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Archived news: Increases in Statutory Maternity and Paternity Pay Data Protection and retention of employment records Increase in unfair dismissal compensation New Equality Legislation from 1st December 2003 New Maternity, Paternity and Adoption Leave Provision New Rights for Fixed Term Employees Data Protection Code of Practice (Employment Records)
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Increases in Statutory Maternity and Paternity Pay Lower rate Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay have all increased to £102.80 per week for the tax year 2004/5. According to a recent survey by Watson Wyatt, pay rises averaged 3.4% in 2003. This ranged from 3.8% for directors, 3.4% for managers and professionals and 3.3% for clerical staff. The survey also indicated that employers expect pay increase to remain at this level during 2004.
The Data Protection Act (DPA) has been back in the news in the aftermath of the Soham murder trial. Humberside police have been criticized for their interpretation of the DPA requirements relating to the retention of records. In employment this element of the act affects the retention of information on personnel files. What are the key things that employers need to consider? The DPA states that information should only be held that is “adequate, relevant and not excessive”. Employers can clearly justify the need to keep records of employee’s tax and bank details, contracts of employment and contact details. However, more thought needs to be given to the broader retention of other information on personnel files. For instance, an employer may be justified in retaining information relating to an employee’s motoring conviction, if the employee drives as part of their job. If they do not, the information may be irrelevant in the context of their employment, and should not be retained. It has been fairly common practice for employers to hold information relating to disciplinary proceedings on personnel files, even when allegations have been unproven. However, the DPA states that information should not be kept if it would cause “damage or distress” to the individual concerned. This may be the case with records relating to unsubstantiated allegations. Rather than retaining all of the disciplinary information, it may be appropriate for the employer just to retain a brief summary of the fact that an incident occurred or a complaint was raised. This would ensure that the employer knew about the previous disciplinary proceedings, should further allegations or complaints be raised in the future. The Information Commissioner has recognised that there is widespread confusion surrounding the Act and has announced a “Making Data Protection Simpler Campaign”. Hopefully this will make it easier for employers to understand the steps that need to be taken in order to comply with the legislation. More information about the Data Protection Act can be obtained from www.dataprotection.gov.uk.
Increase in unfair dismissal compensation On 1st February 2004 the maximum compensation that an Employment Tribunal can award in cases of unfair dismissal increased to £55,000. At the same time the amount of a week’s pay (used, for example, to calculate statutory redundancy pay) increased to £270 per week. In order to reduce the chances of unfair dismissal claims, employers should always follow ACAS guidelines. If in doubt seek professional advice before making any decisions to dismiss.
On 1st December 2003 a new regulation comes into force, prohibiting the use of hand held mobile phones whilst driving.
It will be an offence for a driver to hold and use a mobile phone whilst the engine is running (even if the vehicle is stationary). Drivers will still be able to use mobile phones whilst driving, as long as they are not holding the phone at the time (e.g. through using a hands free kit). A breach of the regulations will result in a £30 fine, or a fine on conviction of up to £1000. This rises to £2500 for drivers of goods vehicles, minibuses or coaches. It is also likely that penalty points will be issued.
Under the regulations, anyone who “causes or permits” a driver to use a hand-held mobile phone will also be liable for prosecution. As a result, employers will be liable if they require their employees to use a mobile phone while driving. This liability will apply whether the employee is driving a company vehicle, or their own vehicle for business purposes.
Employers are advised to outline to their employees in writing if, when and how mobile phones should be used when driving on company business. If you need any help in doing this, e-mail info@perfectclarity.co.uk.
New Equality Legislation from 1st December 2003
On 1st December 2003 two new Employment Equality Regulations come into force, which make it unlawful to discriminate against workers because of:
As with other equality legislation it will be unlawful to discriminate either directly or indirectly, or to subject someone to harassment on the grounds of their religion or sexual orientation. There is no limit to the amount of compensation that an Employment Tribunal can award in cases of discrimination.
What should employers do to comply with the regulations?
During the summer the third part of the Data Protection Act Code of Practice on monitoring at work was published. It includes the use of CCTV, using software checking (e.g. of e-mails and internet use) and recording telephone conversations.
The code states that workers are entitled to a degree of privacy in the workplace and, as a result, monitoring is usually intrusive. Employers can still carry out monitoring, but only when it can be justified by the benefits delivered (e.g. recording telephone calls for training purposes). In the view of the Information Commissioner, covert monitoring can only be justified in few exceptional circumstances.
What should employers do?
Outline in writing when workers can use the organisation’s telephone, e-mail and internet systems
Clearly explain in writing if you intend to monitor your workers You need to explain:
Take extra care if monitoring e-mails
Further information on the Data Protection Act can be obtained from www.dataprotection.gov.uk.
A recent survey in Employee Benefits magazine found that 14% of employers believe that their staff view the organisation’s sickness absence limits, as an entitlement to time off work. These employers feel that their staff routinely “pull a sickie” to take advantage of their “sick leave entitlement”!
The Chartered Institute of Personnel and Development put the average cost of sickness absence at £522 per employee every year. If you can’t afford your current level of sickness absence what can you do about it?
Employers
are under a legal obligation to provide employees with a written statement
of the main terms of their employment. All employees contracted to work for
at least one month, are entitled to receive a written statement within two
months of commencing employment. This includes part time and casual
workers, but does not include independent contractors or agency workers. A failure to provide a written statement could result in an employment tribunal deciding the basis of the contract between you and your employee. This might be quite different from what you intended to agree!
What must a written statement contain?
Employment
law dictates that a written statement of particulars must contain:- · The names of the employer and the employee. · The date employment began. · A job title and job description. · The place of work. · Rate of pay and pay dates. · Hours of work · Holiday entitlement and holiday pay. · Sick leave entitlement and sick pay (if any). · Pension provision. · Notice periods for both employer and employee. · Disciplinary rules and grievance procedures. · Any collective agreements. · If the employment is not permanent, the period it is expected to last.
Even if there is no information to be given, for instance if you do not have a pension scheme, this must be stated.
Any changes to the main terms of the written statement must also be confirmed in writing to employees, within one month of the change.
Statutory Employment Rights
Do not
forget that some contractual terms are subject to minimum entitlements.
These include:-
You can, of course, agree terms in excess of the statutory minimum requirements. However, be aware that you are contractually bound to honour any enhanced terms. For instance, if you introduce an enhanced sick pay scheme you would be bound to pay an employee, even if you suspected that they were not really sick.
Should you produce more detailed contracts of employment?
Whilst
issuing a statement of particulars is the simplest option, it may not
provide your business with the level of protection that you need. For
example, without specific contractual terms you would not be able to:- · Lay off staff if work is short. · Deduct sums from salary e.g. to recoup overpayments in holiday entitlement or training costs if an employee leaves. · Make changes to employee duties or working patterns. · Prevent sales staff from joining competitors and taking your customers with them. · Specify instances where enhanced sick pay will not be paid (e.g. failure to follow absence reporting requirements).
If you did attempt these without a contractual right you could face tribunal claims for constructive dismissal (with maximum compensation of £53,500) or unlawful deduction from wages.
Employee Handbooks
Many
organisations also produce employee handbooks. The benefits of doing so
include: · Ensuring that all employees are aware of the policies and procedures governing their employment. · Providing employees with access to important information about the organisation. · Providing managers with consistent guidelines to help them treat staff fairly and equally. · Keeping employment contracts to a reasonable length by including policies (e.g. discipline, grievance, absence) in the Employee Handbook. · Helping to minimise the risk of employment tribunal claims by having clear and fair policies and procedures.
If you have an Employee Handbook (or are thinking of introducing one) it is important to make sure that it is kept up to date. For instance, you will need to ensure that your policies and working practices are consistent with changes in employment legislation. You should also ensure that you clearly identify which elements of your Employee Handbook (if any) are contractual rights or obligations and which are not.
Need more help?
Contact us for a free example of a written statement of particulars, or to discuss any issues about contracts or handbooks.
There have been a number of recent tribunal cases which provide useful reminders on the do and don’t of handling redundancy situations.
Do Consult
Employment
legislation dictates that employers must consult employees “in good time”
prior to any redundancy taking place. This requirement applies even if only
one employee is redundant. In the case of Elkouil v Coney Island (2002) the
employer knew 10 weeks prior to dismissing the employee that he was going to
be made redundant. The tribunal held that consultation should have started
then. Mr. Elkouil was awarded 10 weeks’ pay. Do Consider Alternatives More stringent requirements for collective consultation exist where over 20 employees are redundant. This was the case in Middlesbrough Council v TGWU (2002), where the council was found to have failed in meeting its collective consultation obligations. This was because the council had only held meetings with the union to consider means of reducing the number of redundancies and the process for handling them. The tribunal held that consultation must also include full consideration of any means of avoiding redundancy all together.
Don't Set Precedents Be careful not to set a precedent if you decide to offer enhanced redundancy terms. In Albion Automotives v Walker and others (2002) the Court of Appeal held that enhanced redundancy terms, which had been used on six out of seven occasions, were contractually binding. This was in spite of the fact that the enhanced terms had not been written in to the contract of employment. If you do offer enhanced redundancy terms make clear that the payments are discretionary and are not intended to set any precedent.
£4.20 to
£4.50 for workers aged 22 or over
New Maternity, Paternity and Adoption Leave Provision
Significant new employment rights came into place in April 2003. These included:
Maternity Leave and Pay
Maternity pay and leave entitlement has increased for all pregnant employees:
Paternity Leave and Pay
There is now a statutory right for fathers to receive paid paternity leave.
Adoption Leave and Pay
Flexible Working
New Rights for Fixed Term Employees
The new Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations came into force on 1st October 2002. The regulations introduce new rights for employees with fixed term contracts. Fixed term employees are those employed for a specified time, or to complete a specific project.
These regulations only
apply to employees. They do not cover agency workers, employees on
apprenticeships or government training programmes, and students on work
placements of up to one year.
Data Protection Code of
Practice (Employment Records)
Disclosure of employee information
There are times when employers will be approached for employee information (e.g. to support an employee mortgage application). In order to comply with Data Protection requirements you should:
Employee Access to
their records Employees now have a right to access any records held about them. This includes paper records, e-mails and computerised files. Employers can charge a fee of up to £10 for providing access. The code advises employers to:
Retention of Records
Equal Opportunities Monitoring
Discipline, Grievance and Dismissal
Sickness Records
The code differentiates
between “sickness” and “absence” records. Sickness records contain
information about the employee’s illness. Absence records do not make any
reference to a specific medical condition. As a result, sickness records
contain sensitive personal data for which strict processing conditions,
which may include individual consent, must be met.
The code provides the following guidance on managing sickness records:
Further information
There is an extensive amount of
information about Data Protection, including a copy of the act and the first
parts of the code on the Information Commissioner’s website. This can be
accessed at
www.dataprotection.gov.uk
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