HR News April 2011

Welcome to the April edition of HR News. It seems every year brings new regulations for the employer to negotiate. Whether it's equality legislation, retirement, agency workers, or bribery, this year presents new legislation relevant to most organisations. Once again, maternity and paternity rules are also to change. Below is a snapshot of the six key updates to make sure you are ready for the year ahead! With the holiday season approaching we also look at the dilemma of requesting sick pay whilst on holiday.

Changes to maternity and paternity leave

In April there will be two changes to maternity and paternity leave provisions.

Fathers of children with an expected week of birth beginning on or after 3 April 2011 will be allowed up to 26 weeks' additional paternity leave in the first year of the child's life if the mother has returned to work from maternity leave.

On the same date, the rates for statutory maternity, paternity and adoption pay will increase from £124.88 to £128.73 per week.

Right to request flexible working extension

The right to request flexible working will be extended to parents of children under the age of 18, on 6 April 2011. It currently applies to parents of children under the age of 17, or 18 if the child is disabled. The Government has also announced that it intends to extend the right to request flexible working to all employees and will consult on the proposals in January 2011. Consultation will be completed by March 2011 and the Government will review the responses by December 2011.

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Abolition of the default retirement age

One of the biggest legal changes employers will have to contend with in 2011 is the abolition of the default retirement age (DRA). Although the DRA is being abolished from 6 April 2011, transitional arrangements affect retirements notified prior to this date. During the transitional period employers will be unable to issue new notifications of retirement but those already in motion can continue through to completion if:

The employer issued the notification of retirement prior to 6 April 2011;

The employee will reach age 65 (or the employer's normal retirement age if that is higher) before 1 October 2011; and

The requirements of the statutory retirement procedure are met.

Bribery Act 2010: corporate offence introduced

A corporate offence of failing to prevent bribery by people working on behalf of the business will be introduced under the Bribery Act 2010. Although the Act was due to come into force in April 2011, the Government has delayed its implementation. The Act will not come into force until May 2011, at the earliest.

Equality Act 2010

Under the Equality Act 2010, employers will be able to treat individuals with a protected characteristic more favourably during recruitment and promotion processes when faced with two candidates of equal merit, if the more favourable treatment is intended to address under-representation in the workforce. The single public sector equality duty will also be introduced and both provisions will come into force on 6 April 2011.

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Equal treatment for agency workers

From 1 October 2011, agency workers will be entitled to equal treatment on basic employment conditions, such as pay and holidays, after they have worked in a role for 12 weeks, under the Agency Workers Regulations 2010.

Sick Employees and Holidays - What exactly is the law?

Too sick to be at work but well enough to take holiday to sit on a beach? The issue of statutory holiday entitlement for sick employees continues to cause confusion. In a recent case taken to court it confirmed that holidays continued to accrue during any sickness absence. However it also provided that the worker was entitled to take that holiday during any period of sickness. This left open questions over whether the employer could stipulate that holiday should be taken during periods of sick leave and whether there would be any right to carry over of leave where the sickness absence crossed over into another leave year. Since then there have been worrying developments in that the European Court of Justice has appeared to suggest that holiday entitlement has even greater protection than was suspected.

How sick does the worker have to be? An employee may be too ill to carry out a physically or mentally exhausting job but not too sick to lie on the beach? What type of evidence should the employer ask for? In most cases the employee will be entitled to self-certify during the first seven days of absence. Will it be reasonable to request further medical evidence if the employee has just flown back from a holiday? Could the holiday entitlement be carried forward throughout a period of long-term sickness and other types of absences, like maternity leave or career breaks?

All these questions are likely to lead to a great deal of further litigation around the issue of holiday entitlement and absences. In light of this ruling employers may wish to review their sickness absence policies to guard against potential abuses.

Whilst employers will generally be relying upon employees to be honest when reporting that they are sick, introducing specific sickness procedures whilst an employee is on holiday may help minimise the risk that some employees will try to take advantage of this current uncertainty to gain extra holiday entitlement.

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