Employment law update changes Oct 2014

EMPLOYMENT LAW UPDATE

23 October 2014

Presented by

Yeing-Lang Chong, Ben Power, Andrew Peters

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

Equal Pay Audits

Yeing-Lang Chong

Equal Pay Audits

• Compulsory equal pay audits

‒ If found liable under equal pay legislation

‒ Tribunal required to make order to:

o Carry out equal pay audit - wide discretion to Tribunal as to specifics

o Make public the results - on company website for up to 3 years

o Max. £5K penalty at each hearing to assess compliance if unreasonable failure to comply

‒ Limited exemptions

Tribunal Fees Update

Yeing-Lang Chong

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


Yeing-Lang Chong


• 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’

o Compliance if unreasonable failure to comply

o Remedies, including for detriment


• Codes of Practice dealing with:

- Identifying zero hours contracts

- Calculation of benefits e.g. annual leave

- Notice of work and cancellation of work

Shared Parental Leave

Ben Power

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

• 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

Shared Parental Leave: Eligibility

• Defined terms:

‒ Births – mother (‘M’) / partner (‘P’)

‒ Child (‘C’)

• P’s relationship to C/M: father or married or civil partner orpartner


If M wants to take SPL she must:

• Pass the ‘continuity of employment’ test: continuous employment for 26 weeks up to and including 15th week 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


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

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 or SMP or MA


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

Shared Parental Leave: Sharing

• Sharing starts on:

‒ Ending maternity/adoption leave or

‒ Date of curtailment

• Ends on date specified by M/P

Shared Parental Leave: Procedure

• Reg.8 Notice - M’s written notice (at least 8 weeks before start of first period of SPL):

‒ Specified information:

o M & P’s name

o Start and end dates of Maternity Leave taken and to be taken

o Total amount of SPL available to M & P, how much M&P intend to take and when M intends to take it

o EWC/Date of Birth

‒ Signed declarations from M:

o M’s eligibility to SPL satisfied

o M’s information is accurate

o M will immediately inform employer if ceases to care for C

‒ Signed declarations from P:

o P’s name, address, NI number

o Eligibility of M to SPL satisfied by P

o Relationship with M/C

o Consent to amount of leave M taking

o Consent to M’s employer processing data


• Reg.9 Notice - P’s written notice (at least 8 weeks before start of first period of SPL):

‒ Specified information:

o M & P’s name

o Start and end dates of M’s Maternity Leave, or Maternity Pay or Maternity Allowance

o Amount of total SPL available to M and P, how much intend to take and when

o EWC/Date of Birth


‒ Specified declarations from P:

o P’s eligibility to SPL satisfied

o Eligibility of P to SPL satisfied by M

o Information is accurate

o P will immediately inform P’s employer if P ceases to care for C or M informs him eligibility ceases

‒ Specified declarations from M:

o Name, address, NI number

o Relationship with P/C

o Consent to amount of leave M taking

o Consent to M’s employer processing data

o M will immediately inform P if she ceases to make him eligible



• 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

• 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: 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

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

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 and revoked within 6 weeks of birth; or

‒ P dies

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

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

Shared Parental Leave: Record Keeping

• The following records relating to pay must be kept for HMRC:

‒ Evidence given of eligibility

‒ Leave start dates

‒ Payments made

‒ Amounts reclaimed

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


Andrew Peters


• 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

Employer’s Rights on

Termination

Andrew Peters


• 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

• 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



Andrew Peters


• 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


• 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

Forced Retirement

Andrew Peters

Forced Retirement

• Seldon v. 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

Social MediaAndrew Peters

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

Social Media

• Teggart v. 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’s arguments that he had a right to privacy and a right to free of expression both failed

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Employment law update changes Oct 2014