Newsletter
Oct 2014
Issue 31
Promoting, sharing and developing opportunities for best employment practice
Reaching out to disabled people In this issue…
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Legal Update – Shared parental leave and time of for ante-natal appointments 2
The free Employment Rights project, Opening Doors, is enabling disabled people to have more confidence in employment matters. The Lottery funds services which help disabled people, both employers of PAs to manage their own care more effectively, through PERS training on recruiting and inducting PAs problem solve their HR issues, such as what to do if a PA becomes pregnant and employees to assert their statutory rights, such as requesting flexible working as a reasonable adjustment.
Round up of case law , obesity and mental health adjournments 3 BACC Contact us
Facilitator’s training One area where the team have been particularly successful is recruiting and training facilitators to give ER advice locally.
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The team has developed a comprehensive, one day employment rights course covering workers’ rights focussing on disability. It also includes sections on employee status; statutory and contractual rights, such as discipline and grievance, parental rights and discrimination; types of employment contracts and their terms.
Feedback Here is some of the feedback we have received to date about the course: ‘The training was fantastic. Clarity is the key—we got that from PERS.’ ‘I thought it was one of the best employment law I’ve been on — broken down in a way I could understand and use with my clients straight away.’
This course is based on years of experience of advising and representing employers and employees and preparing Employment Rights leaflets. This course gives facilitators confidence to advise disabled people on solutions to their issues. Participants The course is designed for up to 12 individuals who advise disabled people, for instance professional working in direct payment or NHS teams providing assistance to employers of PAs or job retention experts working with disabled employees Once trained the facilitators are more able and confident to give advice locally and have the support, via PERS advice line, of the experienced ER team whenever required. Course success We have learnt that the best way to deliver the course is to take it in-house to existing teams, some of whom found the training so useful have asked us to deliver it to their colleagues.
‘Outstanding. Such a ‘dry’ subject was made very interesting. I now feel confident to help clients and where to signpost them if I cannot.’
This part of the project is so successful its 3 year target of trained facilitators will be achieved this year. But it will not end there, we will continue with it. We’d love to train you
‘The training was facilitated excellently with no jargon or complicated explanations. Easy to understand, straight to the point.’
Funded by
If you are an existing team, perhaps in job retention working with disabled employees or employment support advising employers of PAs, then we can deliver this training to you on your site.
2014 employment law changes The following changes in employment legislation and practice are expected or have come into force this quarter. Accompanying a partner to ante natal appointments. From 1st October 2014, fathers and partners, including agency workers have had the right to take unpaid time off to attend ante-natal appointments. The right extends to 2 appointments and is for a maximum of six and a half hours each. There is no qualifying service for employees but agency workers will have to have 12 weeks’ service to qualify. See guide: http://tinyurl.com/oesznyu The Children and Families Act provided protection for employees suffering a detriment when requesting or taking time off for antenatal appointments
from 1/10/2014. applies the same provision to adoption appointments from 5 April 2015. removes the 26 week qualifying period for adoption leave from 5 April 2015). Subject Access Requests (SARs) From 1st December it will be a criminal offence punishable with an unlimited fine, to force someone to request information and then share it with another party, e.g. New rates for National Minimum Wage The new rates for National Minimum Wage (NMW) effective from 1st October are: Over 21: £6.50 18—20 £5.13 Under 18: £3.79 Apprentice: £2.73
revealing a criminal record a condition of employment unless it is required by law. asking for certain records as a condition for providing services such as housing or insurance.
Shared parental leave Shared parental leave allows parents to share statutory leave and pay following childbirth for babies born after 5th April 2015. It replaces the current arrangements for additional paternity leave but not maternity and paternity leave and pay. It is totally separate from the right to unpaid parental leave. Adopters and those in surrogacy arrangements have similar rights. Currently a mother can chose to return to work when her baby is 20 weeks old. This new right means she can return any time after compulsory maternity leave (2 weeks), i.e. the parents can decide how to split the remaining leave and pay between them. This can be separately or together. The Government and ACAS have produced new guidelines, see http:// tinyurl.com/oesznyu and http:// preview.tinyurl.com/ns2nvfw respectively. The guidelines set out:
the right to shared parental leave
length of time available
qualification criteria
rules on requests and notifications
rules regarding their right to return, not to suffer a detriment relating to the leave and terms during leave. The total amount of leave/ pay that can be shared is 50/ 37 weeks respectively (52 weeks: 26 maternity leave and 26 weeks additional maternity leave/ 39 weeks paid leave less 2 weeks compulsory maternity leave/pay). Shared leave must be taken in blocks of one week and can be either continuous or interspersed with periods at work. If the former this can not be refused by the employer. If discontinuous only 3 periods of leave are allowed and these have to be agreed with the employer. Examples of how leave and pay could be taken: 1) a. Mother takes 12 weeks leave/ pay b. Her partner takes the remaining 40 weeks leave/ 27 weeks pay. 2) a. Mother takes 2 weeks compulsory leave b. The parents split the remaining leave and pay (25 weeks leave each and 37
weeks pay between them) and have the time off together. 3) a. Mother takes 12 weeks leave and then returns to work b. Partner takes 13 weeks leave and pay and then returns to work c. Mother takes the rest of the leave and pay (27/ 12 respectively.) Current statutory maternity and paternity pay is £138.18, though some organisations pay more than this, such as full pay rather than 90% for the first 6 weeks, or more. There is no provision in this legislation, Children and Families Act, 2014 that shared parental pay should be at the same rates as (enhanced) maternity pay. Indeed recent case law, Shuter v Ford Motor Co Ltd has ruled a woman can be paid full pay while on maternity leave and a man the statutory rate when on Additional Paternity Leave (APL). The court declared this was justified by the need to recruit and retain women in a male dominated workplace. It concluded the correct comparator is a woman taking APL.
PERS redundancy toolkit is available on our web site http://www.pers.org.uk/Publications.aspx
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Legislation/ Case law
Every quarter we prepare a round-up of
new legislation and the most important employment law cases from the courts.
Discipline in and outside work There have been a couple of cases regarding disciplinary procedures. The first concerns appeals and the second suspected criminal activity. Appeals In McMillan v Airedale NHS Foundation Trust, the Court of Appeal (CA) found the Trust could not increase a disciplinary sanction to a dismissal at an appeal. In doing so it referred to the nonstatutory ACAS Guide on Discipline and Grievances which prevents this, as did the Trust’s own disciplinary policy. Further, it stated the right to appeal is to protect the employee and if a
sanction was increased then the employee could not appeal that decision. The CA concluded if an organisation wanted this right, it must be explicit (in the contract). Criminal activity At what point does an employer act if the police are involved? In Okhiria v Royal Mail a postman was dismissed for gross misconduct for suspected criminal activity, namely the interception of mobile phones. He was dismissed prior to the conclusion of criminal charges and claimed
unfair dismissal. The Employment Tribunal (ET) rejected this saying the investigation had been adequate and the dismissal was ‘within the range of reasonable responses’. He appealed saying the ET decision was ‘perverse’ as any ‘reasonable employer’ would have waited till the conclusion of criminal proceedings. The Employment Appeal Tribunal, heard after Okhiria had been acquitted at trial, rejected this. This confirms the burden of proof required in ETs is lower than criminal courts.
In brief Holiday Pay This month the Employment Appeal Tribunal ruled that holiday pay must include overtime. This applies to the 4 weeks’ statutory holiday not the additional 1.6 weeks awarded by the UK government. Of course, you may decide to pay this higher rate for all holidays.
Matter resolved
Employees can claim back pay if there has been a gap of less than 3 months since they were last paid for holidays.
Is obesity the new disability? An interesting case, Kaltoft v The Municipality of Billund is still waiting a decision from the Court of Justice of the European Union. To date the preliminary opinion of the Advocate General is obesity was not a protected characteristic per se under the European Law. However the EU definition of disability includes scenarios where a physical or mental condition makes "carrying out of that job or participation in professional life objectively more difficult and demanding." He continued in "cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability." i.e. a ‘morbid obese’ employee may be disabled if the obesity had an effect on their capacity to perform the functions of their employment. In such a case an employer would have a duty to consider reasonable adjustments such as duties involving less mobility, bigger chairs. Note, employers can at the recruitment stage test to see if a candidate can do intrinsic aspects of the job.
ET stats There has been a 71% drop in ET claims for the 2nd quarter, 2014, compared to the same period last year ,stated the Ministry of Justice. Unison are arguing this is a result of the fee structure and the High Court held a judicial review on tribunal fees this month. Watch out for this important decision.
How the employment rights team can help you As the disciplinary case law above shows, employers have to take great care when contemplating dismissing employees where criminal activity is suspected. The process can be tricky but PERS can assist with advice on procedure and correspondence.
Mental health adjournments The EAT in U v Butler & Wilson, ruled an employment judge was wrong not to grant an adjournment to a mentally impaired claimant. U arrived at the tribunal shortly after the judge had decided to strike out his claim. He explained he was psychotic and the judge agreed he was obviously unwell, as he exhibited symptoms consistent with his disability. She reviewed her decision but refused to grant his application. The EAT stated not to grant the short adjournment was unreasonable in these circumstances. Note, in all cases illness will not be an accepted reason for an adjournment.
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Keep up to date with changing legislation through PERS ‘ services: telephone advice line, consultancy, training, health checks.
Bradford Alliance Community Care (BACC) Coming Together Bradford Alliance on Community Care (BACC), was set up in 1989 by community and voluntary groups and organisations to strengthen the voices of community care service users and carers at the planning stage of health and social care services across the Bradford Metropolitan District. It aims to encourage inclusion and combat disadvantage. BACC supports the empowerment of disadvantaged people so they can take a proactive role influencing services that contribute to their own well-being, rather than receiving help, which may or may not meet their particular needs. In 2013 BACC joined a partnership of local disabled people led organisations. Other partners included Bradford Disability Services Ltd (Disability Equipment Bradford & Disability Advice Bradford), and Contact Peer Support. This new partnership will work to empower and enhance the daily lives of people with disabilities, carers, their families and the wider community by delivering a varied range of support services, activities and solutions. For more information see: Web: http://bacc.uk.com/ Email: admin@bacc.uk.com
Funding Success A consortium funding bid was submitted to the three NHS Clinical Commissioning Groups (CCGs) for the District of Bradford in November 2013 and £228,000 was secured for 2014/15.
Merger The three organisations are merging into a new charity: Equality Together which is being launched on November 20th from 10am -12.30pm at Carlisle Business Centre. We aim is the new organisation is fully operational from April 2015. Equality Together’s passion is to develop a strong Disabled People’s User Led Organisation (DPULO), based on the experiences of disabled people. Further, it wants to create an infrastructure of services operating throughout the District. We currently provide a wide range of services around: • Advocacy • Managing Money • Independent Living • Social Care • Rehabilitation Support • Information, Advice & Guidance • Benefit Advice & Rights • Training & Employability Community development and cohesion Co-Production • Peer support
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Campaigning around issues that are important to disabled people Volunteering
The agenda of the coalition Government is to continue to reduce expenditure locally, regionally and nationally and whatever happens in the general election (May 2015) this looks very unlikely to change in the short term. Local authorities and CCG’s are being forced to make more and more cuts to front line services but also seek other alternative methods of service provision and delivery. Our partnership aims to provide a realistic user focused & led alternative which is both cost effective and full of added value that I in turn will meet the needs of commissioning agencies but more importantly that of people who face disabling barriers in our society. The boards and staff of BDSL, Contact & BACC are working very hard to create Equality Together and bring together the 3 organisations. Despite the very challenging times we’re working in, this is a very exciting development. To find out more about BACC and Equality Together please contact equalitytogether@gmail.com or telephone 01274 481590. Please follow BACC on https://www.facebook.com/ BradfordAllianceOnCommunityCare or twitter.com/BACCtweets
PERS is a small charity committed to providing high quality services which are accessible and affordable to those most in need. To maintain most of our services we rely on grant funding and the generosity of donors who support our aims - this is increasingly difficult in the current financial climate, although our services are needed more than ever. We appreciate your donations large or small which enable us to continue the valuable work of our charity in promoting good employment practice.
Contact details Pay & Employment Rights Service
www.pers.org.uk
Unit 14, Batley Enterprise Centre 513 Bradford Road West Yorkshire, WF17 8LL
http://tinyurl. com.9yv5eo admin@pers.org.uk
01924 428 033
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