2 October 2006

HR responses to new laws

HR practices are constantly changing through the emergence of case law and new regulations, most of which now come into force on one of the two common commencement dates: 1st October or 1st April.

This October is no exception, and below is a summary of the core personnel areas, which will be affected by new laws, and require some form of action on the part of the HR professional.

Recruitment

It will be unlawful to discriminate against a job applicant on the grounds of age, unless this can be objectively justified. Job adverts should not specify ages and must be carefully worded to avoid using words, which give the impression of bias towards a particular age group e.g. "mature candidate", or "lively, enthusiastic person". Applicants can still be asked for their date of birth, but consideration should be given to removing this, and other personal information, prior to short-listing. Selection criteria must be reviewed to ensure that it does not directly or indirectly discriminate, for example, by requiring a set number of years experience. Instead, job specifications should identify and quantify the actual experience or attainments needed.

Pay and benefits

Rates of pay will need to be checked to ensure that they at least meet the new National Minimum Wage of:

• £5.35 per hour for workers 22 or over
• £4.45 per hour for workers aged between 18 and 21
• £3.30 per hour for 16 or 17 year olds

Eligibility for benefits should not be based on age unless this can be objectively justified. There is no general exemption where the provision of employment-related insurance to certain age groups will have an increased cost. Justification may be possible where the increased cost relates, for instance, to liability insurance and so has a health and safety or compliance with other legislation aspect. However, for benefits such as PHI, critical illness, health insurance and life insurance cover, it is doubtful whether increased cost alone will be able to excuse age discrimination.

Any benefits, which are awarded according to length of service, will also need to be justified, unless they are exempt under the new laws prohibiting age discrimination. Exemption will apply to benefits awarded over a period of 5 years or less, but longer periods must reasonably appear to fulfil a business need, such as encouraging loyalty or motivation or rewarding experience.

Enhanced redundancy payments must be calculated using the statutory age bands and the amount determined as a result of multiplying the statutory formula. Calculations, which do not mirror the statutory scheme, will need to be objectively justified.

Employees will now qualify for the statutory payments for sick pay, paternity pay, maternity pay and adoption pay irrespective of their age. Accordingly, employees over the age of 65 will be entitled to SSP after 1 October 2006.

Policies and procedures

Written employment policies will need to be updated and communicated.

Policies covering equal opportunity in the workplace should include provisions for discrimination and harassment on the grounds of age.

Maternity and adoption policies will need to reflect changes to the statutory schemes, which will apply now to employees with an expected week of childbirth, or an expected date of placement, on or after 1 April 2007. The key changes are:

• Employees will automatically qualify for both ordinary and additional maternity leave
• The period of statutory maternity pay and statutory adoption pay will increase from 26 weeks to 39 weeks and payment can start on any day of the week
• The period of notice which is required to be given to return to work before the end of additional maternity or adoption leave is increased from 28 days to 8 weeks
• The introduction of "keeping in touch" (KIT) days enabling employees on maternity or adoption leave to attend the workplace or undergo training for up to ten days without losing their right to statutory pay.

The normal retirement age for all staff should not be below 65 unless objectively justified. Retirement policies will need to be updated, or introduced, to confirm the intended date of retirement and setting out the procedure to be followed to request working beyond this date. The "duty to consider" procedure requires that employers notify the employee in writing of their right to make a request, normally at least 6 months before the intended date of retirement. The employee can request to work for a fixed period, until a specified date or indefinitely and the employer must hold a meeting with the employee to discuss the request. If the employee wishes, he has the right to be accompanied to the meeting by a work colleague. The employer must notify the employee of his decision in writing and offer the right to appeal.

Termination for redundancy

In the event of your organisation going through a collective redundancy procedure you should note that form HR1, the advance notice to the DTI of redundancies, must now be submitted at least 30 days before you give notice to terminate the employment of those affected.

Summary

The above is only intended to act as a guide to some of the provisions most likely to have an immediate impact, and should not be taken to be an exhaustive list of the requirements to comply with all new legislation. There are at least thirteen separate pieces of employment legislation which come into force on 1st October 2006 including:

• Employment Equality (Age) Regulations 2006
• Regulatory Reform (Fire Safety) Order 2005
• National Minimum Wage Regulations 1999 (Amendment) Regulations 2006
• Employment Act 2002 (Amendment) Order 2006
• Collective Redundancies (Amendment) Regulations 2006
• Paternity and Adoption Leave (Amendment) Regulations 2006
• Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006
• Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations
• Statutory Paternity Pay and Statutory Adoption Pay (General) and the Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) (Amendment) Regulations 2006
• Statutory Maternity Pay and Maternity Allowance (Amendment) Regulations 2006
• Adoption and Children Act 2002 (Consequential Amendment to Statutory Adoption Pay) Order 2006
• Race Relations Act (General Statutory Duty) Order 2006
• Race Relations Act 1976 (Statutory Duties) Order 2006

If you need help with complying with any of the above laws, then please contact Buddy.