Just a reminder that last month:

• the National Minimum Wage increased - see /docs/legal/keystatistics.html
• Trade union membership rules were amended - see /docs/legal/tradeunions.html
• the remaining duties put on directors by the Companies Act 2006 came into effect, and a minimum age (16) was implemented - see /docs/ch/explain/director.html
• those whose babies are due on or after 5 October, or who expect to adopt on or after this date, receive non-pay benefits throughout the full period of their leave - see /docs/legal/maternityparental.html
• agency workers on short-term contracts of less than 13 weeks are now entitled to SSP from day one of their contract - see /docs/legal/sickpay.html

We've just (again) updated our maternity and adoption policies in the light of the recent changes, thinking that was it for a while, when along comes an announcement that the European Commission has published proposals for a revision of the Pregnant Workers' Directive. Most of the proposals are already covered by UK legislation, but two may have an impact on us:

• the proposal for maternity pay to be based on normal salary for the first 18 weeks. Member states will be able to set a ceiling on the level of maternity pay in the 18-week period of 'at least the level of sick pay'. But 'sick pay' is not defined - if this is capped at the SSP rate, then we would not be affected as SMP is already greater than that, but if the proposal means contractual sick pay, some employers could face substantially increased costs.

• the proposal to increase compulsory maternity leave to six weeks. In the UK compulsory maternity leave is currently two weeks, or four weeks for factory workers. Whilst few women return so quickly, this could result in increased costs for employers in relation to, for example, bonus payments. Compulsory maternity leave has to count when calculating bonuses which are otherwise reduced pro rata due to absence.

The Commission aims to reach agreement on the proposals by 2009 with them becoming law within two years, ie by 2011. In addition, a new Directive is proposed that would require member states to make social security provision so that self-employed women and 'assisting spouses' receive the same level of maternity benefits as employed women. 'Assisting spouses' are spouses and life partners (recognised as such in national law) who work on an informal basis in small family businesses such as a farm or a local doctor's practice, in many cases without pay or any employment rights.

The Agency Workers' Directive has been passed by the European Parliament. In the UK, this will give agency workers equal rights to permanent staff after 12 weeks with an employer.

It is not yet known when this law will come into force in the UK.

The other piece of legislation being debated with the Agency Workers' Directive was the Working Time Directive (retention of the opt-out). As it happens, the delay by the European Council and European Parliament in reaching agreement has helped those employers anxious to preserve the opt-out, as until agreement is reached, the status quo is preserved!

The European Parliament has been strongly resistant to the retention of the opt-out (which allows individuals to agree to work in excess of a 48 hour week) and its employment committee has now voted to scrap this.

So it looks as thought the demise of the opt-out is likely - we'll update you as soon as a timescale is known.

It has been reported that Peter Mandelson has ordered a review of recent policy announcements - including the extension of the right to request flexible working to all those with children aged up to 16 - with the possible view of delaying these due to the current economic crisis.

The extension of the right to request flexible working was planned for April 2009.

It looks that we may now learn the identity of all respondents to employment tribunal cases in future. Details of both parties (not just the respondents) used to be freely available until some years ago, after which they were withheld following complaints that both parties were being targetted by commercial organisations offering their services.

The Deputy Information Commissioner has now decided that there is a strong public interest in the disclosure, and that under the Freedom of Information Act, details of the respondents should be disclosed by the Department for Business, Enterprise and Regulatory Reform (BERR). It would appear that details of claimants' identities will not however be released.

BERR has four weeks in which to appeal, should it wish to do so.

The design of the new UK identity cards, issued initially to foreign nationals from 25 November 2008, has now been revealed. The card is the size of a credit card and includes a digitised photograph, name, date of birth, nationality, immigration status and, in an electronic chip, biometric details including fingerprints and a digital facial image. Detailed guidance on how to check the validity of a card and describing its security features is available in a new pdf document: see www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/checkingidcards/

The cards will be phased in over the next three years for all those coming to the UK for more than six months or extending their stay in the UK.

From 25 November 2008, applicants' fingerprints and photographs will be taken at six centres (Croydon, Sheffield, Liverpool, Birmingham, Cardiff, and Glasgow) as part of the process of deciding whether someone has the right to stay in the UK.

During the three year transition period, those foreign nationals who don't have a card will be able to use a national passport that has been endorsed by the UK Border Agency if it is valid during the three-year transition period. A photocopy of the identity cards presented prior to the commencement of employment must be made and retained, as with all other documents that are examined.

The first identity cards for British citizens will be issued in 2009, targeting workers in sensitive roles and locations like airports. From 2010, they will be made available to young people who want them and, from 2011/12, they will become generally available.

Time off for dependants - what is "unexpected"?

All employees have the right to take time off work, unpaid, to undertake necessary and unexpected care for a dependant. We now have guidance from the Employment Appeals Tribunal as to the meaning of 'necessary' and 'unexpected' and it would seem that it doesn't exclusively mean last minute or emergencies only!

In Royal Bank of Scotland v Harrison, Mrs Harrison knew, two weeks beforehand, that her childminder might be unavailable for a day. (She was told on 8 December that her childminder was unavailable for 22 December.) On 13 December 2006 she requested the day off. This was refused, and whilst she tried to make alternative care arrangements she was unsuccessful. She stayed at home to look after her children and was disciplined on her return.

The tribunal and EAT both found in favour of Mrs Harrison. The EAT found that the disruption to childcare was unexpected even with warning and stated that:

• "the passage of time between the employee's discovery of the forthcoming disruption of care arrangements and that disruption taking effect was to be considered as part of the question whether it was 'necessary' for an employee to take the time off (s.57A(1))"
• "the word 'unexpected' does not involve a time element. There was no warrant for the insertion of the words 'sudden' or 'in emergency' into s.57A(1)(d)"

It would seem that tribunals will look at the nature of the disruption, the availability of alternatives, finance and time. If the employee has not taken appropriate steps to make alternative arrangements, but has had sufficient time to do so, a tribunal is unlikely to find that it was necessary for him or her to take the time off. Equally, if the timescale between learning of the problem, and the problem occurring is very short, it will be easier for the employee to establish that it was necessary to take the time off.

Night workers - working time and the NMW - further clarification?

The subject of night workers who are on call, but asleep, has been a vexed one for some time and there is apparent contradiction between some of the tribunal outcomes and the recent BERR guidance on this topic. A new case (decided on 3 October 2008), Hughes v Graham and Jones, does provide some clarification, but even the Employment Appeals Tribunal could see the flaws in their suggestion that an employee asleep should be woken after six hours in order to take her break!! Judge McMullen, who presided over the EAT hearing, said: "There may be practical difficulties, indeed absurdities, in the suggestion that a person who is at home sleeping but on call is entitled after six hours of that to be woken up and given a rest break."

Mrs Hughes, a care assistant at a residential home in North Wales, was provided with a flat attached to the home. She worked 8 hours a week as a care assistant, but also was on call between 9pm - 8am for seven nights a week. On average, she was called out twice a month and received an hour's pay for each call-out.

Mrs Hughes claimed that she was a salaried-hours worker and had been paid less than the NMW. She also was not given a rest break of at least 20 minutes after 6 hours on call, or a rest period of at least 24 hours in each 7-day period, as provided for by the WTR.

The EAT decided that Mrs Hughes was working while she was on call, whether or not she was called out. She worked 8 hours a week and was required to be on call for 77 hours, so her working week was 85 hours. Her hours were therefore in excess of the 48 weekly maximum, and they agreed that she didn't get the requisite rest breaks or weekly rest period.

In terms of the NMW, as she was a salaried-hours worker (paid a salary for a fixed annual number of hours and not paid for any additional hours), she was also entitled to the NMW for those hours, with the exception of when she was sleeping. Regulation 16(1A) of the NMW Regulations stipulate that an employee is to be treated as doing salaried hours work only where she is awake for the purpose of working. So to clarify - Mrs Hughes was entitled to be paid the minimum wage while she was on call and awake, regardless of whether she was actually working, but not when she was permitted to sleep. She was entitled to be woken up after six hours' sleep and given a rest break. For full details see www.bailii.org/uk/cases/UKEAT/2008/0159_08_0310.html

The EAT also gave guidance in another case, Commissionaires Management v Hughes, which also deals with breaks. This case involved a security guard who worked 12 hour shifts, and who did not get a rest break during his shift nor was he given compensatory rest. The EAT decided:

• an employee is entitled to one rest break once he has worked more than six hours; if he works for twelve hours, he does not become entitled to a further rest break
• where a rest break cannot be taken at the correct time, a proper compensatory rest break must be offered. It is not enough to say that an employee can rest between shifts.
• a claim can only be brought in respect of rest breaks for the three month period prior to the presentation of the claim (six months if the statutory grievance applies) ie further backdating does not apply.

Fixed-term employees - maximum duration

The Department for Children, Schools and Families employs teachers at various European Schools. Under EU secondary legislation dating back to 1994, agreed by 27 other member states, their period at the school is limited to nine years.

In DCSF v Fletcher, Mr Fletcher argued that the 9-year rule was in breach of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. Mr Fletcher was employed on fixed-term contracts for 10 years, and claimed that his employment had become permanent under the Regulations (which state that anyone employed on successive, fixed-term contracts for over four years becomes permanent unless there is a relevant workforce or collective agreement). The EAT thought that the Directive, by implication, repealed the earlier (1994) piece of legislation, where the earlier legislation is incompatible with it, and that unless the 9 year maximum rule is objectively justified, the fact it has been agreed by 27 Member States cannot - without more - justify it.

Permission has been given to appeal to the Court of Appeal.

Religious discrimination is interpreted broadly

In Saini v All Saints Haque Centre, the EAT has confirmed that an employee who is harassed on the grounds of someone else's religious beliefs would still be protected - ie the harassment does not have to be on the grounds of the employee's OWN beliefs. The regulations cover conduct "on grounds of religion or belief" and as such should be interpreted broadly.

The Civil Service is leading the way and has announced that it is to scrap its mandatory retirement age policy from March 2010.

However, a survey by law firm Berwin Leighton found that two-thirds of their respondents felt the law was having a negative effect. Each request to work past retirement age took at least half a day to deal with, and 20% of the companies they surveyed (which were large companies) had dealt with age-related grievances since the discrimination laws were introduced.

The Health and Safety Offences Act 2008 has now received royal assent. This will result in stricter punishments for health and safety failings from January 2009. The maximum penalty that can be imposed for breaching health and safety regulations in the lower courts will be increased from £5,000 to £20,000, and the range of offences for which an individual can be imprisoned is significantly broadened.

We have updated our maternity and adoption policy and guidelines - if you use our templates, we would suggest that you update yours accordingly - /docs/pol/leave/index.html

We've added a homeworking induction checklist - /docs/lf/homeinduct/index.html; a legal overview of automatic unfair dismissal - /docs/legal/unfairdismissal.html and a guide to managing depression - /docs/guides/depression.html.

We've also added a new range of DOs and DON'Ts - which can be used as handouts in a training course, or as a quick refresher for managers - these are only available to premium subscribers and cover appraisal, discipline, recruitment, redundancy and essential employment law.

It has been reported that the Ministry of Defence (MoD) has lost personal details of about 100,000 Armed Forces employees. The computer hard drive which has gone missing is believed to have more than 1.5 million pieces of information stored on it, including details of 600,000 potential recruits. It contains bank details, passport numbers, addresses, dates of birth, driving licence details and telephone numbers.

There have been a number of such leaks from various government bodies over the past year - all widely reported in the press so we won't cover them here. All we would advise is to be careful re your own data - and check that you have the appropriate policies and safeguards in place to hopefully prevent a data leak. If you don't have robust IT and data protection policies, then you may like to use our templates as a starter. See: /docs/TPcontract.html Our guides to document retention also advise on the retention periods for certain sorts of information: see /docs/legal/documents.html and /docs/guides/docretention.html In addition, it would seem that much training still needs to be done - often leaks are via junior staff who are blissfully unaware of the repercussions of their activities!

Pretty much what you would expect:

• Recent figures from accountants Stoy Hayward showed that employee fraud had cost UK companies more than £77m in the first half of this year - up from just £10m in the same period last year. Advisory helplines are also reporting increases in the number of queries about fraudulent expenses in the past three months, and HR magazine "Personnel Today" reported that fraud experts and business groups have put employers on red alert as the economic downturn is forcing many employees to find extra money fraudulently. Do read our guide to managing theft and fraud: /docs/guides/fraud.html

• The Institute of Customer Service is reminding businesses that holding onto customers is eight times cheaper than trying to win new ones, so keeping them happy is a key survival strategy. They say this means talking to customers more, taking the time to understand a client's needs and doing pro-active little things that 'surprise and delight', without waiting to be asked.

• A survey (MTD Training) reports that more than six in 10 training professionals said their budget has been 'reduced or put on hold'. More than a third of businesses said their business priorities had changed as a result of the downturn, while more than four in 10 said they 'did not feel safe in their role'. Sir Stuart Rose, chairman of Marks & Spencer, Richard Lambert, director general of the CBI and Brendan Barber, general secretary of the TUC are among the many high profile business figures to urge businesses not to slash staff training budgets. In an open letter signed by these and other leading business figures, they warned that cutting spending on staff training when times are tough is a 'false economy', and that employers who don’t train staff are 2.5 times more likely to fail than those that do.

• Finally, more employers are planning redundancies according to the CIPD. Calls to their helpline in September showed a 28% increase in redundancy-related enquiries (to more than double the number of similar calls this time last year). If you are in this situation, our website offers extensive guidance and template letters and forms for redundancy dismissals. Our helpline is also well geared to advising on this topic, so please do call us if you wish to chat through any proposals to downsize.