Esther Martin Anna Birtwistle Susanne Foster CM Murray LLP CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law 18 November.

Esther MartinAnna BirtwistleSusanne Foster

CM Murray LLP

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

18 November 2010

Employment Law – What Every Employer Needs To Know

The Agency Workers Regulations 2010

_________________________

The Equality Act 2010

Esther Martin

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

THE AGENCY WORKERSREGULATIONS 2010

• European Legislation: Temporary Agency Workers Directive 2008/104/EC

• Due to come into force 1 October 2011

• Coalition has confirmed no further amendments will be made


Who Will The Regulations Apply To?

• “workers with a contract of employment or employment relationship with a temporary work agency who are assigned to user undertakings to work temporarily under their supervision and direction”

Article 1.1 – Temporary Agency Workers Directive


Twelve Week Qualifying Period

“To complete the qualifying period the agency worker must work in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments.”

Regulation 7(2)

• Continuity can be broken or suspended in certain specific circumstances


Agency Worker Rights

An agency worker (A) is entitled to:

“… the same basic working and employment conditions as A would have been entitled to for doing the same job had A been recruited by the hirer –

(a) Other than by using the services of a temporary work agency; and

(b) At the time the qualifying period commenced.”

Regulation 5(1)


Regulations only apply to

“basic working and employment conditions”

o Payo Duration of working timeo Length of night worko Rest periodso Rest breakso Annual leave

• Comparator required• Terms must be ‘ordinarily included’


Pregnant Women And Nursing Mothers

• Subject to the 12 week qualifying period• Agency workers are entitled to:

– reasonable time off during working hours to attend ante-natal appointments

– payment from employment agency during her absence

• She may lodge a tribunal claim if a request is unreasonably refused

• Duty to make reasonable adjustments on hirers


Anti-Avoidance Provisions

• The Regulations contain a non-exhaustive list of factors to be taken into account whether a structure of assignments is intended to deprive the agency worker of rights.

Regulation 9(5)

• Additional award of up to £5,000 where a hirer and/or agency are found to have breached the anti-avoidance provisions.

Regulation 18(14)


Access To Employment, Facilities And Training

• No twelve-week qualifying period

• Failure to provide access to on-site facilities can be justified on objective grounds

Regulation 12(2)

• No further provisions required in relation to access to training.


Suggestions For Agencies

And Hirers

Useful questions:

1. Is the worker a temp from an agency?

2. Have they ever worked for you (or a connected business) previously?

3. Are they likely to qualify for equal treatment?

4. What should they be paid and what working time arrangements should be in place?

5. What else will have to be offered?


EQUALITY ACT 2010

Protected Characteristics:

• Disability• Religion or philosophical belief• Race• Age• Sexual orientation• Sex• Marriage and civil partnerships• Gender reassignment• Pregnancy and maternity


Direct Discrimination

“A person (A) discriminations against another (B)

if, because of a protected characteristic, A treats B

less favourably than A treats or would treat

others.”s13(1)

• Perception

• Association


Indirect Discrimination

“A person (A) discriminates against another (B) if A applies a provision, criterion or practice which isdiscriminatory in relation to a relevant protectedcharacteristic of B’s.”

s19(1)

• Includes disability / gender reassignment• PCP ‘puts, or would put … at a particular

disadvantage’ s19(2)


Harassment

“An employer (A) must not, in relation to employment by A, harass a person (B) – (a) who is an employee of A’s;(b) who has applied to A for employment.”

s40

• Harassment must be related to a protected characteristic, but not necessarily that of the victim

• Third party harassment


Victimisation

“A person (A) victimises another person (B) if A subjects B to a detriment because:(a) B does a protected act, or(b) A believes that B has done, or may do, a protected act.”

s27

• No comparator required


Disability Discrimination

Discrimination arising from a disability

(1) A person (A) discriminates against a disabled person (B) if –

(a) A treats B unfavourably because of something arising in consequence of B’s disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

s15

• No comparator required


Pre-Employment Health Questionnaires

A potential employer must not ask about the

health of an applicant before offering works60

• May only support a claim by an individual• Conditional offer can still be made• Exceptions


Pay Secrecy Clauses

Clauses designed to prohibit or restrict discussions about pay are unenforceable…

…if the discussion is with a view to finding out whether there is a connection between pay and their having (or not having) a protected characteristic.

s77


Exceptions – When Discrimination May Be Lawful

• Occupational RequirementSchedule 9

• General Positive ActionS158

• Disability / Ages13(3)/

Schedule 9


Sections Not Yet In Force

• Combined Discriminations14

• Gender Pay Gap Informations78

• Positive Action (recruitment and promotion)

s159


Practical Considerations For Employers

• Continue to ensure that all appropriate personnel are aware of the relevant changes in discrimination law regarding employees, potential employees and ex-employees

• Audit employee documentation where necessary (e.g. contracts, staff handbooks)

• Review policies (e.g. diversity, equal opportunities, anti-bullying and harassment)

• Ensure effective complaints procedures are in place


Default Retirement Age _________________________

Family Friendly Rights _________________________

The Bribery Act

Anna Birtwistle

CM Murray LLP


Default Retirement AgeWHAT IS CHANGING?

Employers will no longer be able to use the DRA of 65 to maintain a compulsory retirement policy for their workforce:

• Up to 6 April 2011: Transitional arrangements

• From 6 April 2011: No new notifications of retirement on basis of DRA to be issued

• 1 October 2011: DRA and statutory “duty to consider” retirement procedures will be abolished


WHAT ISN’T CHANGING?

Objective justification: Employers may still operate a compulsory retirement age except that from April 2011 they will need to objectively justify it (as they have up to now for retirement ages below 65)

Avoiding an Unfair Dismissal Claim

• From April 2011 no new notifications of retirement on basis of the DRA to be given.

What now?

• Employers wishing to have a compulsory retirement age must objectively justify it by reference to such policy being a proportionate means of achieving a legitimate aim; or

• Follow a fair procedures and rely on one of the 5 other fair reasons for dismissal:

– Conduct– Capability/qualifications– Redundancy– Statutory restriction (e.g. breach of immigration rules, criminal record)– “Some Other Substantial Reason”: a catch all


Next Steps/Issues to Consider

• Whether to continue to have a retirement age• Amending retirement policies/staff handbooks• Ensuring adequate performance procedures in

place• Consider changes needed in relation to

company pension schemes or health, disability or death in service benefits

• Training requirements


Key Changes to Family Friendly Rights

• Paternity Leave

• Extension to the Right to Request Flexible Working



Maternity leave

• OML: 26 weeks• AML: 26 weeks

Statutory Maternity Pay for 39 weeks:

• 1st six weeks paid at

“earnings related rate” (90% of her average earnings)

• Remaining 33 weeks paid at “prescribed rate” (from April 2010: £124.88)

Ordinary Paternity Leave:

• Since 2003 eligible fathers

have been entitled to up to two consecutive weeks’ paternity leave and pay

• Statutory Paternity Pay: lesser of the “prescribed rate” and 90% of the employee’s weekly earnings

Additional Paternity Leave

Current Regime

Additional Paternity Leave Regulations 2010

• Applies to babies born/adopted on or after 3 April 2011

• Mother must have returned to work without using up all of her OML/AML

• The earliest APL can be taken is 20 weeks 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, Partnership and Business Immigration Law

30 weeks

22 weeks

9 weeks

Total leave: 52 weeks

Total statutory pay: 39 weeks

Practicalities

• Eligibility requirements

• Timing and notice

• Evidence of entitlement

• Effect on contract of employment

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, Partnership and Business Immigration Law

Flexible Working• 2003: Right to request introduced and applied to carers of children

under 6

• 2009: Right was extended to apply to children up to and including the age 16 (18 in the case of disabled children)

What’s changing?

• From April 2011 this right will be extended to parents of children up to and including the age of 18

What next?

• Coalition government has stated intention to extend the right to request to all employees regardless of whether they have children


• Right to request: It does NOT create a right to work flexibly!

• Typical requests

• Who can make a request

• Statutory request procedure

• Grounds for refusing a request


The Right to Request

The Bribery Act

• Comes into force April 2011

• Will apply to private sector transactions

• Government guidance to be published early 2011 (draft available now)


Offences General Offences:

1. Paying bribes (“Active bribery”)

2. Receiving bribes (“Passive bribery”)

Specific Offences:

3. Bribery of foreign public officials

4. Failure of commercial organisation to prevent bribery: the “Corporate offence”


The Corporate Offence

• Strict liability offence

• Company/partnership will commit bribery if:An “associated person” bribes another person for that organisation’s benefit.

• “Associated person”: employees, agents, subsidiaries, intermediaries, joint venture partners

• Corporate hospitality

• Defence: “Adequate procedures”


Adequate Procedures Defence

Current draft guidance, six principles:

1. Risk Assessment

2. Top level commitment

3. Due diligence

4. Clear, Practical and Accessible Policies and Procedures

5. Effective implementation

6. Monitoring and review


Penalties/Other Consequences Of Non-Compliance

• Criminal sanctions

• Fine

• Debarred from tendering for public-sector contracts

• Adverse publicity

• Fines from sector regulators (e.g. FSA)


Practical Tips

• Policies – anti-bribery, corporate hospitality and gifts

• Whistleblowing procedures to report bribery

• Training to relevant staff

• Assessment of risk

• Investigation procedures and disciplinary sanctions

• Appointing individual responsible for bribery issues



Clare Murray

Managing Partner

Bettina Bender

Partner

Charis Damiano

Consultant

Esther Martin

Associate

Anna Birtwistle

Associate

Susanne Foster

Senior Associate

The CM Murray LLP

Team

CM Murray LLP37th Floor

One Canada SquareCanary Wharf

London E14 5AA

+44 (0)20 7718 [email protected]


http://www.cm-murray.com/

mailto:[email protected]

Esther Martin Anna Birtwistle Susanne Foster CM Murray LLP CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law 18 November.

Documents

employment law

employment agency

murray llp

business immigration

employment relationship

contract of employment

connected business

agency workers regulations