No fault dismissals – are you in favour?

According to a recent survey from the Institute of Directors, the majority of employers are backing controversial proposals to allow “no-fault dismissals” for under-performing employees.

 The Beecroft report commissioned by Downing Street has made a number of recommendations, that companies be freed from more than 20 employment laws and that they should be able to dismiss workers more easily.

 What are your thoughts? Do you think it will reduce the regulatory burden? Will it encourage business to recruit more people? We’d be interested to hear your views:

Politicians divided on ‘no-fault-dismissal’ proposals

Beecroft Report puts economic growth before workers’ rights Related articles

* Beecroft’s law would encourage bullying
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Email newsletter Free daily HR news email Government proposals to bring in ‘no-fault dismissal’ rules could divide the Coalition partners as the controversial Beecroft report is set to be published.

The plans, outlined in the report last October by entrepreneur Adrian Beecroft, aim to slash red tape for employers and make it easier for them to hire and fire staff as they are needed.

To view the full article, please click here...

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A breakdown on the Changes to Unfair Dismissal Rights

Changes to Unfair Dismissal Rights

In November 2011 the Government announced its intention to increase the qualifying period required for employees to make unfair dismissal claims at employment tribunals from one to two years’ service. This change will take effect from 6 April 2012 however it is important to note that this will only apply to employees whose start date is on or after 6 April 2012. Businesses will therefore need to be vigilant when considering dismissals for employees who started prior to that date as they will still be able to bring a claim after only one year’s service.

The purpose of the change is to allow businesses more time to resolve employment difficulties and to hopefully reduce the number of unfair dismissal claims placed at tribunal. However it is important to be aware that employees may still raise other claims which are not dependent on the two years’ service requirement.

It is important to note that the change to the qualifying period will not remove the risk of discrimination claims as no qualifying periods apply to these claims. In additional there are a number of exceptions to the qualifying period which will remain.

It is anticipated that the increase in the service requirement for most unfair dismissal claims to two years may result in an increase in employees seeking to make alternative claims as described above. As such it will be important for businesses to seek advice in any circumstances where they are considering the dismissal of an employee to ensure that the risk of any claim being made is minimised. Please contact the Empire Advice Line team if you have any queries about these changes, and especially if you are looking to terminate an employee’s contract of employment.

Can Employees Working Abroad Claim Unfair Dismissal?

Ravat v Halliburton Manufacturing and Services Ltd [2012] UK Supreme Court

In the light of Lawson v Serco [2006], the Supreme Court considered whether an employment tribunal had jurisdiction to hear a complaint of unfair dismissal in relation to a British citizen, living in England, who worked for a British-registered company in Libya on a month-on, month-off basis.

The Court held, dismissing the employer’s appeal against the decision that an employment tribunal did have jurisdiction to hear an unfair dismissal complaint. The Employment Rights Act 1996, ss 94(1) (right not to be unfairly dismissed), 230(1) (definition of “employee”) did not contain any geographical limitation, although some limitation must be implied. Distinguishing Lawson, the question of law was whether s 94(1) applied to this particular employment. It was not for the courts to lay down a series of fixed rules where Parliament had decided not to do so. Their role was to give effect to what Parliament may reasonably be taken to have intended by identifying and applying the relevant principles. The question of fact was whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it was be appropriate for the employee to have a claim for unfair dismissal in Great Britain.

The Ravat decision can certainly be viewed as an employee-friendly one – the majority of overseas worker cases will now most likely be caught by s.94 if a long enough list of factors can be produced – but it is open to question whether this is quite what Parliament had intended. Instead, the tribunals are left with a lengthy fact-finding exercise combined with a distinct lack of clarity as to what the relevant facts they should be finding are. From now on, when establishing the scope of s.94(1), anything, it seems, goes.

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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Hot of the press...

Hot off the Press.....Launch of Equality Advisory and Support Service announced
The Government has confirmed that it is commissioning an Equality Advisory and Support Service to provide telephone-based and face-to-face support to individuals experiencing discrimination.

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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Key Employment Legislation : what you need to be aware of in 2012

Let's just get down to it. Here are key Employment Legislation that you need to be aware of in 2012


1. The qualifying period for unfair dismissal protection increases
The biggest change to employment rights in 2012 will be the increase of the qualifying period for an employee to bring an unfair dismissal claim, which will double from one year to two years. The change will take effect on 6 April 2012. The increase in the qualifying period is intended to give employers and employees more time to resolve any difficulties and reduce the number of unfair dismissal claims.

2. Pensions auto-enrolment begins
From 1 October 2012, new pension rules will begin to be phased in, requiring employers to enrol all eligible employees automatically and make compulsory employer contributions into a qualifying workplace pension scheme or the National Employment Savings Trust (Nest). The first wave of employers will be able to voluntarily start auto-enrolment as early as July 2012, and the legal requirement to enrol will be gradually rolled out between October 2012 and April 2017, starting with businesses with more than 120,000 employees

3. Changes to the employment tribunal procedure
The Government has announced a review of the Employment Tribunal Rules of Procedure, with significant changes expected to be introduced on 6 April 2012. Employment judges will hear unfair dismissal cases alone in the tribunal, unless they direct otherwise. The maximum amount of a deposit order, which a tribunal can order a party to pay as a condition to continuing with tribunal proceedings, will increase from £500 to £1,000. The maximum amount of a costs order, which a tribunal may award in favour of a legally represented party, will increase from £10,000 to £20,000.

4. Tribunal Fines
A proposal is being made to fine employers up to £5,000 (on top of damages) if they lose a tribunal case. The fine will be payable to the Exchequer and will be 50 per cent of the tribunal award, subject to a minimum of £100 and a maximum of £5,000. The proposed fine would not apply to employees, so it may be perceived as a revenue raising exercise, however, it could mean that even more cases are settled rather than going to a full hearing.

5. Statutory redundancy payments and guarantee payments increase
The maximum amount of a week’s pay used to calculate a statutory redundancy payment, and the basic and additional awards for unfair dismissal, increases from £400 to £430 on 1 February 2012. The maximum unfair dismissal compensatory award increases to £72,300; with the limit on the amount of a guarantee payment payable to an employee in respect of any day also increases from £22.20 to £23.50.

6. Maternity, paternity, adoption and sick pay increases
The Government has confirmed that the standard rate of statutory maternity, paternity and adoption pay will increase from £128.73 to £135.45 per week from 1 April 2012. Statutory sick pay will increase from £81.60 to £85.85 per week from 6 April 2012.

7. Watch this space...
With consultations taking place for the introduction of employment tribunal fees, plans for the introduction of “protected conversations”, and calls for evidence over whether or not the law on TUPE and collective redundancy consultation should be amended, there will be a significant number of legal developments in the pipe- line this year. The Government has also announced that it will consult on reforming the law on employment disputes and removing the third-party harassment provisions of the Equality Act 2010, alongside a proposal to amend the existing Working Time legislation around carrying over holiday entitlement.


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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.

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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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.

Please visit our facebook page where we regularly hold discussions relating to the topics covered in our blog posts.  

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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


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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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.


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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Vehicle Safety is a must

There are many factors that are essential for all businesses to consider when it comes to Health and Safety. Therefore, Empire HR would like to raise some topical issues and welcome you to leave your comments and provide us with feedback. In this post we discuss the importance of Vehicle Safety, the indecent of a company being prosecuted for a reversing lorry. We also discuss and offer advice on helping foreign staff improve their English.

VEHICLE SAFETY
There are numerous safety issues to consider and risk assess with the use of vehicles at work. Not only are the licenses, roadworthiness, tax, insurance and safety checks to be undertaken on company vehicles, there is a need to include employee’s own vehicles in the equation when these are used for work purposes. The safe movement of vehicles on work premises, safety of pedestrians, planning of road trips, loading operations of vehicles and weather conditions to name but a few all add up to present a potentially lethal cocktail if not planned and controlled, regularly monitored and reviewed by competent persons.

PROSECUTION FOR REVERSING LORRY ACCIDENT
An Essex based company has been fined £150,000 and ordered to pay £19,000 costs following an accident which resulted in an employee being seriously injured, having his skull crushed by a reversing lorry at the company’s depot.

An articulated 45ft HGV trailer was being reversed into an open loading bay as the warehouse porter waited to unload it. He had noticed a positioning error and put his head around the back of the trailer to shout instructions to the driver. At that moment the trailer reversed further, crushing his head against the brick wall. He received severe head injuries and long term effects but has returned to work.

The subsequent HSE investigation found the company had not assessed, controlled, or properly managed the risks arising from vehicle and equipment movements and had also failed to provide a safe system of work for its employees.

HSE stated “This firm could have put in place a physical separation between the porters, moving vehicles and the loading bays and a safe way for porters and drivers to communicate with each other. None of these measures were evident and so a worker was seriously hurt for no good reason.”

DO YOU HAVE ANY FOREIGN STAFF WHO NEED HELP WITH THEIR ENGLISH?
If you run an international company you will understand the importance of effective communication, dealing with customers on the telephone, writing reports and meeting clients. All these situations require non-native employees to speak and understand English clearly. Do you encounter any of the following problems in your workplace?

• Our employees do their day-to-day duties well but their ability to communicate is poor. We’re particularly worried about health & safety issues.

• My boss keeps asking me to do presentations in English and I’m finding it stressful!

• My English is good but clients don’t understand me over the phone. I need help with my pronunciation! I can speak English well but I find it difficult to write technical reports!

Whatever problems your staff may have with English language, International House Aberdeen can help.
International House Aberdeen, Grampian’s premier English language school can offer tailor-made one-to-one or group tuition for your employees.

Their flexible study programme allows us to offer courses at any time convenient to you or your staff, either at our premises on Union Street or on-site.

If you think the services of International House, Aberdeen would be of benefit to you or some of your staff, please contact IH Aberdeen on 01224 634006 or email directly on info@ihaberdeen.com and quote “EMPIRE HR”. 

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Age clearly does matter, as recent Employment Tribunal statistics show a 79% rise in claims

Figures published recently by HM Courts and Tribunals Service in its Annual Statistics for 2010/2011 have revealed a ‘dramatic’ rise in the number of age discrimination claims lodged at the Employment Tribunal.

The figures show that, in the year up to 31st March 2011, 6,800 age discrimination claims were filed, a rise of 31% on the previous year’s number. Since 2008/2009, the overall number of claims has risen by 79%.

These figures show a dramatic rise in the number of age discrimination claims in the past two years and emphasise the importance of employers becoming more age-aware.

Against a backdrop of a number of high-profile ageism cases, the ending of the default retirement age and rising levels of redundancy and unemployment, many more people believe that they are being discriminated against. With further job losses expected in the public sector and the lingering idea that older workers are a burden, we would not be surprised to see these figures continue to rise. Remember, age is a unique form of discrimination, as it can affect anyone and everyone as age is something we all have, with young people being equally prone to marginalisation in the workforce.

Even large organisations can run into problems, as illustrated by the recent radio comments of an Aberdeen City Councillor, who whilst addressing the issue of funding from the Scottish Government for Aberdeen City Council asserted “that this was a test for the Council’s Leader,[ 26 year old Callum McCaig] who had to show whether he was a man or still a boy.” It is often ill-advised and inappropriate comments, (no matter how well meant) that can lead to discrimination claims and contribute to these rising figures.

Organisations must have appropriate policies and training in place to deal with all aspects of discrimination, and to ensure that processes like redundancies, recruitment and pay are free from any discriminatory practices.

These recent Employment Tribunal statistics also show that despite a small fall in the total number of claims lodged in 2010/2011, the total number of claims was still up by 44% from 2008/2009.

In short, the Employment Tribunal still continues to be busy and organisations, no matter their size, need to have the best HR policies, procedures and practices in place to combat this trend.

Craig Bennison
Head of Litigation

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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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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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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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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.

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.

Adverse Weather Conditions

Empire HR has been inundated with requests for help from businesses throughout the North East following the recent winter weather.

The leading employment law and HR company has seen enquires relating to the poor weather soar, with many businesses finding that it difficult to cope in the face of worsening conditions.

Steve Cook, CEO of Empire HR explains: “The winter weather has caused serious problems for businesses throughout the UK this month, largely caused by the difficulties experienced by commuters. Coupled with school closures, the weather has led to absence levels soaring. Hopefully, we are over the worst, but it is worrying that the weather continues to cause such disruption to businesses during these difficult economic times.”

As the poor weather continues, how can businesses ensure they are able to cope during periods of extreme weather?

Although it may be impossible to avoid the entire impact of severe weather, it’s likely that taking a few simple steps could make a real difference. Therefore, the Empire HR team has been advising businesses on steps they can take to reduce disruption and how to deal with staff absences caused by the weather.

• Identifying key roles within the business means you can anticipate which roles absolutely must be covered if the weather is so severe that the person who normally carries out the role is unable to get to the office. This will lead on to considering how the role can be carried out in their absence. This is key to drafting a contingency plan to cover all emergency situations. Knowing that the essential staff are trained and aware of what they need to do in this sort of situation is invaluable.

• It is worth considering whether employees who cannot get into the office could work from home for a day or two. This could actually turn out to be a great opportunity to get some paper work or admin out of the way. This arrangement will be beneficial to both parties and avoid a wasted day.

• Alternatively, this could be an opportunity to reap the benefits of a flexible working scheme. If an employee cannot get into the office, could they make up the hours over the next couple of weeks. Sitting down with the relevant employee and coming to an arrangement about making up the hours is likely to have the added benefit of building a good relationship with the employee since both parties will ultimately get what they want.

• Those with children are obviously likely to be affected by school closures. This is a difficult situation since parents will need to sort out alternative childcare arrangements at very short notice, or even stay at home themselves. This is compounded by the last minute nature of the closures since parents may only discover the school is closed once they have arrived at the gates. Careful consideration should be given to this situation with regards to how the employee’s family needs can be accommodated. Alternative working arrangements such as working from home can be invaluable, or perhaps they could take the day off as annual leave.

• Health and safety factors will also need to be taken into account. Will the car park present a risk of slipping and falling over? If it is a private car park, arrangements will need to be made to clear the snow and grit the area. If you have employees with mobility issues or pregnant employees, it would be prudent to reserve spaces close to the building entrance for them. If your employees have managed to get into the office, are you sure that they will be able to get home? If the snow is falling heavily and you know your employees have a long drive home, it would be sensible to allow them to leave earlier than normal so that they can miss the rush hour gridlock.

• A pressing concern for both employers and employees is pay. Should an employee expect to be paid for an absence caused by severe weather? There is no legislation stipulating this. Many businesses never pay an employee if they are absent for this reason. However, some choose to do so in the interests of maintaining good employee relations and as a considerate gesture. When considering the issue of pay, it is essential to note that if a contract or handbook states that these absences will be paid, this should be adhered to. In addition, if these absences have been paid in the past a precedent may have been set. If you are unsure of whether or not to pay employees who have not made it into the office, it is well worth considering seeking advice on the issue.

• It can be difficult if it is suspected that an employee is taking advantage of the weather to simply get an extra day off work. A return to work interview or investigation meeting can help ascertain the true circumstances surrounding an absence. Of course, regardless of the reason, all employees can be expected to follow the standard absence reporting procedures. A failure to do so, and/or misuse of the system can ultimately be dealt with through the disciplinary procedure.

Click here for a free adverse weather policy.  For more information about Empire HR please click here

January 2010 Bulletin

The Empire HR January Bulletin is now available to download, please click here