It is that time of year again and April 2010 will see a number of developments in employment law that employers need to be aware of.

SICK NOTES REPLACED BY FIT NOTES

As discussed in the last issue of The Bottom Line Express, rather than just having the current fit/unfit choice, doctors will be able to indicate that someone May be fit for some work now. Where the latter is issued, the form will also require doctors to include information about any potential changes to the employees work environment or job role which could facilitate a return to work, such as phased return, altered hours, amended duties or workplace adaptations. Fit notes were discussed in more detail in Issue 23 of the Bottom Line Express.

CHANGES TO STATUTORY RATES

• The earnings threshold for statutory adoption, maternity, paternity and sick pay will rise to £97 (from £95) per week from 6th April 2010;
• The standard rate of statutory adoption, maternity and paternity pay and Maternity Allowance will rise to £124.88 (from £123.06) per week from 4th April 2010; and
Statutory sick pay will remain at £79.15 per week.

ADDITIONAL PATERNITY LEAVE / TRANSFERRED PATERNITY LEAVE / TRANSFERRED MATERNITY LEAVE

Whilst the legislation will come into force on 6th April 2010 in Great Britain, it will only apply to parents of children due on or after 3rd April 2011. Under the new scheme:
• Parents will have the choice to transfer up to 6 months leave to the father should they want to, which can be taken by the father once the mother has returned to work;
• Some of the leave may be paid if taken during the mothers 39 week maternity pay period. This would be paid at the same rate as standard statutory maternity pay;
• Parents will be required to “self certify” by providing details of their eligibility to their employer.
As it will be a few months before any employee has the new right to additional paternity leave, this subject will be covered in more detail in a future issue of the Bottom Line Express

RIGHT TO REQUEST TIME OFF FOR STUDY OR TRAINING

The most noteworthy development in April 2010 is the introduction of a new statutory right to request time off for study or training. With effect from 6th April 2010, this will apply to employees in Great Britain who have at least 26 weeks continuous service where their employer employs 250 or more people. The right will work in a similar way as the right to request flexible working does currently. Employers will be obliged to consider seriously requests that they receive, but will be able to refuse a request where there is a good business reason for doing so. Employers will not be obliged to meet the salary or training costs to enable a request for time off to train to be met. The legislation will be extended to cover employers of all sizes on 6th April 2011. Further details are as follows:

Eligibility

To qualify the employee must have at least 26 weeks continuous employment with the employer at the date the request is made and not be:
i. an agency worker or member of the armed forces;
ii. of compulsory school age (or, in Scotland, school age); or
iii. a young person who already has a statutory right to paid time off to undertake study or training.

If the employee has made a request under the statutory procedure, no further request under the statutory procedure can be made to the same employer before the end of a period of 12 months beginning with the date on which the previous request was made.

However, there are 3 circumstances in which the employee, having submitted a further request, may ask the employer to ignore an earlier request submitted within the last 12 months. These are:
i. where the employee notifies that they mistakenly submitted an earlier request before 12 months elapsed and they wish to withdraw the earlier application;
ii. where the employee did not undertake training that was agreed following a request because the training was cancelled – unless this was due to their own conduct in relation to the study or training; or
iii. where the employee failed to start training that was agreed as part of a request because of some unforeseen circumstance beyond their control.
In these circumstances, the employer must ignore the fact that the employee submitted an earlier application, and consider their present request.

Scope of request

Employees can make requests to undertake any training which they believe will improve their effectiveness and the performance of the employer’s organisation.

The training they undertake can include accredited programmes – leading to the award of a recognised qualification – or shorter unaccredited training to help them develop specific skills relevant to their job, workplace or employers business.

Employees can request training that is delivered in whichever way they believe is most appropriate and effective. For example, they might request training which would be:
i. undertaken on the employers premises or elsewhere, including at the employees home
ii. delivered whilst they are performing their employment duties or separately
iii. provided or supervised by the employer, a local college or training provider
iv. undertaken without supervision
v. undertaken within or outside the UK

There is no limit on the amount of time – or the amount of study or training – that an employee can request. Employees can ask to undertake more than one piece of training in a single request for time to train.

The right to request time off for training does not include the right to be paid for the time spent training if the request is granted, nor does it oblige the employer to pay for the training itself. Employers may agree to requests for time to train, and reach agreement with the employees that they will work flexibly to make up the time spent training, or that they will take unpaid time off to train. However, employers must also have regard to the national minimum wage and working time regulations as there are rules regarding where training time is treated as working time for these purposes.

Form of the application

A request made under the statutory provisions must be made in writing and include the following information:
i. a statement that it is an application under section 63D Employment Rights Act 1996
ii. the subject matter of the proposed training or study
iii. where and when the proposed training or study would take place
iv. who would provide or supervise it
v. what qualification it would lead to (if any)
vi. how the employee thinks the proposed training or study would improve their effectiveness in your business and the performance of your business
vii. the date of the application
viii. the date and method – eg email or letter – that the employees last application (if any) was submitted

Proceedure for dealing with a request

Meeting with the employee

A meeting to discuss the request must be held with the employee within 28 days of its receipt unless the employer notifies the employee in writing of agreement to the request within that time period. The time and place of the meeting must be convenient to both employer and employee.

Where the individual who would ordinarily consider a request is absent from work on annual or sick leave on the day on which the application is received, the period referred to above commences on the day the individual returns to work or 28 days after the application is made, whichever is the sooner.

If a valid request has been made but the employer feels that additional information is required before they can give the request proper consideration, the employer can ask the employee to provide additional information. If the employee refuses to provide the additional information, the employer can inform the individual in writing that they consider the request to be withdrawn.

The employer can also treat a request as withdrawn under the statutory provisions where the employee, without reasonable cause, fails to attend a meeting or appeal meeting more than once.

Notice of decision

Within 14 days after the date of the above meeting the employer must give the employee written, dated, notice of decision. Where the employer’s decision is to agree to the request, the notice must specify:
i. the subject of the study or training
ii. where and when it will take place
iii. who will provide or supervise the training
iv. what qualification (if any) the training will lead to
v. how the training time will be taken – eg whether it will be paid, unpaid, or whether the employee will work flexibly whilst undertaking the training
vi. how the costs of the training will be met

Where the decision is to refuse the request, the notice must state which of the specified grounds for refusal (see below) are considered to apply, with an explanation of why those grounds apply in relation to the request, and set out the appeal procedure.

Specified grounds for refusal of request

An employer may only refuse a request under the statutory provisions on the grounds of one or more of the following:
i. the proposed study or training would not improve the employees effectiveness in the employer’s business
ii. the proposed study or training would not improve the performance of the employer’s business
iii. the burden of additional costs
iv. detrimental effect on ability to meet customer demand
v. inability to reorganise work among existing staff
vi. inability to recruit additional staff
vii. detrimental impact on quality
viii. detrimental impact on performance
ix. insufficiency of work during the periods the employee proposes to work
x. planned structural changes.

Right of appeal

An employee is entitled to appeal against the employer’s decision to refuse a request or part of a request, within 14 days after the date on which the notice of decision was given. The notice of appeal must be in writing, setting out the grounds for appeal and be dated.
The employer must hold a meeting with the employee to discuss the appeal within 14 days after the employee’s notice was given, unless, within that time period, the employer gives the employee written notification that the original decision has been overturned and specifies the details of the request which have now been agreed as set out above. If an appeal meeting is held, the time and place must be convenient to both employer and employee.

Within 14 days after the date of the appeal meeting the employer must give the employee written, dated, notice of the decision on the appeal. Where the employer upholds the appeal the notice must specify the details of the request which have now been agreed as set out above. Where the employer dismisses the appeal the notice must state the grounds for the decision and contain a sufficient explanation as to why those grounds apply (as above).

Extension of time period

An employer and employee may agree to an extension of any of the time periods referred to above. Such an agreement must be recorded in writing by the employer and specify what period the extension relates to and what date the extension will end. The agreement must be dated and a copy sent to the employee. It is advisable to get the employee to sign that they agree to the extension.

Right to be accompanied

The employee has a statutory right to be accompanied at the meetings referred to above by a single companion who is a worker employed by the same employer as the employee.

If the employee’s chosen companion will not be available at the time proposed for the meeting by the employer and the employee proposes an alternative, mutually convenient, time which falls before the end of a period of 7 days beginning with the first day after the day proposed by the employer, the employer must postpone the meeting to the time proposed by the employee.

The legislation affords protection against detriment or dismissal on the grounds of exercising or seeking to exercise the right to be accompanied, or accompanying or seeking to accompany an employee, pursuant to a request under the legislation.

Withdrawal of request by employee

An employee may decide to withdraw a request at any point before they have been notified of the employer’s decision. They can withdraw orally or in writing. However, if the employer does not receive written notification of withdrawal, the employer must confirm the withdrawal of the request to the employee in writing. If an employee withdraws a request, it will still count as a request that the employer has received for the purposes of this legislation.

Remedies for breach

The employee may present a complaint at Tribunal if:
i. the request is refused and none of the specified grounds for refusing apply;
ii. the employer’s decision to reject the request was based on incorrect facts; or
iii. the employer fails to hold a meeting or fails to notify the employee of a decision in accordance with the above procedures.

Where a Tribunal finds a complaint to be justified it will make a declaration to that effect and may make an order for the request to be reconsidered. In addition the Tribunal may make an award of compensation of up to a maximum of 8 weeks’ pay subject to the statutory maximum level of a week’s pay.

The employee may also present a complaint at Tribunal if the employer fails to allow the employee to be accompanied at the meetings as described above. The maximum amount of compensation that can be awarded for breach of this provision is 2 weeks’ pay.
The time limit for the presentation of a complaint is 3 months from the date on which the request was refused, or from the date of the breach if applicable.

The legislation also affords protection against detriment or dismissal on the grounds of exercising or seeking to exercise the right to make a request under the legislation.

The Employment Reference Manual available on our Businesswise service will contain details of the right to request time off for study or training with effect from 6th April 2010 and various draft letters will be available from our 24 Hour Advice Service.  Call them now on 0844 892 2772.