HR Today
Employment law update stories:
New rates to note - HMRC mileage rates for company-provided vehicles and for business travel abroad
The HMRC advisory rates, used to negotiate dispensations for mileage payments for business travel in company cars, were increased with effect from 01 December 2010. These apply where employers reimburse employees for business travel in their company cars, or require employees to repay the cost of fuel used for private travel.
Engine size:
- up to 1400 cc
- petrol: 13p
- diesel: 12p
- LPG: 9p
- 1401 - 2000 cc
- petrol: 15p
- diesel: 12p
- LPG: 10p
- over 2000 cc
- petrol: 21p
- diesel: 15p
- LPG: 15p
Note: petrol hybrid cars are treated as petrol for this purpose.
For further information, see http://www.hmrc.gov.uk/cars/advisory_fuel_current.htm
HMRC has also revised and updated its scale rates for travel to most countries abroad. These may be used instead of requiring expenses receipts. The latest rates apply from October 2010.
For further details see: http://www.hmrc.gov.uk/employers/emp-income-scale-rates.htm
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This story was featured in the December 2010 edition of HR Today.
Unfair dismissal - proposed increase in required length of service
The government is considering whether to increase the qualifying period for unfair dismissal claims from one year to two years. Any change in qualifying periods does not require an Act of Parliament; an Order by the Minister for Employment Relations under s209 ERA 1996 would be sufficient.
This would not be the first time that the length of service needed to bring an unfair dismissal has been changed. It started in 1971 as six months; was increased in 1980 to one year (two years for small businesses with 20 or fewer employees); was further increased in 1985 to two years for all employees, and then was reduced to one year in June 1999. The argument used in favour of the reduction in June 1999 (which may possibly be used again against the proposed increase) was indirect sex discrimination: the House of Lords (in R v Secretary of State for Employment, ex p Seymour-Smith) said that a two year qualifying period for unfair dismissal was potentially indirectly discriminatory against women, as women were statistically less likely than men to accrue two years' continuous service.
No date for a decision has yet been announced, and it is likely there will be a consultation period first.
For more information on unfair dismissal, see: http://www.intellecthr.org/docs/legal/misconduct.html (login required)
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This story was featured in the December 2010 edition of HR Today.
Right to request flexible working
Many of you will be aware that the right to request flexible working will be extended to parents of children aged under 18 as from April 2011 (currently this right only applies to parents of children up to the age of 17 (18 if the child is disabled), and carers of adults). However, the government has also confirmed that legislation extending the right to request flexible working to all staff, regardless of whether or not they have children or have caring responsibilities, is likely to be implemented in April 2012.
Consultation on a new system of shared parental leave and on extending the right to request flexible working to all employees has already started, and proposals will be issued in January 2011, with the consultation completed in March 2011. According to the timetable, detailed plans for implementation will be published in December 2011, which suggests that these changes, if adopted, are most likely to come into force in April 2012.
For more information on flexible working, see: http://www.intellecthr.org/docs/guides/flexible.html (login required)
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This story was featured in the December 2010 edition of HR Today.
Further increase in maternity pay?
Maternity leave and pay have been amongst those areas which have seen the most change over the past few years. The changes allowing a father to take some of the mother's maternity leave and pay will still take effect for babies due, or adopted, on or after 03 April 2011, but that's not the end of it - future changes from Europe could mean we rewrite our guidance and policies yet again.
The European Parliament has voted to extend the protection afforded by the Pregnant Workers Directive. Assuming that our current provisions would simply be increased in order to meet the European ones (rather than a wholesale replacement which would result in UK employees losing those terms which are better than the European ones), the changes would include:
- an increase in the period of compulsory maternity leave to six weeks (this is currently two weeks in the UK; four if the employee works in a factory). If the couple requests, the six weeks may be shared with the father. For multiple births, the period of compulsory leave must be increased for each additional child.
- full pay during the minimum period of 20 weeks' maternity leave, although the last four of the 20 weeks may be provided instead by a scheme of family-related leave, paid at at least 75% of the last monthly salary or average monthly salary (we currently offer 52 weeks' maternity leave, but the first six weeks are paid at 90% of earnings, and the following 33 weeks at a flat rate)
- the final two weeks of the 20 weeks may be met by paternity leave, paid at the same level of pay (we currently have two weeks at 90% of pay, and the right of the father to take some of the mother's maternity leave if the child is due to be born/adopted on or after 03 April 2011)
- additional maternity leave for mothers of disabled children, although the minimum period is not yet defined
- the right not to have to work night shifts or overtime during the 10 weeks prior to childbirth (earlier if the mother or unborn child have health problems) and during the entire breastfeeding period
- member states are encouraged to allow employees to work part-time for a period not longer than one year, with full dismissal protection during this period and return to their full-time job and pay at the end of the period
- breastfeeding mothers will be given the right to two separate periods of time off each day (of at least one hour each) for breastfeeding once the mother returns to work. This will be pro rata (but not less than 30 minutes) for part-time employees; and increased by 30 minutes for each child in the case of multiple births, unless the employee has agreed something different with the employer
- employees who are pregnant, have recently given birth, or who are breastfeeding, may not be dismissed during the period running from the beginning of pregnancy to at least six months following the end of maternity leave, other than for exceptional unrelated situations
- a proportionate period of leave on full pay must be provided in the case of stillbirth (at least an additional six weeks), premature childbirth, children hospitalised at birth, children with disabilities (at least an additional eight weeks), mothers with disabilities, and multiple births
However, whilst the European Parliament voted in favour of the above, this is not the end of the line - the European Council is expected to consider the amendments this month and a qualified majority of the Council of the European Union would have to approve them before they become mandatory. It could then be three years before we have to implement any final changes to the Pregnant Workers Directive.
The government is expected to seek to block the proposals, which are estimated to cost the UK £2.5 billion a year. The proposals have been criticised by business groups as being both unreasonable and too expensive. We already provide for maternity leave well in excess of 20 weeks: 52 weeks, with 39 weeks paid at the rate of Statutory Maternity Pay (90% of normal pay for six weeks and currently £124.88 per week for the remaining 33 weeks).
In the meantime, read our guides to maternity and adoption leave and pay to ensure that you are abreast of the current changes, and you may wish to amend your maternity and adoption policy if you have not already done so. See: http://www.intellecthr.org/docs/TPduringmaternity.html (login required)
Note also that BIS has published two new booklets, one for employers, the other for employees, which explain the new maternity and paternity rights that apply in the case of babies due on or after Sunday, 03 April 2011. Both booklets can be downloaded from http://www.bis.gov.uk/employment
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This story was featured in the December 2010 edition of HR Today.
National minimum wage (NMW)
The Trades Union Congress (TUC) has met with the Low Pay Commission and proposed that the NMW should rise to £6.14 per hour.
In its submission, the TUC argues that the increase (of 3.5%) would:
- benefit nearly one million workers and help address the gender pay gap. Female workers, employees from ethnic minority backgrounds, disabled employees, and younger and older workers are among the groups who will benefit the most.
- ensure that the earnings of low paid workers do not fall behind the rest of the country. Although predictions suggest that inflation will fall next year, the RPI is still likely to average 3.5% throughout 2011.
- encourage people into work and boost consumer spending: low paid workers tend to spend nearly all of their wage increases in their local economy.
- result in £235m more in income tax and national insurance, and a saving to the Government of £125m in tax credits and in-work benefits.
An increase of 3.5% would be well above the pay rise received by most employees, expected to be around 2%.
It's interesting that the TUC always claims that the NMW is not a barrier to job creation, and yet Ireland - which had the second highest NMW in Europe at €8.65 - has announced it will cut its national minimum wage by 12% in a bid to "remove barriers to employment creation".
For further details of the minimum wage, see http://www.intellecthr.org/docs/legal/minimumwage.html (login required)
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This story was featured in the December 2010 edition of HR Today.
Updated guidance on checking the right to work in the UK and a new cap on immigration
All employers have a legal responsibility to check that new recruits are entitled to work in the UK. Failure to do this may result in criminal conviction or a fine of up to £10,000. The UK Border Agency (UKBA) has updated its detailed guidance for employers. Whilst there are no major changes to the document, guidance relating to the recruitment of asylum seekers and refugees, already published separately, has now been included and sample images of the various documents used to prove the right to work have been updated. The guidance also confirms that employers can accept evidence of status provided in expired passports and travel documents (with the exception of right of abode).
A copy of the UKBA's guidance can be downloaded from: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/
employersandsponsors/preventingillegalworking/
Whilst on this subject, the government has announced that, as from April 2011, there will be an annual cap of 21,700 on the number of skilled migrants authorised to come to work in the UK from outside the European Economic Area. This figure will be split into two - the cap for Tier 1 is set at 1,000 and restricted to 'investors, entrepreneurs and people of exceptional talent' (the current Tier 1 (General) route for those highly skilled or highly paid individuals will therefore close); whilst the cap for Tier 2 (now increased from NVQ level 3 or above to graduate level occupations, which require employer sponsorship of an individual, with points to be awarded based on scarcity of skills and salary, and also with an increased minimum level of English language competency from basic to intermediate level) will be 20,700.
The Tier 2 (General) limit of 20,700 will not apply to in-country applications from those already in the UK, dependants of Tier 2 migrants and Tier 2 (General) applicants who are filling a vacancy with a salary of more than £150k.
Intra-company transfers for those earning more than £40,000 (including allowances) will not be included in the cap, but there will be a maximum stay of five years. There will be a further exemption for ICT workers who earn more than £24,000 to be transferred for up to a year.
The way that Tier 2 works will change significantly: certificates of sponsorship will be allocated to sponsoring employers on a monthly basis rather than pre-allocation on an annual basis. If the monthly limit is over subscribed, those with the most points will qualify for one of the available certificates. Priority will be given to shortage occupations, then to posts requiring higher academic qualifications and, finally, salary. It is unclear whether or not applications from those who do not obtain certificates in a given month will be carried over to the following month.
Consultation regarding Tier 4 (student visas and post study work) will also take place, aimed at 'stamping out abuse' of the system.
For more information on checking the right to work in the UK, see: http://www.intellecthr.org/docs/legal/righttowork.html (login required)
For more information on foreign workers, see: http://www.intellecthr.org/docs/legal/foreignnationals.html (login required)
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This story was featured in the December 2010 edition of HR Today.
Vetting and barring scheme (VBS) runs into further difficulties
In June, registration under the Vetting and Barring Scheme (VBS) was put on hold while the system was reviewed. Since then, the VBS, which was designed to safeguard children and vulnerable adults by preventing those who have criminal convictions from working with them, has run into further difficulties.
The High Court, in The Royal College of Nursing & Ors, R vs Secretary of State for the Home Department & Anor, has declared the VBS to be incompatible with the European Convention on Human Rights. This is because a person's name may be added to either or both of the barred lists for adults or children (thus preventing that person from working in his/her field for a minimum of one to a maximum of 10 years) without first allowing that person a hearing. The cases above included four nurses: two had accepted police cautions for leaving their children at home unsupervised, one was convicted of giving a child an unauthorised kiss and the other was subject to an investigation into her being drunk at work. The first three had all been placed automatically on the barred list after accepting their cautions or being convicted. They challenged the decisions and were eventually removed from the lists, but they were not able to work in their chosen profession during this time - a period of some months.
The High Court said that automatically banning those convicted for, or admitting, certain crimes from working with children and vulnerable adults without allowing them to make representations breached their rights to a fair trial under article 6 of the European Convention on Human Rights.
The Secretary of State argued that the potential consequences of the automatic barring system were justified by the seriousness of the relevant offences and the serious effects of allowing perpetrators to work with children. This was rejected; firstly because there was a significant delay between the offences being reported and the claimants' names being added to the barred lists, which suggested the scheme was not as fast or effective as represented; and secondly, because the claimants, who were convicted of relatively minor offences, were the kind of people who would suffer most from the automatic barring measures.
For further information on the VBS, please see: http://www.intellecthr.org/docs/legal/safeguarding.html (login required)
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This story was featured in the December 2010 edition of HR Today.
Fines for breaches of data protection
The Information Commissioner's Office was given the power, in April this year, to issue monetary penalties for serious breaches of the DPA. Some information has been released about the first fines to be awarded as follows, both of which involved breaches of security:
- £100,000 fine issued to Hertfordshire County Council
This concerned two faxes which were sent, within a two week period, in error to the wrong recipients: the first contained highly sensitive personal information relating to a child sex abuse matter and was sent by a council employee to a member of the public rather than to the intended barrister; the second contained information relating to care proceedings and included details of previous convictions, records of domestic violence and opinions of care professionals, and was sent to the wrong barristers' chambers. Both of these were due to human error, involved single misdirected documents, and both breaches were voluntarily reported to the ICO by the council; however the ICO noted the repetition of the error, and that the breaches were serious and could have caused substantial damage and distress.
- £60,000 issued to an employment services company, A4e. In this case, an employee was given an unencrypted laptop for home working. The information stored on the laptop included personal details of 24,000 people who had used particular community legal advice centres, including their full names, dates of birth, postcodes, employment status, income level, information on alleged criminal activity and whether or not an individual had been a victim of violence. The laptop was stolen from the employee's home and an unsuccessful attempt was then apparently made to access the data. The company reported the matter to the ICO and then to the affected individuals. The key issue was not the theft but that the company had provided an unencrypted laptop, knowing that it contained this amount and type of data.
These two fines give a good indication of the types of cases the ICO are likely to pursue, and it would be sensible to take steps to ensure that sensitive information stored on a laptop or mobile device is encrypted. With regards to human error, the ICO's penalty notice indicates the sort of safeguards it would expect to be in place in relation to faxing sensitive information - these include a procedure that required phoning ahead or the recipient to immediately confirm receipt of a fax.
Note: the Council has now introduced a fax usage policy for legal services; implemented a "phone ahead" and "confirmation of receipt of fax" process; nominated officers authorised to send faxes via a clearance/sign off process through qualified lawyers; established a record of faxes sent/confirmation received. In addition an audit of preset fax numbers was undertaken and the data controller's business improvement team were asked to work with legal services on the implementation of secure email/electronic communication facilities across the department.
To read the penalty notices (which do give helpful guidance), see:
http://www.ico.gov.uk/what_we_cover/promoting_data_privacy/
taking_action.aspx#monetarypenalties
For more information on the Data Protection Act, and the Codes of Practice, see: http://www.intellecthr.org/docs/TPadmin.html (login required)
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This story was featured in the December 2010 edition of HR Today.
Equality Act
Just to report that the government has decided to abandon the socio-economic duty on public sector bodies. This would have required all public sector bodies to consider socio-economic problems as part of their decision-making process.
For an overview of the Equality Act, see:
http://www.intellecthr.org/docs/legal/equalitybill.html (login required)
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This story was featured in the December 2010 edition of HR Today.
Employment tribunals and ACAS settlements
Research published in 2009 showed that 39% of those interviewed had not received payment of their tribunal award, and only 53% had been paid in full. A fast track scheme to enable employment tribunal awards to be enforced in the High Court by the High Court Enforcement Officers was therefore put in place. As from October 2010, this has been extended to ACAS settlements.
There is no minimum settlement value. The claimant completes Form N471A and sends it to the HCEO with the fee of £50, and the enforcement officer will look to recover the fee and interest, as well as the settlement amount on the COT3.
For more details, see http://www.hceoa.org.uk/index.php
The government is considering a reform of the legal aid system in England and Wales. Under the plans, legal aid would be scrapped for employment issues, including giving advice in advance of employment tribunal proceedings unless they are discrimination cases. Legal aid for representation for employment matters heard outside the tribunal system and in appeals to the Employment Appeal Tribunal would also be removed. Some commentators feel that this may backfire and lead to an increase in 'hopeless cases' as employees will simply lodge a tribunal claim without having had proper independent legal advice that would have explained to them why their claim could not succeed. This prediction may well be right and in the recent case of Balls v Downham Market High School and College, the EAT has confirmed that cases should only be struck out where there is "no reasonable prospect of success".
For more information about employment tribunals, see: http://www.intellecthr.org/docs/legal/tribunals.html (login required)
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This story was featured in the December 2010 edition of HR Today.
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