UK: Employment Update – October 2011

1. Agency workers

The Agency Workers Regulations 2010 came into force on 1 October 2011. From 1 October 2011, all agency workers are entitled to access collective facilities and amenities available to comparable workers and employees as well as information on job vacancies.

Agency workers who have completed a 12 week qualifying period will be entitled to the same basic employment and working conditions as if they had been recruited directly by the employer.

Listen to Angela Shields' interview on Radio 4's Today programme to learn more.

What should employers do?

Employers should urgently review their internal monitoring processes for agency workers. Additionally they should communicate and exchange relevant information with their preferred agency suppliers.

2. Social media in the workplace

ACAS has published a guide to social media use in the workplace.

The guide includes practical tips on managing the impact of social networking in the context of managing performance, recruitment, discipline and grievances, bullying, defamation, data protection and privacy. It also gives guidance as to how employers should go about developing a social networking policy. A full copy of the guide can be found here.

3. National Minimum Wage

By way of a reminder, changes to the National Minimum Wage came into force on 1 October. The new rates are as follows:

• the main rate for workers aged 21 and over increases to £6.08
• the 18-20 rate increases to £4.98
• the 16-17 rate for workers above school leaving age but under 18 increases to £3.68
• the apprentice rate, for apprentices under 19 or 19 or over and in the first year of their apprentice increases to £2.60

4. Motoring expenses and NICs

The Upper Tribunal of the Tax and Chancery Chamber has held that motoring expenses are subject to NICs if they are not linked to mileage.

What does this mean?
There is nothing to stop an employer from making lump sum payments to its employees in respect of motoring expenditure. However, payments that are not linked to mileage will attract NICs.

What should employers do?

Employers should urgently review their mileage policies in light of this ruling.

5. Rest breaks

The Court of Appeal has held that an interrupted rest break does not necessarily contravene the Working Time Regulations.

What does this mean?

As a general rule workers are entitled to an uninterrupted 20 minute rest break if their daily working time exceeds 6 hours. However, there is an exception to this general rule in the case of workers who are 'engaged in security and surveillance activities requiring a permanent presence'.

What should employers do?

Where the exception applies, employers should nevertheless wherever possible allow their employees to take an equivalent period of compensatory rest.

6. The gender pay gap

At present, only public sector organisations are required to publish relevant gender equality data. However, the Government is asking the private and voluntary sectors to carry out gender equality analysis and reporting on a voluntary basis.

ACAS has published guidance, which explains how organisations can participate in the initiative and how they can tackle gender equality issues in the workplace if they are unsure how to proceed. A full copy of the guidance can be found here.

7. Whistle-blowing

The Employment Appeals Tribunal has held that a complaint made by an employee, during a meeting, about his manager who was pressurising him to produce financial models which he believed were misleading amounted to a disclosure of information for the purposes of the 'whistle-blowing' legislation.

What does this mean?

Employees who 'blow the whistle' on wrongdoing, even in the less formal manner described here, are protected from being victimised. (A dismissal resulting from whistle-blowing amounts to an 'automatically unfair' dismissal.)

What should employers do?

Before taking action, employers should consider their own actions leading up to any decision to dismiss and should take specific legal advice before dismissing an employee whatever the reason for wanting to dismiss them.

8. References

The Court of Appeal has held that a reference which suggested that an ex-employee had recording and record-keeping issues was not unfair even though those issues had not been investigated as the reference made it clear that was the case and the reference was, overall, balanced.

What does this mean?

Flagging up concerns or allegations as to an employee in a reference does not necessarily mean that the reference is unfair.

What should employers do?

Employers should ensure that any references they provide are true, accurate and fair. If they include negative comments about matters which have not been investigated, take legal advice first; consider steps to ensure that the ex-employee has the right of reply and/or discuss the reference in advance with the ex-employee and seek agreement before issuing it.

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The Chancellor of the Exchequer, George Osborne, has announced the following changes to employment law:

1. The qualifying period for unfair dismissal will be increased from one year to two years with effect from 1 April 2012.

2. Fees will be introduced for tribunal claims from April 2013.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.