The EAT have handed down an inaugural decision that goes some way to clarifying the meaning of the phrase applicable to employers in relation to women returning from maternity leave. The statutory requirement is that a woman who returns from maternity leave is normally entitled to return to "the job in which she was employed before her absence".

The facts in the case Blundell v St Andrew's Catholic Primary School were that the Claimant was a primary school teacher in a school where it was common practice to rotate class teachers every two years. When the Claimant began her maternity leave she was teaching reception class; however, upon her return to work was assigned to teach Year 2. It was alleged, by the Claimant, that this did not constitute returning to the same job.

The EAT, upheld the Tribunal ruling that the Claimant had returned to the same job. In reaching this conclusion the three factors of (i) contract terms, (ii) factual background and (iii) capacity/status were evaluated when comparing the 'pre' and 'post' maternity leave jobs. Essentially, the Claimant was employed as a primary school teacher, and she returned to work as a primary school teacher; hence, the statutory requirement was satisfied. The EAT did take the opportunity however, to re-iterate the fact that consultation is paramount in all maternity related issues and commented that the school should have discussed the class allocation with the teacher, as would have been practice had she not been absent on maternity leave.

Additional paternity leave

Family friendly provisions in employment law are always being improved to promote the ability of working parents to balance family and work life. As part of this continual review the Government has launched consultation on proposals for additional paternity leave and additional paternity pay, with the aim of introducing provisions to extend fathers' rights to take paternity leave. The rules are anticipated to enable fathers to take up to 26 weeks leave (some of which will be paid) if the mother returns to work after six months, but before the end of her maternity leave period.

Currently, fathers are entitled to take two weeks paid leave, which can be taken in a single block of between two to twenty six weeks. The consultation will look at proposals for additional paternity leave (APL), and additional statutory paternity pay (ASPP), the latter being payable for the whole of the APL and will be calculated on the same basis as statutory paternity pay.

In order to benefit from these possible changes the father must have at least twenty-six weeks' service ending with the fifteenth week before the expected week of childbirth. In addition, it will be necessary for both the father and the mother to certify to the father's employer that the father is eligible for APL, i.e. that the mother is returning to work early and passing her maternity entitlements over to the father. It will be expected that fathers will need to give at least eight weeks' notice of their intention to take APL. In line with the changes to maternity leave introduced by the Work and Families Act, fathers will also be entitled to ten 'keeping in touch' days to ensure that the transition is smooth between going on APL.

To ensure equality in the implementation of the above proposals the Government is also planning for these changes to apply to partners (of either sex) of mothers and to adopting couples that are employed and who qualify for statutory adoption leave and pay.

Illegal immigration is a crime… Employing illegal immigrants is a crime…

The Immigration Asylum and Nationality Act 2006 will introduce stringent new penalties for employing illegal immigrants. Although the new provisions are not yet in force the Government is now consulting on their implementation, along with drafting updated guidance on avoiding unlawful discrimination.

It is currently a criminal offence to knowingly employ an illegal migrant worker under the Asylum and Immigration Act 1996. Employers can be imprisoned for up to two years and/or receive an unlimited fine. These sanctions will remain in place when the 2006 Act provisions come into force; however, in addition there will be a new scheme of civil penalties, with fines of up to £5,000 per illegal worker employed. It has been indicated that the enforcement authorities are going to be very robust in their application of this scheme with increased inspections and checks being carried out.

Defence

The route to avoiding being prosecuted under the 1996 Act is to ensure that appropriate checks are carried out before taking on new employees. The Home Office has provided advice on what documents are sufficient to inspect and it is recommended that the identification inspected is copied for the employer’s records.

Similarly, there is an equivalent statutory defence to both the civil and criminal penalties under the 2006 Act. The Government proposes that employers should make similar follow-up document checks every 12 months in respect of all overseas nationals who have a time-limited stay. This will have a large impact on employment organisations and it will be important to ensure that annual document checks are incorporated into employer's policies and procedures.

Consultation

The Government's consultation runs until 7 August 2007 and a copy of the document can be found at:

www.ind.homeoffice.gov.uk/6353/6356/17715/consultation

The consultation document asks for comment on the following:

• The economic impact of the proposed changes;
• how often employers think checks should be carried out;
• factors that should be taken into account in calculating the amount of the fine for the civil penalty;
• general comments on the prevention of illegal immigrant employment.

It is also vital that the implications of the measures are not underestimated. In particular, HR directors and others involved in the recruitment checks should be aware that they could be personally liable for a criminal offence if they knowingly employ illegal migrant workers. There may even be a risk that the Border and Immigration Agency will use existing powers to apply to the courts to disbar directors convicted of an offence.

28 days Holiday!

The responses to views put forward during the consultation period on the Government's plan to increase statutory holiday entitlement have now been published. Legislation now before Parliament will implement the Government's proposal to increase statutory holiday entitlement. The increase from 20 days per year to 24 days per year will go ahead from 1 October 2007; however, the second stage of the increase from 24 days per year to 28 days per year will be delayed until 1 April 2009. Part-time employees will also benefit from these expected changes and will be entitled to the extra holidays on a pro-rata basis. During the transitional period, employers will be able to make a payment in lieu in respect of the additional four-day entitlement introduced from October 2007 until 1 April 2009; however, it must be noted that this option will cease from 1 April 2009.

PILON Clauses (Pay in lieu of notice clauses)

The recent case of Morrish v NTL Group Limited [2007] in the Scottish Court of Session addressed an important legal question, is it possible to imply a PILON clause into a contract of employment?

The case centred around whether a company could terminate an employee's contract immediately by making a payment in lieu of notice, without breaching the employee's contract of employment, if the right was not specifically set out in the employee's contract of employment.

Mr Morrish's written contract of employment provided by way of an express term that both he and his employer had to give "not less than 12 months written notice" of termination. Mr Morrish was dismissed immediately and paid basic salary in lieu of his notice period. Mr Morrish sued his employer claiming damages for breach of contract on the grounds that he had been deprived of the ability to earn his bonus.

It was argued by NTL that it was not in breach of contract as the contract of employment was subject to an implied term giving employers the right to lawfully terminate the contract by making payment to the employee of a proportion of his salary and emoluments relevant to the period of notice.

The Court held that to imply a term into a contract of employment there must be good reason and that it could see no reason to imply a PILON clause into Mr Morrish's contract, when there was an express clause dealing with his notice provisions.

The case also indirectly confirmed the legal point that if an employee's employment is terminated immediately by making a payment in lieu of notice and if there is no express PILON clause, the contract will have been breached and as such any post termination restrictions contained within the contract would not be contractually enforceable.

For further advice on contractual issues please contact our employment team.

Summer sickies have been washed out

According to FirstCare, the absence management company, records show that the recent spell of bad weather in the UK has resulted in the number of sick days falling by 17 per cent in June, compared to this time last year. FirstCare's managing director, Aaron Ross, said "Good weather is definitely the enemy of businesses. When the sun is shining, we see a rise in people pulling a sickie."

The results did, however, show a rise in absence rates in those areas worst affected by the rainfall. In those areas significantly affected by flooding there was a rise in transport-related absences, as well as a rise in people taking time off to care for dependants, such as children unable to get to school. Despite localised absences due to flooding the overall national pattern is that the rain has kept people at work this summer.

   
For more information on policy and documentation reviews to ensure that you complying with employment law regulations or for general employment law enquiries please contact our employment team.

As this information has been prepared by Maitland Walker Solicitors as a general guide, we recommend that you seek specific professional advice before acting upon the information contained within it. No liability can be accepted by Maitland Walker for any action taken or not taken as result of this information. Maitland Walker is regulated by the Law Society.