2011 – What’s in store
A slightly belated Happy New Year from all at Integra. Now that the world seems to be fully functioning after the festive season and extreme weather conditions we thought it might be useful to have a summary of some of the significant employment law and HR issues facing employers in 2011.
Royal wedding
The additional public holiday for the royal wedding on Friday 29th April 2011 raises a number of issues for employers. Whilst still a few months away businesses should consider now how they plan to deal with this holiday to avoid problems later closer to the event. Issues to consider now are:
• Are your employees entitled to this day off and do they have to be paid? This depends on how your contract is drafted and what it says about entitlement to public/bank holidays. Even if there is no contractual entitlement will you be giving staff the day off as a morale boosting gesture of good will?
• What about part-time workers? Issues arise in relation to how you treat part-timers whose normal working week includes Fridays as well as those who don’t. Care needs to be taken to ensure that they are not treated less favourably than full-time employees.
• Do you need people to work on this day? If so, how will you enforce this and what sanctions will you apply for failure to attend work?
• Timing – 29th of April falls in the same week as Easter Monday and is the Friday immediately before the May Day public holiday on Monday 2nd May. This means that employees could potentially be working only 3 days in an 11 day period. Increased holiday requests for the entire period are likely. How will you deal with these? Is first come first served appropriate?
• Many schools will be closed during this week so be prepared to consider childcare issues related to requests for holidays – consider whether these employees should be given priority or whether they could argue indirect sex discrimination if requests are refused. Refused holiday requests may lead to increased requests for emergency time off to care for dependents.
• Consider the possibility of increased sickness absence in the 3 days between Easter Monday and 29th April. Three days of “sickness” could secure an 11 day “holiday”. Consider what you can do in advance to deter this.
Default retirement age
The Government has recently confirmed it is phasing out the default retirement age of 65. From April 2011 employers will no longer be able to use the default retirement age to enforce compulsory retirement at the age of 65 above. Key points to note are:
- No new notices of intended retirement may be issued after 6 April 2011
- Retirement under the default retirement age will cease completely on 1 October 2011
- Transitional arrangements will apply to retirements notified before 6 April 2011 to take effect before 1 October 2011
- Retirement dismissals will still be possible after 1 October 2011, but only if they can be objectively justified
- The Government has stated that it will introduce an exception to the age discrimination rules so that employers can stop offering employees insured benefits, such as life assurance and private medical cover, beyond their normal retirement ages. Businesses had been concerned that the removal of the default retirement age could lead to substantial costs for providing insured benefits for the over 65s.
ACAS has produced a guide to working without the default retirement age which can be found at http://www.acas.org.uk/CHttpHandler.ashx?id=2976&p=0
Employers will need to consider whether they wish to continue to have a retirement age and, if so, whether this can be objectively justified. Consideration will also need to be given to amending retirement policies and staff handbooks, changes to pension and healthcare arrangements, communicating changes to employees and ensuring adequate performance procedures are in place for all employees.
Extension of flexible working
With effect from 6 April 2011 eligible employees will be able to request flexible working to care for any child under 18 years of age. Currently, the right to request flexible working is available in respect of a child under 17 (or under 18 if the child is disabled).
When it came to power the coalition government stated its intention to extend the right to request flexible working to all employees. A consultation on how to do this and on the creation of a new system of flexible parental leave is awaited.
Bribery Act 2010
From April 2010 it will be a criminal offence if a commercial organisation fails to prevent bribery relating to its business because it does not have in place adequate procedures to stop this. This is a strict liability offence – it doesn’t matter whether or not the organisation knew it was taking place. The organisation is liable to an unlimited fine and so are its senior officers if they knew of the offence or turned a blind eye. Bribery in itself is also of course a criminal offence carrying unlimited fines and lengthy prison sentences.
It is essential that businesses have adequate procedures in place to deal with the new legislation. The Government is currently consulting on guidance as to what type of procedures would be adequate, although it is expected that this judgement will be left very much to organisations to make for themselves.
Agency Workers Regulations 2010
The Government has confirmed that these regulations will come into effect as expected on 1st October 2011 and draft guidance on them is expected soon. It should be noted that all of the currently existing legislation regarding agency workers will continue to apply. Key points in the new legislation are:
- Agency workers will have the right to equal treatment in terms of basic employment terms and conditions when compared to a directly recruited comparator who is employed by the hirer. Basic conditions for these purposes are those in relation to pay, duration of working time, length of night work, rest periods and breaks and annual leave. This right is triggered once the agency worker has undertaken the same role with the hirer for a period of 12 continuous weeks.
- From the start of their assignment an agency worker has the right to be told of any relevant vacancies in the hirer during their assignment, in order to be given the same opportunity as a comparable worker to find permanent employment with the hirer.
- From the start of a worker’s assignment an agency worker has the right to be treated no less favourably than a comparable worker in the hirer’s establishment in relation to “collective facilities and amenities”. This includes canteen or other similar facilities, child-care facilities and the provision of transport services.
- hirers will have to allow a pregnant agency worker reasonable paid time off during her working hours to attend ante-natal appointments.
- hirers will be under a duty to make adjustments to protect agency workers from identified risks if they are pregnant, have recently given birth or are breastfeeding.
If you are a hirer of agency workers you may wish to carry out an “agency worker audit”. Do you have any agency workers currently or likely to be engaged for more than 12 weeks? If you do you should consider what equal treatment will involve, including:
•What roles do you use temporary agency workers for?
•Do you have comparable directly hired roles?
•What are the basic working and employment conditions of those comparators?
•Do these differ from the current conditions of your agency workers? If so, how?
From this businesses will need to consider whether the use of agency workers on a long term basis is the right approach and whether alternatives to agency workers might be more appropriate.
For more details or to discuss this or any other employment law issue contact Integra at contact@integralegal.co.uk