Employment Law 2011

Mark McKeating of Hill Dickinson provides us with our first Employment Law update of 2011

Goodbye to 2010….

A change in Government…. Anti- discrimination laws were given a new lease of life when the Equality Act came into force…. the proposed abolition of the default retirement age of 65…companies continued to struggle to avoid redundancies in the workplace…claims to Employment Tribunals increased significantly.. .. we also learnt that a worker who is on sick leave does not mean that he has been denied the opportunity to take holiday leave and ‘serial litigants’ are likely to get their ‘comeuppance’ at Tribunal. 

And so to 2011…..what to expect?

February

First up… on 1 February 2011, the maximum compensatory award for unfair dismissal claims will rise from £65,300 to £68,400.  In addition, the amount of a week’s pay, used to calculate statutory redundancy pay (amongst other things) will rise from £380 to £400. 

Spring

Spring brings the Bribery Act 2010.  The Act will come into force on 1 April 2011.  The Act will introduce a new strict liability corporate offence of failing to prevent bribery by individuals acting on behalf of an organisation.  A defence is open to employers who are able to show that they have “adequate procedures” in place to prevent bribery and corruption.  What exactly amounts to “adequate procedures” is likely to be clarified in early 2011 by the Government. 

April also welcomes the remaining provisions of the Equality Act 2010.  The noteworthy provisions include positive action in relation to recruitment and promotion. Employers will be allowed “to apply voluntary positive action in recruitment and promotion processes when faced with two or more candidates of equal merit, to address under representation of the workforce”. 

The Government will also encourage gender pay reporting in the private and voluntary sectors.  This will be aimed in particular at those employers with 150 or more employees. 

There will also be an extension of the right to request flexible working to parents with children under 18.  The Government estimate that the new right will benefit some 300,000 people in the UK. 

There will be further increases in statutory payment rates from 11 April 2011. 

• Statutory maternity pay, statutory paternity pay and statutory adoption pay will increase from £124.88 to £128.73. 
• Statutory sick pay will increase from £79.15 to £81.60 and the maternity allowance will increase from £124.88 to £128.73. 

Fast forward to October….

The Government will finally implement the Agency Worker Regulations.  The broad aim of the Regulations is to ensure equal treatment is afforded to agency workers. This will apply to those workers with a qualifying period of 13 weeks.  Any agency workers who are engaged beyond the 13 week period will enjoy any assignment on the same terms and conditions relating to working time, overtime, breaks and rest periods, night working, holidays and pay, as if they are being employed directly by the employer. 

There are also anti avoidance provisions preventing an employer from using loopholes to avoid compliance under the Regulations. Employers will incur fines for flouting the rules. 

There has also been much publicity surrounding the Government’s decision to abolish the default retirement age on 1 October 2011.  Please be aware that the changes effectively begin on 30 March 2011, as this will be the last day on which employers can give 6 months notice of an enforced retirement.  After this date, employers will no longer be able to rely on the default retirement age for dismissing an employee.

Some other areas to look out for….

• Will the qualifying period for “ordinary” unfair dismissal claims rise from 1 to 2 years?  As part of the Government’s effort to support small businesses, the Government is considering implementing a 2 year qualifying period for unfair dismissal claims.  To date, this proposal has attracted significant criticism, many of those in opposition see this proposal as increasing claims by the back door (eg whistleblowing and discrimination claims) which is likely to cost businesses more to defend in an Employment Tribunal.
• As controversial as ever, immigration will remain on the agenda for discussion in 2011.  In September 2010, the Immigration Minister, Damian Green confirmed that an official Government review will take place into the immigration system.  There are plans to limit the number of non-EU economic migrants entering the UK.  It is expected that this cap will apply from non-EU migrants from April 2011. 
• It is expected that the right to request time off for training may apply to all businesses with effect from 6 April 2011.  It already applies to those with 250 employees or more. 
• We also await news of how Tribunals will interpret the new provisions on the Equality Act 2010, and the uplift in compensation in relation to the ACAS Code of Practice.
• The Government has published details of its scheme to name and shame employers who flout the national minimum wage legislation. Although the scheme, which came into force on 1 January 2011, is intended to allow the public to make informed choices about who they work for, or do business with, there will be no register of ‘named’ employers, or those who fail to pay the NMW. Instead, employers will be named in a BIS press release. Exceptions will be made where there a real risk of personal harm to an individual or their family or where other factors outweigh the public interest in naming the employer.
• In these difficult financial times, we anticipate that employers will do more to protect their business. We expect the courts to see a rise in injunctive proceedings preventing employees from breaching restrictive covenants in their contract of employment.

Wishing you a very prosperous 2011.

Should you have any queries about forthcoming legislation or any general queries then please contact Mark McKeating on 0151 236 5400 or mark.mckeating@hilldickinson.com.

Mark will also be presenting at the Chambers forthcoming HR Forum on 25 January 2011. For further details please visit the Liverpool Chamber website.