1. Written statement of terms
< Workers (rather than just employees) who start work on or after 6 April 2020 are now entitled to a written statement of particulars, the majority of which must be provided in a single document on or before the date on which employment starts. This is a change from the previous position whereby only employees had a right to a main statement of terms and it could be provided at any point in the first eight weeks of employment. The additional information that is now required in the written statement for employees or workers who start work after 6 April 2020 includes:
- the specific days of the week the worker is required to work, whether the days and working hours may be variable, and how any variation will be determined;
- any paid leave to which the worker is entitled, for example enhanced sick pay or maternity leave;
- details of any other benefits provided by the employer that are not already included in the statement;
- any probationary period, including any conditions and its duration; and
- any training entitlement provided by the employer, including whether any part of that training is mandatory and details of any other mandatory training which the employer will not pay for.
Details in relation to certain elements of the contract (e.g. pension contributions) can be provided within two months of the start date and certain information can be provided in a separate document so long as it is referenced in the main statement of terms and conditions.
2. Holiday pay reference period.
The reference period for determining an average week’s pay (for the purposes of calculating holiday pay) has been increased from 12 weeks to 52 weeks (or the number of complete weeks for which the worker has been employed (if less)) for workers with variable hours of work.
Employers must now use 52 weeks’ worth of pay data to calculate holiday pay for workers without fixed hours or pay, instead of 12.
Where a worker does not have 52 weeks’ worth of pay data, the employer should use however many weeks they have. If a worker takes holiday before they have worked a full week, the employer should pay the worker an amount which fairly represents their pay for the length of time they are on leave. In working out what is fair, an employer must consider the worker’s pay, the pay they have already received and what is paid to other workers doing a comparable role for the employer.
Weeks in which the worker receives no pay are excluded from the reference period, and earlier weeks in which pay was received will be counted instead, even if this takes the employer back more than 52 weeks. However, employers are not required to look beyond a 104 week limit to achieve 52 weeks’ worth of pay data. If the worker does not have 52 weeks’ worth of pay data within the preceding 104 weeks, the reference period is shortened to however many weeks of data are available in the 104 week period.
As before, the government guidance goes on to provide details of how to use the new reference period to calculate holiday for different types of worker (including temporary workers and workers with irregular hours or on zero-hours contracts), as well as to tackle some other potential areas of difficulty. For example, it explains that in most cases it will not be possible to use 12 months’ pay data for employees who are paid monthly on a variable rate, since this will not necessarily correspond with the 52 week period.
Calculating holiday pay for workers without normal working hours can be difficult but the guidance is a good starting point.
3. Parental Bereavement Leave
From 6 April 2020, parents became entitled to two weeks bereavement leave in respect of children whose date of death is on or after 6 April 2020.
The Parental Bereavement Leave Regulations 2020 give all employees who lose a child under the age of 18, or suffer a stillbirth after 24 weeks of pregnancy, the right to two weeks parental bereavement leave. There is no minimum service requirement. The leave can be taken in one block of two weeks or as two separate blocks of a week provided it is taken within 56 weeks of the death.
The right applies to the child’s parent(s), which includes an adoptive parent, prospective adopter, intended parent under a surrogacy arrangement, a parent “in fact” (someone looking after the child in that person’s own home for the last four weeks), or that person’s partners, but not a paid carer.
- During the first eight weeks after the death the employee only needs to inform their employer that they intend to take parental bereavement leave before they are due to start work on the first day of leave.
- From weeks 9 to 56 employees are required to give at least a week’s notice.
- Leave can be cancelled or rearranged with the same degree of notice as above.
Employees must not be dismissed or subjected to a detriment for exercising their right to leave.
Statutory parental bereavement pay (“SPBP”)
Employees and paid office holders with at least 26 weeks’ service will also qualify for SPBP for up to two weeks if they meet the minimum earnings criteria. The earnings criteria are that they must have had earnings of at least the lower earnings threshold (£120 per week until 5 April 2021) in each of the eight weeks before leave the death. SPBP is paid at the same rate as statutory maternity / paternity pay (£151.20 per week until 5 April 2021/ £151.97 from 6 April 2021). SPBP is not payable in a week that the employee undertakes any work for the employer.
SBPC can be reclaimed from HMRC on the same basis as other family related leave.
4. Information and Consultation of Employees
From 6 April 2020 the Information and Consultation of Employees Regulations 2004 were amended to lower the percentage required for a valid employee request for the employer to negotiate an agreement on informing and consulting its employees. The threshold was lowered from 10% to 2% of the total number of employees employed by the employer, subject to a minimum of 15 employees.
The Information and Consultation of Employees Regulations (often abbreviated to the ICE Regs) were introduced on 6 April 2005 and apply to businesses with 50 or more employees. The regulations give employees the right, subject to certain conditions, to request that their employer sets up or changes arrangements to inform and consult them about issues in the organisation.
The Employment Rights (Miscellaneous Amendments) Regulations 2019 amended the ICE Regulations from 6 April 2020 to lower the percentage required for a valid employee request to negotiate an agreement on informing and consulting its employees. The threshold is now 2% of all employees, rather than 10% of all employees, although there must still be a minimum of 15 employees making the request.
The requirement to inform and consult employees does not operate automatically. It can occur either by a formal request from employees for an agreement, or by employers choosing to start the process. If a company already has a pre-existing agreement in place to inform and consult it may not be necessary to make any changes. To be valid the pre-existing agreement must:
- be in writing
- cover all the employees in the undertaking
- set out how the employer will inform & consult employees or representatives
- be approved by employees.
5. Changes to Early Conciliation
The early conciliation period has been extended to six weeks instead of one calendar month from 1 December 2020. However, there will no longer be any ability to extend the early conciliation period by 14 days.
This information is provided for guidance only and should not be considered specific legal advice. If you would like further advice or assistance in respect of any of the topics covered please contact Kelly Gibson on 0114 218 4307 or Kelly.Gibson@tayloremmet.co.uk