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Insight

More changes – new law

02/10/2014
While it may be only 90 shopping days to Christmas a number of employment law changes took effect on 1 October 2014 which may give little or no time to employers or HR professionals for While it may be only 90 shopping days to Christmas a number of employment law changes took effect on 1 October 2014 which may give little or no time to employers or HR professionals for shopping!

Family friendly legislation

While the new shared parental leave regulations will only apply to children whose expected week of childbirth is 5 April 2015, qualifying employees (and qualifying agency workers) now have a right to take unpaid time off work to attend up to two ante-natal appointments with a pregnant woman with whom they have a 'qualifying relationship'.

The right is not confined to married parents, but is available to a pregnant woman's husband, civil partner or partner (including same-sex partners), the father or parent of the pregnant woman's child, and intended parents in a surrogacy situation who meet specified conditions. In the case of qualifying adoptive parents their right to attend adoption appointments in respect of a child placed with them for adoption does not come into force until 5 April 2015.

The BIS has published an Employers' Technical Guide to Shared Parental Leave and Pay to assist employers implementing policies on shared parental leave and pay. If they have not already done so employers should be updating their family leave policies to reflect the new legislation.

National Minimum Wage (NMW)

The rate for workers aged 21 and over has increased from £6.31 to £6.50. The new NMW rate for 18 to 20 year olds is £5.13, the new NMW rate for those under 18 is £3.79 and the NMW new rate for apprentices is £2.73.

While this may well be the biggest cash increase since 2008 for low paid workers and will no doubt affect the profitability of employers who pay no more than the NMW, it is unlikely to give rise to employees on the NMW going on a spending spree in the shopping days left to Christmas!

Equal Pay Audits

Inequality of pay continues to be an issue despite attempts by various governments to reduce the gender pay gap. The introduction of mandatory equal pay audits under The Equality Act 2010 (Equal Pay Audits) Regulations 2014 SI 2014/2559 means that in respect of equal pay claims presented on or after 1 October 2014 employment tribunals are required to order employers found in breach of equal pay legislation to conduct and publish equal pay audits equal pay audits in certain circumstances.

This is clearly naming and shaming legislation in that the employer will be required to identify any differences in pay between men and women and the reasons for those differences; include the reasons for any potential equal pay breach identified by the audit; and set out the employer's plan to avoid breaches occurring or continuing.

Micro-businesses which are defined as a business that has fewer than 10 employees and "new businesses" will be exempt from the new rules, although in the case of new businesses the situation is more complex in that such businesses will not be exempt if the employer has within 6 months of starting the new business carried on another business that consists of activities which are the same as those being carried on by the new business, or where there has been a transfer of a business and the transferring party ceased to carry on the relevant business activity.

Where an employer fails to conduct a satisfactory equal pay audit when ordered to do so without reasonable excuse, the tribunal can order it to pay a penalty not exceeding £5,000, and may make an order specifying a new date by which it must receive a satisfactory audit which again carries a further penalty of £5,000 for non-compliance.

Whistleblowing

When the qualifying period for bringing unfair dismissal claims was increased to two years there was a growing trend for employees who did not meet the qualifying condition to claim they had made a qualifying disclosure in respect of their employment contract. Indeed, it was not uncommon for employees who saw the writing on the wall to raise concerns about a breach of their employment contract. Many employers, therefore, gave a huge sigh of relief when the whistleblowing legislation was amended removing the ability of employees to rely upon a breach of their own employment contract for saying they had made a protected disclosure. Despite this the legislation is still relevant and, aside from the fact it protects employees who make such disclosures by removing the qualifying condition for an unfair dismissal claims, there are reputational risk issues that can arise.

As the legislation is quite prescriptive employers may need to revise their whistleblowing policies to reflect the fact the list of the persons prescribed to receive qualifying disclosures occurring after 1 October 2014 has been updated. The new list is broadly the same but there are several new prescribed persons such as the National Society for the Prevention of Cruelty to Children and the National Crime Agency. Changes have also been made to reflect the fact that some bodies are no longer responsible for regulating particular sectors, such as the House Corporation which has been replaced by the Homes and Communities Agency. Furthermore, certain bodies such as the Financial Conduct Authority have been described in slightly different ways to that given in the previous list. The new list may be found here.

Reservist forces

Many employers may be getting nervous that increased military activity in the Middle East could see key employees who are reservists being called up. Equally some reservists settling in to new jobs, for example, armed servicemen who have recently retired from the services, or who were made redundant may be concerned they will lose their jobs if this were to happen. S.48 of the Defence Reform Act 2014 which amends S.108 Employment Rights Act 1996 and removes the statutory qualifying period for unfair dismissal for armed forces reservists will therefore be a worry to employers and a relief to some of their employees. However, this only applies where the employees employment terminates on or after 1 October 2014 and the reason (or, if more than one, the principal reason) for the dismissal is, or is connected with, the employee's membership of a reserve force. There will be some relief to employers in that there is also increased financial assistance for employers of members of the reserve forces who are called up for service, and persons carrying on business in partnership with such members of the reserve forces.

Under the Reserve Forces (Call-out and Recall) (Financial Assistance) Regulations 2005 an employer is entitled to claim a payment of certain costs incurred by having to replace an employee reservist who is called out for service. The Reserve Forces (Payments to Employers and Partners) Regulations 2014 give effect to a new scheme for small and medium-sized employers (excluding public authorities) to claim an additional monthly payment of £500 when a reservist employee, who is contracted to work full-time for more than 35 hours per week, is absent on military service for a whole calendar month. The amount will be pro-rated for periods of less than a month and where the employee works less than 35 hours per week.

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