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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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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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.

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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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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.

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.

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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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GAS SAFETY - HAVE YOU ASSESSED YOUR CONTRACTORS?

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

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

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

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

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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ARE YOU READY FOR WINTER?

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

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

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

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

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

Top ten tips from Empire are:

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

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

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

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

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

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

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

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

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

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

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

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

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TALENTED FOOTBALLER OR REBELLIOUS EMPLOYEE?

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

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

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

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


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

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

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

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


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New appointment at Empire...

Gill Hutchinson has joined the team as Health & Safety Manager to support the company’s continuing growth in this area.

Empire currently employs 23 members of staff at their headquarters in Aberdeen.

Gill has been a H&S Professional since 2000, initially as a Health & Safety Manager for a large voluntary organisation in London before taking on a consultancy role with a large Manchester based company.

With her experience in the industry, she brings a wealth of knowledge to Empire, which will be beneficial to their clients across the country.

Her role will see her lead and develop the H&S division of the business and she will be working closely with the company’s wide client base to ensure they are updating and reviewing their policies as required by law.

Gill says: “I made a commitment to make a difference to safety standards in the workplace after being exposed to ill-managed industry related hazards and health and safety is an area which every employer should be managing.  At Empire I am going to initially focus on making that process easier for our clients to understand through updating and reviewing policies to make them more concise and easier to comply with.”

Gill has relocated to Scotland from Cumbria with her 14-year-old daughter to take on the new position.

Here's what Operations Director, Peter-Jon Chalmers had to say about Gill\s appointment: “Gill is an excellent addition to the team at Empire and her expertise in the health and safety arena is excellent and her skills and ability to explain policies in simple terms will be hugely beneficial to all of our clients.”

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First Prosecution Under Corporate Manslaughter Act

The first company to stand trial under the Corporate Manslaughter and Corporate Homicide Act 2007 has been fined £385,000 after being found guilty by the jury at Winchester Crown Court.

The conviction of Cotswold Geotechnical Holdings Ltd came after a two-week trial at the court, where the company answered charges by the Crown Prosecution Service in relation to the death of employee

Alexander Wright in September 2008.

In handing down the sentence on 17 February, the judge, Mr Justice Field, confirmed the company could pay the fine over a 10-year period, with £38,500 due every year of that period. The company does not have to pay any costs.

The judge said the fine marked the gravity of the crime and the deterrent effect it would have on companies to adhere to health and safety guidance. He said a larger fine would cause the small scale company to be liquidated, and four people would lose their jobs. “It may well be that the fine in the terms of its payment will put this company into liquidation. If that is the case it’s unfortunate but unavoidable but it’s a consequence of the serious breach,” he said.

Mr Wright, 27, had been left working alone in a 3.5m-deep trench to ‘finish up’ after the managing director of Cotswold Geotechnical Holdings, Peter Eaton, left for the day. A short time later, the trench collapsed on Mr Wright and buried him.

Peter Eaton had originally been charged with manslaughter by gross negligence, as well as a health and safety offence, in his own capacity but these charges were dropped after a successful application by his defence team last October on the grounds of his poor health. The company also originally faced a separate health and safety offence, but this was dropped by the prosecution in January this year after the judge raised the issue of whether the two different burdens of proof for the two remaining charges might confuse a jury.

In convicting the company, the jury found that the company’s system of work in digging trial pits was wholly and unnecessarily dangerous. The court heard the company ignored industry guidance.

Detective Inspector Giulia Marogna, of Gloucestershire Constabulary, who investigated the case with the support of the HSE, described Cotswold Geotechnical Holdings’ approach to health and safety as “cavalier”, and the way it taught and supervised its junior engineers as “inherently dangerous”.

Some commentators have argued that the Act was not designed to prosecute small businesses like Cotswold. However, the case was seen as a test case for the legislation. To secure the conviction,

the prosecution needed to demonstrate that:

• Cotswold’s conduct caused the employee’s death and amounted to a gross breach of a relevant

duty of care owed to the employee (section 1(1)).

• A substantial element of the breach was in the way the organisation’s senior management managed

or organised its activities (section 1(3)).

The successful prosecution of Cotswold demonstrates the importance for businesses to have a

health and safety culture and to ensure that everyone takes responsibility for improving health and

safety.


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Rebranding of Empire HR

Here at Empire HR we have recently launched our new image as part of our rebranding programme to compliment the range of services that we provide. In a brave move, we have decided to drop the HR from the title and will now be marketing ourselves as just Empire. 

The decision to rebrand follows continual growth and expansion for the business in recent years. In the last 18 month we have increased our clientele significantly and have seen a 25% increase in turnover.

The company is now one of the Scotland's leading HR, Employment Law and Health & Safety firms working with a wide range of clients with between 5 to 12,000 employees.

The new branding, name and logo was designed specifically to fully support the wide range of services that Empire has to offer.

Also to coincide with the new branding and image, we have just launched a new interactive website, offering free downloads, networking events and an online discussion board called The Empire Wire.

To find out more or to just simply have a look at the new website please visit http://www.empirehr.com/ or contact them on 01224 701383.

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