Employment update

Welcome to our fortnightly round-up of what's happening in employment law.

'Fit notes' to be introduced in April 2010

The Government has published its response to its consultation on the new statement of fitness to work (referred to as 'fit notes'), which are due to be introduced for use by GPs from April 2010.
The Government has confirmed the following in its response:

• the new 'fit note' will list common types of changes employers can introduce to encourage a return to work e.g. 'a phased return to work', 'amended duties', 'altered hours' and 'workplace adaptations'. The Government considers that listing common types of changes will encourage further discussions between the doctor and their patient, as well as between the employee and employer, regarding the potential options that may facilitate a return to work.
  
• the new 'fit note' will not contain a tick-box allowing the GP to recommend an occupational health assessment.  The Government did not want this to be viewed as a default option, leading to doctors being seen as not having considered or discussed with their patient what would help a return to work.
  
• GPs will only have two options to choose from: 'unfit for work' and 'you may be fit for work taking account of the following advice'.  The Government stated that the latter option acknowledges that it is not the doctor, but the employer, in consultation with their employee, who is best placed to decide whether they can accommodate any changes to facilitate a return to work.
  
• the maximum duration of a 'fit note' issued during the first six months of an employee's health condition will be reduced from six months to three months.

The Government intends to issue further specific guidance for individuals, employers and healthcare professions in due course. 

Agency worker not entitled to protection from discrimination

The Court of Appeal has confirmed that an agency worker was not an 'employee' of either the agency who supplied him or the agency's client where he was placed, and that he did not fall within the wider definition of "employment" under discrimination legislation. He therefore had no protection against discrimination.
In Muschett v HMPS, Mr Muschett commenced a working relationship with HM Prison Service (HMPS) as an agency worker placed with it by an employment agency, Brook Street (UK) Limited.  He signed a contract with the agency which agreed to provide his services to HMPS but he had no written contract with HMPS.  He subsequently brought claims for unfair dismissal, wrongful dismissal, race, sex and religious discrimination.

The claims for unfair and wrongful dismissal depended on Mr Muschett showing that he was an 'employee' of HMPS under section 230(1) of the Employment Rights Act 1996 (ERA), which defines an employee as an individual who works under a contract of employment. The discrimination claims depended on his being either an 'employee' of HMPS under a contract of employment or else in its 'employment' in the wider sense. This is defined, for example in the Race Relations Act 1976, as 'employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour'.

The Employment Tribunal dismissed Mr Muschett's claims. He was not an employee of Brook Street or HMPS under ERA or in the employment of HMPS within the wider definition in discrimination legislation. In relation to establishing whether Mr Muschett was an employee of HMPS, the judge considered three ingredients of a contract of employment: control, personal performance and mutuality of obligation. As there was no mutuality of obligation (i.e. he was not under any obligation to work for HMPS and could terminate the assignment at any time and without notice, and HMPS was under no obligation to provide him with work), there was no contract of employment. There was no need to imply a contract of employment between Mr Muschett and HMPS as the contractual terms were clear. In relation to Mr Muschett's discrimination claims, the Employment Tribunal also confirmed that in the absence of mutuality of obligation, he did not have a contract with HMPS personally to do any work for them, so his claims failed.

The Court of Appeal upheld the Employment Tribunal's decision. Mr Muschett was not an employee of HMPS. His status remained at all times that of an agency worker. An employment contract could not be created by the mere, and unilateral, wish of the putative employee. In relation to his discrimination claims, the Court acknowledged that it was wrong for the judge to focus on the absence of any mutuality of obligation as this is not a condition of a contract personally to execute any work or labour (i.e. a 'contract for services'). However, it had correctly based its decision on the fact that Mr Muschett was under no obligation to HMPS to work for them and could terminate his engagement at any time by giving notice to Brook Street. This was fatal to his claim to have had a contract for services with HMPS and it was not necessary to imply such a contract.

This case indicates that, as the law stands, agency workers in such situations (i.e. not employed by either the agency or the agency's client) may have to show that it is necessary to imply a contract with the agency or its client to have protection against discrimination. This may be difficult to do if the contractual arrangements between the parties, as in this case, already clearly explain the working relationship.

Time off for training - regulations published

The Government has laid regulations before Parliament outlining the new right to request time off for study or training. The regulations are due to come into force on 6 April 2010.

The regulations, which are intended to apply to employees who have been employed for at least 26 weeks, outline the following:

• the information which any request for time off for study or training must provide;
  
• the procedure which employers must follow when considering such requests (which involves holding a meeting with the employee and providing a right of appeal);
  
• the entitlement of employees to make a complaint to an Employment Tribunal where an employer has breached the procedural requirements; and
  
• the maximum amount of compensation that may be awarded where a complaint is well-founded (8 weeks' pay).

The right is due to be introduced for employers with 250 or more employees in April 2010 and will be extended to all employers from April 2011.

BIS guidance on annual leave and sick leave

The Department for Business, Innovation and Skills (BIS) has published brief guidance on the interaction of sick leave and annual leave following the ECJ decisions in Stringer and Pereda (reported in earlier Employment Updates).

The BIS guidance summarises the decisions confirms that the 'combined effect of the rulings is that a worker can choose to take their statutory annual leave at the same time as sick leave, or the worker can choose to take the missed annual leave at a later date. A worker who has missed out on statutory annual leave due to sickness may be able to carry-over the missed leave to the next leave year'.

Interestingly, BIS also confirms that it will be consulting on possible amendments to the Working Time Regulations in light of the rulings, which are likely to address the issue that the Regulations do not currently permit annual leave to be carried over.

Plans to extend smoking ban to workplace entrances

The Government has indicated that it is considering extending the smoking ban to areas around building entrances as part of its review of the impact of smoke-free legislation this year.

In its recent publication, A Smokefree Future: A comprehensive tobacco control strategy, the Government confirms that the review will provide an opportunity to examine whether the legislation is working and where it can be improved, and whether protection needs to be extended.

ACAS urges employers to improve employee engagement

The Advisory, Conciliation and Advisory Service (ACAS) is encouraging employers to prepare for the potential economic up-turn by focusing on employee engagement.
In a recent discussion paper, Acas highlights the simple procedures that can increase employee engagement in the workplace, to improve staff retention, increase morale and encourage greater productivity.
The paper identifies some specific factors which are critical to gaining employee engagement:

• Leadership - employees need to understand the purpose of the business as well as how their individual roles contribute to that vision
• Engaging managers - engaging managers offer clarity for what is expected from the employees and treat their people as individuals with fairness and respect
• Employee voice - employees' views should be sought out, listened to and employees made to feel that their opinions count 
• Integrity - if an employee sees the values of the business ingrained in the management team, a sense of trust is more likely to be developed

Social networking and recruitment

Almost half of European recruiters seek information on potential candidates using online social networks and almost a quarter have rejected candidates on the basis of their research.
According to a recent survey, carried out by market research firm Cross-Tab and commissioned by Microsoft, when European human resources professionals were asked how they collect information about people they plan to recruit, 43% of those surveyed replied that they analyse the online reputation of the candidate, mainly through search engines, social networking websites, personal sites and blogs.

In Germany, 59% of recruiters make use of personal data collected on the internet for the evaluation of a candidate, 47% in the UK, and 23% in France. The EU average is much lower than the US, where 79% of HR experts scan the internet in search of personal information for recruiting purposes.

The report also shows that 23% of recruiters have rejected candidates on the basis of their online reputation. This percentage rises to 41% in the UK, while it remains at 16% in Germany and 14% in France. In the US, 70% of HR professionals have reportedly refused job-seekers based on data found online. The main reason for rejecting candidates is the discovery of 'inappropriate comments and text written by the candidate online'.

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