Statutory Parental Bereavement Leave (SPBL)

An employee (regardless of their length of service) is entitled to take two weeks of SPBL - if their child dies on or after 6 April 2020. The employee must be a bereaved parent for the purposes of SPBL, e.g. an adoptive parent, a parent who has a child via surrogacy or a parent’s partner. A child is a person under the age of 18 or a stillborn child after 24 weeks of pregnancy.

An employee is entitled to take SPBL for each child if more than one child has died.

How Can SPBL be Taken?

An employee must take their SPBL within the period of 56 weeks beginning with the date of the child’s death. An employee can take SPBL as either a single block of two weeks or as two separate blocks of one week. A week is any period of seven days.

Notification Requirements for SPBL

An employee can give verbal or written notification to their employer about:

1. The date of the child’s death.
2. The start date of any period of SPBL and
3. Their intention to take one or two weeks of SPBL.

An employee can also give a verbal or written notification to their employer about cancelling their SPBL.

When Must the Notice be Given?

The length of notice required for SPBL will vary depending on the time that an employee is starting their SPBL. But the employee must take their SPBL within the period of 56 weeks beginning with the date of the child’s death.

Notice for SPBL Starting Within the Period of 56 days

This section applies where SPBL starts within the period of 56 days beginning with the date of the child’s death.

An employee who is starting their SPBL must give notice to their employer - before the time that they are due to start work on the first day of their SPBL.  Where it is not reasonably practicable to do so – the employee must do so as soon as reasonably practicable. For example, if an employee is due to start work at 9 am on 4 May 2020 - they can give notice at 8.45 am on 4 May 2020 to start their SPBL on the same day.

If an employee gives notice to their employer to start their SPBL on the same day on which they gave the notice. But the employee is already at work on that day – the SPBL period will start on the next day.

An employee who is cancelling their SPBL must give notice to their employer – before the time that they are due to start work on the first day of their SPBL. For example, if the start date of SPBL is 4 May 2020. And the employee would have been due to start work at 9 am on 4 May 2020 - if they were not taking SPBL. The employee can cancel their SPBL at 8.45 am on 4 May 2020. 

An employee cannot cancel any week of SPBL which has already started.

Notice for SPBL Starting After the Period of 56 days

This section applies where SPBL starts after the period of 56 days beginning with the date of the child’s death.

An employee who is starting or cancelling their SPBL must give at least one week’s notice to their employer before the start of the SPBL period.

An employee cannot cancel any week of SPBL which has already started.

Terms and Conditions of Employment During SPBL

During the SPBL period, an employee has the statutory right to continue to benefit from all of their terms and conditions of employment with the exception of remuneration.

Right to Return to Work After SPBL

An employee who returns to work after SPBL is entitled to return to the job in which they were employed before they took SPBL. The employee’s seniority, pension and similar rights must be as they would have been if they had not taken SPBL. And the employee must not return to work on less favourable terms and conditions of employment due to taking SPBL.

Employment Protection Rights

An employee (regardless of their length of service) will be unfairly dismissed - if the reason for their dismissal (or their selection for redundancy) is - because they took SPBL, sought to take SPBL, made use of the benefits of SPBL or the employer believed that the employee was likely to take SPBL. An employee also has the right not to be subjected to any detriment by their employer due to one of the same reasons.

Source: The Parental Bereavement (Leave and Pay) Act 2018 and the Parental Bereavement Leave Regulations 2020.

The regulations about Statutory Parental Bereavement Pay are:

The Statutory Parental Bereavement Pay (General) Regulations 2020
The Statutory Parental Bereavement Pay (Administration) Regulations 2020
The Statutory Parental Bereavement Pay (Persons Abroad and Mariners) Regulations 2020

Code of Practice on Preventing Illegal Working

An updated Code of Practice on preventing illegal working came into force on 28 January 2019. The main change is that an employer may rely on the Home Office’s online service to prove that it properly checked a person’s right to work in the UK (see pages 18 and 19 of the updated Code of Practice).

Source: Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018 (SI 2018/1340).

Correction

The first sentence in the article entitled “Written Statement of Employment” (dated 19 December 2018) should read –

“A written statement of employment (WSE) must be given to an employee or a worker NOT LATER THAN the start of their employment . . .”

Written Statement of Employment

(References to the ERA 1996 means the Employment Rights Act 1996.)

A written statement of employment (WSE) must be given to an employee or a worker before the start of their employment – if it started on or after 6 April 2020 – regardless of the length of their employment. And the following additional terms and conditions of employment must be included in the WSE.

• The days on which the employee or worker is required to work.

• Whether or not the working hours or days may be variable; and if they may be variable - how do they vary; or how that variation is to be determined.

• Paid leave (e.g. maternity or paternity leave).

• Benefits (e.g. vouchers or discounted meals).

• Any probationary period, including any conditions and its duration.

• Any training entitlement provided by the employer. Terms and conditions about the training may be provided in some other document which is reasonably accessible to the worker (amended section 2(2) of the ERA 1996). And those terms and conditions may be given in instalments - but not later than two months after the start of the employee's or worker’s employment – even where the employment ends before that date (amended section 2(4) of the ERA 1996). See Stefanko v Maritime Hotel Ltd (EAT/0024/18).

• Any part of that training entitlement which the employer requires the worker to complete.

• Any other training which the employer requires the worker to complete where the employer will not pay the cost of the training (section 1(4)(n) of the ERA 1996).

Where applicable, the WSE must indicate that a term or condition does not exist, e.g. “The employer will pay the cost of any training that you are required to complete” in response to section 1(4)(n) of the ERA 1996 (see the final bullet point above). A proactive employer may wish to include the above additional terms and conditions of employment in its WSE before 6 April 2020.

Average Statutory Holiday Pay

From 6 April 2020, the reference period for calculating average statutory holiday pay will be increased from 12 weeks to 52 weeks (see page 33 of the Good Work Plan).

Source: The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations (SI 2018/1378).

Childcare Voucher Scheme was not discriminatory

In Peninsula Business Services Ltd v Donaldson (EAT/0249/15), Ms Donaldson was a pregnant employee who was entitled to statutory maternity pay (SMP). She refused to join her employer’s salary sacrifice scheme (SSS) because it provided that her entitlement to childcare vouchers would be suspended during her maternity leave. Ms Donaldson claimed that the SSS amounted to unlawful sex discrimination but the EAT disagreed.

The EAT held that the provision of childcare vouchers under the SSS was a part of an employee’s remuneration under reg. 9 of the Maternity and Parental Leave Regulations 1999. And therefore, the employer did not have to provide childcare vouchers to Ms Donaldson during her maternity leave.

The SSS provided the means to make a deduction from Ms Donaldson's salary to pay for childcare vouchers. But the vouchers were not a benefit in kind that was additional to her salary. And although tax legislation treated childcare vouchers as a non-cash benefit – the provision of the vouchers under the SSS remained to be a part of the Ms Donaldson's remuneration.

The EAT said that Parliament did not intend that an employer must continue providing childcare vouchers when an employee was only receiving SMP and there was no salary from which a deduction could be made to pay for the vouchers.

The EAT also held that sections 18 (Pregnancy and maternity discrimination: work cases) or 19 (Indirect discrimination) of the Equality Act 2010 did not apply to Ms Donaldson's claim of unlawful sex discrimination.

Tribunal awards will increase from 6 April 2016

From 6 April 2016, tribunal awards will be increased by the Employment Rights (Increase of Limits) Order 2016.

The main increases are:

• The maximum amount of a week’s pay will increase from £475 to £479.
• The maximum compensatory award for unfair dismissal will increase from £78,335 to £78,962.

The daily limit on a guarantee payment remains unchanged at £26.00.

Tribunal awards will increase from 6 April 2015

From 6 April 2015, tribunal awards will be increased by the Employment Rights (Increase of Limits) Order 2015.

The main increases are:

• The maximum amount of a week’s pay will increase from £464 to £475.
• The maximum compensatory award for unfair dismissal will increase from £76,574 to £78,335.

• The daily limit on a guarantee payment will increase from £25.00 to £26.00.

Guides on shared parental leave and pay

• Shared parental leave and pay: employers' technical guide to shared parental leave and pay is available on the GOV.UK website.
• Shared parental leave and pay is available on the ACAS website.
• Shared Parental Leave and Pay: an employer guide is available on the GOV.UK website.

Time off for ante-natal appointments

From 1 October 2014, an employee or agency worker (e.g. a father) can take time off from work to attend two ante-natal appointments with a pregnant woman (e.g. the mother of his expected child). The employee or agency worker can take up to 6 ½ hours off from work for each appointment.

However, certain agency workers are not entitled to take time off from work for ante-natal appointments, e.g. an agency worker who has not worked in the same role with the same hirer for 12 continuous weeks.

For further information, see section 127(1) of the Children and Families Act 2014.

Flexible working extended to all employees

From 30 June 2014, the right to request flexible working (FW) will be extended to all employees who have been continuously employed for a period of at least 26 weeks.

A FW request will be taken as being made on the day on which the request was sent electronically to an employer - where the employer has an electronic form for FW requests - and has specified an electronic address to which the completed form can be sent. A FW request will be taken as being made on the day of delivery if the request was delivered personally.

The statutory procedure for considering a FW request is expected to be abolished on 30 June 2014. However, paragraph 13 of the draft ACAS Code of Practice states that an employer must consider and decide the outcome of a request for FW (including any appeals) - within a three-month period from the receipt of the request - unless the employer and the employee agree to extend the period.

The ACAS is expected to publish a guide and a Code of Practice on considering a request for FW in a reasonable manner.

Source: Flexible Working Regulations 2014 (SI 2014/1398)

ECJ confirms that commission must be included in a salesman’s holiday pay

British Gas employed Mr Lock as a salesman. Mr Lock’s monthly pay consisted of his basic pay and a variable sales commission (SC). Mr Lock only received his basic pay for a period during which he had taken holidays - since he would not have earned a SC during the period.

Mr Lock argued that his holiday pay should include an average SC. The ECJ agreed. The ECJ added that a national court should determine the method of calculating the average SC. (The Advocate General said that Mr Lock’s average SC over the last 12 months appeared to be an appropriate amount that should be included in his holiday pay.)

Lock v British Gas (C-539/12)

Checking a person's right to work in the UK

From 16 May 2014, the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014 will change an employer’s duties in relation to checking a person’s right to work in the UK. The key changes are:

• An employer must keep a record of the date on which it checked a person’s right to work in the UK.
• An employer will no longer be required to copy the front cover of a passport.
• An employer must keep a whole copy of a travel document (except a passport) in a format which cannot be subsequently altered.
• An employer will no longer be required to carry out a “follow up” check - at least once every 12 months - in relation to an employee who has a temporary right to work in the UK. However, an employer must still check the employee’s right to work in the UK when their temporary right has expired.
• Where an employer is reasonably satisfied that the employee has an outstanding application or appeal - in relation to extending their temporary right to work in the UK - the temporary right will be extended by:
• 28 days or
• if earlier, the date on which the Secretary of State informs the employer in writing that the employee no longer has the right to work in the UK.
• An employer must obtain and keep details of the term and vocation dates of a course – if the employee or prospective employee is a student - who has permission to work for a limited number of hours per week during term time.
• The maximum penalty for employing an illegal worker will rise from £10,000 to £20,000 per worker: Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2014.
• An employer who acquires new employees due to a TUPE transfer - will have a grace period of 60 days from the date of the transfer - to check their right to work in the UK: Code of Practice on preventing illegal working (May 2014). The grace period was 28 days before 16 May 2014.

The Home Office has updated its Codes of Practice and guides to reflect the changes to an employer’s duties in relation to checking a person’s right to work in the UK.

Absence Management – can you afford to ignore it?

The Statutory Sick Pay (SSP) Percentage Threshold (Revocations, Transitional and Saving Provisions) (Great Britain and Northern Ireland) Order 2014 confirms that employers can no longer recover SSP for any sickness occurring after the 2013/2014 tax year.

Also note the SSP (Maintenance of Records) (Revocation) Regulations 2014 will come into force on 6 April 2014.

Surrogacy: ECJ clarifies maternity laws

The ECJ has ruled that EU maternity laws do not apply to a woman who had a baby through a surrogate. And an employer’s refusal to grant maternity leave/pay to the woman was not unlawful disability or sex discrimination.

Source: CD v ST (C-167/12) & Z v A Government Department and the Board of Management of a Community School (C-363/12).

Rehabilitation of Offenders

From 10 March 2014, the rehabilitation periods for criminal convictions will be reduced: Chapter 8 and Sch. 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

For example, a job applicant must disclosure their criminal record for 7 years from the date of conviction - if they have been sentenced to prison for up to 6 months. However, from 10 March 2014, the job applicant would only have to disclosure their criminal record for 2 years starting from the end of the sentence. The new rehabilitation periods will apply to a conviction/caution before, on, or after 10 March 2014: s. 141(1) of the Act.

A table containing the current and new rehabilitation periods can be found at the Unlock website.

Source: The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 9, Saving Provision and Specification of Commencement Date) Order 2014.

A job applicant must always disclose a spent conviction/caution if they are applying for a certain job (e.g. a nurse). But they should not disclose a protected conviction/caution.

Tribunal awards increase from 6 April 2014

From 6 April 2014, tribunal awards will be increased by the Employment Rights (Increase of Limits) Order 2014.

The main increases are:

• The maximum amount of a week’s pay will increase from £450 to £464.
• The maximum compensatory award for unfair dismissal will increase from £74,200 to £76,574.

• The daily limit on a guarantee payment will increase from £24.20 to £25.00.

From 6 April 2014, a tribunal may impose a penalty of between £100 and £5,000 on an employer - if the employer has breached the claimant's rights - and the breach has one or more "aggravating features".

Should commission be included in a salesman’s holiday pay?

British Gas employed Mr Lock as a salesman. Mr Lock’s monthly pay consisted of his basic pay and a variable sales commission (SC). Mr Lock only received his basic pay for a period during which he had taken holidays - since he would not have earned a SC during the period.

Mr Lock argued that his holiday pay should include an average SC. The Advocate General (AG) agreed. The AG said that the SC was intrinsically linked to the performance of the salesman’s job duties [see paras. 31 – 34]. The AG added that Mr Lock’s average SC over the last 12 months appeared to be an appropriate amount that should be included in his holiday pay [see para. 48].

The decision of the ECJ is awaited. The ECJ usually agrees with the opinion of the AG.

Lock v British Gas (C-539/12)

Surrogacy

In CD v ST (C-167/12), the Advocate General (AG) ruled that EU maternity laws applied to a woman who had a baby through a surrogate - regardless of whether or not the woman breastfeed the baby. Therefore, the woman is entitled to at least two weeks’ maternity leave and the remainder of the maternity leave not taken by the surrogate.

However, in Z v A Government Department and the Board of Management of a Community School (C-363/12), the AG disagreed [paras. 48 – 52] and ruled that the woman is not entitled to maternity leave. The AG added that the employer’s refusal to grant maternity leave to the woman was not unlawful disability discrimination – because her inability to carry a pregnancy was not a disability that prevented her from having a professional life.

In both cases, the Advocate Generals ruled that the employers’ refusal to grant maternity leave to the women was not unlawful sex discrimination.

The decision of the ECJ is awaited.

In February 2013, the Government proposed to extend statutory adoption leave and pay: and shared parental leave to a parent who had a baby through a surrogate – if the parent satisfies the criteria relating to parental orders under the Human Embryology and Fertilisation Act 2008.

TUPE and Collective Agreements

The ECJ has ruled that a private-sector transferee is not legally obliged to comply with a change (e.g. a pay increase) made to the terms of employees transferred from the public sector – if the change was agreed by a public-sector negotiating body - after the TUPE transfer had taken place – and it was not possible for the transferee to participate in the negotiations.

Source: Alemo-Herron v Parkwood Leisure Ltd (C-426/11).

Follow Tony Trotman on Twitter for more employment law updates, e.g. new employment status of employee shareholders coming into force on 1 September 2013.

What is a protected conviction/caution?

If an employer asks a job applicant about their criminal record – the job applicant must disclose any spent convictions/cautions if they are applying for a certain job (e.g. a nurse). However, from 29 May 2013, a job applicant will not be required to disclose a protected conviction/caution. Hence, a job application form should notify a job applicant that they are not required to disclose a protected conviction/caution.

Protected conviction

A protected conviction is a conviction where:

• Five years and six months or more have passed since the date of the conviction if the job applicant was under 18 years at the time of the conviction, or
• 11 years or more have passed since the date of the conviction if the job applicant was 18 years or over at the time of the conviction, and
• The job applicant was not convicted for an offence listed in art. 2A(5) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (e.g. cruelty to children).
• The job applicant did not serve a custodial sentence or sentence of service detention in respect of the conviction.
• The job applicant has not been convicted of any other offence at any time.

Protected caution

A protected caution is a caution where:

• Two years or more have passed since the date on which the caution was given if the job applicant was under 18 years at the time the caution was given, or
• Six years or more have passed since the date on which the caution was given if the job applicant was 18 years or over at the time the caution was given, and
• The caution was not given for an offence listed in art. 2A(5) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (e.g. cruelty to children).

Source: Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 [SI 2013/1198].

Comment

The amendments to the the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 is the Government's response to the Court of Appeal's judgment in T v Chief Constable of Greater Manchester [2013] EWCA Civ 15.

On 27 March 2013, the Disclosure and Barring Service announced that a Criminal Record Certificate will not disclose a protected conviction/caution.

Pay protection for trainee doctors

A part-time doctor who moved to a full-time training post in a lower grade was entitled to be paid at the full-time equivalent of their pay in their previous post: Barts and the London NHS Trust v Verma [2013] UKSC 20.