Half-term round up – employment issues you might have missed

Half-term, Halloween and Bonfire Night are behind us – roll on Christmas! In all the excitement you may have missed the following mixed bag of employment issues:

The ET Fees Refund Scheme

That Tribunal fees have been scrapped is old news (and one which we in the Farrers employment team think has led to an increase in actual and potential Tribunal claims already) but you may have missed the Government's launch of its refund scheme for employment tribunal fees paid by Claimants over the last four years. The Ministry of Justice and HM courts and Tribunals Service announced that around 1,000 people would be contacted individually and given the chance to complete applications from 20 October 2017 with a full scheme to be opened up shortly. The MoJ is also working with trade unions to work out how to refund fees relating to large multiple claims potentially involving hundreds of Claimants.

As well as being refunded their original fee, successful applicants to the scheme will also be paid interest of 0.5%, calculated from the date of the original payment up until the refund date. The Government believes that the total cost of the refund, plus interest, will be approximately £33 million.

We don't yet have the definitive answer to some of the tricky questions posed by Alice in her blog last July (here), such as:

• For those claimants who were put off from bringing a claim as a result of the fees regime, will they have any recourse?
• Will tribunals allow them to make arguments that it was not previously reasonably practicable for them to bring a claim as a result of the fees regime?
• Will time limits be extended to now allow them to do so, notwithstanding the time limits imposed on employees bringing claims?

While Dominic Raab, the Minister of State for Courts and Justice, said in September that anyone who was unable to bring a claim can submit one to the employment tribunal to have their case heard outside the usual time limits, exactly how the tribunal will assess such cases is as yet unclear.

We will keep you updated as these issues develop.

The publication of the Parental Bereavement (Pay and Leave) Bill

Employees who are eligible for parental, maternity, paternity or adoption leave are still entitled to that leave and any statutory pay in the sad event of a still birth or the death of a child during the leave period.

Employees who suffer a bereavement in other circumstances are not entitled to any specific paid or unpaid time off work and so are reliant on employer's own policies on personal leave. Of course, most employers are sensitive to employees' needs at such times and we are not aware that this is an issue which is of particular concern. Nevertheless, a Private Member's Bill has been published which would give the Secretary of State power to make regulations to give employees who lose a child below the age of 18 (including a still birth after 24 weeks) the right to:

At least two weeks' leave (irrespective of their length of service). The leave will not impact existing rights to leave or pay (such as parental leave or maternity pay). If a parent loses more than one child, employees will be entitled to leave in respect of each child.

• At least two weeks' statutory bereavement pay. Employees with at least 26 weeks' service will be entitled to be paid the prescribed rate or 90% of their average earnings (whichever is lower). The Bill entitles employers to reclaim some, if not all, payments from the government.
• Employees will be protected from detriment, redundancy and dismissal as a result of them taking bereavement leave.

The Bill's second reading took place on 20 October 2017. If all legislative stages are completed, which is likely as the Bill has Government support, regulations are expected to be introduced in 2020.

ICO and The House of Lords Library briefings on the Data Protection Bill

I am sure you are all well ahead in your planning for the changes in Data Protection Law (if you are not see our articles on: eight things about the GDPR you must know and Get Data Protection Ready). Our Farrers Data Protection Team is certainly being kept busy advising clients on its implication for businesses and HR teams.

For those with a particular passion for the legal detail, you may have spotted that MPs debated the Data Protection Bill in detail for the first time in early October and it is currently going through the Committee stage, which will involve a line by line analysis of the Bill. All going to plan, the Bill will become the Data Protection Act 2018 (or 2019) and will be the UK legislation which will implement the European General Data Protection Regulation (GDPR) in the UK. The Information Commissioner and the House of Lords Library have both published briefings in anticipation of this. While there is nothing of specific interest to HR (except for the ongoing concerns that the lack of £10 fee will increase Data Subject Access Requests – something I personally don't think will make much practical difference), it makes for interesting reading.

"Thriving at Work' report into mental health

Finally, last week the Thriving at Work report was published. Co-authored by Paul Farmer (Chief Executive of Mind) and Dennis Stevenson (former HBOS Chairman), the report was specially commissioned by the Prime Minister in January this year as an independent review into how employers can better support the mental health of all people in employment.

Those in HR will not be surprised to hear that there was a larger than expected mental health challenge at work. This has a knock on effect for businesses and the economy with many hours being lost to sickness or less productive employees and up to 300,000 people with long-term mental ill-health having to leave their jobs each year. Farmer and Stevenson set out a 10 year vision by which time they hope the UK will have vastly improved mental health at work and made 40 recommendations which they hope the Government will help to implement over that time. Of particular note are:

1. For all employers to adopt best practice in the form of "mental health core standards" such as:

• produce, implement and communicate a mental health at work plan;
• develop mental health awareness among employees;
• encourage open conversations about mental health and the support available when employees are struggling;
• provide employees with good working conditions and ensure they have a healthy work life balance and opportunities for development;
• promote effective people management through line managers and supervisors; and
• routinely monitor employee mental health and wellbeing.

2. Enhanced standards for employers with more than 500 employees, in both the public and private sector.

3. Legislative reform to protect employees with mental health conditions – and/or ensuring greater compliance with existing employment laws

4. Align health and occupational health services to provide more useful Fit Notes and integrated support

As with all such reports, some ideas are sensible (encouraging adoption of best practice), some perhaps unnecessary (legislative change – we already have significant legal protection for mental health issues) and some are probably never going to happen (better Fit Notes and integrated health service support). Whatever happens, mental health continues to be an important part of the Government's agenda and should continue to be a focus for HR teams. For our suggested steps for building a mentally healthy workplace, see our blog post here.