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HR News Round-up 

3rd May 2012 
 
In this Round-up: - 
 
 
 
 
Additional Bank Holiday 
The Queen’s Diamond Jubilee will see an extra bank holiday being added to the calendar for 2012 on Tuesday, 5th June. For many Employers, it will not be an issue and they will automatically give their employees the additional day off; but for some, particularly those whose businesses operate over 7 days per week, it may become more of an issue. So, is there a legal right to the additional bank holiday? 
 
The starting point is always that the Working Time Regulations entitle full time employees to 28 days holiday each year. Although this is often seen as four weeks plus eight bank holidays, the Regulations do not give employees the statutory right to time off on bank holidays, but rather to time off as agreed with the employer. Whether employees are entitled to an additional bank holiday will depend on the wording of their employment contract and/or any subsequent agreement with the employee. Employees will not have an automatic right to paid time off on this additional bank holiday unless their contract covers the situation. 
 
The contractual position can be summarised as follows: - 
 
If the employee's contract states that they have a certain number of days annual leave entitlement ‘plus bank holidays’; then the employee will be entitled to an additional day's leave. 
 
If the employee's contract states: - 
 
that the employee has a certain number of days annual leave entitlement ‘plus eight bank holidays’ or 
that the employee has a certain number of days annual leave entitlement, listing or naming the bank holidays included or 
28 days annual leave either as a total or inclusive of bank holidays or 
that the employee has a certain number of days and does not mention the issue of bank holidays;  
then the Employee will not be entitled to an additional day’s leave. 
 
An employer with such a contractual provision may theoretically decide to close down on 5 June 2012 and can require employees to take the day out of their annual holiday allowance although this may not be conducive to good employee relations. 
 
Best practice points for employers 
 
Regardless of the contractual entitlement to paid time off on the additional bank holiday, best practice employers should consider granting the holiday as a goodwill gesture. Some employees may react adversely if compelled to work. Alternatively employers may provide a day’s time off in lieu if employees are required to work on that day or could offer extra payment for the day. Some employers will have inconsistent contractual wording with the result that some employees are entitled to the extra day and some are not. Again the best approach may be to allow all employees the extra day. 
 
If employees are asked to work on an extra bank holiday their right to extra pay again depends on the terms of the employee’s contract of employment and employers should already have addressed the rate of pay for working on a bank holiday. If nothing has been addressed in the original contract the employee’s entitlement will then depend either on what has been subsequently agreed or on what has been implied by custom and practice. 
If employees have been paid a higher rate for working bank holidays in the past, it is likely that this will have become a contractual entitlement. 
 
If the employee refuses to attend work on the extra bank holiday and there is a contractual obligation to work that day, the employer can follow its disciplinary policy and/or the ACAS code of practice on Disciplinary and Grievance procedures. Obviously if there is a right to time off on bank holidays this course of action cannot be followed. 
 
Most employers will already have faced the above situation because of the additional bank holiday to celebrate the Royal wedding in 2011. There is no obligation on employers to grant a day off for the Diamond Jubilee just because they did so for the Royal wedding. Some employees may attempt to argue that a day off should be granted in 2012 based upon the previous custom and practice in 2011. However if an employer has granted an extra day off once previously, this one day will not give rise to a new custom and practice. Again, the position will depend on the wording of the employment contract and/or any subsequent agreement....back to top 
Default Retirement Age 
 
The enactment of the Equality Act 2010 saw the removal of the Default Retirement Age in 2011. Whilst the Act allowed Employers to retain a fixed retirement age, if it could be shown that it was a proportionate means to achieve a legitimate aim and could be objectively justified, it was not made entirely clear within the legislation at the time what might constitute such a reason. 
 
We have therefore been waiting for case law to provide such guidance; and this has come from The Supreme Court, in the case of Seldon v Clarkson Wright and Jakes. Although they have not ruled on this case and have in fact sent it back to the Tribunal, the Court has provided some clear guidelines as to when it may be justifiable to directly discriminate on the grounds of age; which is in effect what an employer is doing by having a mandatory retirement age. 
 
The legitimate aims that can be used in justifying direct age discrimination must be based on ‘social policy objectives’; including employment policy, labour market or vocational training and must therefore be of a wider ‘public interest nature’ and not just relevant to the individual employer’s circumstances (e.g. reducing costs, increasing efficiency/competitiveness etc.). 
 
European case law has identified two broad types of ‘legitimate aims’ in direct age discrimination cases: - 
 
• ‘Inter-generational Fairness – including assisting young-people to access employment and enabling the retention of older people in the workforce 
• Preserving the ‘dignity’ of older people in the workforce – avoiding or reducing the likelihood of placing those workers through processes to manage under-performance. 
 
These legitimate aims can be realised or rationalised after the event and do not necessarily need to be communicated at the time. However, they must be genuine. 
 
The Supreme Court has also stipulated that the aims must be capable of standing up to scrutiny and must be shown to be legitimate in each case e.g. if it is the aim to improve recruitment amongst younger people, then the employer must show that they are experiencing difficulties in recruiting young people. The employer must also demonstrate that the aim is proportionate to what it is trying to achieve and show that they have considered less discriminatory ways of achieving the same objective....back to top 
News Round-up 
 
On the 6th April 2012; the qualifying period for unfair dismissal claims was increased from 1 to 2-years of continuous employment with the employer, before a claim for unfair dismissal can be brought to Tribunal. This applies to any employee who was employed from that date onwards whilst employees engaged prior to the 6th April will retain the one-year qualifying period. 
 
Emergency legislation is being put through Parliament by the Government to allow extended Sunday opening hours for retailers during the course of the Olympics. For employers; this will mean that they will need to seek agreement from employees who do not have a contractual obligation to work additional hours on a Sunday before applying any extension to opening hours. Employers will also need to ensure that any such changes do not breach discrimination or working time legislation. 
 
During April, Tribunal statutory compensation limits have been increased to: - 
• £23.50 = 1 day 
• £430 = 1 week 
 
The maximum payout in unfair dismissal cases has also been increased to £72,300. Additionally, the cap on ‘Deposit Orders’ used in Tribunals has been doubled from £500 to £1,000 on all relevant cases presented after 6th April. A ‘deposit order’ is applied to cases where there is little prospect of success and aims to discourage weaker cases from reaching Tribunal by encouraging their early settlement. 
 
Statutory payments were increased on 6th April to: - 
• Maternity/Paternity/Adoption Pay - £135.45 per week 
• Sick Pay - £85.85 per week 
 
From 6th April 2012; the trigger for reporting injuries under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulation 1995 (RIDDOR) has increased from over 3-days to over 7-days incapacitation. This does not include the day on which the accident/incident occurred. Incapacitation is defined as an individual who is absent from work or is unable to do the work that they would reasonably be expected to do as part of their normal work. Employers (and others) with responsibilities under RIDDOR must continue to keep a record of injuries resulting in over 3-days incapacitation, but it is sufficient to keep this information within the internal accident/incident book. The deadline by which any injury resulting in over 7-days incapacitation must be reported under RIDDOR has also been increased to 15-days....back to top 
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