Esther Martin Anna Birtwistle Susanne Foster CM Murray LLP

1. Employment Law – What Every Employer Needs To Know Esther Martin Anna Birtwistle Susanne Foster CM Murray LLP 18 November 2010 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

2. The Agency Workers Regulations 2010_________________________ The Equality Act 2010 Esther Martin CM Murray LLP CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

3. THE AGENCY WORKERSREGULATIONS 2010 • European Legislation: Temporary Agency Workers Directive 2008/104/EC • Due to come into force 1 October 2011 • Coalition has confirmed no further amendments will be made CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

4. Who Will The Regulations Apply To? • “workers with a contract of employment or employment relationship with a temporary work agency who are assigned to user undertakings to work temporarily under their supervision and direction” Article 1.1 – Temporary Agency Workers Directive CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

5. Twelve Week Qualifying Period “To complete the qualifying period the agency worker must work in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments.” Regulation 7(2) • Continuity can be broken or suspended in certain specific circumstances CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

6. Agency Worker Rights An agency worker (A) is entitled to: “… the same basic working and employment conditions as A would have been entitled to for doing the same job had A been recruited by the hirer – • Other than by using the services of a temporary work agency; and • At the time the qualifying period commenced.” Regulation 5(1) CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

7. Regulations only apply to “basic working and employment conditions” • Pay • Duration of working time • Length of night work • Rest periods • Rest breaks • Annual leave • Comparator required • Terms must be ‘ordinarily included’ CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

8. Pregnant Women And Nursing Mothers • Subject to the 12 week qualifying period • Agency workers are entitled to: • reasonable time off during working hours to attend ante-natal appointments • payment from employment agency during her absence • She may lodge a tribunal claim if a request is unreasonably refused • Duty to make reasonable adjustments on hirers CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

9. Anti-Avoidance Provisions • The Regulations contain a non-exhaustive list of factors to be taken into account whether a structure of assignments is intended to deprive the agency worker of rights. Regulation 9(5) • Additional award of up to £5,000 where a hirer and/or agency are found to have breached the anti-avoidance provisions. Regulation 18(14) CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

10. Access To Employment, Facilities And Training • No twelve-week qualifying period • Failure to provide access to on-site facilities can be justified on objective grounds Regulation 12(2) • No further provisions required in relation to access to training. CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

11. Suggestions For Agencies And Hirers Useful questions: • Is the worker a temp from an agency? • Have they ever worked for you (or a connected business) previously? • Are they likely to qualify for equal treatment? • What should they be paid and what working time arrangements should be in place? • What else will have to be offered? CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

12. EQUALITY ACT 2010 Protected Characteristics: • Disability • Religion or philosophical belief • Race • Age • Sexual orientation • Sex • Marriage and civil partnerships • Gender reassignment • Pregnancy and maternity CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

13. Direct Discrimination “A person (A) discriminations against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” s13(1) • Perception • Association CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

14. Indirect Discrimination “A person (A) discriminates against another (B) if A applies a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.” s19(1) • Includes disability / gender reassignment • PCP ‘puts, or would put … at a particular disadvantage’s19(2) CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

15. Harassment “An employer (A) must not, in relation to employment by A, harass a person (B) – (a) who is an employee of A’s; (b) who has applied to A for employment.” s40 • Harassment must be related to a protected characteristic, but not necessarily that of the victim • Third party harassment CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

16. Victimisation “A person (A) victimises another person (B) if A subjects B to a detriment because: (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.” s27 • No comparator required CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

17. Disability Discrimination Discrimination arising from a disability • A person (A) discriminates against a disabled person (B) if – • A treats B unfavourably because of something arising in consequence of B’s disability, and • A cannot show that the treatment is a proportionate means of achieving a legitimate aim • Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. s15 • No comparator required CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

18. Pre-Employment Health Questionnaires A potential employer must not ask about the health of an applicant before offering work s60 • May only support a claim by an individual • Conditional offer can still be made • Exceptions CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

19. Pay Secrecy Clauses Clauses designed to prohibit or restrict discussions about pay are unenforceable… …if the discussion is with a view to finding out whether there is a connection between pay and their having (or not having) a protected characteristic. s77 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

20. Exceptions – When Discrimination May Be Lawful • Occupational Requirement Schedule 9 • General Positive Action S158 • Disability / Age s13(3)/ Schedule 9 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

21. Sections Not Yet In Force • Combined Discrimination s14 • Gender Pay Gap Information s78 • Positive Action (recruitment and promotion) s159 CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

22. Practical Considerations For Employers • Continue to ensure that all appropriate personnel are aware of the relevant changes in discrimination law regarding employees, potential employees and ex-employees • Audit employee documentation where necessary (e.g. contracts, staff handbooks) • Review policies (e.g. diversity, equal opportunities, anti-bullying and harassment) • Ensure effective complaints procedures are in place CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

23. Default Retirement Age _________________________Family Friendly Rights_________________________The Bribery Act Anna Birtwistle CM Murray LLP CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

24. Default Retirement Age WHAT ISN’T CHANGING? Objective justification: Employers may still operate a compulsory retirement age except that from April 2011 they will need to objectively justify it (as they have up to now for retirement ages below 65) WHAT IS CHANGING? Employers will no longer be able to use the DRA of 65 to maintain a compulsory retirement policy for their workforce: • Up to6 April 2011: Transitional arrangements • From6 April 2011: No new notifications of retirement on basis of DRA to be issued • 1 October 2011: DRA and statutory “duty to consider”retirement procedures will be abolished CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

25. Avoiding an Unfair Dismissal Claim • From April 2011 no new notifications of retirement on basis of the DRA to be given. What now? • Employers wishing to have a compulsory retirement age must objectively justify it by reference to such policy being a proportionate means of achieving a legitimate aim; or • Follow a fair procedures and rely on one of the 5 other fair reasons for dismissal: • Conduct • Capability/qualifications • Redundancy • Statutory restriction (e.g. breach of immigration rules, criminal record) • “Some Other Substantial Reason”: a catch all CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

26. Next Steps/Issues to Consider • Whether to continue to have a retirement age • Amending retirement policies/staff handbooks • Ensuring adequate performance procedures in place • Consider changes needed in relation to company pension schemes or health, disability or death in service benefits • Training requirements CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

27. Key Changes to Family Friendly Rights • Paternity Leave • Extension to the Right to Request Flexible Working CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

28. Maternity leave OML: 26 weeks AML: 26 weeks Statutory Maternity Pay for 39 weeks: 1st six weeks paid at “earnings related rate” (90% of her average earnings) Remaining 33 weeks paid at “prescribed rate” (from April 2010: £124.88) Ordinary Paternity Leave: Since 2003 eligible fathers have been entitled to up to two consecutive weeks’ paternity leave and pay Statutory Paternity Pay: lesser of the “prescribed rate” and 90% of the employee’s weekly earnings Additional Paternity Leave Current Regime CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

29. Additional Paternity Leave Regulations 2010 • Applies to babies born/adopted on or after 3 April 2011 • Mother must have returned to work without using up all of her OML/AML • The earliest APL can be taken is 20 weeks from the date of birth/date of adoption • Minimum 2 weeks up to a maximum of 26 weeks • Eligibility requirements • Additional Statutory Paternity Pay CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

30. How this works in practice… 30 weeks 22 weeks 9 weeks Total leave: 52 weeks Total statutory pay: 39 weeks CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

31. Practicalities • Eligibility requirements • Timing and notice • Evidence of entitlement • Effect on contract of employment CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

32. Flexible Working • 2003: Right to request introduced and applied to carers of children under 6 • 2009: Right was extended to apply to children up to and including the age 16 (18 in the case of disabled children) What’s changing? • From April 2011 this right will be extended to parents of children up to and including the age of 18 What next? • Coalition government has stated intention to extend the right to request to all employees regardless of whether they have children CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

33. The Right to Request • Right to request: It does NOT create a right to work flexibly! • Typical requests • Who can make a request • Statutory request procedure • Grounds for refusing a request CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

34. The Bribery Act • Comes into force April 2011 • Will apply to private sector transactions • Government guidance to be published early 2011 (draft available now) CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

35. Offences General Offences: • Paying bribes (“Active bribery”) • Receiving bribes (“Passive bribery”) Specific Offences: • Bribery of foreign public officials • Failure of commercial organisation to prevent bribery: the “Corporate offence” CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

36. The Corporate Offence • Strict liability offence • Company/partnership will commit bribery if: An “associated person” bribes another person for that organisation’s benefit. • “Associated person”: employees, agents, subsidiaries, intermediaries, joint venture partners • Corporate hospitality • Defence: “Adequate procedures” CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

37. Adequate Procedures Defence Current draft guidance, six principles: • Risk Assessment • Top level commitment • Due diligence • Clear, Practical and Accessible Policies and Procedures • Effective implementation • Monitoring and review CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

38. Penalties/Other Consequences Of Non-Compliance • Criminal sanctions • Fine • Debarred from tendering for public-sector contracts • Adverse publicity • Fines from sector regulators (e.g. FSA) CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

39. Practical Tips • Policies – anti-bribery, corporate hospitality and gifts • Whistleblowing procedures to report bribery • Training to relevant staff • Assessment of risk • Investigation procedures and disciplinary sanctions • Appointing individual responsible for bribery issues CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

40. The CM Murray LLP Team Clare Murray Managing Partner Bettina Bender Partner Charis Damiano Consultant Susanne Foster Senior Associate Esther Martin Associate Anna Birtwistle Associate CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law

41. CM Murray LLP 37th Floor One Canada Square Canary Wharf London E14 5AA +44 (0)20 7718 0090 www.cm-murray.com info@cm-murray.com CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law CM Murray LLP: Specialists in Employment, Partnership and Business Immigration Law