HR in LAW
David Fisher, Jenny Kerr & Bettina Bender
CM Murray LLP
9 July 2013
CM Murray LLP: Specialists in Employment and Partnership Law
EMPLOYMENT LAW REFORMS:
SOME OF THE HIGHLIGHTS
DATA PROTECTION ISSUES - KEY PRINCIPLES
FOR EMPLOYERS
FAMILY FRIENDLY LEGISLATION:
THE CHANGES AHEAD
David Fisher, Jenny Kerr & Bettina Bender
CM Murray LLP
9 July 2013
CM Murray LLP: Specialists in Employment and Partnership Law
EMPLOYMENT LAW REFORMS:
SOME OF THE HIGHLIGHTS
HR in LAW
Speaker: David Fisher
CM Murray LLP
9 July 2013
CM Murray LLP: Specialists in Employment and Partnership Law
Employment law reforms
• Collective redundancies
– Consultation period for 100+ redundancies
– Removal of “one establishment” test
(Usdaw v Ethel Austin Ltd (In Administration)
(EAT, 2013))
CM Murray LLP: Specialists in Employment and Partnership Law
Employment law reforms
• Transfers of undertakings: proposed changes to
TUPE
–
–
–
–
–
Removal of “service provision change” provisions
Employee liability information
ETO reasons and place of work redundancies
Consultation about redundancies post-transfer
Information and consultation for micro-businesses
CM Murray LLP: Specialists in Employment and Partnership Law
Employment law reforms
• Whistleblowing
– Disclosures “in the public interest”
– Requirement for “good faith” removed
– Vicarious liability for acts of employees
– Applies to disclosures on/after 26 June 2013
CM Murray LLP: Specialists in Employment and Partnership Law
Employment law reforms
• Unfair dismissal
– Further limits on compensatory awards
– Dismissal for political opinion or affiliation
• Confidential pre-termination negotiations
– Effect on “ordinary” unfair dismissal claims
– ACAS Code of Practice
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Employment law reforms
• Employment Tribunals
– Changes to Tribunal rules from 29 July 2013
– Fees for Tribunal claims and hearings
– Abolition of discrimination questionnaires from
April 2014
CM Murray LLP: Specialists in Employment and Partnership Law
DATA PROTECTION ISSUES
KEY PRINCIPLES FOR EMPLOYERS
HR in LAW
Speaker: Jenny Kerr
CM Murray LLP
9 July 2013
CM Murray LLP: Specialists in Employment and Partnership Law
Key legislation
Data Protection Act 1998
CM Murray LLP: Specialists in Employment and Partnership Law
What is data?
Data is information which is:
• Processed automatically (e.g. CCTV, swipe card
records)
• Forms part of a ‘relevant filing system’
• Is an accessible record (these tend to be held by
public authorities)
CM Murray LLP: Specialists in Employment and Partnership Law
Personal data
Provisions of the DPA apply to
personal data:
• This is information which relates to a living person who
can be identified from that data. The data must be about
a living person, whether in his personal or family life,
business or professional capacity
CM Murray LLP: Specialists in Employment and Partnership Law
Sensitive personal data
• Sensitive personal data is personal data consisting of
information about the data subject’s:
• Racial or ethnic origin
• Political opinions
• Religious beliefs or beliefs of a similar nature
• Trade union membership
• Physical or mental health or condition
• Sexual life
CM Murray LLP: Specialists in Employment and Partnership Law
The 8 data protection principles
•
•
•
•
•
•
•
•
It must be fairly and lawfully processed
Processed for limited purposes
Adequate, relevant and not excessive
Accurate and up to date
Not kept for longer than necessary
Processed in line with the data subject’s rights
Secure
Not transferred to other countries without adequate protection
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Other conditions
• When processing personal data, there are
additional conditions to be met contained in the
Data Protection Act
• *Consent*
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Penalties
• Individuals are entitled to compensation from data
controllers for damage caused by any breach of the DPA
• Individuals can also obtain court orders for the
rectification, blocking, erasure or destruction of data
which is inaccurate
• Breaches of certain rules can give rise to criminal
offences on the part of the controller e.g. knowing or
reckless obtaining or disclosure of personal data
CM Murray LLP: Specialists in Employment and Partnership Law
What should employers do?
•
•
•
•
•
Data protection policy
Appoint a data protection manager
Conduct regular audits
Overseas issues?
Notification?
CM Murray LLP: Specialists in Employment and Partnership Law
Internet and email monitoring
•
•
•
-
Be aware of employees’ right to privacy
Consider the 8 data protection principles
Part 3 of the Employment Practices Code
Impact Assessment
Inform employees
CM Murray LLP: Specialists in Employment and Partnership Law
BYOD
• Growing trend
• Benefits – cheaper, improves employee
engagement and productivity
• Risks – loss of control of data, reduced ability to
monitor, security risks
• What should employers do?
CM Murray LLP: Specialists in Employment and Partnership Law
Where to find further information?
• The Information Commissioner has published a four part
Code of Practice (the Employment Practices Code)
which covers recruitment and selection, employment
records, employee monitoring, medical records.
• Supplementary Guidance
• Helpline
• www.ico.org.uk
CM Murray LLP: Specialists in Employment and Partnership Law
FAMILY FRIENDLY LEGISLATION:
PRACTICAL ISSUES FOR LAW FIRMS
Speaker: Bettina Bender
CM Murray LLP
9 July 2013
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Maternity leave
• Employees only
• OML: 26 weeks, available to all
employees (regardless of length
of service)
• The first 2 weeks after childbirth
are compulsory maternity leave
• AML: immediately follows OML
and lasts for a further 26 weeks
• All employees who qualify for
OML automatically qualify for
AML
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Maternity Pay
Statutory Maternity Pay (39 weeks):
• 1st six weeks paid at “earnings related rate”
(90% of her average earnings)
• Remaining 33 weeks paid at “prescribed rate”
(current rate £136.78)
• Employees will also be entitled to benefits of
terms and conditions of employment except
remuneration, so annual leave will accrue, still
entitled to PHI, private medical etc.
• NB: Firms often offer enhanced maternity
benefits
• Maternity Allowance payable to low earners
and self-employed
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Key rights when on maternity leave
• Contract of employment continues throughout OML and AML
• Entitled to be paid for ten Keeping in Touch (‘KIT’)days
• Priority for alternative employment in redundancy cases
• Protection from dismissal, detriment or discrimination by
reason of pregnancy or maternity
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Right to return to work
• Following OML: right to return to
the same job
• Following AML: same job or if not
reasonably practicable a suitable
alternative job on terms and
conditions not less favourable than
would have applied had the
employee not been absent
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Paternity Leave
• Eligible employees are entitled to 1 whole week or 2 consecutive weeks
Ordinary Paternity Leave (‘OPL’) within 56 days following the child’s birth or
adoption.
• Employees may also be entitled to Additional Paternity Leave (‘APL’)
• Statutory Paternity Pay: lesser of the “prescribed rate” and 90% of the
employee’s weekly earnings
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Additional Paternity Leave
Regulations 2010
• Applies to babies born/adopted on or
after 3 April 2011
• ASPP: Mother must have returned to
work without using up all of her
OML/AML
• “Window”: from 20 weeks to 12 months
from the date of birth/date of adoption
• Minimum 2 weeks up to a maximum of
26 weeks
• Eligibility requirements
• Additional Statutory Paternity Pay
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How this works in
practice…
30 weeks
22 weeks
9 weeks
Total leave:
52 weeks
Total statutory pay:
39 weeks
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The Future –
Shared parental leave
• The Coalition Government are keen to allow both parents to share in
childcare responsibilities
• Introduction of shared parental leave (Children and Families Bill)
• Compulsory 2 week period of maternity leave will remain
• Remaining 50 weeks to be divided between parents, subject to the
agreement of the respective employers
• Payment will be 6 weeks at 90% of earning and the subsequent 33 weeks at
SMP
• In theory, leave can be taken concurrently or consecutively
• Administrative burden
• Unclear how this will work in practice
• Due to be introduced from 2015
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Flexible working
•
Right to request: It does NOT create a right to work flexibly!
•
The right to request consists of the right to request to work flexibly, a statutory
request procedure, an obligation on the employer to consider the request properly
and limited grounds on which the employer can refuse the request (which include
cost, meeting customer demand, inability to reorganise work, inability to recruit
additional staff, detrimental impact on quality or performance, insufficiency of work
and planned changes). There is also a right of appeal.
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Eligibility to apply for flexible working
• The employee must have 26 weeks of continuous service and
be employed on the date the request is made
• Not have made another request to work flexibly in the
preceding 12 months
• Be either caring for a child or adult
• Agency workers are not entitled
to make flexible working requests
• All set to change in 2014
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The Future - Flexible working for all
• From 2014, all employees who meet the 26 week continuous
service requirement will be entitled to make a request for
flexible working, regardless of whether or not they have
dependants or caring responsibilities
• Idea is to encourage people to undertake charitable activities
etc.
• In terms of procedure Acas launched a consultation on a draft
code in February 2013, and intends to publish a good practice
guide as well as a code
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Time off for dependants
• All employees regardless of length of service have the
right to request “reasonable” unpaid time off work to
take “necessary action”
• This is only available in emergencies and the time off
must fall into a number of statutory categories, which
cover caring for a dependant who is ill/injured,
unexpected disruption to the care of a dependant,
dealing with an unexpected incident at child’s school
during school hours
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Parental Leave
• Applies to birth and adoptive parents and anyone who has
parental responsibility for a child
• The leave is unpaid and an employee cannot take more than 4
weeks leave in respect of any individual child during any
particular year. Leave must be taken in one week blocks
• The right applies to each child - an employee with one
qualifying child may take 18 weeks in total, 2 children may take
36 weeks etc
• To be taken any time before the child’s 5th birthday (18th
birthday if the child is entitled to disability living allowance)
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Family friendly rights –
Potential claims
• Direct and Indirect Sex discrimination
– Direct sex discrimination where, because of a protected
characteristic, a person (A) treats another (B) less
favourably than A treats or would treat others.
– Indirect sex discrimination where A applies to B an
apparently neutral provision, criterion or practice that A
would equally apply to others, but which puts or would put
those who share B’s protected characteristic at a particular
disadvantage. There will be no discrimination if the
provision, criterion or practice is objectively justified.
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Family friendly rights –
Potential claims
• Pregnancy/maternity discrimination
– treating a female job applicant or employee unfavourably during the protected period of
her pregnancy or because of an illness suffered by her as a result of her pregnancy
– treating a female employee unfavourably because she is on compulsory maternity leave
or because she is exercising or seeking to exercise, or has exercised or sought to exercise
the right to OML or AML
• Discrimination against part-time workers
– The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 aim
to ensure that part-time workers are not treated less favourably than full-time workers.
This may well be relevant where, for example, a mother returning to work reduces her
hours.
NB: Compensation for discrimination claims is uncapped but loss-based with a
duty to mitigate your losses. There can also be awards for injury to feelings.
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Family friendly rights –
Potential claims
• Unfair dismissal
– Unfair dismissal is a statutory claim, which arises where there is not a fair
reason for dismissal and/or a fair procedure has not been followed. The remedy
for the claim is usually compensation and is made up of a basic (calculated in
the same way as a statutory redundancy payment) and compensatory award.
This is a loss-based claim, subject to a duty to mitigate, but awards are currently
capped at £74,200.
• Wrongful dismissal
– Wrongful dismissal is a dismissal in breach of contract. Fairness is not an issue,
the sole question is whether the terms of the contract, which can be express or
implied, have been breached. The employee will have a claim in damages if the
employer, in dismissing them, breached the contract, thereby causing them
loss.
– NB Constructive Dismissal
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Issues on returning to work
• Possible flexible working requests:
- part-time work
- working from home
- flexible start/leave time
• Different issues relevant
depending on role of employee
• On return risk of
maternity/pregnancy
discrimination reduced but risk of
direct/indirect sex discrimination
claim remains
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Practical Handling:
Maternity Leave Returners/Flexible work request
• Communication is key
• Follow your flexible working procedure
• Apply consistent objective criteria
• Keep decisions under review as technology evolves, people
become more senior
• NB The rewards for law firms can be high – loyalty,
commitment, staff retention
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David Fisher, Jenny Kerr & Bettina Bender
CM Murray LLP
37th Floor
Canary Wharf,
London, E14 5AA
England
DD:
0207 718 0128
FAX:
0207 718 0091
E: david.fisher@cm-murray.com
E: jenny.kerr@cm-murray.com
E: bettina.bender@cm-murray.com
@cmmurrayllp
CM Murray LLP: Specialists in Employment and Partnership Law
