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Robert Gibsons presentation on the most recent Employment Law changes plus tips on the law relating to, Social media, Equality Act, Sickness Absence, Flexible Working and the new Bank Holidays
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ROBERT GIBSONMANAGING PARTNER
SAMUEL PHILLIPS LAW [email protected]
.uk15 February 2011
Service Network Legal Update
Assembly Rooms, Newcastle Tuesday 15th February
11.30 am – 2.00 pm
SAMUEL PHILLIPS LAW FIRM
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SOCIAL MEDIA
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SOCIAL MEDIA – vital marketing tool
Vital marketing and communication tool
Love it or loathe it, here to stay
Some courts even allow it
Important to have social media policy
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SOCIAL MEDIA - using social media for your business
Intellectual property rights
Assess specific risks
Provide staff with clear guidelines
Appropriate compliance and quality control procedures
Take legal advice in case of posts containing unlawful content
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SOCIAL MEDIA – personal use of social media by employees
Have a policy that clearly sets out guidelines for personal use of social media
Guidelines should cover both social media at work and at home
Set clear standards for comments that employees may make
Make clear consequences of breaching guidelines
Business may be liable for damages caused by personal social media posts
Note case of civil servant who complained about her job on Twitter
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FLEXIBLE WORKING
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FLEXIBLE WORKING –who can request flexible working?
Employees (not workers) with 26 weeks’ continuous service
Available to employees looking after children 16 or under (18 if disabled)
Available to employees looking after an adult (over 18) in need of care
Not available to agency workers or members of armed forces
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FLEXIBLE WORKING – what can they request?
To care for the child or, if they are a carer of an adult, for that dependant:
A change to the hours they work
A change to the times when they are required to work
To work from a different location (for example, from home)
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FLEXIBLE WORKING – making a request
• Within 28 days of receiving a request, employer makes arrangements to meet
• Within 14 days of meeting, employer writes agreeing or rejecting request
• Specified grounds for rejection
• Employee can appeal within 14 days
• After another 14 days, employer must give final decision
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FLEXIBLE WORKING – employee wants to complain
Employer failed to follow procedure
Employer’s reason for refusal wasn’t one of the prescribed reasons
Decision to reject was based on incorrect facts
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FLEXIBLE WORKING – what next?
Right to request flexible working being extended to parents of children under 18 from April 2011
Government has also said it will consult later this year on extending the right to all employees
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SICKNESS ABSENCE
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SICKNESS ABSENCE - general
Deal differently with short-term absences (conduct) as opposed to long-term (capability)
Need policy that looks at when to discipline for absence; how often you make contact with staff when off sick, etc
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SICKNESS ABSENCE – short-term absence
If sick on series of individual days, investigate for pattern
Interview informally – give timescale for improvement and explain consequences
If no improvement, interview formally and may need to give warning
Make sure employee not suffering from underlying medical problem
If condition unlikely to improve, treat as long-term illness
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SICKNESS ABSENCE – long-term absence
Disability discrimination provisions of Equality Act may apply
If not and you dismiss, dismissal may still be fair as long as you: -
Discover true medical condition Consider alternative employment Consult with the person
Get consent to see individual’s medical recordsAccess to Medical Reports Act 1988Alternative employmentReasonable adjustments
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SICKNESS ABSENCE – long-term absence (continued)
Warning someone with sickness certificates not appropriate
Consult regularly
Stringer and Ors v HMRC
Pay in lieu of notice
Allow employee to appeal against decision to dismiss
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BANK AND PUBLIC HOLIDAYS
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BANK & PUBLIC HOLIDAYS - introduction
Workers not entitled by law to time off work on bank holidays
Currently 8 bank holidays per year in England and Wales, plus additional one this year to celebrate royal wedding on 29 April
Difference between statutory and contractual entitlement
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BANK & PUBLIC HOLIDAYS – statutory holiday entitlement
Full-time workers entitled under WTR to 28 days’ paid holiday per year
Up to the employer to decide whether the 8 bank holidays count
If given time off on bank holidays, no need for enhanced rate (unless contract/collective agreement states something different)
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BANK & PUBLIC HOLIDAYS – contractual entitlement
Can offer more generous holiday entitlement than under the WTR
Can also decide whether bank holidays are to be included within entitlement
Contract should stipulate rate that employees entitled to be paid for bank holidays
Note effect of custom and practise
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BANK & PUBLIC HOLIDAYS – contractual entitlement
ECJ decision Gomez v Continental Industrias del Caucho
ECJ agreed she was entitled to take her annual leave after usual summer shutdown
May mean that women have right to substitute leave for bank holidays they cannot take during their maternity leave in certain circumstances
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EQUALITY ACT OVERVIEW
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EQUALITY ACT OVERVIEW - general
Legal framework for discrimination law in England, Scotland and Wales
Covers discrimination for nine “protected characteristics”
Applies to all employers and anyone providing a service or exercising public function
Covers all job applicants, employees, workers (including some agency workers)
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EQUALITY ACT OVERVIEW – discrimination and harassment
Associative and perceptive direct discrimination (n/a to pregnancy and maternity)
Indirect discrimination n/a to pregnancy and maternity
Discrimination arising from disability
Three different types of harassment
N/a to protected characteristics of pregnancy and maternity and marriage and civil partnerships
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EQUALITY ACT OVERVIEW – pay and public sector equality duty
Claimants can rely on hypothetical comparator if evidence of direct discrimination
“Gagging clauses” outlawed
Public sector equality duty
General duty to have “due regard” to combating discrimination
Specific duties to publish information and prepare and publish equality objectives
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EQUALITY ACT OVERVIEW – positive action and health-related checks
Can treat someone with protected characteristic more favourably in recruitment and promotion
Employers must not ask about a job applicant’s health before offering them work, except in certain circumstances
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NEW LEGISLATION
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NEW LEGISLATION - April 2011
3 APRIL 2011
Additional paternity leave regulations become effective
Increase in rates of statutory maternity, paternity and adoption pay
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NEW LEGISLATION - April 2011
6 APRIL 2011
Public sector equality duty introducedPositive action introducedRight to request time off for training extendedRight to request flexible working extendedDefault retirement age abolished