It’s been a busy year so far for employment lawyers. While we can’t cover all the changes that have happened in one article, here are a few interesting developments, plus ideas for ones to watch for in the near future.
 

Fit notes
The Government suggested these would save British industry £240 million by getting us all back to work sooner.  So far, the jury is out, but remember that if a GP makes suggestions for reasonable adjustments to facilitate an employee back to work it’s best to try and accommodate them. 

You don’t have to follow the GP’s advice and it is important that your employees understand this, but you’ll need a good reason not to do so. Otherwise, you may be open to reasonable adjustments claims from employees who meet the criteria for disability.

Remember, the GP is relying on the employee’s version of what their job involves. You may want to try to speak or write to the GP (with the employee’s permission) to make sure they get a balanced view, or at least ask your employee to take a job description with them to the GP.

Paternity leave
For babies born after the 3rd April 2011, fathers or partners who have primary responsibility for looking after the baby can take up to 6 months paternity leave, 3 paid (at the statutory rate), 3 unpaid, allowing their partner to go back to work.
They’ll need to have 26 weeks continuous employment and to follow a notification and self certification process.  They can then take off a continuous period of between 2 and 26 weeks.

You need to check your policies and consider whether any generous maternity allowances now need to be offered to your male staff as well, to avoid discrimination claims.  You also need to make managers aware that it is no longer only female staff who can take significant time off on the birth of a child. Having said that, it’s been estimated that only 6% of those eligible will take up the longer paternity leave because of financial and other considerations.

The Equality Act
This is the big one. After being rushed through by the Labour Government just before the last election, the new Coalition is still considering which bits of the Equality Act it likes enough to bring into effect. So far, some key changes in effect are:

• Discrimination by perception and/or association
• Indirect discrimination now applies to all protected characteristics
• The new concept of ‘discrimination arising from a disability’ to replace the protection lost because of  a previous judgement
• No requirement for medical supervision for someone to be undergoing gender reassignment
• Protection from third party harassment for all protected characteristics
• Restricting the circumstances where job applicants can be asked about health or disability
• In effect, making pay secrecy clauses unenforceable
• Giving Employment Tribunals new powers to make recommendations

…and more, and no doubt more to follow. Help and guidance can be found on the websites of the Government Equalities Office, the Equality and Human Rights Commission and, of course, ACAS.

Whistle blowing (Public Interest Disclosure Cases)
Tribunals now have the power to refer claims containing whistle blowing allegations to an appropriate regulator (e.g.  allegations of data protection breaches to the Information Commissioner) if the claimant ticks a box on the claim form. 

Ones to Watch!

Review of the default retirement age
The default retirement age is likely to be old news (pun intended) by 1 October 2011, with transitional arrangements in place from 6 April 2011 until then.  The consultation ends on 21 October 2010 and we expect concrete proposals soon afterwards.

This may leave employers in the uncomfortable position of having to retire all those they can retire before the law changes. There is an argument that this could give rise to age discrimination claims, but if you stick to the current retirement provisions appropriately you will minimise any risk.

Agency Workers Regulations
Will they or won’t they? And can they? The Coalition is rumoured to be reconsidering the Agency Workers Regulations.  However, as the Regulations are enacting a European Directive and were agreed in consultation with the TUC and the CBI  it isn’t clear how much scope there is for change.

Flexible working
The Coalition have announced that the right to request flexible working will be extended to parents of children under 18 years old from April 2011. A consultation on extending the right to request flexible working to all employees, and the possible introduction of a radical flexible parental leave scheme is expected later this year.

And lastly – extra bank holiday on 5 June 2012 for the Queen’s Diamond Jubilee. If employment law keeps changing at this pace, we’re all really going to need it!

• Solicitor, Lucinda Bromfield, Bevans.co.uk

 
This information is believed to be correct as at October 2010. It is not a substitute for legal advice and no liability attaches to its use. Specific and personal legal advice should be taken on any individual matter.