This year, we’ve already seen a raft of changes in employment law. Here is a round-up of five of the key changes introduced in April.
Employees’ Right to Train
Under the Apprenticeships, Skills, Children and Learning Act 2009, which came into force on 6 April 2010, employees have the legal right to request time off for training. The right to request time off currently only applies to employers with 250 or more employees, but the same rights will be extended to all businesses from April 2011.
Only employees with at least 26 weeks’ continuous service have the right to make a request and the training must improve the employee’s effectiveness at work and the performance of their employer’s business.
The procedure for dealing with requests is similar to the right to request flexible working in that employers do not have to pay for training or the employee’s salary during their time off. Employers can refuse an employee's request so long as they can show a legitimate business reason for the refusal.
Employers should consider amending their staff handbook to include details of the new requirement and outline procedures for dealing with requests for training.
To help reduce long-term sickness absence and support partially-fit employees’ return to work, from 6 April 2010 medical ‘fit notes’ replaced GP sick notes.
The new electronic fit note contains two options: ‘not fit for work’ or ‘may be fit for work taking account of the following advice’.
If a doctor selects the second option, they can suggest adjustments to an employee’s workplace or job to help facilitate a return to work. Although the doctor’s recommendations are not legally binding, they are designed to prompt a discussion between the employer and employee to see what changes could be made to enable the employee to return to work. The maximum period for which a medical note can be issued for will reduce from six to three months during the first six months of illness.
This new approach will require employers to adopt a more proactive approach and they should ensure that they have reviewed their sickness management processes to accommodate the new requirements.
Extension of Paternity Leave
From 6 April 2010, eligible fathers have become entitled to take between two and 26 weeks additional paternity leave (APL) before their child’s first birthday. The existing statutory right to up to two week’s paternity leave remains unchanged and will now be referred to as ordinary paternity leave (OPL).
However, whilst the right to APL has already been introduced it will only apply in relation to babies born on or after 3 April 2011. As a result APL cannot be taken at the present time.
The eligibility criteria for APL are essentially the same as for OPL, but in order to take APL, the child’s mother must have returned to work, so APL cannot be taken at the same time as ordinary or additional maternity leave. In addition, APL cannot be taken until the child is 20 weeks old.
Eight weeks' notice of the intention to take APL must be provided and the absence has to be self-certified and accompanied by a signed declaration from the child's mother. Fathers can receive Additional Statutory Paternity Pay if they take APL during the mother's 39 week Statutory Maternity Pay (SMP) period to be paid at the same rate as SMP.
APL is also available in the context of adoption and employers should amend their Paternity, Maternity and Adoption Leave Policies to refer to APL and OPL and should also make line managers aware of the new right so that they can deal with any enquiries.
Tribunals can disclose Whistleblowing Claims to Regulators
On 6 April 2010, new rules were introduced to allow Claim Forms received by an Employment Tribunal which contain a whistleblowing claim to be sent to the relevant Regulator, such as the Health and Safety Executive or the Serious Fraud Office. However, Claimants must give their express consent to the form being sent and the Tribunals Service will write to both parties to inform them which Regulator the Claim Form has been sent to.
£500,000 fine for Data Protection Act offenders
The Information Commissioner has new powers to impose fines of up to £500,000 for serious breaches of the Data Protection Act occurring after 6 April 2010.
When serving a fine, the Information Commissioner will consider the circumstances, including the seriousness of the data breach; the likelihood of substantial damage and distress to individuals; whether the breach was deliberate or negligent and what reasonable steps the organisation has taken to prevent breaches. There is no exception for small businesses although the financial resources of a business will be taken into account when determining the level of the penalty.
Business should review their activities to ensure that when processing personal data they are compliant with the Data Protection Act.