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

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

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

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

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

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

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

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

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

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

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

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

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

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

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How will your business be affected?

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

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

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

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

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

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TEENAGER LOSES FINGERS

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

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

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

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

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Increase in qualifying period for unfair dismissal claims

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

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

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

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

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THE “SEX” X- FACTOR?

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

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

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

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

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London Riots, First Aid and Empire HR

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

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

RIOTING AND HR

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

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

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

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

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

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

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

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

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

FIRST AID IN THE WORKPLACE GUIDANCE 

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

Either a valid certificate of competence in either:

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

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

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

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

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

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

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

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

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

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

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

HEALTH & SAFETY

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

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

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

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Vehicle Safety is a must

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

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

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

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

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

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

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

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

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

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

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

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

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

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NOTW FIASCO – WHAT CAN BUSINESSES LEARN?

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

Empire is encouraging businesses to learn from the NOTW situation, as it serves as a timely reminder that no business is immune from closure, and very large, successful businesses can be destroyed by the actions of a few employees. In light of the closure Empire has compiled a list of potential learning points for other businesses to take into account. Over a series of blog posts we will highlight the issues that we feel are important to consider.

The most popular English-language newspaper in the world was published for the last time in July, which has left politicians, News International, The Metropolitan Police, and the NOTW employees battling to find out who is to blame. Public speculation, police questioning, political debate, and media coverage is certain to go on for the foreseeable future but, in the meantime, there are lessons the business community can learn from the demise of the NOTW. 

Here are the first two points where lessons should be learned from NOTW:

ORGANISATIONAL CULTURE MUST NOT BE NEGLECTED
Does the culture of your business encourage employees to push the wrong boundaries, go to extremes and turn a blind eye to bad practices?
A journalist deleting the voicemail messages of murder victim Millie Dowler is an extreme example of this, but can you be sure that your employees wouldn’t be tempted to break the law if pressurised?
In the case of the NOTW, serious questions need to be asked about why journalists felt the need to go to such extremes to get a story.
Could the HR department or line managers have prevented this incident by fostering a different organisational culture?

WHISTLEBLOWING CAN HELP BUSINESS
A good whistleblowing policy encourages employees to come forward if they become aware of malpractice or breaches of the law. This allows a manager or HR department to be made aware of the issue as early as possible, therefore preventing an escalation. It is likely that the NOTW did have a policy, but employees did not feel able to use it. The importance of encouraging an effective whistleblowing policy was also demonstrated by the recent care home scandal in Bristol, in which a senior nurse broke the silence of abuse of patients resulting in closure of the home. It is not enough to simply have a policy, it must be circulated and utilised appropriately.

It is important that businesses throughout the UK take on board the lessons learnt, and most importantly ensure steps are taken to prevent the same thing happening to them. We will be posting more pointers relating to the NOTW scandal in the following blog posts.

 
A REMINDER - NEW ARRANGEMENTS FOR REPORTING OF INJURIES AND INCIDENTS TAKE EFFECT FROM 12th SEPTEMBER

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) place a legal duty on employers, self-employed and people in control of premises to report work-related deaths, major injuries, over-three-day injuries, work related diseases and dangerous occurrences (near misses).

Businesses will no longer be able to report incidents by email, post or fax.

Fatal and major incidents and injuries will still be reportable by telephone however all other reportable work-related injuries and incidents under RIDDOR will move to a online system using interactive forms.

Seven forms will be available on the HSE’s website which is aimed at separating the incident type and making the statutory reporting process quick and easy for employers to use.

Further changes will take effect on the 30th September 2011 - the HSE’s Infoline telephone service, which currently provides a basic information service to callers, will end due to the increased use of their website.

We would really like to hear your views on the issues that have been highlighted in this post. Have you had any experience in people within an organisation turning a blind eye to bad practices? What are your thoughts on the whistleblowing culture? Do you think it can help businesses? What are your thoughts on the new arrangements for reporting injuries? Join our facebook page to enter our discussions amongst our online community

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

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

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

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

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

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

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

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

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

Craig Bennison
Head of Litigation

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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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Extending Sick Pay Not A Reasonable Adjustment

The case of Ashton v Royal Bank of Scotland (RBS) has confirmed that the obligation to make reasonable adjustments to those with a disability does not extend to increasing the amount of sick pay an employee gets.

Ms Ashton had frequent absences caused by her disability, and RBS made several adjustments to her working pattern and role allowing her employment to continue. However, RBS did enforce its absence policy by giving Ms Ashton a formal disciplinary warning once her absences reached a certain level, which consequently affected her sick pay.

Ms Ashton claimed that by issuing the formal warning and withholding her sick pay, RBS had failed to make reasonable adjustments. However, the Employment Appeal Tribunal found that she was not at a substantial disadvantage in comparison to those who were not disabled because all employees were treated consistently in accordance with the absence policy, and confirmed that extra sick pay would only need to be paid in exceptional circumstances. In RBS’s favour was fact that the policy was sometimes relaxed for those with disabilities.

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Dismissal of Lewd Nurse Unfair

A nurse who was dismissed after she made a lewd comment whilst restraining a patient has won her

case in an Employment Appeal Tribunal.

In Bowater v NW London Hospitals NHS Trust, the nurse was sitting astride a patient who was having a fit and jokingly said “it’s been a few months since I was in this position”. Despite the fact that only her colleagues heard the comment, she was dismissed on the grounds of gross misconduct. The case highlights that it is crucial to take all the circumstances into account prior to a dismissal. In this case, the tribunal took her unblemished record and the fact that no member of the public heard her comments into account.

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Requests For Time Off For Training Delayed

Small businesses are to be spared from being forced to deal with requests for time off for training – for the time being.

Employers with more than 250 employees have been required to deal with requests since 6th April 2010, and the right to request time off for training was due to be extended to all businesses from 6th April 2011.

Following a consultation, the Government has confirmed that the right will not be extended as planned, so that the potential impact upon small businesses can be investigated further.

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Conservatives Criticised for Internship Auction

The Conservative Party was heavily criticised after hosting an auction of internships at its annual Black and White party. 900 supporters of the party paid at least £400 each to attend the party, at which internships at leading companies were auctioned off for an average of £3000.

Internships are an increasingly contentious way of getting a step in the door of businesses, and they have become more popular during the recession. Desperate graduates often spend several months working for free, in exchange for a chance of a paid job at the end of it.

Unfortunately the only people who tend to be able to afford a spell as an intern are those who have

wealthy parents who can pay the accommodation, transport and general living costs incurred during

the internship. The reality is that most graduates simply cannot afford to work for free, leading to

claims that the best jobs will only be available to privileged children of the wealthy.

On the other hand, most business owners would jump at the chance to have well educated staff

working for free. During difficult economic times, it makes financial sense to use cost effective recruitment

methods.

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Managers on the Drink!

An Office for National Statistics’ Lifestyle Survey has revealed that managers drink more than those

in manual occupations. Managers drink an average of 13.5 units of alcohol each week, whilst

manual staff drink an average of 10.7 units per week.

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No Boardroom Quotas Required

Lord Davies, the former banker chairing an enquiry into gender equality in the boardroom, has indicated that businesses will not be bound by quotas stipulating how many women should be on their boards.

As business owners breathe a sigh of relief , this is a welcome indication of the trend towards reducing the red tape  businesses are forced to negotiate. The introduction of quotas would have forced businesses to ensure a minimum percentage of women on boards.

However, the decision is likely to disappoint female managers. Research carried out by the Institute of Leadership and Management  (ILM) found that half of female managers think board room quotas should be introduced and almost 75% of women managerial roles believe a glass ceiling exists which will prevent them from reaching their full potential.

Board room gender quotas have been introduced in Norway, France and Spain, and the European Commission is considering the introduction of mandatory targets. However, UK business groups remain very resistant to these quotas.

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