2014 has already been an eventful year for HR professionals with, among others, the phasing in of the early ACAS conciliation, the introduction of financial penalties for employers and the introduction of the new flexible working rules. The next tranche of changes, from 1 October 2014, includes the introduction of unpaid time off for fathers and partners to accompany their partner or the mother or their child to antenatal appointments, new rules on equal pay audits and new rights in relation to reservists.
Antenatal rights for fathers and partners
Fathers and partners who are employees or agency workers (if they have completed their 12 week qualifying period and continued to work in the same role) have the right to unpaid time off to accompany a pregnant woman to up to two antenatal appointments, for a maximum of 6.5 hours for each appointment, if they have a “qualifying relationship” – if they are:
- The baby’s father
- The expectant mother’s spouse, civil partner, or partner (of either sex) in an enduring relationship
- The intended parents of a child in a surrogacy arrangement, if they expect to be entitled to, and intend to apply for, a parental order in respect of that child
There is no set format for making a request to take time off, but employers can ask employees to provide a signed declaration stating:
- That they have a qualifying relationship with a pregnant woman or her expected child
- That they are taking time off to accompany her to an ante-natal appointment
- That the appointment is made on the advice of a registered medical practitioner, midwife or nurse
- The date and time of the appointment
Employers have the right to refuse such a request where it is “reasonable” to do so. Although the BIS guide for employers does not provide guidance on what circumstances would make a refusal reasonable, it is likely to be where, for example, short notice is given for a non-urgent appointment and the employer cannot arrange cover in time.
If an Employment Tribunal finds that an employer unreasonably refused to allow the employee time off, it could award compensation equivalent to double their hourly rate for the time they were entitled to take off. From 1 October 2014, pregnant employees are also entitled to compensation of double their hourly rate. However, some employees may well be deterred from bringing a claim given that the tribunal fee is GBP 160.
Employees and agency workers will be protected from suffering a detriment or being dismissed as a result of exercising this antenatal right.
Employers should ensure that managers are aware of this new right and they know what to do when they receive a request. In addition, they should update their family friendly policies to reflect the changes.
Mandatory equal pay audits
If an employer loses an equal pay claim, which was presented on or after 1 October 2014, the tribunal will order it to carry out an equal pay audit in certain circumstances, which the employer must then publish on its website.
Equal pay audits should include information about:
- Relevant gender pay
- Any difference in pay between men and women, and the reason for that difference
- The reasons for any potential equal pay breaches identified in the audit
- The employer’s plans for avoiding any breaches occurring or continuing
If the equal pay audit is not satisfactory, the employer could be ordered to pay a penalty of up to GBP 5,000. The tribunal must also make an order specifying a new date by which it must receive a satisfactory audit, and if the employer again fails to comply, it might face a further penalty of up to GBP 5,000.
As a means of avoiding a tribunal making an order for a mandatory audit, employers could carry out a voluntary equal pay audit which would not have to be published, although it would have to be disclosed in tribunal proceedings if an equal pay claim is brought. Provided the voluntary audit includes all the information required (listed above), a tribunal could not order an audit for the next three years. Otherwise, employers that do not have an exemption to an audit and are concerned about what an audit would reveal could face substantial pressure to settle equal pay claims. Of course, if a claim is brought, employers could always carry out an informal audit to identify whether a mandatory equal pay audit would show any areas of concern.
The government has not published guidance on equal pay audits, but instead points to the Equality and Human Rights Commission’s guidance, including the “quick start guide” to providing equal pay and the equal pay audit toolkit.
Employees who are dismissed for a reason connected with their membership of the Reserve Forces will no longer need to have two years’ service to bring an unfair dismissal claim. This applies to employees whose employment terminates on or after 1 October 2014.
In addition, small and medium-sized businesses will be entitled to increased financial assistance from the Ministry of Defence during periods when reservist employees are absent on military service. These employers can claim an additional monthly payment of GBP 500 when a reservist employee, who is contracted to work full-time for more than 35 hours per week, is absent on military service for a whole calendar month. The amount will be pro-rated for periods of less than a month and where the employee works less than 35 hours per week.
Rate increases – National Minimum Wage
The following hourly rates take effect from 1 October 2014:
- Standard adult rate (for workers aged 21 and over): GBP 6.50
- Youth development rate (for workers aged 18 - 20): GBP 5.13
- Young workers’ rate (for workers under 18): GBP 3.79
- Apprentices’ rate: GBP 2.73
- The accommodation offset: GBP 5.08 per day