Flexible Working

The Government has scrapped plans to extend the right to request flexible working to parents of 17 year olds, as was originally planned for April 2011.  This is one of a range of measures designed to reduce the amount of red tape faced by employers.  The right to request flexible working continues to apply to employees who care for a child under 17 (or 18 is disabled) or a dependent adult.  The Government still intends in the future to extend the right to request flexible working to all employees, regardless of their caring responsibilities.  A consultation paper is due to be published this year to consider this extension.

Additional Paternity Leave

Fathers of babies due on or after 3 April 2011 (and other relevant carers – eg. The mother’s spouse or partner) are now able to take up to six months’ additional paternity leave in addition to the existing entitlement of one or two weeks.  The right also applies to adoptive couples.  To be eligible for the additional leave, the employee must have at least 26 weeks’ service and apart from the mother, expect to have the main responsibility for the child’s upbringing.  It is a condition of the leave that the mother has ended her maternity leave early.  The additional leave will only be paid if it is taken when the mother would otherwise have been entitled to statutory maternity pay or maternity allowance, in which case it will be paid at the statutory rate.

The Government is also considering an even more flexible system of ‘shared parental leave’ which would allow parents to split the leave between them as they see fit, rather than having to take it in back-to-back blocks.  A consultation will take place during 2011 on how the system will work, and it is proposed that any changes would be introduced by 2015.

 Statutory Maternity, Paternity, Adoption and Sick Pay

On 11 April 2011, the lower rate of statutory maternity pay, and the rates of statutory adoption and paternity pay, will increase from £124.88 to £128.73 per week.  Statutory sick pay will increase from £79.15 to £81.60 per week.

Equality and Diversity

Since 6^th April 2011, employers are now allowed to discriminate in favour of a candidate in recruitment or promotion, but only when choosing between equally qualified candidates where the aim is to address an imbalance in the workforce – eg. selecting a female over an equally qualified male to join an all male management team. The Government has produced guidance which suggests that, when deciding whether two candidates are “equally qualified”, the employer can take into account their overall ability, competence, professional experience, any relevant formal qualifications and any other qualities required to carry out the job.  In spite of the guidance, few employers will want to rely on this provision.  If the employer gets it wrong, and the two candidates are not equally qualified, the candidate who is rejected because of their sex, race, religion etc, will almost certainly have a discrimination claim.

Childcare Vouchers

The way that tax relief works on employer-provided childcare vouchers was changed on the 6 April 2011.  Previously, the first £55 a week (or £243 a month) of eligible childcare vouchers was exempt from income tax and national insurance contributions for all employees.  Now the value of vouchers which are tax and NICs free will vary according to the employee’s tax rate.  This is designed to even out the tax savings available to all employees.  Employers therefore, need to estimate the employee’s earnings to determine the value of vouchers that can be provided tax-free.  The change only affects people joining an employer’s scheme on or after 6 April 2011 – employees who already participate in an employer scheme as at 5 April 2011 are not affected.  HMRC has published guidance on the changes, including how to estimate the employee’s earnings, which is available at www.hmrc.gov.uk/thelibrary/esc-qa.htm.

Settlement Payments

The rules on deducting tax for termination payments also changed in April.  From 6 April 2011, employers must deduct tax from post-P45 payments at the employee’s marginal rate (not at basic rate as was previously the case) and on the basis that all allowances have been used.  Employers should ensure that any compromise agreements with payments due on or after 6 April refer to tax being deducted at the applicable rate, rather than basic rate.

www.hays.co.uk

On Wednesday 2 July 2008  the House of Lords handed down a Decision in the case of Mr Spencer-Franks v KBR and Others. Mr Spencer Franks worked offshore as a mechanical technician and was employed by Kellog Brown and Root (KBR) onboard the Tartan Alpha platform operated by Talisman Energy (UK) Limited. ( Talisman). The Decision of all 5 Law Lords was that Mr Spencer-Franks’ appeal in this case be upheld and that his personal injury claim, brought against both his employers and the platform Operators, under the terms of the Provision and Use of Work Equipment Regulations1998, be allowed to proceed. In arriving at their decision the Law Lords have provided valuable guidance as to how the Regulations, introduced to “guarantee a better level of protection of the safety and health of workers” are to be applied in practice.

Mr Spencer-Franks was injured in an accident on 12 October 2003 whilst working for KBR on the Tartan Alpha platform situated in the Scottish sector of the North Sea, which was operated by Talisman Energy UK Ltd. He was instructed to repair a closer unit on a door of the central control room which was not operating properly. As he carried out inspection of the unit the arm suddenly released and struck him with force in the face. As a result he sustained significant injury to his teeth and face.

An action was raised against KBR and Talisman in Aberdeen Sheriff Court claiming that each was in breach of the Provision and Use of Work Equipment Regulations 1998. This action was defended. After a Hearing before Sheriff Tierney in Aberdeen, the Sheriff rejected the case against KBR on the basis that the employer had no control over this piece of work equipment and the regulation did not apply to them in this respect. The Sheriff did however hold that Talisman as the operator of the platform did have control and allowed the case to proceed to a Proof against them alone.

Agents on behalf of Mr. Spencer-Franks, and indeed Talisman the operator appealed the decision and the matter duly proceeded to be heard by the Second Division of the Court of Session. This Court took the view that the door closer was not work equipment at all and even if it was that the pursuer was not using it within the meaning of the regulations. They sought to make a fine distinction between major and minor repair work. This Court therefore rejected Mr Spencer-Franks’ appeal and his case was dismissed. Mr Spencer-Franks’ agents then proceeded with an Appeal to the House of Lords, which was considered before them on 21 and 22 April 2008.

After detailed consideration of the matter all five Law Lords confirmed that both Defendants had a duty to Mr Spencer-Franks in terms of the Provision of Work Equipment Regulations 1998 and ordered that both earlier decisions be overturned and that the matter should be referred back to the Sheriff in Aberdeen to hear a full Proof on all the evidence.

COMMENT

Whilst the Decision has significant and particular repercussions for employees working in the offshore industry, in its examination of the current case law – which deals with the application of the Provision and Use of Work Equipment Regulations 1998 to accidents in all sorts of workplaces – it has set down very important general guidelines to the lower courts. Further guidance has been provided as to how the Regulations are to be applied and the proper construction to be given to particular regulations in individual circumstances.

As far as the offshore industry is concerned, following hard on the heels of the case of Robert Robb -v- Salamis, a much clearer view is now available as to the protection offered by the current regulations to workers in the offshore industry whilst on board offshore installations.

Quantum Claims acted for both Mr Robb and Mr Spencer-Franks and their Chairman, Frank Lefevre, was delighted by this further success

“An Appeal to the House of Lords is always a daunting prospect with very severe financial consequences in the event of failure, and it is not a decision any organisation takes lightly.

Without in any way dismissing what were very serious injuries to Mr Spencer-Franks, the value of his case could never have been described as large, and certainly only a fraction of the value of Mr. Robb’s case, so the commercial realities were far from attractive.

However from our point of view we believe having supported the Robb Appeal that there were important principles to be established for the protection of workers not just in the North Sea but right across industry generally, and therefore having succeeded, this gives me an even greater degree of pleasure.

I would also like to take this opportunity to congratulate our Counsel Angus Stewart Q.C., and Jan McCall, Advocate, both of whom appeared in the Robb case as well as Mr Spencer-Franks case, and whose hard work, determination and endless support for these cases was essential. At no time during the course of the cases did their view waiver about the position, and they are to be congratulated for maintaining the courage of their convictions.”

Mr Spencer-Franks is a member of the O.I.L.C. Branch of the RMT Union which has provided support throughout this long case. The General Secretary, Mr Jake Molloy, said of the outcome

“First and foremost I’m delighted for our member who will now be rightly compensated for the horrific injuries he sustained along with the extensive and on-going dental work he has had to undergo. I’m also delighted we now have a far clearer interpretation of these regulations, which our legal team can put to good use in securing compensation for our members and workers generally who sustain injuries in this industry.

And finally I’d like to point out that this victory demonstrates the value of having a fighting trade union supporting you in times of trouble. The risk of failure was high and the costs higher, but the union and our legal team were determined and resolute throughout.”

Having masterminded a second significant victory in the development of UK Health & Safety law, Angus Stewart Q.C. Senior Counsel for Mr Spencer-Franks commented

“The House of Lords has helpfully resolved a difficulty created by an English Court of Appeal decision four years ago. Hopefully this will now mean better standards of health and safety offshore and indeed for all workers in the UK.“

In 2007 Mr Stewart led the successful prosecution of the companies responsible for the Stockline factory explosion in Glasgow in 2004.