Busy week for
employment law
A number of employment law changes take
place every April. Here is a selection of this
month's key changes so far:
1 April
- Statutory paternity
pay, statutory adoption pay and the basic rate
of statutory maternity pay increased from
£108.85 to £112.75 a week.
- The much talked
about changes to maternity and adoption leave
(e.g. the extension of paid maternity leave from
six to nine months and the introduction of
"keeping in touch days") apply where the
expected week of childbirth or placement for
adoption falls on or after 1
April.
2 April
6 April
-
The right to request flexible working
arrangements will extend to carers of
adults.
-
Statutory sick pay will increase from
£70.05 to £72.55 a week.
-
The Information and Consultation of
Employees Regulations 2004, which establish a
framework for informing and consulting
employees, will apply to all employers with 100
or more employees.
-
All public authorities will need to
comply with the new "gender equality duty",
requiring them to eliminate unlawful
discrimination and harassment and to promote
equality of opportunity for women and
men.
Agency workers - in
the tribunals again
The last few months have seen a number of
cases dealing with the status of agency workers.
At issue in each of them have been the rights of
an agency worker and the obligations of an "end
user", in a triangular arrangement, where an end
user contracts with an agency for the supply of a
worker. Whilst there is a contract between the end
user and the agency and a separate contract
between the agency and the worker, there is
usually no written contract between the worker and
the end user. The triangular arrangement has
caused untold difficulties for agency workers who
want to claim unfair dismissal against the end
user; a claim which can only be brought by
employees.
Two decisions last month followed the
trend set by James v
Greenwich Council and Craigie v
London Borough of Haringey (reported in our
updates on 12
January and on 9
March), which established that the agency
workers in those cases were not employees of the
end user.
In Heatherwood
and Wexham Park Hospitals NHS Trust v Kulubowila
and ors, the Employment Appeal Tribunal (EAT)
confirmed that it was not enough to form the view
that because the worker looked like an employee,
acted like an employee and was treated like an
employee, the business reality was that he was an
employee and that the tribunal must therefore
imply a contract of employment. As the affairs of
the parties were consistent with the express
triangular agreements (i.e. the contract for
services between the worker and the agency and the
contract between the agency and the end user), it
was not necessary to infer a contract of
employment between the Trust and the worker.
Similarly, in Astbury v Gist
Ltd, the EAT again confirmed that a contract
of service did not exist between the worker and
the agency. Both cases note that if Parliament had
intended agency workers to enjoy ordinary unfair
dismissal protection against end users, it would
have extended that protection to them. It has not
yet done so and therefore a change in legislation
would be required.
Statutory grievance procedure
The EAT has resolved a question which often
arises under the statutory dispute resolution
procedures, providing welcome guidance on the
requirement for employees to initiate a statutory
grievance.
In Lawrence v HM Prison
Service the key issue was
whether an employee is required to raise a
statutory grievance (i.e. by lodging a Step 1
grievance letter and waiting 28 days) before
issuing a claim that the dismissal was unfair
because of disability discrimination. Under the
Employment Act 2002 (Dispute Resolution)
Regulations 2004, regulation 6(5) provides that
the statutory grievance procedures do not apply
where the grievance is that the employer has
dismissed or is contemplating dismissing the
employee (this is presumably because a resolution
of the dispute may, in any event, be achieved
during the course of the statutory dismissal
procedures which the employer is obliged to
follow).
The EAT held that
the grievance in this case was that the employer
had dismissed the employee. The contention that
such a dismissal was in breach of the Disability
Discrimination Act 1995 was an issue which one
would normally expect to arise and be explored in
the context of the dismissal procedures. There was
therefore no obligation on the employee to raise a
separate grievance.
The EAT noted that where a complaint is
about the dismissal or matters pertaining to that
dismissal (including the reason why it is said to
be unfair or unlawful), these issues can be aired
and considered through the dismissal process. It
would create considerable difficulties if the
dismissal procedure had to be complied with for
the purpose of dealing with the act of dismissal
itself, whilst issues relating to the manner or
reason for the dismissal (such as whether it was
in breach of any discrimination provisions), had
to be the subject of a separate grievance and be
resolved according to a different set of
procedural rules.
Part-time
workers and bank holidays
The Court of Session in Scotland has
confirmed that an employer who failed to provide a
part-time employee with time off in lieu for
public holidays falling on a Monday was not
discriminating against him under the Part-time
Workers (Prevention of Less Favourable Treatment)
Regulations 2000 (the Regulations).
In McMenemy v
Capita Business Services Ltd, a part-time
employee worked on Wednesdays, Thursdays and
Fridays. The employer's standard employment
contract for all employees (including part-time
employees) provided that they were only entitled
to those public holidays which fell on the
employees' normal working days. The employee
concerned was therefore not allowed time off in
lieu when public holidays fell on Mondays. The
employee claimed that this amounted to less
favourable treatment on the grounds of his
part-time status.
By way of background, under the
Regulations, a part-time worker has the right not
to be treated less favourably than a comparable
full-time worker is relation to the terms of his
contract or by being subject to any other
detriment by his employer. This applies only where
the less favourable treatment is on the ground of
the worker's part-time status and it cannot be
justified on objective grounds. In determining
whether a worker has been treated less favourably
than a full-time comparator, the pro-rata
principle should be applied, unless inappropriate.
This principle means that where a comparable
full-time worker receives pay or any other
benefit, a part-time worker should receive not
less than the proportion of that pay or benefit
that the number of his weekly hours bears to the
number of weekly hours of the comparable full-time
worker.
The Court of Session confirmed that
although the employee in this case suffered a
detriment under the Regulations as he did not
receive days off in lieu for statutory holidays,
this treatment was on the ground that he did not
work on Mondays and not because of his part-time
status. A full-time worker who did not work on a
Monday would have been treated in the same way.
Whilst this case provides useful guidance
in relation to the rights of part-time workers, it
should be noted that this was a decision of the
Inner House of the Court of Session. Although
tribunals in England
would be expected to follow the decision, they are
not strictly bound to do so.
Gender equality duty
- EOC warns against complacency
The EOC has put leaders of all public sector bodies
on notice to prepare for one of the biggest
changes in sex equality legislation: the gender
equality duty.
As outlined above, the gender equality duty
comes into force on 6 April 2007, placing the onus
on public authorities to eliminate sex
discrimination and promote sex equality.
The EOC has warned that there is no room
for complacency about sex equality if the
transformation of public services is to become
reality. It recommends a shift away from the
one-size fits all approach to one which puts the
individual at the heart of the service,
recognising the different needs of men and
women. This
duty follows quickly on the heels of the
disability duty introduced in December
2006.
New ACAS guidance
ACAS has produced new guidance in time for
the extension of the right to request flexible
working arrangements to employees who care for
adults, which, as noted above, comes into force on
6 April 2007.
It has produced an advisory booklet
on flexible working and
work-life balance and an updated advice leaflet
on the right to request
flexible working for employers, parents and
carers.
Flexible Working
Bill
The Liberal Democrats introduced a Flexible
Working Bill in the House of Commons last week, to
extend the right to request flexible working to
all parents with children under the age of 18.
The right to request flexible working
current applies to parents with children under the
age of six (and, from 6 April, to carers of
adults).
The Bill has been ordered to be read a
second time on 19 October 2007.
Ageism still rife in
the workplace
Despite age
equality legislation coming into force in October
2006, ageism is still alive and well in British
workplaces, according to new research from the Employer's Forum on
Age (EFA).
A
fifth (20%) of the people surveyed said that age
has stood in the way of them getting a job, and
almost two thirds (63%) thought that the new
legislation has made little or no difference to
the way that people are recruited. The
research also revealed that more than one
in four (27%) 16-24 year olds think that age has
stood in the way of them getting a job (compared
to just 15% of 35-44 year olds), and one in five
(19%) 25-34 year olds have seen ageist behaviour
in their workplace over the last six months
(compared to just 6% of 55-64 year olds).
The EFA
commented that the research shows that age
stereotypes have been built into British workplace
culture and a change in the law is merely the
first step in a long journey towards tackling
endemic social prejudices.
SMEs lag behind on
diversity
Small- and medium-sized UK businesses have
been slow to embrace ethnic diversity despite the
commercial benefits it can bring, according to
research by the Policy Research Institute on
Ageing and Ethnicity (PRIAE).
In a survey of 300 such businesses,
research found that 90% of them had less than 10%
of black or minority ethnic (BME) managers, and
35% had none. When respondents to the research
were asked if they thought diversity could
contribute to better business performance only
33.5% agreed, showing that many remain to be
convinced.
Pregnancy at work -
bridging the "knowledge gap"
Only 4 in 10 mums think their bosses fully
understand how to manage pregnant staff, according
to the findings of an online survey released today by
Netmums and the EOC.
The online survey of 2,080 mums also
revealed that:
-
only half of
mums felt they were fully aware of their own
rights and responsibilities at work, as a
pregnant woman or new mother.
-
1 in 6 women
said they were not treated very well by their
employer or line manager whilst pregnant.
-
1 in 4 felt they were not
treated very well on their return after
maternity leave.
To bridge the
'knowledge gap' and make pregnancy in the
workplace easier for everyone, the EOC has
launched a toolkit to help
individuals and employers understand their rights
and responsibilities.
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