Employment news items of interest, reported this month by Mike Smith, are: important dates for your diaries in April; changes to the specific public sector equality duty; the proposals for public sector pension reform; and avoiding possible ‘double payment’ of maternity pay. We also report on the immediate withdrawal of the local authority Two-tier Code and the publication of the Bribery Act guidance.

In this issue...

 

The final countdown…

There are some key implementation dates for your diaries, coming up in the next week.

  • Don’t forget that this is the last week in which you can retire employees using the statutory default retirement age procedures, thereby avoiding the risk of age discrimination claims.  The last day on which a valid notification of retirement, using the default retirement procedure, maybe issued is 5 April 2011.  Please see our Alert for the latest position in relation to the transitional arrangements for the phasing out of the current statutory scheme.  If you would like a full briefing note on the phasing out of the default retirement age, and how to deal with retiring employees without a default retirement age, please email here to receive a copy.
  • The majority of the Equality Act 2010 came into force last October, but two provisions were delayed until April 2011
    • the ‘positive action’ provisions (which, in limited circumstances, give employers the option preferring a candidate for employment if that candidate has a ‘protected characteristic’); and
    • the revised and extended general public sector duty to promote equality.  The wording of the duty has been slighted amended, and extended to cover all nine of the ‘protected characteristics’.  Please see below for details of proposed changes to the specific duties under the public sector equality duty.

The old equality Codes of Practice are also revoked with effect from 6 April 2011 and replaced by the new statutory codes under the Equality Act 2010: the Code of Practice on Employment and the Code of Practice on Equal Pay.

For more information on these and other aspects of the Equality Act 2010 (including details of how to obtain our full briefing note on the Act), please see our October 2010 Employment Eye article.

 

Changes to specific public sector duties

The government has announced that it is withdrawing its original proposals in relation to the specific public sector equality duties (which are designed to complement and support the general public sector duty to promote equality, which comes into force in April).  The Government Equalities Office is now consulting on revised regulations, which set out a ‘lighter touch’ approach. 

As previously, the revised regulations require public bodies to publish

  • equality objectives every four years
  • information annually to demonstrate their compliance with the general equality duty
  • information relating to their employees (for bodies with 150 or more staff) and others affected by their policies and practices.

The main differences are that the revised requlations no longer require public bodies to publish details of

  • the engagement they have undertaken when determining their policies and equality objectives
  • the equality analysis they have undertaken in reaching their policy decisions, and
  • the information they considered when undertaking such analysis.

The intention is that the emphasis on equality reporting should shift to results rather than processes.

 

Pensions

It’s been a busy month for proposals in respect of one of the burning issues of the day: pension reform.  On 3 March 2011, the government announced its consultation on the future of the Fair Deal policy on pension provision for public sector staff compulsorily transferred to a non-public sector employer.  Please click here for our Alert on the consultation. The consultation closes on 15 June 2011.

Furthermore, in a development that has sparked calls for industrial action by public sector unions, former Secretary of State for Work and Pensions, Lord Hutton of Furness, has published his final report on the reform of public sector pensions.  The report's recommendations include

  • career average schemes replacing existing public sector final salary pension schemes
  • except for the ‘uniformed services’ (the armed forces, police and firefighters) which will retain a pension age of 60, normal pension age for public sector pensions will be linked to state pension age and will rise in accordance with planned increases
  • a clear cost ceiling for the new schemes proposed, with 'automatic stabilisers' built into their design; and
  • a new legal framework with a consistent approach to control and governance of public service pensions.

 

Maternity pay – don’t pay twice!

In Wade and North Yorkshire Police v HMRC, the Upper Tribunal Tax and Chancery Chamber has confirmed that an employee going on maternity leave can specify the date on which her statutory maternity pay should be paid, and it can be later than the start of maternity leave.  In short, this meant that Mrs Wade was entitled to receive 13 weeks’ full pay under the Police’s enhanced maternity pay scheme, after which she could receive her statutory maternity pay, made up of 6 weeks of higher rate SMP and 33 weeks of SMP at the lower rate.  This meant that, by postponing the start of her statutory maternity pay, Mrs Wade was entitled to receive, in total, some form of maternity payment for 52 weeks. What are the practical implications of this for you?  If you enhance your maternity pay, check the drafting of your scheme to ensure that any enhanced payments are offset by statutory maternity payments received, or due to be received, by the employee.   It would be sensible to ensure that similar wording is reflected in any enhanced paternity pay policy, in case these regulations are subject to a similar challenge.

 

Two-tier Code withdrawn with immediate effect

Please see our Alert of 23 March 2011 for more information on the immediate repeal of the Code of Practice on Workforce Matters in Local Authority Service Contracts  ('the two-tier code').  The abolition of the Code will not apply retrospectively, so existing terms and conditions agreed under the Code will still be enforceable, and the repeal does not affect the operation of TUPE transferred rights.

 

Bibery Act guidance published

The important and long awaited guidance on preventing bribery has now been published by the Ministry of Justice, along with a 'quick start' guide. The guidance is important as compliance with it will assist organisations with establishing a defence under the new Bribery Act.  For more information on why HR needs to know about bribery, and what practical steps you should be taking to comply with the new Act (which has criminal sanctions), please see our December 2010 article.  The Bribery Act was due to come into force next month, but was delayed pending the publication of guidance on preventing bribery.  When announcing the delayed implementation, the Ministry of Justice said that the Bribery Act would be brought into force three months after the final publication of the guidance.