April 2009 Employment Update

EFFECTIVE DATE

THE CHANGE

WHAT DOES THIS MEAN FOR EMPLOYERS?

01/04/2009

Minimum holiday entitlement increases from 24 to 28 days (amendment to Working Time Regulations 1998).

Currently, an employee is entitled to 4.8 weeks' annual leave (holidays) per working year. This is equivalent to 24 days for a five-day working week.

From 1 April 2009 this entitlement will increase by a further 0.8 weeks to 5.6 weeks, meaning that an employee working a 5-day week will be entitled to take 28 days paid holiday per year.

Part-time workers will be entitled to 28 days holiday reduced pro-rata according to the amount of days they work each week.

Employees should be made aware of their revised entitlement and employment contracts may need to be revised to reflect these changes. 

* Despite these changes, there is no statutory right to time off (paid or otherwise) on any public holiday. Therefore, days taken off for public holidays are deducted from an employee’s statutory annual leave entitlement. Whether an employee can be required to work on a public holiday is generally a matter for the employer to decide.

06/04/2009

Implementation of Employment Act 2008.

This Act will:

-       repeal the current statutory dispute resolution procedures in favour of new measures to encourage early/informal resolution using the ACAS code;

-       allow employment tribunals to increase or reduce tribunal awards by up to 25% for failure to follow the new ACAS code;

-       strengthen the national minimum wage enforcement regime;

-       clarify and strengthen employment agency standards to address some of the concerns about vulnerable workers; and

-       amend trade union membership law so that trade unions can expel members on the basis of their membership of a political party.

The repeal of the statutory dispute resolution procedures will affect both future workplace dispute resolution and current disciplinary or grievance procedures.

Employers should ensure that they have a comprehensive, well drafted and up to date disciplinary procedure which complies with the new Code.

The new ACAS code can be found at www.acas.org.uk/CHttpHandler.ashx?id=961&p=0 and ACAS Employer’s Guidance to the new code can be found at http://www.acas.org.uk/CHttpHandler.ashx?id=981&p=0

*Despite these changes, the three-stage statutory procedures must still be followed in disciplinary or grievance cases started before 6^th April 2009.

The non-statutory Acas guide (www.practicallaw.com/7-384-3283) gives guidance on what a well-drafted disciplinary policy should contain (see paragraph 26).

In many cases an employer will draft its own disciplinary procedure without recourse to the employees or their representatives. However, the Acas Code (www.practicallaw.com/9-200-4742) recommends that employers "involve employees and, where appropriate, their representatives" in developing procedures (see Discipline under the new Acas Code: a quick guide: Potential headaches (www.practicallaw.com/3-385-0478)). In some workplaces a works council or other representative body may, depending on its remit, have a say in formulating the procedure and rules.

A comprehensive disciplinary procedure ensures that managers have access to guidance on how to carry out the disciplinary process from start to finish, particularly where they have elements of discretion. This does not remove the need for training on carrying out the procedure, but should produce greater consistency and reduce the risk of procedural slips leading to claims for unfair dismissal. A comprehensive and well-drafted procedure can also give managers the confidence to make the right business decision in the knowledge that they are going about things in the right way. This must be balanced against the risk that a breach of the procedure may result in a finding of unfair dismissal, although this will be less likely where the failure is minor or merely technical and the employer has in other respects complied with the Acas Code.

The non-statutory Acas guide (www.practicallaw.com/7-384-3283) gives guidance on what a well-drafted disciplinary policy should contain (see paragraph 26).

In many cases an employer will draft its own disciplinary procedure without recourse to the employees or their representatives. However, the Acas Code (www.practicallaw.com/9-200-4742) recommends that employers "involve employees and, where appropriate, their representatives" in developing procedures (see Discipline under the new Acas Code: a quick guide: Potential headaches (www.practicallaw.com/3-385-0478)). In some workplaces a works council or other representative body may, depending on its remit, have a say in formulating the procedure and rules.

06/04/2009

Increase statutory sick pay and maternity, paternity and adoption pay (via Social Security Benefits Up-rating Order 2009).

From 6^th April 2009, the following weekly rates will apply:

-     The weekly rate of statutory sick pay will be £79.15 (up from £75.40).

-    The prescribed weekly rate of statutory maternity pay, statutory paternity pay and statutory adoption pay will be £123.06 (up from 117.18).

Employers should ensure that the correct weekly rates are paid to employees to avoid any potential claim from employees for unlawful deduction of wages. Employment contract and staff handbooks should be amended accordingly.

06/04/2009

Right to request flexible working is extended

From 6^th April 2009 all parents of children aged 16 and under have the right to request flexible working hours.

Previously only parents of children under the age of six or parents of disabled children could apply for flexible working.

However, from 6^th April 2009 any parent of a child aged 16 or younger can request flexible working- meaning a request to work different hours, a request to change to the time when they work or a request to change the location- i.e. working from home.

The criteria are:

-          they must be a parent,

-          they must have been employed for at least 26 weeks

-          they must not be an agency worker.

*Employers should ensure that they have an up to date “Flexible Working Policy” which takes into account these changes.

06/04/2009

Extension of right to time off for public duties

From 6^th April 2009 the right of employees to time off for them to perform public duties is extended.

Currently employees have a right to take reasonable time off during working hours to undertake various public duties including being a member of a local authority, police authority or school governing body.

From 6^th April 2009 this has been extended and employees can take reasonable time off to attend probation boards/court boards, youth offender panels and other public sector housing organisations.

*Employers do not have to pay employees during the time they take off for public duties unless the employee takes the day as a “holiday” day.

Failure to allow an employee reasonable time off could result in an employment tribunal claim so any such request should be looked into and a reasoned decision given for any refusal.