April 2010 is upon us and it brings changes to current legislation. Some of these important changes are outlined below.

Regulations on Blacklisting

The Employment Relations Act 1999 (Blacklists) Regulations 2010 have been laid before Parliament, and subject to Parliamentary approval, are due to come into force sometime between February and April 2010.

The regulations prohibit any person compiling, using, selling or supplying a “prohibited” list containing details of persons who are or have been members of trade unions or persons who are or have taken part in trade union activities as well as being compiled with a view to it being used by employers or employment agencies for the purposes of discrimination. A claim for any breach of this duty will need to be brought in the County Court with the Court having the opportunity to award damages, including any award for injury to feelings, and any orders that it considers appropriate.

There are a number of exceptions to this prohibition, namely:-

• Where a prohibited list is supplied without the knowledge that it is prohibited;
• Where it is justified in the public interest;
• Where the main purpose is to ascertain suitability for a job requiring knowledge of union membership;
• Where it is required or authorised by law;
• Where the use is in connection with legal proceedings or for the purpose of giving legal advice.

Any refusal to employ someone for a reason which relates to a prohibited list or for an agency to refuse to offer its services to someone for such a reason is unlawful and a claim for discrimination may be brought in the employment tribunal within three months of the date of the relevant conduct.

The regulations have been heavily criticised and face a delay in their implementation, the main criticism being that any blacklisting should be considered a criminal offence with the appropriate sanctions. It has also been criticised that the regulations do not specifically rule out the blacklisting of workers involved in unofficial industrial action and those who down tools due to safety concerns. Furthermore, automatic compensation is not provided for workers who have been blacklisted.

Only time will tell as to whether these concerns will cause the regulations to be further amended before finally coming into force although it is hoped that the spectre of a £500,000 fine from the Information Commissioner for breach of the Data Protection Act 1998 should be a sufficient deterrent to the practice of blacklisting.

 Additional Paternity leave and pay

It is intended that the Additional Paternity Leave and Pay scheme will come into force on 6 April 2010 and will apply to parents of children due on or after 3 April 2011, or to adoptive parents who are notified of having been matched with a child on or after that date. The regulations provide that:-

• Eligible employees are entitled to 26 weeks additional paternity leave for the purpose of caring for a child under one, or for an adopted child in the first year after being placed for adoption.

• Leave can only be taken once the mother has returned to work and the child is over 20 weeks old, or has been with the adoptive parents for 20 weeks.

• Employers are entitled to Additional Statutory Paternity Pay where the mother was entitled to maternity allowance, statutory maternity pay or statutory adoption pay and have returned to work.

• The standard weekly rate for Additional Statutory Paternity Pay from 6 April 2006 2010 will be £124.88 a week or 90% of normal weekly earnings if lower.

• Additional paternity leave must be taken in multiples of complete weeks and as one continuous period.

• Any request for additional paternity leave must be made 8 weeks in advance, and must be accompanied by a written declaration by the child’s mother or adopter stating the date that they intend to return from maternity leave.

These plans were originally shelved by Lord Mandelson due to a large number of complaints being made by companies as the regulations would produce excessive costs and cause significant disruption to businesses. However, the regulations will come into force and they aim to give parents more flexibility on who looks after the children and it also allows those in gay civil partnerships to share maternity leave.

Normal minimum pension age to rise

On 6 April 2010 the minimum age for drawing a private pension will rise from 50 to 55 subject to two exceptions.

The first exception is for members who meet the ill health condition. This entitles them to continue receiving early payment of their pensions after 6 April 2010 no matter whether they have reached the age of 55 or not. Secondly, members who had a right on 5 April 2006 to take their pensions between the ages of 50 and 55 are entitled to exercise that right after the change comes into effect. To be so entitled, the right must be unqualified and have been contained within the scheme’s governing documents on 10 December 2003. If an employee were to fall within one of these two exceptions, they will still be entitled to draw from their private pension between the ages of 50 and 55.

As a result of these regulations, employers will need to ascertain whether scheme rules confer protected pension ages for certain members and prepare announcements for affected members. It is recommended that employers seek legal advice on whether scheme rules will need amending under the new regulations. 

Damages-Based Agreements

The Damages-Based Agreements Regulations 2010 require all contingency fee agreements signed on or after 6 April 2010 to meet certain requirements. The percentage cut of the client’s compensation that may be taken as a fee is capped at 35% inclusive of VAT. The agreement must be in writing and signed by both the client and the lawyer and specify:

• The claim to which the agreement relates;

• The circumstances in which the fee will be payable;

• The reason for settling on the percentage fee to be taken. It is suggested that a relevant factor would be where a client’s claim is one of several similar claims.

• Prior to signing the agreement, the client must be informed in writing about when and how they can request a costs review; the dispute resolution services ACAS provide; whether an alternative method of funding the claim is available; and a reasonable estimate of the likely amount of expenses they will be required to pay and the point at which they become payable.

• If an agreement is terminated, the lawyer may charge the client no more than their costs and expenses for the work undertaken in respect of the client’s claim and it may not be terminated with costs charged unless the client has behaved, or is behaving, unreasonably.

Rebecca Fox is a Solicitor at Matthew Arnold & Baldwin LLP