Employment Update - 26 March 2010

New national minimum wage rate announced   The Government has this week confirmed that it has accepted the recommendations from the Low Pay Commission (LPC) on the new rates for the National Minimum Wage.   The following new rates will come into force on 1 October 2010: £5.93 per hour for workers aged 21 and over (a 2.2% increase on the current £5.80 rate);  £4.92 per hour for 18-20 year olds (a 1.9% increase on the current £4.83 rate); and £3.64 per hour for 16-17 year olds (a 2% increase on the current £3.57 rate). The Government also announced that it has accepted the LPC's recommendation to introduce an apprentice minimum wage of £2.50 per hour. The new rate will apply to those apprentices who are under 19 or those that are aged 19 and over but in the first year of their apprenticeship.

Unfair dismissal – range of reasonable responses   The Court of Appeal has confirmed that an employer's decision to dismiss an employee for gross misconduct after following a misconduct procedure designed for low level breaches fell outside the 'range of reasonable responses'. Highlighting the importance of ensuring that the most appropriate disciplinary process is followed, the Court of Appeal confirmed that the Employment Tribunal had not substituted its own view for that of the employer and restored the finding that the dismissal for gross misconduct was unfair.   In Sarkar v West London Mental Health NHS Trust, a number of complaints were made about Dr Sarkar's treatment of colleagues and staff. The Trust, with Dr Sarkar's agreement, decided to deal with the allegations under its internal procedure, the "Fair Blame Policy" (FBP). The FBP was designed for fairly low level breaches of conduct or performance standards which did not constitute potentially serious or gross offences. Under the FBP, a formal written warning was the most severe sanction that could be imposed. The FBP provided that a matter could be dealt with fully under the formal disciplinary procedure if it became apparent at any stage that the alleged misconduct was more serious that originally envisaged.    The FBP procedure subsequently broke down when the Trust's medical director informed Dr Sarkar that a report would be sent to the General Medical Council (GMC), where Dr Sarkar sat on the Fitness to Practise Panel. Dr Sarkar made it clear that he would not accept any such proposal. He was subsequently dismissed following a formal disciplinary process.   The Employment Tribunal upheld Dr Sarkar's unfair dismissal claim. The decision to dismiss him fell outside the range of reasonable responses. The use of FBP implied that the alleged misconduct was, in the Trust's opinion, of a 'relatively minor nature' rather than gross misconduct justifying summary dismissal, and the maximum penalty was a written warning. The additional misconduct brought to the attention of the Trust after the FBP had started (which included an incident in a car park and a conversation with a colleague) did not, individually or cumulatively, amount to gross misconduct. The Employment Tribunal also considered that the medical director had 'intentionally frustrated' the FBP procedure. It noted that the Trust 'could not reasonably sabotage those discussions and then proceed down the disciplinary route of alleged gross misconduct'.   Although the Employment Appeal Tribunal subsequently allowed the Trust's appeal, the Court of Appeal restored the Employment Tribunal's decision. The Employment Tribunal was entitled to consider the agreed use of the FBP as an indication of the Trust's view that the alleged misconduct was relatively minor. It was also entitled to consider that it was inconsistent for the Trust to use the FBP, then to dismiss for gross misconduct based on the same matters. This was a factor to which it was proper for the Employment Tribunal to attach weight when applying the 'range of reasonable responses' test. The Employment Tribunal had not substituted its own view for that of the Trust.

Additional paternity leave regulations - approved The House of Lords has approved the draft regulations relating to the new right to additional paternity leave. The regulations are intended to come into force on 6 April 2010 and have effect for parents of children where the expected week of birth begins on or after 3 April 2011. Fathers will be entitled to take additional paternity leave provided the mother has returned to work (therefore giving parents the option of dividing a period of paid leave entitlement between them). The regulations set out the framework for the new right and include the following provisions: the minimum period of additional paternity leave is 2 weeks and the maximum is 26 weeks; it must not start until at least 20 weeks after the birth (or placement for adoption); the leave must be taken in multiples of complete weeks and must be taken as one continuous period; some of the leave may be paid if taken during the mother's 39 week maternity pay period. This would be paid at the same rate as Statutory Maternity Pay (this is currently £123.06 and will rise to £124.88 in April 2010);  parents will be required to "self certify" by providing details of their eligibility to their employer; and  employers and HMRC will be able to carry out further checks of entitlement if necessary.

New Parental Leave Directive   The EU Council of Ministers has adopted a new Parental Leave Directive based on the revised framework agreement on parental leave reached by the EU social partners last year. The current Parental Leave Directive is implemented in the UK by the Maternity and Parental Leave etc. Regulations 1999, which allow parents to take up to 13 weeks' unpaid parental leave for each child before their fifth birthday. The new Directive, which replaces the current Parental Leave Directive, increases parental leave entitlement to four months. Member states (including the UK) have two years to implement the new Directive.

Think Fathers: report on flexible working   A new publication, 'Think Fathers: How flexible working for Dads can work for your business', highlights the benefits for both employers and employees of flexible working for fathers. Published jointly by the Department for Children, Schools and Families, Government Equalities Office, Department for Work and Pensions and Department for Business, Innovation and Skills, the publication includes a number of case studies which demonstrate how employers of different sizes and sectors have introduced father and family-friendly policies and practices.

New tool to measure equality progress The Government has announced a new National Equality Framework for Business, which will provide businesses with a 'self-assessment' tool to measure how well they are doing in tackling inequality in the workplace. The tool will also help employers see what other action they could take to make their workplace more diverse. It will: recognise continuous improvement; be publicly and readily available to all businesses; and be usable without requiring external verification. Although the framework encourages transparency, users will not be compelled to publish their results.

Budget announcement – default retirement age Alistair Darling confirmed this week that the Government is consulting on the reform of the default retirement age of 65. He confirmed that the Government is considering various options, including scrapping the default retirement age of 65, raising it, or reforming the legislative framework to strengthen the position of the employee. No changes will be made before April 2011.

Whistleblowing – 10th anniversary To coincide with the 10th anniversary of the Public Interest Disclosure Act (PIDA), Public Concern at Work has published a report reviewing the impact of this legislation. The report reveals that: the number of PIDA-related claims has increased from 157 in 1999/2000 to 1,761 in 2009; employees have lodged over 9,000 claims alleging victimisation for whistleblowing; over 70% of these claims were settled or withdrawn without any public hearing; and of the remainder, 78% were lost and 22% were won.