Employers must 'be vigilant' over 10 legal pitfalls

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Leading law firm Blake Morgan has urged business leaders “be vigilant” by making sure they are aware of 10 key employment law issues that are going to affect businesses this year.

The run-down of potential pitfalls, and tips on how to avoid them, comes as the firm celebrates 10 years of its highly-praised Vigil Service, an on-demand legal advice service for employers.

Tim Forer, a partner in Blake Morgan’s employment team, said: “The last decade has seen a number of significant shifts in employment law, particularly with regard to parental rights and equality in the workplace.

“These are largely positive developments but it is crucial that employers are aware of the issues that are most likely to trip them up. Falling foul of employment law, even unwittingly, can be costly.

“Employers must make sure that they don’t just coast along without knowing their responsibilities – and that they have the appropriate systems in place to access legal advice when needed.

Blake Morgan says employers should make sure they are aware of the following “Top 10” employment law issues for 2015:

1.     Social media

Social media can be of enormous benefit to your business – and can also do enormous damage in the hands of a disgruntled or careless employee. Every employer should have a stated social media policy clearly setting out when and how employees may use services such as Twitter, Facebook and LinkedIn. Sometimes this may even need to be set out in the employment contract, making it clear that derogatory comments posted online will be viewed as misconduct.

2.     Shared parental leave

A big change to family-friendly rights comes into force this year for babies expected, or children placed for adoption, on or after April 5, 2015.

Shared Parental Leave is a flexible new right available to mothers, fathers, adopters and partners who want to take time off with their child. It will replace additional paternity leave.

The right depends on the mother ending her maternity leave early, so that her remaining leave can be used by her and/or the father or partner. They can both be off work together if they want.

Potential headaches for employers include employees taking several blocks of leave, and a complex system of notifications. Employers and managers need to change their family-friendly policies and get to grips with the new system to avoid mistakes and, potentially, discrimination claims.

3.     Introduction of the Government’s sickness absence support

A new government support service due to be rolled out by May this year offers employers support in helping get long term sick staff back to work. The Fit for Work scheme is an independent assessment and advisory service that helps employers take steps to evaluate whether an employee is able to return. The scheme is aimed at saving on the £160million a year employers pay in statutory sick pay by giving bespoke, independent occupational health advice about any employee who has been off work for four weeks or more.

Employers need to be aware of how their employees may be referred to the service, and the significant limitations of the new system in practice. It may also involve changing sickness absence policies.

4.     Holiday pay, overtime and commission

The Employment Appeal Tribunal last year ruled that holiday pay must take account of compulsory, non-guaranteed overtime – not just contracted hours. Although not specifically covered by this ruling, there is also a question over whether it should include any overtime that is regularly worked. This has given a headache to many large employers, not least John Lewis and Waitrose which says it will make a £10million back payment to staff in the light of the ruling.

From July 1 there will be a two-year limit to claims which will limit the impact for most businesses, although many claims will be made before then – but all employers should be aware that if they require staff to work overtime, they may also need to factor in that overtime when calculating holiday pay. A further key ruling on commission is expected soon.

5.     Flexible working requests

Many recent changes in employment law are aimed at achieving a work/life balance for employees. Previously this has largely been aimed at working parents but the right to ask for flexible hours has now been extended to all. It doesn’t mean that flexible working hours have to be granted to every employee who asks – but every employer is now required to consider such requests “in a reasonable manner”. Employers should seek advice before turning down requests.

6.     Increased rights for people adopting children – soon to be equal to birth parents

Employees who are adopting a child will, from April 5, have the same rights as anyone expecting a baby – and there is also provision for staff to attend pre-adoption meetings, as well as the new entitlement to shared parental leave in addition to adoption leave. This is a “day one” right, with no qualifying service period, and also applies to eligible surrogate parents and same-sex couples.

7.     Time off for partners to attend ante-natal appointments

A change in the law in 2014 strengthened employees’ rights to attend ante-natal appointments such as ultrasound scans for a pregnant partner. The Children and Families Act 2014 introduced a new right for fathers, partners and parents of pregnant women to take unpaid time off work to attend up to two appointments. Staff handbooks need to reflect this change and line managers need to understand that time off for such appointments is now an employee’s right – and refusing could have consequences at a tribunal.

8.     Increased rights for same sex parents and those involved in surrogacy arrangements

Huge strides have been made in employment law in favour of same sex couples where one partner is having a baby. Statutory maternity rights apply to the woman who is carrying the child, while for some time legal paternity rights have applied to their same-sex spouse. In addition, since last year both partners are entitled to time off for ante-natal appointments. However, surrogacy has been less well-recognised, with few rights for the intended parents. Now, those applying for or intending to apply for a parental order in a surrogacy arrangement will be entitled to adoption, paternity and shared parental leave.

9.     Right to be accompanied in Disciplinary and Grievance procedures

Employees have a statutory right to be accompanied at disciplinary and grievance hearings. Where the employee makes a reasonable request to be accompanied, they can choose whoever they like to act as the companion provided that the companion is either a colleague, someone employed by a trade union as an official, or a trade union official (not employed by the union) who is certified as having the appropriate experience to act as a companion.

Until recently, the ACAS Code of Practice on Disciplinary and Grievance procedures suggested that this choice had to be "reasonable", e.g., not choosing a companion from a remote geographical location. As a result of a ruling, the Code is shortly due to be changed to clarify that the choice does not have to be "reasonable" – it is an absolute right. However the request must be reasonable – e.g. not made 10 minutes before the hearing is due to take place. Employers may need to adjust their disciplinary and grievance procedures accordingly.

10.  Extension of existing unpaid parental leave

As well as the new entitlement to shared parental leave, the right to unpaid parental leave for employees who have at least one year's service and have a child under 5 (or under 18 if the child is adopted or disabled) has existed for well over a decade. From 5 April, this right will be extended to parents of children up to the age of 18.

The right is to take up to 18 weeks' unpaid leave in respect of each child, up until their 18th birthday. Employers may need to change their policies, and ensure that managers are aware of this change – as well as the difference between unpaid parental leave and shared parental leave.

Whilst there have been a number of changes in favour of employers over the last couple of years, this year there is no sign of a let-up for businesses in navigating ever-changing employment law requirements.

Vigil is a service where businesses pay an annual retainer and have access to lawyers whenever they need them. This allows for businesses to pay monthly and budget for their costs, and gives them complete peace of mind that they have unlimited access to day-to-day legal advice when they have an employment law or Human Resources issue.