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HR News Round-up 

2nd August 2012 
 
In this Round-up: - 
 
Equality and Discrimination 
"Use it or Lose It" ~ Holiday Entitlement 
 
 
Enterprise and Regulatory Reform Bill 
 
There has been a further announcement in respect of the above Bill; with a proposed change to the imposition of a penalty on Employers who lose a claim in tribunal. Previously it had been suggested that this would be an automatic penalty, but it has now been revised and will be discretionary. 
 
Employers likely to be penalised are those who breach any of the worker’s rights and where the breach has one or more ‘aggravating feature’; which has also now been more clearly defined as being where the: - 
Action has been committed deliberately or with malice 
Employer has a dedicated Human Resources Team 
Employer has repeatedly breached the employment right concerned. 
 
Employment Tribunal Reforms 
 
Following reports earlier in the summer of a fall in both the number of tribunal claims and individual cases, the Ministry of Justice has just released details for the charging structure that it is planning to introduce from summer 2013. Between 1st April 2011 and 31st March 2012, there were a total of 186,300 recorded claims, a fall of 15% on the previous years, with single claims falling by 2% and multiple claims falling by 19%. Within the same report; there were more cases received than cases disposed of during 2011/12. 75% of single claims were disposed of within 32 weeks or less, but for the same proportion of multiple claims to be disposed of, takes 3 – 4 years. 
 
Why are these figures relevant? Well, the rationale for the planned charging structure for Employment Tribunal claims to be introduced in 2013, is to bring down the number of tribunal claims and perhaps it is it’s impending arrival that is having an early impact on the desire of individuals to submit claims... We can only speculate on this at this stage... 
 
Employment Tribunal Charging Structure 
There is currently no fee payable by individuals wishing to pursue a claim through an Employment Tribunal, the full cost is covered by public funds i.e. the tax-payer; this currently costs the Country £84m each year, but this is about to change, with the introduction of a fee structure which will see some of the costs covered by the individual pursuing the claim. The charging structure, just announced by the Ministry of Justice, will see a range of fees for differing levels of claim, as outlined below: - 
For claims which are considered to be straightforward and for which there are specific sums due; i.e. unpaid wages, holiday or redundancy pay, the initial fee to issue the claim will be £160, with a further fee of £230 payable if the claim progresses to tribunal. This latter amount will become payable around 4-weeks prior to the date of the hearing. 
For claims which are not considered to be straightforward; e.g. unfair dismissal, equal pay, discrimination etc., there will be an issue fee of £250 and the fee for progressing to tribunal will be £950. 
An alternative solution that will be offered to Applicants will be for a Judge to provide mediation and the fee for this service will be set at £600. 
For cases which progress to an Employment Appeals Tribunal; further charges of a £400 issue fee and £1200 hearing fee will become applicable. 
A further fee of £60 will be payable for an application to dismiss following settlement. 
 
It is important to note that once the hearing fee becomes payable, it will not be refunded if a settlement is subsequently reached in the period between the payment of this fee and the hearing date. Also included within the charging structure will be provisions that will see unsuccessful parties within a tribunal repaying any fees paid out by the successful party and financial assistance for those on low incomes (as yet to be consulted on).  
 
Checking an Individual’s right to work in the United Kingdom 
 
Employers who employ individuals who do not have a right to work in the United Kingdom are potentially risking a £10,000 fine for each illegal worker and/or criminal prosecution which, if convicted, may result in a 2-year prison sentence and/or an unlimited fine. The UK Border Agency has reissued it’s guidance on employing individuals legally and included within this is four key things to ensure that you are employing people legally and which may provide you with a ‘statutory excuse’ i.e. a legal defence if you are found to be employing someone illegally. 
 
These four key things are: - 
 
You will only have an excuse if you correctly carry out checks on acceptable documents before a person starts working for you by following the 3 step process (found in the full guidance document). 
If a person has a time limit on their right to work, you will only keep your excuse if you carry out repeat document checks at least once every 12 months. 
If a person has a restriction on the type of work they can do and/or the amount of hours they can work, then you should make sure that you do not employ them in breach of these work conditions. 
You will not have an excuse if you knowingly employ an illegal migrant worker, regardless of any document checks you carry out before or during a person’s employment. 
 
The full document can be downloaded from the UK Border Agency website. 
 
Protection of Freedoms Act 2012 
 
The long-awaited additional guidance on the changes that will be made to the Vetting & Barring Scheme under the Protection of Freedoms Act 2012 has now been published by the Government.  
 
In summary:- 
The major changes to be introduced in September 2012 are: - 
New definition of regulated activity; which will focus on work which is ‘close and unsupervised’ with vulnerable groups including children and will reduce the numbers liable to be affected from close to 9 million down to around 5 million 
Repeal of controlled activity; which covered those who had less and/or intermittent contact with vulnerable groups 
Repeal of registration and continuous monitoring 
Repeal of additional information; this removes instances where the Police may disclose additional sensitive information to the Organisation (not the applicant themselves) outside of the enhanced CRB check. However, the Police may still exercise common law powers to disclose this information where it is necessary to do so. 
Minimum age (16) at which someone can apply for a CRB check 
More rigorous ‘relevancy’ test for when the police release information held locally on an enhanced CRB check. At the moment; the Police include information if it ‘might be relevant’ and ought to be disclosed, however, from September, they will include it if they ‘reasonably believe the information to be relevant’ and consider that it ought to be disclosed. 
 
The following will not be changing in September 2012: - 
You must make appropriate referrals to the ISA 
You must not engage in regulated activity someone whom you know has been barred by the ISA. 
Everybody within the pre-September definition of regulated activity will remain eligible for enhanced CRB checks, whether or not they fall within the post-September definition of regulated activity. 
 
These changes will be implemented from 10th September 2012 and will apply to England and Wales only. Separate guidance covers Northern Ireland. In addition, in December 2012, the CRB and Independent Safeguarding Authority will merge into a single body and will be known as the ‘Disclosure and Barring Service’. 
 
From 2013; individuals will be able to register just the once for a CRB check, which will then be automatically updated and available for Employers to check. The full guidance leaflet can be downloaded as a .PDF file from the Home Office website. 
 
Case Round-up 
 
Equality and Discrimination 
 
In a somewhat unique case, a black footballer has become the first to successfully sue a football club for racial discrimination and unfair dismissal. The footballer was dismissed by Gillingham FC for alleged gross misconduct last year, but argued that his employer had treated him and other black players less favourably than white colleagues. The player claimed that; following an injury sustained whilst playing, his employer refused to pay for private medical treatment – a benefit that was offered to white players. He also claimed that he and other black players were forced to drive to the football ground in treacherous heavy snow or face a fine, whilst other white players had not been required to attend. Following this incident, the footballer had angrily confronted the club manager and accused him of being ‘racially intolerant’ and the footballer was subsequently dismissed following a disciplinary hearing, for aggressive conduct and racism. 
 
No details of any settlement have been made public as yet and Gillingham FC are disputing the outcome and taking advice on whether to launch an appeal. 
 
“Use it or Lose it” Claim Settled 
The Court of Appeal has provided employers with some useful guidance on the issue of ‘carry over’ of annual leave when an employee has been unable to take their entitlement in the year of accrual as a result of long-term sickness absence. This has come from the case of NHS Leeds v. Larner. 
 
In summary, employers should: - 
Allow workers to carry over unused statutory holiday entitlement where they have been prevented from taking it as a result of long-term sickness absence 
If the employee’s employment is ended prior to them being able to take the carried over holiday entitlement, then they should receive a payment in lieu of notice for this untaken holiday entitlement. 
The carry-over of holiday entitlement should be automatic and it is not necessary for the employee to have either requested the holiday entitlement or to carry it over to the next holiday-year. 
 
What is not yet fully clarified is whether this will apply to the additional 1.6 weeks holiday entitlement that is provided for within the Working Time Regulations; the UK’s interpretation of the Working Time Directive. The statutory holiday entitlement under the Directive is 4 weeks as opposed to 5.6 weeks within the UK. It is anticipated that further clarification on this final point will be available soon. 
 
The Larner case does not cover the extent to which the carry-over period for holiday entitlement can be limited i.e. whether an employer can impose a time-limit by when the carried-over holiday entitlement should be taken. However, the judgement in the case does reiterate that this carry-over period should be significantly longer than the relevant annual leave reference period. 
 
Health & Safety Update 
 
Recently released statistics show that there has been a fall of 2% in the annual number of workplace deaths, with 173 such deaths reported between April 2011 and March 2012. Based on the number of workers killed per 100,000 employees, the Health & Safety Executive has identified the following industry sectors as being the most dangerous to work in: - 
 
Agriculture – 9.7 
Waste & recycling – 4.1 
Construction – 2.3 
 
It should be noted that all 3 sectors have seen significant improvements in safety in recent years and the level of fatalities in these areas is considerably better than in other European countries, including; France, Germany, Spain and Italy. 
 
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