Legal Updates 2010
 
April is here again which means there are plenty of employment updates of which you should be aware. Those of you well versed in employment law will note that a number of changes are simple increases to statutory payments. As always, retained clients will automatically receive updates to their documentation as necessary.

Certification for sickness absence: Sick notes allowed doctors to advise whether an individual should or should not work whilst fit notes allow doctors to tick an option to advise that an employee is either:  "not fit for work" where the individual has a health condition that prevents him or her from working; or "may be fit for work taking account of the following advice" where the individual  is not fit to return to work to perform all of his or her normal duties, but may be able to return to work if the employer offers some support. Where adjustments are not practicable employers may refuse them and delay the workers return to work, subject to review at an agreed date. Employers should carefully consider their actions where an employee is disabled – this can lead to discrimination claims. SSP obligations remain the same.
 
Adoption Pay: The standard rate of statutory adoption pay increased from £123.06 to £124.88 per week from 4 April 2010. The lower earnings limit increased from £95 to £97 on 6 April 2010.

Redundancies - what are the rules?
A recent Employment Appeal Tribunal (EAT) case highlights the need for employers to take reasonable steps to avoid making staff redundant where they can.
 
In a nutshell the EAT agreed with an employee's claim of sex discrimination where her employer had refused to allow her to take up what would have been a "suitable alternative" role on a part-time basis and had therefore made her redundant.
In Miller v Bellway Homes the claimant had been allowed to return on a three day a week basis after maternity leave in January 2005.  Three years later In February 2008, her post was identified as being at risk of redundancy due to the economic downturn. When another employee took voluntary redundancy Miss Miller decided to apply for the role that was vacated. However, her employer insisted that the alternative role was a full-time position whereas Miss Miller wished to retain her part-time hours. No agreement could be reached and she was subsequently dismissed.
 
The EAT found that the tribunal had applied the correct test and that the employer could not justify their requirement for full-time working.

This case highlights how difficult it is for employers to justify a requirement that a particular job is carried out on a full-time basis.  Good business reasons must be produced, as is the case with any request for flexible working, most common on return from maternity leave.

It was not all bad news for Bellway Homes however, as the EAT upheld a 25% reduction to the compensation awarded to the claimant because she had not appealed her dismissal internally.  Although she had argued that she was not emotionally able to pursue an appeal, the tribunal did not agree. 
 
Footnote:  In 2009 the average award for an unfair dismissal claim was £7,959; for sex discrimination claims the average was £11,025; disability discrimination claims averaged £27,235 and race discrimination claims came in at an average £32,115.
 

If your company is considering restructuring and would like practical advice and guidance to see you through, please contact your HR consultant for assistance.
 
Protection of Vulnerable People – New Regulations
 
The introduction of the Vetting and Barring Scheme – designed to protect children and vulnerable adults - is stepping up a gear in July as new employees and volunteers to whom the scheme applies can register with the Independent Safeguarding Authority.

The state of play is as follows:
The Vetting and Barring Scheme started life in Oc tober, 2009 as a direct result of the Bichard Inquiry, following the Soham murders in 2002.These new measures were introduced to prevent unsuitable people from working with children or vulnerable adults. However, employers and voluntary groups retain their responsibility for ensuring safe recruitment and employment practices.

To help implement the Scheme a new public body has been set up called the Independent Safeguarding Authority (ISA) who have powers to bar unsuitable people working with vulnerable people. The three former barred lists (POCA, POVA and List 99) are being replaced by two new ISA-barred lists.

By 31 July 2015, the aim is to have everyone working in regulated activity*and controlled activity*, ISA registered.

•         From October 2009, if an employer removes someone from his employment, or for whom they are responsible, or they leave while under investigation for allegedly causing harm or posing a risk of harm, they are legally obliged to refer this information to the ISA. Referrals can be made on a downloadable referral form see www.isa.homeoffice.gov.uk  or call 0300 123 1111. Before making a referral, it is good practice to consult local children’s services or adult social services, as appropriate. Employers will be eligible to ask for enhanced disclosures with barred list checks if felt it is required.
•         From July 2010: all new employees, those moving jobs and volunteers who want to work with children or vulnerable adults, can register with the ISA.
•         From 1st November, 2010: ISA registration will be compulsory for employees and all employers must check they are ISA registered before they can legally be employed.  You can check if an employee is ISA registered online for free.

*regulated activity – is any activity of a specified nature (teaching, training, care supervision, advice, treatment and transportation), that involves contact with children or vulnerable adults frequently, intensively and/or overnight.  Or an activity allowing contact with children or vulnerable adults that is in a specified place (schools and care homes) frequently or intensively.  This will also include fostering, and childcare, school governors, director of social services and certain charity trustees).  Domestic employers do not have to check with ISA but will have the opportunity to do so (with individuals consent).

*controlled activity – frequent or intensive support work in general health settings, the NHS and further education (cleaners, caretakers, shop workers, catering staff, car park attendants and receptionists). Also, individuals who have access to sensitive records about children and vulnerable adults.  However, an employer can employ a barred individual in a controlled activity with sufficient safeguards in place.

The cost of ISA registration is £64 for those requiring it for their paid work but is free for volunteers. It is unclear at present whether the employer or employee would typically foot the bill, although in the case that somebody is applying for a role that would require ISA registration it seems likely that they would pay for registration themselves. This would be similar to an individual investing in training relevant to a specific range of roles, i.e. the individual pays to improve their own career prospects and in turn increase their chances of attaining job roles relevant to their investment.

Please note:  These details are correct at this present time but we have been informed by the ISA that there are a number of amendments and additions to the definitions which will be available after the General Election.  We will update you as soon as information is received.

If you have any questions or require further information please contact Anne on 01494 478 800 or anne@hradvantage.co.uk