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Tuesday 29 April 2014

Employment Law Bulletin April 2014

Welcome

Another big month in the employment law world. From 6 May, employees must notify ACAS (by telephone, or by filling in a form which can be posted or submitted online) before they are allowed to bring an employment tribunal claim.

If the employee does not tell ACAS before lodging their tribunal claim, the claim will automatically be rejected. If the employee does tell ACAS that they intend to bring a claim, ACAS will try to help both sides settle. Either side can refuse to negotiate, in which case the employee can go to the tribunal. Conciliation can last for up to six weeks, if everyone agrees a settlement is feasible, and the employee then gets at least a month from conciliation failing to bring a tribunal claim (the time limit rules are complex, but it is always at least a month after the ACAS conciliation ends).

This should be good news for employers, who will not find a tribunal claim form landing on their doorstep unexpectedly. That said, many employers will be tempted to wait and see whether the employee will pay the £250 fee to start their tribunal claim proper. According to statistics published last month, two-thirds of employees do not.

Even more changes

A number of new processes, penalties and pay limits came into effect on 6 April. In summary:

New law on spent convictions

New rules on the rehabilitation of ex-offenders have come into force. They reduce the period of time after which an offence becomes ‘spent’ and so does not need to be disclosed. There are some exceptions – mainly jobs involving contact with vulnerable adults and children – but on the whole people will be able to put their past behind them far more quickly and be treated as though their convictions never happened.

Employers should tread carefully here. It is prohibited to refuse to employ someone, or dismiss someone, based on a spent conviction. And in most cases, it is now prohibited to ask job applicants about spent convictions or cautions. Remember, too, that criminal convictions are ‘sensitive personal data’ under the Data Protection Act.

Secret recordings admissible

Punjab National Bank v Gosain

You may – justifiably – believe that there is something rather underhand about an employee covertly recording their disciplinary or grievance hearing. But do not bank on an employment tribunal sharing your outrage and excluding the evidence.

If it is relevant to the employee’s case, then the tribunal may well decide it can hear it.

No maternity discrimination after maternity leave

Lyons v DWP JobCentre Plus

The beginning of pregnancy is also the start of a woman’s protected period for employment law purposes. That means that right up until the end of her maternity leave she must not be treated unfavourably because of the pregnancy or because of any illness she suffers as a result of her pregnancy.

But what about unfavourable treatment, related to her pregnancy, that happens once maternity leave has ended?

Immigration status is not ‘race’

Onu v Akwiwu

Two Nigerian women, who held migrant domestic worker visas, claimed that they were mistreated because of their immigration status. They were abused and exploited while working for families in the UK, and they brought a race discrimination claim.

Surrogacy and maternity rights

Case C 167/12 CD v ST

It is usually obvious who is entitled to maternity rights. But not so where surrogacy is concerned. Who has the right to maternity pay, maternity leave etc – the surrogate mother who gave birth, or the commissioning mother?

The Court of Justice of the European Union (CJEU) has looked at the case of Ms D, who commissioned a surrogate. Ms D breastfed the baby as soon as it was born, and she and her partner were granted a parental order. But after her employer denied her maternity and adoption leave (because she had not given birth to or adopted the child) she brought a claim.

 

And Finally…

It has been reported that employers in the Philippines who discriminate on grounds of age could get more than they bargained for.

A Bill has been put forward setting a fine of P100,000 (£1,340) and P5million (£67,000), or imprisonment for between one month and one year, for those found to have been discriminatory in their job adverts, in their recruitment choices or in their retirement policies. The people behind the bill say that many recruitment adverts place an age ceiling of 40 on applications, effectively denying employment opportunities to those aged 40-plus.

So if you think that employment laws are draconian here…..

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