Employment Update - 27 March 2009

April changes

April always brings a series of changes to employment law. Here is a reminder of just some of the key changes to watch out for next month:

On 1 April 2009, statutory annual leave entitlement will be increased from 4.8 weeks to 5.6 weeks (for example, this is equivalent to an increase from 24 to 28 days for a full-time worker).
On 5 April 2009, the prescribed weekly rate of statutory maternity, paternity and adoption pay will increase from £117.18 to £123.06.
On 6 April 2009, statutory sick pay will increase from £75.40 to £79.15.
On 6 April 2009, the much maligned statutory dispute resolution procedures will be repealed (subject to certain transitional provisions, as outlined in our earlier update. On this date, the new ACAS Code of Practice on Disciplinary and Grievance Procedures will come into effect. Employment tribunals will be able to adjust awards made in relevant cases by up to 25% for unreasonable failure to comply with any provision of the new Code.
On 6 April 2009, the right to request flexible working will be extended from parents of children under 6 to parents of children aged 16 and under. The Department of Business, Enterprise and Regulatory Reform has stated that this extension will benefit a further 4.5 million people.

Legal representation at internal disciplinary hearing

An employee does potentially have the right to be represented by a lawyer (as opposed to just a workplace colleague or union official) at internal disciplinary hearings, according to the High Court.

In R (on the application of G) v The Governors of X School, X School commenced disciplinary proceedings against the claimant, a music assistant, following allegations of an abuse of trust with a 15 year old boy. The claimant requested legal representation at the disciplinary hearing. This request was refused and he was dismissed. He was also informed that he would be reported to the Secretary of State on the basis that he might be unsuitable to work with children. The claimant appealed, but his repeated request to be allowed legal representation was again refused. The claimant subsequently applied for judicial review, arguing that Article 6 of the European Convention of Human Rights, which relates to the right to a fair trial, was breached by the School's failure to allow him legal representation.

The High Court confirmed that, due to the gravity of the allegations and the severity of the consequences, the claimant was entitled to legal representation at the disciplinary and appeal hearings. Although this decision is confined to the particular circumstances of the case, it may be relevant to employees facing serious allegations which could adversely affect their ability to pursue a career. We will examine this case in more detail in the next alerter and assess the potential implications of the decision.

Tribunal statistics

Statistics for the Employment Tribunal and Employment Appeal Tribunal in Great Britain have recently been published by the Tribunals Service.

Covering the period 1 April 2007 to 31 March 2008, the statistics show that there has been a significant rise in the number of claims being accepted. In 2007/2008, 189,303 claims were accepted, representing a 43% rise from the figures in 2006/07, when 132,577 claims were accepted. The highest number of claims accepted in 2007/08 were equal pay disputes, followed by claims under the Working Time Directive. Next in line were unfair dismissal claims, with 40,941 claims being accepted in 2007/08. Age discrimination claims also rose significantly from 972 in 2006/07 to 2,949 in 2007/08.

The Tribunals Services has also just published provisional figures for April 2008 to February 2009. These cover a shorter period but indicate that the overall number of claims has decreased. However, claims for unfair dismissal, redundancy, failure to inform and consult on redundancy and age discrimination have all increased substantially.

Consultation on proposals to amend the Pregnant Workers Directive

The Department for Business, Enterprise and Regulatory Reform is seeking views on the European Commission's proposal to amend the Pregnant Workers Directive.

The Directive sets down minimum levels of maternity rights, including leave and pay, which Member States must provide. The UK has already enhanced the minimum standards set out in the existing Directive and, for example, provides for a longer period of maternity leave than is currently required. However, a number of proposals may have an impact on the UK. These include the following:

the compulsory maternity leave period following childbirth would be increased from two weeks to six weeks.
women would be entitled to choose the time at which the non-compulsory portion of their leave is taken.
women would receive full pay during maternity leave, with Member States being able to specify a ceiling which would have to be at least equal to sick pay. The Government is currently seeking to clarify the level of the permitted cap.

Responses to the consultation on these proposals must be submitted by 22 June 2009.

New ACAS guide to equality in the workplace

ACAS has published a new guide entitled "Delivering Equality and Diversity".

The guide, developed with the support of the Equality and Human Rights Commission, is intended to give managers practical help in establishing equality in the workplace. For example, it recommends that employers:

review existing equality policies and action plans (or write a new policy if one does not exist)
take steps to monitor how the policy is working in practice
take action to address inequality or promote diversity

NICE guidance for managing staff on sick leave

The National Institute for Health and Clinical Excellence (NICE), has issued new guidance for the management of long-term sickness absence and incapacity.
Key recommendations include identifying a trained and impartial worker to undertake initial enquiries with sick employees; arranging for a more detailed assessment by relevant specialists and co-ordinating and supporting any return-to-work plan agreed with the employee.

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