Latest employment legislation – December 2010

December 2010

Flexible Working Rights to be Extended

The Government is to extend the right to request flexible working to parents of children aged under 18-years-old from April 2011. This extends the right to request to work flexibly already conferred to parents of children under the age of 17, or under the age of 18 if the child is disabled and to employees who care for adults aged 18 or over.

The Government also announced the launch later this year of a consultation exercise on extending the right to flexible working to all employees. For existing HR Service users, amendments will be made to handbooks and employment policies as applicable in March next year.

Additional Paternity Leave Regulations to Remain

The Government has confirmed that the Additional Paternity Leave Regulations will be implemented and will affect parents of children due on or after 3rd April 2011. The Regulations will give employed fathers the right to take up to six months extra leave when the mother returns to work.

Employees who are fathers, or spouses or partners of mothers, and employees who have been matched for adoption and are spouses or partners of the person taking adoption leave are entitled to take up to 26 weeks additional paternity leave in the first year of their child’s life or the first year after the child’s placement for adoption, and may be entitled to additional paternity pay provided, the mother has returned to work before using her full entitlement to maternity leave. Additional paternity leave is also available to adoptive parents within the first year after the child’s placement for adoption, provided that the child’s adopter who elected to take adoption leave has returned to work before using his or her full entitlement to adoption leave.   The earliest that additional paternity leave can commence will be 20 weeks after the date on which the child is born, or 20 weeks after the date of placement of the child for adoption, and it must end no later than 12 months after that date. Additional paternity leave will have to be taken as a single block in multiples of complete weeks. The minimum period will be 2 consecutive weeks and the maximum period, 26 weeks.

An employee may take just one period of additional paternity leave per pregnancy or adoption, regardless of the number of children born as a result of the pregnancy or the number of children placed under the same adoption arrangement.   For existing HR Service users, amendments will be made to handbooks and employment policies as applicable in March next year.

Bribery Offences Introduced

The Bribery Act 2010 which comes into force in April 2011 aims to promote anti-bribery practices among businesses, by modernising the law on bribery. The Act introduces a corporate offence of failure to prevent bribery by persons working on behalf of a business. A business has a defense if it has adequate procedures in place to prevent bribery. The penalty is an unlimited fine.

For employees, it will be a criminal offence to give, promise or offer a bribe and to request, agree to receive or accept a bribe. The legislation raises the maximum penalty for bribery by individuals from seven to 10 years’ imprisonment.

Default Retirement Age to be Abolished

The Government has announced that it intends to scrap the default retirement age (DRA) which currently allows employers to compulsorily retire staff on reaching the age of 65, with effect from 1st October 2011. Employers issuing notifications of retirement before 6th April 2011 will still be able to retire an employee if the retirement date is before 1st October 2011 and not after. In future, employers will not be able to prescribe a compulsory retirement age, unless they can justify it as a proportionate means of achieving a legitimate aim.

In removing the DRA, the Government also intends to remove the associated statutory retirement procedure, including the duty on employers to give a minimum of six months’ notice of retirement to employees and the right for employees to request to work beyond their retirement age. Therefore, if an employer wishes to dismiss (or retire) an older worker, this will in future entail following a fair procedure and relying on one of the reasons set out in section 98 of the Employment Rights Act 1996 (capability, conduct, redundancy, breach of statutory enactment (illegality) or some other substantial reason). There will be transitional arrangements for retirements that have been notified prior to April 2011 and where the date of retirement falls before 01 October 2011.

This change will impact on all employers and the Government has entered a period of consultation on the matter and its impact on insured benefits such as healthcare and PHI Schemes as well as employee share plans.

For existing HR Service users, amendments will be made to contracts of employment, handbooks and employment policies as applicable in March next year.

Plans for Automatic Enrolment in Workplace Pensions

The Government has confirmed plans to introduce automatic enrolment into workplace pensions, meaning that employers will be required to make pension contributions for the first time. The reforms will be phased in from October 2012 and is likely to apply to all employers regardless of size and headcount.

More on this subject later as greater clarity on these arrangements is obtained.  These arrangements will affect every employer that does not make a contribution towards employee pensions.

Agency Workers to Retain Same Rights as Employees

The Government has published the Agency Workers Regulations 2010 which give agency workers the same basic employment conditions after 12 weeks in a given job as those that would have applied if the workers had been recruited directly by the employer.

From 1st October 2011, the new Regulations:

• Provide agency workers with the same rights as direct employees, once they have been in an assignment for 12 weeks.
• Apply to working time, holidays and pay conditions.
• Exclude sick pay, maternity/paternity pay, redundancy, notice pay, payments related to pension entitlement, and bonuses not based on individual performances.
• May entitle agency workers to ‘collective facilities’ rights from day one, including such amenities as a staff canteen, transport, or access to a crèche.
• Provide agency workers with the right to be informed of internal opportunities for permanent employment