Not exactly sure which legislation is being introduced this week? Personnel Today provides guidance for employers on the changes to employment law in force from April 2011.
Legal changes include: the beginning of the transitional period for the abolition of the default retirement age; provisions enabling employers to take positive action when they recruit or promote employees, provided that certain conditions are met; and the right to additional paternity leave, which applies to fathers, and partners of mothers, of children with an expected week of birth beginning on or after 3 April 2011.
1. Retirement
The provisions enabling employers to retire an employee at the age of 65 on the basis that he or she has reached the default retirement age, and the associated statutory retirement procedure, are repealed from 6 April 2011.
- Can an employer retire an employee who will reach the age of 65 between 6 April 2011 and 30 September 2011 under the transitional provisions relating to the abolition of the default retirement age?
- Should an employer take into account an employee’s age when setting targets or assessing performance?
- After the abolition of the default retirement age, how should employers deal with employees over 65 who are underperforming?
- After the abolition of the default retirement age, employers will have to justify objectively having a compulsory retirement age. What does this mean?
- How can an employer know whether or not its retirement age can be objectively justified?
- Can an employer ask an employee whether or not he or she has any plans to retire?
- Can an employer agree with an employee that he or she will retire at a particular age?
- What procedure should an employer follow if it wants to retire an employee after the removal of the default retirement age?
2. Positive action
Section 159 of the Equality Act 2010, which comes into force on 6 April 2011, permits an employer, in defined circumstances, to appoint or promote a person (A) with a protected characteristic in preference to another person (B) who does not have the protected characteristic.
- What are the advantages for employers of taking positive action?
- Are employers able to use both the general and the recruitment and promotion positive action provisions?
- What is the difference between positive action and positive discrimination?
- What is the main risk for an employer that applies the positive action in recruitment and promotion provisions?
- In what circumstances do the positive action in recruitment and promotion provisions apply?
3. Additional paternity leave
The right to additional paternity leave applies to fathers and partners of mothers of children with an expected week of birth beginning on or after 3 April 2011. In cases of adoption, the right applies where the notification of the match with a child is on or after 3 April 2011, or where the child enters Great Britain on or after 3 April 2011 in relation to an adoption from overseas.
- Which employees benefit from the new right to additional paternity leave?
- Is there a specific time period when additional paternity leave can be taken?
- What information must an employee applying to take statutory additional paternity leave provide?
- Are employees entitled to be paid during additional paternity leave?
- If an employee with an expected week of childbirth beginning on or after 3 April 2011 gives birth before 3 April, will her partner lose any potential entitlement to statutory additional paternity leave and pay?
- If an employee with an expected week of childbirth beginning before 3 April 2011 gives birth on or after 3 April, will her partner potentially become entitled to statutory additional paternity leave and pay?
- Is the mother obliged to return to work before taking her full 52-week maternity leave entitlement for the father to be able to take additional paternity leave?
- Are the 10 keeping-in-touch days during maternity, adoption and additional paternity leave pro-rated for part-time employees?
4. Public sector equality duty
The general public sector equality duty comes into force on 5 April 2011. Section 149 of the Equality Act 2010 provides for a single equality duty, which replaces the previous duties on race, gender and disability. The Government has delayed implementation of the proposed specific equality duties, which are intended to enable better performance of, and demonstrate compliance with, the general equality duty.
5. Equality Act 2010 codes of practice
The Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment, and Equal Pay) Order 2011 brings into force from 6 April 2011 the codes of practice on employment, equal pay and public functions and associations (on the EHRC website), which aim to help employers comply with their obligations under the Equality Act 2010.
6. Statutory maternity, paternity, adoption and sick pay
The standard rates of statutory maternity, paternity and adoption pay increase from £124.88 to £128.73 per week from 3 April 2011. Statutory sick pay also increases from £79.15 to £81.60 per week from 6 April 2011.
7. Exemption from new regulation for small businesses
On 1 April 2011, there is the start of a three-year exemption from new domestic regulation for businesses with fewer than 10 employees and a public audit of almost 22,000 statutory instruments that are currently in force. The three-year exemption from new domestic regulation will apply to businesses with fewer than 10 employees and “genuine start-ups”. The exemption will not extend to regulation in public safety and national security.
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8. Changes not coming into force in April 2011
Over the last few months, a number of legislative items that had been expected to come into force in April 2011 have been delayed or permanently put aside. These are:
- the Bribery Act 2010, which will now come into force on 1 July 2011;
- the specific public sector equality duties (intended to enable better performance of, and demonstrate compliance with, the general equality duty), which are being reviewed and are expected to come into force in July 2011;
- the extension of the right to request flexible working to parents of children aged 17, which will not now take place on 6 April 2011;
- the extension of the right to make a request in relation to study or training to all employees, which will not now take place on 6 April 2011; and
- the dual discrimination provisions in the Equality Act 2011, which will not now be implemented.
