ACCIDENT AND INJURY STATISTICS

HSE figures identify that there were 171 fatal injuries in the year to March 2011, up from 147 in the previous 12 months.

Experts are worried that cutting back on training and maintenance during the recession could be partly responsible for the rise and the Institution of Occupational Health and Safety (IOSH) warning that ongoing “belt-tightening” could be causing the rise in deaths at work.


Construction and agricultural industries report the highest levels of work-related injuries, with disproportionately high numbers of incidents, however the figures show a continued fall in the number of people injured at work.

These were:

• Just over 90,000 injuries serious enough to keep people off work for four or more days - a rate of 363.1 injuries per 100,000 workers - down from the 96,427 the previous year.
• A rate of 99 major injuries per 100,000 workers, such as amputations, fractures and burns, also down slightly from the previous year.
• An estimated 1.2 million people said they were suffering from an illness caused or made worse by their work, down from 1.3 million in 2009/10.
• The total injuries and ill-health resulted in 26.4m working days being lost which equates to an average of 15 days per case, 22.1m of which were ill-health and 4.4m of which were injury related.

Experts are concerned that this could be a delayed knock-on effect of recession and belt-tightening resulting in the cutting back on training and maintenance.


Has or will your business be affected by these issues? Empire welcome all feedback and comments. Please visit our Facebook page where we regularly hold discussions relating to the topics covered in our blog posts.  

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BAN ON SMOKING IN CARS

The British Medical Association is calling for the ban on smoking in public places to be extended across the UK to protect people from second-hand smoke in cars after reviewing evidence of the dangers.

It has highlighted research results which demonstrate the toxins levels in a car can be up to 23 times higher than in a smoky bar.

Nowhere in the UK has implemented this extended ban although ministers in Northern Ireland are planning to launch a consultation on the issue and Wales has begun a public awareness campaign to highlight the dangers of smoking in cars with a plan to introduce a ban if the campaign does not succeed. Neither England or Scotland are currently considering introducing legislation at the moment.

Reclaiming health and safety
Lord Löfstedt’s report ‘Reclaiming health and safety for all - An independent review of health and safety legislation’, was published on 28 November. His review of the fitness of the 17 acts and 200 regulations as part of the Department for Work and Pensions document, Good Health and Safety, Good for Everyone concludes the UK’s health and safety law framework is broadly sound but he says the problem “lies less with the regulations themselves and more with the way they are interpreted and applied”.

A welcome recommendation is that that the HSE should provide more guidance for business on what constitutes reasonably practicable safety and the report makes further recommendations relating to four regulations relating to tower cranes and celluloid cinema.

As a result the HSE will begin work to amend the 53 Approved Codes of Practice (ACoPS) to reduce their complexity and will highlight the main changes necessary by June 2012.

The wider recommendation on consolidation of safety law is for the HSE to commission research by January 2012 to help decide if the core set of health and safety regulations could be consolidated in such a way that would provide clarity and savings for businesses. An agreed new ‘Challenge Panel’ will be set up for businesses wishing to challenge enforcement decisions they believe are not proportionate.

Work at Height Regulations
The review also recommends reviews of Work at Height Regulations in relation to the current inclusion of stepladders and permanent workplaces and seeks clarity in the requirement to organise portable appliance testing for electrical equipment in the workplace under the Electricity at Work Regulations. There are further proposals to remove the requirement for self-employed persons in low-risk occupations whose activities pose no risk to others to comply with health and safety legislation.

Judith Hackitt, HSE chair, has stated “Poor regulation - that which adds unnecessary bureaucracy with no real benefits - drives out confidence in good regulation. We welcome these reforms because they are good for workers and employers but also for the significant contribution they will make to restoring the rightful reputation of real health and safety.”

How do you think your business will be affected by these issues? Empire welcome all feedback and comments. Please visit our Facebook page where we regularly hold discussions relating to the topics covered in our blog posts.

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WHEN IS A CHRISTMAS GIFT REALLY A BRIBE?

At this time of year, businesses usually take the opportunity to thank their clients and suppliers by sending them a gift, or in the hope of retaining or acquiring some extra business in the future.

If you are in the habit of sending Corporate Christmas gifts, will you fall foul of the Bribery Act this year? And what are the potential implications for sending them?


The Bribery Act came into force on 1st July 2011 and was introduced to prevent corruption in foreign business deals involving UK firms, covering the key areas of:

1. Bribing another person
2. Taking a bribe
3. Bribery of foreign public officials
4. Failure to prevent bribery (corporate offence)

Under the Act, gifts must be reasonable and proportionate and not intended to put the recipient under any pressure in terms of business. Mouse mats, modest Christmas lunches attended by the hosts and even Kindle electronic readers should pass the “corruption smell test”, however, a case of Champagne or an invitation to a sporting event where the host is not present, could be picked up as well as anything delivered to a person’s home address.

Christmas gifts are more likely to be considered bribes because they do not normally involve any interaction with the sender.

In light of the criminal sanctions for breach of the Act, and the adverse PR, it would be advisable for companies to use the new year to give their internal procedures and relationships with third parties a thorough review (if you haven’t done so already) so as to steer clear of any difficulties.

Ignoring the Act could have major implications, with the maximum penalty for individuals found guilty of an offence of bribery being up to 10 years’ imprisonment, a fine, or both and the maximum penalty for corporate organisations, an unlimited fine.

With the first prosecution taking place (3 years in jail!), organisations will have some defence if they can demonstrate that they have ‘adequate procedures’ in place to prevent bribery. Adopting a robust policy will ensure this, as doing nothing could still mean jail for the directors concerned.

If you would like any guidance or help with drafting a Bribery policy, Empire will be able to assist.

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How to avoid indirect discrimination this Christmas...

In our last blog post we highlighted the challenges of Christmas parties and issues that might arise between employers and their employees. There are additional issues that are also worth being aware of at this time of year.


Companies who keep their offices open over the festive period may have to deal with conflicting holiday requests, and with the economy still having an impact on many, those looking to scrap Christmas bonuses will have to be cautious about how they do it so they avoid costly tribunal claims.


HOLIDAY ENTITLEMENT
Over the festive period, or at any other time, employees do not automatically have the right to take their holiday entitlement without your agreement. If you do set restrictions on when holiday can be taken, bear in mind the need to avoid indirect discrimination and ensure that you do not make decisions based on employees’ race, sex, etc., or by way of ‘favouritism’.

The most reasonable approach is to make a decision based on who worked the time last year. If you operate on a first come, first served basis, this may prejudice the less organised members of your staff (which, while not unlawful, is not positive in terms of employee relations).


If the office has to close over the Christmas period, explain clearly to all staff the benefits to the business of closing over this period which are not related to the religious period e.g. that it is financially sensible to close. If there is no business requirement to shut over Christmas, consider allowing employees to take their annual leave at other times of the year.

Employees also do not have an automatic right to carry over any outstanding leave into the following leave year. If you have holiday entitlement more generous than the statutory minimum of 28 days, you may allow your employees to carry over some of their untaken days, however, this should be set out in the contract of employment. You are not allowed to exchange any untaken statutory holiday entitlement for pay.

If you have an employee who is absent due to illness, they are entitled to accrue statutory paid holiday (and possibly contractual) holiday while off work. When they return, they can ask to take this holiday before the end of the leave year or carry it over into the following leave year. Female employees on maternity leave, and working parents on paternity and/or adoption leave, will also have the same rights.

If you need further advice on sick and/or annual leave, you can contact Empire.

CHRISTMAS BONUSES
With a challenging year for most UK businesses, some may find themselves reducing or not paying a Christmas bonus this year.

When deciding, you should initially establish whether or not your employees have a contractual right to be paid one. If their contract states that he or she has a right to a bonus, at a defined amount, you will be in breach of contract if you do not pay one. If the contract specifies that the bonus is only payable at your discretion, then there is greater scope for avoiding or reducing the payment. However, you may still face an argument that there is an implied contractual right to a payment which would normally be down to any established custom and practice.

If the payment of a Christmas bonus is contractual, in addition to a breach of contract claim, an employee can choose to resign due to the non-payment of a bonus and claim constructive dismissal for an alleged breach of contract and mutual trust and confidence. However, unless the bonus is particularly huge, the risk in the current economic climate is fairly low.

Finally, if you choose to withhold or reduce your bonus, or pay them indiscriminately, you may face an equal pay or a discrimination claim under the Equality Act 2010. This is a particular concern to employers given the uncapped nature of discrimination awards. Remember to include any employees on leave, e.g. maternity or sick leave.

Communication, consistency and caution are key to ensure your reasons for not paying a bonus are clear to avoid defending an employment tribunal claim.

Top tips:

• Speak to the workforce and justify the reasons why bonuses are not being paid, or are only being paid to certain staff (avoiding any potential discrimination)
• Review contracts to determine whether or not employees have a contractual right to a Christmas bonus
• Understand that the payment of previous Christmas bonuses may provide the employee with a contractual entitlement to continue to receive one

Empire welcome all feedback and comments and would be happy to discuss any issues that you may feel will impact your business. Please visit our facebook page where we regularly hold discussions relating to the topics covered in our blog posts.  

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CHRISTMAS PARTIES AND THE CONSEQUENCES

Welcome to a bumper edition of the Empire blog, the last one for 2011! This edition provides some useful tips on how to get through office Christmas party season.

In the our next blog post we will explore issues concerning opening hours over the festive period and how to deal with conflicting holiday requests. we will also highlight the possible consequences to those looking to scrap Christmas bonuses. Look out for this post coming in the next few days. For now we would like to discuss the consequences of Christmas Parties

CHRISTMAS PARTIES AND THE CONSEQUENCES
Office parties can be a challenge for some businesses, with many having to decide how they ensure their employees behave appropriately and/or how they deal with staff who turn up late the morning after.

As the Christmas season approaches, many employees look forward to their office ‘Christmas do’, as it is an opportunity for them to let their hair down. However, it comes with the risk that if things do get out of hand there can be consequences that impact on the employment relationship. Employers should consider implementing some ‘rules’ for members of staff about the behaviour expected. With increasing pressure at work, there is the risk that people may drink too much and do something they might regret in the morning or which the employer could be held responsible for.

According to a survey from the Chartered Institute for Personnel and Development (CIPD), 46 per cent said disciplinary action had been taken for unorthodox use of the office photocopier, amorous activity on company premises or insulting the boss. Of the 2,000 staff surveyed, 29 per cent said action had been taken for fighting, 17 per cent for sexual harassment and 12 per cent for bullying.

With this in mind, it is worth taking into consideration the following points:

INAPPROPRIATE BEHAVIOUR
A survey by Contact Law revealed that 28% of people have been on the receiving end of unwelcome advances from a co-worker at the office Christmas party. Of these, 15% were advances made by a boss or senior colleague. This could place companies in an extremely precarious legal position, especially if the incidents lead to an official complaint about inappropriate behaviour.But it’s not just senior members of staff who need to be on their best behaviour. The survey also found that 18% of those polled have made an inappropriate comment to their boss after a few festive drinks. With this in mind, it is not surprising that one-in-ten said that they have considered not attending the Christmas party in case they embarrass themselves in front of colleagues.

DISCIPLINE
Employees may assume that their conduct outside of work hours is nothing to do with their employer, but with the office Christmas party often viewed as an extension to the workplace, any misconduct out of work could lead to disciplinary action.

An employee’s behaviour can affect your reputation and although a venue is not going to expect the same level of etiquette as a business meeting, if there is trouble or damage caused, the employer could face a hefty bill or be barred. The employer is then probably going to want to investigate and take the appropriate disciplinary action. Where misconduct has occurred at a Christmas do, the normal requirements to carry out a fair disciplinary process still apply.

GRIEVANCE
Misbehaviour at a ‘Christmas do’ might prompt a grievance by one employee against another as the risks of a complaint about sexual harassment or violent conduct is heightened in an alcohol fuelled environment. Not only might the employer face the need to investigate, but they might have to deal with resulting sickness absence and possibly even a claim of sex discrimination or constructive dismissal.

ABSENTEEISM
Whether the employee has attended the works ‘Christmas do’ or another seasonal celebration, an employer with a number of employees off the next day, due to overindulgence, may face difficulties which they wanted to avoid.

The employer should address absence issues and manage employees who come to work a bit frail, following a ‘heavy’ night. Just because it is holiday season you should not avoid dealing with employees who are not fit for work. Presenteeism at work is estimated to cost businesses more than absenteeism!

HARASSMENT AND DISCRIMINATION
The risk of harassment occurring almost certainly increases when colleagues are drinking. Harassment is defined broadly as any unwanted conduct that has the purpose or effect of violating dignity or creating a hostile or intimidating environment, where the conduct occurs on the grounds of sex, race, disability, sexual orientation, religion, age or belief. Even one relatively minor comment may amount to unlawful harassment. If decorating the office, you may want to use seasonal decorations rather than religious ones, i.e. tinsel instead of a nativity scene and using seasonal rather than religious Christmas cards.

Other forms of discrimination are less obvious. Third-party harassment may be relevant if, for example, clients or suppliers are also invited to the party. You should consider and cater to the needs of everyone who will be attending which could include ensuring that there is food that meets employees’ religious and cultural requirements and sufficient non-alcoholic drinks, and considering any physical assistance or adjustments for disabled staff.


HEALTH & SAFETY
As with most health and safety issues, assessment of the risk before the event is essential: both to reduce the risk of accidents or injuries and to help defend a claim should anything happen. It may be sensible to have one or more nominated managers who are not drinking alcohol, to keep an eye out for any unacceptable or potentially dangerous behaviour. You may also want to limit the amount of alcohol available or at least limit the free bar, and give some thought to how your staff get home safely.

To ensure your Christmas decorations are not breaching health and safety rules, you should carry out a proper risk assessment looking at where and how decorations are sited, particularly those that could pose a potential fire hazard. It would also be wise to check your insurance to ensure you are covered if any damage is caused by untested electrical equipment. So make sure you switch off the tree lights before going home!

CRIMINAL OFFENCES AND DRUGS
It is an offence for an employer to knowingly permit or even to ignore the use, production or supply of any controlled drugs taking place on their premises. In addition, drink driving may also damage your reputation or undermine trust and confidence and in these cases you may well be justified in taking disciplinary action against the employee.

With an organisation likely to have the same legal responsibilities for what happens during the Christmas party as it does during normal working hours, planning and clear communication will ensure any concerns are minimised or avoided altogether.

It would be sensible, before the festivities begin, to remind staff of the level of behaviour that is acceptable, without becoming too much of a spoilsport.

Empire HR would like to wish all our readers a very merry Christmas and happy New Year! We also hope everyone enjoys the festive period. Look out for the next Empire post. If you have any questions or queries relating to any of the issues covers we welcome all feedback and comments.

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HR Case Study Law Updates

Human Resource: HR Case Study Law Updates

The case of Adams and another V Harwich International Port Ltd ET/1503084/10 has confirmed that employees who are off sick over the start/finish of an annual leave year are entitled to carry all of their accrued leave to the following annual leave year. It was previously thought that this rule would only apply to the 4 weeks of holidays granted by the European Directive relating to holidays, but the case confirmed that it also applies to the additional 1.6 weeks granted by the UK Government via the Working Time Regulations.

The case of Williams and others v British Airways Plc has clarified that holiday pay should include supplementary payments and allowances, not just basic pay.

Has or will your business be affected by these issues? Empire welcome all feedback and comments.

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Health & Safety and Human Resources

Human Resources: Flexible working not a burden on employees

The latest statistics released by the CIPD reveals that only 10 tribunal claims relating to the right to work flexible working were successful in 2010/11. Although 277 claims were placed, only 48 reached the tribunal stage and of those, just 10 were won by the employee.

This appears to demonstrate that flexible working legislation has been successfully implemented without imposing an excessive burden on businesses. This is likely to encourage those campaigning to extend the right to work flexibly to all employees.

Health & Safety: The cost of not separating transport from pedestrians

Separation of pedestrians and forklift trucks could have prevented a serious industrial accident when a 61-year old employee had both his ankles and lower legs broken by a fork lift truck reversing into him at Verplas Ltd’s Dorset site.

The company pleaded guilty to breaching S.2(1) of the Health and Safety at Work etc. Act 1974 at Bournemouth Magistrates’ Court and was fined £10,000 with costs of £2,407


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SPEAK UP STAY SAFE & EXPLOSIVE DISCIPLINARY ACTION

Speak up Stay Safe Campaign

"Every 40 minutes in the UK a young person is seriously injured in the workplace. We think this position is wholly unacceptable. By highlighting to young people that they need to be aware of their environment and speak up if they feel unsafe we hope to significantly reduce this number" states Julie Nerney, chief executive of the British Safety Council.

Young workers, those under the age of 18 years, are considered in law to be at risk due to lack of experience and maturity. Good role models, a positive safety culture, training and supervision are key issues in the successful mentoring and a young workers development so this ongoing campaign will be of interest to those employing or working with under 18’s.

The Speak Up Stay Safe campaign supports and encourages young people to feel confident talking to their work supervisor, parent, teacher or friends if they feel that they are in an unsafe situation. Tips and advice for young people, teachers, parents and employers is available on www.speakupstaysafe.co.uk, HSE website, Facebook and other mediums. Visit the website with a young worker as part of your risk assessment action plan.


Explosive disciplinary action?

An employee that made a ‘technical error’ is likely to be facing explosive disciplinary action this week after a firework display scheduled to take 20 minutes lasted just one minute. The technical error meant that rather than a series of colourful explosions, spectators were surprised by £6000 worth of fireworks within a minute! Spectators were disappointed with the short display but some described the show as “brilliant” and the sky ‘like daylight’!


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CALL TO SCRAP UNFAIR DISMISSAL

A report commissioned by David Cameron has recommended the scrapping of unfair dismissal rights for those who are unproductive at work.

The report states that many businesses are forced to keep employees because it’s too difficult to dismiss them, meaning that employees often ‘coast’ their way through employment. It also asserts that many businesses are reluctant to take on new employees; for fear that they will not be able to dismiss the employee if they are unproductive.

The report was written by Adrian Beecroft, a venture capitalist and Conservative Party donor, who argues that unproductive employees should be replaced by more capable people thus facilitating economic growth. The reality is that the scrapping of unfair dismissal rights is very unlikely, but the report does indicate that the Government is keen to listen to the business community.

This report follows recent announcements that the length of service an employee must have before they can place an unfair dismissal claim is to be increased from 1 year to 2 years, and that tribunal fees will be introduced in an effort to deter vexatious claimants.


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GAS SAFETY - HAVE YOU ASSESSED YOUR CONTRACTORS?

A man claiming to be a registered gas engineer from Accrington has received a two year prison for endangering people’s lives at two properties in Lancashire. The Health and Safety Executive successfully prosecuted for six offences, after his work was classified as being ‘immediately dangerous’. It was reported that Burnley Crown Court heard the 35-year-old’s actions had put residents at risk of being killed or seriously injured in a gas explosion or from carbon monoxide poisoning.

Mr Jonathan had falsely claimed he was a registered gas engineer when he installed a new boiler at a community nurse’s home on Willows Lane in Accrington on 22 October 2010. Unbeknown to the occupiers the boiler was left operating dangerously. He then failed to return to fix continuing problems and it was then reported to the manufacturer as being faulty who sent an engineer to repair the boiler. The engineer classified the installation as being ‘immediately dangerous’, and disconnected it from the gas supply straight away and Mr Jonathon’s work was reported to Gas Safe Register, which holds the official list of legal and safe gas engineers. The HSE carried out an investigation and found other work he had carried out in the area to also be dangerous.

The defendant pleaded guilty and was sentenced to 24 months in prison at Burnley Crown Court. Paul Johnston, Chief Executive of Gas Safe Register stated “Gas fitters working unregistered like Stephen Jonathan are far more common than you think - we estimate they’re doing 250,000 illegal jobs each year, causing fires, explosions, gas leaks, carbon monoxide poisoning and leaving people out of pocket.

“All gas engineers have to be Gas Safe registered - it’s the law. Our message to everyone is clear - check the engineer’s Gas Safe Register ID card before letting them work on gas.”

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ARE YOU READY FOR WINTER?

The Scottish Government has announced a partnership with the The British Red Cross, with the aim of encouraging businesses and the general public to prepare for another harsh winter.

The National Public Awareness campaign was launched on 24th October in response to research showing that most people did not feel prepared for a severe weather induced emergency.

The campaign focuses on steps people can take to ensure they are able to cope when severe weather hits. Businesses are also being urged to prepare by taking ‘simple but sensible’ steps.

Scottish businesses have been forced to deal with several harsh winters in recent years, and will therefore be all too familiar with the challenges that severe weather can bring.

Empire is urging businesses to prepare early this year, particularly in view of the early arrival of snow last year. Several weather forecasters are predicting another early arrival of severe weather this year.

Top ten tips from Empire are:

1. Consider offering your employees a free flu jab. This should help minimise absences over the winter period.

2. Draw up a contingency plan detailing how key roles will be covered if the usual post holder is unable to attend work due to the weather or illness.

3. Circulate an up to date and clear winter weather policy. This should detail whether employees will be expected to make up their hours at a later date, take the time off as unpaid leave, or take the time off as annual leave. The policy should be tailored to suit the needs of your business, as well as take the circumstances of employees into account.

4. Make arrangements for key employees to work from home if they are unable to get into the office. For example, you may need to ensure they can access their emails from home, are contactable, and have the equipment they need to work at home.

5. Consider the needs of those with children and other dependants. School closures often leave employees unexpectedly unable to attend work - with very little notice. Ensure that this group of employees know how to keep the business up to date and aware of their childcare predicaments.

6. Ensure you have a good absence reporting procedure. All employees should be made aware of who to contact if they are unable to get into work. The policy should stipulate the time they need to make contact by, and how regularly to provide updates in relation to their attempts to get in.

7. Carry out full risk assessments. Even slippery car parks need to be considered! Those with health conditions may need extra support.

8. Be consistent but fair with those who have been unable to get into work. Those who have made little real effort to get to work could be subject to disciplinary action, but those who live in remote areas may need to be given more leeway than those who live within walking distance of the office. It’s important to take all relevant factors into consideration when deciding whether disciplinary action is appropriate.

9. Keep air travel to a minimum where snow is forecast. This will help prevent the cancellation of meetings at the last minute due to delayed flights caused by the weather.

10. Where your employees are required to drive at work, ensure the vehicle is equipped for snow. Are the tyre pressures correct? Is there plenty of water? Are oil levels good? Do they have a supply of deicer?

Has or will your business be affected by these issues? Empire welcome all feedback and comments.

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TALENTED FOOTBALLER OR REBELLIOUS EMPLOYEE?

Tevez’s refusal to play during the Manchester City v Bayern Munich game in September has brought a key issue to the forefront of the entire footballing industry. Who is in charge? A Manager or a player?
Tevez refused to play in the Champions League game despite being requested to do so by City boss Roberto Mancini. Tevez was on the bench, had warmed up, and was ready to play. The refusal has infuriated fans, particularly since there was still time for the team to turn around the eventual 2-0 score. Many will blame Tevez personally for the poor result.

After all, isn’t playing football a pretty basic task for a professional footballer? What are they paid for if they don’t play football?

Footballers as Special category of employees
Most fans will believe that if footballers don’t play, they don’t get paid. However, the reality is that professional football players are employees. The enviable salaries paid to top footballers may give the impression that they are a ‘special’ or ‘exceptional’ category of employee, but the fact remains that Football Clubs are employers and they are just as susceptible to tribunal claims as any other business in the UK.

So what options will the Club have? Can they simply terminate Tevez’s contract? The quick answer is yes, but that would risk an expensive tribunal claim. Terminating the contract without following the full disciplinary procedure would probably result in Tevez placing a claim for unfair dismissal and any compensation awarded would be increased by up to 25% simply because the procedure wasn’t followed.


Tevez to be Suspended?
The safest option is to follow the procedure. This means suspending the player (on full pay) pending an investigation. The purpose of the investigation is to establish all of the facts before deciding whether to take formal action. Tevez has been suspended so it would appear that the Club has sought legal/HR advice on the best way to resolve this.

Depending on the outcome of the investigation, disciplinary action will follow. Having to follow the procedure may infuriate fans who believe the footballer has behaved unprofessionally and does not deserve to keep his job, but businesses throughout the UK have to go through this process when employees refuse to carry out their job, and a football club is no different.

Managers and employees often disagree, and the vast numbers of tribunal claims are testament to that. The issue here is whether a professional footballer can refuse to play, even when directly instructed to do so during an important game. Football fans will undoubtedly say no.

What do you think? We welcome any comments about any of the issues raised in the post. Please join our Facebook page where we hold discussions regarding issues on Human Resources and Health & Safety within businesses.


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X-Factor bullying accusations – would it be acceptable in the workplace?

Fans of X-Factor’s contestant Misha B will have been outraged at Louis Walsh and Tulisa’s accusations of backstage bullying, and whilst the contestants are not employees, it does raise questions about dealing with bullying in the workplace.

The claims were made live on air following Misha B’s performance on last weekend’s show. The two judges accused her of being mean to fellow contestants and said she needed to ‘put aside the attitude.’ Louis added that one of his contestants had complained of being bullied.

The other two judges, Gary Barlow and Kelly Rowland, defended the singer, and Louis was later forced to apologise for using the word ‘bully.’

The confrontation made for uncomfortable viewing, but highlighted the importance of dealing correctly with such issues in the workplace. We would urge businesses to think carefully about tackling bullying among employees and about the consequences of failing to deal with such issues.

Tribunal?
Being subject to bullying at work is not enough to raise a tribunal claim on its own, but employees can place a claim where an employer has failed to deal with it properly. Most commonly, the bullying will fall within the scope of discrimination laws. Bullying is also very similar to harassment, which is covered by separate legislation. Ultimately, an employee who is subjected to bullying may resign and claim constructive dismissal.

Our CEO, Steve Cook (pictured), said: “When you consider the negative impact a bully can have on a team in terms of low morale, high staff turnover, and loss of productivity, it makes good businesses sense to prevent bullying and deal with it effectively if it does occur.

“Unless a formal complaint or a serious incident has occurred, the issue may be tackled informally in the first instance. Perhaps the bully is unaware of how their behaviour is perceived by others, and doesn’t realise their behaviour amounts to bullying; therefore, a confidential discussion can help nip the problem in the bud before it escalates.”

However, where there is a pattern of worrying behaviour, a formal complaint is raised, or there is a serious incident, it will be more appropriate to instigate the formal disciplinary procedure. The allegation should be investigated in full, which will normally mean obtaining statements from witnesses and victims of bullying before taking formal action.

Following a disciplinary meeting, the employee accused of bullying can be issued with a written warning, final written warning, or even be dismissed depending on the nature of the allegation and the circumstances of the case. Where there is insufficient evidence to justify a formal sanction, or where parties are keen to resolve the issue informally, mediation between the bully and victim may be beneficial.

Duty of care
It is important to remember that all employers have a duty to take care of their employees, and action may need to be taken even when a victim is reluctant or refuses to participate in proceedings.”

The HR and health and safety firm says that those who believe bullying is not a serious issue should take note of a recent case where BT was forced to pay out £290,000 to an employee due to the behaviour of a manager who was openly homophobic, racist and sexist. The tribunal criticised BT for not dealing with the manager properly, and allowing his behaviour to continue unchecked.

Ultimately, in any case of workplace bullying it would be unacceptable to follow X-Factor Tulisa and Louis Walsh’s example by broaching the subject in front of an audience!

Do you agree with how the bullying accusations were dealt with by Louis and Tulisa? Has your organisation had to deal with bullying accusations in the past? We welcome any questions or comments and encourage you to get in touch if you are unsure or have any comments to make regarding this matter. Please follow us on Facebook where we often have discussions about topics involving issues relating to Human Resources.

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How will your business be affected?

CAP ON DISCRIMINATION PARLIAMENTARY DEBATE
A Private Members Bill that proposes to introduce a cap on the amount of compensation awarded to successful discrimination claimants had its second reading recently in Parliament. Compensation awards in discrimination claims are currently uncapped, which many business leaders feel has led to a ‘have a go’ compensation culture.

There is no qualifying period of service for employees who place a discrimination claim, which often leaves a discrimination claim the only possible option for those who feel they have been unfairly dismissed. Compensation for unfair dismissal is currently capped at £68,400 and employees need 1 year’s continuous service with an employers before they can place a claim, which leaves a discrimination claim not only an attractive option, but also the only option for many.

The chances of the Bill actually surviving the Parliamentary process are slim since it is likely to clash with the UK Directive on Equal Treatment. However, this is an indication that MPs are recognising that the fear of a discrimination claim is having a very real and negative effect on businesses in the UK.

STRIKES ARE IMMINENT
Unions have confirmed a national ‘day of action’ on 30th November, to be held in protest against Government proposals to increase the pension contributions of those working in the public sector. Unison, Unite, the Fire Brigades Union, and the GMB are balloting members with a view to taking co-ordinated action. Expected to be the biggest co-ordinated trade union action in a generation, the ‘day of action’ is expected to include strike action, rallies, and other similar events.

Has or will your business be affected by these issues? Empire welcome all feedback and comments. Please visit our facebook page where we regularly hold discussions relating to the topics covered in our blog posts.

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TEENAGER LOSES FINGERS

An eighteen year old machinist, who worked with lathes, grinding and milling machines, lost half his index finger, most of his middle finger, and both his ring and little finger of his left hand while he was was changing a cutter on a milling machine. He accidentally switched the machine on while the cutter was still in his hand but despite attempts, surgery failed to re-attach the fingers.

The HSE told the court the system of work for changing cutters was not safe and risks from operating the mill- ing machine and changing cutters had not been adequately assessed. Their investigation also concluded that there was insufficient guarding around the machine to protect body parts during its operation and also found interlocks and the start buttons were not covered which would have prevented inadvertent activation during setting up and maintenance.

The HSE Inspector said: “For a young man to lose four fingers in an incident like this at the start of his career is serious and severely affects his future employment prospects.“If safe systems of work, sufficient guards on the machinery and adequate supervision had been in place, this would not have happened.” The company has been fined £10,000 and ordered to pay costs of £7,376.40.

What are your thoughts on this? We welcome all feedback and comments. Please visit our facebook page where we regularly hold discussions relating to the topics covered in our blog posts.

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Increase in qualifying period for unfair dismissal claims

There have been recent changes and announcements regarding the increase in qualifying period for unfair dismissal claims. Empire HR can inform you that the main announcements are:

Employees will require 2 continuous service with their employees before they can claim unfair dismissal in an employment tribunal. This is an increase of 1 year.  Only those who are claiming discrimination will be able to place claims without 2 years’ service.

There will be fees charged for placing claims. It is currently free for employees/ex employees to place a claim. The fees are likely to include an upfront fee of £250 - £1000, plus additional fees if the claim is high. The fee will be waived for those on a low income or refunded if the claim is won.  The fee will be forfeited if the claim is lost.  This is likely to deter those making ground-breaking claims as well as vexatious claimants.

What are your thoughts on this? Do you think this will help or hinder your business? Or do you think it's too little too late? We welcome all feedback and comments.

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THE “SEX” X- FACTOR?

With series 8 of the X-Factor drawing to a close, fans will be eager to find out who this year’s winner will be. Statistically, the winner is likely to be male. Of 7 previous winners, 5 were male so chances are that it will be this time round too. However, despite the audience’s penchant for male X-Factor winners, record companies seem to prefer females.

The international success of both Leona Lewis and Alexandra Burke is in stark contrast to the relatively paltry singing careers of their male counterparts. Does this highlight a sex discrimination issue in the record industry? Are record labels reluctant to sign up and invest in males? Steve Brookstein (series 1), Leon Jackson (series 4) and Joe McElderry (series 5) have all been dropped from their record labels, leading to speculation that male artists are simply not attracting the same level of investment. There is currently speculation that Matt Cardle, last years winner, will follow suit later this year.

Of course, if X-Factor winners were employees they would be protected by employment legislation which prohibits discrimination on the basis of gender. A policy of investing less in males, together with having a workforce that is indicative of a recruitment bias towards females would lead to the risk of a very expensive sex discrimination claim.

What are your thoughts on this? Do you agree with us at Empire HR? We welcome all feedback and comments. Please visit our facebook page where we regularly hold discussions relating to the topics covered in our blog posts.

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Case Law Update and 'The Hidden Killer'

In this post Empire highlight two cases involving employees dismissals and their outcome in court. We also discuss HSE's  pledge to tackle Scotland’s share of 4,000 asbestos death toll.

Oudahar v Esporta Group Limited UKEAT/0566/10
The EAT has clarified that there is a two stage test to be satisfied when considering a claim for automatic unfair dismissal based on a health and safety reason. These are:

1. Were there circumstances of danger which the employee reasonably deemed to be serious and imminent?  Did the employee take or propose to take appropriate steps to protect himself or other persons from danger; or did he take steps to communicate these circumstances to his employer by appropriate means?
2. If these criteria are met, was the employer’s sole or principle reason for dismissal that the employee took or proposed to take such steps?

This was an interesting case because there is very little case law on this area. Dismissals on the grounds of health and safety are automatically unfair, which means those with less than 1 years’ service are also able to raise a claim on this basis.

Hughes v Corps of Commissionaires Management Ltd (2011) EWCA Civ 1061
The Court of Appeal has confirmed that the requirement to remain on call during a rest break does not contravene the Working Time Regulations. In this case, a security guard argued that because he could be interrupted during a rest break, the compensatory rest allocated to make up for this should be taken outside working time (ie he should not be on call during compensatory rest periods). The appeal was dismissed, on the basis that being on call does not necessary mean that the Regulations have not been complied with.

THE 'HIDDEN KILLER'
The HSE in partnership with the training industry has pledged to tackle Scotland’s share of 4,000 asbestos death toll. They are calling for businesses to pledge free training courses in an attempt to hit the target of 4,000 hours in September which would reflect the approximate number of deaths each year in Britain from asbestos- related diseases.

The free asbestos awareness training is being provided to help tradesmen in Scotland and across Britain protect themselves from the deadly dust. Sessions will be available throughout October and November and is aimed at joiners, electricians and plumbers who as part of their activities are likely to disturb asbestos fibres as they work. Figures quoted by HSE state between 1982 and 2008, there were 3,456 deaths from asbestos- related cancer mesothelioma in Scotland.

A weekly update of free places at the various locations in Scotland are being made available on the HSE web- site www.hse.gov.uk

Have you been affected by any of the issues raised in this post? Do you have have any experience in dealing with asbestos? Maybe you know of an organisation or individual who has dealt with dismissal based on a health and safety reason? Do you agree with the ruling of the courts in the case of Hughes Vs Corps of Commissionaires Management Ltd? We would like to hear your comments and feedback, please visit our facebook page where we often hold discussions regarding topics covered here.

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London Riots, First Aid and Empire HR

There have been many current affairs that have been featured in the press recently, where Empire have identified issues concerning HR, including the News of the World Scandal. In addition the recent events in London and the riots that took place, also raise issues relating to HR. 

In this blog we explore issues from the riots as well as guidance on First Aid in the workplace.

RIOTING AND HR

The riots that hit London last month have highlighted the crucial role of HR in a crisis. The spontaneity and unpredictability of the riots meant that those affected had to react swiftly in circumstances that they had probably never encountered before.

Having a good HR manager or department within a business would undoubtedly have been an invaluable asset during the crisis, providing immediate and commercially viable solutions to the problems faced.

For example, many affected businesses had to consider what to do with employees who no longer had a viable place of work. Larger business could rely on their HR departments to organise the redeployment of employees to alternative stores or offices. Smaller businesses could temporarily lay off employees, or perhaps enforce a period of annual leave. Some may even be forced to make employees redundant if the business is no longer operating and will not be viable for the foreseeable future.

Unfortunately those with no HR support may now face the additional burden of potential tribunal claims if they simply sent employees home with no pay for an indefinite period of time.

The basic starting point for business owners and managers is that where an employee opts not to come into work, there will normally be no obligation to pay them. However, where the decision is taken out of their hands and they are willing to come into work, they must be paid. The uniqueness of the circumstances means that there is no hard and fast rule – all absences should be investigated in full before any pay is withheld.

It is essential that business owners seek legal advice on the options available to them before assuming that they can dismiss employees. The ability to temporarily lay off employees is largely dependent on the inclusion of a ‘lay off’ clause in their contract. Redundancy is also dependent on the circumstances facing each particular business, and a consultation process must be followed prior to any redundancy dismissal.

Some HR Managers will need to deal with employees who have been convicted of an offence related to the rioting. In general, a criminal conviction is not sufficient justification for a dismissal unless the employee works with vulnerable service users or is in a sensitive role.

A lot would depend on whether the conviction has affected the reputation of the business (perhaps the media named and shamed the employee), and whether the conviction has undermined the trust and confidence in the employee. For example, an employee convicted of looting in the area in which they work may lead to their retail employer losing trust in them.

Each case must be considered on its own merits, with the full ACAS Code on Discipline and Grievance being followed at each stage of the process. Given the current wave of public anger, it does seem likely that tribunals will be sympathetic to businesses but they will still consider whether a dismissal falls within the ‘range of reasonable responses of a reasonable employer’.

FIRST AID IN THE WORKPLACE GUIDANCE 

Guidance has been issued by the Health and Safety Executive in relation to the qualifications first-aiders in the workplace need and the responsibilities employers have when appointing them. The guidance defines a ‘first-aider’ as somebody who has undertaken training and has a qualification that The HSE approves;

Either a valid certificate of competence in either:

First aid at work, issued by a training organisation approved by HSE;
Emergency First Aid at Work, (issued by either a training organisation approved by The HSE or a recognised Awarding Body of Ofqual/Scottish Qualifications Authority.

Employers must undertake a first-aid needs assessment and should use the findings to determine which training in first aid and what number of trained personnel will be suitable and sufficient after taking account of all the relevant circumstances of their particular workplace.

A question often arises about liability of first-aiders, and while the HSE seeks to reassure that it is very unlikely that action would be taken against a first-aider who was using the first-aid training they have received (and in any case not by HSE as it is outside their jurisdiction), it is recommended that Employer’s should seek advice from their insurance brokers on whether their policies cover first-aiders’ liability.

What are your thought on this? Have you been affected by any of the issues raised in this blog? We would really like to hear your views and comments. Visit our facebook or twitter page to share your comments.

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NOTW FIASCO – WHAT CAN BUSINESSES LEARN ? PART TWO...

The shock closure of the News Of The World and the phone hacking scandal has left many of the British public shocked. 

Empire is encouraging businesses to learn from the NOTW situation, as it serves as a timely reminder that no business is immune from closure, and very large, successful businesses can be destroyed by the actions of a few employees.

In light of the closure Empire has compiled a list of potential learning points for other businesses to take into account. Over a series of blog posts we will highlight the issues that we feel are important to consider.
Last week we discussed issues concerning Whistle-blowing and Organisational Culture. This week we look at further pointers that should be learned from the NOTW shock closure.

ETHICS ARE IMPORTANT
In an increasingly transparent business community, it is more important than ever to ensure your business is ethical. At the most basic level, customers tend not to want to buy goods from a supplier with questionable ethics. Suppliers may not wish to associate with a business with a poor reputation for ethics, and this was clearly demonstrated when advertisers withdrew from the NOTW. Ethics can be the foundation of a positive organisational culture and the two are closely linked.

SEEK LEGAL ADVICE BEFORE ANNOUNCING REDUNDANCIES
The NOTW’s 200 employees were collectively advised of their impending redundancies during a staff meeting in the office on the week of the disaster. This potentially breaches several requirements of employment law, namely that they should have been collectively consulted prior to the final decision being made. The Secretary of State must also be notified when there is a proposal to make 20 or more employees redundant. A failure to consult may result in an award of 90 days’ pay to each employee as well as potential unfair dismissal claims.

TRANSFERS MAY INCUR TUPE LIABILITY
There is speculation that News International will simply start publishing The Sun on a Sunday to replace the NOTW. This could result in what is known as a TUPE transfer, whereby NOTW employees should have their employment protected and transferred. Further details on this are expected in the near future, but the NOTW would be well advised to seek legal advice on this immediately. Businesses must always ensure that advice is sought prior to mergers, buyouts and the sale of businesses in order to avoid unexpected liability for transferred employees.

HEALTH & SAFETY

THE DAMAGES (Scotland) ACT 2011
This new act has been introduced to end the long legal battles in pursuit of agreement over damages claims altering the way Scottish courts will now award damages following fatal accidents.

A fixed percentage of 75% of the net income will now be used as the basis for calculating the loss of support entitlement for dependants of the deceased, applicable in all cases except where a court considers that it would result in a ‘manifestly and materially unfair result’.

Furthermore, a spouse’s income will be disregarded when calculating the amount of damages to be paid.

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