Employment Law and the Election

Employment Tribunal Fees

One of the most dramatic changes to the employment law environment under the outgoing parliament, is the introduction of employment tribunal fees in 2013. Claimants now have to pay £250 in order to bring most types of claim to a tribunal, and a further £950 in order for their claim to proceed to a hearing.  This has resulted in a massive drop in claims, as many individuals who have just lost their job are unable to to pay these fees. 

Whilst this has been good news for employers, it does seem as if access to justice may have been curtailed for a number of genuine claimants.

It will be interesting, therefore, to consider what may happen to the employment tribunal fees under a new government.  Below, I have set out in brief the tack taken by the main political parties in their manifestos:

• Conservative

As they were the main drivers behind the introduction of fees, it is perhaps not surprising that they do not make any proposal to change the current system.

• Labour

"The Conservatives have introduced fees of up to £1,200 for employment tribunal claimants, creating a significant barrier to workplace justice. We will abolish the Government's employment tribunal fee system as part of wider reforms to make sure that affordability is not a barrier to workers having proper access to justice, employers get a quicker resolution, and the costs to the tax payer do not rise."

They do not mention, however, whether they will replace the system with a new one - perhaps by reducing the fees - or whether they will be scrapped altogether.

• Liberal Democrats

"We will...Improve the enforcement of employment rights, reviewing Employment Tribunal fees to ensure they are not a barrier." 

So any potential change will be dependent on the outcome of a "review".

• Green Party

"We will...reduce Employment Tribunal fees so that tribunals are accessible to workers."

A clear commitment to a reduction but no indication of by how much.

• UKIP

They make no mention of employment tribunal fees.

Is Obesity a Disability?

A report last summer on a case before the European Court of Justice (ECJ), suggested that an obese person may be classed as disabled for the purposes of equality legislation.  The Northern Ireland Industrial Tribunal has now followed the ECJ approach to this question in the case of Bickerstaff v Butcher.

Mr Bickerstaff was harassed at work by colleagues, including Mr Butcher, because of his weight.  He was morbidly obese, having a body mass index of 48.5, and suffered from poor health as a consequence.  He would be short of breath after only minimal exertion, and suffered from sleep apnoea and gout.

The medical evidence indicated that Mr Bickerstaff could end his morbid obesity after only 6 months, if he took active steps to lose weight.  However, there was no guarantee that he would do so.

The Tribunal took the same approach as the ECJ in ignoring the fact that the Claimant's obesity was self-inflicted and could probably be remedied if he were to take active steps to lose weight.  Instead it looked at whether his condition hindered full and active participation at work, which it clearly did.  Therefore, the Tribunal found that he was disabled for the purposes of the Equality Act, and that the harassment he had suffered was for a reason related to his disability, making it unlawful.

This case highlights the need to have an effective harassment policy in place, which aims to prevent harassment at work for any reason.  Managers also need to ensure that they take active steps to stop bullying in the workplace, including encouraging those who feel they are being bullied or harassed to report their concerns immediately.  

New Entitlement to Shared Parental Leave and Pay

Parents of children due (or placed for adoption) on or after 5th April 2015 may be entitled to up to 50 weeks' Shared Parental Leave (SPL).  They will need to have worked for at least 26 weeks and will need to satisfy certain earnings thresholds to qualify.

In order for SPL to be available, the mother (or main adopter) will need to give up some of their 52 weeks' Statutory Maternity or Adoption Leave. Whatever remains from that 52 weeks can be converted into SPL. The parents can opt to take this leave in any number of ways - they can take it together or separately; they can also take it in several separate chunks (of no less than one week) as long as the employer agrees to that approach. All of the leave must be used up within one year of the the child's birth or placement for adoption.

There are some quite detailed notification procedures that have to be followed by the employee.  They must give at least 8 weeks' notice of the intended start date for any period of SPL and will need to provide certain information about their partner (who may not be your employee, of course) in a signed declaration. The employer can also request further information in order to satisfy themselves of the employee's eligibility.

Employer and employee may need to meet to discuss the requested SPL, so employees will be encouraged to plan ahead as much as possible. Employers do not have to agree to requests for discontinuous SPL (i.e. where it is not to be taken in one block) but they must agree to requests for continuous leave.  

Employees can give 8 weeks' notice to change any SPL that is booked.  They can also give separate notices for separate periods of continuous Leave. They are permitted up to 3 notices (either to take SPL or to vary SPL already booked).

Most employees will also be eligible for Shared Parental Pay.  This is the same amount as the flat rate for Statutory Maternity Pay (SMP) (currently £138.14 per week).  The total period of statutory payments is 39 weeks, so the number of weeks of Shared Parental Pay will be whatever number of weeks' SMP (or Adoption Pay) remain unused.

Each employee has up to 20 Shared Parental Leave in Touch days. These are similar to the 10 Keeping in Touch days currently available to those on maternity or adoption leave, in that the employee does not have to take them and the employer does not have to allow them. 

Finally, Additional Paternity Leave will be replaced by SPL but the two-weeks' Statutory Paternity Leave still remains in place.  So some fathers may choose to take 2 weeks' Statutory Paternity Leave on the birth of their child followed by 50 weeks' Shared Parental Leave (where the mother agrees to this).

In reality, there has been very little take up of Additional Paternity Leave since it was introduced in 2011 so it is possible that this new type of leave will also be rarely used, with the majority of mothers still taking leave. However, it is a major step forward and the Government argues that giving parents the choice to share leave will make a big impact in number of cases where it is exercised. Let's wait and see!

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Basic Steps to Help You Keep On Top of Sickness Absence

We are often surprised at the number of small employers who have no system for recording sickness absence.  Some will ensure that they ask for medical certificates if the period of absence exceeds 7 calendar days (in accordance with the Statutory Sick Pay (SSP) rules) but many do not have any sort of recording tool for short-term absence.

The problem for employers who do not record absence is that they find themselves in a difficult position if and when they feel they have a problem with an employee taking too much time off.  If this has not been recorded, all they have is a general feeling and a problematic lack of evidence.

Sickness recording systems do not need to be complex. All that is required is a simple form to record the dates of absence and the nature of the illness/injury.  A simple spreadsheet can then be used to record it for each employee and the form can be filed in their personnel file (make sure it is kept securely).  It is then just a case of having a look at the spreadsheet on a regular basis (e.g. quarterly) to see if anyone is taking a lot of time off.

If you feel one of your employees is taking too much time off sick, you are then able to address this with them by showing them the record and having a discussion about it.  At this stage you would deal with it informally to try to find out whether there may be any underlying cause (which could indicate a disability and a need to tread carefully), or whether they are just the sort of unlucky person who is frequently sick (or perhaps the sort or person who goes off sick at the slightest snuffle, or even perhaps someone who "swings the lead").  The outcome of the meeting would normally be an informal warning to explain that you expect an immediate, substantial and sustained improvement in their attendance or you will need to consider commencing disciplinary proceedings on the grounds of capability (or under a separate capability procedure if you have one).  Unless you had clear evidence you would not be questioning whether the sickness absence is genuine, it would be a case of explaining that the business is unable to sustain this level of absence which is why you need to address it.

That is often enough to nip the problem in the bud.  If staff know that you are going to address their sickness absence, they may well think twice before calling in sick unless absolutely necessary.

Other tools that can help change a lax sickness absence culture are:

• return to work interviews every time someone comes back from a period of sickness absence no matter how short
• strict rules about phoning in when they are off sick (e.g. phone calls to the boss, rather than a message via a colleague, or a text message)
• paying SSP only (although you would need to ensure you were paying in accordance with any contractual obligation)

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.)