Employment Update - 9 April 2010

April changes   A number of changes to employment law have already taken place this month. The key changes to note include the following: 4 April 2010 Increase in statutory maternity, paternity and adoption pay The standard rates of statutory maternity pay, statutory paternity pay and statutory adoption pay increased from £123.06 to £124.88 per week. 6 April 2010 Sick note to fit note The new "Statement of Fitness to Work" or "fit note" was introduced on 6 April. The new fit note provides GPs with two options to choose from: "unfit for work" and "you may be fit for work taking account of the following advice". The note will enable GPs to suggest changes which employers can introduce to encourage a return to work e.g. "a phased return to work", "amended duties", "altered hours" and "workplace adaptations". New right to request time off to train From 6 April, employees working for employers with 250 or more employees have a new right to request time off to study or train. The right will be extended to all employers from April 2011. Further guidance for employers can be found on the Business Link website. Whistleblowing claims - regulators to be informed From 6 April, if a claimant making a whistleblowing allegation provides their express consent, employment tribunals will have the power to pass copies of the claim form (ET1), or extracts from it, directly to the relevant regulator to investigate the alleged malpractice. Additional paternity leave and pay New regulations came into force on 6 April, providing additional paternity leave and pay for parents of babies born (and adoptive parents notified of a match) on or after 3 April 2011. Eligible fathers will be entitled to up to six months' additional paternity leave, which can be taken once the mother has returned to work. Some of the leave may be paid if taken during the mother's 39 week maternity pay period.

Equality Bill receives Royal Assent   The long-awaited Equality Bill finally completed its passage through Parliament this week and received Royal Assent yesterday. The majority of the provisions of the Equality Act 2010 are due to come into force in October 2010. The Government Equalities Office has published a simple factsheet on the key provisions.

Injunction granted to prevent disciplinary hearing The Court of Appeal has upheld the decision of the High Court to grant an injunction to prevent an employer from carrying out a disciplinary hearing on the basis that it would constitute a breach of contract. Although the facts of this case are relatively unusual, the decision is a reminder of the ability of employees to obtain injunctions against their employers. In Mezey v South West London and St George's Mental Health NHS Trust (the Trust), Dr Mezey was employed by the Trust as a consultant forensic psychiatrist. One of her patients absconded during a period of unescorted leave and murdered a man. An internal inquiry was set up to examine the care and treatment of the patient and the events leading up to the murder. The Trust then decided to instigate disciplinary proceedings against Dr Mezey.   Unusually, two different contractual disciplinary procedures applied in this case, due to a change in procedure during the relevant time. The first contractual procedure was "Disciplinary Procedures for Hospital...Staff" (HC), where the procedure to be followed depended on the nature of the conduct or competence. HC was later replaced by a contractual procedure entitled "Maintaining High Professional Standards in the modern NHS" (MHPS). The relevant part of MHPS in this case related to the procedure for dealing with issues of capability. Different thresholds applied to each procedure. For example, under HC, if the investigating panel found that a practitioner was at fault, the Trust could decide on appropriate action. Under MHPS, if there were concerns about capability which could not be resolved routinely by management, the matter had to be referred to the National Clinical Assessment Authority (NCAA) before it could be considered by a capability panel. Under the HC procedure, the report produced by the investigating panel (the Francis Report) concluded that although Dr Mezey's decision to grant the patient unescorted leave was inappropriate, it did not amount to serious professional incompetence. The Trust had failed to prove that Dr Mezey had been at serious fault. Despite these findings, the Trust attempted to set up a disciplinary hearing to consider taking disciplinary action against Dr Mezey under the MHPS procedure. Dr Mezey applied for an injunction to prohibit the Trust from holding a disciplinary hearing. It was granted by the High Court on the basis that it was not open to the Trust to impose any disciplinary sanction, and none of the sanctions under the MHPS procedure were appropriate, particularly given that the Francis Report emphasised that Dr Mezey was a competent practitioner.   The Court of Appeal upheld the High Court's decision to grant an injunction as it would be a breach of contract for the Trust to hold a disciplinary hearing under MHPS. The threshold for invoking a disciplinary procedure was not crossed as Dr Mezey's capability to practice was not in question. Further, under the MHPS procedure, before the matter could be considered by a capability panel, this case had to be referred to the NCAA and no such referral had taken place.

Public sector staff more likely to work when ill     According to a recent TUC report, The Truth About Sickness Absence, public sector workers are more likely than private sector colleagues to work when too ill to do so and less likely than private sector staff to take a 'sickie'.   The TUC also reports that: within the last month, more than one in five public sector workers have been to work when they were too ill to do so (21 per cent).  a further 41 per cent (compared to 36 per cent of private sector workers) have gone into work poorly when they should have stayed off sick within the last year, though not in the last month.  only one in ten public sector workers (11 per cent) have never been to work when ill.  one in three public sector workers cited their reason for going into work when unwell was 'people depend on the job I do and I didn't want to let them down' (33 per cent). others were concerned about the impact their absence would have on colleagues: 'I didn't want to give my colleagues extra work' (18 per cent of public sector workers compared with 12 per cent of private sector workers).

TUC launches website on intern rights   The TUC has launched a new website for people undertaking internships. The website is part of the TUC's Next Generation campaign which aims to secure a better deal for young people at work. It explains what rights interns should expect and allows them to share their experiences. The TUC fears that one in three interns is being exploited through unpaid work so the new website is intended to help young people find out more about their rights at work.