With the passing of each year, new employment-related legislation comes into force and, of course, 2010 is no exception. In April a range of new measures – some of which have long been on the horizon – will become law. An overview of the new measures and their potential impact is set out below.
Fit notes
From 6 April 2010, GPs are now required to complete new ‘fit notes’ instead of traditional sick notes when signing employees off work for medical reasons. GPs have two options on the form: to note whether an employee is ‘unfit for work’ or alternatively whether they ‘may be fit for work, taking into account the following advice’. If the latter, the GP must also advise whether there are any adjustments that the employer could make to facilitate the employee’s return. Some suggested adjustments, including ‘phased return to work’, ‘amended duties’, ‘altered hours’ and ‘workplace adaptations’ will appear on the form itself, although this is not intended to be a comprehensive list. GPs do not have the option to deem that an employee is ‘fit for work’ and it is sensible for employers to carry out a risk assessment, in appropriate cases, before an employee returns after a period of sickness absence.
The implementation of fit notes is likely to have a significant impact on employers and guidance from the government is expected to be issued shortly. In practical terms, all HR staff should be made aware of the new fit note regime. On receipt of a fit note, employers should consider the advice of the GP and the adjustments that can be made. If employers choose not to implement the adjustments, they must ensure that the reasons for not doing so are fully recorded and justifiable. It may also be appropriate for employers to update their procedures for managing absence.
Power to pass whistleblowing claims to regulators
On 6 April 2010, employment tribunals were given the power to pass on the specific details of whistleblowing claims to relevant regulators where a claimant has given express consent. This power applies to all tribunal claims submitted on or after that date. To demonstrate express consent, tribunal claim forms will include a box that the claimant must tick if they wish the details of their claim to be passed on.
The change will be of particular concern to regulated employers. It has the potential to significantly increase a claimant’s leverage against an employer prior to issuing a claim. If employers wish to settle a matter before it becomes public and regulators become involved, they may find that they now have a very narrow window in which to do so. On the other hand, once a claim form has been issued and a claimant has indicated that they wish the claim to be passed to the regulator, much of the leverage from publicity of the claim will be lost. Further, once a claimant has asked for details of a claim to be passed to a regulator, an employer may feel obliged to pursue the claim to the tribunal to defeat it. For further details and discussion about this new power, see pp21-24 IHL178.
Time off for training
Employees of employers with more than 250 employees were given the right from 6 April 2010 to request time off for training. The right will be extended to all employees from 6 April 2011.
To be eligible to make the request, an employee must have 26 weeks’ service and the training must be relevant to their work. The right is to make the request only, employees do not have the right to take the time off if an employer refuses (though the refusal must be on prescribed grounds) and any time off will be unpaid. It seems unlikely therefore that the impact of the new right will be significant. However, employers should nevertheless ensure that they deal with requests properly and in accordance with the statutory procedure (which in many respects mirrors the right to request flexible working), as failure to do so will entitle an employee to bring a tribunal claim that could result in an award of up to eight weeks’ pay and an order to reconsider the decision.
Additional paternity leave
On 6 April 2010, new regulations came into force allowing fathers to take additional paternity leave if the mother goes back to work before the end of her maternity leave (provided she does so after the first 20 weeks). The paternity leave will be paid if it occurs during a period when the mother would have been entitled to be paid statutory maternity pay. However, although the regulations are now in force, they will only apply to babies due (or children placed for adoption) on or after 3 April 2011. In the meantime, employers should familiarise themselves with the new entitlement, and consider amending staff handbooks and policies to incorporate the changes.
New limits for statutory payments and tribunal compensation
The flat rate for statutory maternity, paternity and adoption pay increased from the current £123.06 per week to £124.88, on 6 April 2010. Statutory sick pay will remain unchanged at £79.15.
Unusually, the maximum compensatory award for unfair dismissal decreased this year, as a result of a decrease in the retail prices index. For dismissals that have taken affect since 1 February 2010, the maximum compensatory award is £65,300 (down from £66,200). There will be no change in the statutory cap on a week’s pay (used to calculate statutory redundancy pay and basic awards), which will remain at the current level (£380) until February 2011.