Employment law update changes Oct 2014

1. EMPLOYMENT LAW UPDATE23 October 2014
Presented by
Yeing-Lang Chong, Ben Power, Andrew Peters

2. Agenda
Equal Pay Audits
Tribunal Fees
Zero-Hours Contracts
Shared Parental Leave
Antenatal Appointments
Employer’s Rights on Termination
Redundancy and Discrimination
Forced Retirement
Social Media
Questions and Refreshments

3. Equal Pay Audits
Yeing-Lang Chong

4. Equal Pay Audits
•Compulsory equal pay audits
‒If found liable under equal pay legislation
‒Tribunal requiredto make order to:
oCarry out equal pay audit -wide discretion to Tribunal as to specifics
oMake public the results -on company website for up to 3 years
oMax. £5K penalty at each hearing to assess compliance if unreasonable failure to comply
‒Limited exemptions

5. Tribunal Fees Update
Yeing-Lang Chong

6. Tribunal Fees Update
•Government figures show in 6 months following introduction of fees regime:
‒79% decline in claims across the board
‒85% drop in equal pay claims
‒94% reduction in working time claims
•UNISON seeking judicial review –principle of effectiveness of EU law

7. Zero-Hours Contracts
Yeing-Lang Chong

8. Zero-Hours Contracts
•Proposed new section to be inserted into ERA 1996:
‒S.27A. Unenforceable: exclusivity clauses, or clauses requiring consent for work with third parties
‒S.27B Powers to Secretary of State to make regulations that close ‘loopholes’
oCompliance if unreasonable failure to comply
oRemedies, including for detriment

9. Zero-Hours Contracts
•Codes of Practice dealing with:
-Identifying zero hours contracts
-Calculation of benefits e.g. annual leave
-Notice of work and cancellation of work

10. Shared Parental Leave
Ben Power

11. Shared Parental Leave: Background
•Additional Paternity Leave (‘APL’) a failure
•Aim to introduce more flexibility –hence complicated new rules
•Children and Families Act 2014 –amends ERA and introduces various Regulations:
‒1 December 2014: New rules in force. Mothers, fathers, or adopters will be able to opt to take Shared Parental leave (‘SPL’) within the first year after birth or adoption placement
‒5 April 2015: Expected week of confinement or placement for adoption must be on or after this date

12. •SPL is optional –opt-in
•Existing right to 52 weeks’ leave (39 paid) will stay in place but be shared
•APL will go
Shared Parental Leave: Background

13. Shared Parental Leave: Eligibility
•Defined terms:
‒Births –mother (‘M’) / partner (‘P’)
‒Child (‘C’)
•P’s relationship to C/M: father ormarried orcivil partner orpartner

14. Shared Parental Leave: Eligibility
If M wants to take SPL she must:
•Pass the ‘continuity of employment’ test: continuous employment for 26 weeks up to and including 15thweek before EWC
•Be eligible for statutory maternity leave
•Curtail or end statutory maternity leave
•Provide notice in prescribed form, with evidence if required
•Give requisite notice
•Have main responsibility for care of child

15. Shared Parental Leave: Eligibility
And P must:
•Pass the ‘employment and earnings test’: earning at least £30 p.w. in last 26/66 weeks, on employed or self employed basis
•Share responsibility for the child with M

16. If P wants to take SPL, he must
•Pass the ‘continuity of employment’ test
•Share main responsibility for care of child
•Give requisite notice
And M must
•Satisfy ‘employment and earnings’ test
•Be entitled to, and have curtailed, ML orSMP orMA
Shared Parental Leave: Eligibility

17. Shared Parental Leave: Entitlement
•2 weeks’ compulsory maternity leave (4 if factory worker) remains leaving:
‒50 weeks’ shared parental leave
‒37 weeks’ shared parental pay
•Note:
‒Leave can be taken concurrently between partners
‒Part weeks treated as whole weeks
‒SPL can only be taken once the child is born

18. Shared Parental Leave: Sharing
•Sharing starts on:
‒Ending maternity/adoption leave or
‒Date of curtailment
•Ends on date specified by M/P

19. Shared Parental Leave: Procedure
•Reg.8 Notice -M’s written notice (at least 8 weeks before start of first period of SPL):
‒Specified information:
oM & P’s name
oStart and end dates of Maternity Leave taken and to be taken
oTotal amount of SPL available to M & P, how much M&P intendto take and when M intends to take it
oEWC/Date of Birth

20. ‒Signed declarations from M:
oM’s eligibility to SPL satisfied
oM’s information is accurate
oM will immediately inform employer if ceases to care for C
‒Signed declarations from P:
oP’s name, address, NI number
oEligibility of M to SPL satisfied by P
oRelationship with M/C
oConsent to amount of leave M taking
oConsent to M’s employer processing data
Shared Parental Leave: Procedure

21. •Reg.9 Notice -P’s written notice (at least 8 weeks before start of first period of SPL):
‒Specified information:
oM & P’s name
oStart and end dates of M’s Maternity Leave, or Maternity Pay or Maternity Allowance
oAmount of total SPL available to M and P, how much intendto take and when
oEWC/Date of Birth
Shared Parental Leave: Procedure

22. ‒Specified declarations from P:
oP’s eligibility to SPL satisfied
oEligibility of P to SPL satisfied by M
oInformation is accurate
oP will immediately inform P’s employer if P ceases to care for C or M informs him eligibility ceases
‒Specified declarations from M:
oName, address, NI number
oRelationship with P/C
oConsent to amount of leave M taking
oConsent to M’s employer processing data
oM will immediately inform P if she ceases to make him eligible
Shared Parental Leave: Procedure

23. Shared Parental Leave: Procedure
•Where Reg.8/9 Notice served, M/P’s employer may request:
‒Copy of birth certificate (or declaration of place and date of birth if none)
‒Name address of P/M’s employer
•14 days to produce if requested

24. •Neither notice binding unless ‘otherwise indicated in the notice’. ‘Booking’ process needs to be followed under Reg.12
•Only 3 Reg.12 booking notices can be given
•Written curtailment notice also needs to be served under Reg.6 Leave Curtailment Regulations
Shared Parental Leave: Procedure

25. Shared Parental Leave: Variation
•Reg.11 Notice –must:
‒Be given ‘under’ Reg.8 or Reg.9 (i.e. with same notice, information etc.)
‒Set out old and new dates; and SPP notifications
‒Contain declaration of agreement by M/P
•Not binding unless ‘otherwise indicated in the notice’, and ‘booking’ process needs to be followed
•Once binding, will count towards the 3 booking notices

26. Shared Parental Leave: Continuous/Discontinuous Periods
•Single continuous periods requested: employer must agree
•Discontinuous periods requested: employer has 2 weeks to:
‒Accept
‒Agree alternatives
‒Refuse

27. Shared Parental Leave: Changes of Circumstances/Revocation
•Variation notice can be served
•Once notice of curtailment binding, this can only be revoked where SPL has not started and:
‒Turns out that M&P not entitled to SPL or SPP; or
‒Curtailment notice served before birth andrevoked within 6 weeks of birth; or
‒P dies

28. Shared Parental Leave: Changes of Circumstances/Revocation
•Where circumstances change and eligibility ceases less than 8 weeks before SPL due to start –employer may require leave is taken where not reasonably practicable to end it

29. Shared Parental Leave: ‘SPLiT’ Days
•10 Keeping in Touch days –entitlement remains
•20 additional ‘SPLiT’ days
•Mutual agreement needed
•Do not bring SPL to an end

30. Shared Parental Leave: Record Keeping
•The following records relating to paymust be kept for HMRC:
‒Evidence given of eligibility
‒Leave start dates
‒Payments made
‒Amounts reclaimed

31. Shared Parental Leave: Other Rights
•Standard position in respect of other rights:
‒Terms and conditions continue to apply
‒Enhanced rights on redundancy
‒Right to return
‒Protection from detriment/dismissal

32. Antenatal Appointments
Andrew Peters

33. Antenatal Appointments
•P entitled to accompany M to appointments:
‒2 x 6.5hrs, including travel, waiting time and appointment
‒No qualifying period of employment
‒Unpaid
‒Appointment must be on medical advice
‒Signed declaration of above and times/dates can be requested

34. Employer’s Rights on Termination
Andrew Peters

35. Employer’s Rights on Termination
•Li v. First Marine Solutions Ltd –EAT
‒Miss Li’s contract stated that she would pay equivalent of her salary to the company should she leave early
‒Held: enforceable -not penalty and genuine pre- estimate of cost of hiring another senior engineer at short notice

36. •Sunrise Brokers LLP v Rogers –EAT
‒Mr Rogers resigned early and company tried to stop him working for a competitor during notice period. No pay offered as no work undertaken. 1 year notice period
‒Held: company could do this –repudiation not accepted, so duty of fidelity subsisted. No obligation to pay
Employer’s Rights on Termination

37. Redundancy and Discrimination
Andrew Peters

38. Redundancy and Discrimination
•London Borough of Southwark v Charles –EAT
‒Mr Charles’ disability precluded him from attending interviews. Company insisted on interview about alternative employment on redundancy
‒Held: reasonable adjustments should have been made – less formal process or ‘take a view’ given junior role

39. Redundancy and Discrimination
•Dominique v. Toll Global Forwarding Ltd –EAT
‒Disability (stroke) led to poor scores on productivity and accuracy redundancy selection criteria
‒Held: reasonable adjustments should have been made, even though the outcome would have been the same

40. Forced Retirement
Andrew Peters

41. Forced Retirement
•Seldonv. Clarkson Wright & Jakes –EAT
‒Was compulsory retirement of partner at 65 justified?
‒Held: yes it was, on grounds of retention, planning and default retirement age for employees of 65. But default retirement age now abolished

42. Social Media
Andrew Peters

43. Social Media
•Crisp v. Apple Retail (UK) Limited –Tribunal
‒Employee posted derogatory comments about his employer on Facebook
‒Dismissal was fair
‒The Tribunal focused on the fact that Apple had a robust and all encompassing social media policy, making clear that derogatory comments would constitute gross misconduct
‒Mr Crisp’s argument that he had a right to privacy failed

44. Social Media
•Teggartv. Tele Tech UK Limited-Tribunal
‒Employee posted derogatory comments about a female colleague on Facebook and refused to remove
‒Dismissal was fair, even though the comments did not bring the employer into disrepute because they amounted to harassment
‒Mr Teggart’sarguments that he had a right to privacy and a right to free of expression both failed

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