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.