Employment Law Q & A

Following on from last month’s Employment Law Seminar, some delegates asked us further questions, the answers to which bear repeating for everyone’s benefit.


The Agency Worker Regulations 2010

Under the regulations, is an agency worker entitled to be considered for vacancies advertised internally within an organisation to which he is assigned?

The answer is yes, and this right is effective from day one. Regulation 10(3) requires that, during the course of an assignment, an agency worker has the right to be informed of any vacant posts with the organisation, in order to give that worker the same opportunity as a comparable employee to find permanent employment, whether by way of an internal or an external selection process.

It is worth noting that the organisation need not personally inform the agency worker of vacancies as regulation 10(4) allows for a “general announcement” in a suitable place in the hirer’s establishment, which would include an announcement on your company’s intranet (assuming agency workers have access to that).

The Status of Additional Paternity Leave


I was under the impression that regulations were coming into effect in April 2011 allowing mothers who return to work to assign a portion of their unused maternity leave to the fathers to use as additional paternity leave. Is this still the case?

These changes were due to come into effect in April 2011 following from the Additional Paternity Leave Regulations 2010. Under these regulations, eligible fathers have the right to take up to 26 weeks APL before their child’s first birthday. However this right will only arise where that father’s spouse or partner has returned to work, leaving some of their statutory maternity or adoption leave untaken.

However this was a Labour policy and the Coalition seems set to look at the issue with fresh eyes. In July 2010, Theresa May, Minister for Women and Equalities, hinted that the timetabling for implementing APL would be re-examined, leading some to believe that APL could be shelved or scrapped altogether. However, the Government’s Coalition Agreement states that it would “encourage shared parenting from the earliest stages of pregnancy – including the promotion of a system of flexible parental leave”, so it seems likely that some form of provision will be made. It is expected that the Government will put forward proposals on this matter later in the year.


Calculation of Holiday Hours

We have a part-time employee who is contracted to work 12 hours per week.  I have calculated his holiday entitlement based on his contracted hours.  However, he works extra hours during university holidays and believes that this should be brought into consideration, is this correct?

The correct approach is to calculate the employee’s holiday entitlement based on his ‘normal working hours’. The Employment Rights Act 1996 states that an employee’s ‘normal working hours’ are based on the contractual entitlement. The extra hours he works fall in the same category as paid overtime; as such you should base his holiday entitlement on a 12 hour working week only.

E.g. If an employee is contracted to work 12 hours per week but is also required to work overtime as and when the business requires, then his holiday entitlement would be based on a 12 hour working week.  However, if an employee is contracted to work 12 hours per week (fixed times) and 6 hours overtime (variable hours), then the holiday entitlement would be based on an 18 hour week.  The difference is that, in the second situation, there is an obligation on the employer to provide the employee with 18 hours per week.  That is not the case with your employee.

If you would like more information about any of these issues, please contact sandy.meiklejohn@blackadders.co.uk or simon.allison@blackadders.co.uk

End of the Default Retirement Age

Under the Employment Equality (Age) Regulations 2006 (and now the Equality Act 2010) employers have the right to impose retirement on employees who are aged 65 or over.   There are no adverse consequences for the employer, provided the correct procedure is followed.

This right is going to disappear from April 2011.   There will however be transitional arrangements so that provided due notice has been given, employers will be able to impose retirement up to 30 September 2011.

In effect this means that employers have a window of opportunity which will close at the end of March 2011 to impose retirement on employees aged 65 or over.   Thereafter, the dismissal of an employee aged 65 or over will have to be justified on one of the potentially fair grounds for dismissal (conduct, capability, redundancy or some other substantial reason).

While employers may be glad to retain the skills of employees who have passed their normal retirement age, it would be prudent to check payroll records to establish whether there are any employees who are already 65 or are approaching that age where the employer may want to take advantage of the present law to terminate employment by reason of retirement.

If you would like more information about this, please contact sandy.meiklejohn@blackadders.co.uk or simon.allison@blackadders.co.uk

Sandy Meiklejohn
Partner & Accredited Employment Law Specialist