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Best wishes for Christmas and the New Year from JMA

As we near the close of another year, we would like to wish you a very happy Christmas and a prosperous New Year. This year I was fortunate to become a trustee of a locally based charity, Peer Productions. For those of you who have not come across the amazing work that this charity does, Peer Productions is an award winning youth arts charity specialising in combining high quality arts practice with peer education.Read More

New campaign for protection for mothers rights at work…

Maternity Action has released a report which claims that one in every twenty mothers are made redundant during pregnancy, maternity leave or upon their return to work and some of these redundancies are unfair and/or amount to discrimination. Maternity Action is the UK’s leading charity committed to ending inequality and improving the health and well-being of pregnant women, their partners and children and this latest campaign calls on the Government to urgently act on its commitment made in January this year to review redundancy protection. The report recommends that the UK adopts the German model of redundancy protection which would mean that women could not be made redundant from the point at which they notify their employer of their pregnancy right through to six months after their return to work, subject to some limited exceptions.

The report forms part of a manifesto produced by Maternity Action last year. Other policy changes which form part of this manifesto include revised guidance for employers conducting health and safety risk assessments for pregnant women and new mothers; better protecting those in precarious forms of employment; the removal of employment tribunal fees; a right to breastfeed at work; and an increase to the flat rate of parental pay by 2020.

Court highlights the importance of the decision-makers’ role in an unfair dismissal claim

The Court of Appeal has considered the extent to which an employment tribunal may take into account the mental processes of anyone besides the decision-maker when establishing the reason for dismissal in an unfair dismissal claim.

The case is important as it reverses the EAT’s decision and holds that, in an unfair dismissal claim, it is the person who is designated by the employer to take a decision to dismiss whose state of mind needs to be considered when assessing what was the reason for the dismissal.

The judgement in the case can be summarised as follows:
• the reason for dismissal is the set of facts known to the employer, or of beliefs held by him, which cause him to dismiss the employee;
• for the purpose of determining ‘the reason for the dismissal’, the tribunal is obliged generally to consider only the mental processes of the person(s) who was (or were) authorised to, and did, take the decision to dismiss; and
• it is unlawful to consider the mental processes of anyone besides the decision-taker, but it may be possible to bring a claim where the decision-taker has been manipulated and the manipulator is “a manager with some responsibility for the investigation’.

From a practical point of view, this emphasises the significance of the decision makers’ evidence in any claim for unfair dismissal, and employers will therefore want to make sure that they select the most suitable and credible person to make the decision and keep good records of how the decision was reached in case of a claim.

Government puts forward new proposals for bereaved parents…

The Government has proposed new laws to give parents the right to parental bereavement leave where they lose a child under the age of 18. The intention is to give parents two weeks’ paid leave, which employers would also be able to claim back from the Government. It is proposed that the right apply to employees with a minimum of 26 weeks’ continuous service. Currently making its way through Parliament, the aim is for the new law to come into force by 2020.

First stage of employment tribunal fee refund scheme launched…

Her Majesty’s Courts and Tribunals Service (HMCTS) has launched the first stage of the phased implementation scheme to reimburse employment tribunal fees after the Supreme Court’s ruling that the tribunal fee regime is unlawful.

Under the scheme cases that were rejected or dismissed due to non-payment of fees will also be reinstated.

It will also be possible for respondents to apply for reimbursement of fees in certain circumstances. These include: (1) where the respondent has been required under the rules to pay a fee, and (2) where the employment tribunal made an order that the respondent should pay a sum equal to the fees paid by the claimant to the claimant by way of reimbursement and the respondent can prove that it complied with that order and paid the relevant sum to the claimant.

Agreements to reimburse fees paid by claimants under the terms of a settlement agreement will not be refunded. Instead, it will be for the claimant to apply to HMCTS for reimbursement and the parties will need to agree if the refunded fee is then to be passed on to the respondent.

Trade unions will also be able to claim reimbursement of fees that they paid on behalf of their members.

Data protection fees to change from April 2018

With the introduction of the GDPR, which comes into force in May next year, data controllers will also want to ensure they understand about the change in data protection registration fees.

Paul Arnold, deputy chief executive at the Information Commissioner’s Office (ICO), has set out guidance to clarify the changes in fees and also how the government’s new funding system for the ICO will work.

Currently, under the current Data Protection Act 1998, organisations that process personal information are required to notify with the ICO as data controllers (unless an exemption applies) about the personal data they collect and what they do with it. They are also required to pay a notification fee of either £35 or £500, based on their size. When the GDPR comes into effect in 2018 there will no longer be a requirement to notify the ICO in the same way. However, there will still be a requirement to pay a fee. It is currently anticipated that there will be a three-tier system with the size of the organisation and how much personal data is processed determining the level of fee. The ICO guidance sets out details of the fee tier system and the level of fees expected to apply.

Mental health and the costs of sickness absence in the workplace

An independent report entitled ‘Thriving at Work’ and commissioned by the Government in January this year to review mental health and employers has found that around 300,000 people leave their job every year for mental health reasons with a cost to employers of up to £42 billion each year.

The aim of the report was to look into “how employers can better support the mental health of all people currently in employment, including those with mental health problems or poor well-being to remain in and thrive through work”. Recommendations in the report include employers creating a ‘mental health at work’ plan and promoting effective people management with line managers holding regular conversations about health and well-being with their staff.

The report is of course timely with the rise in profile of mental issues generally. It also coincides with new guidance published by Acas which is aimed at helping employers manage mental health-related issues in the workplace. The guidance was launched alongside World Mental Health Day, which took place on 10 October, and aims to help employers’ spot signs of mental health and support any team members dealing with periods of mental ill health. Click HERE for a copy of the guidance.

The updates in this blog are published for information only and provide an overview of employment law and best practice as at the date of publication. No action should be taken without seeking professional advice.