The first of our help videos - The Disciplinary Hearing

We are delighted to release the first of our new information videos to help you understand some of the rules and regulations and, best practice in HR.

The first video in the series is The Disciplinary Hearing and, whilst it may not be something people relish having to deal with, it is one of the most important ares of HR. Going through the proper procedure is essential for any business if they are to avoid mistakes which invariably end up costing the organisation time and money.

We hope you enjoy the video and find the information useful to you. If you would like to chat to someone about a specific case or, you would like to find out how Empire can work with you, please give us a call on 01224 701383, we will be happy to have a coffee and a chat with you.  Alternatively, you can complete the short enquiry form on our web site and someone will contact you.

We will be posting all of these resourceful videos on our network site - Empire Wire, please take a minute to visit the site and join our network where you can engage with other people involved in HR and, get some very useful information about the HR industry.  Join Empire Wire here.

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The Importance of Social Media Marketing to Businesses

Social Media Networking or Marketing as it is more commonly known is one of the most up and coming topics being discussed in the business world today. You will find numerous business publications covering articles on the theme of social media marketing, the importance it has to business and the ways in which to implement it within your company and so on.

Generally the majority of businesses are now trying to become more actively engaged in one or more of the numerous channels of social media that exist, for many different reasons. If planned and executed properly social media marketing can position itself to be one of the cheapest and most effective methods of online marketing and promotion for your business or organisation. If your business’ social media marketing is not well planned and executed, this could result in potential disaster for your company.

There are numerous reasons as to why any company or organisation should turn towards thinking about using social media marketing as one of their marketing and promotional resources. This of course solely depends upon several factors. These are; your company profile, the products and or services that you provide and your customers themselves etc. Progressively the importance of an effective social media campaign is on the rise for the majority of all companies today.

Below will illustrate some of the fundamental benefits that strategic social media marketing could bring to your business.

1. Branding
Companies can utilise social media channels as a way of increasing and expanding its willingness and reliability which could ultimately result in improved company branding through enhanced brand recognition amongst already existing customers and equally potential customers too. Social media marketing allows companies to have two way channels of conversation with their customers, which in turn builds a significant amount of credibility amongst its customers.

2. Lead Generation
Lead generation is another reason why companies should opt towards using social media campaigns. Lead generation is an integral part of a company’s success and social media marketing strategies and campaigns can help in targeting the most relevant target markets.

3. Engage with your customers
Social media channels assist in making it easier and more flexible when it comes to engaging with your customers. Customer engagement is the most significant benefit that social media marketing can bring. This facilitates in retaining the company’s existing customers and also increases the company’s brand integrity. During the recent economic downfall, a great deal of companies succeeded in retaining their customers with the support of customer engagement through the use of social media channels.

4. Generate Relevant Traffic
Traffic generation is the primary purpose of all online marketing campaigns. Social media sites are extremely effective examples of traffic generation at its utmost. There are also various niche social media channels which make it easier to generate relevant and high quality traffic to any particular website.

5. Getting Customer Feedback
Customer feedback is the backbone of any business and the feedback that is received helps in improving the products or services as per the customer’s requirements. Since social media channels helps in making customer engagement much easier, customer feedback is always near the top of the agenda and you can continuously expect helpful customer reviews and feedback which in turn help improve products or services to their ultimate best. With customer relationships being an integral part of the growth of any company, when customer relationships fail, the company and its operations are also bound to fail. Social media channels help in forming strong bonds between the customer and the organisation and thereby increases the stability of the company.

6. New Products or Services
There is no better means of a more consistent or cost effective media source than that of the social media sites, to inform customers about up and coming releases of new products and services. Social media channels assist in making straightforward ways of spreading news of new products or services to the specified targeted audience.

7. Market Trends
Social media sites allow you unrestricted access to information about up and coming trends and also the preferences of the customers which allows you to act accordingly. Knowing what preferences your customers have and the trends that will be forthcoming, makes it easier for your business to enhance and alter your products or services to meet these new customer wants and needs, and also to plan your online marketing campaigns in much more effective and direct approach.

8. Search Engine Status
Search engines are the most consistent and dependable generator of traffic for any website. Effective social media campaigns can have a significant influence on your search engine rankings. Since most of the search engine giants are using real time search results, social media updates and bookmarks will help increase your site positioning in the overall search engine rankings.

Royal Public Holiday - Are your staff entitled to the day off?

The world is currently fascinated with next year’s Royal wedding of Prince William and Kate Middleton and Westminster and Holyrood governments have both declared that the big day planned for 29th April next year will be a national celebration and marked with a public holiday.

The announcements by Prime Minister David Cameron and First Minister Alex Salmond, means there will be two consecutive bank holiday weekends resulting in millions of employees working a three-day week. This substantial loss of working time will be costly for every business but it may prove to be particularly disruptive in the current economic climate when businesses are facing tougher times.

Mr Cameron and Mr Salmond’s declaration of an additional public holiday in 2011, may have given UK workers the impression that they are entitled to the day off to join in the Royal celebrations with the rest of the nation, however this is not the case.

Leading Aberdeen-based HR and employment law firm, Empire HR, is encouraging businesses to think ahead about how they wish to approach the forthcoming celebration in the workplace as it is not compulsory to shut up shop.

According to Empire HR, a national day will not automatically mean an extra days holiday. Companies do not have to honour the new holiday and employees should refer to their contract of employment to check their holiday entitlement. However, since the wedding will be an historic and momentous occasion, it may be mean spirited if a company doesn’t join in with the celebration and honour the public holiday.

A similar situation arose with the extra public holiday granted for the millennium. At the time a tribunal case considered contractual rights to holiday entitlement and ruled that unless it was clearly stated in the contract of employment, the employee would not be granted an additional day’s pay.

CEO of Empire HR, Steve Cook, is urging managers to examine the company approach to public holidays. He said; “Many contracts of employment state an employee is entitled to a fixed number of public holidays. Anyone who has a fixed number of public holidays written into their contract will not be entitled to the additional day off. As a result, anyone wishing to take the day off would have to book the day in accordance with their company annual leave policy. “Only employees whose contracts state the employee is entitled to all public holidays would be entitled to the extra day off. Of course it would be open to generous employers to give all employees an additional day off regardless of their contract terms.”

Empire HR provide commercially focused employment law and HR support service including a telephone advice line, HR Consultancy, employment tribunal insurance and health & safety support for businesses across Scotland. Empire HR can assist businesses on all aspects of holiday entitlement. For further information, please contact Empire HR on 01224 701383



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Winter safety checks for drivers

As winter draws ever nearer drivers are already starting to wake up to frost filled mornings and ice covered cars. The following acts as winter checklist for drivers wishing to stay safe and avoid a frosty morning drive.


It is always best to prepare your vehicle for winter as early as possible. As winter approaches give your car a pre-winter once over. Many garages will give your car a winter safety check for free. However if you can’t manage to make it to a garage here are a few tips to help you keep your car safe this winter.

• Firstly make sure that you allow yourself plenty of time in the morning to make sure that your car is defrosted properly so that it is therefore safe for you to drive away.
  


• Check your levels of anti freeze, replace any damaged wiper blades, stock-up on de-icer and buy a window scraper and some clothes: one to clear condensation from the inside windows and one to clean lights and exterior windows.
  


• Window wipers are usually forgotten about and they can be easily damaged in the frost. Turning on your wipers whilst they are frozen is one way to damage them as they may be frozen and turning them on may cause the motor to break or the wiper blade it’s self to snap or buckle. To avoid accidentally damaging them this way make sure you turn them off when leaving your vehicle parked over night. This will stop the wipers from coming on when you start the engine the next morning.
  


• If your windows are frosted over, start by starting your engine and leaving your car to run for a few minutes in order for it to heat up a little. If your windows are still frosty use some de-icer or a scraper. Never pour hot water over your windscreen as this can cause your windscreen to crack especially if your windscreen already has a small chip in it and this can then lead to further problems such as a cracked windscreen.
  


• Do not ignore your lights. Make sure the plastic light covers are also free of ice and frost and that your bulbs are in full working order.
  


• Make sure that your tires have plenty of tread and are the correct pressure. The minimum legal tread limit is 1.6mm but most manufacturers recommend 3mm.
  


• Also check your oil levels regularly. The oil mark should be between the two marks on the dipstick, but preferably nearer the minimum mark.
  


• In adverse weather conditions make sure to keep your distance from the car in front as the adverse weather conditions may affect your stopping distance.

Extention of flexible working hours

The Employment Relations Minister has confirmed the Government is likely to extend the right to request flexible working to all parents with a child under 18. Expected to be implemented in April 2011, the change will mean approximately 300,000 more employees could make a request. The Government is expected to announce a consultation on the extension of the right to request flexible working to all employees later this year.

Focus on ...Compensation

Recent tribunal statistics demonstrate the shocking amounts of compensation awarded in discrimination claims. The statistics reveal a 56% increase in accepted claims, obviously a cause for concern for businesses. Interestingly, compensation awards for Disability Discrimination claims are highest, resulting in an average award of £52,087!

Empire HR has drawn up a list of average compensation awards for each type of discrimination:

TYPE OF DISCRIMINATION	AVERAGE AWARD	BIGGEST AWARD
Disability	£52,087	£729,347
Sexual Orientation	£20,384	£163,725
Sex Discrimination	£19,449	£422,366
Race Discrimination	£18,584	£374,922
Age Discrimination	£10,931	£48,710
Religious Discrimination	£4,886	£9,500

When considering these figures it's important to bear in mind that a very high percentage of claims are actually settled before it gets to the tribunal stage. The figures also fail to take into account the legal fees incurred by businesses in defending the claims.

Employer Tribunal Nightmares

In the last year, there has been an increase of more than 50% in tribunal cases against employers with the economic downturn being blamed for the unprecedented rise.

Unfair dismissal is one of the most common type of claim but certainly the most expensive for an employer. Over 120,000 unfair dismissal claims were made in the last year, with average pay-outs of £8,000 up to a maximum of £76,700.

Leading Aberdeen-based employment law, HR and health & safety firm, Empire HR, is urging businesses to ensure there are certain procedures in place to avoid potential tribunal claims.

The firm says business leaders and managers should be taking a fresh look at their disciplinary policies and working practices to ensure that the risk of a claim is minimized.

Research has shown there is a increase in the willingness among employees to raise claims against their employer or former employer. Claims can now be made online making the process more accessible and with employees struggling to find another job they are much more likely to resort to litigation.

CEO of Empire HR, Steve Cook, said: “In the current economic climate, the effects of a successful claim could be disastrous for a business. It’s worth bearing in mind that it’s not just the actual compensation that costs the business money, as the time and resources spent on defending the claim can also severely affect the day-to-day running of a business.”

Mr Cook continued: “The rise in the number of dismissals over the past year, combined with the increasing awareness that employees have of their rights in the workplace have had a disastrous impact upon businesses.

“Factors such as the availability of legal information on the internet, the difficulty in finding new jobs, and the resulting poor financial situation of former employees means that people are more likely to file a claim than ever before.”

The good news, however, for employers is that statistics show employers with legal representation are more likely to be successful in defending any claims brought against them by former employees.

Here are ten employment tribunal stories that have been faced by some UK organisations:

Council facing potential pay out of £600m in equal pay case
Birmingham City Council is facing a hefty pay out after around 5,000 mainly female workers won their case for equal pay at a tribunal. Unions claim some female workers may be owed £30m in back-pay for bonuses paid only to their male counterparts. It is estimated the pay out could be up to £600m.

City lawyer awarded millions
A London lawyer who accused her bosses of destroying her career with a sexist bullying campaign accepted a secret pay-out of millions to drop her claim. She had been claiming a record £19million compensation deal over allegations that intimidation and sexual discrimination had left her 'mentally disabled'.

Hospital chief executive awarded £1.2m
The Royal Cornwall hospital had to pay-out £1.2 million to its former chief executive after he won a case claiming he was unfairly dismissed as a ‘whistle blower’.

Gay manager awarded £118,000 after only eight days of employment
A gay media sales manager was sacked after just eight days with a company because he was apparently not ‘psychologically balanced’. A tribunal heard the Glasgow man had been harassed and on one occasion been told he looked like a ‘cream puff’. He was awarded the compensation for discrimination on the grounds of his sexual orientation.

Company director awarded £68,000 for wrongful dismissal
A security company director was sacked under the grounds of the business’s financial difficulties. The director was apparently told by bosses he had to go due to lack of business, but when he was unable to find a new job the case was ruled as unfair dismissal and breach of contract, forcing the company to award him £68,000.

Teacher awarded £63,000 after unfair dismissal
A teacher in Blackpool won his case and was awarded £63,000 for unfair dismissal after imposing discipline on a disruptive pupil. The disciplined pupil claimed that she was unfairly treated which cost the science master his job leading to the unfair dismissal case.

£45,000 pay-out for cafe worker after being refused maternity pay
A cafe worker from Northern Ireland was awarded £45,000 for unfair dismissal. The woman
was working as a full time manager in the café for around 40–45 hours per week, however, the
owner had only been putting her down in the books for working 15 hours a week. When the
worker fell pregnant, the owner then claimed she didn’t qualify for maternity pay, prompting
the employee to raise a claim.

Accountant awarded almost £40,000 after unfair dismissal
An accountant from Perth was awarded £40,000 after being fired from his job accused of spending a “ridiculous amount of time” on the internet during working hours. It was later found that the management of the company had no idea how to interpret the internet usage reports and therefore the dismissal was treated as unfair.

Barmaid awarded more than £14,000 after text sacking
A Dundee barmaid who was sacked by text message by her boss was awarded more than
£14,000 at an employment tribunal for unfair dismissal. The barmaid, who had slept in for her
shift during the festive period, had previously worked 11 hours the day before her dismissal.
The barmaid was awarded a further £1,296 for breach of contract after being left alone in the
bar for more than two hours by her employee.

Wheelchair worker awarded £6,000 after being nicknamed by boss
A worker in a wheelchair who was nicknamed ‘Ironside’ after the disabled 1970s TV detective won a £6,000 payout for his ‘violated dignity’. Ironically, the ill-advised quip was made by a manager at a firm that helps people with disabilities return to work. The claimant took the company to a tribunal after finding out that he was being referred to as ‘Ironside’ behind his back.

Empire HR Ltd can assist businesses on all aspects of disciplinary action, from drafting the
disciplinary procedure to representation at tribunal.

For further information, please contact Steve Cook on 01224 701383 or email
s.cook@empirehr.com



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Winter blues in the workplace

As the winter months loom, the dark mornings and dark evenings leave many people feeling a little under the weather and not in the mood for work which leads to an increase in absence rates in the workplace.

Getting out of bed in the dark mornings can affect moral and have many people reaching for the duvet rather than the alarm clock. Low morale increases at this time of year leading to higher absences from work leaving employers with a costly problem.

The latest research by the CIPD reveals that, on average, sickness absence costs employers £692 per employee every year. Sickness absence also represents 3.1% of working time.

In 2009 absence levels stood at an average of 6.4 days per employee and research indicated that a staggering 180 million working days were lost to absence in 2009.

Leading Aberdeen-based employment law, HR and health & safety firm, Empire HR, is urging businesses to ensure they have the right procedures in place to handle absences at work as the winter months approach.

The current economic climate means that it is increasingly important to ensure that businesses are as efficient as possible. Successfully curbing absence costs could make a real difference to a business – potentially saving jobs.

Empire HR say the poor weather, post-summer and holiday blues along with the long wait for the next break from work creates a lack of enthusiasm for many employees who decide not to turn up for work in the morning.

Research found that two in five workers see less than half an hour of daylight during the winter working day and one in 10 sees no daylight at all, leading to slumps in productivity and motivation.

To combat this issue, some businesses introduce daylight initiatives in the winter months giving employees the option to attend work an hour later or finish an hour earlier and such schemes have seen an increase in staff morale.


Employees pulling sick days out of work are not just costly to the employer but also to their fellow work mates. Workload needs to be allocated to other employees leaving some overworked and this in turn can lead to further absences.

There is growing evidence that the longer the period of absence, the harder it is to return to work.
Most short term absence is self certified but there are a number of effective ways of managing this issue.

• Return to work interviews

• Disciplinary procedures for unacceptable absence

• Use of trigger mechanisms to review attendance

• Involvement of managers in absence management

• Provision of sickness absence information to line managers

• Restricting sick pay Training managers to handle absences

• Involvement of occupational health professionals

Return to work interviews can help ensure that short term absence problems are identified at an early stage. They also provide managers with an opportunity to start a dialogue with staff over underlying issues which might be causing the absence.

CEO of Empire HR, Steve Cook said: “Absences in the workplace is costly, and the use of disciplinary procedures leading to dismissal for unacceptable absence may be used if organisations wish to make it clear that unjustified absence will not be tolerated. Overall, employers must have a clear policy in place that spells out rights and obligations when taking time off work due to sickness.”

Sickie Facts:

One in three sick days falls on a Monday

More days are lost in January than any other month

Musculo-skeletal conditions are top cause of all absence

Sick leave amongst women is 24% higher than amongst men

If you need help on any absence management issues contact Empire HR on 01224 701383.

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Case Law: Employer liable for loss of earnings resulting from reference

The case of Bullimore v Pothecary Withan Weld Solicitors and another (UKEAT/0189/10) has highlighted the potential risks incurred by providing a bad reference.

Ms Bullimore placed a claim after discovering that her previous employer had provided a very poor reference to her new employer. The new employer withdrew the offer of employment after receiving the reference which informed them that Ms Bullimore had raised a sex discrimination claim against them, was inflexible and had a poor working relationship with the firm's partners.

The Employment Appeal Tribunal held that the previous employer was liable for Ms Bullimore's future loss of earnings.

This case highlights the importance of ensuring managers are aware of potential consequences of the references they provide. In most circumstances, the safest option is to provide factual reference which only confirms the dates they have been working for the company. The reference should also state that it is company policy to provide factual references (to prevent a future employer drawing negative conclusions).

Please contact Empire HR if you would like advice and support with writing a reference.

Too fat to drive?

A bus company in Lancashire has suspended two drivers because of their weight. They have been ordered to lose 7lbs in a month and then new targets will be set. The company claims the decision is justified on the grounds of health and safety but it has been criticised by some local politicians who point out that driving a bus is a sedentary role.

Case Law: Pregnancy gossip could amount to harassment

The case of Nixon v Ross Coates Solicitors and another (UKEAT/0108/10) has confirmed that gossip relating to a pregnancy can amount to harassment and discrimination. Ms Nixon was seen kissing a colleague at the work Christmas party and going into a hotel room with him. When she announced her pregnancy a few weeks later, the HR manager openly speculated and engaged in gossip about who the father might be.

Ms Nixon raised a grievance about the gossip and conduct of the HR manager, but it was not upheld and the time she took off work as a result of the issue was unpaid.

Ms Nixon subsequently won a claim for constructive dismissal and sex discrimination.

The Employment Appeal Tribunal held that since the gossip, conduct and unpaid time off work was related to her pregnancy it was covered by the Sex Discrimination Act and met the definition of Sexual Harassment.

Tribunal Case Horror Stories - Trick or Treat?

Over the past year, tribunal cases have more than doubled in the UK, with the economic downturn being blamed on the unprecedented rise.

Steve Cook, Chief Executive of Empire HR based in Aberdeen discusses this with the Press & Journal.

In this article you will see some case studies that are more of a trick than a treat to employers!

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Anticipated surge in discrimination claims

With The Equality Act coming into effect as of 1st October collating and replacing most existing discrimination legislation, the Act is likely to result in a surge of tribunal claims in the next few months. With the increase in protected characteristics from six to nine plus the introduction of protection from perceptive and associative discrimination it seems likely that employers are increasingly likely to be faced with a tribunal claim.

This is particularly worrying because the Tribunal Service has already reported a sharp increase in the number of claims placed, even before the introduction of the Act.

It is more important than ever to ensure policies covering equal opportunities and discrimination are up to date and to provide adequate training to managers on how to recognise and deal with potential issues before the escalate.

Richard Prentis, employment law consultant at Empire HR has been advising clients to be more alert than ever to the risk of a claim "The Equality Act obviously exposes employers to a greater risk of a claim because more people than ever will be protected by discrimination legislation. However, it is possibly to mitigate risks. Provided expert advice is sought, you should be well placed to defend such a claim".

Empire HR can provide support and assistance with managing employees who are protected by the Act. In the event that an employee does place a claim, the Empire HR Advocacy Unit can defend the claim and provide representation at tribunal.

Proposal to Increase Unfair Dismissal Qualifying Period to two years

At the moment the Government is actively considering an increase in the qualifying period for unfair dismissal from one year to two years.

The timetable for decision is yet to be announced and it is very likely that there will be a consultation period (about this and other employment law issues) first.


If the change in the qualifying period occurs, it will be moderately good news for employers but bad news for employees. In theory this would mean that employers would have an extra year to dismiss an employee unreasonably. But the employer could still face allegations of discrimenation or unfair dismissal claims where no qualifying period is required. This would include things such as whistle blowing and certain health & safety, maternity and trade union related dismissals. With these claims tending to be more expensive to defend than 'ordinary' unfair dismissal claims, it is unclear whether employers will find this proposal an entirely favourable change.

Spooky halloween tips from Empire HR

Halloween celebrations are increasing in popularity in the UK, with many businesses planning office based Halloween themed parties.

These spooky parties are viewed as a bit of fun by most and managers often embrace the opportunity to participate in a bit of team building entertainment.

Whilst team building events are a good thing, it is important to bear in mind the potential pitfalls associated with Halloween celebrations.

Empire has provided some tips on how to prevent trouble brewing at work:

Stick to scary, not garish!

Think carefully about the dress code. If fancy dress is in order, consider making it clear that outfits shouldn't be revealing or inappropriate. Is a skimpy Tarzan outfit really suitable for an office Halloween party? After all, you don't want people to be scared for the wrong reasons! Some common sense is also required. Dressing up as the Grim Reaper isn't a good idea of you work in the medical profession!

Be eerie but not creepy!

Office parties are nutorious for resulting in gossip and unprofessional behaviour. It doesn't become acceptable to leer at ot harass colleagues just because you are wearing a pumpkin outfit. The last thing you want is to have to deal with complaints about colleagues the morning after the celebrations. Therefore, ensure all employees are aware that the office party is a bit of fun and not an opportunity to break the rules.

Ghost and ghouls are not loved by all!

Bear in mind that Halloween is actually quite a controversial celebration. Many people don't celebrate Halloween and some have strong opinions on the issue. It's important to respect the views of all employees and it should be made clear that participation in anything Halloween related is optional.Halloween parties may not be appropriate in some sectors such as childcare due to the scaryt nature of the celebrations and the possibility thats some parents will not want their children to participate.

Keep the drinks chilled

If the celebrations are office based and/or take place in working time, consider whether alcoholic drinks are appropriate. If alcohol will be on offer, ensure your employees have arranged lifts or taxis home. Also remember than non alcoholic drinks should be made available too.

Delete frightening photos

Do you want photos on the internet of your employees dressed up as witches/ghosts/pumpkins with the Company logo in the background? If not, consider hosting the party out of the office, or ban the use of cameras. A surge in the use of social networking sites means there's a strong likelihood of less than professional photos being circulated to thousands of people.

No chainsaws allowed!

Consider the health and safety implications of the celebrations. Many Halloween themed costumes include plastic knives, fake blood and other similar fake weapons. Make sure tht no one brings a real weapon to accessorise their outfit!

Empire HR are recruiting

FULL TIME TELE SALES EXECUTIVE

Empire HR, Scotland's largest independent Employment Law Specialists are looking for a full time Tele Sales Executive to join their progressive sales team.

This is a fantastic opportunity for someone looking for a career in sales within a growing and forward thinking company.

Main Role
As Tele Sales Executive you will be responsible for carrying out market research to identify senior decision makers and introducing the company. You will also have an active role in marketing the company's services to existing and prospective clients.

Experience
Ideally you should have sales experience although full training will be provided.

Attitude/Skills
You should be bright, enthusiastic with a great telephone manner and have the drive to succeed.

This is a full time position based in Aberdeen. We offer a generous salary and commission structure along with an excellent benefits package. On top of that, there is an opportunity to progress to an Account Manager/Business Development role.


If you are interested in this exciting position please send your CV along with a covering letter to:

Cara Beamish
Business Development Manager

Empire HR Limited
Empire House
117 Grandholm Drive
Bridge of Don
Aberdeen
AB22 8AE

Closing Date: 12-Nov-2010

Health Questionnaires

Due to the large amounts of phone calls this month relating the health questionnaires we have decided to provide some information on the topic.

The Equality Bill generally prohibits the use of pre-employment questionnaires, although there are some exceptions. These are set out in Section 60(6) of the Bill. Amongst the 5 exceptions is:

S(60)(6)(b) establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned.

This exception is the one that is likely to have most relevance for employers but it is a narrow exception.

Therefore, I would only advise the use of a pre employment questionnaire intended to fall within this exception where:

1) There is a genuine requirement for the employee to carry out a task of a physical nature.

It would not normally be appropriate to use a questionnaire where the work is office based, or where there are no tasks that are particularly physical. The first stage in considering the use of the questionnaire is to establish what the requirement is (e.g. heavy lifting, running, 20/20 eyesight etc). There should be some evidence that this requirement is genuine, and not simply a speculative requirement.

2)That task requiring the physical work is essential to carry out the job.

If the task resulting in the requirement is not essential, or it could be assigned to a different employee, or is not required to be carried out very often, it would not normally be appropriate to use the questionnaire. For example, even if there is some physically demanding work involved, I would advise carefully considering whether the use of a questionnaire is appropriate if it is possible that they could do most of the job without carrying out the physical work. Therefore, after you have established what the requirement is, you need to consider how important it is that the applicant can fulfill it.

3) The requirement is a proportionate means of achieving the aim.

This means that it is important to carefully consider whether the requirement is the best way to achieve the task. For example, if you are stipulating that the applicant must have 20/20 vision due to the work being technical and intricate you would need to be sure that the requirement for 20/20 vision was proportionate - consider the consequences of an employee without perfect vision carrying out the task – if there would be no serious consequences the requirement for 20/20 vision is not likely to be a proportionate requirement.

4) The questions are designed to ascertain whether there may be a problem in carrying out the particular task.

Therefore, it would not be appropriate to ask questions that will not relate to the particular task in question. For example, it would not be advisable to ask a question about skin problems such as eczema if the task that the questionnaire related to is heavy lifting. This means that it would not normally be appropriate to have a standard format for the questionnaire asking a series of general questions. The questions should be relevant to the specific task necessitating a particular requirement that you have established as being a genuine requirement that is essential to carry out the job.

It is worth noting that any questions should be designed to ascertain current ability to carry out the task. Therefore, questions asking about past health issues are likely to fall foul of the Act. I would recommend steering clear of questions starting with ‘have you ever …..’ and replacing them with ‘do you …’

As a very simple example, the Act’s explanatory notes state that a questionnaire may be relevant where "An applicant applies for a job in a warehouse, which requires the manual lifting and handling of heavy items. As manual handling is a function which is intrinsic to the job, the employer is permitted to ask the applicant questions about his health to establish whether he is able to do the job (with reasonable adjustments for a disabled applicant, if required). The employer would not be permitted to ask the applicant other health questions until he or she offered the candidate a job."

When considering whether to use a pre-employment questionnaire it is worth bearing in mind that while asking an applicant health questions will not in itself amount to discrimination against a job applicant, acting on the answers may well do. Where an unsuccessful job applicant brings a direct disability discrimination claim, and the employer asked a pre employment health question for a non-prescribed reason, the burden of proof will shift automatically to the employer to show that no discrimination took place.

In addition, the EHRC will be able to take enforcement action in relation to prohibited questions even where no discrimination is alleged to have taken place.

This prohibition only relates to pre-employment questionnaires. Once an applicant has been offered a job, an employer can ask questions relating to health in order to ensure health & safety obligations are being met, that appropriate reasonable adjustments are met etc.

If you find that you still require more information or guidance on this matter please contact our advice helpline on 01224 701383.

Equality Act Reminder

The Equality Act 2010 came into effect at the beginning of this month.

The Act collates and changes several areas of discrimination legislation covering race, sex, disability, sexual orientation, religion or belief, or age. The Act adopts a more consistent approach to discrimination – resulting in several key changes.

Some key changes that have come into effect as of 1st October 2010 are:

• Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers
• Clearer protection for breastfeeding mothers
• Introducing a new concept of “discrimination arising from disability”
• Extending protection from 3rd party harassment to all protected characteristics
• Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health
• Making pay secrecy clauses unenforceable
• Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce
• Harmonising provisions allowing voluntary positive action

This list is not exhaustive but it does cover the area’s most likely to affect Empire HR clients. The Empire HR Bulletin has already addressed some of these changes. The July Bulletin explained how the Equality Act affects disability discrimination and the April Bulletin outlined the impact upon medical questionnaires. This edition focuses on secrecy clauses (see below). Empire HR will be keeping clients up to date on the implementation of the Equality Act. Don’t forget to check the Empire HR Facebook page or the Empire Wire for the latest information!

Minimum Wage Reminder

At the beginning of October the rates of minimum wage in the UK increased.

The table below shows the up-to-date changes.

Rate	From 1 October 2010	From 1 October 2009
Workers aged 22 and over (minimum hourly rate)	£5.93	£5.80
Workers aged 18-21 and those aged 22 and over doing accredited training in the first six months of employment (minimum hourly rate)	£4.92	£4.83
Workers aged 16 and 17 (minimum hourly rate)	£3.64	£3.57
Apprentices under 19 or in the first year of apprenticeship (otherwise refer to age bands)	£2.50
Accommodation off-set (maximum deduction per day from NMW where employer provides accommodation)	£4.61	£4.51
Agricultural apprentices in England and Wales (first 12 months)	TBC	£3.57
Agricultural apprentices in Scotland (first 12 months)	TBC	£3.50

Agricultural Fatalities

New figures for the number of workers who were fatally injured in the agriculture sector have been released by the Health and Safety Executive (HSE) this month.


They show that between 1 April 2009 and 31 March 2010:

• 38 agriculture workers were killed at work, marking a return to average levels of previous years in contrast to the record low in 2008/09 when 25 workers died


• the rate of fatal injuries in the sector was 8.2 per 100,000 workers, making it the most dangerous industry in which to work


• of the 38 agriculture workers killed, 17 were employees and 21 were self employed people


• seven members of the public were also killed in work related accidents in the sector

Builders Fined

A building company and its director have been fined a total of £30,000 after a worker fell nearly thirty feet from scaffolding at a building site in Llanfairfechan, sustaining severe injuries.

JBB Homes Ltd of Stockport in Cheshire - which has subsequently gone into liquidation - pleaded guilty to breaching Section 2(1) of the Health and Safety at Work Act 1974. It was fined £20,000 and ordered to pay costs of £10,835. The company's director, James Burt, pleaded guilty to breaching Section 37(1) of the Health and Safety at Work Act 1974 and was fined £10,000.

Llandudno Magistrates' Court heard that builder Nicholas Roberts, 28 years old from Rhyl, was working on scaffolding at a site in Gwylanedd, The Promenade, Llanfairfechan on 4 December 2007 when the incident happened.

The HSE investigation found that Mr Roberts was carrying out work to replace a lintel, when he fell from the scaffolding. He fractured his pelvis in three places, broke some teeth and bruised his pelvis and groin.

Cereal + driving = not a good combination!

A lorry driver has been caught eating a bowl of cereal whilst driving on the M25. Using both hands to eat, the driver was caught on camera and the picture has spread like wildfire on the internet. Taking a quick brekkie break on the middle of a motorway is obviously not advisable.

Death threat results in tribunal

An employer who allegedly said “I will kill you before you get a penny of redundancy from me” has been forced to pay £13,138 to the employee who subsequently won a constructive dismissal claim. The employee initially accepted an offer to have his job back after requesting redundancy pay, but was given a ‘pointless’ job instead of his old job back.

Britain's Got Talent tribunal

A contestant on the show has failed in her attempt to place a claim at a tribunal. The contestant alleged that she was discriminated on the grounds of her disability, leading to Simon Cowell criticising her performance and a decision not to put her through to the next round. Her claim was rejected on the grounds that Simon Cowell was not (and never would have been) her employer.

EU considers maternity pay increase

The European Parliament will shortly consider a proposal to increase maternity pay during the first 20 weeks of maternity leave. Women in the UK are entitled to 6 weeks on 90% of their normal pay followed by 33 weeks on the Statutory Maternity Pay (SMP) rate which is currently £124.88. Under the proposals, women would be entitled to full pay during the first 20 weeks of maternity leave (with pay for the remaining maternity leave being unchanged).

The UK business community has been quick to point out the huge costs involved, and that the recent economic downturn means the proposal is ill timed.

Facebook ban in Germany

The German Parliament is due to consider a proposal which would lead to a ban on employers checking the Facebook pages of job applicants. The legislation would make it illegal to check photos, postings and comments on social networking pages.

Fees Go Up

The UKBA has announced increases in immigration and nationality fees from 1 October 2010.

REMINDER!!!

The Government is still consulting on the proposed abolition of the Default Retirement Age in October 2011. Notices of retirement for those turning 65 before then will need to be issued by April 2011 at the latest.

Equality Act

The Equality Act 2010 is due to come into effect on 1st October 2010. The Act collates and changes several areas of discrimination legislation covering race, sex, disability, sexual orientation, religion or belief, or age. The Act adopts a more consistent approach to discrimination – resulting in several key changes.

Some key changes coming into effect on 1st October 2010 are:

• Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers
• Clearer protection for breastfeeding mothers
• Introducing a new concept of “discrimination arising from disability”
• Extending protection from 3rd party harassment to all protected characteristics
• Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health
• Making pay secrecy clauses unenforceable
• Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce
• Harmonising provisions allowing voluntary positive action

This list is not exhaustive but it does cover the area’s most likely to affect Empire HR clients. The Empire HR Bulletin has already addressed some of these changes. The July Bulletin explained how the Equality Act affects disability discrimination and the April Bulletin outlined the impact upon medical questionnaires. This edition focuses on secrecy clauses (see below). Empire HR will be keeping clients up to date on the implementation of the Equality Act. Don’t forget to check the Empire HR Facebook page or the Empire Wire for the latest information!

Secrecy Clauses

A lot of media attention has been focussed on claims that secrecy clauses in relation to pay are going to be banned. However, the Equality Act will not actually make it illegal for contracts to contain a secrecy clause about pay. Rather, the Act will make it impossible for an employer to enforce the clause. This does have the effect of rendering the clause almost useless in many circumstances.

Section 77 of the Act will make any secrecy clause that prevents employees from making ‘relevant pay disclosures’ unenforceable. For example, if a female employee thinks she may be getting paid less than a male colleague who does the same job and she asks him how much he gets paid, the Company would not be able to take action if he does disclose his pay. It will also cover discussions regarding pay with unions, advisors etc.

This effectively means that employees can discuss their pay with each other. In theory the Act only renders the clause unenforceable where there’s a ‘relevant disclosure’ but it’s difficult to see how that could be proved. The aim of this section of the Act is to promote equality of pay.

However, a business would still be able to take disciplinary action if an employee breaches a confidentiality clause in their contract by disclosing their pay to a third party such as a competitor.

Those who have already circulated contracts containing secrecy clauses don’t necessarily need to issue new contracts with the clause removed, but it is important to be aware that the clause is unenforceable. Businesses that are particularly concerned about competitors or third parties finding out about what their employees are paid may wish to review their confidentiality clauses in order to make sure employees are aware that disclosure of their pay to third parties is still a disciplinary offence.

Criminal Law & Work

Many employers are under the impression that they have the automatic right to dismiss an employee where a criminal offence has been committed. However, this is not always the case. Two common examples are where immigration laws are breached, and where a driving offence has been committed.

The case of Kelly v University of Southampton (2007) highlighted this issue. The university had employed an American lecturer after she had obtained permission to work and live in the UK. Unfortunately (and rarely) her permission to live in the UK expired before the expiry of her right to work in the UK. She was left in a position whereby she had permission to work in the UK, but not to live in the UK. The university (wrongly as it turned out) believed that it would be committing a criminal offence by continuing to employ her. As a result, the employee was dismissed.

An Employment Appeal Tribunal held that Kelly had been unfairly dismissed. There were two reasons for this. Firstly, the University still had permission to employ her and was not actually committing a criminal offence by employing her (bear in mind that immigration rules have changed since this decision was made). Secondly, and most interestingly, the tribunal confirmed that there is no automatic right to dismiss even where a criminal offence has been committed. The University had failed to follow the full dismissal procedure and had not allowed Kelly the right to appeal. Perhaps the tribunal’s decision was largely influenced by the fact that had Kelly been given the right to appeal, she would have had time to get her visa extended.

The Tribunal stressed that any decision to dismiss must be reasonable in all the circumstances. Therefore, where a business is contemplating the dismissal of an employee due to a breach of criminal law it is important to take all the circumstances into account and consider whether it is reasonable to dismiss.

This is especially relevant where an employee is convicted of a driving offence. A dismissal is likely to be unfair if the employee does not drive as part of their job and where the conviction is fairly minor. However, if the job requires a lot of driving and the conviction is serious, a tribunal is more likely to consider a dismissal to be fair.

In practice this case demonstrates the importance of finding out all the relevant information and considering how the situation could be resolved. In immigration cases, it would be wise to establish whether the employee could get their existing visa extended or apply for a different type of visa. In the event that it does result in a tribunal case, a business will be well placed to defend a claim if there is a good paper trail showing that attempts were made to help the employee comply with the immigration laws.

Simple tips to ensure everyone's safety

Lifting

• split load if possible
• assess weight, shape and freedom
• use leverage if possible
• get close
• secure grip (wear gloves?)
• bend knees, keep back upright
• never twist your back
• take care when putting it down

Carrying

• use a sack barrow, truck or trolley
• check the route
• grasp firmly (wear gloves?)
• see ahead
• get others to hold doors open
• keep clear of obstructions
• put it down securely

Slipping/Tripping

• cover cables
• close drawers
• fix carpets, mats etc
• mop up spills
• keep walkways clear

Falling Objects

• no temporary Piles
• shut cupbaords & filing cabinets
• stand on steps, never a swivel chair
• stack securely, don't overload
• don't stack different things on top of each another
  

Is your fire risk assessment up to date?

Under UK fire safety law, employers must carry out a Fire Risk Assessment (FRA) that looks at removing and reducing the risk of fire. Your FRA should be reviewed and updated continuously to keep it a ‘live’ document. In particular, it should be updated following any change in premises, processes or the number of people employed, or if you've had a near miss or a real fire. It is good practice to review it at regular intervals of 12 months. Our consultants can undertake a FRA for your business or review an existing one to ensure peace of mind.

Empire can also provide your staff with vital fire awareness training or train your fire wardens to ensure their competence.

Contact Empire today for details.