ROUTINE AND NON-ROUTINE RISK CONSIDERATIONS

Moving to new premises is not a routine occurrence and may therefore not be included in your risk assessments of routine activities.

Green Marine Ltd in Southampton was moving to new premises and had left the old premises in an untidy state. When an employee as part of a team was sent to remove a spray booth for transporta- tion to the new premises a serious accident occurred.

The work involved use of an overhead crane to lift doors after the hinges were removed, but in order to remove the hinges ladders were used. It transpired the ladder used by the employee was not high enough so a scissor lift was manoeuvred. This knocked a shelf, hitting a piece of timber, which then fell onto the employee who sustained a fractures to his leg in four places.

The HSE stated the accident could have been avoided if a risk assessment had been carried out, the work had been planned and the company monitored the activity. Added to this was the fact the employee who moved the scissor lift had not been trained in how to do so.

The company was fined £26,666 and ordered to pay costs of £6163 for it’s ‘oversight’ in it’s proce- dures.

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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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
* More related articles below

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...

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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Qualifying period for unfair dismissal increases

The qualifying period for gaining employment protection rights against unfair dismissal increases from one to two years today. The increase will apply only to employees whose commencement date is on or after 6th April 2012.

Employers should continue to be vigilant when considering dismissals for employees who started prior to 6th April 2012 as they will still be able to bring a claim after only one year’s service. 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 addition 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 may result in an increase in employees seeking to make alternative claims. As such it will be important for employers 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 Team if you have any queries about these changes, and especially if you are looking to terminate an employee’s contract of employment.

Other Legislative Changes which take effect today:

• Employment tribunal procedure reformed - On 6 April 2012, the maximum amounts of deposit and costs orders increase; 
• Statutory maternity, paternity, adoption and sick pay increased from £128.73 to £135.45 on 1st April. The weekly rate of statutory sick pay also increases, from £81.60 to £85.85, on 6 April 2012 ;
• Tax thresholds - On 6 April 2012, the lower earnings limit for primary Class 1 national insurance contributions increases from £102 to £107, the income tax personal allowance increases to £8,105, and the threshold at which employees pay the higher income tax rate of 40% is reduced to £34,371;
• Calculation of staging date for pension auto-enrolment - From October 2012, employers will be required to auto-enrol eligible jobholders into a qualifying workplace pension scheme . The date from which employers must auto-enrol employees (known as the "staging date") is based on the number of employees in their PAYE scheme on 1 April 2012
• Accident-reporting requirements change - On 6 April 2012, the required period of incapacity following an injury caused by an accident at work, which triggers the employer's requirement to report the accident to the enforcing authority , increases from more than three days to more than seven days. The deadline by which the employer must report the accident increases from 10 days to 15 days.
• Definition of "independent adviser" for compromise agreements clarified.

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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CHANCELLOR HINTS AT NO-FAULT DISMISSALS FOR SMALL BUSINESS

George Osborne has suggested that compensated no-fault dismissals could be introduced for what he called “the smallest businesses” in an attempt to protect employers’ rights.

Speaking at the EEF Manufacturers’ Dinner on 6th March, Osborne said: “Of course, employees have rights and should be protected. But what about your right to start a business and not be sued out of existence? And now we’re beginning a call for evidence on the case for a new compensated no-fault dismissal for our smallest businesses. Plenty of trade unions and others will be submitting their evidence for why we shouldn’t do this. If you think we should, and it will increase employment, then don’t wait for someone else to send in the evidence. Send it in yourself.”

The proposed “compensated no-fault dismissal” system was originally outlined in the leaked set of recommendations put together in November 2011 written by venture capitalist Adrian Beecroft and reportedly commissioned by David Cameron.

John Read, employment law editor at XpertHR, suggested that this statement overlooks the fact that employers cannot be “sued out of existence” unless they treat their employees badly and suggests that bad employers will be the only parties who are protected by the introduction of no-fault dismiss- als. He said: “.....When it comes to unfair dismissal, employers have only to act reasonably in the circumstances to dismiss an employee fairly”. Small employers might be panicked about employment law and unfair dismissal in particular, how- ever, Empire are here to provide you with any help and advice you may need in all areas of employ- ment legislation.

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. If you have found this post interesting please use the "Share" buttons below to tell your online community about it, there's a good chance they will find it interesting too. Thank you.

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PENSIONS AUTO-ENROLMENT UNDERMINES GOVERNMENT’S PROMISE TO CUT RED TAPE

Pensions auto-enrolment will add “another layer of red tape and bureaucracy” for employers, break- ing the Government’s promise to reduce the burden of red tape on businesses. Daniel Barnett, an employment lawyer, made the comments in response to a survey that found that pension auto-en- rolment was the top concern for employers and HR professionals for the year ahead.

33% of the 1,400 people surveyed by Barnett said that the introduction of pensions auto-enrolment would be their biggest challenge this year. Once it comes into force, employers will have to automatically enrol eligible employees into qualifying workplace pension schemes and make mandatory employer contributions. The date on which employers will have to begin auto-enrolment will depend on their PAYE scheme size, with the largest employers having to auto-enrol employees from 1 October 2012.

Barnett commented that “employers are being left confused and uncomfortable” about what seems like another layer of red tape and bureaucracy. The survey also found that more than a quarter of HR professionals would like to see the Agency Workers Regulations scrapped and 26% want the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) to be abolished. However, employers were largely positive about the upcoming reforms to the employment tribunal system, which include the introduction of fees for employees bringing tribunal claims and an increase in the qualifying period for unfair dismissal, with 56% believing that it will reduce the number of claims.

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. If you have found this post interesting please use the "Share" buttons below to tell your online community about it, there's a good chance they will find it interesting too. Thank you.

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ARE YOUR RISK ASSESSMENTS FINDINGS ACTED ON?

A company based in Wales, Allevard Springs Ltd have been fined £10,000 and ordered to pay costs of almost equal value after pleading guilty to breaching PUWER regulations, failing to protect workers.

A worker suffered a broken arm, required stitches and skin grafting after an accident involving a bar drawing-line machine. In order to alter the air pressure regulator the employee accessed the machine enclosure, leaned over the conveyor and as he did so his arm slipped causing the travelling metal bars which he was trying to align, went through his arm.

He had to protect himself from further injury using his other hand until his colleague shut down the machine.

The company had a full risk assessment in place which identified workers were able to access moving parts of the machine but had failed to implement any controls to prevent harm.

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. If you have found this post interesting please use the "Share" buttons below to tell your online community about it, there's a good chance they will find it interesting too. Thank you.

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Empire's new Training Calendar provides an easy way to add relevant courses to your calendar

We're delighted to announce this year's Training Courses from Empire; we have a comprehensive range of courses to help you keep up to date with employment law legislation and health & safety responsibilities.  In addition we have a number of courses designed to help you manage your business.  Take a look at the list below which include links to our Training Calendar that will give you booking details and an easy way to add relevant courses to your own calendar.

If you need any further information on our courses please email us or, visit the web site which is updated on a regular basis with all the latest details.

EMPLOYMENT LAW UPDATE
Employment Law has recently been in the headlines for the ‘radical’ changes being contemplated by the coalition government; but these aren’t the only changes to affect Employment Law – what about Agency Workers; Holiday Pay; National Minimum Wage Law; Redundancy Law, TUPE Law and Unfair Dismissal to name a few areas which have seen changes in the past year.
CHECK CALENDAR FOR TRAINING DATES

RESTRUCTURING, REDUNDANCY & MERGERS
A practical workshop highlighting key legislative and employee relations considerations for any business undergoing change with a focus on legal compliance.
CHECK CALENDAR FOR TRAINING DATES

DIRECTOR’S RESPONSIBILITIES
Empire’s in-house Barrister, Craig Bennison will look at Director responsibilities from an HR; HSE perspective, while restructuring and business improvement expert, Neil Armour from Eagle Orchid Management Services will share some of his vast experience of advising management in distressed and rapidly growing organisations.
CHECK CALENDAR FOR TRAINING DATES

WITNESS FAMILIARISATION
If you are facing an Employment Tribunal and are unsure about what will happen on the day, you can turn to Empire for support. We currently offer a new specialist preparation day of Witness Familiarisation Training, in readiness for any forthcoming cases. The course is recommended for anyone who has not previously given evidence at an Employment Tribunal or who may be feeling nervous about the prospect of doing so.
CHECK CALENDAR FOR TRAINING DATES

HEALTH & SAFETY
IOSH Managing Safely, NEBOSH General Certificate and CIEH Health & Safety courses are available to enable people to assess and control workplace hazards and understand their health and safety responsibilities.
CHECK CALENDAR FOR TRAINING DATES

CUSTOMER SERVICE
Delivering good customer service for any business is a learned skill and a key point of difference. Our workshop has been developed using two methods “you make the difference” and the world famous “fish” customer service experience.
CHECK CALENDAR FOR TRAINING DATES

EFFECTIVE INVESTIGATION SKILLS
Effective Investigations are an integral part of any disciplinary or grievance procedure. This workshop will give guidance on the scope of investigations, sources of evidence, witness statements and questioning skills.
CHECK CALENDAR FOR TRAINING DATES

MANAGING CHALLENGING SITUATIONS
This session will offer guidance on conduction sensitive discussions with employees with a focus on attitude and behavioural issues, capability and underperformance.
CHECK CALENDAR FOR TRAINING DATES

INTRODUCTION TO MEDIATION
An introduction to the resolution of workplace conflict through alternative path, with a ‘How to’ guide for managers on conducting information mediation.
CHECK CALENDAR FOR TRAINING DATES
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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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.


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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NEW YEAR RESOLUTIONS

It’s that time of year again, when some people resolve to start the year with a new sense of purpose. However, as time goes by, resolutions often fall by the wayside and we submit to the pull of the comfortable and familiar. Businesses should be no different.

January brings with it an opportunity for you to look back at the previous 12 months acknowledging your achievements and addressing opportunities. Use the time wisely to plan for 2012, reviewing and setting objectives for the coming year and to help you kick-start the process, here are some areas that you may want to consider:

Policies and Procedures
When were yours last updated? With never ending employment legislation coming through, your requirements may have changed and your policies should be reviewed on a regular basis. Do any of the recent changes affect you? Do you have a policy in place to cover the new legislation? Now is the time to review them.

Social Media
It’s everywhere, and as much as some of us may want to ignore it, you can’t overlook the potential impact on your business. For example, the more content you have on your Facebook page, the more likely you are to appear on top of search results. Is your company getting the maximum benefits from social media? What are your employees saying about your company via social media? Do you have a policy regarding the use of social media? Do you monitor social media to see what is being posted about the company? What liabilities need to be considered? This area continually evolves on a phenomenal basis and you may choose to ignore it at your peril....

Workplace Harassment
This past year seemed to bring a rise in Workplace Harassment issues with companies seeing an increase in harassment and discrimination complaints. Whether your company experienced this or not, it is important to evaluate whether you are in a position to deal with any potential issues that arise. Do you have a Harassment policy? When was it last updated? Has it been communicated to employees recently? When was the training conducted? So many companies think that these issues don’t happen to them, until they do. Taking positive steps will raise awareness amongst your employees and foster a positive work environment.

Training and Development
What does your training budget look like for next year? For many businesses, this is one of the first areas to be cut. As the economy stabilises, employees may be more inclined to change jobs. What are you doing to retain your talent? And with all the employment legislation coming through, are your managers prepared to deal with it confidently? There has never been a more important time to show your commitment to employees, by offering opportunities for learning and growth, before they head out the door.

Recognition 
While the past few years have been tough on business, it has also been tough on employees, with more being asked of them as businesses have tightened their belts. How have you shown that you recognise and appreciate your employees? Budgets may still be tight but the New Year may be an opportunity to get creative by showing them how much they are valued.


HR Audit
Whatever you decide, identifying a strategic plan for the year ahead, or conducting a full HR Audit (something we can help you with), could help to ensure that some or all of your resolutions are met. Either way, it could be a New Year and a clean slate.

Finally, here is one New Year’s resolution that Empire will be able to make and keep: we will commit to providing the high-level level of support and advice to our clients throughout 2012, so should you require help with updating your policies and procedures, need advice on specific issues or assistance in the areas of Training or Health & Safety, do get in touch.

What New Year resolutions has your business undertaken this year? How important do you think the issues that we have outlined are to your business? 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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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.

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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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


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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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’!


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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