CM Murray LLP: Specialists in Employment and Partnership Law HR in LAW David Fisher, Jenny Kerr & Bettina Bender CM Murray LLP 9 July 2013.

CM Murray LLP: Specialists in Employment and Partnership Law

HR in LAWDavid Fisher, Jenny Kerr & Bettina Bender

CM Murray LLP9 July 2013


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



EMPLOYMENT LAW REFORMS:SOME OF THE HIGHLIGHTS

HR in LAW

Speaker: David Fisher



Employment law reforms

• Collective redundancies– Consultation period for 100+ redundancies– Removal of “one establishment” test

(Usdaw v Ethel Austin Ltd (In Administration) (EAT, 2013))



• 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



• 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



• 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



• Employment Tribunals– Changes to Tribunal rules from 29 July 2013– Fees for Tribunal claims and hearings– Abolition of discrimination questionnaires from

April 2014


DATA PROTECTION ISSUES

KEY PRINCIPLES FOR EMPLOYERS

HR in LAW

Speaker: Jenny Kerr



Key legislation

Data Protection Act 1998


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)


Personal data

Provisions of the DPA apply topersonal 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


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


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


Other conditions

• When processing personal data, there are additional conditions to be met contained in the Data Protection Act

• *Consent*


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


What should employers do?

• Data protection policy• Appoint a data protection manager• Conduct regular audits• Overseas issues?• Notification?


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


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?


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

http://www.ico.org.uk/


FAMILY FRIENDLY LEGISLATION: PRACTICAL ISSUES FOR LAW

FIRMS

CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law

Speaker: Bettina Bender



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



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



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



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


• 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


Paternity Leave


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



How this works in practice…

CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law

30 weeks

22 weeks

9 weeks

Total leave: 52 weeks

Total statutory pay: 39 weeks


• 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


The Future – Shared parental leave


• 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.


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


Eligibility to apply for flexible working


• 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


The Future - Flexible working for all


• 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


Time off for dependants


• 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)


Parental Leave


• 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.


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.




• 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




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



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

CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law


David Fisher, Jenny Kerr & Bettina Bender

CM Murray LLP37th Floor Canary Wharf,London, E14 5AAEnglandDD: 0207 718 0128FAX: 0207 718 0091

E: [email protected]



@cmmurrayllp

CM Murray LLP: Specialists in Employment and Partnership Law HR in LAW David Fisher, Jenny Kerr & Bettina Bender CM Murray LLP 9 July 2013.

Documents

murray llp

partnership law hr

partnership law internet

partnership law byod

law speaker

destruction of data

data controllers

data protection principles