Happy New (Financial) Year! April 6^th marks the new fiscal year as well as the start of the long-awaited General Election.  It also marks the first of the two semi-annual dates on which the government introduces new legislation and alters allowances; which Herbert Smith call “Red Tape” day.  I’ve already written about the most high-profile new measure coming into force: the new “fit note” system.  Melanie Hatton at the “Law Donut” blog comments that it is too early to say whether fit notes will benefit employers or not, but makes the very useful point that employers should keep written records of reasons for  those occasions when they don’t follow the G.Ps recommendations.

Contingency Fee Agreements in Employment Tribunals are finally put on a statutory basis from today with the Damages-Based Agreement Regulations 2010 coming into force.  Contingency Fees have been allowed in ETs for years (but not in litigation in the courts) and are now regulated.   A contingency fee is a type of “no win no fee” agreement whereby the representative charges a simple percentage of the compensation awarded to the client employee.  It is a much neater, simpler and totally different solution from the “conditional fee agreements” used by lawyers in personal injury, commercial, defamation and other court based disputes.  Usefully Employed produced a very helpful summary of the provisions of the regulations.  The main points to note are that the agreement must be in writing, must specify the claim or proceedings to which it relates, have a maximum recovery fee of 35% including VAT and say why the recovery fee has been set at the level it has and state the circumstances in whichthe client is deemed to have won.  Furthermore the agreement can only be terminated (1) by the representative if the client is behaving or has behaved unreasonably, and (2) the client cannot terminate the agreement when liability has been admitted, a settlement has been agreed or it is less than seven days before the ET hearing.   Usefully Employed identifies a potential glaring omission from the Regs: what happens when the client requests the lawyer to act in a way that would breach professional obligations and rules of conduct?  Surely that would allow the lawyer to terminate?  It isn’t specifically mentioned in the Regs but I would have thought that the lawyer could rely on the “unreasonable behaviour” provision.

With a nod to the brave new world of Alternative Business Structures shortly to emerge from its legislative cocoon the Regs. apply to all persons “providing the advocacy services, litigation services or claims management services to which the damages-based agreement relates” – in other words not just lawyers but all representatives. Usefully Employed reminds us that barristers are prevented from charging contingency fees on the work they do by their own professional rules.

Employees with at least 26 weeks service at businesses with more than 250 staff today acquire the right to request time off for training or study.  Next year the right will be extended to all employees.   According to the Business Link website “Employees’ requests can be to undertake accredited programmes leading to a qualification, or for unaccredited training to help them develop specific skills relevant to their job, workplace or business.”

Down to the nitty gritty: SSP stays at £79.15 per week, Statutory Maternity/Paternity/Adoption Pay goes up to £124.88 per week.     SMP remains payable for only 39 weeks, not the 52 the government has talked about, although that remains its aim. The next Red Tape day will be 1^st October.

As ever please contact me (via Dale Langley & Co) if you need further assistance: 0207 464 8433 or michaelscutt@dalelangley.co.uk

Related posts:

1. Happy New Year!
2. Happy Christmas
3. Can My Employees Secretly Tape a Meeting With Me?

Happy “Red Tape” Day! originally appeared on Jobsworth by Michael Scutt on 06/04/2010.

On the 6^th April next month[1], the government’s new medical certification scheme comes into force replacing the current “Med3” sick note system.  It was decided to do away with the scheme because it focussed too much on what employees could not do and not enough on what they could.  In other words, a person was either too sick to work, or they were well and it ignored any, temporary or rehabilitative options that there might be to allow the person to remain in work.  For instance a person with back ache might be fit to work provided they did no heavy lifting or were allowed to get up and walk about every hour to ease discomfort whilst sitting.  With a Med3 that person can’t go to work despite the fact that they could do light duties.  The government’s aim, of course, is to reduce the number of days lost to sickness and the number of people from claiming benefit. The government has long been exercised by how to reduce the number of people on long-term sick leave, suffering from chronic conditions and the new “fitness to work” certificate tries to remedy that.

 Statutory Sick Pay will remain in being and, as before, a person will need a “Fit Note” from the eighth day of absence.  The certificate contains the following wording;

“I advise you that: you are not fit for work OR you may be fit for work taking account of the following advice: If available, and with your employer’s agreement, you may benefit from: a phased return to work; altered hours; amended duties/workplace adaptations”

The main thrust behind this is unobjectionable but, in practice, I can see it causing trouble.  G.Ps are unhappy about it because it places them in a potentially difficult position.  Margaret McCartney, a G.P based in Glasgow, writing in this weekend’s Financial Times, said that it requires G.Ps to become Occupational Health Physicians -  which is a separate discipline altogether and one which most G.Ps are not trained for.  She was also concerned that G.Ps might breach confidentiality to their patients in completing these forms because there is also space on them for further notes to be written in explanation of their recommendation. 

But, with my employment lawyer’s hat on, I can see two main impacts of this change.  The first is that people with less serious stress at work claims are going to find it more difficult to pursue their claims, especially for those employees who claim “stress at work” as a tactical weapon in response to disciplinary proceedings.   That must be a positive, especially for employers.  The second, less helpfully, is that employers may find themselves bogged down in arguments with their employees on just what they can and can’t do and precisely what the G.P had in mind.  Most employers are not occupational health experts anymore than most G.Ps are.  That could lead to grievances and, potentially, claims.  G.Ps might find themselves accused of professional negligence as well if they are too optimistic about what a patient can do. 

 Time will tell how this change will work and if it is successful in keeping more people in work.  It is a laudable aim and one that deserves to succeed.  I just worry that the government has tried to achieve it “on the cheap”. As usual.

[1] Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 SI 2010/137

No related posts.

Fit Notes: Fit for Purpose? originally appeared on Jobsworth by Michael Scutt on 22/03/2010.