A final reminder that the NMW was increased on 1 October as follows:

• workers aged 22 and over - to £5.80 per hour
• workers aged 18 – 21 - to £4.83 per hour
• workers over minimum school leaving age and under 18 - to £3.57 per hour.

As from 1 October, tips, gratuities and service charges paid through the payroll no longer count towards the NMW. This particularly affects the hospitality industry (as well as hairdressers and barbers). The British Hospitality Association has published a voluntary Code of Practice on Discretionary Tips and Service Charge which encourages restaurants to tell their customers how they deal with discretionary service charges and non-cash tips. See: www.bha.org.uk/details.cfm?page=news§ion=bhanews&codeid=3173

Finally, there are two new classes of people who do not qualify for the national minimum wage: these are workers participating in the European Community Erasmus and Comenius Programmes, part of the European Union's action programme in the field of lifelong learning.

For further details about the National Minimum Wage, please see: /docs/legal/minimumwage.html

The amount of a "week's pay", used to calculate statutory redundancy payments and a basic award at tribunal, was also increased on 1 October to £380. This will apply in relation to dismissals taking effect on or after 1 October 2009.

The increase is earlier than usual (the normal review date is February each year) and so the next increase will not take place until 1 February 2011.

For further details re how to calculate statutory redundancy payments, see: /docs/legal/readyreckoner.html

Again as from 1 October 2009, the fees payable by data controllers to register or renew with the Information Commissioner to process personal data have changed. The previous flat fee of £35 remains for any data controller with fewer than 250 employees, but those with more than this (and private companies with an annual turnover of £25.9 million or more) will have to pay a much larger fee - £500.

For more information on the Data Protection Act and registration see: /docs/legal/dataprotection.html

The revised ACAS Code of Practice on time off for trade union duties and activities has been approved. ACAS has also published two non-statutory guides to accompany the Code of Practice which provide further information on managing time off for trade union representatives and non-trade union representatives.

See: www.acas.org.uk/index.aspx?articleid=2391

The new, centralised vetting system introduced under the 2006 Safeguarding Vulnerable Groups Act for people banned from working with children and vulnerable adults will be introduced in stages from 12 October in England, Wales and Northern Ireland and will be enacted in full by November 2010. It will go live in Scotland in 2010, although no exact date has been set.

A set of frequently asked questions is now available on the Independent Safeguarding Authority (ISA) website to help with this: see www.isa-gov.org.uk/Default.aspx?page=395

For further general guidance, see /docs/legal/employeesconvictions.html

Don't shoot the messenger - we know that this is going to be highly unpopular with many of our clients!

Until now, it has been up to employers to decide whether holiday should be "given back" to employees who are sick whilst on holiday - thus allowing the holiday to be taken at a later date. It is fairly common for public sector employers to do this, but not for private sector employers, where it has been simply regarded as "bad luck" if the employee is sick whilst on pre-booked leave. The European Court of Justice (ECJ) has now ruled that workers who go on sick leave during a period previously scheduled as annual leave for the purposes of the Working Time Directive should be allowed to reschedule their holidays, even if that means allowing the leave to be carried forward into a subsequent holiday year.

The case is a Spanish one, Pereda v Madrid Movilidad SA. Mr Pereda was scheduled to be on annual leave for the period 16 July - 14 August 2007 inclusive. He had an accident at work on 3 July and was unable to return to work until 13 August. He asked to be allowed to postpone his annual leave to take a later date but his request was refused and so he brought a claim. The ECJ said that sickness and holiday are two different things - sick leave allows employees to recover from being ill, and annual leave, under the Working Time Directive, is intended to be a period of relaxation and leisure which a worker should not be deprived of. So the ECJ said that Mr Pereda was entitled to reschedule his annual leave where this overlapped with his sick leave (16 July to 12 August). The ECJ also said that, if necessary, such leave could be carried forward to the next holiday year.

The judgement specifically says: if a "worker does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period". This suggests that workers are not only entitled to postpone forthcoming holiday because of sickness, as in the case of Mr Pereda, but also if they become ill whilst absent on annual leave, they must be allowed to reschedule the annual leave on return to work, in order to ensure that they get the minimum statutory 4 weeks holiday.

Workers may still choose to request to take annual leave during a period of sick leave but, if they choose not to do so, they can insist on postponing the annual leave and taking it at a later date. The case of Stringer and Schultz-Hoff confirmed that workers who are absent on long-term sick leave continue to accrue their statutory holiday, and this must be carried over if there is no opportunity to take it during the holiday year. So it would appear that a worker on sick leave for several years can accumulate several years' annual leave entitlement which he/she must then be able to take upon his/her eventual return to work or, if the employment is terminated, be paid in lieu for that holiday entitlement.

The UK's Working Time Regulations clearly state that leave cannot be carried over from one year to the next (subject to a limited exemption covering the additional 1.6 weeks’ leave introduced over recent years). Private sector employers may therefore still be able to argue against leave being carried forward, although it seems likely that tribunals may 'reinterpret' the WTR in line with the European law. Public sector employers may be required to give immediate effect to the Directive rather than UK law and allow leave to be carried forward (which many do anyway). It would seem that the clauses in the UK's Working Time Regulations 1998 which expressly prevent the carry over of the first four weeks of statutory working time leave into a subsequent leave year will need to be amended to provide for the right to carry over where the worker has not had the opportunity nor wished to take annual leave during sick leave. The government has however not confirmed whether it will amend the WTR - a spokesman from the Department for Business, Innovation and Skills simply said "We are examining the terms of the judgement and will consider issuing further guidance in due course."

The ECJ ruling did not comment on when an employee should contact his/her employer to notify the sickness or what proof of illness is required. So the same notification of absence procedures as apply to those who are at work will presumably apply, unless employers stipulate something different.

However, do also note (this is where it gets even more complicated) - this ruling applies only to the statutory four weeks holiday entitlement under the Working Time Directive. The additional 1.6 weeks was UK, not European, legislation - so there is nothing to stop an employer refusing to rearrange holidays once a worker has already taken four weeks paid leave in the holiday year.

Needless to say, many commentators think that this European ruling has gone a few steps too far!

Ben Willmott, Senior Public Policy Adviser at the Chartered Institute of Personnel and Development (CIPD), was quoted in People Management as saying:

This is an extremely disturbing ruling that could be impossible for employers to manage. It may be logical for lawyers, but it is a ruling completely divorced from the real world. It is well-established that employers should take on some of the risk of employees being sick on work time, but it is basic common sense that employees should in turn be willing to accept the risk that they may be sick on leave. A resort tummy bug or an ill-timed cold are unfortunate facts of life. None of us wants one, but why should employers be forced to compensate employees? Even more worrying is the risk that unscrupulous staff will now potentially be able to self-certify fabricated sickness while on leave, and not only gain extra holiday but carry it over to the next year. The sad fact is that nonsensical rulings such as this could force good employers to review relatively generous occupational sick pay schemes, and consider opting for Statutory Sick Pay schemes instead. If ever there was a case of the law of unintended consequences, this could be it.

In summary:

Q: Can an employee who is sick insist on postponing pre-booked leave and taking it at a later time?

A: Yes - provided he/she has not already taken 4 weeks leave in that year.

Q: Can an employee choose to take annual leave whilst off sick?

A: Yes

Q: Can an employer require an employee to take his/her annual leave during sick leave?

A: No, not even by following the statutory procedure of giving twice as much notice as the holiday to be taken, and not even during periods of shutdown. If the employee chooses to have sick leave instead, the holiday must be allowed to be taken at a later date.

Q: If the employee does not take the leave whilst off sick, is it carried forward?

A: Yes, the statutory four weeks should be carried forward. (Employers can make their own rules about any contractual holiday on top of this.)

Actions to take:

It is clear to many employers that this new right could be widely abused, particularly where employers have generous contractual sick pay schemes and a culture of sick pay being an entitlement. You may wish to tighten your absence notification procedures and your monitoring of absence and in particular:

• review your contracts - sick pay: If you pay SSP only, then there is little benefit in the employee trying to reclaim the odd day's holiday as this would be unpaid. If your sick pay is limited, or your absence levels very low, then you may feel that it doesn't matter too much as it is unlikely to be abused. If you have genuine concerns about employees using a generous sick pay scheme to extend their holidays, you may wish to amend your sick pay entitlement so that sickness during periods of holiday are only paid at the statutory minimum payment (rather than at any contractual sick pay rate) - however note that you can only change contracts for existing staff with consultation and agreement. If you have very generous holiday entitlements, you may wish to also consider whether to introduce a clause in contracts of employment which prevents annual leave over and above the statutory minimum from accruing during periods of long-term sick leave (you will need to define "long-term" as there is no legal definition of this).

• review your contracts - carry over: also review any wording in the contracts or handbook which stipulates that holiday cannot be carried forward into the next year so that leave untaken due to illness CAN be carried forward to the next annual leave year so that the employee has the benefit of the minimum four weeks holiday.
• review your contracts - notice period: if you don't already have this, you may wish to include in your future contracts a clause requiring employees to use accrued holiday during their notice period.
• absence notification procedures: check that your absence notification procedures are clearly and thoroughly communicated and followed, especially any new rules regarding the notification of sick absence whilst absent on holiday
• evidence of incapacity: consider amending your absence policies and procedures to require medical evidence of ill-health while on holiday, even for short-term absences - and make it clear that this evidence is required to convert pre-booked holiday into sick leave. You may feel that your existing notification procedures are fine, irrespective of whether the employee is sick during scheduled working time or holiday. If you decide to continue to self-certify for the first week, you may even, as the CIPD suggests, insist that employees phone in on each day that they are sick whilst on holiday to speak to their manager to confirm that they are sick. Or you may wish to insist on a medical certificate for all such conversions.
• review any staff who are currently on long-term sick: ensure that you have robust procedures to monitor absence, prompt dialogue with the employee and encourage an early return to work. We suspect that employers will no longer be prepared to leave sick employees "on the books" for long periods since they will be accruing paid holidays throughout this time. (Our hot topic this month is managing long-term sickness - so timely!)
• review your PHI arrangements: if your policy insists that the worker remains an employee in order to get the benefit, you may wish to discuss this with your provider. Case law has been that if a dismissal prevents an employee from gaining a benefit owing to them under the contract, you should not dismiss. But paid holiday implications were probably not foreseen at the time of many policies being taken out.
• alert your payroll department: as they may have to do some messy calculations. If the worker is paid holiday pay and then becomes entitled to SSP during the holiday period, the system will need to allow for some recalculations! Unless covered by a more generous contractual sick pay scheme, the worker will just be entitled to SSP (which is nothing for the first three days, and then £79.15 per week).

Note that our template contracts, employee handbook and absence policy have been updated to include suggested wording on the above, which can be customised.

Finally, on the same subject, the Employment Appeal Tribunal is due to judge on a further challenge to the WTR. In Lyons v Mitie Security Ltd, company policy required one month's notice of annual leave requests. Three weeks before the end of the leave year, the employee (who had not been absent), requested his remaining statutory annual leave. This was refused as the employee had failed to give the requisite notice. The contract provided that any holiday entitlement not taken in the relevant holiday year would be forfeited. An employment tribunal dismissed the claim, but on appeal to the EAT, it was argued that the employer was legally obliged to ensure that the employee actually took his statutory holiday within the relevant leave year, or to permit him to take the leave despite the short notice. If the EAT agrees with the employee, this makes nonsense of the statutory fallback scheme for requesting holiday which requires the employee to give twice as much notice of the requested holiday to be taken. It will mean that employers will have to check that every employee is taking their full holiday or else require them to take it at certain periods.

For more details on the statutory holiday and the Working Time Regulations, see: /docs/legal/workingtime.html For a guide to managing holidays, see: /docs/guides/holidays.html

Parental leave:

The European Commission has approved an increase in parental leave from three months to four months' leave for each parent. The new provisions will apply to all employees including part-time, fixed-term and agency workers.

Parents in the UK are currently entitled (subject to certain eligibility requirements) to take up to thirteen weeks unpaid parental leave for each child up until the child’s fifth birthday (or, if the child is disabled, up until the eighteenth birthday).

The recommended increase will be put before the European Council and requires a majority vote before becoming legislation, which will then have to be incorporated within UK law. The proposed timescale is that the amended Directive will be approved by the end of the year, so that the changes can come into force in 2011.

Paternity leave:

Parents of children due on or after Sunday 3 April 2011 (not 2010 as previously planned) will be able to share the 52 week maternity leave period, allowing the father (or partner) to take up to six months of the mother's maternity leave.

The new right to 'additional paternity leave' will be in addition to the existing right to take two weeks' paid leave at the time of the child's birth. Provided that the other parent has returned to work, the father will be entitled to take up to three months' paid leave (paid at the same rate as SMP, currently £123.06), and three months' unpaid leave. The total amount of leave available for parents to share remains at 12 months, with a total of 39 weeks being paid.

The proposed timetable is that the father will be required to give at least 8 weeks' notice of his intention to take additional paternity leave and pay (ie the same period as that for a mother who wishes to return to work early from her maternity leave). The additional paternity leave must be taken in one block, and a minimum of two weeks must be taken. The employer is likely to be required to confirm the father's entitlement to take the leave within 28 days following receipt of the notification.

Just as for mothers, the father's contract of employment will continue throughout the additional paternity leave, so any the terms and conditions of employment which would have applied if he had been at work (with the exception of terms relating to his salary) will continue. This includes benefits such as company cars, health insurance, mobile phone and childcare vouchers.

Similar provisions will also apply in the case of adoptions, where the child is matched for adoption on or after 3 April 2011.

The Government has now issued draft regulations - see www.berr.gov.uk/consultations/page52964.html Consultation closes on 20 November 2009.

Maternity pay:

The government has now decided not to proceed with its previous plans to extend maternity pay from 39 to 52 weeks at the same time as increasing paternity rights.

For more information on maternity leave and pay see: /docs/legal/maternityparental.html For information on the current paternity leave and pay see /docs/legal/paternity.html

Under the Employment Equality (Age) Regulation 2006, an employer can require employees to retire on reaching the age of 65 without having to justify that decision, provided the statutory retirement process is followed and any request by the employee to continue working beyond 65 is considered. This applies even if the employee is willing and able to continue working. Employers can also refuse to recruit anyone over the age of 65 without giving reasons for doing so.

This was challenged by charity Age UK (formerly Age Concern) and is commonly known as the "Heyday" litigation. Their argument was that Regulation 30 should be removed since there was no clear and consistent social policy aim; and the choice of a Default Retirement Age (DRA) at 65 was not proportionate.

The High Court however has now ruled that the default retirement age IS lawful, so employers are still able to enforce a retirement age of 65 although the judgement includes a number of comments that are highly critical of the choice of 65 as the default retirement age. Mr Justice Burke made it clear that his decision would have been different if the Government had not recently decided to bring forward its review of the DRA from 2011 to 2010. He commented that given our current economic situation and the burdens that an ageing population places on the social security system, a DRA above age 65 would now seem sensible. He concluded that a higher DRA would not have any adverse affect on the labour market or block access to jobs.

All the employment tribunal claims concerning compulsory retirement at 65 that are currently pending are now likely to be dismissed in the near future.

So - we continue as normal for the time being, but those clients who are confidently expecting to retire staff in 2-3 years time may find that the rules have changed by then. So it's also worth starting to consider how to manage an older workforce if a default retirement age is no longer an option and to look at flexible retirement options, performance management and workforce demographics and planning.

For further details of the statutory retirement procedure see: /docs/legal/retirement.html For template letters helping you to comply with this see: /docs/lf/retire/index.html

There are a number of detailed changes to the points-based system. Updated guidance for sponsors and applicants is on the UK Borders Agency (UKBA) website: www.ukba.homeoffice.gov.uk but the main ones are as follows:

• Tier 2 - general - the requirement that a migrant's salary must be paid in the UK has been removed, so sponsored migrants may now be paid by overseas branches of their company.
• Tier 2 - general - British companies will no longer have to advertise job vacancies in local job centres if the role is a director, chief executive or legal partner; and/or the salary package is more than £130,000 and/or where there will be stock exchange disclosure requirements (although such jobs will still need to be advertised on specialist recruitment websites).
• Tier 2 - ICT - skilled foreign national workers who are sponsored by employers to work in the UK. From next year:
  • all jobs under Tier 2 must be advertised in JobCentrePlus for four weeks (as opposed to the current two weeks) before they can be offered to workers outside Europe.
  • employees of international companies will have to be employed by the overseas company for at least one year (rather than six months) before they can transfer to working in the UK under the Intra-Company Transfer category.
  • the minimum salary for an individual to qualify as a skilled worker and be eligible to work in the UK will rise to £20,000 (currently £17000).

  These changes are designed to discourage the use of foreign workers for posts which could be held by a resident worker. However, the Chartered Institute of Personnel and Development reports that the latest statistics confirm that many employers still rely on migrant workers to fill skills shortages.

• Tier 4, phase 3 (the voluntary trial period of the sponsorship management system for Tier 4 sponsors)- went live on 5 October. This trial period is intended to allow sponsors to continue using visa letters while gradually adopting the use of the sponsorship management system to issue confirmations of acceptance for studies, prior to becoming mandatory next February. Between 5 October 2009 and February 2010, sponsors will be able to issue confirmations of acceptance for studies, visa letters, or a combination of both, to would-be students applying from within the UK. Possible students applying from outside of the UK will be required to continue to apply with a visa letter until February 2010.

The employment of illegal workers hit the news headlines when Attorney General Baroness Scotland was fined £5,000 after employing a housekeeper who was not legally allowed to work in the UK. The UKBA said she took steps to check Tongan Loloahi Tapui's right to work but had not complied with the legal reqirement to keep a copy of the documents. Employers who are unable to provide evidence that legally-required checks were carried out face fines of up to £10,000 per illegal worker. For further information on the checks you must make, see: /docs/legal/righttowork.html

The Criminal Records Bureau has revised its Code of Practice for recipients of disclosure information. The Code is issued under s122 of Part V of the Police Act 1997 and all registered bodies are bound by its provisions.

See: www.crb.gov.uk/PDF/Code%20of%20Practice.pdf

Discrimination: motive is irrelevant

Amnesty International is not an employer you would expect to see facing a race discrimination claim!

However in Amnesty International v Ahmed it faced a claim for both constructive dismissal and direct and indirect race discrimination.

Miss Ahmed, employed by the charity as a campaigner on issues relating to Sudan, was shortlisted but not appointed to a Sudanese Researcher post. Miss Ahmed is of northern Sudanese ethnic origin. Amnesty were concerned that staff who work in their country of origin may lack, or may be perceived to lack, impartiality and this could adversely affect Amnesty's reputation. They were also concerned that such employees might be at greater risk when visiting the country in question and in relation to Miss Ahmed specifically, they were concerned about safety risks if she and her colleagues travelled to Sudan or Eastern Chad.

Amnesty denied discrimination, but argued anyway that if Miss Ahmed had been appointed and had to travel to Sudan or Eastern Chad, the risks to her safety would have meant that they were in breach of their duties as an employer under the Health and Safety at Work Act 1974.

The initial employment tribunal upheld both the race discrimination and constructive dismissal claims.

The Employment Appeal Tribunal (EAT) also found direct discrimination. They said that Amnesty's decision not to appoint Ahmed was on the ground of her ethnic origins, and this was direct discrimination. Whilst well-intentioned, Amnesty's motives for discrimination (ie their concerns about lacking impartiality and safety concerns) were irrelevant as such direct discrimination could not be justified.

However, the EAT did not uphold the constructive dismissal claim. Amnesty's reasons for its treatment of Ahmed were serious and genuine, they had not displayed any racial prejudice, or acted without reasonable or proper cause. Miss Ahmed was not therefore entitled to feel that the relationship of trust and confidence had been destroyed or seriously damaged.

So - whilst Amnesty was not found to have constructively dismissed Ahmed, they were found to have directly discriminated against her. There can be no justification for direct race discrimination - good intentions are irrelevant where an employee is subjected to a detriment on the grounds of one of the protected characteristics of race, sex, age, sexual orientation, disability or religion, or belief.

Discrimination - are volunteers protected by anti-discrimination legislation?

Church of Scotland minister, the Reverend Mahboob Masih, was a volunteer presenter on Awaz FM, a state-supported radio station aimed at the Asian community. After six years service, he was dismissed following a debate on air about the uniqueness of Christianity. This led to a phone-in discussion that reportedly angered the Muslim management of the community radio station.

The Reverend complained to an employment tribunal of discrimination based on his Christian faith; the station said that his claim should not proceed because he was not an employee.

At the tribunal, Employment Judge Raymond Williamson said: ".....can it be right that the respondent, a creature of statute, partly-funded out of public funds and set up with the aim of promoting social cohesion, should be able to discriminate on religious grounds against the volunteer staff it is obliged to engage as a condition of its licence?" Reverend Masih has therefore been allowed to refer his case to the European Court of Justice for a ruling on whether volunteers are protected by anti-discrimination legislation.

Discrimination - injury to feelings

In a case from 2003, Vento v Chief Constable of West Yorkshire, guidance on injury to feelings awards in discrimination cases was set out by the Court of Appeal. The EAT has now said that these amounts should be increased to reflect inflation, and in Da'Bell v NSPCC laid out the revised upper limits for the three bands as follows:

• lower band: increases from £5,000 to £6,000 - to reflect less serious cases - for example minor one-off occurrences
• middle band: increases from £15,000 to £18,000 - for serious cases that don’t merit the highest awards
• upper band: increases from £25,000 to £30,000 - for the most serious cases - for example a campaign of harassment.

Note however that injury to feelings awards are compensatory, not punitive, and therefore may be uncapped. This judgement has immediate effect.

Constructive dismissal claims - mitigating the loss

The Court of Appeal has confirmed that the principle set out in the case of Norton Tool v Tewson does NOT apply to constructive dismissal cases. In Norton Tool, an employee who is summarily and unfairly dismissed is entitled to receive compensation, including pay in lieu for the entire contractual notice period, irrespective of any earnings from new employment during that period.

In Stuart Peters Limited v Bell, the Court of Appeal held that, when an employee is constructively dismissed, the “Norton Tool” principle does not apply. An employee who is constructively dismissed is required to mitigate his/her loss in respect of notice pay and so sums earned from other employment during the notice period should be taken into account.

Has it all gone quiet or is this the lull before the storm?

The government's latest prediction about the number of people expected to go off sick with the virus is 12% until May 2010.

Research carried out by law firm Eversheds found that 72% of their respondents reported swine flu absenteeism - however 41% said that they did not have a contingency plan in place. This tallies with research by the Business Continuity Institute which found that 57% had no plans to deal with a swine flu epidemic.

Read our guide to managing swine flu and ensure that you have a contingency plan in place to cover for absent colleagues: /docs/hasaw/swineflu.html

The full range of HSE guidance and approved codes of practice is soon to be made available free of charge on the HSE website, as part of a major drive to encourage use of and compliance with the information. The copyright status on the publications has also been amended to encourage re-use, so organisations will no longer have to pay for licensing to reproduce contents.

Around 50 publications will be made immediately available with the remainder ready to download by the end of March 2010. Hard-copy versions will continue to be sold, and the content of the print and online versions will be identical. The health and safety law poster, which employers must display in a prominent position in their workplace, will remain a priced item, as will HSE films.

See: www.hse.gov.uk/index.htm

The HSE has announced that the mandatory four-day first aid at work training courses will be reduced to three days and a one-day course for smaller firms will be introduced.

New guidance will be issued shortly - see www.hse.gov.uk/firstaid

We've added a step by step guide to disciplinary investigations - see /docs/sbs/investigate/index.html -

and we've also reviewed ALL of our template letters and forms and tweaked some slightly to allow more customisation to suit particular circumstances.

Please note that premium subscribers can now prepare and download any of our letters as html documents - which can then be saved and reopened using MS word (or other word processing software) and formatted into your own font and style. This allows users to quickly prepare a robust template and then customise even more easily. For more details of our premium service which costs an extra £100 per year see: /intro/premiumservice.html

"Jobseekers Allowance (JSA) Claims by Occupation" suggest that those in the worst paid jobs have also been hardest hit during the recession. Between July 2008 - July 2009 the number of people claiming unemployment benefits increased by more than 700,000. This includes an increase of 76,230 sales and retail assistants. 37% of those who usually have junior admin jobs are currently claiming JSA, as are 30% who normally have basic jobs in processing plants and 20% of those who usually work in storage and warehouse occupations.

The CIPD predicts that unemployment in the UK is unlikely to return to pre-recession levels until 2015.

A report into 50 leading City firms by the Equality and Human Rights Commission (EHRC) found that women working in banks are paid 80% less in bonuses than their male colleagues. The starting salaries for women working in the financial sector were also significantly lower than men and overall, including bonuses and salaries, the gender pay gap in the City stands at 47%.

It is suggested that one of the main reasons for this is the sector’s age profile. Most workers are aged between 25 and 39, the age at which women tend to have childcare responsibilities.

The EHRC report identified some areas of good practice, such as making average data on bonuses by gender available to employees and offering a buddy system to support pregnant women and those on maternity leave. It also makes various recommendations for City employers, including appointing a board member to tackle the gap, carrying out annual pay audits and setting up parental support schemes.

Employees who are required to attend a grievance or disciplinary meeting are entitled to be accompanied by either a colleague or a union representative, irrespective of whether the union concerned is recognised by the employer.

Until now, it has been the case that unions would only represent their members but we are now coming across businesses which hire out accredited union reps on a paid basis to employees who are not members of that union and who have no intention of joining.

We did some research on this and called both ACAS and the TUC for guidance. ACAS said they had not come across this before, but that as long as someone is certified competent to act as a companion, this would be OK. The TUC surprisingly confirmed that they did not have a stance on this.

The employment tribunal judge we spoke to also confirmed that this was legal. She referred us to the ERA1999 where the right to be accompanied is set out. Section 10, para 3 does not stipulate that the employee must be a member of the union, nor intend to join. The union official simply has to be "an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings". So a fully trained union representative can act as a companion for whomsoever he/she chooses, for a fee or not. Whether the unions who are funding the training will be happy for their reps to be selling their services for their own financial benefit, rather than using the skills purely for the benefit of their members, remains to be seen. The regional secretary of the FBU for example confirmed to us that their representatives should only act as a union representative for members within the fire service and not act as a union representative for others.