Article
One: Employment and the Law – Recent Developments by Louise
Fernandes
Last month saw a number of
interesting employment law developments. Louise Fernandes of Field
Fisher Waterhouse LLP outlines a selection below.
Returning from maternity leave
- what does the 'same job' mean?
Women who return from maternity
leave are normally entitled to return to 'the job in which she was
employed before her absence'. For the first time, the EAT
(Employment Appeal Tribunal) has considered what this phrase means.
In Blundell v St Andrew's
Catholic Primary School, the employee was a teacher at a primary
school. When she started her maternity leave, she was teaching the
reception class. On her return, she was allocated to teach year two
instead. She complained that she was entitled by law to return to
the same job she had prior to the commencement of her maternity
leave.
The EAT confirmed that teaching
year two did amount to the same job. Under the Maternity and
Parental Leave (etc) Regulations 1999, ‘job’ means the ‘nature
of the work which she is employed to do in accordance with the
contract and the capacity and place in which she is so employed’.
The three main factors considered by the EAT were therefore
‘nature’, ‘capacity’ and ‘place’. The nature of the
employee’s work was as a teacher, her capacity was as a class
teacher, rather than a teacher of reception class, and the place of
her work was the school. The job she returned to was therefore
within the normal range of variability which she could have
reasonably expected.
Agency – lack of detailed
control over workers
In Consistent Group Ltd v Kalwak
and Welsh Country Foods Ltd, the EAT has confirmed that a tribunal
had been entitled to hold that agency workers were employed by an
employment agency, even though the agency had no detailed control
over their day-to-day work.
The EAT considered that two of
the essential ingredients for a contract of employment, personal
service and mutuality of obligation, did exist between the agency
workers and the agency. In relation to the issue of control, whilst
the agency had limited control over the day-to-day work of the
agency workers, the EAT upheld the tribunal's finding that the
agency still had significant control over their working lives. The
agency told the agency workers what to do, where to go and provided
transport and accommodation in circumstances where the agency
workers were not, in reality, in a position to refuse them.
Whilst a lack of detailed control
over the work carried out by agency workers is usually a decisive
factor against inferring an employment relationship between an
employment agency and a worker, it is not always a necessary
condition. In this case, the fact that the agency did not have
day-to-day control over the agency workers’ work did not mean that
a contract of employment could not exist between them and the
agency.
Additional paternity leave and
pay consultation
The consultation paper on the
additional paternity leave proposals was launched last month,
designed to provide working parents with more choice in their caring
responsibilities.
The proposals aim to enable
employed fathers to take up to 26 weeks’ additional paternity
leave, some of which can be paid if the mother of the child has
returned to work. This new provision will be available during the
second six months of the child’s life, providing parents with the
option of dividing a period of paid leave entitlement between
them.
The Government has stated that
its intention is to keep the additional paternity leave and pay
scheme as straightforward as possible. The earliest date that it
will be implemented will be for babies due on or after 5 April 2009,
although this is not a firm date for introduction.
The consultation paper sets out
how the process would work in practice, identifying what is required
of the father, the mother and the father's employer. Consultation
closes on 3 August 2007.
Should employers help smokers
kick the habit?
Smokers should be offered help by
employers to quit smoking, according to the National Institute for
Health and Clinical Excellence (NICE). As workplaces in England
prepare for the forthcoming smoking ban which comes into force from
1 July, the guidance from NICE recommends that employers:
- think about allowing employees
to attend stop smoking services during working hours without loss of
pay;
- be responsive to individual needs and preferences and, if there is
sufficient demand, ask the local stop smoking service to offer help
on their premises; and
- work with other local businesses to see if there is an opportunity
to share smoking cessation support.
The controversial suggestions
have been met with some scepticism. The British Chambers of Commerce
commented that “The idea that businesses should pick up the tab
for an individual's tobacco addiction just shows how far removed
from the economic reality of the workplace NICE is”.
Louise Fernandes is the
Professional Support Lawyer in the Employment Department at Field
Fisher Waterhouse LLP and can be contacted at louise.fernandes@ffw.com.
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