The document summarizes new legislative employment changes coming into effect in April 2010. Key changes include: 1) Increases to statutory maternity, paternity and adoption pay rates. Paternity leave is also being extended to allow fathers additional time off. 2) The Information Commissioner is being given new powers to fine organizations for serious data protection breaches. 3) Employment tribunals will be able to pass details of whistleblowing claims to relevant regulators. 4) 'Fit notes' will replace sick notes, allowing doctors to indicate whether an employee may be fit to return to work with certain support or adjustments.

1. EMPLOYMENT BULLETIN
LEGISLATIVE CHANGES
APRIL 2010
CONTENTS:
• Increase in statutory maternity, paternity and adoption pay
• Paternity leave and pay: extended to fathers
• Data Protection: new power to fine
• Whistleblowing: tribunals power to pass claims to Regulators
• Fit notes: replace sick notes
• Training: new right to request time off
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: +44 (0) 1737 833850 M: +44 (0) 7900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk

2. Increase in statutory maternity, paternity and adoption pay
With effect from the 4 April, the standard weekly rates of statutory maternity, paternity and
adoption pay will increase from £123.06 to £124.88 per week. The lower earnings limit,
used to determine entitlement will increase from £95 to £97 per week.
Note that the weekly rate of statutory sick pay will remain the same at £79.15.
Paternity leave and pay: extended to fathers
The Government has published and laid before Parliament six sets of draft regulations to
implement the new statutory right to additional paternity leave and pay. The regulations are
all due to come into force from 6 April 2010 for parents of children due on or after 3 April
2011, or for adoptive parents notified of having been matched with a child on or after that
date.
Eligible employees will have a right to take up to 26 weeks’ additional paternity leave to care
for a child if the child’s mother, or in the case of adoptions the primary adopter, returns to
work without exercising their full entitlement to maternity/adoption leave. Leave can only be
taken once the mother has returned to work and the child is over 20 weeks old, or the child
has been with its adoptive parents for 20 weeks. Some of the leave may be paid if taken
during the mother’s maternity pay period or for adopted children during the primary adopter’s
adoption pay period.
The main changes are:
• existing paternity leave and pay provisions will remain in force and be re-named
“ordinary paternity leave” and “ordinary statutory paternity pay”;
• introducing a new entitlement for employees who are fathers, or spouses, or partners
(of either sex) of mothers or adopters, to take additional paternity leave in the first year of
their child’s life or the first year after the child’s placement for adoption;
• in the case of adoption, the entitlement is granted to persons who have been
matched with the child for adoption and who are spouses or partners (of either sex) of the
adopter who has elected to take adoption leave;
• the regulations set out the conditions for entitlement for additional paternity leave, the
options for when and how the leave may be taken, the notice and evidential requirements to
be complied with by the employee, the criteria for determining when the mother or adopter
has returned to work and the rights of the employee on and after return to work;
• introducing a new entitlement for employees who are fathers or partners of mothers
or adopters to receive a new statutory payment of additional statutory paternity pay (SPP)
from their employers. To be eligible, the mother must have been entitled to maternity
allowance, statutory maternity pay (SMP) or statutory adoption pay (SAP) and have returned
to work;
• employers will be able to claim back additional SPP from the Government in the
same way that they currently claim back SMP. Employers will be reimbursed through
deductions from income tax, NIC and other payments that they would otherwise make to
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: +44 (0) 1737 833850 M: +44 (0) 7900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk

3. HMRC. HMRC will further fund payments to the extent employers cannot be fully
reimbursed in this way. An employer is entitled to 92% of payments made in respect of
additional SPP, or the whole of such payments if the employer is a small employer. Should
an employer decide not to make payments, they must give the employee their reasons for
that decision and, on a challenge to that decision, HMRC will determine any entitlement;
• the standard weekly rate for additional SPP is set at the smaller of £124.88 and 90%
of the employee’s normal weekly earnings;
• introducing a new entitlement for employees adopting children from overseas to take
additional paternity leave in the first year after the child enters Great Britain, together with a
provision relating to additional SPP in respect of adoptions from overseas;
• the regulations apply to Great Britain. Separate regulations are to be made in
Northern Ireland;
• guidance on the new regulations will be made available for both employers and
employees before 3 April 2011.
Businesses will need to ensure that their policies are updated by mid 2010 to provide for the
forthcoming changes. The Conservative party has also expressed a commitment to
extending paternity provisions, so the additional element is unlikely to be effected by a
change of Government at the forthcoming election. The current Conservative proposal is to
extend the provisions further to allow both parents to take paid time off simultaneously.
Data Protection: new power to fine
From the 6 April 2010, the Information Commissioner will be handed new powers to issue
fines for knowing or reckless breaches of the Data Protection Act.
The fines can be levied when one of the eight principles have been seriously breached, but
only if the Commissioner is convinced that the breach was deliberate or that the data
controller knew, or ought to have known, of the contravention risk, and that the contravention
would be likely to cause substantial damage or substantial distress and that the controller
failed to take action to stop it.
The new powers apply in respect of any “data controller”; that is any body which determines
how and why personal data is processed.
The Information Commissioner’s Office has published statutory guidance, including practical
examples, on the circumstances in which a monetary penalty notice would be issued, and
how the amount of the penalty would be determined:
www.ico.gov.uk/upload/documents/library/data_protection.
An example would be where a company was warned by its IT department that its employees
were accessing individuals’ medical records (which, if made public, could cause those
individuals anxiety and/or financial loss), yet the company failed to implement an appropriate
policy of, for example, encrypting the relevant IT systems. The Commissioner would first
serve a notice of intent on the data controller stating (among other details) the grounds on
which the Commissioner proposed to impose a fine, the amount of that fine, the basis on
which that amount was determined and the period (which must be at least 21 days) during
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: +44 (0) 1737 833850 M: +44 (0) 7900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk

4. which the data controller can make written representations against the proposed fine.
Having taken those representations into account, the Commissioner will then, if it is still
appropriate to do so, issue the data controller with a monetary penalty notice which, in
addition to re-stating or amending the information given in the notice of intent, will tell the
data controller how it can either pay or appeal against the fine.
A data controller can additionally be sued by an individual who has suffered damage or
distress as a result of its breach, although in practice such cases are rare.
The maximum fine for the most serious breaches is £500,000. This represents a significant
advance in the Commissioner’s powers to deal with breached, which were previously limited
to issuing enforcement and information notices, inspecting data controllers’ premises and
bringing criminal proceedings for certain offences only.
Whistleblowing: tribunals power to pass claims to regulators
Following consultation, the Government has confirmed that it intends to introduce powers for
employment tribunals to pass on to regulators details of whistle blowing claims.
A claimant who lodges a claim with the employment tribunal will have the option to tick a box
on their claim form (ET1) confirming that they would like the tribunal to pass on details of
their claim. It will then fall to tribunal staff to identify the relevant regulator to whom a referral
should made (e.g. the FSA or the SFO) and the substance of the allegations to be referred
from the claimant’s ET1. No information will be provided to the regulator about whether the
employer denies the allegations, nor will details be provided of the employer’s defence (ET3)
or the outcome of the proceedings.
The new process will apply to ET1 forms lodged with tribunals from the 6 April 2010. Both
the claimant and the employer will be notified when the tribunal has referred whistle blowing
allegations to a regulator.
The new process is likely to be unwelcome for many employers as it could be used by
employees to put pressure on employers who wish to carefully manage the provision of
information to the regulator through a controlled process. Of course an employee can always
blow the whistle directly to a regulator. But whistle blowing legislation only protects an
employee who makes a “protected disclosure” directly to a prescribed regulator in good faith
other than for personal gain and the employee must believe the facts disclosed to be
“substantially true”. The tick box process on the ET1 form could therefore be used as a back
door route for disclosures that may not meet this test. Employees who owe duties to notify a
regulator directly of certain matters, e.g. approved persons, will need to think carefully before
using the back door route.
Fit notes: replace sick notes
Under the new regulations, which come into force on the 6 April 2010, ‘fit notes’ will replace
sick notes (also known as medical certificates, medical statements or doctor’s statements).
The regulations contain new rules concerning the completion of a medical statement and
prescribe the format of the medical statement to which those rules relate. The medical
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: +44 (0) 1737 833850 M: +44 (0) 7900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk

5. statement will help employees claim statutory sick pay (SSP), as well as certain health-
related social security benefits.
Medical statements are issued by GPs and other doctors to provide advice on fitness for
work to their patients who have a health condition. Employees are normally required to
provide medical statements to their employers from the eighth calendar day of sickness
absence in order to support their claim for SSP or contractual sick pay.
At the moment, medical statements simply require the doctor to describe, in brief terms, their
patient’s medical condition and indicate whether or not they should refrain from work.
The new rules will allow a doctor to consider not only whether their patient is unfit for work
but also whether their patient may be able to work with appropriate support if available.
Where a doctor states their patient may be able to work, the doctor must provide general
information to support that statement. This could include advice about changes that could be
made by the employer in agreement with the employee that would assist a return to work.
There will be a single medical statement form available for use in all cases.
The new medical statement provides information on:
• The date a doctor assessed their patient’s case.
• The health condition of their patient.
• Whether their patient is ‘not fit for work’ or ‘may be fit for work taking account of the
following advice’.
• Where the doctor considers their patient ‘may be fit for work taking account of the
following advice’, the doctor must provide further information/comments to support this. If the
doctor considers it appropriate that their patient may benefit from workplace adaptations or
adjustments (such as a phased return to work, altered hours, amended duties or workplace
adaptations), they should also tick the relevant box.
• The period for which the doctor considers their patient is ‘not fit for work’ or ‘may be
fit for work taking account of the following advice’.
• Whether or not they need to assess their patient’s fitness for work again on the expiry
of the medical statement.
There is no longer a ‘a fit for work’ option, which was proposed in the original consultation,
as doctors were felt not to have the appropriate knowledge about individuals’ roles and the
risks involved to be able to assess this.
If an employer is not able to facilitate a change or an adjustment, a revised medical
statement is not necessary; the existing medical statement is evidence that an individual has
a health condition preventing them carrying out their current role.
The maximum period a medical statement can be issued for will be three months during the
first six months of incapacity.
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: +44 (0) 1737 833850 M: +44 (0) 7900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk

6. GPs will be able to rely on medical reports that are more than one month old where they feel
that they are relevant at the time of issuing the fit note.
Few employers will be sorry to witness the demise of the old style sick note which was often
a source of frustration containing very little helpful information. By providing that employees
“may be fit for some work taking account of the following advice” opens up the channels of
communication between the employer and the employee – it being the lack of contact during
periods of sickness together with perhaps a lack of understanding of the illness and its limits
which lead to the current difficulties.
The Government has published guidance for employers, entitled “Statement of Fitness for
Work – a Guide for Employers”, available at www.dwp.gov.uk/docs/fitnote-employer-guide.
Separate guidance has been published for GPs and for employees.
In addition, a new occupational health advice line is being extended to give all small
businesses with less than 250 employees access to professional occupational health advice
from 1 April 2010. For England: 0800 077 8844; for Scotland 0800 019 2211; for Wales
0800 107 0900.
Training: new right to request time off from 6.4.10
A new right to request time off to undertake study or training will be available to employees
working in businesses employing 250 or more people, with effect from 6 April 2010. The law
is expected to be extended to all organisations, regardless of size, from April 2011.
The right, will operate in a similar way to the existing right to request a flexible working
arrangement, in that employers must consider requests seriously and can only refuse them
on specified business grounds.
Employees can only apply if they have worked for their employer for at least six months and
have not made a request in the past 12 months.
To apply they must submit a written request, which meets specified criteria. The employer
must meet with the employee within 28 days to discuss the request.
The employer must send the employee a written, dated notice of its decision within 14 days
of the meeting. Employers do not have to grant the request, but the grounds for rejecting it
must fall within one or more of the ten business reasons set out in the relevant legislation:
• that the proposed study or training would not improve the employee’s effectiveness in
• the business or its performance;
• the additional costs burden;
• detrimental effect on ability to meet customer demand;
• inability to re-organise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality or performance;
• insufficiency of work during the periods the employee proposes to work;
• planned structural changes.
The employer’s response must specify, in sufficient detail, why the relevant reason or
reasons apply.
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: +44 (0) 1737 833850 M: +44 (0) 7900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk

7. If employers grant a request, they are not legally required to fund the training or allow the
employee paid time off. However, the notice confirming that the request has been granted
must state:
• the subject of the study or training;
• where and when it will take place;
• who will provide or supervise it;
• what qualification it will lead to;
• whether the employee will be paid for the time spent studying or training;
• whether any changes will be made to the employee's working hours to accommodate the
study or training;
• the study or training;
• how the training costs will be met.
If a request is turned down, the employee has 14 days to appeal. Again, strict timetable
provisions apply in respect of making and dealing with any appeal. Employees can bring an
employment tribunal claim if their appeal fails, but only on limited grounds and the maximum
award will be only eight week’s pay (subject to the statutory weekly limit, currently £380) i.e.
£3,040.
The right appears to be quite feeble because employers have broad scope to refuse
requests and limited sanctions apply for breaching the rules. Whereas refusing a flexible
working request can potentially lead to a sex discrimination claim with the potential for
unlimited compensation and bad publicity, such considerations do not apply to a refusal of
time off for study or training.
The main pitfall for employers is likely to be falling foul of the strict timetabling provisions.
Employers who receive a request should ensure they familiarise themselves with the
procedure and deal with the request promptly and correctly.
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: +44 (0) 1737 833850 M: +44 (0) 7900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk