Employment news round-up October 2010

The nights are drawing in, there’s a distinct cold snap in the air and the school run traffic jams have started again; but there are good things about October too: stamping on crunchy leaves, games of conkers and the Bevan Brittan October employment law news updater, provided this month by John Moore. 

In this article...

• Comprehensive spending review
• Increase in national minimum wage
• ‘Whistleblowing’ update
• More than a twinkle in an eye
• In other ‘family friendly’ news…
• TUPE and failure to inform and consult

Comprehensive spending review

As expected, the Chancellor announced massive cuts and ‘welfare reform’ in the Comprehensive Spending Review, including a 28% cut to Councils’ funding over the next four years. 

The headline points as they affect HR are as follows.

• State pension age to rise to 66 by 2020
• 490,000 job losses in the public sector by 2015
• Consultation to open on increasing public sector workers’ contributions to their pensions
• £1.8billion savings in public sector pensions required by 2014
• Funding for social care to increase by £1billion to accommodate support for joint working with Councils
• ‘Train to Gain’ is to be abolished; but 75,000 additional apprenticeships will be created by 2014.

Therefore, key employment law themes will be redundancy, reorganisation, TUPE, secondment and joint working.  When looking at reducing headcount, employers may also wish to consider alternative measures such as performance management and long term sickness absence management. 

Increase in national minimum wage

Whilst it might have seemed that the world stopped turning for the Equality Act to be implemented this month (please see article and November / December seminars), the usual annual increase in the minimum wage did also occur this month. 

The new hourly rates are as follows.

• Standard (adult) rate: £5.93 (rising from £5.80)
• Development rate (workers aged between 18 and 20): £4.92 (rising from £4.83)
• Young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices): £3.64 (rising from £3.57)
• The value of accommodation offset (whereby the value of accommodation provided by an employer may be counted towards minimum wage) also increases from £4.51 to £4.61 per day.

‘Whistleblowing’ update

There are two key developments in relation to whistleblowing this month.  The first is a decision by the Employment Appeal Tribunal which looked at the fine line between an (unactionable) unreasonable opinion and an (actionable) ‘qualifying disclosure’ - which may be a reasonable opinion that turns out to be wrong.  In Easwaran v St George’s University of London, a doctor complained that the temperature in a dissecting room was freezing cold and that he would get pneumonia. He argued that this was a ‘qualifying disclosure’ for the purposes of whistleblowing legislation because it showed that health and safety was at risk.  The Employment Appeal Tribunal gave this argument short shrift, largely because the doctor’s opinion about the risk of contracting pneumonia from being cold was wrong, so there was no reasonable evidence to support his belief that health and safety was at risk. 

Secondly, the Department of Health has also turned its attention to whistleblowing.  It is seeking views on proposals to amend the NHS Constitution to:

• insert an expectation that NHS staff will raise concerns about safety, malpractice or wrong doing at work which may affect patients, the public, other staff or the organisation itself, as early as possible
• insert a NHS pledge to support all staff in raising concerns about safety, malpractice or wrong doing at work, responding to and where necessary investigating the concerns raised
• highlight in the NHS Constitution the existing legal right for staff to raise concerns about safety, malpractice or other wrongdoing, without suffering any detriment.

Further information, and the consultation document, is available on the Department of Health’s website.  The consultation closes on 20 January 2011.

More than a twinkle in an eye

Not a moment too soon (as the babies in question are definitely more than a twinkle in their parents’ eyes), the government has finally confirmed that the Additional Paternity Leave Regulations 2010 will be implemented, as enacted.  This is despite a suggestion earlier this year that the Regulations were ‘under review’ and may have been either amended, delayed or repealed.  The Regulations apply to employees expecting to become parents on or after 3 April 2011, and provide that male employees may take Additional Paternity Leave of up to 26 weeks.  Please see our February 2010 News Round-Up for more information. 

If you have not done so already, now is the time to get to grips with the detail of the Regulations and consider what consequential changes you need to make to your family friendly policies and procedures.  

In other ‘family friendly’ news…

• The government has announced that, from April 2011, the right to request flexible working will be extended to all parents with children under 18.  A consultation on how to implement this proposal, including “the design of a new system of flexible parental leave” will be launched later this year.
• The eagle eyed amongst you may have noticed reports in the press that women are to be granted 20 weeks maternity leave at full pay, including 6 weeks compulsory maternity leave, and protection from dismissal for 6 months after maternity leave has ended.  These are proposals that have been passed by the European Parliament, but which still have some way to go before becoming law, and may well change in the process of agreement with the European Council.  It is not clear at the moment how these changes will finally take shape, but we will keep you informed of developments.

TUPE and failure to inform and consult

In an employer-friendly decision, the Employment Appeal Tribunal (EAT) has softened (slightly!) the approach that Employment Tribunals should take when deciding how to calculate the award for damages in respect of a failure to inform and consult employees in respect of a TUPE transfer.  Until this month’s EAT decision in Todd v Care Concern, caselaw on this question had suggested that a Tribunal should start at the maximum award of 13 weeks’ pay and ‘work backwards’ to take account of any reasons why the maximum compensation should not be paid.  The EAT has now said that this approach is wrong; a tribunal’s starting point should not “mechanically” always be the maximum award, as long as the employer has made some effort to comply with its statutory obligations, and the measures proposed are not significant. 

The case also held that the obligation to inform is engaged even where the transferor does not envisage any 'measures' will be taken.