Employment Law: Up and coming changes in 2011

Peninsula Team

March 11 2011

Additional Paternity Leave Where babies are due on or after 3rd April 2011, mothers will be able to forfeit up to 6 months of their maternity leave and transfer it to the father of the baby, or the mother’s partner in same sex relationships. ‘Additional paternity leave’ (APL) allows fathers or mother’s partners who meet certain conditions to take a maximum of 6 months’ leave. The leave must be taken in one continuous block, and is in addition to the current entitlement to 2 weeks’ paternity leave. APL will be paid at the usual rate of Statutory Paternity Pay for the length of the leave that was outstanding from the mother’s leave. Increase in statutory maternity/paternity/adoption pay From 3rd April 2011, the weekly rate for statutory maternity/paternity/adoption pay will increase from £124.88 to £128.73. Increase in Statutory Sick Pay From 6th April 2011, the weekly rate of Statutory Sick Pay will increase from £79.15 to £81.60. Positive action in relation to recruitment and promotion The positive action provisions contained in the Equality Act 2010 in relation to recruitment and promotion come into force on 6th April 2011. This means that, when recruiting or promoting, employers can treat an individual with a protected characteristic more favourably if people with that characteristic are underrepresented in the workforce. This is subject to certain conditions, including that positive action can only be relied upon when the candidates are equally qualified. For example, where 2 candidates are equally matched after interviews, and one candidate is from an ethnic minority currently underrepresented in the company, the employer can decide to offer the job to that candidate on the basis of their race. Employers are not obliged to use positive action; its use is purely voluntary. Right to request flexible working Parents of children under the age of 18 will be entitled to request flexible working from 6th April 2011. The right to request is currently available to employees who have children under the age of 17, or under the age of 18 where the child is disabled. This extension now creates parity in the age criteria for this right. The Government has also announced an intention to open up the right to request to all employees, regardless of whether they have children or not, however, this will not likely take place until 2012. Retirement The default retirement age (DRA) and the statutory retirement procedure will be gradually abolished, starting on 6th April 2011. The draft regulations repealing current legislation were recently published, with the effect that: •  from 6th April 2011, employers will not be able to issue any new notifications for compulsory retirement using the DRA; •  only employees who are already 65 or over, or will turn 65 before 1st October 2011, and who were notified before 6th April 2011 can be compulsorily retired using the DRA; •  any requests by employees to continue working must be made by 4th January 2012; •  from 3rd October 2012, employers will not generally be able to use the DRA to compulsorily retire employees. This date is based on an employee who requests to continue working past their intended date of retirement, and the employee agrees to a 6 month extension which is the longest extension period without invoking the need to start another retirement procedure. If employers wish to use retirement ages they will have to be able to demonstrate these are objectively justified. The regulations are still currently in draft form, which means they could be subject to change before implementation date. Agency workers With effect from 1st October 2011, agency workers will be entitled to the same treatment as permanent workers of the hiring business in relation to pay and working time after 12 weeks in a given assignment. Additionally, some rights will be available to agency workers from day 1 of the assignment, such as the right to be informed of vacanc ies in the hirer’s business, and access to collective facilities e.g. canteen, childcare facilities. National Minimum Wage Subject to confirmation, some or all of the National Minimum Wage rates will increase as usual in October 2011. Bribery Act The implementation of the Bribery Act 2010 has been postponed, but is still expected to be brought in at some point in 2011. Once the Government has published guidance on the Act, there will be a three month period before the Act is introduced. The Act introduces a corporate offence of failure to prevent bribery by individuals working on behalf of a business, for which employers will have a defence if they can show that they took measures to prevent bribery taking place. For more information on the changes outlined in this editorial, or any other employment law issues, please contact our Advice Service on 0844 892 2772.

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