Here’s what’s in this edition of our Further Education Bytsize:
- Everything is under review! – Actons’ Director and Employment Laywer, Nic Elliott shares thoughts
- Read all about it? Employment tribunal decisions to go online
- Human error remains main cause of data breaches, ICO data shows
- Is the handbook part of the employment contract?
- Rise in maternity discrimination
- Disability discrimination – maintaining pay protection can amount to a reasonable adjustment
- Taxation of employment termination payments – Changes from April 2018
I’ve been catching up recently with Further Education clients and contacts following the start of the new academic year. It’s a busy time, with a new intake of learners and a fresh start for many people.
What hasn’t changed is the pressure on this sector at the moment. Area-based reviews roll on, and mergers and “partnerships” are now regularly reported in the sector press, as colleges try to steal a march on the review process and control their own destiny as far as possible moving forward. Funding continues to be difficult and constant change and uncertainty is a feature of everyday life.
The irony also wasn’t lost on me, reading recently in FE Week, that the new chief executive at the AoC (David Hughes) will start his tenure with a “review” of the organisation. It seems everything is under review!
There is no doubt that change and uncertainty can have a negative impact on a workforce’s morale. In many sectors less affected by the pressures felt in FE at the moment, the introduction of Employment Tribunal fees and the resulting dramatic drop in claims, seems to be allowing employers some breathing space to manage their people in a more positive way and to focus on things like engagement and being an ’employer of choice’.
This new HR landscape may not be so apparent in FE given the constant restructure and change. But when times are hard, is there any more important time to focus on doing people management well and keeping those working hard in a difficult sector motivated and productive.
I’m looking forward to catching up with the HR Director contacts at the AoC employment law conference later this week and ‘surprise surprise’, mergers, collaborations and restructure are on the agenda for discussion. It will be interesting to gauge the mood of those senior HR professionals grappling with these issues – perhaps I’ll carry out a review!
A new online database of employment tribunal decisions will be available to all to search on the internet from Autumn 2016. Currently, paper copies of judgements from England and Wales are stored separately to those from Scotland whereas the new database will cover judgements in both England Wales and Scotland. Although the new database will initially cover new judgements, the decision is still to be made on whether existing judgements will be converted and made available online.
In the 448 incidents of data breach recorded by the UK regulator during the first three months of 2016, most incidents could be attributed to human error according to data released by the regulator. Of the incidents, 74 were recorded as a loss or theft of paperwork. A further 74 were cases where data was posted or faxed to the wrong recipient. In 42 cases, data was emailed to the incorrect recipient. Unencrypted devices were either lost or stolen on 20 occasions, and 24 cases concerned insecure disposal of paperwork.
In a recent case, the Court of Appeal had to consider when terms in a handbook are incorporated into a contract of employment. They decided that the absence management policy did have contractual effect.
It is a handy reminder that employers should always make it clear which provisions in the handbook are intended to be contractual and which are not. If you are in any doubt, you should seek legal advice. It is a good idea to have handbooks reviewed from time to time to ensure any legislative changes are made, for example in relation to family friendly rights which have been the subject of much change over the past few years.
The case was the Department for Transport v Maureen Sparks and Ors (2016)
Research from Citizens Advice shows that there has been a 60% increase in the number of women seeking advice on discrimination around maternity and maternity leave issues in just a year. The most common issues it dealt with included redundancy, reduction in hours, including being moved to a zero-hour contract and having a role changed upon return to work.
A recent case has found that the maintaining of pay protection can amount to a reasonable adjustment. The EAT decided that an employee whose condition meant that he could no longer do his original role due to not being able to do heavy lifting or work in confined spaces, was entitled to pay protection for the newly created key runner role which involved driving to the engineers in the field delivering parts and keys.
The new role had no requirement for engineering skills as the original role had and the employer argued that a lower rate of pay should be applied to the new role. The EAT decided that the employer was required to employ him at his original rate of pay as a reasonable adjustment under section 20 of the Equality Act 2010. The duty to make reasonable adjustments envisages cost to the employer.
The tribunal concluded that it was possible to envisage cases where pay protection was a reasonable adjustment to get an employee back to work or keep an employee in work as required by the legislation. Clearly it will depend on the individual circumstances but employers need to be aware of this development.
The case was G4S Cash Solutions (UK) Ltd v Powell.
The Government has published the response to its consultation on the treatment of employment termination payments. The good news is that the current tax exemption of £30,000 for termination payment is being preserved.
However, the changes mean that the exemption will no longer cover any pay, bonuses or benefits which would have been earned in the notice period. There is further consultation on going but the changes are proposed to take effect from April 2018.
Posted on September 15, 2016