Employment Law Update - April 2010

FIT NOTES, ADDITIONAL PATERNITY LEAVE AND MINIMUM PENSION AGE

FIT NOTES

New "fit notes" will come into use from Tuesday (6 April 2010) in place of the existing sick note.

The idea is that the fit note focuses on what can be done to assist an employee's return to work. Instead of only being able to sign an employee off sick, GPs now have the option of certifying that an employee "may be fit for work". If this option is used, the GP can suggest adjustments to the work or workplace which would enable the employee to go back to work.

Importantly, if the employer is unable to accommodate the adjustments proposed by the GP, the employee will be considered not fit for work. An example of how this could work in practice is set out in the following scenario:

An employee is signed off sick for two weeks with stress. During this time the employee is paid statutory sick pay (SSP) in accordance with his contract of employment.

After his initial two week absence, the employee turns up for work with a fit note. His GP has stated in the fit note that the employee is able to carry out relatively stress-free duties, such as photocopying and making coffee. The employee says he would be happy to make coffee and photocopy all day in return for full pay.

The employer has the option of explaining to the employee that there are no suitable duties that the employee could carry out. The employer can then send the employee home and continue to pay SSP. The employer uses the fit note as if the GP had advised that the employee was not fit for work.

Where a GP certifies an employee "may be fit for work", it is ultimately up to the employer to decide whether the employee is fit for work (this may include carrying out a risk assessment). There is no specific penalty imposed on an employer for failing to implement the recommendation made by a GP, but employers need to watch out for:

• Disability Discrimination Act (DDA) claims - employers have a duty to make reasonable adjustments to accommodate disabled employees in the workplace and so if recommendations are ignored where the DDA may apply, litigation may ensue. There is no cap on the award of compensation that can be awarded where discrimination is found.



• Grievances - employees may become aggrieved about the way in which a "may be fit for work" statement is handled. When a grievance is raised an employer should follow the ACAS code of practice. A failure to do so, coupled with a successful tribunal claim, will see an increase in compensation of up to 25%.



• Breaching trust and confidence - if a "may be fit for work" situation, or a subsequent grievance, is handled poorly by an employer, an employee may seek to resign and claim that trust and confidence has been lost and that they have been constructively dismissed. Whilst often difficult claims for employees to succeed with, the time, cost and risk of litigation is better avoided.

Quick tips for employers:

• Meet with employees promptly when receiving a "may be fit for work statement" and have meaningful discussions with them. Bearing in mind your obligations under the DDA, ensure that if you are rejecting a recommended adjustment then you are doing so having considered this properly and can justify why it is not feasible.



• If you do not have an occupational health advisor on board already, consider your options for referrals to occupational health advisors, which may increase under the new scheme.



• Update your employment contracts and sickness absence policy to reflect the fit note system and your way of dealing with the "may be fit for work" option.

We expect the fit notes to cause some conflict between employers and employees, at least in the weeks or months following their introduction.  Much will depend upon how individual GP's complete the note.

If you have any questions regarding the new fit note, or sick leave in general, please contact us.  We are here to reduce the cost to your business of employment related rules and regulation.

INCREASE IN ADDITIONAL PATERNITY LEAVE AND PAY

New regulations come into force on 6 April 2010 providing for additional paternity leave and pay to parents of babies born on or after 3 April 2011.

Fathers will have the right to take a maximum of 26 weeks' paternity leave if the mother were to return to work early. Some of the leave would be paid if taken during the equivalent of the mother's paid leave period.

Similar rules will apply to adoptions.

We will contact members of our Employment Year Service in due course with an update to their policies and procedures. All employers should update their policies by mid-2010 to provide for the changes.

Statutory maternity, paternity and adoption pay will increase from 04 April 2010 to £124.88 a week (or 90% of normal weekly earnings if lower).

If you are concerned that your policies and procedures do not comply with the latest changes, or what liability you may be facing if they are not up to date, please contact us.

RISE IN MINIMUM PENSION AGE

The minimum age at which people can start to receive pension payments from an occupational or personal pension scheme rises from 50 to 55 on 06 April 2010.

There are some exceptions to this, including where the scheme member has a protected pension age or severe health problems.

If you have any questions or issues relating to this e-mail or any other employment related matters please feel free to contact:

Alistair Latham
Tel: 01482 324591
e-mail: ail@sjplaw.co.uk

Mark Daubney
Tel: 01482 324591
email: mtd@sjplaw.co.uk

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DISCLAIMER:
The information and any commentary on the law contained in this e-mail is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the author.

The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a solicitor about your case or matter and not to rely on the information or comments contained in this e-mail.

Stamp Jackson & Procter
Solicitors
5 Parliament Street
Hull
HU1 2AZ

Tel: 01482 324591
Fax: 01482 224048

http://www.sjplaw.co.uk/

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