PAPA’S GOT A BRAND NEW BRAG?

Time off to accompany pregnant women to ante-natal appointments.

When does the law change?
From 1 October 2014, an expectant father will be entitled to take unpaid time off work to accompany a pregnant woman to up to 2 of her ante-natal appointments.  The expectant father requesting this time off will not require to have worked for any qualifying period with his employer and, instead, this right will be available from “day one” of his employment.

Who has the right?
In addition to expectant fathers, any partners (including same sex partners) of pregnant women will be entitled to take this unpaid time off for to up to 2 of her ante-natal appointments.  “Partner” is defined as the spouse or civil partner of the pregnant woman as well as a person (of either sex) in a long term relationship with the pregnant woman.

What if the woman’s husband is not the father of the child?
If the expectant father is not the pregnant woman’s husband/partner, then both the expectant father and the husband/partner will each be entitled to time off for up to two appointments.

What about a man who is an expectant father with two different women?Alternatively where a man is the expectant father for two different women at the same time, he will be entitled to attend up to two ante-natal appointments with each of the two pregnant women.

How much time off is permitted?
The entitlement is to unpaid leave to attend up to two appointments with the maximum time capped at 6 hours and 30 minutes per appointment.  This is intended to equate to no more than half a day and is to include travelling time, waiting time and attendance at the appointment.

What happens if an employer refuses this time off?
If an employee is refused unpaid time off, that individual can complain to an employment tribunal within three months of the date of the refusal.  An employment tribunal can uphold the claim and order compensation calculated as twice the hourly rate for each of the hours that the person would have taken off, if the right had been respected.  Additionally the employee could claim any employment tribunal fee back from the employer.

It remains to be seen the extent to which this new right will be utilised by employees however employers should be educating line managers about these duties and ensuring that, where applicable, employees are afforded such rights.

Simon Allison
Partner – Employment Law

Don’t mess yo’self with your references

It is a common misconception amongst employees that they have an automatic right to receive a reference from a former employer.  There is no legal obligation on employers to provide employee references.  There may be circumstances where employers can bind themselves to provide references, for example, by custom and practice of always providing references or under the terms of a settlement agreement.

An employer who does provide a reference owes a duty of care to both the recipient and the subject of the reference as to the factual content of the reference and the opinions expressed in it.  A reference must not give an unfair or misleading impression overall.  Many employers provide only basic factual references and conclude the reference with words to the effect of this information is given in good faith and we accept no responsibility for any loss or damage caused to the addressee or any third party as a result of any reliance being placed on it.”  Such an expression within the reference may displace the common law duty of care where the employer makes it clear that no responsibility is being assumed.

In AB v A Chief Constable 2014 IRLR 700, a police force employee resigned 13 days prior to a disciplinary hearing.  The employer supplied an initial factual reference which contained very basic employment details and made no reference to the impending disciplinary hearing.  The employer had arguably misrepresented the true position by omitting to mention the disciplinary hearing.  However, the High Court found that the employer was saved by the expression in the reference which made it clear that they assumed no responsibility for its content.  On that basis the reference read as whole was not misleading.  The first point to take from this case is that employers who include disclaimers in their references are wise to do so and those who do not should consider revisiting their reference styles.

The second aspect of the AB case concerned whether the employer police force should be permitted to send a more detailed second reference which did mention the disciplinary allegations (and which fairly recorded the employee’s response to the allegations).  The employee had applied for employment with another regulated public body.  The police force felt that they had a professional and ethical duty to provide a more detailed reference to the prospective new employer given the high standards associated with regulated employment.

The Court considered various factors in deciding whether to allow the force to send the second reference.  Consideration was given to the Data Protection Act 1998 (“DPA”) in relation to disclosure of the disciplinary proceedings.  The Court was required to balance the interests of the employee in non-disclosure of the data against the public interest in disclosure.  The Court decided that it would ordinarily allow such a reference taking into account the public policy considerations.  However, it decided that special circumstances existed whereby the employee had a legitimate expectation to receive only a basic factual reference.  The employee was told by a Chief Officer that he would get a standard reference.  The employer also had a policy and practice of sending only standard references.  These factors pointed to a legitimate expectation that the employee would receive a standard reference.  The Court decided that it would be a breach of the DPA to undermine these legitimate expectations.  The force was not permitted to send the second reference.

Employers should be careful when offering (or deciding not to offer) references.  This case makes it clear that a custom and practice of providing references or a promise of a reference can bind the employer.  Careful consideration also needs to be given to the DPA and whether disclosure of disciplinary matters is necessary.

Jack Boyle
Senior Solicitor – Employment Law

National Minimum Wage Increases

From 1 October 2014, the national minimum wage will increase to:

  • £6.50 an hour for workers aged 21 and over
  • £5.13 an hour for workers aged 18 to 20
  • £3.79 an hour for workers aged 16 to 17
  • £2.73 an hour for apprentices under 19 (or 19 and over who are in the first year of their apprenticeship)

Costa Coffee

 

Also from 1 October 2014, the cost of a medium “wet” cappuccino from Reform Street Costa coffee will remain at £2.45 … (thankfully)!

Jack Boyle
Senior Solicitor – Employment Law

 

Grievance Hearings – A plus 1 invitation

Who can request a companion?

The Employment Relations Act 1999 gives workers the right to attend a disciplinary or grievance hearing with a companion.

When can a companion be requested?

The Act defines a “disciplinary hearing” as one that could result in a formal warning, or the taking of some other action by the employer, or the confirmation of a warning issued. This does not appear to include informal meetings, however if an informal meeting is called and as a result the worker has a written warning issued and placed on their file, the meeting can be deemed to be formal in retrospect.

It is important to note that an employer is obliged to agree to reschedule the meeting if the worker or the chosen companion cannot attend, as long as the hearing is rescheduled within 5 working days.

Who can be requested?

The law is clear that a worker cannot call whoever they want to be their companion. A companion must be either a paid official of a trade union, an unpaid official of a trade union certified as being competent to act as a companion or another of the employer’s workers. Although the law states that the worker is entitled to a companion when one is “reasonably requested”, the case of Toal & Anor v GB Oils Ltd has made it clear that this ‘reasonableness’ does not apply to the worker’s choice of companion. As long as their request fits the above criteria, their options appear to be limitless. If anything this looks like being extended following the Leeds Dental Team Limited v Mrs D Rose case which held that not allowing a former owner to be a companion was a breach the law.

What is their role?

When present at a hearing the companion is entitled to put forward the worker’s case, sum it up, respond to the views expressed and to confer with the worker. They do not have the right to answer questions on behalf of the worker, be present without the consent of the worker nor prevent the employer or anyone else properly participating in the hearing. Overall it is safer to allow your workers’ requests for a companion when calling a disciplinary hearing.

Andrew Wallace
Trainee Solicitor – Employment Law