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Welcome to the April edition of the newsletter, as you can see, April is the month when a lot of new legislation comes into force, so ensure you stay on top of it!
Don't hesitate to get in touch if you have any questions
Kind regards,
Angela
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Increased Rights to Access Information
Recently, the Information Commissioner ruled that a failed job applicant had the right to view copies of the other candidates’ applications, as well as notes taken during their interviews. Is this something we should be worried about?
Access to information – what lead to the ruling?
An employee of Leicester City Council (LCC) applied for two internal job vacancies, and they were unsuccessful in both applications. They then applied to LCC for copies of the other candidates application forms and interview notes. The employee claimed they were entitled to see this information under the Freedom of Information Act 2000. LCC refused saying the information was personal and its release would be a breach of the Data Protection Act 1998.
The employee then sent a complaint to the Information Commissioner, who ruled that the job application information could be handed over, without the other applicants’ rights being breached.
Consequently, the LCC was ordered to handover the information and the IC said that the way to do this anonymously was by editing application forms to remove information that identified applicants or by “supplying brief summaries of other applicants’ experience and qualifications.”
What will change as a result?
The ruling has significant implications for employers, because as a result, any information collected during the interview process can be available for other candidates to view. This means that unsuccessful applicants will have greater scope to argue discrimination.
Reviewing your recruitment process
If an unsuccessful candidate sees anything in notes that could be used to imply discrimination, for example due to their age, sex, religion etc, they could be used to make a claim especially if they see it as one likely to be successful.
- Only record information you would want a third party to see. Don’t write down anything that could be viewed as discriminatory.
- Ensure you use a well drafted job description and person description when looking at the suitability of applicants. When these are used properly, unsuccessful applicants are likely to think twice before bringing a claim.
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Dealing with Existing Grievances and Disciplinaries
To assist with the changeover between the statutory dispute resolution procedures and the new ACAS Code of Practice, which came into force on the 6th April, there are some “transitional provisions.” This means that if you’re currently dealing with a dispute when the changes came in, the two regimes run parallel with each other and the “transitional provisional” identify which regime should be used to resolve the dispute at the time.
Disciplinary Action
- If formal disciplinary action has started BEFORE April 6 2009, for example a Step 1 letter has been sent, the statutory procedures should be continued.
- Where formal disciplinary action is started on or after that date, you use the new Code of Practice.
You can’t agree with an employee to drop the statutory procedures in favour of the Code, they must be followed if they still apply.
NB: If an investigatory procedure was started before the 6 April, but the letter informing the employee about a disciplinary hearing was sent on or after that date, the Code will apply.
Grievances
- If you’re dealing with a grievance on April 6 2009, the statutory grievance procedure will still apply. They will also have to be followed if an employee raises a grievance about something that started before that date, but which they haven’t yet brought your attention to.
- If it something that has happened after the 6 April, the Code will be followed.
Cut-off Dates
The transitional provisions won’t last forever, the cut off dates are as follows:
- Where the grievance started on or before 5 April 20009, but is ongoing after that date, tribunal claims must be submitted on or before July 4 2009.
- For claims about equal pay and statutory redundancy payment, claims must be submitted on or before October 4th 2009.
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Flexible working
Despite the current economic climate, the Government is set on expanding the right to flexible working, which has been welcomed by unions and the Chartered Institute of Personnel and Development (CIPD) but the Confederation of British Industry fears that it will cost employers an extra £69million a year.
Currently, flexible working is only available to parents with children up to the age of six or 18 if disabled or those who care for a spouse, partner or relative or live at the same address as those needing care.
The right to request flexible working has been seen as a success by both sides, in terms of employees not swamping employers with requests, and employers generally accommodating requests. The concern lies with the financial burden of the laws, which due to the wider provisions of the new legislation, could see a predicted rise in requests of 300,000. Which, when coupled with extra provisions such as installing home computers and employing staff to cover gaps, could lead to a substantial rise in costs for employers to cover.
What changes are being made?
From 6th April 2009, the right to request flexible working will made available to all those with children up to the age of 16, meaning an extra 4.5 million parents could benefit from greater flexibility at work. Flexible working can take the form of part-time working, shift-working, flexitime, working from home, job sharing, staggered hours and compressed working hours.
Are the laws fair on those who do not have children?
Whilst some fear that customer satisfaction will be affected due to fewer staff being available during normal working hours, and childless employees may feel a bit hard done by, the impact of the changes are unlikely to cause major differences in work patterns. This is because a majority of requests only involve simple changes such as starting and finishing work an hour later.
These small changes could be a welcome boost to businesses, who should find that productivity increases with flexible working and having people work from home can reduce office costs and make businesses more competitive by making services available in a range of locations and over longer trading hours.
Preparing for the changes
Fortunately it seems that the same procedure for requesting flexible working will apply to the new legislation, therefore it is still possible to reject requests for business reasons. Employers have an obligation to hear requests and also consider them, and businesses need to know about the changes and have procedures in place to deal with them.
It is good practice to ensure that viable flexible working arrangements are looked at prior to any requests being made, and these will vary with the size and needs of the business.
Procedures will need to be put in place to monitor flexible working and these will need correct management, otherwise businesses may find themselves short of staff, also ensure that you can cope with the requests that you accept. A trial period is a good idea when a case is accepted in order to test out the feasibility of the new arrangement.
Setting rules for flexible working
It is a good idea to form a homeworking policy if there is not already one in place, this should deal with things such as health and safety when working from home and practicalities such as being available at set times during the day.
Employers also need to stay aware of changes being made to this area of law, as it is constantly changing.
Inevitably, the new working arrangements will have cost implications but, if handled correctly, they should improve morale within your workforce and improve the perception of your business in the market.
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Other Changes Happening This Month
New P45 forms
The HMRC has introduced new P45 forms, which must be used from 6th April 2009 and old ones will become invalid from that date. Rather than A5, they are now A4 size and contain extra fields for the employee’s date of birth and gender.
The new version is available now and can be used before the 6th April, once all your existing A5 versions have been used.
Other than the two new fields, all the information on the form and the process for getting one remains the same.
Age Discrimination - Heyday Appeal - ECJ Decision
The Heyday case questions the legality of the default retirement age (DRA) of 65. The European Court of Justice has ruled that, in principle, the DRA does not break the EU Equal Treatment Framework Directive that age regulations are based on. The case has been referred back to the UK high court for further consideration to see whether a mandatory retirement age can be justified.
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Your Questions Answered
Q: How many hours does an employee have to work in order to be classified as a part-time employee rather than a full-time employee?
A: There is no legal definition of what number of hours constitutes part-time working, but usually it is accepted that working 35 hours or more per week is full-time employment. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, say that your Company’s custom and practice as an employer should also come into play when considering whether an employee is deemed full or part-time. For example if your full-time employees work a 37.5 working week, anything less than this is seen as part-time.
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In Closing
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I hope you have found this month's newsletter useful and informative. If so, then why not forward it on to someone. if not, then do tell us how we could improve it.
Crispin Rhodes is a specialist human resources company that offers a wide range of cost effective HR services, tailored to the needs of small and medium size businesses.
We provide advice and tailored service packages embracing recruitment, HR policies and procedures, discipline and grievance, sickness, terms and conditions of employment, maternity, paternity and adoption, redundancy, psychometric testing and one to one personal development.
Thank you once again, and for now I wish you all the best.
Kind regards,
Angela Rhodes
Crispin Rhodes Ltd
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Tel 01908 576991 - Fax 01908 607533 - Free HR Resources - Newsletter Archive - Contact Us
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Crispin Rhodes Ltd, 4 Aldrich Drive, Willen, Milton Keynes, MK15 9JH - VAT Reg No: 690381621
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Crispin Rhodes Ltd is a company registered in England and Wales with company number 3336715
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