Editorial 

Well did you get it right? Yes I am sure you are bored by the election by now but the consequences are likely to be with us for some time. For now there are unlikely to be huge changes in the direction of employment law for the average employer or employee. When you consider most businesses are SMEs removal of the Human Rights Act or changes to strike laws will affect few directly beyond public inconvenience. What will happen with a referendum over Europe remains to be seen but a general theme to make further efforts to reduce red tape is likely to be welcomed.

Shared Parental Leave

Ok if you are Prince William and the Duchess of Cambridge you probably don’t need shared parental leave. However for others becoming parents of babies due after 5 April 2015 or adopting then this is a relevant issue.

Many aspects of maternity and similar rights are complicated and get more so as additional rights overlap with or replace previous rights. Therefore this is just a brief note with links to places to look at for more info.

So what do “parents” get in the way of leave relating to children?  Up to now there has been maternity leave, paternity leave, adoptive leave, parental leave, additional parental leave, the right to request flexible working and emergency leave. At one extreme there is maternity leave being up to 52 weeks away from work (with some pay) and at the other end of the scale there can be very brief periods, even just a few hours, of unpaid leave to cover emergencies.

The new right is to Shared Parental Leave “SPL”. It is aimed at giving parents more flexibility to share the care of their child in the first year following birth or adoption. Basically it makes a mother’s maternity leave a transferable benefit. She can choose to end her maternity leave (and pay) early in exchange for a period of shared parental leave (and pay).

There are some qualifying requirements and notification rules which both parties have to comply with and rules about how the leave can be taken. Paternity will cease when SLP applies as the benefits overlap. Overall it is probably a logical extension or variation of child related work benefits. Employers may take some time to get used to the complexity and record keeping it will require and how popular it will be with parents remains to be seen.

For more details take a look at the ACAS Guidance and the Government’s website. If you have specific questions just give me a call.

AND

Another new provision from 5 April 2015 allows for paid and unpaid time off work for adopters to attend meetings in advance of a child being placed with them for adoption. This follows up on the right introduced late last year for “partners” (carefully defined) to unpaid leave to attend one or two ante-natal appointments (time off is capped at 6.5 hours for each appointment). More details can be found here.

Zero hours contracts again

The contracts may be for zero hours but they are certainly got plenty of hours of air time. If you remember the current position is that the government are changing the law so that employers can’t prevent employees working elsewhere when they were not required to work under the zero hours contract. This is a step forward from the employee’s point of view but not a huge one and though it was part of The Small Business, Enterprise and Employment Act 2015 some weeks ago it hasn’t come into force yet. Even when it is in force employees could still find themselves without benefits or work in any given week. Alternatively employees with more than one zero hours contract could be faced with competing requests to do a shift. Which employer should then take priority and will an employer offer work if the employee isn’t regularly available?

It also seems likely that some employers at least will try to find ways around the ban. First they could say the contracts aren’t zero hours by providing a minimum guaranteed amount of work, say an hour a week. Alternatively they may just not offer certain employee’s periods of work particularly if an employee hasn’t been available on occasions.

Before the election the various parties were offering different potential solutions to the avoidance tactics. The labour party for instances wanted to say that where there is a zero hours contract then after 12 weeks the employees contract would convert to a regular hours contract based on the hours the employee worked over the 12 weeks. You can see that this was likely to be very complicated and cause all sorts of problems. For example employers could dismiss before the 12 weeks are up; so would such a dismissal have to be deemed automatically unfair? Then what hours would the employer have offered in the 12 weeks if they were going to be stuck with that on a regular basis afterwards? What hours would the employee have wanted to do for the same reason?

With a conservative government it looks as though the ban on exclusivity will be supported with regulations meaning it kicks in if the employee earns below a set weekly earnings level and a set hourly rate (probably £20 per hour). This will be of some help but as with all these things not solve every problem and there will also be a need for education and guidelines. If you would like to look further at some of the issues and proposals here is the government’s response to the consultation on the subject.

TUPE.

When I advise small businesses about TUPE they find it hard to grasp and even harder to accept the procedures the law requires them to follow. Changes made last year help to some extent as the requirement to consult through appropriate representatives no longer applies where there are fewer than 10 employees. This helps employers as they don’t have to hold formal elections.

However these changes don’t mean employers can avoid consulting with employees altogether. They still have to provide the same information and undertake consultation but it can be done with the employees directly. This may or may not make it simpler but employers should still beware; failing to follow procedure can lead to employees making a claim for up to 90 days’ pay each.

Redundancy More Consultation or Compensation.

Woolworths still appears in the press from time to time even though they are no longer a presence on the High Street. When they folded in 2008 around 30,000 staff lost their jobs. There was no consultation with them about redundancy. The rules say that where there are more than 20 employees in any “establishment” of the employer, the employer must consult for a minimum period of time before redundancies are implemented. Where there are over 99 employees in a specific location the consultation period is longer (although it was reduced recently). If the employer fails to consult at the right time the employees are entitled to compensation for that failure.

In the Woolworths case several thousand employees worked at smaller stores or establishments which had fewer than 20 employees and therefore were not entitled to compensation for the employer failing to consult for the minimum periods. They made a claim to the Employment Tribunal basically saying that this wasn’t fair and if an employer has to consult some employees for minimum periods then they need to consult all affected employees for the same amount of time and pay the same compensation if they failed to do so. The Employment Appeal Tribunal (EAT) supported them and there was an appeal to the European Court of Human Rights. The ECJ has now decided that an employer may treat employees in different establishments differently at least to the extent that consultation periods should apply depending on the size of each establishment.

The union USDAW who supported the employees says it will press for a change in the law. They see it as unfair in cases like this where employees of the same employer are all made redundant but those in smaller units have less protection. However a further decision just made by the ECJ relates to Bonmarché’s actions in 2012. After a takeover redundancies were made across the UK. There was no collective consultation in relation to stores in Northern Ireland which had fewer than 20 employees each. The ECJ reached the same conclusion as in Woolworths so there was no breach of the regulations. Employer organisations who thought the EAT decision would mean they were in a constant round of redundancy consultation will be sighing with relief. In view of the outlook of the current government things are unlikely to change

Take care,

Edit 42. This newsletter looks at new cases and employment related matters, which are likely to be of interest to many. However specialist advice should be obtained before taking or refraining from taking action based on comments in this newsletter, which is only intended as a brief note. For more information or if you have specific concerns phone me on 01233 714055 or e-mail.kirsten@moon-and-co.co.uk. To unsubscribe to our newsletters e-mail kirsten@moon-and-co.co.uk