Our pick of October's key employment law developments are brought to you by Julian Hoskins and cover: the Ebola crisis, holiday pay (where are we now?), the latest developments on shared parental leave and extended parental leave, BIS announcements on law reform and news of the new 'health and work scheme'. Last but not least, bookings are now open for our December employment law updates – please see below for details of how to register for a place. 

Ebola and employers

As all of our readers will be aware, a rare but severe disease caused by Ebola virus has broken out in West Africa, affecting Guinea, Liberia, Sierra Leone and Nigeria.  The World Health Organisation has declared this a public health emergency of international concern. 

At present, there have been no cases of Ebola being contracted in the UK, and only one imported case. The UK Government has confirmed that the risk of Ebola to the general public in the UK remains very low. However, Public Health England (PHE) has advised frontline medical practitioners to be alert to Ebola in those returning from affected areas. Although the level of risk is low, employers should be alive to their health and safety obligations towards staff who may come into contact with Ebola patients during the course of their employment – including not only frontline staff, but also support staff who come into contact with patients and patient areas, such as cleaners, porters and receptionists. Employers will also need to be mindful of their treatment of any staff who may contract Ebola, and follow existing policies relating to long and short term sickness absence, as well as acting in line with any new policies drafted specifically in relation to the Ebola outbreak. 

The following sources of further information may be of assistance.

  • NHS - General information on Ebola. Click here.
  • DH Letter regarding NHS staff who want to volunteer in West Africa. Click here.
  • UK government response to Ebola crisis. Click here.
  • WHO – protective measures for the general public. Click here.
  • WHO – Ebola information. Click here.
  • PHE - Public health questions and answers. Click here.
  • PHE - Advice and risk assessment for universities and further educational establishments. Click here.
  • PHE - Advice and risk assessment for educational, childcare and young persons’ settings. Click here.
  • PHE - Infection control and prevention for acute trust staff. Click here.

All PHE guidance and advice can be found here.

PHE is continuing to work with government and the NHS to ensure that the UK remains prepared for the risk of Ebola. We understand that PHE is considering setting up an Ebola hotline – please keep an eye on our Twitter feed for any updates @BevanBrittanEmp

Holiday pay - update

Although the summer break may already seem like a distant memory for many, the question of holiday pay is still very much at the forefront of the minds of those working in employment law. We understand that the Employment Appeal Tribunal is due to give its judgment in Fulton v Bear Scotland Limited (which considers overtime and holiday pay) imminently and we will publish an Alert as soon as the decision is known.  

In other holiday pay news, the case of Lock v British Gas was due to return to the employment tribunal this month in order for the tribunal to calculate the level of compensation due to claimant, after the Court of Justice of the Europe Union decided that the claimant's holiday pay should include an element to represent his average commission payments. However, we understand that the tribunal hearing has been postponed to February 2015, and may well result in another referral to Europe over the correct reference period and how far payments should be backdated.  If you want to read more about the recent holiday pay cases and their likely impact, please click here to read my recent article on this topic.

Acas guidance on shared parental leave

Parents who are expecting babies to whom the new Shared Parental Leave (SPL) arrangements apply will be attending their 12 week scans about now – and may well be turning their thoughts to whether they will be making use of the new scheme. By way of a brief reminder, SPL applies to babies due on or after 5 April 2015, but the regulations are in force from 1 December 2014, to allow for babies who are born early. Please click here for our summary of the key features of the new scheme.

Acas has published a detailed guidance note on the new shared parental leave rules, together with supporting material including standard letters and a policy document.  Please click here to view the guidance and other supporting materials. The guidance is non-statutory, so employment tribunals are not obliged to take it into account but they are likely to refer to it when applying the SPL regulations. The guidance does not provide any detail on some of the thornier issues around SPL – such as pay and whether benefits should be equalised across maternity leave and SPL – but employers may find the following useful.

  • Points that employers should include in their SPL policy (page 8).
  • A useful summary of how the default provisions operate (page 28). 
  • Checklist of the steps to take to arrange SPL (appendix 2, page 39).
  • Confirmation that it is Acas's view that an employee's partner can start SPL while the mother is still on maternity/adoption leave (although the mother would have to have issued a notice stating that she will be curtailing her maternity leave).
  • Good practice tips (throughout the guidance) regarding the SPL process, including paper trails and allowing companions at meetings if possible. 
  • Finally, the guidance recommends that line managers are trained on SPL arrangements. This is of particular importance given the default arrangements that apply automatically if an SPL notification is missed or ignored.  Please contact me or your usual Bevan Brittan contact if you would like to arrange for our experienced trainers to bring your HR, management or senior executive teams up to date on the new SPL scheme.

In addition to the Acas guidance, employers may wish to refer to the more detailed BIS technical guidance on SPL (please see last month's update for more information).

Extended parental leave

In a further family friendly development, the government has published the Maternity and Parental Leave (Amendment) Regulations 2014, which extend the existing parental leave regime to parents of children aged between 5 and 18. This is due to come into force on 5 April 2015. At present, only parents of children aged 5 and under can take such leave, which is currently a maximum of 18 weeks and limited to 4 weeks per year.

BIS announcements on minimum wage and employment status

Following Business Secretary Vince Cable’s speech to the Liberal Democrat conference this month, the Department for Business Innovation and Skills (BIS) has made two new employment law announcements.

1. National minimum wage reform

The government is to propose to the Low Pay Commission that in order to simplify the apprenticeship pay system there should be a single national minimum wage rate for 16-17 year olds in employment and all apprentices in the first year of their programme. This proposal will result in the apprenticeship rate rising by just over £1 an hour to match the current rate for 16-17 year olds.

2. Employment status

Following the recent review of zero-hours contracts, the government has now launched a wide-ranging employment review of employment status of British workers.   According to BIS, the law around the employment status of workers is uncertain and needs simplifying and clarifying, so that each party understands the rights that are available. Further details are available in the BIS press release.

Health & Work Service / 'Fit for Work'

Earlier this year, the government announced that a new Health and Work Service will be launched in late 2014, to provide occupational health assessments and assist employees to return to work who have been absent for four weeks or more.

On 10 October 2014, the government announced that the Health and Work Service has been renamed 'Fit for Work' (FFW), "to more accurately reflect the nature and impact of the service". The government also published a report, Exploring future GP referrals to Fit for Work, which aimed to deliver an estimate of the likely proportion of eligible employees that GPs would refer to FFW for assessment.  According to the report, GPs surveyed would refer 54% of patients who were deemed suitable for referral. They were less likely to refer patients "with a clear recovery path and who were likely to return to work in due course under their own steam".

As yet, we still do not have a firm date for when FFW will be up and running, although it has been promised for the end of the year – so the clock is ticking!

Bevan Brittan training

Our ever popular annual review of employment developments, and preview of what is coming up, will be taking place across our three offices in December. Please click here for further details and to register.

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