EC plans to extend compulsory maternity leave to 6 weeks

A draft EU Directive, proposes increasing compulsory maternity leave from 2 and 4 weeks for office and factory workers respectively to 6 weeks.

Other key proposals include: increasing maternity pay, giving a longer time off for multiple births and commencing maternity leave earlier than the current 11 weeks before the expected week of childbirth.

If approved, the Government fears that this will increase pressure on struggling businesses and the Treasury’s social security bill will increase. The Government also believes that flexibility for women to manage their career and raising a family could be restricted.

It will be interesting to see whether these draft proposals are approved by the EC.



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New ACAS Code of Practice on Disciplinary Procedures Issued

The abolition of the current statutory disciplinary and grievance procedures moved a step closer this week with ACAS’ Code being approved by the Secretary of State for Business, Enterprise and Regulatory Reform.

Assuming Parliament now rubber stamps it, the Code will come into force in April 2009.
The Code is a diluted version of what’s currently in place and reverts back in some ways to the position pre the current statutory procedures. The main features of the code include; the fact that a claim can be brought at the Employment Tribunal without a grievance being raised in the first instance, that a failure to follow the Code will not result in a finding of automatically unfair dismissal and that an unreasonable failure to comply with it could result in an award of compensation being increased by up to 25%.

The Code is intended to promote standards of reasonable behavior and will be considered as best practice. We now await Parliament’s final approval of it.


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Minimum Rest Breaks for Employees

A recent Employment Appeal Tribunal has confirmed the following in relation to rest breaks under the Working Time Regulations 1998:-

1) An employee is entitled to one rest break after working 6 hours but he is not entitled to any further breaks for time worked in excess of 6 hours.

2) If a break cannot be taken at the usual time, the employer should offer them an alternative compensatory rest break. Only allowing the employee to rest between shifts is not sufficient.

3) A claim in relation to rest breaks can only be bought for the three month period before presenting the claim (six months if taken through a grievance procedure).

The decision does confirm to a large extent what we already anticipated would be the case but it is a useful decision nonetheless.


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When redundancy can be a silver lining

Being made redundant can come as a huge shock and trauma for most, but it can also be a cloud with a silver lining.

Having advised employers on making redundancies and employees on being made redundant, I have seen first hand how proper advice can have a significant impact on the process.
For many employers it can be a very difficult decision to make in the first instance. Then, there are the legal requirements to grapple with to ensure the employer goes through the correct process, acting fairly and responsibly throughout. By following the correct procedure, not only can an employer limit their exposure to unfair dismissal claims but it can also help make the whole process less painful for the affected employees too.

In my experience employees will inevitably be shocked unless the writing was already on the wall and it was obvious the company was going to have to make redundancies. Employees who are selected will inevitably ask "why me?", a normal human reaction.

Employers who take advice and follow proper procedures can manage this process objectively and in a humane way making it more palatable for all those involved. Some employers will be in a position to offer outplacement counselling and career mentoring, the benefit of which the employee can use to consider their next career move as well as bolstering their confidence.

Many employees have made it clear to me that in fact redundancy was the best thing to happen to them. Apathy had led to them remaining in a role and a place where they were unhappy. Having the decision forced on them to move on by being selected for redundancy had a positive outcome.

One example is a client who was 63 years old when he was made redundant. He had considered becoming a self employed consultant before and unable to find a new job he set up a consultancy. Six months later he wrote to me telling me it was the best thing to happen to him and his business was thriving. He wished he had done it ten years earlier.

While good communication as ever is fundamental, by understanding the redundancy process and legal requirements an employer can limit their exposure to claims. Employees should not then be left feeling unfairly treated and may look back at the outcome and see a cloud with a silver lining.

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What mothers need to know about returning to work

I read an article in “Psychologies” magazine recently on what mothers need to know about teenage sons. Very useful it was too. However it occurred to me with my employer lawyer hat on that mothers could benefit from a similar approach to returning to work. In my experience advising employers and employees, returning to work mothers usually have two main concerns when they are contemplating returning to work;

• Hours of work and childcare arrangements, and


• Will they be able to return to the same work/position?
  

There are now a number of strands of legislation which are designed to deal with both those concerns.

If you are returning to work before or after Ordinary Maternity Leave (OML) (the first 26 weeks of maternity leave) then you have a right to return to the same job - with any enhancements to terms and conditions that took place while you were off, unless there is a redundancy situation. If there is a redundancy situation then you have an entitlement to be offered any suitable alternative employment ahead of any other employees. This is a rare example of lawful positive discrimination in favour of mothers.

If you are returning during or after Additional Maternity Leave (AML) then the position is slightly different. You still retain the right to return to the same job but an employer can argue that it’s not reasonably practicable for you to return to the same post. This could happen if there has been a re-organisation. In that scenario you would still be entitled to return to another job which is both suitable and appropriate.

If you are not allowed to return to the same job (or a similar one if post AML) or not offered suitable alternative employment, then you could bring claims for sex discrimination and automatically unfair dismissal.

Let’s assume though that doesn’t happen and your job is still available but you’ve considered your childcare arrangements and you would prefer to work from home for part of the time and reduce your hours on the days you are at work. What do you do?

The first thing you need to be aware of is that there are two key rights you can rely on in this situation. First of all you have the right to make a request to work flexibly. Secondly you have the right not to be subjected to indirect discrimination in accordance with the Sex Discrimination Act 1975.

Requesting Flexible Working Arrangements

The Employment Act 2002 established the right for a parent to make a written request every 12 months to change their working arrangements. This means you can ask to change the hours, the location or indeed the way you work to enable you to work flexibly. If agreed, the changes would become permanent changes to your terms and conditions of employment.

There is a set procedure and timetable the employer is required to follow in order to consider your request and if necessary your appeal to any rejection. To a large extent you will have to spend more time on this initially as you will have to prepare a business case to justify your request. In other words, explain how your changes could be accommodated.

The process will usually involve a number of meetings and/or conversations with your employer to discuss how it would work. The most common outcome usually involves the employer suggesting a variation on your original request. It is worth having a Plan B in mind therefore if you can, just in case your preferred Plan A is not acceptable.

It is worth bearing in mind you do only have a right to make a request to work flexibly under the Act. Your employer can justify declining your request, after giving it serious consideration, by relying on one of the following reasons to reject it:

• The burden of additional costs.


• Detrimental effect on ability to meet customer demand.


• Inability to re-organise work among existing staff.


• Inability to recruit additional staff.


• Detrimental impact on quality.


• Detrimental impact on performance.


• Insufficiency of work during the periods the employee proposes to work.


• Planned structural changes.

When preparing your request therefore, it is worth trying to cover off these reasons in your business case in the first instance. By doing that it makes it much harder for the employer to lawfully reject the request.

Before you embark on the statutory request route it is worth considering making a voluntary request in the first instance. By doing this you might be able to reach an agreement quickly without having to prepare all the paperwork. If an agreement isn’t reached voluntarily though, you still have the option of making your once a year formal written request, already armed with an insight into the reasons why it could be rejected.

Sex Discrimination

Employers have tended to forget that the right not to be subjected to sex discrimination continues to exist in parallel with the right to request to work flexibly. Even if your employer follows the correct procedure and rejects your request for one of the lawful reasons set out earlier, you may still be able to bring a claim for discrimination.

You could bring a claim for direct discrimination but as a woman you are less likely to succeed as the right to request flexible working applies to men and women. The employer could successfully argue they would have treated a man the same way. However you may have more scope for success with an indirect discrimination claim.

To succeed with an indirect discrimination claim you have to be able to show that the employer by rejecting your request and insisting that the job cannot be carried out on a reduced hours basis is applying a provision, criterion or practice (PCP) which:

• Applies or would apply equally to both sexes; but


• Which puts one sex at a particular disadvantage to the other, and


• Which puts the particular employee at that disadvantage; and


• Which the employer cannot show is justified as a proportionate means of pursuing a legitimate aim.

The application of this test can vary quite widely however and it’s also reliant on the individual facts of each case to ascertain the commercial rationale for the non flexible work condition being applied by the employer, weighed up against its discriminatory effect on the employee.

While the complexity of the law in this area has to be considered, an employer will also usually want to avoid the risk of a discrimination claim. Therefore if you are unsuccessful in the initial stages of making a formal request, it can sometimes be beneficial to remind an employer of their additional obligations under the Sex Discrimination Act in the appeal process.

Summary

Before returning work therefore, it is important that you acquire information about what’s happening in the workplace. Consider using keeping in touch days to maintain this knowledge or do this informally over a coffee/visit to the workplace to catch up. Then prepare well if you have to go down the formal request route. Try to put yourself in the shoes of your employer and prepare a good business case for flexible working that covers off any potential concerns the employer could have. Those are the requests that are difficult to turn down.

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Flexible working consultation

The Government has launched a consultation to extend and overhaul the right to request flexible working. The consultation will cover:

• ways of simplifying the flexible working requests process for businesses;
• ways to raise awareness levels of the right to request flexible working among employees; and
• extending the right to request flexible working to parents with children aged 16 and under (currently it is for parents of children under 6 years old).

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The Heyday Appeal | The Advocate-General gives his opinion

Age Concern’s challenge of the UK Law, which since 2006 has permitted employers to force employees to retire at 65 has been initially rejected by a European Court's Advocate-General. The Advocate-General has recommended that the European Court dismisses Age Concern’s challenge to the lawfulness of employers terminating the employment of employees aged 65 or over on the grounds of retirement.

Age Concern claimed this is discriminatory and that specific categories of conduct to justify a decision should be defined within the regulations. The Advocate-General recommended that specific defined categories are unnecessary and a general justification is legitimate. The opinion from the Advocate-General is not binding but it could influence the European Court judges who are expected to give their ruling on Heyday before the end of the year.


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