April 6 2010 sees a raft of new employment regulations come into force creating a new landscape for employers, employees and HR professionals – are you prepared?
It is not just HMRC that rang the changes on 6 April 2010[1] with its new tax year but the statute book with new employment regulations covering:
- additional paternity leave and pay (the so-called ‘male’ternity provisions);
- the ability of employment tribunals to refer whistle-blowing claims to regulators;
- the right to request time off to train; and
- the replacement of sick notes with fit notes.
The People Bulletin is grateful to Kath Sadler-Smith, an associate at solicitors Osborne Clarke for the following summary of key changes. Her comments on each item are included at the end of the relevant sections.
Additional paternity leave
From 6 April 2010 new regulations will bring into force additional paternity leave and pay for fathers of babies due on or after 3 April 2011 (or who adopt after this date).
High-earning women will no longer need to face the difficult choice between earning much needed money by returning to work or swapping the boardroom for the baby sling. The new regulations permit new mums to transfer up to six months of their maternity leave to their babies' father or their partner (civil included). A few limitations apply: the leave can't be transferred until the baby is at least 20 weeks old and must be taken by Dad before the baby turns one.
Statistics show there are many more women in high paying professions making increasing numbers of women the main breadwinners of the household. For couples in this situation, this new option may well be very attractive.
Employers must now review their policies to make way for this new right. Maternity, paternity and adoption leave policies will all need updating.
Kath Sadler-Smith comments: ‘Hiring and managing temporary workers is time consuming and costly and an unwelcome, additional burden for many recovering businesses. The government estimates that 4 to 8% of fathers will use the new right. The most likely participants will be fathers with partners who are earning more than they are or who can afford an extended break from the workplace. It will be interesting to see whether there is a greater take up of this new right than there has been the right to take up to 13 weeks parental leave, which is already available to fathers of children under five, or 18 if the child is disabled.’
The ability of employment tribunals to refer whistle-blowing claims to regulators
Employment Tribunals will be able to pass details of whistle-blowing allegations made as part of a claim on to relevant industry regulators. This change will apply to any claim form containing a whistle-blowing claim received on or after 6 April 2010.
The new regulations will put pressure on employers who ignore whistle-blowing claims or take disciplinary action against employees as a result of their whistle-blowing claim. In some instances the new regulations could raise the financial stakes for employers considerably. For example the maximum fine for breaches of the Data Protection Act (such as the loss of customer data) will be £500,000 from 6 April, whereas the maximum award for unfair dismissal is just £65,300.
Kath Sadler-Smith comments: ‘Businesses will be dusting off their whistle-blowing policies to ensure they provide clear guidance to employees on how concerns will be dealt with. Regulators will be keen to make a show of force by following up tip-offs from the Tribunals and employers subject to investigation face significant financial penalties, embarrassment and the loss of hours of management time. Whistle-blowers will be aware of the tactical advantage gained by this new legislation and employers therefore need to get their policies right and investigate concerns fully, so they can robustly defend claims and respond with confidence to those threatening litigation.’
The right to request time off to train
From 6 April 2010 a new right for employees to request time off work to undertake study or training will come into force. The right is available to employees with more than 26 weeks' service, but not to agency workers.
The training must be for both improving the employees' effectiveness at work and the performance of their employer's business. The training does not, however, have to result in a formal qualification. This will allow employees to take the initiative in furthering their careers. However, employers can refuse to allow the training if it will not assist the employer's business.
An employee is not entitled to any payment other than to ensure they achieve the national minimum wage. In practice we anticipate that where employers approve of the training they may well commit to paying the employee too.
Kath Sadler-Smith comments: ‘Employers will now have to navigate the statutory process for considering requests and may only refuse them on specified grounds. Of course, as the time off and training itself need not be paid, this will curtail the number of applications made. However, the new right is a trap for the unwary employer who may find themselves with a compensation bill for eight weeks' pay if correct procedure is not followed.’
The replacement of sick notes with fit notes
The Statement of Fitness to Work (fit note) will replace the current sick notes from 6 April 2010. The new notes are designed to help employees get back to work by shifting the focus onto fitness rather than sickness. GPs will be asked to indicate whether the employee is ‘not fit for work’ or ‘may be fit for work’. If the GP considers that the employee ‘may be fit for work’, he/she will be asked to suggest arrangements that could enable employees to continue working or to return to work. The options available are:
- a phased return to work;
- altered hours;
- amended duties; and
- workplace adaptations.
GPs also have the option to make comments on the functional effects of the employee's condition[2].
Kath Sadler-Smith observes: ‘Sceptics fear GPs will take a cautious approach to certifying an employee as fit for some work, choosing to take the lead from their patient. The work shy employee may still therefore be able to enjoy the spring in their garden leaving the employer back in the position they were under the sick note scheme.’
[1] www.hmrc.gov.uk/helpsheets/e10.pdf
[2] See also ‘Fit notes ‘may be fit for work’ by Michelle Gray in this issue