Employment Alert - November 2011

Author:Mr Philip Smith
Profession:Arthur Cox

Welcome to the November 2011 edition of the Arthur Cox Belfast Employment & Pensions Group's Alert. In this edition we focus on recent developments in the area of Paternity Regulations and the end of the Default Retirement Age. We also examine some decisions of interest with regard to the potential link between employment disciplinary procedures and Article 6(1) of the Human Rights Act 1998 and the Test-Achats case regarding the use of gender specific actuarial factors in occupational pension schemes. In addition, we offer a brief update on some other topical issues including provisions introduced by the Employment Act (NI) 2011, some employment implications of the Bribery Act 2010, the latest information on changing National Minimum Wage levels and changes to be introduced under the Agency Workers Regulations.

What's new from us?

Our team in Belfast now offers advice on all aspects of pension schemes including advising trustees and employers on day-to-day administration, restructuring, merger amendments and in relation to corporate transactions. From October 2012 employers will be required to automatically enrol eligible employees into the central government pension scheme (NEST) or an alternative 'qualifying scheme'. More detail on this is set out below.

On the first Tuesday of each month we respond to anonymous queries raised by readers through the Legal Island e-mail service. These "First Tuesday" queries on the full range of employment issues and our answers can now be accessed via our web-site at: http://www.arthurcox.com/whats-new/fyi-updates/first-tuesday/index.html

Focus on...

New Paternity Regulations

As of 3 April 2011 fathers have had the legal right to take up to 26 weeks' additional paternity leave. Obviously such a change in the law is of great interest to businesses and employers, particularly those already dealing with key issues such as employee sickness, absence and maternity leave. After years of debate on the issue, the current government claims this latest change is just one example of how they intend to give families radically more choice and flexibility in how they balance work and care of children, and enables fathers to play a bigger part in bringing up their children.

The introduction of additional paternity leave has come as a result of the Additional Paternity Leave Regulations (Northern Ireland) 2010 and the Additional Paternity Leave (Adoptions from Overseas) Regulations (Northern Ireland) 2010.

How will the new regulations work in practice?

In the case of childbirth, where parents of a child born on or after 3 April 2011 are both working, when the mother goes back to work (provided she hasn't used her full maternity leave), the father (or spouse/partner of the baby's mother) can take up to 26 weeks of additional paternity leave - provided he has been in employment with that current employer for at least 26 weeks continuously. This leave can begin any time from 20 weeks after the birth and ending twelve months after that date.

Key points to remember

This additional paternity leave is not a right to share the 52 weeks maternity leave available to mothers; this is a completely separate entitlement. This leave is additional meaning the father's initial 2 weeks' ordinary paternity leave still stands. An employee availing of this leave has all the same protections of employment terms and conditions as a female colleague taking maternity leave (with the same exception of wages). As an employer, what notification can I require from an employee?

The employee is required to give at least 8 weeks' notice in writing, which must include information on the date of birth (actual or expected) and the specified period of leave sought. As part of the notification, the mother also needs to confirm the date she intends to return to work.

What additional paternity pay is available?

A father is only entitled to additional pay where the mother has not exhausted her 39 week entitlement to Statutory Maternity Pay. Even then, the father can only avail of an amount totalling the balance of the mother's outstanding entitlement. If there is a remainder of the father's time uncovered by the mother's balance, the paternity leave would become unpaid, unless his employer agrees otherwise.

A helpful hint...

Employers should include information about this right in a policy guide or handbook to enable staff to familiarise themselves with the procedure for taking...

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