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JANUARY 2010

Maternity Leave and Pay

In October 2008, the European Commission published proposals to amend the rights of pregnant workers.  These included:

• extending compulsory maternity leave from 2 to 6 weeks.
• changing the start date: women currently cannot start leave prior to the 11th week before expected date of birth.
  

Government consultation on these proposals is underway.  Implementation of any such proposals is unlikely to take place until 2011 at the earliest.

Paternity Leave

The government is consulting on regulation to increase paternity leave and pay.  Currently new fathers, who meet the statutory requirements, can take either one week of paternity leave or 2 consecutive weeks of paternity leave during the period commencing with the child’s birth.  He will be paid statutory paternity pay of £123.06 per week or 90% of his normal pay, which ever sum is the lesser.

In respect of babies due on or after 3 April 2011, fathers or co-adopters will be able to take up to 26 weeks paternity leave once the mother (or adopter) has returned to work.  The leave can start no earlier than 20 weeks after the birth (or placement) of the child.  Additional statutory paternity pay may be paid for the period which represents the balance of the woman’s maternity pay period, at the same rate as statutory maternity pay.

The Equality Bill

After 4 years in the making, the government plans to pass this Bill before the next general election, and it is intended to come into force in October 2010.  It will harmonise and strengthen existing anti-discrimination legislation concerning sex, race, disability, sexual orientation, religion or belief and age, adopting a unified approach where possible.

Right To Request Time Off For Training

Consultation has been completed on the creation of new rights to request time away form work to undertake relevant training once the employee has 26 weeks continuous employment.  The procedure for making the request will follow that used for flexible working.  There will be a requirement that the training should improve business performance and productivity.  The employer will be entitled to refuse requests for good business reasons.  The right is expected to be introduced in 2010.

Pensions Act 2008

This act received royal assent in November 2008, so you may think this has nothing to do with forthcoming developments.  However, it does contain significant reforms that are not due to come in until 2012.

In 2012, UK employers will be required to automatically enrol “jobholders” into new “personal accounts schemes” or their own qualifying pension scheme.  This will cover a wider range of worker than employees alone, for example, it is likely to cover agency workers.  Job holders will be free to opt out of membership if they wish.  Employer will be required to make minimum pension contributions for job holders which will obviously vary depending on whether the employer operates money purchase or defined benefit schemes.  The current stakeholder pension requirements will be abolished when the new legislation comes into effect.

The Agency Workers Directive (“AWD”)

After a long debate on the need for protection for agency workers, which commenced in 1995, the AWD was finally published on 5 December 2008.  The government’s stated aim is to pass the regulations implementing the AWD by April 2010 and for the new law to be brought into force on 1 October 2011.

• The major new rights and obligations that the Regulations will impose are:firstly, the provision of the same “basic working and employment conditions” to an agency worker after 12 weeks on assignment, as they would receive if they were recruited directly into the job by the hirer at the beginning of the 12 week qualifying period.

Note that:

• in this context, an “agency worker” is a worker supplied by a temporary work agency to work for and under the direction of a hirer, who is employed (or otherwise engaged) by the agency and not performing work or services for the hirer on the basis that they are a client or customer of any profession or business undertaking that the worker is carrying on.
• the definition of “basic working and employment conditions will be those terms relating to pay, duration of working time, length of night work, rest periods, rest breaks and annual leave, ordinarily including in the hirers employees contracts (whether by collective agreement or otherwise).  “Pay” is defined in the draft regulations as any sums payable in connection with employment, including any fee, bonus, commission, holiday pay whether payable under contract or otherwise but also excluding a specific list of items which includes: the monetary value attaching to any payment of benefit in kind furnished by the hirer to its employees; occupational sick pay, any payment by way of pension, non-statutory pay in respect of maternity, paternity or adoption leave, redundancy pay, payments or rewards under financial participation schemes (e.g. share or share option schemes, profit share schemes, schemes which offer employees to acquire a stake in the ownership of an organisation), performance related bonus, pay for time off due to union duties, guarantee payments, and loans or salary advances.
• in order to determine what the agency worker would receive in basic working and employment conditions if hired directly by the end user at the outset, the draft Regulations require comparison with an actual existing employee who is (i) based at the same establishment and (ii) engaged in the same or broadly similar work having regard, where relevant to whether they have a similar level of qualification and skills.  Hypothetical comparators will not be used.
• Agency workers will have the right during an assignment (i.e. from day 1) to be treated no less favourably than a comparable employee in relation to access to canteen or other similar facilities, access to childcare facilities, and the provision of transport services.
• Agency workers will have the right from day one to be given information on and to apply for permanent vacancies in the end user’s business.

Liability

Who is liable if a worker is not provided with rights bestowed by the draft Regulations?

If the worker is not provided with equal treatment as to “basic working and employment conditions” after completing their 12 week qualifying period, then the agency will be primarily liable.  However, if the agency can show that it took reasonable steps to ascertain what equal treatment should be afforded by requesting relevant information from the hirer and when it received such information it acted reasonable in determining what basic working and employment conditions should be given after the qualifying period, it will have a defence to the claim.

The hirer could then be liable to the extent that it was responsible for the failure to provide equal treatment, for example, by not giving the agency correct information about its working and employment conditions.

It is also possible for liability to be apportioned partly between the hirer and the agency if the Tribunal believes that both are partially responsible for the failure.

The hirer will be liable for any failure to provide equality of access to canteen, childcare or transport facilities, or equality of access to internal job vacancies and job applications for agency workers.

More analysis will follow once the regulations are published.

Helen Wyatt
Partner

If you would like any further information about the issues raised in this article please contact Helen Wyatt (hwyatt@gdlaw.co.uk),or any other member of Goodman Derrick LLP's employment team on 0207 404 0606.

This is a guide for general information and interest only and should not be relied upon as providing specific legal advice.