Changes to employment law in force from April 2010 include the replacement of the sicknote with a new fit-note system, a new right to make a request in relation to study or training, and a new right for fathers to take up to 26 weeks’ additional paternity leave where their partner returns to work early from maternity leave.
FIT NOTES
Under the new scheme to be introduced on 6 April 2010, the traditional sicknote from a doctor will be replaced by a ‘fit note’, which will advise whether an employee may be fit for work with some support, provide information on how the employee’s condition may affect what they do at work, and suggest common ways for the employer to help the employee to return to work, such as through altered hours or amended duties.
It seems unlikely that fit notes will be the solution to the UK’s absence problem. GPs are primarily the advocate of the patient they are treating and will have their health, and not necessarily their job, as their priority. Quite rightly, GPs are unlikely to want to compromise their relationship with their patient, nor will they want to add to their workload and police sickness absence for employers.
The burden will remain on employers to seek detailed information about an employee’s condition and then consider how the employee can be rehabilitated and what adjustments can be accommodated. While this may protect the employer from complaints from the employee, it will involve the employer incurring additional costs at a time when most businesses are working hard to keep costs down.
Jane Hobson, partner in the employment team at law firm Weightmans.
- How do fit notes differ from their predecessor, the sicknote?
- What further advice should doctors include on a fit note where they tick the ‘may be fit for work taking account of the following advice’ option?
- Has the fit note-system changed employers’ obligations under the disability discrimination legislation?
- What should an employer do it if receives a fit note saying that an employee ‘may be fit for work taking account of the following advice’?
- Is an employer obliged to comply with the advice on a fit note?
- How should an employer deal with an employee who fails to provide a fit note?
- Case study setting out an employer’s actions on receipt of a fit note
- Good practice guide on sickness absence management
- Line manager briefing on long-term sickness absence
- Line manager briefing on short-term sickness absence.
REQUESTS IN RELATION TO STUDY OR TRAINING
From 6 April 2010, employers with 250 or more employees will have a legal obligation to give serious consideration to requests from employees who want to take time off work to undertake study or training. The obligation will be extended to all organisations, regardless of size, from April 2011.
The new legislation mirrors the legislation providing employees with the right to request flexible working. There is the obligation to seriously consider the employee’s request, but no obligation to agree to it. Just as with flexible work, if there is “a good business reason” for doing so, an employer will be able to say no.
The business grounds for refusing are similar to those that apply to flexible-work requests and the same eligibility requirements apply. The employee has to have at least six months’ service and not have made a similar request in the previous 12 months. The same prescribed procedure has to be followed when making or responding to a request.The procedural requirements appear to be the main pitfall for employers, as there is a wide scope to reject a request.
Guy Guinan, partner in the employment team at law firm Halliwells.
- Who has the statutory right to make a request in relation to study or training?
- Can an employee make as many statutory requests in relation to study or training as he or she wants?
- In relation to what types of study or training can an employee make a statutory request?
- Is there a particular format in which a statutory request in relation to study or training must be made?
- How should an employer respond to a statutory request in relation to study or training?
- Can an employer refuse a statutory request in relation to study or training?
- Can an employee bring a tribunal claim in relation to a statutory study or training request?
- Model policy helping you to communicate your organisation’s approach to requests in relation to study or training
- Accompanying model letters to enable employers to deal with statutory training requests
- The right to make a request in relation to study or training – detailed guidance.
ADDITIONAL PATERNITY LEAVE
On 6 April 2010, new legislation surrounding paternity leave comes into force and employers will face a raft of new laws to get their head around. The Additional Paternity Leave Regulations 2010 entitle employees who are the father of a child, or the mother’s spouse or partner, to take up to 26 weeks’ paternity leave in the first year of the child’s life. In essence, the couple will be allowed to share maternity leave where the mother returns to work any time after six months’ leave, leaving the father to take what is left of the maternity leave period. A similar right applies where one half of an adoptive couple returns early from adoption leave.
The Additional Statutory Paternity Pay (General) Regulations 2010, also coming into force on 6 April, introduce an entitlement to additional statutory paternity pay, payable at the same rate as the standard rate of statutory maternity pay.
This is a significant extension of the current ordinary paternity leave entitlement of up to two weeks. While it is doubtful that the majority of fathers will want to take the full 26 weeks’ leave, the new laws could herald a significant culture change in the workplace.
Shiva Shadi, partner in the employment team at law firm Davis Blank Furniss.
- Which employees will be able to benefit from the new right to additional paternity leave?
- Which employees qualify for additional paternity leave?
- Is there a specific time period when additional paternity leave can be taken?
- Can employer ask an employee for proof that he or she qualifies for additional paternity leave?
- Are employees entitled to be paid during additional paternity leave?
- Model company paternity leave policy (employees whose child has an expected week of birth beginning on or after 3 April 2011)
- Company maternity policy (employees with an expected week of childbirth beginning on or after 3 April 2011).
DATA PROTECTION
As from 6 April 2010, the Data Protection (Monetary Penalties) Order 2010 and the Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulations 2010 give the Information Commissioner the power to fine organisations up to £500,000 for serious breaches of the Data Protection Act 1998.
Any data controller has always faced potential liability to unlimited fines but this is a significant administrative change. There is now no need to bring a prosecution; the Information Commissioner can impose a fine directly.
The commissioner will target serious contraventions of the established data protection principles where those contraventions are of a kind likely to cause substantial damage or distress and the contravention was deliberate or reckless.
The main purpose is to encourage compliance with existing obligations. Employers should expect security breaches and failures to respond to subject access requests to be particular targets. Emphasis will be on medium and large employers having good corporate governance policies providing for a compliance audit trail and risk assessments. The key areas for employers remain: the recruitment process; personnel records; and monitoring of telephone, internet and e-mail use.
Martin Budworth, barrister at Kings Chambers, Manchester and Leeds.
PENSIONS
From 6 April 2010, some key legislative changes with important consequences for registered pension schemes and the state pension come into effect. On 6 April 2010, the normal minimum pension age (NMPA) for drawing pension benefits from registered pension schemes will increase from 50 to 55.
The NMPA is the earliest age at which pensions and lump sums may normally be taken as ‘authorised payments’ under a registered pension scheme. Benefits that come into payment to a member below the NMPA after 6 April 2010 are likely to be ‘unauthorised payments’ attracting adverse tax consequences, unless falling within certain general exceptions, including: where the retirement is on grounds of serious ill-health; where the member, satisfying prescribed conditions, has a protected pension age; and where the member started taking those benefits before 6 April 2010 having reached the normal retirement age of 50.
Following reforms to the state pension system introduced by the Pensions Act 2007, from 6 April 2010, the number of qualifying years a person needs to receive a full basic state pension will be reduced to 30 years, regardless of sex. A system of national insurance credits is also being introduced to help parents and carers to build up entitlement to basic and additional state pension.
Changes to the state pension retirement age are being phased in between 2010 and 2020. The pension age for women born on or after 6 April 1950 will gradually rise to 65 between 2010 and 2020.
Scott Redpath, barrister at Exchange Chambers.
STATUTORY MATERNITY, PATERNITY AND ADOPTION
From 4 April 2010, the standard rates of statutory maternity pay, statutory paternity pay and statutory adoption pay will increase from £123.06 to £124.88. Statutory sick pay will continue at the rate of £79.15 per week.
TRADE UNION BLACKLISTING
The Employment Relations Act 1999 (Blacklists) Regulations came into force on 2 March 2010. They followed a high-profile prosecution by the Information Commissioner in 2009 relating to a blacklist of union members to which around 40 construction companies subscribed.
The regulations make it unlawful to use blacklists to dismiss employees or refuse employment on the grounds of trade union membership or activities. They prohibit compiling, using, selling or supplying a blacklist or ‘prohibited list’ containing the details of people who are, or were, trade union members or involved in trade union activities.
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A court or employment tribunal claim can be made where a person has, for a reason related to a prohibited list, been refused employment or employment agency services or has been subjected to any other detriment. An employee who is dismissed for a reason relating to a prohibited list can claim unfair dismissal. A person may also apply to the county court to prevent a breach of the regulations.
David Brown, associate solicitor at law firm Simpson Millar.
