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Employers Update - August 2013
Welcome to the August
edition of your Employ!
newsletter.
In this
edition, we will update you
on the changes to the
employment tribunal system
which have been introduced
literally in the last few
days so are very much “hot
off the press” and discuss
the introduction of the
controversial Employee
Shareholder arrangements,
which will come into force
in September. A
nd for
those of you with staff who
have been complaining about
working in the recent
heatwave, we’ve guidance
that you will undoubtedly
find to be of use!
As ever,
if you have any employment
concerns or queries that you
would like to discuss,
please do not hesitate to
get in touch with us on 0844
8000 263 or by
email.
Best
wishes
Will Clayton
Partner & Head of Employment
Key
Employment Team Contacts:
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In This Edition:
Employ! Email
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There are a
number of important updates to
tell you about on the Tribunal
Fee Regime, which came into
force on Monday 29 July 2013.
The key points
of note are:
1. The
Ministry of Justice has
published a number of leaflets
that can be accessed online
explaining Employment Tribunal
fees for individuals, for groups
and multiples, Employment Appeal
Tribunal fees and a helpful
Stakeholder Factsheet.
2.
UNISON’s Application for
Judicial Review of the Fee
Regime has been refused on
paper, it seems on the grounds
that it has no reasonable
prospect of success. Unsion has
requested an oral Hearing that
was heard on 29 July 2013 and we
await information on the outcome
of it.
3. In the
meantime, an Application for
Judicial Review has been made by
Fox & Partners in Scotland in
relation to the new Tribunal Fee
Regime. An Application had been
made in Scotland for an Interim
Interdict, which would have
stayed the implementation of the
Tribunal Fee Regime if it had
been granted, but it was
refused. The Scottish Court’s
principal reason for the refusal
was that the Lord Chancellor had
given an undertaking that any
Tribunal fees paid after 29 July
will be repaid if, at a full
Hearing in (probably) October,
the Court decides the Fees
Regime is unlawful.
The Lord
Chancellor has also conceded
that a ruling by the Court of
Session in Scotland will bind
the whole of the UK and the
Government made three further
concessions in the open Court as
follows:
-
one fee is
due for multiple appeals in
the EAT (the drafting of the
Fees Order had suggested one
fee per Appellant);
-
preliminary
Hearings will not
warrant any Hearing fee;
-
equal pay
claims fall into “Type A”
claims (triggering the lower
fee level and this is a
drafting error that will
need further legislation to
correct it).
4. The new
ET1 and ET3 Forms, which must be
used after 29 July 2013, should
now be available online and if
you have received a Tribunal
claim prior to 29 July 2013 with
the old ET3 Form but the ET3
Form is only due to be filed on
or after 29 July 2013, you
should check that you use the
correct new ET3 Form.
If you have any
particular queries about any of
these changes, please get in
touch. |
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It has been announced that Employee
Shareholder arrangements will come into
force on 1 September 2013. The new type of
employment status is set out in Regulation 2
of the Growth and Infrastructure Act 2013
(Commencement No. 3 and Savings) Order 2013
that provides a new section 205A of the
Employment Rights Act 1996.
The section creates a new type of
employment status, where employees give up a
bundle of employment rights (most
importantly most unfair dismissal claims and
statutory redundancy payments) in exchange
for an award of shares worth at least
£2,000.
There are several safeguards, including a
right to a statement detailing the shares, a
requirement for the employee to take legal
advice and a 7 day cooling off period.
The law in this area is complex and
important. If your company is giving
consideration to this new type of employment
status, you should take legal advice on the
implications of it to the company and the
impact on employment rights.
Taylors is a commercial firm and
the Employment team works closely with our
Corporate department, so please do not
hesitate to contact us if you require
further advice on this new opportunity for
businesses. |
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Provisions relating to financial
penalties on employers are to be introduced
in respect of any Employment Tribunal claim
presented on or after 25 October 2013.
Here’s what they say…
Where an Employment Tribunal concludes
that an employer has breached any worker’s
rights (note: worker, not employee), and
considers that the breach has any
“aggravating factor”, then it may order the
employer to pay a penalty to the Secretary
of State (not to the employee!) of between
£100 and £5,000. Like a parking fine, the
penalty is halved if paid within 21 days of
the Tribunal’s decision being sent to the
employer.
There are complicated rules if more than
one claim is involved and considerable
debate over what an “aggravating factor” is.
As you know, Taylors’ Employment Team is
heavily involved in Tribunal litigation and
we will be keeping a close eye on how
financial penalties on employers work in
practice.
If, after 25 October 2013, any of you
have the unfortunate situation that you are
issued with a financial penalty, then we
would be very interested to hear more from
you as this new area develops. |
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The Government has recently published
new Guidance on Fit Notes, which can be
accessed on the Department for Work and
Pensions
website. The new Guidance is for
employers, GPs and employees. Its stated aim
is to ensure that Fit Notes are used to
their “full potential”.
The underlying, strong message in the
Guidance is that not working is bad and that
a return to work of some sort is the
absolutely desired outcome.
The Guidance for GPs contains the core
message that “most people with common health
problems can be helped to return to work by
following a few basic principles of
healthcare and workplace management”. In
this context, the Government wants better
use of Fit Notes and more focus on what the
employee can do to assist the return to work
process.
The key messages are:
- The GP assessment should be general
and not job specific. This is intended
to ensure that GPs concentrate on the
patient’s functional capacity and
limitations, and deals with concerns
raised by GPs (and others) about their
lack of knowledge and skills to assess
specific work-related activities. It is
also one of several signals that even in
cases where the adjustment duties under
the Equality Act are not engaged, the
employer (and employee) should be
flexible in their approach to what work
a person can do when they are sick or
suffering from a disabling condition as
part of the general approach of getting
everyone back to work as soon as
possible.
- If the GP assesses that the
patient’s fitness for work is not
impaired by a health condition, then he
or she is fit for work and should not be
issued with a Fit Note.
- A Fit Note is not required if the
person is fit for work and there is no
option for the employee to be signed
back to work. So, if as the employer you
require this type of evidence, it has to
come from someone other than the
employee’s GP.
- Where the Fit Note indicates that
the individual “may be fit for work” but
the employer and employee cannot agree
appropriate changes to that work, then
the employer may treat the Fit Note as
if it says “not fit for work”, and the
employee should not be asked to get a
new Fit Note from his or her GP.
- The employee is free to return to
work at any time, including before the
end of the Fit Note.
- The original Fit Note is issued to
the employee and should be retained by
him or her.
- The Fit Note is not binding on the
employer. This means that the employer
can make its own decision about whether
the employee is or is not fit for work,
may gather its own evidence to that end
and give it precedence in respect of any
decision, including about sick pay.
If you are keen to develop your
understanding of absence management, then
you may be interested in joining is at the
next training session in the Taylors’
Employment Law & HR Training Workshop
Programme, which is being held on 12 August
at East Lancashire Chamber of Commerce.
The topic is dealing with absence
management and we have the last few places
remaining. The cost of the three hour
training session is £75.00 plus VAT per
delegate which includes all training
materials. If you would like further
information, please contact
Emma Swan. |
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The Employment Appeal Tribunal (“EAT”)
recently considered the question as to
whether additional annual leave can be
carried over into another holiday year in
the absence of an agreement between an
employee and an employer.
The EAT in the case of Sood Enterprises
v. Healey said that it cannot.
Mr Healey was off work sick for a year
and a half when he resigned. The EAT held
that unlike “ordinary annual leave” (which
was the original four weeks annual leave
provided for by Regulation 13 of the Working
Time Regulations 1998), any additional
annual leave (the extra 1.6 weeks provided
for by Regulation 13A of the Working Time
Regulations 1998) cannot be carried over
unless there is an agreement in place betw
een an employee and an employer. In Mr
Healey’s case, there was not such an
agreement.
In other words, when an individual is on
long term sick leave, only four weeks annual
leave carries over automatically and not the
additional 1.6 weeks granted by UK law,
which exceeds the European minimum of four
weeks annual leave.
Careful consideration therefore needs to
be given to any requests that you may
receive from an individual on long term sick
leave to carry over holiday leave. |
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Some of the staff have been
complaining about working in the hot weather
and they say the office is “warm and
uncomfortable”. The company has agreed a
casual dress code during the hot weather,
but is there a maximum temperature beyond
which staff should not be expected to work?
The short answer is No.
However, the Workplace (Health, Safety
and Welfare) Regulations 1992 state that
during working hours the temperature in all
workplaces inside buildings should be
“reasonable”.
Guidance from the Health and Safety
Executive (“HSE”) has also stated that there
is “more to it than just room temperature”.
Environmental factors, such as humidity and
sources of heat in the workplace, combined
with personal factors such as clothing and
how physically demanding the work is,
influence what is called “thermal comfort”.
The HSE has previously stated that “an
acceptable zone of thermal comfort for most
people in the UK lies roughly between 13°C
(56° F) and 30°C (86° F) …”, but it has
since adopted advice that encourages
employers to carry out a risk assessment
that begins by assessing the proportion of
employees who are complaining about the
temperature!
So, if you have been receiving complaints
by employees about the heat in their
workplace, particularly over recent weeks,
then you should be considering whether it
would be appropriate to undertake a risk
assessment and implement any safeguards
necessary. If you are unsure whether the
number of complaints that you have received
are at a level that may require a risk
assessment and you would like to consider
this further with us, then please feel free
to contact us.
If you have any queries in relation to
this problem or a question that you would
like to ask the team and share with our
other readers, please send it to us and we
would be delighted to use it in a future
edition of Employ! |
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Copyright 2006 - 2013 Taylors Solicitors
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