Right to Time Off to Accompany Partner to Ante-Natal Appointments

The partner (male or female) of a woman expecting a baby will be entitled to unpaid time off in order to accompany her to up to two ante-natal appointments.  The employee does not need to have worked for you for any particular period of time, it is a right that they enjoy from day one.  

There is no minimum notice requirement in the legislation, but it does state that an employer will only be liable where it has "unreasonably refused" a request for time off.  This suggests that a tribunal may find that an employer has not unreasonably refused a request where it has been presented at the eleventh hour and it is not practicable to find cover for the time off requested at such short notice. 

Whilst some employers may feel that they do not wish to advertise this new entitlement to their staff, they may wish to consider including it in their staff handbook and encourage employees to make their request in a particular format and by giving as much notice as possible.  If an employee then breaches this written policy and is refused their request, it is unlikely that the refusal would be found unreasonable in all the circumstances.

Government Aims to Bolster Apprentice Pay

In recent years the number of apprenticeships has risen sharply and they have become more attractive to employers as the previously tough contractual protections afforded by apprenticeship agreements have been watered down.  As long as the apprentice contract contains appropriate clauses it can be treated in a similar vein to other employment contracts, with apprentices needing two years' service, like other employees, to be able to claim unfair dismissal.  Previously it was almost impossible to make an apprentice redundant without breaching their contract; that is no longer the case.

Apprentice pay is another factor that some employers will consider attractive.  An apprentice is currently only entitled to £2.73 per hour*, which reflects the fact that they are benefiting from on the job training as well as working.

However, the Business Secretary, Vince Cable, recently announced his wish to bolster apprentice pay in order to make the apprenticeship route more attractive to young people.  He has asked the Low Pay Commission to consider how apprentice pay could be improved, suggesting that it be brought in line with the 16 and 17 year old National Minimum Wage rate in October 2015.  That rate is currently £3.79 per hour.

(* N.B. Apprentices aged 19 or over are entitled to the regular National Minimum Wage rate for their age group after the first year of their apprenticeship.  They can be paid the apprentice rate during the first year.)

Funding available to help your business to grow

The Government's Growth Voucher programme allows you to receive up to £2000 towards strategic advice to help grow your business.

This could be put towards KSA advice and assistance - perhaps a one off HR project or staff development, updating your contracts, an HR Audit or any other strategic HR planning.

If you have:

• 49 employees or less
• Are registered in England
• Have been trading for at least 1 year and
• Have not had any paid for strategic business advice in the last 3 years

For more information visit Growth Vouchers or speak to one of our team.

Are You Paying Enough for Holidays?

As anticipated in January's update, the European Court of Justice has followed the Attorney General's opinion in determining that workers' holiday pay should reflect any additional payments they would normally receive had they been working.  This includes paying commission or compensating for the lost opportunity of earning commission whilst on holiday.

Under the Working Time Directive, the aim is to ensure that staff are not deterred from taking leave.  In this case (British Gas v Lock) Mr Lock was a salesman on a basic salary with variable commission which was paid a month in arrears.  When he took leave he would be paid his basic pay whilst he was away, plus any commission owing from the previous month, but then he would lose out on commission the following month due to the fact that he was not selling whilst on holiday.

It has been left to the national courts to determine how this pay should be calculated, and it is likely to be some time before our Working Time Regulations are updated accordingly.  In the meantime, now that we have this ruling, employers should consider taking steps to address the issue as they could face costly claims for back pay at some future point.

Many employers already have to work out holiday as an average over the 12 weeks preceding the holiday period (i.e. where employees have variable hours and/or pay), so it seems sensible to conclude that a similar averaging approach to commission would be likely to meet these requirements.

How will the Ban on Zero Hours Contracts Affect You?

In the recent Queen's speech, the Government announced its intention of "...cracking down on abuse in zero hours contracts".  It has subsequently published the Small Business, Enterprise and Employment Bill 2014, which will now start its progress through the parliamentary process.

The Definition of a zero hours contract in the Bill, to paraphrase, is one where the undertaking of any work under the contract is conditional on the employer offering work, and where there is no certainty that the employer will offer any work.  The Bill goes on to say that any clause in a zero hours contract which prohibits the employee from doing work for anyone else, or where they have to obtain permission from their employer to do so, is unenforceable.

So there is no problem with having a zero hours contract, as long as there is no exclusivity clause in the contract.

The use of casual contracts, therefore, is unaffected.  This is where the work is very ad hoc and there is no obligation on the employer to offer work and none on the employee to accept any work offered.  Typically these are used for plugging gaps in staffing due to illness or holidays.

It also seems that any employers who want a loop-hole, can get round this restriction by guaranteeing a minimum amount of work under the contract - perhaps just one hour per year! That would mean that it would not be a zero hours contract as defined, so the ban would not come into effect.

It seems likely that there will be regulations coming out at some point to beef up the restrictions to some extent, and the Bill does leave that possibility open.  So watch this space for more detail as it emerges.

Will We All Become Flexible Workers?

Currently parents and carers have the rights to request flexible working.  From 30th June this right will be extended to all employees as long as they have at least 26 weeks' continuous employment.

Flexible working could include reducing hours of work, changing work patterns, entering into a job share arrangement, working from home, etc.  As part of the application for flexible working, the employee needs to explain what effect, if any, the change requested would have on the employer and how they believe it could best be dealt with.  For instance, if requesting part-time hours, they could identify that there will be a lack of cover on the days they would not work and suggest that this could be dealt with by recruiting another part-time employee to cover those hours.

The employer must meet with the employee to discuss their request in a timely manner (unless they are happy to make the change requested).  If the employer feels they may not be able to accommodate the requested change, they should explore any possible compromises.  The employer should inform the employee of their decision as soon as possible, it is sensible for this to be conveyed in writing.

Much of the procedural requirements have been removed by the new legislation - the prescriptive timetable, the statutory right to be accompanied at meetings, and the right to an appeal.  Instead the employer needs to "...deal with the application in a reasonable manner" and to ensure that whatever process they follow, it is completed within three months of receipt of the application (including any appeal if granted by the employer). However, in order to demonstrate reasonableness, it is sensible to retain some of the previous statutory provisions in an internal procedure and a new ACAS Code of Practice recommends that you do so.

We would suggest, therefore, that you should continue to allow the employee to be accompanied by a work colleague at any meetings and have the right to appeal if their request is rejected.

We would recommend that the reason for turning down a request is made clear in writing and you must ensure that it falls within one of the following categories:

• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work
• a planned structural change to the business

Any agreed change is normally permanent, unless the employer and employee agree a temporary arrangement or to have a trial period.  Also employees can not make more than one statutory request for flexible working in any 12 month period.

Changes to Flexible Working

Changes to Flexible Working, Shared Parental Leave and Pay and Antenatal Appointments

The Children and Families Act 2014 is due to come into force on 30 June 2014.

The main implications are:

1. The right to request flexible working will be extended to all employees with 26 weeks' service from 30 June 2014. Currently the right is limited to parents of children aged under seventeen or, if disabled, under eighteen or to "carers". Also employers will no longer need to follow the statutory procedure contained in the Flexible Working (Procedural Requirements) Regulations 2002. Instead, they will be allowed to use their current HR procedures but they must consider requests in a reasonable manner. ACAS has drafted guidance to help you prepare for these changes.
2. There will also be a new right of shared parental leave and pay. This means that if mum chooses to end her statutory maternity pay or leave early, eligible working parents can share the remainder of the leave and pay (capped at 50 weeks of leave and 37 weeks of pay). This is due to come into effect for babies due and children placed for adoption on or after 5 April 2015. From October 2014 a pregnant woman's husband, civil partner or partner, the parent of a pregnant woman's child and intended parents in a surrogacy situation will be entitled to take unpaid time off work for up to two antenatal appointments.