EMPLOYMENT LAW BULLETIN - APRIL
Welcome to the Gill Akaster
Monthly Employment Bulletin
April 2007
| This Month... |
| Work and Families Again |
| Other Changes |
| Men Only |
| Terms and Conditions Apply |
Welcome
April is the cruellest month, thought T. S. Elliot, and this has been the case recently for employment lawyers, as changes in the law are now bunched together in April and October each year. Mustn't grumble though. As we said last month, the pace of change is not what it was, and there are no real surprises this year. The principal one is the new body of rules on maternity/paternity/adoption leave and pay, which were announced last October. We suspect that many will have overlooked these, as they have been given no prominence, and have not been picked up on by the media.
Apart from that, there is nothing of earth-shattering significance - unless you are a smoker in Wales or Northern Ireland. The rest is covered below.
A couple of Parish Notices. Firstly, for those of a yachting bent, we are hosting the second Gill Akaster Challenge Race on Plymouth Sound on Saturday 23 June 2007. It will be organised once again by the Royal Western Yacht Club, and should be a thoroughly enjoyable day. Those companies or organisations wishing to enter a yacht should contact David Searle (who pointed out that Chaucer originated the phrase about April being the cruellest month) on 01752 203500 or via david.searle@gillakaster.com
Secondly, in conjunction with HSBC, we will be offering a further free seminar on a range of employment topics concerning employee welfare and managing absence, to be held at the Theatre Royal on 24 April 2007 from 10.30 to 1.30 p.m. Lunch is provided, so please do book early. To book, for further information on this useful event, or for any other comments on this bulletin, please contact Eoin Fowell by clicking here.
Work and Families Again
Before we forget, the main immediate change on this front is a budgetary one - the increase in the weekly rate of Statutory Maternity Pay (and all the other ones - Paternity and Adoption Pay and Maternity Allowance) to £112.75 from 1 April.
Now then, you may remember the Work and Families Act 2006 which came into force last October. Most of its provisions are now in force, i.e. they apply to women whose expected week of childbirth (EWC) falls on or after 1 April 2007. Here is what it means in practice.
Other Changes
Excluding some very small potatoes, there are noteworthy changes affecting the extension of Sexual Orientation regulations, the Information and Consultation regulations, Smoking and Public Sector obligations
Men Only
As well as detailing all these fascinating legal changes, we like to keep you informed of developments within the wider world of work. Two reports in the last month about the role of women demand inclusion.
Terms and Conditions Apply
Many of us have a tedious clause in our contract of employment to stop us going to work for the competition. Often these are just a deterrent, and the received wisdom is that they are too uncertain and expensive to rely on. This seems to be changing...
All these changes concern maternity arrangements, although exactly the same arrangements apply in respect of adoption pay and leave. They include:-
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The extension of the period of statutory maternity pay (SMP) from 26 to 39 weeks
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The removal of the small employers' exemption. Up to now, employers with five staff or less have been exempt from a finding of automatically unfair dismissal where they do not allow an employee returning from additional maternity leave to return to a similar job.
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The removal of the qualifying period for additional maternity leave (AML). Now all pregnant employees will qualify for 12 months' maternity leave, regardless of length of service.
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An increase in the notice an employee has to give when returning early from AML, from 28 days to eight weeks.
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The SMP or Maternity Allowance (MA) period will now start on any day of the week, concurrently with OML. Previously, OML could start on any day of the week but the SMP/MA periods were measured in complete weeks from Sunday to Saturday, starting on the Sunday after the employee stops working.
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The introduction of "Keeping in Touch" days (KIT days). Where both parties agree, employees can work for up to 10 days during their maternity leave without bringing leave to an end or losing their right to SMP/MA. Employees who don't want to take part will be protected from detriment or dismissal.
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Employers will also be entitled to make "reasonable contact" with employees while they are on maternity leave.
Then there is another important change that come into force on 6 April - the right for those who care for adults (over 18s) to request flexible working. At present only parents of children under the age of six (or disabled children under 18) can request flexible working.
That leaves a group of other provisions still in the pipeline but which do not yet have a date on which they are due to come into force:
• Further extension of the period of SMP etc to 52 weeks. The Government has stated that it intends to exercise this power by the end of this Parliament.
• A new right to an additional period of paternity leave for fathers, which should be introduced at the same time. This will allow fathers to take leave and statutory pay if the mother returns to work after six months but before the end of her maternity leave period.
• An increase in annual leave under the Working Time Regulations 1998 to include bank holidays. On 11 January, the DTI announced its would make a two-stage increase. Full-time workers will received 24 days from 1 October this year, and 28 days from 1 October 2008. Part-time workers will enjoy pro-rata increases.
That's the plan anyway.
The recent controversial changes to the Sexual Orientation regulations, which also apply to the and Religion or Belief regulations, now take effect also. This was the provision that caused the dispute between the Government and Cardinal Cormac Murphy O'Connor about the position of Catholic Adoption Agencies. The new rules extend the scope of the rules from the field of employment to as to cover discrimination in the provision of goods and services, such as adoption.
(In March this lead to a bizarre legal footnote, with a Tribunal case brought by a Magistrate, Mr Andrew McLintock, in Sheffield, who resigned claiming constructive dismissal on the basis that he would be required to place children for adoption with a gay couple, and this offended his religious beliefs. He was unsuccessful.)
The Information and Consultation of Employees Regulations 2004 now apply to workplaces, like this one, with 100 or more employees. There has been very little interest in this subject since it was introduced, but for those who have forgotten it, it provides for the instigation of a workforce consultative committee if enough members of staff are interested. The process can be initiated voluntarily by an employer, or following a petition of 10% of the workforce.
Smoking bans have now been introduced in public spaces in Wales and in Northern Ireland, as pre-figured in our feature on smoking in February 2006, with England to follow on 1 July 2007. Not long now.
Finally, we spare a thought for Public sector bodies, whose employment law obligations considerably outstrip those of the rest of us. We have mentioned a few times their increasing new duties regarding measures to counteract discrimination in various fields. From this month there will now be a further statutory duty on all public authorities to eliminate unlawful discrimination and harassment and promote equality of opportunity between men and women. This duty is commonly referred to as "the gender equality duty" or "gender duty".
At the same time, it appears that over five hundred public bodies have failed to publish details of how they will eliminate discrimination in the disability field. The Disability Rights Commission (DRC) may take legal action, potentially leading to prison sentences for senior officials, for those offending institutions who have not provided adequate answers by the deadline at the end of last month.
By way of preamble, in January this year there was a survey by the Equal Opportunities Commission, which reported that only 10 per cent of boardroom directors at Britain’s top 100 companies are women. Its most surprising finding though was that the number of female FTSE 100 directors had dropped from 20% to 12% over the previous year.
The conclusion, which may have seemed rather doubtful at first, has now been supported by similar findings published in People Management magazine last month (published by the CIPD - Chartered Institute of Personnel and Development). This looked at senior manager posts in FTSE 350 firms, and concluded that the number of female senior managers in those businesses had fallen by more than 40 per cent in the last five years.
In 2002, it appears that 38 per cent of senior manager level posts in the FTSE 350 were occupied by women, but this has now sunk to 22 per cent. The report blamed the rising costs of child-care and an increase in women setting up their own businesses.
Of those women in senior posts, there is an additional oft-noted aspect of discrimination, in that a high proportion are in "softer" areas like HR, which are often very demanding roles involving frequent confrontation, but which are less highly valued than "harder" areas like finance and production.
A further report by the CIPD has looked at the quality of jobs on offer too, in a phenomenon becoming known, for obscure reasons, as the Glass Cliff, a reference to the feeling that those who have broken through the Glass Ceiling find themselves on a slippery slope.
There is surprising evidence that many business leaders will only appoint a woman into a very senior post in times of crisis or poor performance, which leaves female leaders facing a form of hidden discrimination - they are placed in positions in which they are more likely to fail than their male counterparts. Exeter University carried out the new research, which found, in short, that,
• women are more readily appointed to tough jobs that are supposed to make or break their careers
• in crisis situations business leaders are more inclined to open up job opportunities to women, leaving women business leaders at greater risk of failing than their male colleagues working a the same levels.
All of this could be readily ascertained by looking at the performance of companies in the period up to the appointment of a senior manager. Put simply, those doing badly were much more likely to appoint a woman. "Cherchez la femme" as they say.
The change in judicial climate regarding restrictive covenants is shown in two recent decisions of the Court of Appeal. The first concerned the Managing Director of a firm of Insurance Brokers, a Mr Thomas, whose contract prevented him from competing with his company for twelve months after his departure. Clearly Mr Thomas was a key employee. He had about ten years’ experience and was responsible for managing key client relationships. He was so confident of the uselessness of this restriction – especially for so long a period as twelve months – that he went to the High Court himself asking for a declaration that it was unenforceable. Sadly for him, they disagreed. Undaunted, he went to the Court of Appeal, who were similarly unsympathetic and the restriction was upheld.
He was followed shortly afterwards by an estate agency, who had employed a Mrs Spinks. When she left to join the competition, they wrote to the new employer demanding to know whether she had passed on any confidential information and asking them to confirm that they would not help her to breach of her restrictions. The new agency said they would look into it. Unimpressed, her previous employers off to the High Court for an injunction within twenty four hours.
As often happens, things were patched up with some undertakings being given by the new firm, but costs were ordered against the former employer, who had rushed off to court so hastily. The Court of Appeal disagreed with this. They felt that the new employer had been evasive, there were good grounds to believe that Mrs Spinks would pass them confidential information and they had given the necessary undertakings in the end. So, they were made to pay the costs of the application of about £12,500.
Not every firm has £12,500 to spare for legal forays of this sort, but for those who do it can prove worthwhile. And we would be delighted to hear from you.
