The government has opened a consultation on its plans to give fathers additionasl rights to take paid additional paternity leave (APL) following the birth (or adoption) of a child for whom they have parental responsibility.

The proposed new right would allow fathers to take between 2 – 26 weeks leave during the second 6 months of the child’s life. APL will not be able to be taken until the mother has returned to work following maternity leave, but it does noyt have to begin as soon as she returns.

The right will apply not just to biological fathers but to anyone who is married to or is the partner of the child’s mother, provided that person has responsibility for the child’s upbringing. Employees will need to have at least 26 weeks contnuous service to avail themselves of the new right and must remain in employment until the start of the paternity leave period.

APL will be paid at the standard maternity leave rate (presently the lower of £123.06 per week or 90% of average earnings). However father will only be eligible for payment during the 39-week period when the mother is eligible to receive maternity pay or maternity allowance. APL can be taken outside this 39 week period but it will be unpaid.

A father wishing to take APL will, at least 8 weeks before taking leave, need to give his employer notice of intention to take APL, a signed declaration confirming that the absence is for the purposes of child-care and a signed declaration from the mother confirming the father’s information and giving her name, addresss, NI number and stating her intention to return to work.

The new rights are intended to apply to babies born after April 2011. The cost to employers of APL will largely be offset by the corresponding reduction in maternity leave costs. However the rights will be a further set of rules for employers to administer and apply in practice.

The Conservative Party at their annual conference in Manchester have been setting out their stall on how they would approach employment law and HR issues.

The Shadow Business Secretary Alan Duncan pledged to reform the Employment Tribunal System describing it as ‘grotty’. He promised that employees losing Employment Tribunal claims would be forced to pay their employer’s costs, which currently only occurs in a minority of cases.

Duncan also criticised the Agency Workers Directive which will give temporary workers in the UK equal rights to permanent staff after 12 weeks with an employer. The Shadow Minister for Corporate Governance said that the Directive would cost British businesses £40 billion over the next 10 years and put tens of thousands of jobs at risk so the Conservatives would campaign against its early enforcement. Gordon Brown told the TUC Conference last month that the directive could be implemented as early as Autumn 2010 and therefore possibly before any General Election.

The Shadow Business Secretary Kenneth Clarke told the Tory Party conference that he would deregulate businesses with policies that would ‘light the bonfire of red tape’. He promised a net 5% reduction in the regulatory burden on businesses and suggested a ‘one in, one out’ policy on Employment Law whereby legislation would only be passed once an old ruling had been removed.

Theresa May the Shadow Minister for Women also signalled that she would scrap Government plans for mandatory gender pay audits which are proposed as part of the Equality Bill. That Bill, which is still being debated in Parliament, includes a clause allowing the Government to require employers from 2013 to report on differences in pay between men and women in their organisations.

May stated that should the Conservatives form the next Government their proposal would involve mandatory reporting only for those employers found guilty of discrimination at an Employment Tribunal.

On Friday 25th September the High Court gave its decision in the long-running Heyday litigation. The charity Age UK had challenged the Default Retirement Age (DRA) of 65 in the Age Regulations arguing that the DRA should be struck down since there was no clear and consistent social policy aim pursued by government. They argued the choice of a DRA at 65 was not proportionate.

The Government succeeded in defending the challenge to the DRA, but only just. The Court held that the concept of a DRA was both legitimate and proportionate but said that there were powerful reasons why the DRA should have been set at an age above 65. Two days before trial the Government announced it would review the DRA in early 2010. This clearly scuppered the challenge by Age UK because the Court said it would have granted the application had it not been for this review announcement.

This decision means that employers may still retire employees compulsorily at 65 provided they follow the procedure set out in the Age Regulations. However it is likely that the governments review will lead to a scrapping of the Default Retirement Age so that, ultimately, compulsory retirement will become a thing of the past. Indeed many larger organisations and certain government departments have already done away with compulsory retirement ages.

In July 2009 the Government started a consultation on employment status within the Construction industry.

The Government believes that many businesses within that sector describe certain workers as ‘self employed’ when they are, in reality, employees. Given the more favourable tax treatment of the self employed there is a financial incentive for both businesses and workers to join forces and ascribe the label of “self employment” to a relationship than is in reality one of employment. Many businesses also, of course, perceive that, though such false labelling, they may escape certain of the obligations that are owed to employees, for example, the right to claim unfair dismissal or a redundancy payment.

The Government has estimated that around 300,000 subcontractors under the Construction industry’s ‘CIS Scheme’ may well be employees and further estimates that the cost of the Exchequer of this false declaration of status is around £350 million per year in lost tax revenue.

As a result the Government signalled in its 2009 budget that it would consult over the issue with a view to introducing legislation. The Government’s proposed solution is to assume that workers within the Construction sector are employees unless the worker fulfils one of three proposed statutory criteria. Those three criteria are as follows:-

1 That the person provides plant and equipment required for the job they have been engaged to carry out (excluding their usual tools of the trade); or
2 That the person provides all materials required to complete the job; or
3 That a person provides other workers to carry out operations under the contract and is responsible for paying them.

A worker would have to meet one or more of these three criteria in order to be deemed to be self employed. Although it is the work done for the person who engages the worker that is relevant for the deeming provision the person responsible for making the payment to the worker will ultimately have to apply the statutory criteria. The person paying the worker could be the engager, an employment agency or an intermediary.

Whilst the Government’s proposal has the benefit of logic and certainly has the benefit of providing certainty for businesses there are also difficulties. The deeming provision and its exceptions are something of a ‘blunt instrument’ to solve the problem and they do not recognise the often complex relationships that exist between businesses and workers within the Construction industry. Also there would appear to be no “de minimis” provision for those workers providing one off or very short term jobs. As matters currently stand, for example, a brick layer or plasterer brought in by a contractor for a day or so could well be regarded as an employee obliging the paying party to set them up on its PAYE system and issue a P45 once the job was complete.

Further the Government’s proposals do not adequately address the situation of workers who set themselves up as limited companies. For example Fred Bloggs may set himself up as ‘Fred Bloggs Ltd’ and then provide personal services (e.g. bricklaying) to a contractor. The contractor pays the limited company but it is always Fred Bloggs who actually does the bricklaying. Under the Government’s proposal it would be Fred Bloggs Ltd who would have the responsibility of accounting for tax through the PAYE System but this does not adequately solve the problem relating to the collection of revenue that the proposals are designed to solve.

The Government’s consultation closes on 12 October 2009 and it is unlikely that the proposals will come into effect this side of the next General Election.

The general rule in proceedings before an Employment Tribunal is that each side to a dispute bears their own legal costs. Invariably therefore, unlike in other courts, the winning party cannot claim any legal costs from their unsuccessful opponent. This rule on costs was established when Employment Tribunals were set up to try to ensure a more informal and more easily accessible forum for the resolution of workplace disputes. In particular it was considered that to oblige a losing party to pay the winners costs would dissuade employees from bringing meritorious claims; this was particularly given the perceived imbalance in resources available to employees and employers in fighting such claims.

There is an exception to this usual costs rule where a party before the Employment Tribunal behaves “vexatiously, abusively, disruptively or otherwise unreasonably”. This exception was intended to cover unreasonable behaviour in the way proceedings were conducted or to prevent claims which never had any reasonable prospect of success. In two recent cases however the rule has been used to force Claimants to pay their opponents’ costs because they were found to have lied in evidence. In Daleside Nursing Home v Matthew, for example, Mrs Matthew alleged that she had been called a “black bitch” by her manager. That comment was the basis of Mrs Matthew’s claim before the Tribunal of racial discrimination. However the Tribunal found that the comment had not been made. The employer’s claim for costs was rejected by the Tribunal but the Employment Appeal Tribunal held that where a Claimant was found to have lied a costs order should be made. This case has been followed in another recent case, Dunedin Canmore Housing Association v Donaldson, where again, the Claimant was found to have lied.

Fair enough you might think – if you lie in evidence you deserve to pay the price. The problem in employment proceedings however is that often cases revolve around a conflict of who said what to whom. Discrimination cases are for example notoriously difficult to prove – particularly if, as in Daleside, a comment is alleged to have been made in a private conversation with no other witnesses. In these circumstances Tribunals are in the unenviable position of having to decide between 2 competing accounts and the Tribunal has to decide which party, on the balance of probabilities, is to be believed.

The cases of Dunedin and Daleside demonstrate the difficult issue of costs in Employment Tribunal proceedings. Simply imposing costs on a party whose evidence is not believed is unsatisfactory given the nature of the jurisdiction and is likely to dissuade some Claimants from bringing claims which may be meritorious but difficult to prove. However it is equally unfair for employers to be saddled with significant irrecoverable costs for defending claims which have little prospect of success or which are of low value. The system of costs in Employment Tribunals needs radical reform to deal with these tensions. Firstly consideration needs to be given to the value of claims before they are listed for a hearing; presently it is quite common for cases to be listed for many days, even weeks, even though the compensation being sought is relatively modest. This means that any costs that the parties may have to expend to pursue or defend a claim are out of kilter with the claim’s actual value. This is unfair both for Claimants and Respondents. Secondly the system needs to recognise attempts that parties may have made to settle claims outside the Tribunal – so, for example, a party should be permitted to make an offer to settle the claim on the basis that if their opponent doesn’t beat this offer in the Tribunal then the “losing” opponent pays the offeror’s costs.

In late 2008 the FSA examined the remuneration practices of 22 regulated firms and found a number of weaknesses, including (perhaps not surprisingly) the taking of excessive risks. The finding of the FSA was that excessive risk taking had significantly contributed to the banking crisis and that variable remuneration had often driven those risks.

As a result the FSA in February 2009 published a draft Code of Practice, requiring remuneration policies to be consistent with effective risk taking. The FSA’s proposal is that the Code would apply to FSA-regulated banks and other institutions above a certain size threshold (about 45 firms in total). However the FSA invited discussion on whether the Code should be extended to all FSA-regulated businesses – we should know the FSA’s conclusion on that in the next few months, with the Code coming into effect on 6th November 2009 in time for firms’ remuneration reviews.

The Code sets out only one actual rule, namely that “A firm must establish, implement and maintain remuneration policies, procedures and practices that are consistent with and promote effective risk management”. Ten “evidential provisions” are set out by way of general principles, compliance with which would tend to demonstrate compliance with the rule.

The Code is proposed to apply to “remuneration” in its broadest sense, including wages, bonuses, incentive plans, options, hiring bonuses, severance packages and pension arrangements. The FSA proposes incorporating the Code into its handbook so it may be directly enforced.

In terms of current remuneration arrangements the FSA expects firms, insofar as they are able under any contract of employment, to comply by the Code no later than 31st December 2009. Where the contract of employment prevents such compliance then the FSA requires such contracts to be terminated by November 2010 to ensure Code compliance. The FSA believes that this should be possible on the basis that most remuneration obligations will not extend beyond one year.

Whilst the FSA Code does not concern itself with the actual level of remuneration to be paid, it is clear that many firms will need to conduct a significant review of their remuneration policies and practices.

The Workplace Parking Levy Regulations 2009 will come into force on 1st October 2009. The Regulations authorise local authorities in England to introduce a workplace parking levy, ie charging businesses for each parking space they use. Details of how such levys will operate, including charging levels and exemptions are left to each authority to decide.
The Government has said that the first such levy will be introduced in Nottingham in 2012 – under the proposed scheme any company with 11 or more parking spaces will be charged £250 per year per space. It is anticipated that many employers may pass this cost on to their employees.
Campaigners in Nottingham have threatened a legal challenge to the Regulations, backed by local Chambers of Commerce.
If the levy in Nottingham goes ahead it is likely that many other local authorities will follow suit, increasing costs for many commuters and/or their employers. With unemployment heading towards 3 million and companies dealing with the continued effects of the recession parking levys will add to the pressures faced by businesses and small businesses in particular. As with other so-called “green taxes” one wonders how much impact parking levys will actually have on the environment, particularly if companies or their employees simply cough up and commute.

Simon Bond

Forget rising levels of unemployment or the complexities of employment law it seems that the burning issue of the moment is whether Arlene Philips should have been sacked from Strictly Come Dancing. More particularly whether her replacement by the younger Alesha Dixon was an act of age discrimination. The BBC says “hand on heart” that its decision to replace Philips was not ageist. The fact remains however that Philips, a highly experienced choreographer, has been dropped in favour of a younger and far less experienced person. In addition the gender/age balance of the show seems to favour a pairing of older men and much younger women – so for example octogenarian Bruce Forsyth is paired with the much younger Tess Daly and the 3 male judges (average age 55) are now joined by the 30 year old Dixon. Is the message that it’s OK to be a man on TV in your 50s and beyond but if you’re a woman in her 50s you’re finished? Just dont get me started on Fern Britten and Holly Willoughby…

With temparatures soaring many workers without the benefit of air conditioning will sympathise with the TUC’s long-standing campaign to introduce a maximum temperature for workplaces.

There is a minimum temperature of 13 degrees C (55 deg F) for those doing strenuous work and 16 degrees C (61 deg F) for those behind a desk. Whilst there is no legal maximum the Workplace Regulations 1992 do stipulate that the temerature in indoor workplaces should be “reasonable”, ie provide a reasonable level of comfort.

HSE guidance recommends that where worplace temperatures become uncomfortably high an employer should take steps to lower the temperature by providing fans or airconditioning or by shading windows or moving workstations away from direct sunlight.

Much of this of course depends on the nature of work being undertaken – working by a furnance or in a kitchen is always likely to be hot and imposing a maximum temperature is unlikely to be workable in practice.

According to the Chartered Institute of Personnel & Development 17 million working days are lost to alcohol-related sickness absence each year, with a loss to the economy of £6.4 billion. On the back of these statistics the government’s recent “Know Your Limits” survey has reported that many workers in the UK are drinking well above the recommended healthy limit, with those in the media and IT being the biggest drinkers.

This is probably no great surprise when workers are concerned about job security in the current economic downturn. It is generally accepted that it is uncertainty and insecurity about jobs, rather than job losses themselves, that bring about stress. This highlights the need for employers to tackle the increase in workplace stress and be aware of its inherent risks. These can include not merely the difficulities caused an increase in sickness absence but, in extreme cases, liability in negligence for stress-related illness.

Communication is the key. Effective policies relating to alcohol misuse are key and these should make it clear that drinking to a level that impacts upon performance and behaviour is unacceptable and may lead to disciplinary action. Certain industries (such as those involving heavy machinery or driving) may want to take a “zero tolerance” approach to both alcohol and drugs – making it clear that being “under the influence” whilst at work will be regarded as gross misconduct. Aside from such policies however effective and honest communication about job security in the current economic climate is equally important.