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We hope you’ve found our new format e-bulletin interesting and have had a chance to look at our new website. If you haven’t please do and let us have your feedback.
This month, we’re looking at the new right to request time off for training, the documentation you need to check when taking on new recruits, details of a recent case regarding holiday entitlement, changes to time off for new fathers and news of the Diamond Jubilee weekend in 2012.
As ever, your feedback is always appreciated so please do let us know if there’s anything else you would like to see in our e-Bulletin.
Kind regards,
Angela
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Right to Time Off for Training
From April 2010, some employees will be granted the right to request time off to train, operating on the same principles as the right to request flexible working.
The Government hope that this new statutory right will help to plug the gap between the skills employees have and the ones their employers want.
This new statutory right will extend only to “relevant training” - training that would develop a specific skill that was needed for a particular role or that would lead to an accredited qualification that would improve their effectiveness in their employer’s business and improve the performance of that business generally.
This will be introduced in stages and be dependent upon the size of the business. It will come into force in April this year for employers with in excess of 250 employees. Employers with less than 250 employees can breathe a sigh of relief for the time being as it is not anticipated that this will be introduced for smaller companies until at least April 2011 and it may be later than that.
For an employee to be eligible they must have been continuously employed by the Company for 26 weeks and they can only make one request in any twelve-month period. As with flexible working, this is a right to request it – not a right to automatically have it! Provided you have a robust business reason why it would not be appropriate or feasible, you can refuse the request but the Act does impose an obligation on you to properly consider any such request.
The employee will have to make a written application setting out prescribed information. They will be invited to a meeting to discuss their application and they must be notified of the decision in writing within 14 days of the meeting. The employee will have the right to appeal and must be allowed to have a workplace colleague or a trade union representative accompany them at all meetings under this procedure.
There is no requirement for this time off to be paid, or to pay the cost of the training.
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New Rules on ID Cards
National ID cards issued under the Identity Cards Act 2006 can now be provided by employees as proof of eligibility to work in the United Kingdom.
Before an employee starts work, employers must ask them to provide documentary evidence of their right to work in the UK. If an employer is unable to prove that they have done this by keeping copies of the original documents, they risk a fine under the Immigration, Asylum and Nationality Act 2006.
The documents that can be produced by an employee as evidence are divided into two lists – List A and List B. The documents in List A show that a person is entitled to work in the UK provided they are not subject to any immigration controls or restrictions. If the employee has restrictions imposed upon them, they will also have to produce one or more documents from List B.
You should request the prospective employee to provide you with originals of the required documents which you should then copy and retain in their personnel file.
ID cards have only recently been added to the list of documents that you can request under List A. To qualify, the ID Card will need to have been issued under the Identity Cards Act 2006 and must show that the holder is either a British Citizen, a citizen of the UK and Colonies having the right to live in the UK, or a national of the EEA or Switzerland.
We recommend that you make any offers of employment conditional upon the prospective employee providing original documentary evidence of their right to work in the UK.
If you would like a copy of the documents that may be produced in Lists A and B, please email us with Asylum and Immigration List in the subject line.
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New Ruling Gives Clarity on Holiday Entitlement
It’s a rarity to see an employer-friendly decision in relation to Working Time Regulations, particularly given recent case law which has been extremely generous to employees but.....!
Following a new ruling from the Employment Appeals Tribunal (EAT), employees are required to follow the Company’s rules with regard to their holiday entitlement or lose it.
There has been some confusion about whether workers are entitled to holiday pay even when they’ve not complied with the Company’s rules for using their holiday entitlement.
In the case of Lyons vs Mitie Security Ltd, Mr Lyons was a security guard and his leave year ran from 1st April to 31st March. On 6th March, 2008, Mr Lyons made a claim for holiday pay for nine unused days’ holiday but his request for annual holiday didn’t comply with the notice requirements which were clearly set out in his contract of employment. The contract stated that all requests for holiday must be made on the Company’s holiday request form and “wherever possible should be submitted at least four weeks prior to the commencement of the holiday” and “applications for holidays at shorter notice will be considered on their merits and subject to staffing requirements”.
His request was refused but he argued that the notice requirements would effectively prevent him from taking his full leave entitlement before the end of the year. The contract also stated that he was not permitted to carry outstanding holiday over to the following leave year. He therefore lost holiday pay for these nine days and he subsequently resigned. Mr Lyons brought an employment tribunal claim but this was rejected.
He subsequently appealed. The EAT stated that workers do not have an absolute right to take holiday. In this case, the taking of holiday was subject to notice requirement and the employee failed to give the correct notice, resulting in him losing the leave. The EAT did note that the notice requirements must operate for the whole of the leave year and must “not operate in an unreasonable, arbitrary or capricious way so as to deny holiday to a worker who has lawfully requested it”.
The moral of this tale however is “use it and comply with your employer’s rules on holiday entitlement or lose it”.
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Dads Can Take up to Six Months’ Paternity Leave
Despite good intentions, statistics show that four out of ten dads still don’t take time off as paternity leave when their babies are born. Currently, fathers are entitled to two weeks’ statutory paternity leave. From 3rd April, 2011, they’ll be able to take up to six months’ paternity leave while the mother of their child returns to work.
Fathers will be given the legal right to take the place of the mother during the last three months of paid maternity leave and to then take a further three months’ unpaid leave. This measure would allow mothers who earn more than their partners to return to work earlier.
Government ministers intend to push through the required legislation by this April before the General Election which is anticipated to be held in May.
Harriet Harman, the Women and Equalities Minister, said “This gives families radically more choice and flexibility in how they balance work and care of children, and enables fathers to lay a bigger part in bringing up their children.”
There’s bound to be an additional level of administration involved for employers since not all parents work for the same employer. The system will rely on self-certification by the parents with regard to eligibility. The employee wishing to take additional paternity leave will have to give their employer the required notice and various pieces of information including a signed declaration from the mother indicating the date on which she intends to return to work.
This right will also be available on the same terms for those who are adopting children.
Ministers have estimated that between only 4% and 8% of those fathers who are eligible for this new leave will take it.
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Extra Bank Holiday – 5th June 2012
The Government has announced the creation of a Diamond Jubilee weekend in 2012. The late May bank holiday will be moved to Monday, 4th June and an extra bank holiday on Tuesday, 5th June will be added as part of the celebration of the Queen’s Diamond Jubilee.
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Your Questions Answered
Q: We want to change the date on which we pay employee salaries from the 15th of the month to the 28th of the month. What do we have to do?
A: Changing the date of payment of employee salaries will amount to a fundamental change to the employees’ terms and conditions of employment. As such, the change will need to be agreed with the employees concerned before it can be implemented.
You should consult with the affected employees, or their representatives, and seek to agree on both the change itself and the manner in which it will be implemented. Changing the date of payment will affect each employee differently dependent upon their own individual financial circumstances and it would be grossly unfair to impose this on them without any notice. It may be appropriate to agree that you will phase in the change by perhaps paying a couple of months on 21st of the month before finally moving to the 28th.
Once you have completed the consultation, you may find some employees still refuse to agree to the change. If this is the case you would have to terminate those employees’ contracts with full notice and offer them re-employment on the revised terms at the same time. All the terms and conditions of the new contract would be the same other than the date of payment of salaries. Of course, this runs the risk of a claim for unfair dismissal but provided you have acted reasonably throughout the process, you will be in a strong position to defend any claims of unfair dismissal from those who decline to accept the offer of re-employment. You would of course have to demonstrate that there was a sound business reason for implementing the change in the first place.
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In Closing
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As always, I love to receive your feedback and I'd be especially grateful if you could let me know what you think of our new e-Bulletin layout and our new website. You can drop me an email via angela@crispinrhodes.co.uk or give me a call directly on 01908 576991. Also, don't forget you can download our new Desktop Guide to HR completely free of charge.
Lastly, please could I ask you to use the link below to forward this email onto anyone you think would benefit from keeping abreast of the latest changes to HR law? (And if you've been forwarded this email, you can subscribe to receive it every month by emailing or visiting our website)
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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