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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Empire HR Business Breakfast: Using Video for Business

Empire HR Seminar: An Introduction to The Emotional Capital Report

Walk of Shame

A UK business owner who caught an employee stealing has been charged with false imprisonment after forcing an employee to walk through a town with a sign around his neck saying 'Thief. I stole £845'.

Free Food Leads to Claim

An employee in Brazil has won a claim against McDonald's on the grounds that the free meals given out whilst he was at work made him fat. McDonald's gave the employee a free meal during each shift, and the employee claims this was the reason behind his 4 stone weight gain during his 12 year career. The employee also claimed that he felt obliged to taste all the food every day to ensure its quality. He won £10,000 in compensation. Needless to say, McDonald's are appealing the decision.

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Costly Sleepwalking

An employee has won a massive payout after his employer issued a defamatory press release about him. He has been awarded £.8.5 million in compensation. The sleepwalker appeared at the hotel bedroom door of a colleague on three occasions whilst on a business trip in Mozambique. His employer took the decision to issue a press release stating that he had been asked to resign following an 'incident'. The court held that the statement implied that he had made inappropriate advances to the colleague when in fact, he had made no attempt to enter the room.

INCREASE IN QUALIFYING TIME FOR UNFAIR DISMISSAL!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Bank Holiday Update

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

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

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

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

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

A similar situation arose with the extra public holiday granted for the millennium. At the time a tribunal case considered contractual rights to holiday entitlement and ruled that unless it was clearly stated in the contract of employment, the employee would not be granted an additional day's pay.

Many contracts of employment state an employee is entitled to a fixed number of public holidays. Anyone who has a fixed number of public holidays written into their contract will not be entitled to the additional day off. As a result, anyone wishing to take the day off will have to book the day in accordance with the annual leave policy. Only employees whose contracts state that they are entitled to all public holidays would be entitled to the extra day off.

Retirement Outrage at Longleat

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

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

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

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

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

Data Protection Fines

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

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

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

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

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

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

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

Whistleblowing Reminder

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

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

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

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

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

Food and Drink Manufacturing Injury Statistics

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

Builder Prosecuted for Ignoring Health and Safety Rules

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

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

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

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

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

HSE Inspector Alan Pojur said:

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