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Employment Law News - April 2008 newsletter |
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| WHAT’S NEW FROM APRIL 2008? |
 The Sex Discrimination Act 1975 (Amendment) Regulations 2008 comes into force on 6th April 2008 and introduces the following changes:
New definition of harassment
A slightly broader definition is now in place - ‘unwanted conduct related to a person’s sex or the sex of another person’. It will no longer be necessary for the cause of the harassment to be ‘on the grounds’ of a person’s sex. An example of this could be a work colleague makes a sexist comment which is not directed at the individual who then brings the claim, but that they consider that the comment has violated their dignity or created a hostile or offensive environment for them. In such circumstances they could make a claim that they have been subjected to harassment related to sex.
Employer’s liability for third party harassment
The law currently provides protection for workers from harassment by colleagues. Employers will now be legally required to take steps to protect employees from sexual harassment by customers, suppliers and others they encounter in the course of their work.
The regulations state that the employer can be liable if action is not taken where a member of staff has been subjected to harassment and the employer is aware that the same employee has been subjected to this on at least two other occasions (the harassment does not necessarily have to be carried out by the same person).
Failing to take action could result in a claim for compensation, including ‘injury to feelings’.
Discrimination on grounds of pregnancy or maternity leave
Where a woman is bringing a claim of pregnancy or maternity-related discrimination, it will no longer be necessary for there to be a comparator. All that it will be necessary to show is that the discriminatory treatment was on the grounds of her pregnancy.
Extension to non-pay benefits during maternity leave
New provisions will affect women whose expected week of childbirth falls on or after 5th October 2008 who will be entitled to the same contractual terms in respect of non-pay benefits for the whole of the maternity leave period. This means, for example, that where a woman takes the full 52 weeks of ordinary and additional maternity leave they will accrue contractual holiday entitlement for the whole period of 52 weeks. It is anticipated that similar changes will apply to adoption leave. This will also apply to such things as company cars, mobile phones and lap tops.
Discretionary bonuses during compulsory maternity leave
The compulsory maternity period that all women must take (either 2 or 4 weeks) at the beginning of their leave, must be treated as time worked for the purposes of calculating the size of any bonus entitlements.
More employees to have information and consultation rights
From 6 April, employees in firms that employ between 50 and 99 employees will have the right to be informed and consulted about certain issues in their workplace. Previously this legal right applied to companies with 100 or more employees.
Under the Regulations, employees can be informed on recent and probable development of business activities and economic situation; informed and consulted on the situation, structure and probable development of employment within the business; and informed and consulted with a view to reaching agreement on decisions likely to lead to substantial changes in work organisation or in contractual relations.
Effective employee involvement is good, both for individual employees and their employers. These Regulations provide an opportunity for organisations to ensure that their communication strategies maximise the potential of their workforce. They also enhance the ability of employees to make a greater contribution to the business they work for. |
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| AND FROM OCTOBER 2008... |
 Government approves new £5.73 Minimum Wage Rate
The Prime Minister recently announced the adult National Minimum Wage (NMW) rate will rise from £5.52 to £5.73, ensuring that low paid workers can look forward to a bigger pay packet from October 2008. The rate for 18-21 year olds will also increase from £4.60 to £4.77, while the 16-17 year old rate will rise from £3.40 to £3.53.
Nearly one million low paid employees, two thirds of them women, will benefit from the increase.
The Government has also boosted funding for enforcement of the NMW and is planning tough new penalties for rogue employers who underpay staff as part of the Employment Bill, now before the Parliament.
Business Secretary John Hutton said:
"The National Minimum Wage remains one of the most important rights introduced by the Government in the last decade. Before it was introduced, some workers could expect to be paid as little as 35p an hour, our legislation has ensured that can no longer happen.
"I am proud of the minimum wage; it makes a real difference to the lives of many of our lowest-paid workers and protects them from exploitation. It also creates a level playing field for business and boosts the economy."
Since October 2007 the minimum wage for adults, combined with Working Tax credits and other benefits, has guaranteed an income of at least £292 a week for families with one child and one full-time worker.
When the National Minimum Wage was launched the main rate was £3.60. Since then it has increased at substantially more than the rate of inflation, while the number of jobs in the economy has risen by over two million over the same period.
The Government has announced new measures which aim to enforce the minimum wage and crack down on rogue employers. These include:
A fairer method for dealing with national minimum wage arrears, calculated so that workers do not lose out as a result of underpayment.
Toughening up penalties for those who break the law, increasing the maximum penalty for non-payment of the NMW to an unlimited fine. The most serious cases of non-compliance will be tried in a crown court. |
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| HOLIDAY PAY FOR LONG TERM SICK WORKERS |
 Employees on long term sick leave can be an emotive subject for small businesses. One very famous case is that of HM Revenue and Customs v. Stringer and others. The case deals with whether workers on long term sick leave can designate part of their sick leave as accrued annual leave.
The Employment Appeal Tribunal (EAT) held that annual leave does accrue whether or not the employee is working. This decision was overruled by the Court of Appeal and has now been referred to the European Court of Justice.
A formal decision has not yet been given but the Advocate General has held that entitlement to paid holiday does accrue whilst an employee is absent on sick leave. However, whilst workers are on sick leave, they may not take their holiday. After termination of the contract, workers are entitled to a compensatory payment to reflect accrued but untaken holiday leave, even where the worker was on sick leave for the full leave year.
An Advocate General’s opinion is only a recommendation to the European Court of Justice as to the direction their judgement should take – and their opinion is usually followed. |
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| THE BIG BIG CHARITY BASH |
] The Big Big Charity Bash has now been and gone. For those of you who missed it (were you living on the moon?), it was on the 28th March at the impressive new Stadium:MK. We would just like to extend our thanks to all those who contributed towards the evening, as well as all those who came along on the night! We raised a whopping £11,500 (approx) for St Pauls School Mongolian Fund, Wheelpower and Willen Hospice.
Many thanks to those of you who have told us what a wonderful time you had - we did too. And for those of you who are asking when the next one is ... just give us a little time to collect ourselves! |
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| DID YOU KNOW? |
 Q:What is the difference between an employee and a Self Employed Worker? |
A:It is important to ascertain whether a worker is an employee or self-employed as this will affect the person's employment rights. In deciding this question the law says that the following has to be looked at:
Does the employer have control over what work is done?
Does the employer control where, when and how the work is done?
Does the employer provide holiday and sickness pay?
Is the employer taking the financial risk?
Is the employer responsible for paying Tax & National Insurance Contributions?
If the answers to any of the above are yes then that person is likely to be employed, rather than self-employed, no matter what the employment contract says. |
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Crispin Rhodes, a UK based company that provides human resources and outsourced personnel services in Milton Keynes and surrounding areas. |
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