INCREASE IN QUALIFYING TIME FOR UNFAIR DISMISSAL!

The Government has announced a proposal to increase the length of time that employees need to be employed before they can place a claim for unfair dismissal.

Currently, employees can’t place a claim for unfair dismissal unless they have been employed for more than 1 year. This means that businesses have a period of 1 year in which they can assess a new employee’s suitability for a role and safely dismiss without fear of a costly compensation bill.

A consultation has been launched today, which will close on 20th April 2011. Following this, the government is expected to confirm the increase.

The aim of this measure is to give businesses more flexibility and cut the red tape holding back businesses throughout the UK.

This will be welcome news to business groups, which have campaigned for a reduction in red tape and legislation. Business groups have cited the upsurge in tribunal claims as evidence that the current system is heavily weighted in favour of employees, with the result that businesses are often crippled by costly legal fees and compensation bills.

However, there is doubt about whether the measure goes far enough. Is this enough to encourage businesses to hire more staff, and will it really help employers? Leading employment law and HR firm Empire HR are urging businesses to exercise caution.

Unfortunately for businesses, there is an exception to the qualifying period rule. There’s no qualifying period if the employee can establish that they were dismissed for a reason linked to a ‘protected characteristic’. Defined by the Equality Act 2010, protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

The Equality Act also covers 7 different types of discrimination. For example, the Act introduced ‘associative discrimination’ to many protected characteristics meaning that some people will be covered by the legislation merely because they are related to, or associate with some who has a protected characteristic.

The effect of the legislation is that it might actually be very difficult to single out an employee who is not covered by the Equality Act, so employers need to tread extremely carefully when dismissing any employee – regardless of their length of service. In effect, increasing the qualifying period may not be as helpful to businesses as they thought.

Empire HR are concerned that businesses are being lulled into a false sense of security. Steve Cook, CEO of Empire HR explains “the media is full of headlines stating that businesses can dismiss employees for any reason during the first 2 years of their employment. However, any dismissal carries the risk of a claim and in reality, the Equality Act means almost any employee can place a claim regardless of their length of service. Businesses might get some nasty surprises if they fail to get expert advice”.

There’s also speculation that this change might actually lead to an increase in claims. Employees dismissed within the 2 year period are more likely to cite discrimination as the reason for their dismissal because they will otherwise be unable to place a claim at all. Discrimination claims tend to be the most costly – largely because compensation in these claims is uncapped. They are also notoriously time consuming to defend.

Steve Cook confirms “there’s a real prospect of an upsurge in discrimination claims because employees will effectively be clutching at straws so they can place a claim. The discrimination legislation is now so wide in scope that most employees will be able to claim because they have at least 1 protected characteristic”.

Despite these points, it is positive that the government appears to be focusing on the needs of businesses during these tough times. Businesses will welcome any measure designed to ease their burden, and small businesses in particular are likely to see this change as very encouraging.

The consultation also deliberates the introduction of tribunal fees, and measures to deter vexatious claims. The full consultation document can be found here: http://www.bis.gov.uk/assets/biscore/employment-matters/docs/r/11-511-resolving-workplace-disputes-consultation . Business owners are urged to contribute to the consultation. In the meantime, Empire HR is advising business owners and managers to seek advice prior to the dismissal of any employee. As Steve Cook points out “making a mistake is just too costly in this economic climate”. Empire HR are providing expert guidance on dismissals on their website, and have added a recorded guide to the dismissal procedure. Please visit www.empirehr.com for further information.

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Bank Holiday Update

The world is currently fascinated with this year's Royal wedding, and both the Westminster and Holyrood Governments have declared that the day will be a national celebration marked with a public holiday.

The announcements by Prime Minister David Cameron and First Minister Alex Salmond, mean that for those who already take the Easter bank holidays off, there may be two consecutive bank holiday weekends. Businesses who intend to, or are obliged to allow staff to take the extra days off will be faced with a substantial loss of working time which may be very costly. It may prove to be particularly disruptive in the current economic climate when many businesses are facing tough times.

The announcement may have given UK workers the impression that they are entitled to the day off to participate in the Royal celebrations, but this is not necessarily the case.

Empire HR is encouraging businesses to think ahead about how they wish to approach the forthcoming celebration as it is not compulsory to shut up shop.

A national day will not automatically mean an extra day's holiday. Most businesses do not have to honour the new holiday (contracts should be checked). Despite this, many businesses will want to give their employees the day off as a gesture of goodwill.

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.

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 will have to book the day in accordance with the annual leave policy. Only employees whose contracts state that they are entitled to all public holidays would be entitled to the extra day off.

Retirement Outrage at Longleat

During the past fortnight every employee over the age of 65 has been dismissed on the grounds of retirement from Longleat Estate and safari park. The estate in England (which includes a large Elizabethan mansion), is owned by the Marquess of Bath and previously had a reputation for being staffed by numerous nubile women.

Included in the dismissals were 18 workers who were over the age of 70. Many of those forced into retirement also lived on the estate, resulting in many of them having to find new homes.

These measures appear to be a pre-employment strike in the face of the recent announced change to the retirement age. From October 2011, businesses will no longer be able to retire employees at the age of 65 except in very exceptional circumstances. This means businesses will be obliged to keep their ageing employees, perhaps to the detriment of younger staff who would otherwise have been promoted.

However, businesses can retire those who are already 65, or who will turn 65 before October 2011. In order to do so, they need to follow a set of retirement procedures which involves providing them with a 6 months notice of retirement, and making them aware of their right to request to continue working beyond that age. Currently, businesses are obliged to consider requests to work beyond the age of 65, but they do not have to grant it. If you have an employee who is, or will soon be 65, it's now or never.

If you think you may have any employees who are over 65 or nearing 65, please contact Empire HR for advice on the options available.

Two vacancies at Empire

Empire provides HR and employment law solutions to organisations throughout Scotland. We are seeking 2 experienced Advisors with an HR or employment law background to join our expanding team based in Aberdeen.

Successful applicants will be CIPD or legally qualified, have a strong client care ethic and a commercial awareness. Training will be provided.

Those interested in joining our team, should send their CV and covering letter to:

Donna Gibb, HR Manager, Empire HR, Empire House, 117 Grandholm Drive, Aberdeen, AB22 8AE or email d.gibb@empirehr.com

Perhaps you know someone in your online community who might be interested in these jobs, please use the Facebook and Twitter buttons below to alert them to these career opportunities.

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Data Protection Fines

The Information Commissioner's Office (ICO) has issued the first fines for breaches of data protection. Potential fines were increased from £500 to £500,000 in April 2010 following a review of the system.

A fine of £100,000 must be paid by Hertfordshire County Council after it disclosed that two serious breaches occurred within two weeks of each other. The breaches involved faxes being accidentally sent to the wrong address. The information contained details of children, criminal convictions, domestic violence records, and child abuse cases was sent to a member of the public, and a barristers office (not involved in any of the cases).

A fine of £60,000 was also issued to a business called A4e, after a laptop containing the details of several thousand people who had used community legal centres were lost. The laptop was issued to an employee who was working at home, but it was later stolen.

These penalties are the first to be issued by the Information Commissioner, and they do send a clear message to those handling data that they must take all possible steps to prevent the disclosure of sensitive information.

Businesses are advised to have clear and up to date Data Protection Policies, and possibly seek advice from their IT provider. The above cases highlight the importance of having good policies in place which prevent accidental leaks of information. In particular, it serves as a reminder that where employees work from home, any IT equipment they are provided with must contain the minimum amount of data that will allow them to do their job.

An increase in the use of blackberry's, iphones, memory sticks and laptops clearly exposes businesses to the risk of a fine since these devices often contain information relating to clients and their contact details. Unfortunately these are also easy to lose, leave in other people's houses, and they can often be left in cars or even on buses. Therefore its sensible to ensure that they do not contain particularly sensitive information or large quantities of data.

When information is shared between organisations, perhaps via email or fax it's absolutely essential to ensure they don't fall into the wrong hands. Sensitive documents should be marked as private and confidential, and checks should be in place to ensure they arrive at their intended destination.

Whistleblowing Reminder

The disclosure of over 250,000 messages from US envoys on Wikileaks serves as a reminder of all the obligations businesses have to employees who disclose information that would fall within the definition of Whistle Blowing. The economic climate has also led to several high profile disclosures within the financial sector.

A whistle blower is someone who raises a concern or highlights wrong doing that has occurred within their workplace. Provided that a disclose meets the requirements, an employee will have a potential tribunal claim if they are subsequently dismissed or victimised. This protection is set out in the Protected Disclosure Information Act 1998.

However, the disclosure must be a 'qualified' disclosure, meaning that it must be made in good faith; there must be a belief that the information is true, and the disclosure must be made to the right person.

Reflecting growing recognition of the issue, tribunal claim forms now contain a section for employees to indicate if they want the matters raised in their claim to be referred to an appropriate regulatory body.

Having a good Whistleblowing Policy is advised because having a policy should reduce the risk of a disclosure being mishandled. The risks to a business are far greater in relation to a disclosure that with a standard grievance, so it's imperative that Managers can recognise a protected disclosure and deal with it appropriately.

Keeping key staff in the New Year

The start of a New Year can sometimes mean a time of reflection for many when a New Year resolution is made.

The resolution for a new job or promotion has been found to be in the top ten resolutions alongside losing weight and quitting smoking.

This can be a worrying time for employers as it runs the risk of losing those key members of staff as January is traditionally the boom time for people looking for new jobs.

Leading Aberdeen-based employment law, HR and health & safety firm, Empire HR has been advising clients on tips on how to prevent losing those key members of staff in the coming year.

Top of the list for reasons for employees on the hunt for a new job in the New Year are that they are looking to further maximise their career, New Year brings thoughts on whether they are on the right path and they begin to think where their career is heading.

Steve Cook, CEO of Empire HR said, “It can be a sorry time when an important member of staff is lost, let alone the costs that come with filling the position left. It is important to keep staff motivated over the festive period in order to keep their interest in their job and of course the company.”

According to a 2010 survey by the CIPD the overall employee turnover rate for the UK was found to be 13.5%. The findings also revealed that organisations are experiencing most difficulty in retaining managers and professionals and that in order to retain staff employers mainly focus on increased learning and development opportunities, improving the induction process, increasing pay and improving selection techniques. Seventy-two per cent of those taking part in the survey say improving line manager HR skills is the most effective method of improving retention.

Empire HR have provided some key points that are worth considering in order to manage employee retention which include: informing and communicating with employees on a regular basis, ensuring performance management tools are in place, and reviewing employee development.

• Ensure you give candidates a realistic description of the job. Expectations will only lead to a demotivated employee in the longer term.
• Ensure line managers are responsible for managing their teams. Managers should be accountable for managing their employees through annual appraisals and regular feedback. Managers should be trained in people management and development skills.
• Clear career development and progression. Employees who are aware of their potential progression within the organisation will feel empowered. Where promotion is not feasible, sideways moves can develop their experience.
  
• Ensure there is good communication links throughout the organisation. Review communication forums or if there is nothing in place consider an employee survey to gauge opinion from the workforce.
• Consider work/life balance of employees. Consider varying working hours to support employees’ domestic responsibilities.
  

A satisfied employee will know what is expected from them whilst at work, will feel challenged and be clear on their development opportunities within the organisation. The perception of fairness and equitable treatment within the work place is important in employee retention.

To find out more on what Empire can offer your business in the New Year please contact Empire HR on 01224 701383 or visit www.empirehr.com

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Baby boom in the Empire

There appears to have been something in the water at an Aberdeen employment law and HR firm with four staff pregnancies in the last year alone.

Empire HR, which has 22 employees, has had four members of their consultancy team on maternity leave following the bumper year of bumps.

Three of the women, Joanna Jacob, Faye Barron and Morag Rose, work at the company’s headquarters in Aberdeen as part of the advice line team, while Maureen McKay, is a home worker. Three are still on maternity leave, which has led to some temporary team changes at the small business but as experts in this field, Empire HR had a strong maternity policy in place to help cope with the arising issues.

Many companies, however, are not prepared to deal effectively with maternity in the workplace and it is often wrongly viewed as a burden to employers, as it can be a costly exercise for small businesses.

Empire HR CEO, Steve Cook, said: “We are delighted with the new healthy additions and having a good understanding of our maternity policy has certainly been very useful this year. “On a serious note, there is bound to be a loss for any organisation but it’s difficult to measure. We had to go through the recruitment process four times and there is a very tangible cost to that. Our clients have been extremely understanding and each new member of staff has undergone intensive training on arrival and it’s been a steep learning curve. “We have a great team of people who have worked together to cover for the maternity posts, and we have worked hard to ensure that the new mums are still part of the Empire family by encouraging them to write about their maternity leave experience on the company blog.

“Empire HR has seen continued growth and it’s important that we have a great team that can re-shape to accommodate issues such as maternity leave.” Employers are usually faced with a number of concerns when a member of staff announces they are expecting, such as losing a key member of a team, having to find a temporary replacement and, of course, the additional costs.

It’s a worrying time for any organisation but it can naturally have a greater impact on smaller businesses like Empire HR. However, the employment law firm claims that if clear guidelines are in place the whole process of the pregnancy, maternity leave and return to work should be stress free for all concerned.

In Empire HR’s case, a genuine interest in the welfare of the new mums and securing good quality maternity cover has played a huge role in coping with the maternity issues which arose this year.

The Empire team were hugely supportive of the mums-to-be and worked together to ensure their workload was manageable during busy times. Necessary risk assessments were also carried out in the work place for the expectant mums, they were given parking spaces closer to the door, they were encouraged to take more rest breaks and were allocated desks near a window if they required fresh air.

The pregnant workers were encouraged to participate in ‘keeping in touch days’ to ensure they were not completely isolated from the workplace and that they still felt part of the Empire team. Faye Barron said: “We were so lucky that the team were really supportive. I almost felt isolated from work so the ‘keeping in touch’ days really helped. I think it can be easy for employees to be forgotten once they have left on maternity leave due to busy workloads but we were all invited to training days, office outings and team meetings, so we still felt very much part of the team during our leave.”

To keep employers up-to-date – here is a rundown of the current Maternity Rights:

• When an employee tells an employer that she is pregnant, the employer has a duty to carry out a health and safety risk assessment in order to determine whether there are any specific risks to her or her unborn child.

• Employees are entitled to paid time off to attend ante-natal appointments.

• Employees are entitled to 52 weeks maternity leave. Employees are required to notify their employer in writing of their intention to take maternity leave by the 15th week before their due date.

• If an employee is absent due to a pregnancy related sickness during the four weeks prior to their due date, maternity leave will start automatically.

• Employees are not allowed to return to work until at least two weeks after they have given birth (four weeks in certain cases).

• Employees are entitled to 39 weeks Statutory Maternity Pay if they fulfill certain qualifying conditions. For the first 6

weeks this is paid at 90% of their normal pay. For the next 33 weeks, this is paid at either 90% of their normal pay or the rate set by the Government, whichever is lower. The current rate set by the Government is £124.88.

• To qualify for Statutory Maternity Pay an employee must have been employed for at least 26 weeks before the 15th week before their due date. They must also earn more than the National Insurance Lower Earnings Level during a qualifying period.

• Employees who do not qualify for Statutory Maternity Pay may be entitled to receive Maternity Allowance which is paid by the Government.

• Employees continue to accrue all contractual benefits (apart from remuneration) throughout their maternity leave. This includes annual leave.

• During maternity leave, employees are entitled to agree with their employer to work for up to 10 days, without this affecting their Statutory Maternity Pay. These are called ‘Keeping in Touch Days’.

• Employees are normally entitled to return to the job they left on their return to work.

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Food and Drink Manufacturing Injury Statistics

HSE recently published its latest HSE Statistics (2009/10) on workplace injuries, work-related ill health and enforcement in the UK. During 2009/10, in food and drink manufacture, there were 4185 'over-3-day absense' injuries plus 856 'major' injuries (eg broken bones or requiring hospitalisation). Expressed as injury rates, 'O-3-D absense injuries' reduced from 1197 (2008/09) to 1165 injuries/100,000 workers, a drop of 2.7%. The combination rate for 'O-3-D absense' plus 'major injuries' fell by 1% during 2009/10 which, when added to an earlier 3% drop in 2008/09, makes an overall reduction of 4% during the period 2008/10.

Builder Prosecuted for Ignoring Health and Safety Rules

A builder whose employees were forced to work in unsanitary conditions, with no toilet or washing facilities, in Rochdale has appeared in court.

Michael Connolly, 46, was prosecuted by the Health and Safety Executive (HSE) after he repeatedly ignored calls to improve his conditions at the site in Littleborough where he had employed contractors to convert a house into flats and shops.

HSE inspectors who visited the site in Church Street found that there were no toilets or washing facilities. They also discovered live wires sticking out of lug sockets, unsafe scaffolding and plaster and rubble scattered all over the site.

Inspectors deemed the site to be so dangerous that Mr Connolly was immediately served with three improvement notices and two prohibition notices following the visit on 4 November 2009.

Despite Mr Connolly's assurances that he had complied with all the notices, when inspectors revised the site on several occasions over a 10-week period, they discovered he had still not provided adequate facilities for workers, including soap and hot running water.

HSE Inspector Alan Pojur said:

"In failing to provide basic amenities like hot water, especially when workers would have been covered in building site dust and plaster, Mr Connolly showed a complete lack of regard for the welfare of the people he employed".

Minimum workplace temperatures

Regulation 7 of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI1992/3004) states that, during working hours, the temperature in all workplaces inside buildings shall be reasonable. However, the Regulations do not provide a minimum workplace temperature. Whether or not a temperature is reasonable will depend on factors such as the nature of the workplace and the type of work that is being carried out.

The Health and Safety Executive provides guidance on the Regulations, which recommends a minimum temperature of 16'C for workplaces where the activity is mainly sedentary, such as offices. For workplaces where much of the work involves physical effort, the minimum recommended temperature is 13'C.

UCATT warns on site safety in cold weather

With the cold weather still looming about, construction union UCATT are warning construction employers that extra checks need to be made on sites, to ensure that work can be conducted safely, during the current extremely cold weather.

Employers need to undertake additional risk assessments during extreme weather in order to ensure that sites are safe before work progresses. Employers also need to ensure that:

- Appropriate protective equipment is used
- Mobile facilities for warming up and warm fluids such as hot chocolate or soup are provided
- They introduce more frequent rest breaks
- Workers are educated on recognising the early symptoms of cold stress/ early signs of hypothermia. These include shivering, loss of co-ordination, slurred speech, memory loss and pale cold skin.


Alan Ritchie, General Secretary of UCATT, said: "cold weather brings additional dangers to the construction industry. It is essential that employers ensure sites are safe and proper facilities are provided during cold weather working. If employers do not believe that their site is safe they should stop work immediately until problems are resolved".