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March, 2010 Welcome to the March newsletter. Its a little late because our printer broke!
April Changes
As always, the month of April brings changes to Employment Law
A recent case highlights the need to conduct a proper disciplinary investigation
Employer's failure to investigate properly leads to a finding of unfair dismissal
Transferable Maternity/Paternity Leave The Additional Paternity Leave Regulations 2010 come into effect on 6th April 2010 and allow fathers or partners of mothers to take an extended period of paternity leave of up to 26 weeks. This leave must be taken no earlier than 20 weeks following the child's birth or adoption and must end no later than 12 months following the child's birth or adoption. Where a child has been adopted, the entitlement is for the person who has been matched with the child. In order to qualify for the leave, the employee must have completed at least 26 weeks' continuous employment and must also have, together with the mother, the main responsiblity for the upbringing of the child. The new Regulations also specify the notice periods and evidence that the employee will need to provide to his employer. They state that the employee must give no less than 8 weeks notice to his employer of the date he wishes to commence his paternity leave. He must also supply a written declaration from the child's mother that he is that father of the child, that he will have the main responsiblity for bringing up the child and that he is the only person exercising this entitlement for this child. A further requirement is that the mother has returned to work on the date of commencement of paternity leave. It should be also be noted that leave can only be taken in multiples of complete weeks and will be paid at the same rate as maternity leave (increases to the lesser of £124.88 or 90% of employee's weekly earnings from April). In order to allow employers time to make provision for the new Regulations, they apply only to children whose expected week of birth occurs on or after 3 April 2011. Minimum Pension Age Increases From 6th April 2010 the minimum age at which an individual may receive a pension, from either an occupational or personal pension scheme, will rise from 50 to 55. Time Off for Study and Training From 6th April 2010 employees working in organisations with 250 or more employees will have the right to request time off to undertake any study or training that they consider will help to increase their effectiveness at work or improve business performance. Where an employee makes a request, the employer will be obliged to consider it seriously and will only be able to refuse if they can genuinely provide a good business reason for doing so. Business reasons for refusal must fall into one of the specified categories to be considered valid. Where an employee makes a request, the employer will be required to follow a specific procedure similar to a request for flexible working. This means that within 28 days of recieving a request the employer must either, allow the training or schedule a meeting to discuss the request further. The employee has a right to be accompanied to any scheduled meetings by a colleague and must be informed, in writing, of the employer's decision within 14 days of the date of the meeting. The employee should also be allowed a right of appeal and any appeal meeting must be scheduled within 14 days. However, employers only have to consider one request from an employee in any 12 month period and, for a request to be valid under the new legislation, it must be made in writng, dated, contain a statement that the request is being made under s.63D of the Employment Rights Act 1996, the details of the training, the training provider and how the employee feels the training will improve their performance at work. Employees must also have 26 weeks' continuous employment prior to being able to make a request. It is important to note that the employer could be liable for up to 8 week's pay in compensation where there is failure to comply with the required procedure or where an application is inappropriately refused. New Medical Fit Note From 6th April 2010 the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations 2010 come into force changing the format of the traditional GP sickness certificate to provide increased information for employers, The new certificate will advise employers whether the employee would be able to return on a phased return to work, altered work hours, amended duties or would need workplace adaptions or whether they need to refrain from work completely. It is hoped that the new Fit Note will enable both employers and employees to obtain clearer, more specific advice regarding returning to work following a period of illness and also helping employees to remain in work rather than becoming long term sick.
A recent decision in the case of City of Edinburgh Council v. Dickson highlights the need to carry out a full investigation prior to taking disciplinary action. Mr. Dickson was employed by the Council as a Community Learning and Development Worker. He had type 1 diabetes and qualified as disabled under the definition of the Disability Discrimination Act. When a complaint was made that he had been viewing pornographic material on his work computer, Mr. Dickson was suspended and later invited to a formal disciplinary hearing. At the hearing he claimed that he could not remember viewing the indecent images and that his conduct and lack of memory were caused by a hypoglycaemic episode relating to his type-1 diabetes. He explained that his condition had not been properly controlled recently and that this had been made worse by a mis-prescription of medication. The Council did not believe his explanation and dismissed him for gross misconduct. Mr. Dickson took his claim to tribunal and won. He was awarded £25000 as compensation and the Council were ordered to reinstate him. The Council appealed to the Employment Appeals Tribunal but the original decision was upheld. The courts' view was that the Council had failed to thoroughly review the medical evidence available to justify Mr. Dickson's actions because they simply did not believe his explanation. In the view of the tribunal, had the Council looked into the medical evidence, they might not have proceeded to a dismissal. So, the lesson for all employers is to thoroughly investigate all evidence available in disciplinary cases, and only reach a decision after all the relevant evidence has been reviewed.
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