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.


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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.”

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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.

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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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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.

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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.

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