In this article...

Alec Bennett reports on the latest developments in employment law including the introduction of fit notes, the impending change to the national minimum wage rates, the costs implications of lying in tribunal and an update on the Equality Bill’s passage through parliament.

Government Consultation on New ‘Fit Notes’

Following Dame Carole Black’s review of the health of Britain’s working age population in March 2008, the Government has launched a consultation on the new ‘fit notes’ that are due to replace sick notes in spring 2010.  The new fit notes will enable doctors to indicate that an employee ‘may be fit for some work now’ rather than simply fit or unfit for work.  Doctors will also be able to detail any potential changes to the employee’s work environment or role that may facilitate a return to work.  As is the case now, it will be up to the employer to consider all of the circumstances and whether to implement the doctor’s suggestions.

The consultation closes on 19 August 2009 and the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations 2010 will then be put before Parliament to effect the necessary changes.

The TUC has aired a note of caution about the proposals.  Brendan Barber, TUC General Secretary, feels the proposals could delay employees’ recovery as well as making them feel forced back to work.

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National Minimum Wage

The new national minimum wage rates to apply from October 2009 have now been announced.  For workers aged 22 and over the rate will rise from £5.73 to £5.80 per hour, for workers aged between 18 and 21 the rate will rise from £4.77 to £4.83 and for workers aged between 16 and 17 it will rise from £3.53 to £3.57.  It is estimated that nearly a million workers will benefit from the above rates.  Business groups had hoped the minimum wage would stay at current levels due to the economic climate, however the Low Pay Commission (LPC) confirmed in its annual report that all increases since 2006 have been smaller to take in existing economic conditions.

Following the LPC’s recommendation, the Government also announced the extension of the adult rate to 21-year-olds from October 2010.  The Government has agreed to develop and consider the practical implications of making information available on employers who have revealed a wilful disregard for the minimum wage laws in line with another of the LPC’s proposals.  It is expected that a response to the LPC’s recommendation of a minimum wage for apprentices be considered this summer.

More information can be found at http://www.berr.gov.uk/whatwedo/employment/pay/index.html

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Costs and Lying Litigants

In Daleside Nursing Home v Mathew, the Claimant alleged she had been called “a black bitch” by her manager.  The Employment Tribunal, upon hearing evidence, came to the conclusion that this was not true.  The discrimination claim subsequently failed but a costs order was not made by the Tribunal on the grounds that the Claimant genuinely believed her claim and had not acted unreasonably.  The EAT found that in light of the findings of fact that had been made by the Tribunal i.e. that the Claimant had lied about the allegation she had made, a conclusion should have been reached whereby the Claimant was found to have acted unreasonably in bringing and conducting the proceedings.  Therefore, the Tribunal had been wrong in law to reject the claim for costs.

Equality Bill Update – Second Reading

Following the Equality Bills second reading in the House of Commons, the Bill will now progress to a clause-by-clause consideration in a Public Bill Committee.  During the second reading the majority of MPs supported the Bills aims, however a not insignificant number of opposition MPs (139 in total) voted against it.  The lengthy debate that took place suggests that the Government is set to face severe debate in Committee on a number of proposals set out in the Bill including those dealing with the controversial issue of the gender pay gap.

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EU Agency Workers Directive Consultation

Employment Agencies : Implementation of the Agency Workers Directive: A Consultation Paper on the Temporary Agency Workers Directive 2008/104/EC (“the Directive”) was published by BIS on 8 May 2009.  The consultation closes on 31 July 2009 and will discuss the proposed implementation of the Directive in England, Scotland and Wales, although Northern Ireland will be subject to separate consultation and legislation.  Prior to further consultation being undertaken on the draft Regulations, the Government will publish its response.  Meanwhile the Government will invite opinions on the guidance to accompany the final Regulations.  Member States have until 5 December 2011 to implement the Directive.

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