Time off for training or study
In April 2010 the right to request time off work will be extended to cover training and study. The procedure is similar to a request for flexible working. Employees can make a written request to ask for time off to undertake external training or study and should indicate how this will improve their personal performance and benefit the employer’s business. Employers must take the request seriously and give careful consideration to whether the request can be granted. Employers who refuse requests will have to have a good business reason for doing so. The employee has the right to appeal against a decision to refuse a request.
Significantly, employees are not entitled to be paid for the time spent undertaking training or study and employers are not obliged to pay or contribute towards training costs.
Further information is available from the Business Link website.
Probably the biggest change which may (subject to the general election) come into effect in 2010 is the Equality Act which is scheduled for implementation in October 2010. This is intended to consolidate all existing equality legislation into one Act. Proposed changes include the requirement for employers with over 250 employees to publish information concerning pay differences between men and women. Other proposed changes include:
- A single objective ‘justification’ test to replace the different tests currently used. To rely on the justification defence, the employer or service provider will have to show that its conduct is a ‘proportionate means of achieving a legitimate aim’.
- New ways to claim for disability discrimination are to be introduced – ‘discrimination arising from disability’ and ‘indirect discrimination’. These would replace ‘disability-related discrimination’ which was very severely curtailed by the House of Lords decision in London Borough of Lewisham v Malcolm.
- It will be easier to require service providers to make reasonable adjustments.
- Direct discrimination or harassment based on association or perception are to be unlawful. That applies to employment, but also to other areas such as services and education. This proposal implements the European Court decision in Coleman v Attridge Law, but also goes beyond it.
- There is to be a single equality duty on public bodies, embracing grounds such as sexual orientation and religious belief as well as race, disability and gender.
- The Government wants there to be greater transparency, including an obligation on public authorities to report on their disability employment rate, and a strengthening of the requirement for public bodies to tackle private sector discrimination through public procurement policies.
- The Government proposes not to broaden the definition of disability as recommended by the Disability Rights Commission, but will remove the list of ‘capacities’.
- A tribunal will be able to make a recommendation benefiting the wider workforce, even if it is no longer relevant for the individual claimant – probably because the individual has left the employer.
- Claims for discrimination on two combined grounds (but no more than two) are to be allowed – e.g. discrimination for being a disabled woman.
- There are new rules to discourage employers from asking job applicants disability-related questions.
The Work and Pensions Committee has also recommended a wider definition of disability so that protection extends to everyone who has or has had an impairment without requiring the effects of that impairment to be substantial or long-term.
Consultation continues and the eminent employment barrister John Bowers QC has pointed out that as the draft legislation stands the Act “could make it unlawful for a church to require a priest or minister to be male, celibate and unmarried, or not in a civil partnership”.
Potential abolition of the default retirement age
We have reported in earlier posts about plans to increase the default retirement age to 68, 70 or even 75 but it seems that the latest thinking is that it should be removed altogether. This is what Age Concern argued for in the well-known Heyday case on the simple basis that, no matter how it is dressed up a default retirement age is, more or less by definition, age discriminatory. According to reports on 25 January this approach is now supported by the Equality Commission.
“Fit notes” in place of sick notes
In April the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations will replace sick notes with fit notes. These will allow doctors to record whether a patient is fit or not fit for work and whether someone “may be fit for some work now”.
Paternity leave and pay
Paternity leave and pay are due to be extended in April but the changes will not take effect until 3 April 2011. Qualifying employees can benefit from up to 26 weeks’ additional paternity leave provided that the mother returns to work at or before the end of her ordinary maternity leave period (i.e. the first 26 weeks of leave). Of course, there is no requirement that mother and father should work for the same employer.
The total statutory payment avaialbel for both parents is still a combined total of 39 weeks but the intention is to give parents more flexibility to split childcare responsilbilities.