within your employment documentation.

IF YOU NEED ASSISTANCE WITH IMPLEMENTING A POLICY THEN PLEASE CONTACT US ON 0845 450 0898

Repeal of Retirement Age Provisions

2011-05-20T09:00:00.000+01:00

The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 came into force on 6 April 2011, repealing the Default Retirement Age (DRA) and the statutory retirement procedures. Employers can no longer give new notices of retirement under the statutory procedures. For those employees who have or will have reached the age of 65 before 1 October 2011 and who have already been issued with a notification of an intended retirement date, the statutory retirement procedures must still be carefully followed as failure to meet the requirements of the statutory procedure could expose you to a claim for age discrimination and unfair dismissal. In addition, you should take legal advice if an employee who has been issued with an intended retirement date requests to work beyond this date and you are considering agreeing to this request because if it is not managed properly, you may find that you are unable to retire the employee at all.

Most employers are abandoning compulsory retirement ages, because they can not pass the stringent test of being able to "objectively justify" compulsory retirement. Employers who want to retain a compulsory retirement age must seek legal advice before deciding to do so.

As employers can no longer rely on a compulsory retirement age, the question of retirement will be entirely up to the employee. Making suggestions that an employee should retire may lead to claims of age discrimination and constructive dismissal. Therefore, dismissing an employee will only be possible if there is some other potentially fair reason for dismissal under established principles.

If you haven’t already done so, employers need to implement well thought out performance management procedures and ill-health processes that must be applied to older employees in the same way as to younger employees. You must not implement procedures that are used to manage employees who are at an age that you consider ‘retirement age’ as this will be age discrimination. Polices and procedures must be applied consistently to all employees.

If you are no longer relying on a compulsory retirement age, you will need to consider:

Writing to employees to explain any changes, including changes to employment contracts where relevant.

Making specific contractual provisions regarding Group insured benefits that may, under the regulations, be withdrawn or not offered for those aged 65 and over (or the state pension age when it is raised).

Changing Contracts of Employment for new starters.

Withdrawing your retirement policy – the decision to retain a retirement policy and its content, should be based on specific legal advice relating to the individual employer.

Reviewing the wording of and company wide schemes, which make reference to provisions conditional on retirement.

How pension schemes may be affected and the pension options where an employee remains in service beyond a pension scheme's Normal Retirement Date.

2011-04-13T09:00:00.001+01:00

THE GOVERNMENT HAS OPTED NOT TO EXTEND FLEXIBLE WORKING FOR PARENTS

In a bid to reduce regulation for businesses, the Government announced that the right to request to work flexibly will NOT be extended to parents of children under 18 as previously planned.

Currently, the right applies to certain carers of adults and children under 17 years of age, or under 18 if the child is disabled. Regulations extending the right to parents of children under 18 were due to come into force on 6th April.

The Government still has plans however to ultimately extend the right to request flexible working to all employees.

NEW RATES NATIONAL MINIMUM WAGE WILL COME INTO FORCE ON 1 OCTOBER 2011:

· Hourly rate for adult workers (21 years and older) increases from £5.93 to £6.08 per hour
· Hourly rate for 18 to 20 year olds (development rate) increases from £4.92 to £4.98 per hour
· Hourly rate for 16 and 17 year olds increases from £3.64 to £3.68 per hour
· Hourly rate for apprentices will increase from £2.50 to £2.60 an hour.

EQUALITY ACT 2010

The positive action provisions of the Equality Act 2010 in relation to recruitment and promotion came into force on 6th April, allowing employers (but not obliging employers) to treat individuals with a protected characteristic more favourably in recruitment or promotion where candidates are of equal merit.

Specific conditions must be satisfied for employers to make use of the provisions and given the complexities of the provisions, legal advice should be taken where positive action is considered.

BRIBERY ACT 2010 WILL COME NOW INTO FORCE ON 1 JULY 2011

Following the Government’s announcement last month to delay the implementation of the Bribery Act, it has now been announced that the Bribery Act 2010 will come into force on 1st July 2011.

Businesses that have not yet taken steps to comply with the Act will therefore need to act quickly to ensure that they have adequate procedures in place.

NEW TAXATION ON TERMINATION PAYMENTS

Prior to 6th April 2011, any tax due on a termination payment could be deducted at the Basic Rate (BR) if it was made after the employment had ended and the P45 issued. An employee liable to tax at the higher or additional rate would pay this through self-assessment at the end of the tax year.

However from 6th April, changes to the Income Tax (Pay As You Earn) Regulations 2003 mean that employers will need to deduct tax using code OT, ( normal rate of 20%, 40% or 50%) applicable to that individual when the employment ceased. It is up to the individual to recoup any overpayment of tax as a result of later tax allowances in their self-assessment form at the end of the tax year.

Compromise Agreements paid after 6th April 2011 need to follow the new rules and it may be prudent to inform affected individuals.

GOVERNMENT’S NEW ANNUAL LIMIT ON MIGRATION TO THE UK

2011-03-25T14:23:00.000Z

The UK Border Agency has announced the Government's new annual limit on non-EU workers, which will take effect on 6 April 2011.

At the end of 2010, the Home Office announced that 20,700 visas will be made available to skilled workers applying through Tier 2 of the points-based system, as well as 1,000 visas under a new “exceptional talent route”.

Under this new system, employers will have to apply for a Certificate of Sponsorship from the UK Border Agency for a specific post if they wish to bring someone to the UK.

If the employer’s application is successful, the UK Border Agency will give an A or B rating and add the employer to their published Register of Sponsors. The B rating is for sponsors who they think could be a risk to immigration control or who do not have all the correct systems in place. The employer must follow a sponsorship action plan designed to help them become A--rated, or risk losing their licence.

Employers who are licensed as a sponsor are responsible for ensuring that migrants comply with their immigration conditions, by keeping records on them and reporting any changes (such as a failure to turn up for work) to the UK Border Agency. If an employer does not comply with their duties, they can have their licence downgraded or even withdrawn.

The worker will need the Certificate of Sponsorship when they apply for a visa to come into or stay in the UK. They will also need to pass a points-based assessment.

Employers filling a vacancy that attracts a salary of £150,000 or more will not be subject to the limit on the number of certificates of sponsorship that may be allocated.

The annual limit of 20,700 certificates of sponsorship will be divided into 12 monthly allocations. Due to the likely demand in the first month, 4,200 certificates of sponsorship will be made available in April. After that, the limit will be set at 1,500 places per month. Any allocated places that are unused each month will be rolled over to the following month.

In the event that the monthly allocation is over subscribed, Certificate of Sponsorship Applications will be ranked using a points system designed to favour jobs on the shortage occupation list, scientific researchers and those with a higher salary. Once a Certificate of Sponsorship has then been granted to an employer, it must be assigned to the prospective employee within 3 months.

Workers from outside the EU who want to come to the UK will need to have a graduate level job, speak an intermediate level of English, and meet specific salary and employment requirements.

The intra-company transfer route, which will not form part of the annual limit, will also be changed:

The job will have to be in an occupation on the graduate occupation list.

2. Only those paid £40,000 or more will be able to stay for more than a year. The transfer will be granted for 3 years with the possibility of extending for a further 2 years.

3. Those paid between £24,000 and £40,000 will be allowed to come to the UK but for no longer than 12 months, at which point they must leave and will not be able to re-apply for 12 months.

EMPLOYEES RIGHT TO REQUEST 'TIME TO TRAIN'

It has been announced that the Right to Request Time off for Training will NOT be extended to small and medium-sized businesses (SMEs) from April 2011. The right remains in force for organisations with 250 or more employees, which was brought in last April and was due to be extended this year.

ADDITIONAL PATERNITY LEAVE FOR BABIES DUE ON OR AFTER 3 APRIL 2011

2011-02-16T16:13:00.001Z

ADDITIONAL PATERNITY LEAVE COMES INTO FORCE
FOR BABIES DUE ON OR AFTER 3RD APRIL 2011

Additional paternity leave is a new and separate right for parents, which comes into force for babies due on or after 3rd April this year.

Qualifying fathers of babies will be able to take:

· Paternity leave entitlement of up to 2 weeks, which must be taken within 56 days following the birth of the child or the child’s placement for adoption;

AND

· Additional paternity leave entitlement of between 2 and 26 weeks’ additional leave in the period that begins 20 weeks after the child’s birth date or the child’s placement for adoption.

The employee must provide their employer with at least eight weeks’ notice that the employee wishes to take the additional paternity leave.

An employee’s additional paternity leave must end by the end of the 52nd week after the child's birth or placement for adoption. However, in order to qualify for the leave, either the child’s mother’s period of maternity leave or the employee’s partner’s statutory adoption leave must have come to an end.

Additional paternity leave must be taken in multiples of complete weeks and as one continuous period.

Employees’ who qualify for additional statutory paternity pay will only receive payment during the time their partner is eligible for statutory maternity or adoption pay, or maternity allowance.

Gaps between the end of maternity leave and the beginning of additional paternity leave will be permitted, although in practice, the father's leave is likely to be taken immediately after the mother returns to work.

Employees taking additional paternity leave can work up to 10 ‘keeping in touch days’ on the same terms and conditions as a mother on maternity leave.

Additional paternity leave does not work by transferring leave between both the parents. Therefore, a couple could have a combined maternity leave and additional paternity leave period that lasts longer than the 52 week maternity leave entitlement. For example:

If maternity leave starts 11 weeks before the expected week of confinement (the earliest time maternity leave can start); the baby arrives on time and maternity leave continues for 20 weeks, the employee will have taken 31 weeks maternity leave. Additional paternity leave is then able to begin and can continue for 26 weeks, giving the couple 57 weeks combined leave rather than the maternity cover of 52 weeks.

BRIBERY ACT DELAYED FOR A SECOND TIME

The implementation of the Bribery Act has now been delayed for a second time while the government clarifies guidance for businesses.The Ministry of Justice are working on the guidance to make it practical and comprehensive for business to adhere to. When the guidance is published, it will be followed by a three-month notice period before the Act is implemented.

EMPLOYEES RIGHT TO REQUEST 'TIME TO TRAIN'

From 6th April 2011, all Employers are obliged to consider seriously any training requests that they receive from qualifying employees and respond within the statutory process and timescales. Employers can refuse a request where there is a good business reason for doing so.

IF YOU NEED ASSISTANCE WITH INTRODUCING A

POLICY FOR ANY OF THE ABOVE THEN PLEASE

CONTACT US ON 0845 450 0898.

Legal Timetable - 2011

2011-01-18T14:00:00.000Z

1 February 2011
Employment Rights (Increase of Limits)

The limit for unfair dismissal will increase from £65,300 £68,400.
Redundancy payment will rise from £380 to £400.
The maximum award and statutory redundancy increases from £11,400 to £12,000.

3 April 2011
The standard Statutory Maternity (SMP), Paternity (SPP) and Adoption (SAP) Leave pay rate increases from £124.88 to £128.73 or the earnings-related rate, which is 90% of the employee's average weekly earnings.

3 April 2011
Work and Families Act 2006

New right for fathers to take additional paternity leave expected to be introduced (for babies due on or after 3 April 2011).

6 April 2011
The standard rate of Statutory Sick Pay (SSP) increases from £79.15 to £81.60 per week.

6 April 2011
Increase in personal allowance and national insurance contributions for employees.
Increase in national insurance thresholds and contributions for employers.

6 April 2011
Equality Act 2010

Positive action in recruitment and promotion come into force. Employers can treat individuals with a protected characteristic more favourably than others in connection with recruitment or promotion. This applies only to candidates of equal merit.

6 April 2011
Apprenticeships, Children and Learning Act 2009

Right to request time off for training expected to be extended to employers with less than 250 employees.

6 April 2011
Transitional period for the removal of the default retirement age comes into force. Employers can no longer retire employees using the default retirement age of 65.

An employer that issues a notification of retirement before 6 April 2011 will be able to retire the employee if the retirement date is before 1 October 2011.

6 April 2011
The Flexible Working Regulations 2010

Right to request flexible working expected to be extended to parents of children under 18.

April 2011
Bribery Act 2010

The Act introduces a corporate offence of failure to prevent bribery by persons working on behalf of a business. A business has a defence if it has adequate procedures in place to prevent bribery. The penalty is an unlimited fine. The legislation raises the maximum penalty for bribery by individuals from seven to 10 years’ imprisonment.

April 2011
Annual limit on economic migration to the UK

The number of people permitted to enter the UK from outside the EU is limited to 20,700 per annum under the skilled worker route (except for those earning a salary of more than £150,000 or in-country applications from those in the UK), and 1,000 per annum under the new exceptional talent route. Tier 2 (general) is open only to migrants performing jobs at graduate level and Tier 1 is restricted to all but entrepreneurs, investors and the exceptionally talented.
The minimum salary for individuals who wish to enter the UK under the intra-company transfer route for more than 12 months is £40,000 but there is no limit on the number of migrants in this category.

5 June 2011
Transnational Information and Consultation of Employees (Amendment) Regulations 2010

The Regulations provide new rights to European Works Council members and those of special negotiating bodies, for example establishing a right to time off to undergo training to help them undertake their duties.

19 June 2011
EU "blue card" Directive

The Directive defines conditions of entry and residence for more than three months of people who are not EU citizens and apply to be admitted to the EU for the purpose of high-qualified employment. Such people will be issued with an "EU blue card".

1 October 2011
National Minimum Wage

Any agreed annual increase of the National Minimum Wage is implemented.

October 2011
Removal of default retirement age becomes effective. From the 1 October employers can no longer prescribe a compulsory retirement age, unless it can justify it as a proportionate means of achieving a legitimate aim.

1 October 2011
Agency Worker Regulations 2011

These regulations are expected to provide agency workers with the same basic employment conditions after 12 weeks in an assignment as permanent employees.

RIGHT TO REQUEST FLEXIBLE WORKING EXTENDED AND INFO FOR EMPLOYERS RE ROYAL WEDDING BANK HOLIDAY

2011-01-05T16:06:00.002Z

THE RIGHT TO REQUEST FLEXIBLE WORKING EXTENDED TO ALL PARENTS OF CHILDREN UNDER 18

The Government is extending the right to request flexible working to all parents with children under the age of 18 From 6 April 2011.

The Government is also launching a consultation on the feasibility of allowing everyone the right to make a flexible working request.
Statutory regulations require that an employee must be continuously employed by the same employer for more than 26 weeks to be eligible to make a flexible working request.
Should an eligible employee make a flexible working request, the employer:

· Is obliged to hold a meeting with the employee to discuss the request.

· Has a duty to consider the request.

· Can reject the request for a number of reasons.

The decision must be set out in writing and the employee must be given the right to appeal against the decision. The process must be completed within statutory timescales.

Employers should be careful not to treat flexible working requests from one group of employees more favourably than another, particularly on grounds that could be viewed as discriminatory. It is easy to set a precedent by granting a request, which can then become difficult to deviate from later on. Now we are aware that the government is considering offering the right to flexible working to everyone, it is even more important to consider the impact of agreeing a request at this current time.

HOW SHOULD EMPLOYERS DEAL WITH THE ANNOUNCEMENT THAT PRINCE WILLIAM AND KATE MIDDLETON’S WEDDING IS TO BE MARKED BY AN EXTRA PUBLIC HOLIDAY ON 29 APRIL 2011?

There is no automatic right for an employee to have the day off on a Bank Holiday in England and Wales, it will depend on how the employee’s Contract of Employment is written.

For example, if the employee’s Contract states “20 days (or more) plus bank holidays” then the employer is likely to have to contractually give the employee an extra day’s paid leave on the 29th April 2011. However, if the Contract states “28 days including Bank Holidays” then there will be no extra contractual entitlement.

Employers can agree to allow the extra day, even if the Contract does not allow for it. However, employers should be aware, if you choose to override the Contract of Employment, make sure you communicate to your employees, in writing, that the terms of their Contract still stand and that you are agreeing to this extra day’s holiday in this instance only - there will be other years when an extra bank holiday is officially granted by the Government.

AGENCY WORKERS REGULATIONS 2010

2010-11-26T15:32:00.002Z

The Agency Workers Regulations 2010 will now come into force in October 2011. The government has now taken the decision not to make amendments to the Regulations, but will instead use the next 12 months to develop the "best possible" guidance to help employers comply with their obligations under these complex regulations.

KEY POINTS
The Regulations only apply to agency workers. Agency workers are defined as “workers supplied by a temporary work agency” to work “temporarily for and under the supervision and direction of a hirer”. These workers are more commonly referred to as “temps”.
Agency workers will have some rights immediately as they start working for you as a temp, including:

· The right to information regarding any current job vacancies

· The right to equal access to on-site facilities such as your staff canteen, child care arrangement and transport services

Upon completion of a 12 week qualifying period, an agency worker will be entitled to the same basic working and employment conditions as if he/she had been recruited directly by you on day one of the assignment, whether as an employee or a worker. These will include:

· Pay - including any contractual overtime pay and shift allowance payment

· Bonuses - provided that they are “directly attributable to the quality or quantity of work done by the agency worker”

· Maximum working time protection

· Length of night work protection

· Rest periods

· Rest breaks

· Annual leave entitlement

Agency workers will not be eligible to:

· Occupational sick pay

· Redundancy pay

· Maternity, Paternity or Adoption leave payments

· Membership of financial participation share schemes

· Occupational pension

· Notice pay

· Bonuses, incentive payments or rewards “not directly attributable to the amount or quality of the work done by a worker”

Benefits in kind are excluded but vouchers or stamps of a fixed monetary value (such as luncheon vouchers) are included. Like all new legislation, there will inevitably be grey areas.

PRACTICAL STEPS TO TAKE BEFORE THE AGENCY WORKERS REGULATIONS 2010 COME INTO FORCE
Employers should consider:

· Reviewing the use of agency workers within their own business

· Reviewing how compliance will impact upon costs and practices and consider whether there are more cost-effective ways of meeting your flexible labour needs

· Improving record-keeping to assist not only with the provision of relevant information to agencies (when requested), but also to monitor when individuals have satisfied the qualifying 12 week period

· Consider how agency workers might access news on internal vacancies

· Negotiating exclusivity with fewer agency suppliers, whilst also renegotiating terms to reduce risks and costs

BREACHING THE REGULATIONS
Agency workers can claim compensation where they have been denied the terms and conditions granted under the Regulations. The agency worker would be compensated for an amount that an Employment Tribunal considers “just and equitable”, taking into account the loss suffered as a result. Both the agency and hirer will be liable to pay this compensation to the extent they are responsible for the breach of the Regulations.

Any “structure of assignments”, such as placing agency workers on a series of 11 week contracts or varying their roles every few weeks, is prohibited and may also attract additional financial penalty in the form of a fine of up to £5,000. A break of at least 6 weeks between assignments may be necessary to restart the 12 week clock.

Employees' Right to Request "Time to Train"

2010-10-15T14:05:00.001+01:00

Employees who work in an organisation with 250 or more employees currently have the statutory (legal) right to request time for study or training. This right is known as 'time to train'.

This right for 'time to train' is due to be extended to all employees from April 2011. However the Government has issued a consultation to ascertain employers views regarding this legislation and whether it is improving training opportunities for employees. Views were sought by 15 September 2010 and the Government response to the consultation will be published in December 2010. It will be dependant on the outcome of this review as to whether the legislation will be repealed altogether, retained as it, amended to make it less onerous, or is extended to all employees - regardless of the size of the employer. We will keep you informed!

Employers with 250 or more employees are still obliged to consider seriously any training requests that they receive and respond within the statutory process and timescales. Employers can refuse a request where there is a good business reason for doing so.

If a request is agreed, the employer is not obliged to pay the employee for the time they are training.

Employees can request time off to do any training that would help them be more effective at work and improve the performance of the business they work for. The training can be training that leads to a qualification, or training that helps the employee develop their skills at work. There is no limit on the amount of time that the employee can ask for, but the employee can only make one request in any 12 month period.

To make a statutory request for 'time to train' employees must:
· be an employee of the business
· have worked for their employer continuously for at least 26 weeks before they apply

The employee must set out their request for time to train in writing and provide the employer with the necessary information, as per the statutory process.
If the employer refuses the employees request to have time off for study or training, the employee has the right to appeal against this decision.

If you require help with implementing a ‘Time to Train Policy’, please contact us on 0845 450 0898 or email us at helpline@firsthruk.com.

PRE-EMPLOYMENT HEALTH QUESTIONS - HOW ARE THESE EFFECTED BY THE NEW EQUALITY ACT?

2010-09-24T09:00:00.000+01:00

In our last Legal-Ease we informed you that the Equality Act 2010 came into force on the 1st October 2010. Section 60 of the new Act deals with “Enquiries about disability and health”. This section is likely to affect all employers in that it provides that an employer should not ask health (including disability) related questions before making an offer of employment. This includes asking any health questions as part of the application process or during an interview. Questions that relate to the applicants past health, such as previous sickness absence, will count as question relating to health or disability.

It will still be possible to ask health questions after an offer has been made and to make an offer of work conditional upon a satisfactory medical.
Ensure your recruitment process is updated and that interviewers understand what questions they can and cannot ask in interview to avoid an inference of discrimination by an unsuccessful job applicant.

SOME QUESTIONS CAN BE ASKED...
There are some exceptions when questions regarding disability and health may be asked pre-job offer. This will include questions which are necessary to determine whether the applicant needs reasonable adjustments to be put in place during the recruitment.

Another exception is where questions are necessary to decide whether an applicant can carry out a function that is ‘intrinsic” to the job. However, even if a function is intrinsic to the job, the employer should only ask a question about the applicant’s health to establish whether the applicant is able to do the job with reasonable adjustments in place. In reality, there will be very few situations where a question regarding a person’s health or disability can be asked prior to making a job offer.

Simply asking an applicant about their health prior to a job offer will not in itself amount to discrimination, but Tribunals will be able to draw inferences of discrimination where such questions have been asked. Furthermore, a jobseeker who considers an employer is acting unlawfully can complain to the Equality and Human Rights Commission, who will have the power to investigate the use of prohibited questions and take enforcement action in its own name, even where no discrimination can be shown to have taken place.

PAY SECRECY CLAUSES
Pay secrecy clauses are clauses in employment contracts (or related policies), which prevent an employee from disclosing or discussing their salary / wages or bonuses with, for example, their colleagues.

A new provision in the Equality Act is intended to make any employment terms which aim to prevent or restrict employees from disclosing their pay details unenforceable in certain circumstances.

The Government believes that greater transparency about pay is one way of reducing the gender pay gap between men and women. Therefore, employees will be able to ask colleagues about their pay where the purpose of any discussion is to ascertain whether there is a connection between any difference in pay and a protected characteristic. This will not enable employees to breach confidentiality restrictions where this is not the purpose of the discussion e.g. talking to a competitor with a view to securing a better offer.

Any action taken against an employee by an employer as a result of a protected pay discussion will be treated as victimisation.

EQUALITY ACT 2010 (EQUALITY BILL) - WHAT YOU NEED TO KNOW

2010-08-13T12:12:00.002+01:00

After some uncertainty the Equality Act will come into force on 1 October 2010. The Act will achieve its stated aim of consolidating the existing discrimination and equal pay legislation. The new Act should make it easier for businesses and employers to comply. (Please refer to June’s Legal Ease).

The Act will protect individuals on the following grounds:
· Age
· Disability
· Gender reassignment
· Marriage and civil partnership
· Pregnancy and maternity
· Race
· Religion or belief (including lack of belief)
· Sex
· Sexual orientation

There are no new characteristics added but note that the definition of gender reassignment has been broadened so that it will no longer be necessary for an individual to be under the supervision of a medical practitioner to enjoy protection.

There is still some uncertainty, for example, in respect of the gender pay reporting provisions in the Act.

The Act also contains other provisions that are not yet coming into force, including the new concept of dual discrimination, an extended public sector Equality Duty and a prohibition on age discrimination in services and public functions. The Government is looking at how the rest of the Act can be implemented in the best way for business, and will make an announcement in due course.

DISABILITY
The Act has made it easier for a person to show that they are disabled and protected from disability discrimination. Under the Act, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

THE EQUALITY ACT – WHAT’S NEW FOR EMPLOYERS?
The employer continues to have a duty to make reasonable adjustments to help an employee overcome any disadvantage resulting from an impairment.

The Act includes a new protection from discrimination arising from disability. This states that it is discrimination to treat a disabled person unfavourably because of something connected with their disability (e.g. a tendency to make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer or other person acting for the employer knows, or
could reasonably be expected to know, that the person has a disability. This type of discrimination is only justifiable if an employer can show that it is a proportionate means of achieving a legitimate aim.

GENDER REASSIGNMENT
The Act provides protection for transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The Act no longer requires a person to be under medical supervision to be protected – so a woman who decides to live permanently as a man but does not undergo any medical procedures would be covered.

Transgender people such as cross dressers, who are not transsexual because they do not intend to live permanently in the gender opposite to their birth sex, are not protected by the Act.

It is discrimination to treat transsexual people less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent because they were ill or injured. Medical procedures for gender reassignment such as hormone treatment, should not be treated as a ‘lifestyle’ choice.

DIRECT DISCRIMINATION
The new definition of direct discrimination – less favourable treatment “because of” the protected characteristic of disability – is wide enough to cover discrimination by association. So, for example, if an employee was refused a job because he or she had a disabled child, this would be direct discrimination. The employer's treatment of the claimant would be "because of" the protected characteristic of disability, albeit the child's rather than the claimant's.

INDIRECT DISCRIMINATION
Indirect discrimination now covers disabled people. This means that a job applicant or employee could claim that a particular rule or requirement you have in place disadvantages people with the same disability. Unless you could justify this, it would be unlawful.

PRE-EMPLOYMENT
There are new rules against employers from asking job applicants disability-related questions, though this is subject to major exceptions.

The Act makes it unlawful for an employer (or any recruitment agency or consultant) to "ask about the health" of a job applicant before offering work to, or shortlisting, the applicant. If the employer asks an unlawful question about health during the recruitment process, and the applicant does not get the job, in any subsequent disability discrimination claim the burden of proof will be on the employer to show that there was no discrimination.
Both written and oral questions are outlawed by the provision, so those conducting job interviews will have to be careful to avoid the subject of health or fitness. The provision is not limited to questions directed at the job applicant. A request for a reference sent before a job offer is made must also avoid asking questions that contravene the provision.

For further information refer a 'Quick Start Guide for Employers' (link to ACAS).

PRACTICAL STEPS TO TAKE BEFORE THE EQUALITY ACT 2010 COMES INTO FORCE

· Review existing policies and procedures regarding discrimination and harassment (including grievance procedures) and decide whether they should be updated – if changes are necessary amend and communicate to all employees.

· Ensure that all Directors, Managers and employees in your business are aware of the changes and how they are realised through your policies.

· Provide appropriate training where necessary.

If you require help with implementing or amending your Policies, please contact us on 0845 450 0898 or email us at helpline@firsthruk.com.

THE GOVERNMENT IS PLANNING TO SCRAP THE DEFAULT RETIREMENT AGE (DRA) ON 1st OCTOBER 2011

2010-07-30T09:00:00.000+01:00

In our current system, as long as the correct retirement process is followed, employers can enforce their staff to retire at the age of 65, regardless of their circumstances and without having to pay any financial compensation.

The government announced in the budget that they intended to consult on how the DRA could be phased out from as early as April 2011.

The government is now proposing that from 6th April 2011, employers will not be able to issue any notifications for compulsory retirement using the DRA procedure. Between 6th April and 1st October 2011, only those people who were notified before 6th April 2011 and whose retirement date is before 1st October 2011, can be compulsorily retired.

The government has stated that the plans would still make it possible for certain employers to operate a compulsory redundancy scheme, if it could be justified, citing air traffic controllers and police officers as examples. However, most jobs will not fall into this category.

The consultation proposes to help employers by removing the administrative burden of the statutory retirement procedures. With the DRA removed, employers will no longer need to ask employees if they wish to work beyond retirement or for employers to give them a minimum of six months' notice of retirement.

If this proposal goes through, the challenge for employers will be when an employee is deemed at ‘retirement age’ who chooses not to retire, but is no longer performing the role at the required level. The only option will be performance management. This will require skilful management of what could potentially be a very difficult situation.

It is likely that the removal of the DRA of 65 will radically change how employers manage their workforce. We will keep you informed as this one develops.

GOVERNMENT IMPOSES A TEMPORARY IMIGRATION CAP FROM 19 JULY 2010

The Government is now consulting with employers over a permanent annual migration cap to be introduced in April 2011. To avoid an influx of applications between now and April next year, an interim measure is put into place from 19 July 2010. These interim measures include:

· A cap on the number of Tier 1 migrants at current levels and raising the number of points required by highly-skilled workers from 95 to 100.

· Limiting the number of certificates of sponsorship that licensed employers can issue to those who wish to fill skilled job vacancies. This will reduce the number of people entering through Tier 2 by 1,300. More information can be obtained from the UK Border Agency website.

Legal Update - June 2010

2010-06-16T14:46:00.003+01:00

NEW RATES NATIONAL MINIMUM WAGE WILL COME INTO FORCE ON 1 OCTOBER 2010:

· Hourly rate for adult workers (21 years and older) increases from £5.80 to £5.93 per hour
· Hourly rate for 18 to 20 year olds (development rate) increases from £4.83 to £4.92 per hour
· Hourly rate for 16 and 17 year olds increases from £3.57 to £3.64 per hour

Please Note: - the adult rate, which currently applies to those 22 and over, is to extend to workers aged 21.

A new rate for Apprentices will also be introduced from 1 October – apprentices who are currently exempt from the National Minimum Wage will receive a minimum wage to be set at £2.50 per hour. It will apply to apprentices who are under 19 or those aged 19 and over who are in their first year of apprenticeship.

EQUALITY ACT WILL COME INTO FORCE ON 1 OCTOBER 2010

The Equality Act 2010 consolidates existing equality law into a single piece of legislation. It brings together nine existing major pieces of discrimination legislation (including Sex, Race and Disability) into a single act and creates a number of new rights and remedies to protect employees from discrimination. It defines direct discrimination as less favourable treatment on the ground of a protected characteristic and establishes indirect discrimination as the application of a provision, criterion or practice that is discriminatory in relation to a protected characteristic.

The Act introduces two completely new types of discrimination:

Combined Discrimination
This will allow claims to be brought by an employee who has been directly discriminated against because of a combination of two protected characteristics e.g. race/age.

Detriment Arising From Disability
This replaces the concept of “disability-related discrimination”. A detriment arising from disability occurs when the employer treats an employee in a detrimental way because of something that is a consequence of their disability. For example, dismissing an employee with a poor attendance when their high absence record was caused by their disability. This would be unlawful unless the dismissal could be justified as a “proportionate means of achieving a legitimate aim” or the employer could not reasonably have been expected to know of the disability.

The Act introduces a number of reforms, including:

· Prohibiting pre-employment health enquiries except in limited circumstances (for example, establishing whether the applicant will be able to “carry out a function that is intrinsic to the work concerned”).

· Extending the scope for employers to take “positive action” as a proportionate means of enabling or encouraging people with a protected characteristic to overcome or minimise disadvantage, or participate in activity where they are underrepresented e.g. selecting a female candidate to join an all male management team but only when choosing between two equally qualified candidates.

· The provision to make regulations requiring employers with at least 250 employees to publish information relating to the differences in pay between men and women (expected to come into effect in 2013).

· Extending employer liability for harassment to cover harassment of employees by third parties (e.g. customers, clients and suppliers) where this occurs on at least two occasions and the employer has failed to take reasonably practical steps to stop it.

· Making ‘gagging’ clauses, which prevent employees from discussing their pay, unenforceable. Although secrecy clauses will not be banned, they will be unenforceable against employees who make or request a “relevant pay disclosure”. The disclosure must be made with the possibility of pay discrimination in mind.

· Employment tribunals will have the power to make recommendations that benefit the wider workforce, not just the claimant, in a successful discrimination claim.

PRACTICAL STEPS TO TAKE BEFORE THE EQUALITY ACT 2010 COMES INTO FORCE

· Review your business’s existing policies and procedures regarding discrimination and harassment (including grievance procedures) and decide whether they should be updated – if changes are necessary amend and communicate to all employees.

· Ensure that all directors, managers and employees in your business are aware of the changes and how they are realized though your policies.

· Provide appropriate training where necessary.

If you require help with implementing or amending your Policies, please contact us on 0845 450 0898 or email us at helpline@firsthruk.com.