HMO QUARTERLY EMPLOYMENT BULLETIN
September 2008

INCREASED MATERNITY RIGHTS
Changes implemented by The Sex Discrimination Act 1975 (Amendment) Regulations 2008 will come into effect for women whose babies are due on or after 5 October 2008. These changes include ;

• The right for women on compulsory maternity leave to payment/accrual of any bonus that relates to that period. (Compulsory maternity leave is the two-week period subsequent to childbirth).
• The entitlement for women on additional maternity leave (the second 26 weeks of maternity leave) to retain the contractual benefits preserved during ordinary maternity leave (eg Health insurance, pension contributions or the accrual of contractual leave).

The distinction between the two 26 week maternity leave periods is becoming increasingly blurred given that the statutory maternity pay is already payable for 39 weeks of the 52 week period

SICK PAY FOR FIXED TERM AGENCY EMPLOYEES
Note that from 27 October 2008, agency workers on contracts of less than three months will be entitled to receive statutory sick pay during periods of sickness absence. This is a change brought in by the Fixed Term Employees (Prevention of Less Favourable Treatment) (Amendment) Regulations 2008.

NATIONAL MINIMUM WAGE INCREASES
From 1 October 2008 the hourly national minimum wage rates will increase as follows ;
for workers aged 22 or over from £5.52 to £5.73,
for workers aged between 18 and 21 from £4.60 to £4.77
for workers under 18 from £3.40 to £3.53

ACAS JOB EVALUATION
ACAS have published a new guide to setting up job evaluation schemes within business. The guide is designed to help employers avoid equal pay claims in the employment tribunal. 

Equal pay claims are more commonly brought against public sector organisations but similar costly mistakes are made by private organisations. A successful equal pay claim can involve an employer paying up to six years backpay.

Whilst there clearly would be a considerable amount of time required to set up such a scheme this would:

• Enable employers to demonstrate to staff that they were being paid fairly and with appropriate consideration
• Help staff retention  and possibly recruitment
• Provide a defence in equal pay employment tribunal claims

TOO OLD TO READ THE NEWS ?
According to national media an interesting high profile age discrimination claim appears to have been commenced by Selina Scott against Channel Five in the London Employment Tribunal.

Scott alleges that an agreement to use her as cover during Natasha Kaplinsky’s maternity leave has not been adhered to by Channel Five who are using Isla Traquair and Matt Barbet (28 and 32 respectively) when Kaplinsky (35) goes on maternity leave next month.

Assuming the claim is not settled, it will be interesting to see Channel Five’s Defence  (presumably not relying on recent arguments put forward by Michael Winner). To be successful in her claim Ms Scott will need to demonstrate that she had been subjected to a detriment on account of her age.

"OFF THE RECORD”
In the current economic climate a number of employers are finding themselves in circumstances where dismissals are necessary.  Given the time and cost of redundancy and dismissal procedures it can be tempting to have informal "off the record" chats to resolve matters swiftly.

Whilst the courts and tribunal will uphold the sanctity of “without prejudice communications”, which can promote an early cost effective settlement to a dispute, such conversations are extremely dangerous if not handled carefully. Employers making “off the record” comments may ultimately find these being used as evidence in unfair dismissal claims or possibly even causing unfair dismissal claims.

How should an employer approach such conversations ?

• Make it clear that the conversation is "without prejudice" by clearly using those words in conversation and correspondence rather than ambiguous phrases such as "off the record”  or "between you and me"
• Ensure that the conversation or correspondence is genuinely without prejudice ie that proposals are being made or discussed regarding an actual dispute, the mere use of the words "Without Prejudice" will not protect content in a communication as of right.
• Try to ensure that a process (eg redundancy or disciplinary) has commenced before having such conversations rather than calling an employee in without warning to suggest a severance package
• Ensure that pressure is not exerted on the employee nor misleading facts given ; the Court of Appeal has indicated that "unambigous impropriety" will prevent a party from relying on the protection of the without prejudice rule.
• Seek legal advice before commencing such discussions!

EMPLOYMENT BILL 2007-2008
This is due to receive Royal Assent and will come into force from April 2009. 

A key change to watch out for will be death of the controversial statutory dispute resolution procedures (only implemented in 2004) which are likely to be replaced with a requirement to follow the ACAS Code of Practice on discipline and grievance.  Watch out for a detailed analysis in our December Bulletin.

Nigel Pepper, Partner                  Patrick Nelson, Solicitor
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Telephone: 01785 211411

This article is for the purpose of general awareness only and the law may have changed since it was originally published. It does not constitute legal or professional advice and readers should not act on the basis of the information included. Readers should take appropriate advice upon their own particular circumstances.