ABG Employment Newsletter – March 2014

Compensation limits increase from 6^th April 2014 

The limits on the maximum compensation that can be awarded by the Employment Tribunal in cases involving dismissal will increase on 6^th April 2014.

For cases where the effective date of termination falls on or after 6^th April 2014 the following new limits will apply:-

Statutory Maternity, Paternity, Adoption and Sick Pay increase from 6^th April 2014

From the 6^th April 2014, Statutory Maternity, Paternity and Adoption Pay will increase from £136.78 per week to £138.18 per week.

Statutory Sick Pay will increase from £86.70 to £87.55 per week.

Discrimination when dealing with flexible working requests

In a recent case the EAT found that an employer had discriminated against a female employee by revoking her flexible working arrangements and allowing a male colleague’s arrangements that were similar to continue.

The female employee had been working from home 2 days a week for the past 10 years following her return from maternity leave.  A male colleague who cared for his disabled child had a similar flexible working arrangement.  Following a review of its flexible working policy her employer changed her flexible working arrangements so that she would no longer be permitted to work from home but gave her some flexibility regarding start and finish times.  The employee brought a claim for discrimination claiming that she had been treated less favourably than her male colleague.  The ET found in favour of the employee based on inconsistencies in the evidence given by the employer as to its reasoning.  The employer appealed.

The EAT found the inconsistencies in the employer’s explanation of why the flexible working arrangements of the female employee had been revoked were sufficient to reverse the burden of proof meaning that the employer had to prove there was no discrimination.  The employer was unable to provide sufficient explanation as to why the female employee had been treated less favourably than the male employee and this led the EAT to infer discrimination.

The EAT also considered whether the male employee was a suitable comparator and found that he was due to his similar childcare responsibilities despite the fact that his other circumstances were different.

This case illustrates the importance of properly documenting the reasons for rejecting a request for flexible working and ensuring that the reasons are based on the needs of the business rather than personal attributes of the employee.

National Minimum Wage will increase with effect from 1^st October 2014

On 1^st October 2014 National Minimum Wage will increase as follows:-

In addition, two new sets of Regulations relating to the National Minimum Wage will come into force on 7^th March 2014.  These Regulations will provide that employees aged 16-23 who work under a traineeship for a maximum of 6 months will not be entitled to National Minimum Wage.  In addition, the Regulations increase the maximum penalty for employers who do not pay National Minimum Wage to their employees to £20,000.

Changes to the requirements to disclose previous convictions to prospective employers

Under the Rehabilitation of Offenders Act 1974 (RoA) a person is not required to disclose previous convictions that are ‘spent’.  The period of time that must pass in order for a conviction to be considered spent (‘the Rehabilitation Period’) differs depending on the type of sentence.

Previously, if a person had been given a custodial sentence of more than 2 ½ years then this would never be considered spent and would therefore always need to be disclosed to potential employers.

With effect from 10^th March 2014 the RoA was amended to reduce the rehabilitation periods.  For example:-

• Under the amended legislation any custodial sentence over 4 years will never be spent and must always be disclosed.  However, the Rehabilitation Period for a custodial sentence between 2 ½ and 4 years (which would previously never be spent) is now 7 years from the date of completion of the sentence.
• The rehabilitation period for a custodial sentence of up to 6 months has been reduced from 7 years (from the date of conviction) to 2 years (from the date of completion of the sentence).

Obviously, this reduction in the rehabilitation periods means that potential employees will be less likely to have to disclose previous convictions.

A person’s name is considered personal data

In a recent case, the Court of Appeal has found that a person’s name will constitute personal data under the Data Protection Act 1998 (‘DPA’) unless the name is so common that a person could not be identified unless other information was available.

Under the DPA, personal data is data which relates to a living individual who can be identified either from the data or from the data and other information that is in the possession of the data controller.

The DPA contains a set of data protection principles, the first being that the disclosure of personal data must be fair and lawful.

Under the Freedom of Information Act 2000 (FOIA) individuals are entitled to information which is held by public authorities unless an exception applies.  Once such exception is where disclosing the information would breach one of the data protection principles in the DPA.

This case concerned a request under the FOIA made to the Financial Services Agency regarding their conduct in dealing with a complaint.  When complying with the request for information, the FSA withheld the names of its employees that had dealt with the complaint internally.  The applicant complained that the names of the employees should be disclosed as they did not constitute personal data under the DPA.

The Court of Appeal held that the names of the employees would constitute personal data as, together with the knowledge of their position within the FSA at that time, it would enable the applicant to identify them.  The disclosure of the employees names would therefore constitute a breach of the DPA and the FSA was therefore correct to withhold them.

The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

Christopher Gigg
[email protected]
+44 (0)115 934 3310

Kathryn Meir
[email protected]
+44 (0)115 934 3308