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Article: Employment and the Law - Recent Developments by Louise Fernandes-Owen

Louise Fernandes-Owen of Field Fisher Waterhouse LLP examines the latest key employment law developments. 

April changes 

Here is a reminder of the key changes to employment law that took place earlier this month: 

4 April 2010

Increase in statutory maternity, paternity and adoption pay

The standard rates of statutory maternity, paternity and adoption pay increased from £123.06 to £124.88 per week. 

6 April 2010

Sick note to fit note

The new "Statement of Fitness to Work" or "fit note" was introduced. The new fit note provides GPs with two options to choose from: "unfit for work" and "you may be fit for work taking account of the following advice". The note will enable GPs to suggest changes which employers can introduce to encourage a return to work e.g. "a phased return to work", "amended duties", "altered hours" and "workplace adaptations". 

New right to request time off to train

Employees working for employers with 250 or more employees have a new right to request time off to study or train. The right will be extended to all employers from April 2011. 

Additional paternity leave and pay

New regulations came into force, providing additional paternity leave and pay for parents of babies born on or after 3 April 2011. Eligible fathers will be entitled to up to six months' additional paternity leave, which can be taken once the mother has returned to work. Some of the leave may be paid if taken during the mother's 39 week maternity pay period. 

Equality Bill receives Royal Assent

The long-awaited Equality Act 2010 finally received Royal Assent this month. The majority of its provisions are due to come into force in October 2010. The Government Equalities Office has published a factsheet on the key provisions. 

Whistleblowing – expressing an opinion

The Employment Appeal Tribunal (EAT) has confirmed that expressing an opinion about an employer's proposal to alter a discretionary redundancy scheme does not amount to a qualifying or protected disclosure under the Public Interest Disclosure Act 1998 (PIDA).

In Goode v Marks and Spencer PLC, M&S sent a document to its staff representative body setting out its proposals to reduce the multiplier and cap used to calculate payments under its discretionary redundancy terms. When Mr Goode received a copy of the document, he told his line manager that the proposals were "disgusting". Mr Goode subsequently sent an email to the Times, entitled "M&S deal another blow to staff" and attached a copy of the proposal. He claimed in the email that compulsory redundancies would follow as a result of the proposal. Mr Goode was identified as the source of the email and, after disciplinary proceedings, was summarily dismissed by M&S. 

In brief, a dismissal will be automatically unfair if the reason, or principal reason, for the dismissal is that a worker made a protected disclosure. To be protected, the worker must make a "qualifying disclosure". This means the disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of six categories of wrongdoing. The relevant category in this case was that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. A qualifying disclosure must be made in accordance with the requirements inserted into the Employment Rights Act 1996 by PIDA. These requirements can differ, depending on to whom the disclosure is made. 

In this case, the EAT confirmed that the Employment Tribunal had been entitled to conclude that Mr Goode's remark to his line manager was an expression of opinion about the proposed changes to the discretionary redundancy scheme. It did not amount to a qualifying disclosure and there was nothing which would lead anyone to reasonably believe that it tended to show that M&S would fail to comply with any legal obligation in respect of the redundancy scheme. 

In relation to the disclosure to the Times, a disclosure made to a third party must itself be a qualifying disclosure and the employee must also fulfil one of three criteria, which include that the employee must have previously disclosed substantially the same information to his employer. As Mr Goode did not disclose substantially the same information, it was not a protected disclosure. Whilst this conclusion was sufficient to dispose of the appeal, the EAT also confirmed that the information disclosed to the Times did not amount to a qualifying disclosure. Nothing was disclosed which could reasonably be believed to have a tendency to show that M&S was likely to fail to comply with any legal obligation to which it was subject.

Louise Fernandes-Owen is the Professional Support Lawyer in the Employment and Pensions Group at Field Fisher Waterhouse LLP and can be contacted at louise.fernandes-owen@ffw.com 

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