Employment Law Update
Welcome to our monthly Employment Law Update – helping you stay on track and compliant!
This month, we look at what’s new with: the 48 hour working week opt-out; statutory Maternity Leave; discretionary bonuses and more...
UK to lose 48 Hour Opt-Out
The European Parliament has voted against the UK's opt-out from the 48 hour maximum working week. This would mean that employees will no longer able to work more than 48 hours per week (over a 17 week period). To adhere with this, the Working Time Regulations may now have to be amnended, but do note that the opt-out will stay in place until 2012.
Further rounds of negotiations are to be held with the EU employment ministers, but the Government is being encouraged by employers and the Confederation of British Industry's (CBI) to pull out all stops to retain the opt-out.
These amendments would ban people from choosing to work more than 48 hours per week, and should be rejected by MEPs. Nobody should be made to work more than 48 hours per week. But many people want to work longer hours, and at the moment they have the right to opt out of the maximum working week. We think that people can make this decision for themselves, and don’t need MEPs to make it for them.John Cridland, CBI Deputy Director-General
Disability Discrimination & Reasonable Adjustments
The following case takes a look at when an employer may be exempt from the duty to make reasonable adjustments for disability.
The candidate, who was being interviewed for a new post at a PCT, claimed that reasonable adjustments were not made for dyslexia at the time of her interview. The Employment Tribunal agreed with the candidate, but the PCT later appealed and was successful in doing so - as the case was remitted to another Tribunal to be re-considered.
The PCT argued that under the Disability Discrimination Act 1995, the duty to make reasonable adjustments does not occur when the employer is not aware and could not be expected to be aware that the person has a disability and is likely to be at a disadvantage.
The EAT stated that for this defence to be accepted, an employer must be able to show:
- they did not know that the disabled person had a disability;
- they did not know that the disabled person was likely to be at a substantial disadvantage compared with persons who are not disabled;
- it could not reasonably be expected to know that the disabled person had a disability; and
- it could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.
Delay in plans to extend statutory Maternity Leave
Plans to extend statutory maternity pay to 52 weeks and to introduce an entitlement to up to 26 weeks’ paternity leave (at which part would be paid) have been delayed. The Government had originally planned to have this in place by 2010, but now there is talk that the change could be delayed for an indefinite period.
And Finally... Discretionary Bonuses
A warehouseman claimed for unlawful deductions from wages as performance-related bonuses had not been paid. The case lost at the employment tribunal stage, so the employee decided to appeal to the Employment Appeal Tribunal (EAT) and was successful.
The employer had described the bonuses as “discretionary” in the Staff Handbook, and added “they are not intended to be contractual”. The EAT concluded that it’s that straightforward as the employee may think, because some “discretionary” could be referring to:
- the provision of an overarching bonus scheme;
- a decision each year to operate a bonus scheme;
- the method of calculation of bonus;
- the threshold which triggers a bonus or;
- whether a percentage of salary (and if so, what percentage) will be paid.
The EAT also pointed out that the bonus has been regularly paid over many years and decided that this could mean a contractual entitlement developed over time.
Remember... in all cases where the employer has the right to exercise its discretion, it must act reasonably and in good faith.
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