• Lee Calver
  • 1 October 2014

Are you ready for changes to employment law coming into force today?

The second of the Government’s common commencement dates for 2014 takes place today (1 October), bringing with it a number of key changes to UK employment law that employers need to be aware of.

In our weekly blog we take a look at these changes, providing employers with an understanding of the most significant revisions.

Right to attend antenatal appointments

The Children and Families Bill enables expectant fathers and partners of pregnant women to take time off work to attend two antenatal appointments with the expected mother. Employees and agency workers with a minimum of 12 weeks service (with the same hirer) will be entitled to take unpaid time off work to accompany the expectant mother where the appointment is made on the advice of a health professional. The right to time off is capped at 6.5 hours for each appointment.

It is important to note that an employer is not entitled to ask for evidence of the antenatal appointment as this is classed as the property of the expectant mother. However, an employer is permitted to ask for a declaration stating the date and time of the appointment and confirming that the employee or agency worker is either the child’s father or the mother’s spouse, partner or civil partner and that the time off is for the purpose of attending an antenatal appointment.

The idea behind the introduction of this is to encourage shared parenting after research discovered that a third of new fathers do not take any time off work before the baby is born.

Rights of the employer

Where it is reasonable to do so, an employer has the right to refuse time off. However, there is no guidance in the legislation explaining when this might be the case. Should the Employment Tribunal deem a refusal unreasonable, the employer can be ordered to compensate their employee at twice the hourly rate for the time the employee would have spent at the appointment.

There is no obligation to pay for time off unless otherwise agreed, which of course contrasts with the employment rights of a pregnant woman who is paid her normal hourly rate during the period of time off for antenatal care.

From 5 April 2015, adoptive couples will also have the right to time off to attend appointments to meet the child they intend to adopt. The couple will be able to choose for one of them to have paid time off to attend up to five adoption appointments, and the other partner to have unpaid time off to accompany them to up to two appointments.

Providing advice for employers, Workplace Law HR Consultant, Heidi Thompson, said:

“The Department of Business, Innovation and Skills has produced a guide for employers which sets out all of the areas you should consider. Employers are advised to update their policies and consider the process for managers and employees to follow.”

Heidi added:

“It’s important for employers to make their employees aware of these rights going forward. It is likely in the past that many employees were already taking time off for such appointments but using their annual leave to do so.

“For those employees unable to do this, the ability to have this right may be welcomed but being un-paid remains to be seen as to how wide the uptake will be.”

Equal pay audits

As of today, Employment Tribunals will have the power to order employers to carry out an equal pay audit if an employer is found to have breached equal pay law in relation to any claim brought on, or after, 1 October 2014.

However, an Employment Tribunal can waive this obligation if:

  • The employer has carried out an audit within the previous three years.
  • It is clear what action is required to avoid equal pay breaches continuing or occurring again without an audit being conducted.
  • The disadvantages of an audit outweigh its benefits.
  • The breach does not indicate there will be further breaches.

Employers should note that the audit must identify any relevant gender pay information, as well as identifying and explaining any differences in pay. It must also explain the reasons for any potential breaches and detail how they plan to prevent any further breaches.

There are also ten-year exemptions for start-ups (less than one year old) and small businesses (employing fewer than ten full-time equivalent employees).

The tribunal will set a deadline for the audit to be carried out not less than three months from the date of the judgment. There will be a potential £5,000 fine for each unreasonable failure to comply with the obligations. However, there is no financial penalty for a breach of the requirement to publish or for not implementing the results of the audit.

Heidi Thompson explains:

“The most contentious part of the Regulations is that an employer would have to publish the audit on its website, as well as informing the employees covered by the audit and the trade unions. The only exception from the requirement is if the employer considers that it would result in the breach of a legal obligation (including under the right to respect for private and family life in the European Convention on Human Rights).

“However, the Government anticipates that this exemption would only apply in very limited circumstances.”

National Minimum Wage

The National Minimum Wage rates for all workers will increase today and employers are warned to make sure they adhere to the new rules or they will face potentially being hit with huge fines.

For those aged 21 and over, the NWM will increase from £6.31 to £6.50 an hour, while 18-20 year olds will now receive £5.13 an hour and for 16-17 year olds, the rate will be £3.79 per hour. The NMW for apprentices will be £2.73 per hour.

It is vital for employers to ensure their staff receive the increased minimum wage rates from 1 October or risk a penalty of up to £20,000 for each worker who is underpaid.

HM Revenue & Customs has stated that it will take a hard line on firms which do not increase wages and is willing to use its full range of powers to ensure the increases are paid. Employers need to be aware that laws now allow penalties of up to £20,000 for each staff member who is underpaid. HMRC revealed that in 2013/14, it conducted 1,455 investigations and issued 652 penalties totalling £815,269.

Explaining her views, Heidi states:

“The NMW has been in place since 1999 and has had a significant impact on employees across the UK.  It is therefore disappointing that some employers continue to avoid payments and exploit workers. 

“This focus by the Government will hopefully have a big impact over time, ensuring the perpetrators are caught, particularly as the failure to meet the legislation often targets the most vulnerable in society.”

Reserve forces

Under changes to regulations being introduced, if an employee is dismissed exclusively because he or she is a member of the reserve forces, the normal two-year service requirement for bringing an unfair dismissal claim will not apply. The removal of this requirement will only apply to those whose date of termination falls after 1 October 2014.

In addition to this, the reforms will also enable the Secretary of State to make payments to small and medium-sized employers of reservists who are called out for service. The scheme provides a monthly payment of £500 for each full month that a reservist is absent from work, as long as they are on a full-time contract for at least 35 hours per week.

Keep on top of the changes

While this is merely a brief look at some of the issues you will face now changes have come into force, our Facilities Management Legal Update (FMLU) one-day event, taking place on Thursday 16 October, will include a employment law session with Heidi Thompson, who will take you through these issues, as well as other important topics. Click here to find out more about FMLU.

Commenting on the upcoming HR and employment law update session at FMLU, Heidi said:

“We have had some significant changes coming through this October, particularly with the final details of the Children and Families Act and the Flexible Parental Leave being a major change for employers.

“With other interesting topics such as a discussion surrounding the ‘ageing workforce’, and the latest updates on some key case law, FMLU promises to once again be an invaluable event.”