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HR Internal Policy/Legal Brief ISSUE 9 APRIL 2014

E m p l o ym e n t L a w U p d a t e Early Conciliation (EC)

Special Points of Interest Page 1

Employment Law Update

Page 1

Policy Update

Page 2

On The Horizon

Page 3

Case Law

Page 4

A Bit of Fun

Page 4

.... and finally

Page 4

..... and finally, finally

The EC procedure will commence on 6 April 2014 and becomes mandatory as of 6 May 2014. In summary, before an individual can present a claim to an employment tribunal, most prospective claimants must present an EC form to ACAS, who will be under a duty to promote settlement. There will be no obligation on prospective claimants to provide information about the nature of their claim at this stage; the form will ask for basic information only, namely the prospective parties’ names and addresses. ACAS is under a duty to make reasonable attempts to contact the prospective claimant and, if the prospective claimant consents, ACAS must then make reasonable attempts to contact the prospective respondent. If ACAS is unable to contact either, it will conclude that settlement is not possible and issue an EC certificate. It is also worth noting that the three month time limit to bring a claim to the Employment Tribunal will be extended by the period of the Early Conciliation procedure. Therefore, it will be important to keep a track on the Early Conciliation period so as to understand when time limits expire.

Contact by ACAS can be by email, post or phone. If a Manager is contacted by ACAS directly, they have been requested (via the HR Brief) to contact in the first instance, either the Head of Policy and Change ext: 4625 or the HRM for Policy and Legal Compliance ext: 4192 within the HR Operations Team.

New Statutory Rates from the 6th April 2014 >

The standard weekly rates of Statutory Maternity Pay, Maternity Allowance, Statutory Paternity Pay and Statutory Adoption Pay will increase from £136.78 to £138.18 – it is assumed this will be for payment weeks commencing on or after Sunday, 6 April 2014.

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The weekly rate of Statutory Sick Pay will increase from £86.70 to £87.55 from 6 April 2014.

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The lower earnings limit applying to National Insurance contributions, below which employees are not entitled to Statutory Sick Pay, Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay, will increase from £109 to £111 per week from 6 April 2014.

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A week's pay for the purposes of calculating redundancy is to rise from £450.00 per week to £464.00 per week from 6th April 2014

Flexible Working Policy The Children and Families Act will extend the right to request flexible working to all employees from 30th June 2014, and not just parents and carers. The current University Policy is being reviewed to reflect the change and once it has been agreed with the Trade Unions and University Management, it will be implemented and communicated to all employees.

Policy Update The Redeployment Policy and Procedure have been amended and are now available on the intranet after going through governance. https://portal.shu.ac.uk/departments/HRD/polproc/redeployment/Pages/home.aspx


On the Horizon In Force

Open Consultation or Imminent Implementation

Details Waiting

Unpaid parental leave Parental leave has increased from 13 to 18 weeks. The age limit for children (by which the leave must be taken) will also increase in the future from 5 to 18 years.

The increase in weeks' leave came into force on 8 March 2013. The increase in age limit is expected to be in force in 2015.

Shared parental leave 52 weeks' maternity leave will be the default position but the parents can agree to share 50 weeks' leave as flexible parental leave. The employer must agree to the proposals or the leave will have to be taken in one single block.

The Children and Families Act was published in March 2014 and the final proposals will be implemented in April 2015.

Flexible working The right to request flexible working arrangements will be extended to all employees. The statutory procedures will be replaced by a Code of Practice.

The flexible working provisions will come into force on the 30th June 2014.

Surrogacy The proposals are not expected to be implemented before 2015. Intended parents of a child born through a surrogacy arrangement who meet the criteria to apply for a Parental Order will be eligible for statutory adoption leave and pay, and flexible parental leave and pay, if they meet the qualifying criteria. Employer Liability for harassment by third parties The Government has confirmed it is repealing the provisions of the Equality Act 2010 which make employers potentially liable for third party harassment.

Repealed on 1 October 2013.

Financial penalties for employers The power to order the penalty will come into force in October 2014. Where an employment tribunal concludes that an employer has breached any worker's rights and considers that the breach has any "aggravating factor", then it may order the employer to pay a penalty to the Secretary of State of between ÂŁ100 and ÂŁ5,000. The penalty is halved if paid within 21 days of the tribunal's decision being sent to the employer Review of TUPE legislation Following its call for evidence and consultation process, the Government has now confirmed that it will not be repealing TUPE's service provision change provisions or the rules relating to the notification of employee liability information (albeit that the timeframe will be extended). The Government will also be amending TUPE to allow renegotiation of terms derived from collective agreements one year after the transfer and provide expressly for a static approach to the transfer of terms derived from collective agreements. TUPE will also be amended so that changes in the location of the workforce can be within the ETO defence. TULR(C)A will be amended to make it clear that pre-transfer consultation can count for collective redundancy purposes.

The consultation closed on 11 April 2013. After some delay, the Government published its response on 5 September 2013. Draft Regulations were published on 31 October 2013. They came into force on 31 January 2014.

Holiday and sickness absence The Modern Workplaces consultation proposed that the Working Time Regulations 1998 should be amended to allow carry-over of holiday where it has not been able to be taken as a result of sickness absence.

Expected to be in force in 2014. The ERRA amended the Equality Act 2010 to provide a power allowing the Government to make Regulations. The Government issued a second consultation paper on 23 May 2013.

Equal pay audits The Government has confirmed an employer will be ordered to carry out an equal pay audit if an employment tribunal finds it has discriminated because of sex in relation to contractual or non-contractual pay unless an exemption applies.

Expected to be in force in 2014. The ERRA amended the Equality Act 2010 to provide a power allowing the Government to make Regulations. The Government issued a second consultation paper on 23 May 2013.


Case Law Only reducing a disabled employers hours for a fixed period did not amount to a failure to make reasonable adjustments Secretary of State for Work and Pensions v Higgins Following a long sickness absence, Mr Higgins presented a GP "Fit Note" to his employer, which recommended a phased return to work on altered hours for 3 months. Mr Higgins requested a phased return over a period of up to 26 weeks, but his employer proposed an alternative plan for him to build up to his normal hours over 13 weeks. Mr Higgins did not accept this proposal, and refused to return to work unless his employer agreed to extend the plan. His request was refused. Mr Higgins presented a claim to the tribunal on the grounds that his employer had failed to make reasonable adjustments. The tribunal found in favour of the Mr Higgins advising that by failing to consider an extension to the return to work plan beyond 13 weeks, his employer had breached its duty to make reasonable adjustments. However the EAT found that the tribunal had incorrectly identified that the provision criteria or practice placing Mr Higgins at a substantial disadvantage was the requirement for him to work. It should have been the requirement for him to work his contractual hours. The EAT also commented that it did not consider that it is always necessary for the employer to be given an explicit guarantee to extend the period of time that has been recommended in a Fit Note. Act of indirect discrimination ''cured' by an internal appeal Little v Richmond Pharmacology Ltd The Claimant's initial request for part-time working on return from maternity leave was declined but, on appeal, she was offered part-time working on a trial period as she had requested. The Claimant had, in the meantime, resigned and pursued her appeal against the refusal of flexible working. An employment tribunal rejected the complaint of indirect sex discrimination as the successful appeal had 'cured' the initial detriment. The EAT upheld the employment tribunal's decision, noting that the appeal had concluded before the Claimant's projected return to work, and she was not put at a personal disadvantage. The EAT noted that the refusal of part-time working was, in this case, conditional on the right of appeal. Employers cannot just rely on Occupational Health Report when deciding if an employee is disabled Gallop v Newport City Council An employer's duty to make reasonable adjustments for a disabled employee only arises where the employer knows or is reasonably expected to know that the employee is suffering from a disability and, as a result, is likely to be placed at a substantial disadvantage. Mr Gallop was suffering from depression brought on by work related stress. Following the findings of an Occupational Health Report, stating that Mr Gallop's medical condition did not meet the legal definition of disability, he was dismissed. His claim for disability discrimination failed both in the employment tribunal and the EAT, where it was decided that in view of the findings of the Occupational Health Report, the employer did not know that the employee was disabled. However the EAT's decision was overturned by the Court of Appeal, which stated that although an employer should correctly seek assistance and guidance from an Occupational Health Report or other medical expertise, it is for the employer to make a factual judgment as to whether or not the employee is disabled and cannot simply "rubber stamp" an external opinion. Paying outstanding Flexitime on the termination of a contract Vision Events (UK) Ltd v Paterson EAT/0015/13 In his role, Mr Paterson was entitled to participate in a flexi-hours scheme. In May 2012, Mr Paterson was made redundant, having accrued in excess of 1,000 hours of flexitime. Following the company's decision to make him redundant, he sought payment for the accrued flexitime. The company offered to pay him half of the hours, which he refused and brought a claim in the employment tribunal arguing that the failure to pay him the flexitime amounted to an unlawful deduction of wages under s.13 of the Employment Rights Act 1996. The tribunal agreed and concluded that he was entitled to payment for the accrued flexi-hours on the basis that he had; worked those hours; not been allowed to take the hours as time off, or had been unable to take the time off; and therefore "banked" the flexi-hours. The tribunal found that, although the company's staff handbook was silent as to how flexi-hours are dealt with on termination of employment, there was an implied term in Mr Paterson's contract of employment that payment would be made for accrued flexi-hours. The tribunal ordered the company to pay him ÂŁ12,514. The company appealed the tribunal decision and that Mr Paterson's contract of employment did not require such an implied term. The company explained that its offer to pay half of Mr Paterson's accrued hours was a "gesture of goodwill", rather than a concession that it was legally obliged to make such a payment. The EAT allowed the appeal. Noting that the company had insisted to employees that "flexi-hours be taken at a time which it found suitable", the EAT agreed with the company that it was entitled to insist that Mr Paterson's flexi-hours be used up during his notice period. The EAT held that Mr Paterson's contract did not include any clause that showed an intention of the parties that an employee would be paid for his or her flexi-hours on leaving. There was no requirement to imply such a term because it was not necessary for business efficacy. The tribunal had mistakenly used the wrong test by deciding that a term should be implied to make the contract fair.


A Bit of Fun K D I S A B I L I T Y Z B R E A K S M C

C V N I C Y T I N R E T A P T C W C R I

G A U C U O Y J O B S H A R E Y T A E C

H Y E K N Y E V I T C U R T S N O C T R

X Q R N U V N D T Y E A V J U O O O D J

T E A E B Y O E C T K Q S R F N C N E D

N M F S Z E I S U E R C R U F L C D X S

E I L S C J T I D C T T F I A Y U I I N

N T E U A H A L N I J U D A H L P T F O

A W B I M L A O O S E P H K R A I U I

M T N U E V S U C D N M E S O L T O L T

R R N P C C I N S T K L I T I I I N L A

E A K M H N G N I T B L E S U D O S L

P P S E X O E A M I L C R H S E N M T U

E R M Q F T L N X H T E W J P A A O I G

N E V Z H L A E B I L M S N A O L Q M E

S P X N Y T L T O T M Y C N A N U D E R

I H Y U L F B N E G L I G E N C E X X R

O R A Q L Y T I N R E T A M E H J I S H

N A B L V O C H Y R A R O P M E T H H S

ANNUALISED CASUAL DISABILITY DISMISSAL DISPUTE FLEXIBLE JOBSHARE LOANS MISCONDUCT PART-TIME PATERNITY PERMANENT REGULATIONS SICKNESS WELFARE

BREAKS CONDITIONS CONFIDENTIALLY CONSTRUCTIVE FIXEDTERM FULL-TIME LEGISLATION MATERNITY NEGLIGENCE OCCUPATIONAL PENSION PROTECTION SCHEMES TEMPORARY

........ and finally!! Niggles and Irritants According to a survey reported in the Metro Newspaper, the biggest causes of disputes between colleagues are: · · · · ·

Booking annual leave (35%) Stealing from the office fridge (25%) Taking a long lunch (17%) Arguments about who’s making the tea or coffee (13%) Being over-friendly to other colleagues (10%)

Helping yourself to a bit of milk from the office fridge should not normally be a disciplinable offence. Wholesale pillaging if you’re feeling peckish probably would be. Employees taking long lunches can become a problem in the same way as people getting in late in the morning. Formal warnings can be used to address this if a quiet word does not achieve the required improvement. If staff are arguing about who should make the tea, it might be easier for them to simply get their own cuppa. It’s not clear what being ‘over-friendly’ means in the survey, but the University has a very clear Dignity at Work Policy.

. . . . . . . . a n d f i n a l l y, f i n a l l y ! ! Famous words from Aristotle ........................

Pleasure in the job puts perfection in the work. Produced by Gillian Gordon and Lisa Vernon


Internal brief april 2014