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HR Update - Changes to Maternity Benefits

Last Modified on: 2008/04/16 12:05
Last Reviewed on: 2008/04/16 12:10

Welcome to April’s HR Update
1. Changes to Maternity Benefits
2. Grievances raised during disciplinary action
3. Limited investigation is required when misconduct is admitted

1.  Changes to Maternity Benefits

Maternity benefit eligibility, particularly during Additional Maternity Leave (AML), has traditionally been a minefield for HR professionals.  Are mothers on AML entitled to performance related bonuses? Should they keep their Company Car?
To clarify the situation and bring the UK into line with EU requirements, legislation regarding pay and benefits during maternity leave will change for expectant mothers whose expected week of childbirth falls on or after 5th October 2008 giving women the same rights in the additional second six months of maternity leave as in the first six months.

The current situation: During the first 26 weeks of Maternity leave (OML) employees are entitled to all of the contractual rights (such as pension or holidays) that she would have received if she had not been on leave. These include any special rights in your job contract such as company car or mobile phones (unless these are specifically for business use only).   During the second 26 weeks, additional maternity leave, contractual rights to benefits such as pensions, car allowances and healthcare are suspended.  Rights to the accrual of statutory holiday still apply.

The situation after 5th October 2008: The new rules, affecting women whose Expected Week of Childbirth (EWC) falls on or after 5 October 2008, will mean that employees will be entitled to their full benefit package throughout both OML and AML with the exception of pension rights.  From October, if some element of company car provision is permitted for personal use, employers must treat the car as a benefit and allow the employee to keep it throughout AML as well as OML. Employers can only take back a company car for the whole maternity leave period if it is provided purely for business use. This rule continues to apply.

If car allowances are paid as a benefit (rather than amalgamated into their salary), this will continue to apply during AML.  Employees should continue to be covered by life assurance and private medical schemes and should continue to benefit from gym memberships and childcare vouchers during AML.  Any discretionary annual/ Christmas bonus or loyalty bonus should also be paid during AML.

The employee will be entitled to her full contractual holiday entitlement for the holiday year even if she is on maternity leave for some or all of it. Ensure that the holiday which the employee receives under her contract of employment meets the minimum statutory threshold under the Working Time Regulations which increase to 28 days in April 2009, as bank holidays do not count as paid holiday under the Regulations.
Pension rights should continue during the paid element of Maternity leave (the first 39 weeks).  Further information and guidance on the above, and in particular, pension provision will appear in the August HR update.

2. Grievances raised during disciplinary action

What happens, if, during the course of a disciplinary, the employee raises a grievance? 

Employees are becoming more and more aware of their rights, including the right of raising a grievance.  And it seems that, although little more than a stalling tactic in most cases, raising a grievance, with a possible appeal, during a disciplinary is becoming increasingly more popular.  As every HR article you read warns of following the correct procedure, which should you follow first, the disciplinary or the grievance procedure?

The ACAS Code of Practice states an employer should consider suspending the disciplinary for a short period in order to deal with the grievance, if the grievance is related to the case.  So the disciplinary process does not need to be suspended.  This is good news. 

However, what happens if you the two are related? There are two courses of action, either suspend the disciplinary and complete the grievance process or secondly, look for a good business justification for continuing with the disciplinary, for example, due to previous abuse of either process.

It is also helpful to make reference and clarify this point within your disciplinary policy. For example, “If, during the course of a disciplinary process, an employee raises a grievance that may be related to the case, the disciplinary investigation may require temporary suspension in order to consider the grievance and proposed resolution.  Whilst suspending the process will be considered, if it serves the needs of the business to proceed, the disciplinary will continue”.

3. Limited investigation required where misconduct was admitted

A recent Employment Appeal Tribunal (EAT) hearing decision has concluded that further investigation is not required when the employee admits to the offence, as long as there had been sufficient investigation for the employer to form a belief as to gross misconduct.

A factory employee had made a racist comment and complaints were subsequently made. The employee fully admitted to making the remarks and eventually he was dismissed. An employment tribunal found his dismissal unfair due to inadequate investigations and dismissal was outside the range of reasonable responses. 

The EAT concluded that the tribunal had been wrong to consider that a reasonable employer could not base its conclusions on the evidence it had. While investigations should be thorough, the overriding principle is that they should be proportionate to the circumstances of the case. 

Update 264 - Employment Law Round-Up

Last Modified on: 2008/03/13 09:46
Last Reviewed on: 2008/03/14 14:37

Full update

HR Update 264 – Employment Law Round-Up

Welcome to March’s HR Update
1. Corporate Manslaughter Act 2007
2. Employer's Liability in suicide cases
2. Discrimination law is for all
3. Agency workers: Employment status decision

1.  Corporate Manslaughter Act 2007

On April 6 2008 the Corporate Manslaughter Act 2007 will come into effect. Companies or organisations whose gross negligence causes the death of an individual, whether he or she is an employee, contractor or customer, will face prosecution for manslaughter. It is not possible under the present law to add up the negligence of several individuals to show the company as grossly negligent. A specific individual has to be identified as a “controlling mind” for corporate manslaughter to be proven.

Under the new Act in force in three weeks time, an organisation is guilty of the offence of corporate manslaughter if the way in which any of the organisation's activities are managed or organised by the “senior managers” a) causes a person's death; and b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.  The offence will be clearly linked to existing health and safety requirements and those who already take their obligations under health and safety law seriously have nothing to fear.

As a result of the new law, all companies, organisations and Government bodies will be affected.  The new law will focus the attention of companies and organisations by ensuring that they take their health and safety obligations seriously.  Companies will incur unlimited fines if they are found to have caused death due to their gross corporate health and safety failures.

Ensure your Health and Safety policies and practices are up to date and you meet the existing health and safety requirements.

2. Employer’s liability in suicide cases.

On a similar subject, there was a ruling last month by the House of Lords regarding employers liability in suicide cases.  It was ruled that the widow of a man who killed himself six years after an accident in the workplace should be compensated by his former employers. 

In 1996, Thomas Corr suffered serious head injury after being hit on the head by a metal panel as a result of defective machinery.  Mr Corr underwent long and painful reconstructive surgery and remained disfigured, suffered persistently from unsteadiness, severe headaches, and had difficulty sleeping.  In addition, Mr Corr became bad tempered and severely depressed, ultimately committing suicide by jumping from a multi-storey car park in May 2002. Mrs Corr went to the High Court in April 2005 to sue for damages for pain and suffering and consequential loss caused by the industrial accident and subsequent suicide.

His employer, IBC Vehicles, admitted liability for the workplace accident, but denied responsibility for the suicide.  The High Court awarded the widow £82,250 after finding IBC could not be held accountable for Mr Corr taking his own life.  That decision was overturned in the Court of Appeal, which found that the employers could be held liable for the suicide.  IBC then appealed to the House of Lords which, on 27 February, confirmed that the company was liable for Mr Corr’s suicide. 

Mr Corr’s illness was deemed to be a direct result of his employer’s negligence: the employer owed Mr Corr a duty of care, and the breach of that duty caused him injury, both physical and psychological. 
Lord Bingham said: 'In the present case Mr Corr's suicide was not a voluntary, informed decision taken by him as an adult of sound mind making and giving effect to a personal decision about his future.  It was the response of a man suffering from a severely depressive illness which impaired his capacity to make reasoned and informed judgments about his future, such illness being, as is accepted, a consequence of the employer's tort.'

3. Discrimination law is for all: Bullied by gay club for being straight

A female bouncer has won her case against a gay nightclub after claiming that she was bullied for being straight.  Sharon Legg used the Employment Equality (Sexual Orientation) Regulations Act 2003 to win her case.  Mrs Legg, a married mother, worked as head of security at a nightclub in Bournemouth.

She claimed that she was subjected on a frequent basis to abuse because she was not a lesbian. She said that fellow door staff refused to obey her instructions and her manager repeatedly called her derogatory names such as “breeder”. She was dismissed without warning last June after a dispute with a colleague.

The tribunal did not find that she was dismissed because she was not gay. However, Mrs Legg was awarded £3,000 for injury to feelings due to harassment and £3,222 for unfair dismissal because the company did not follow proper procedures. 

This is a reminder that discrimination legislation exists to protect all, the majority as well as the minority.  The exception to this is disability legislation which only protects the disabled. It also serves as yet another reminder to always follow the proper procedures.

4.  Agency workers: Employment status decision

James worked for three years for the London Borough of Greenwich, which employed her through one agency then a second agency. She fell ill in 2004 and was absent from work. When she returned she found that her role had been filled by another worker from her agency.

James took a case for unfair dismissal to an employment tribunal. The Council argued that James was not an employee so was not entitled to the rights of an employee.

An employment tribunal said she was not an employee of the Council and dismissed her claim. The EAT agreed that here was no contract of employment between James and the local authority, and that the mere passage of time was not enough to create one.  Ms James appealed.

The Court of Appeal has dismissed her appeal. It said that the original tribunal 'applied the correct test and came to a conclusion on the facts to which it was entitled. The decision was not perverse and the EAT was entirely correct in dismissing the appeal'.

Lord Justice Mummery said that whilst he was sensitive to the problems faced by workers without employment contracts, it was not the job of courts or tribunals to rewrite the law according to their own views. 

The decision gives heart to businesses that increasingly rely on agency workers, as one of the benefits of using agency workers is that their obligation to them is less than it is to staff.

HR Update 263 - Focus on: Handling Redundancy

Last Modified on: 2008/02/06 15:29
Last Reviewed on: 2008/02/21 16:53

HR Update 263 – Focus On: Handling Redundancy

Welcome to February’s HR Update

This month’s feature is Focus On: Handling Redundancies

Redundancy is defined by the law as occurring when an employee is dismissed due to:
• The employer closes the business as a whole
• The employer closes a particular workplace
• The business ceases to require people with the particular skills of the employee or needs fewer of them to carry out the work
Employers' duties and employees' rights in relation to redundancy are covered by a multitude of legislation and case law, dealing with unfair dismissal, consultation, notification, redundancy pay, business transfers and discrimination.
The below Q & A covers procedural issues, obligations, communication, selection and practical concerns.

Q. What are we obligated to do as a Company?
A. The Company must follow a thorough redundancy procedure (see below).  The purpose of the procedure is to seek alternatives before resorting to redundancy. Possibilities include natural wastage, reducing overtime, retraining, reducing hours and redeployment.  The obligation to seek suitable alternative employment extends to associated companies, such as sister companies within a group.
For those at risk of redundancy, the company must allow time off for job hunting and it is helpful to run workshops on CV writing and interview techniques.
Q. What is the redundancy procedure?
A. Face-to-face meetings with individuals facing redundancy are critical. Managers should be trained and prepared for a variety of reactions. Meetings should be rigorously planned, handled sensitively and professionally. Further meetings will be needed to reassure, advise and guide individuals. Make sure minutes are taken and the following points are covered:
a) Explain the business reasons for the redundancy programme.
b) Explain why their roles may become redundant (and that employees are in a ‘pool’ if their roles are not unique, if appropriate).
c) Give them details of the selection criteria against which they will be assessed.
d) Offer them the opportunity to provide their own comments on themselves against the criteria – give them a deadline of 2 or 3 days to provide this.
e) Inform them about any alternative employment options - managers should have a list of vacancies to give to the employee
f) Ask the employee if he / she understands why their job may be made redundant and what the options are – make sure they know how to apply for any alternative roles that may exist.
g) Ask the employees to come up with an alternative business option other than making the roles redundant.
h) Provide details of the possible redundancy package – managers should have details of this package ready to give to employees.  Stress that at this stage it is only indicative, as no formal decision on selection has yet been made.
i) Tell them when they will be told whether they have been selected for redundancy.
j) Advise them that this is the beginning of the Consultation Period and how long this period will last for– we recommend a minimum period of one month.  Note any requirement for statutory consultation based on numbers of employees being made redundant may increase this period.
k) During this time the employees can consider their options. If at the end of the period employees have decided not to apply for another role (or has been unsuccessful in obtaining one) and have not thought of an alternative option other for the business other than making the role redundant, they will leave the business.
l) Advise them that you will arrange another meeting with them in 1-2 weeks time to find out how they are and if they have made any decisions about their options or have any suggestions or alternatives. Employees may wish to bring a representative along to the meeting just for support.
m) Tell them that at the end of the Consultation Period you meet them again, you will explain the process to them and their options.
n) Give the employees a letter which confirms all the above points and stating when the next meeting will be and when the final decision will be made. Attach a document to explain the selection criteria and any weighting factors used, if appropriate.
o) It is also very important to remember to follow the modified dismissal procedure at the end of the consultation.  This involves inviting the person to a meeting, giving the reasons for the dismissal with the right to be accompanied, then to have the meeting and then confirm the outcome in writing.

Q. How and when should we communicate proposed redundancies?
A. In the eyes of many staff, a failure to communicate early enough can be seen to be a lack of trust or confidence in them - it's therefore potentially personal and insulting to them. The business reasons for late communication are rarely understood by staff, so don't try to justify it to them. Don’t expect staff to understand your business reasons for redundancy for, even if they do, their priority is to protect themselves and their families.
Ensure that employees likely to be affected are consulted at every possible stage before redundancy. Consultation means discussing the pending redundancies and inviting representations from staff before any selection for redundancy is made.  Penalties for failing to consult with staff are severe. To protect your business you must refrain from giving any indication that a decision has been made until after consultation has taken place.

Once all affected employees have been spoken to about their positions being made redundant it is advisable to issue a communication to the business as a whole. This is important as it enables the Company to explain the business reasons for the redundancy programme to everyone. The communication need not specify which specific roles are affected but should make clear that any individual whose role is affected has been spoken to. This will help to allay fears that anyone else may be vulnerable.

Q. How do we decide who should be made redundant?
A. Where more than one employee currently holds a certain post in a store, these employees need to be “pooled” and measured against a set of predetermined selection criteria. This allows for objective selection as to which role will remain and which will be made redundant.   If you do not have a published selection criteria then you may wish to consider the following indicators:

(a) Performance, including as component features job expertise, experience, approach to work, flexibility and quality of work.
(b) Attendance record (with regards to the Disability Discrimination Act).
(c) Disciplinary record.
(d) Qualifications.
(e) Overall manning levels of categories/grades required by the business.
(f) Any other identifiable, specific and relevant factors.
(g) Economic factors (e.g., salary cost, etc.).
You should always seek to apply the selection criteria on an objective and fair basis and you must then consult all the personnel within the pool.
Check current Company Redundancy policy and procedures. A Tribunal would check to see if procedures, no matter how extensive, have been followed since this is what employees have previously been informed would happen.

Q. Does the employee have a right of appeal?

A.  Yes, the Dispute Resolution procedures require the Right of Appeal to be made available to any employee who has been dismissed. This includes employees who have been dismissed on grounds of Redundancy. The procedure is similar to that followed for the Disciplinary Process. Employees have a number of days to appeal (check your policy) in writing against the dismissal decision.

The above structure forms a major part of the whole Redundancy Process but is not intended to be a comprehensive checklist. The information is provided as an aid and further discussion would be required to explore issues that are specific to your Company.

HR Update 262 - The Grief of Grievances

Last Modified on: 2008/01/09 15:16
Last Reviewed on: 2008/01/09 15:53

Welcome to January’s HR Update

This month’s feature is The Grief of Grievances……

The Statutory Grievance procedure, which came into force in October 2004, was expected to improve the soaring workload, and costs, of Employment Tribunals.  Why?  Because if any potential claimant hasn’t first put their complaint in writing to their employer, the Tribunal has to reject the claim.  Good news?  Not entirely.  In several cases following the introduction of the new statutory procedure, it seemed that Tribunals were reluctant to throw out cases unless the claimant had made absolutely no attempt at all to complain to their employer, meaning that a solicitor’s letter, a resignation letter or even an informal email could be sufficient to trigger the grievance procedure.  And not all employers were aware this was the case and found themselves at the wrong end of a Tribunal judgement.  One example of this was Stewart v Barnetts Motor Group Ltd in which Barnetts sold its business to Arnold Clark Automobiles (ACA), which proposed to appoint a different General Manager. There was, according to Stewart, no consultation or discussion with him about the proposal, so he resigned.

Stewart's solicitors wrote a letter to ACA, which was marked 'without prejudice'. It detailed the ways in which it was alleged that ACA had breached Stewart's contract of employment and quantified his potential claims. The claims were refuted and Stewart presented his complaints to the tribunal.   The ET and EAT confirmed the tribunal's decision and held that:
• a claimant's grievance can be set out in a letter of claim
• the letter does not have to contain the word 'grievance' or spell out that a grievance procedure is being invoked
• a 'grievance' can be sent by a solicitor instructed by a claimant
• the fact that a letter is marked 'without prejudice' will not prevent it from being a grievance for the purposes of the statutory grievance procedure.

It has become clear that the use of the word “grievance” is not necessary to trigger the grievance procedure.  Employers should treat any written complaint which identifies a potential Tribunal claim, whether its from the employee, solicitor or other representative, and treat it in accordance with the grievance procedure and deal with it promptly. Ideally managers should be well trained in dealing with this aspect of Company Policy and be able to identify problems at the outset and deal with them before a grievance is raised or an employee resigns and claims constructive dismissal.
It is essential that employers follow the statutory grievance procedure. Failure to do so can result in a 10% to 50% increase in compensation for a successful claimant.

Frequently Asked Questions
Q. What is the process that should be followed?
A. The process, which should be detailed in the Employee Handbook, should follow the stages below:
STAGE 1
The employee should raise the grievance with their immediate manager who, through informal discussion, will attempt to resolve the matter within 5 working days.
During the informal discussion the employee:
• may be accompanied by a colleague or trade union official if he/she wishes
• will be advised of the Grievance Procedure by the Supervisor/Manager
• will be given the opportunity to fully discuss their grievance
The manager is responsible for establishing and recording the facts covered at the discussion and for producing a written record of the outcome.

STAGE 2
If the matter is not satisfactorily resolved at Stage 1, the employee should write to the next level of management detailing the nature of the grievance.  The matter will be investigated and a meeting arranged within 5 working days of the written request being received, unless working conditions make this impracticable; in which case the Grievance will be heard as soon as possible.
The Grievance Appeal will be heard in the presence of:-
• the relevant Manager/Director
• the employee
• a work colleague or trade union official of their choice, if the employee so wishes.
The Manager/Director is responsible for producing a written record of the content and outcome of the meeting and for issuing copies to all concerned.

STAGE 3
If the employee is still not satisfied with the decision taken at Stage 2, he/she should write to the relevant Appeals Manager (typically a Director/Board Director) fully detailing the nature of the grievance.  A meeting will be arranged within 5 working days of receipt of the written notification, unless working conditions make this impracticable; in which case the Grievance will be heard as soon as possible.
The Final Appeal will be heard in the presence of:-
• the relevant Director/Board Director
• the employee
• a work colleague or trade union official of their choice, if the employee so wishes
• a note taker
The Director/Board Director shall formally reply in writing to the employee within 7 days of the Grievance meeting detailing the outcome.  The decision notified shall be final.

Q. What if an employee raises a grievance during the disciplinary process?
A. It's good practice to call a halt to the hearing until the grievance is dealt with.

Q. What if the employee or their companion can’t attend the meeting?
A. The employee should be given reasonable notice of a hearing, which must be postponed if the employee or his companion are unavailable at the suggested time. Full minutes should be taken and the chairperson should make every effort to be impartial.

Q. What if the employee leaves?  Can they still raise a grievance?
A. Grievances may also be raised by ex-employees after their employment has ended. In this case, the grievance procedure will continue to apply, unless both parties agree in writing that a modified form of grievance procedure will apply instead.  However, if the complaint relates to the employees dissatisfaction with a dismissal decision, they should not invoke the grievance procedure but should instead appeal against that decision in accordance with the appeal procedure.
Tips for Handling Grievances for Managers
• Initial attempts should always be made to settle the grievance informally
• Ensure you’re familiar with the procedure and follow it carefully
• The Manager should invite the employee to a meeting to discuss the matter, informing the employee of their right to be accompanied
• Hold the hearing in private without interruptions
•  Have a note taker present to record proceedings
• The employee must be given every opportunity to have their say at the meeting
• Listen carefully to the person's explanation of the problem and consider whether there is a deeper issue which might be the root cause
• A thorough investigation should be conducted in order to discover the facts of the case
• Weigh up all the evidence to see whether there is an issue you need to address
• Inform all concerned parties of the decision and the appeal process
• Ensure you resolve any problems relating to policies, procedures or conduct where the grievance procedure highlights these
• Deal with it sensitively and as confidentially as possible, particularly where they concern other workers.
• Often the meeting is adjourned before a final decision is made and the results may be given verbally during the second meeting, and followed up in writing in a letter together with the right of appeal
• Where an employee appeals, wherever possible a more senior manager should handle the appeal
• An invitation to attend an appeal hearing should remind the employee of their right to be accompanied
• The manager should give their written response to the employee after the appeal and inform them that it is the final stage in the procedure
• Written records should be kept for future reference

New HR Update - 261 - Avoiding the pitfalls of the Christmas party

Last Modified on: 2007/11/29 11:47
Last Reviewed on: 2007/12/03 15:58

Welcome to December’s HR Update

This months features:

1. Avoiding the pitfalls of the Christmas party
2. Prolific litigant – beware!
3. Alcohol abuse in the workplace

1. Avoiding the pitfalls of the Christmas party

Christmas parties are rife with potential problems for employers, from drunken flings, violence between colleagues, unwanted sexual advances to the legendary misuse of photocopiers…..the list is endless.  Furthermore, the advent of the smoking ban, age discrimination regulations and 24-hour drinking laws has brought further cause for concern for employers when planning the usual festivities.

A recent survey reports the problems with Christmas parties are more common than you may think:
• 50% of parties end up with colleagues fighting
• 33% involve incidents of sexual harassment
• 20% involve accidents

So, is it worth all the bother?  To do away with the annual event altogether may cause its own problems but there are some simple proactive measures employers can take to reduce the risk of problems associated with the Christmas party:

 Ensure disciplinary procedures are in place and communicated so that employees are aware that they still apply during social events. Advise staff that you want them to have fun but communicate what constitutes unacceptable behaviour and that any such behaviour will be addressed formally under the disciplinary procedure.
 Consider warning staff beforehand that unauthorised absence the day after the event may be treated as a disciplinary issue
 Encourage managers to limit their own consumption of alcohol, in order to keep a clear eye on proceedings and set a good example
 Consider limiting the volume of alcohol available – many people get carried away when free drinks are involved
 Consider the age make-up of your staff when organising the music.  A selection of music from different decades will include all ages of your workforce.
 Advise managers not to discuss or promise promotions or salary increases for their staff. Remember, work social events are an extension of the workplace.
 If possible, hold the party before a non-working day, but if this isn’t possible inform staff that they should be fit to attend work the next day.
 Don’t put up mistletoe. Party flings can strain the workplace environment so it can be a good idea to outline a policy on relationships at work.
 Take care to avoid disadvantaging anyone whose religion forbids alcohol by ensuring plenty of non-alcoholic alternatives. Remember that employees of certain religious beliefs may be vegetarian or unable to eat certain foods, such as pork or beef. Ask beforehand about any special dietary requirements, so that these can be accommodated.

2.  Prolific litigant – beware!

A university lecturer has collected nearly £200,000 from Tribunal payouts following a raft of vexatious claims against universities across the UK.  Suresh Deman brought at least 40 claims to tribunal claiming discrimination.  The Attorney General last year declared him a “vexatious litigant” and banned him from bringing further claims.

However, Mr Deman is back in court again, claiming discrimination, this time in a court in Northern Ireland because the province has a separate judicial body.  In this latest case, he is claiming race, religious, sexual and political discrimination.  Mr Deman applied for over 1,000 academic posts, both in his name, and in the name of “Phil White”, a non Asian name….this case serves as yet another reminder for employers to ensure they have a structured method of shortlisting candidates for vacancies.

The cost to the tax payer has climbed to an estimated £1 million.

3. Alcohol abuse in the workplace

Are you concerned that one of your employees is reporting for work under the influence of alcohol?  If you are, you’re not alone as a recent survey as discovered an increase in the number of employers testing for alcohol abuse.  Inappropriate alcohol consumption can lead to serious workplace hazards and put employers at risk of:
• Serious safety risks (where staff operate machinery)
• Absenteeism and sickness
• Poor customer service causing damage to the company’s reputation
• Lower productivity

If you suspect that a staff member’s alcohol consumption is impacting on their work, it’s a good idea to confidentially record any hangovers they have, their sickness, reduced productivity and customer complaints.
If you suspect someone of being drunk or incapable of work through use of alcohol, have a signed assessment made by at least two managers or supervisors. Record any evidence of:
• inability to walk straight
• slurred speech
• difficulty focussing
• alcohol on their breath
You do not need a medical examination or breathalyser test. The well founded assessment of two people is sufficient evidence on which you can discipline someone for being unfit for work due to the influence of alcohol.  If you suspect that the employee is in possession of alcohol, then as long as you have a right to search clause in your employment agreement, you may search his or her belongings.
It is advisable to provide reasonable assistance to the member of staff with an alcohol abuse problem who is willing to co-operate in treatment for that problem.   It is also advisable to have in place a Drug and Alcohol Abuse Policy.

HR Update 260 - Employer's Responsibilities for Company Vehicles

Last Modified on: 2007/11/05 11:55
Last Reviewed on: 2007/11/05 16:20

This months features:

1. Reminder: Increase in holiday entitlement
2. Asleep at the Wheel: How liable are you as an employer?
3. Blogging: Minimising damage to productivity & reputation
4. Employment Tribunal Stats at a glance

1. REMINDER: Changes to Statutory Holiday Entitlement come into force

From 1st October 2007 statutory holiday entitlement has increased to 4.8 weeks ( 24 days per annum, including bank holidays). 

For more information on the changes and how to calculation of holiday entitlement during the transitional period refer to /hrguide/article.asp?section=9&article=138.

2. Asleep at the Wheel – Employer Responsibilities

Is a company liable for injuries when an employee has an accident whilst driving on company business? Under new legislation, employers who fail to ensure their staff drive safely could face prosecution for crashes involving company cars. The Corporate Manslaughter Act, which comes into force in April, places more responsibility on employers to ensure the safety of their drivers particularly in light 1,000 fatal car crashes involving company vehicles last year.

From April, employers should be checking the validity of MOTs, insurance and driving licenses, and not placing unreasonable demands on staff in terms of long hours which could make them drive when tired.

In a recent case, Eyres was employed by Atkinsons. One night returning from having worked a 19 hour day he crashed his van. He was not wearing a seat belt and he suffered severe injuries. With him in the van was the Managing Director of Atkinsons who was asleep. As Eyres was driving he read and sent a number of texts whilst on his mobile telephone.

Eyres claimed that his employer was liable in negligence, because the company had caused or permitted him to drive when he was too tired and having made him work excessive hours without a break. The High Court had found that Eyres had not been paying attention and caused the accident by using his mobile telephone rather than through his tiredness.

The Court of Appeal overturned that ruling. It concluded that Eyres had fallen asleep so causing the accident. It found that his employer did encourage long hours and had been negligent by requiring him to drive in such circumstances. It had failed properly to protect his safety and guard against accidents.

This case highlights the need for employers to have effective company car policies in place and to balance demands of the business and the health and safety risk to its employees who drive on business. If yours is a long hours culture and employees are pressured into driving without a break, you could be liable.  Make sure schedules are realistic and that breaks are taken.

3. Blogging: Minimising damage to productivity

According to one survey, the explosion of social networking sites, such as Facebook and My Space, are currently costing employers £30.8 billion in lost productivity. 

Many employers allow their employees some flexibility on internet access for private use. But there comes a point when the amount of time spent on this activity, or its content, goes beyond acceptable boundaries.
For this reason, employers should have a clear policy, communicated to all employees, which states:
• when employees can use the internet for private purposes at work (for example, at any time, only at lunchtimes, after work)
• what sort of internet activity is permitted or banned (for example, short emails may be acceptable, but lengthy sessions spent blogging or socialising on websites are not)
• that the employer may block employee access to unauthorised sites
• that the employer may introduce a proportionate level of monitoring of employee internet use to protect legitimate business interests
• the likely sanctions for breaches of the policy

Right to Privacy?
Claimants’ lawyers get carried away talking about invasions of employee privacy, yet it’s the claimant that was using their employer’s equipment and internet connection for private purposes. Employers are legally entitled to put restrictions on employees’ private use of the employer’s equipment and internet connection, both in terms of how much they use it and to what purpose. Some employers increase restrictions on private internet use during core working hours by blocking certain sites electronically. Employees may argue that if they are allowed to talk at work to colleagues and friends about social matters, what’s so different about doing this via the web? In a way, this is true: a blog or social networking site is only another vehicle for communication, albeit a public one. It is best to treat this in the same way as one would an employee who spends too much time chatting in the coffee room or on the phone to friends during working hours.
Employers should understand that socialising in cyberspace is now commonplace, particularly among younger employees. Most employers accept that employees will contact their friends while at work, whether by phone or email. Using blogs and social networking sites is simply an extension of this behaviour. It is when employees abuse this facility that employers need to take action. In many cases it is a question of managing employee expectations and having a clear and balanced policy of which all employees are aware.
Damaging comments
Of course, employers cannot restrict employees’ private use of the internet and access to blogging sites outside working hours, particularly if they are using their own computers and internet connection. Employers normally have no business interest to protect in that context in any case. The only area where they may have a right to intervene is where employees say things on a website that are potentially damaging to the employer’s reputation. This might be a general moan about a specific manager, or the employer’s culture, or its recent actions, or the work environment. Depending on the content, these can seriously damage an employer’s reputation, for example, as a decent organisation to work for.
An employer could start legal proceedings for defamation or malicious falsehood, but the problem of identifying the culprits often remains. Even if they can be identified, those posting the remarks on the web may have a defence of justification or fair comment if what they are saying is true. If the writers can be identified and the material lodged does genuinely cause reputational harm, then the employer may have a case. But proving financial loss may be difficult and a restraining order from the court may be the only effective remedy. From a practical perspective, unless the reputational damage is severe, starting legal action may only highlight the issue raised on the website.
Non-confidential information
Disgruntled employees are using blogs and social networking sites increasingly as vehicles for outpouring their discontent with life at work. This is a tricky legal area – in many cases the comments do not constitute confidential information and an employment tribunal may decide that dismissal for making derogatory comments about an employer on a website is not justified.
The fact that an employer has a clear rule forbidding its employees from making derogatory comments about it is by no means conclusive.
Tribunals will take into account a number of other factors including:
• the context of the comments
 • whether the comments are justified
• the employee’s right to freedom of expression
• the likely damage to the employer’s reputation
Quite often the derogatory comments are sent in anonymously and phrased so that the company is not identifiable to most people. In this situation it is difficult for an employer to claim damage to its reputation with much credibility.
In practice, it will be difficult for an employer to take effective action against an employee’s off-duty blogging unless the text in question is damaging, the organisation is identified, and the employer can show a real likelihood that its reputation will suffer as a result. Whether the employee’s grumbles have some substance, or are just malevolent, is also relevant and may be taken into account by a court.
Confidential information
Where an employer can show that information on a blog is confidential, it can take action against the employee – assuming it can identify the blogger. The fact that the information has been made public does not necessarily destroy its confidential status – the information still belongs to the employer. It is advisable that employment contracts expressly preserve confidentiality so the employer’s information is protected and employees understand the consequences of unauthorised disclosure into the public domain.
Source: PM Online

4. Employment Tribunals – facts

Delving further into the recently published Employment Tribunal Statistics from 2006-07 show most cases never reach hearing stage…..
• 31% are withdrawn at an early stage
• 24% are settled with the help of ACAS
• 21% are struck out before they are heard or dismissed at a preliminary hearing

But beware, those that do make it are twice as likely to be found in favour of the claimant:
12% are found in favour of the claimant
6% are found in favour of the employer

HR Update 259 Legal Update: October Changes / Case Law Update: Dismissal

Last Modified on: 2007/09/26 14:42
Last Reviewed on: 2008/02/21 16:52

HR Update 259 - Legal Update: October changes / Case Law Update: Fair Dismissals

October 2007 does not bring about as much change as we have seen in recent years, in summary the changes are as follows:

• Increase in National Minimum Wage – Adults £5.52 per hour
• Increase in Statutory Holiday Entitlement – Statutory Minimum 24 days
• Flexible Working (Eligibility, Complaints and Remedies) (Amendment) (No 2) Regulations 2007 – Including Out of country placement agencies as well as adding private foster carer, and the spouse, partner and civil partner of a private foster carer, to the list of those people who are entitled to request a contract variation to care for a child
• Equality Act 2006 (Dissolution of Commissions and Consequential and Transitional Provisions) Order 2007 - the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission have been disbanded to establish the Commission for Equality and Human Rights
• Data Protection Act 1998 comes fully into force – requiring full compliance from Manual filing systems in existence before 24 October 1998.

Changes to Statutory Holiday Entitlement

• 1st October 2007 statutory holiday entitlement will rise to 4.8 weeks (24 days p/a)
• 1st April 2009 statutory holiday entitlement will rise to 5.6 weeks (28 days p/a)

Recent Statistics show that on average Companies give 24.6 days per annum.

For more information on the changes and how to calculation of holiday entitlement during the transitional period refer to HR – Update 251.

Case Update – Successful appeals to unfair dismissal claims

1. Unfair Dismissal – Clarification on evidence required for Malingering
2. Statutory Dismissal Procedures – Confirmation that a verbal right of appeal is sufficient, and explanations on causes of uplifts to awards
3. Fairly dismissing an Employee on work related stress

1. Unfair Dismissal Investigations

Corus UK Ltd v Mainwaring

In the Corus UK Ltd v Mainwaring judgement, where an employee was accused of malingering, two obligations were highlighted when conducting investigations which are worth noting:

• there is no obligation to take a statement from the person who 'tips-off' the employer about possible malingering, if the employer then relies on medical/video evidence (rather than the original statement) when dismissing
• there is no obligation to seek a report on malingering from a consultant - an occupational health physician will suffice

Source: Daniel Barnett

2. Statutory Dismissal Procedures

Aptuit Ltd v Kennedy

In Aptuit Ltd v Kennedy the EAT held that the right of appeal may be given verbally, it does not need to be in writing.

It also overturned an uplift of 40% which the Employment Tribunal had ordered due to factors such as lack of consultation and poor treatment of the employee. The EAT stated that these were all irrelevant factors in calculating the uplift. The rules regarding an uplift are that uplifts are applied only when employers have failed to follow the Statutory procedure..

Source: Daniel Barnett

3. Fairly dismissing an employee for work related stress

McAdie v Royal Bank of Scotland

The Royal Bank of Scotland has won its appeal against an Employment Tribunal decision that it had unfairly dismissed Mrs McAdie for incapacity. 

Mrs McAdie, following un unwanted office move, complained that her manager was harassing her and submitted a formal grievance. The grievance was badly handed (delayed and incomplete) and was not upheld.

After numerous attempts to bring Mrs McAdie back to work over the year that she was off sick, she was dismissed for incapacity. Medical evidence was unequivocal that there was no prospect of her ever returning to work.

The Tribunal held that the dismissal was unfair simply because the illness had been caused by the employers’ unreasonable behaviour. The EAT held that this was an error of law - if that were the law it would mean that in such cases employers would be obliged to retain indefinitely employees who were incapable of any useful work. The proper approach was to decided whether the Bank had acted reasonably based on what they knew at the time, and for that purpose they should not need to look at what caused the illness, and that the handling of the grievance was regrettable, rather that there was no possibility of employment continuing, and no alternative to dismissal.

The EAT allowed the Bank's appeal and suggested that in such cases it may be necessary to go the extra mile in finding alternative employment for the employee, or put up with a longer period of absence than might otherwise be reasonable.

HR Update 258 - Defining 'Personal' Data and Rising Employment Tribunal Cases

Last Modified on: 2007/09/06 11:42
Last Reviewed on: 2007/10/03 16:30

September’s Issue

1. Defining what constitutes Personal Information
2. Rising Emplolyment Tribunal Statistics
3. Carbon footprints save you money
4. Online reward cards

1. Data protection: what is 'personal information'?

For the most part, personal data should be obvious. For those tough categories, the Information Commissioner has published a document to help data protection practitioners decide whether data falls within the definition of personal data in circumstances where this is not obvious.

The guidance note explains that names alone aren’t always enough to identify someone, and descriptions without names are often plenty to identify someone.  

Of particular interest is knowing how “associated” records can identify an individual.

Click here to view the new 21-page technical guidance note, 'Determining what is personal data'

The new guidance says that they will soon also be producing new guidance on the meaning of 'relevant filing system'.

2. Employment Tribunal Statistics

The number of cases brought to employment tribunals in 2006/07 rose by 15 per cent from 115,039 to 132,577 according to figures published by the Tribunals Service this week.
The number of cases disposed of during 2006-07 also rose, by 19 per cent, from 86,083 to 102,597.
With the exception of race discrimination, all showed an upwards trend, with equal pay claims showing a 155 per cent increase on 2005-06.

The figures also show that:

• there was a 26 per cent increase in multiple cases ( more than one person bringing a case against the same employer for the same or very similar reasons) and a 3 per cent rise in single cases;
• multiple cases made up 60 per cent of all cases received.
  Of the 238,546 jurisdictions lodged in total in 06/07:
• 972 were age discrimination claims;
• 44,013 were equal pay claims;
• 44,491 were claims for unfair dismissal;
• 28,153 were claims for sex discrimination;
• 3,780 were for race discrimination;
• 5,533 were for disability discrimination.

Interestingly 8% of submitted claims were rejected. Of those, about one-third were resubmitted and accepted and The Employment Appeal Tribunal heard 432 cases at a full hearing in 2006-07, a decrease of 22 per cent on the year before.

Jeanne Spinks, chief operating officers at the Tribunals Service, commented: 'The significant reason for the increase in employment tribunal cases in 2006-07 is a 155 per cent increase in equal pay claims. We have set up two dedicated teams to process equal pay cases from NHS staff and have been working closely with our judiciary to ensure that all equal pay claims are progressed as efficiently as possible.

'Despite an overall increase in cases this year, we have also managed to reduce the waiting times for single cases appearing before employment tribunals.

'During 2006-07, the Tribunals Service also piloted an early dispute resolution scheme in a number of our employment tribunals and we have worked closely with the new Department of Business, Enterprise & Regulatory Reform on their plans to revise employment dispute resolution procedures.'

The rise in claimed lodged continues despite the implementation of statutory dispute regulations. Our regular readers will also note that the government has already begun consulting the scrapping the 2004 dispute regulations. Click here to read HR Update 257 and other previous issues.

3. Sky on the ground with Carbon Footprint savings for staff

Sky are another large organisation offering employees the opportunity to calculate their carbon footprint and pay this back to the environment through a salary sacrifice scheme. Their money, deducted before tax and NI, is used to buy up Carbon credits limiting the number of available carbon credits to big powerhouses and carbon emitters.

The scheme is run through Pure and is seen as an employee benefit and marketed to staff as a way to be more socially responsible.

Our regular readers will remember that British Gas has successfully introduced this scheme in the past.

4. Reward cards – online everything

With the rise in online benefits if is not surprising to see an increase in the subscription to online reward accounts. Employers can reward their staff by setting up an account with specialist Voucher Companies. These companies offer the facility to reward staff by giving staff vouchers, gift cards, electronic pre-pay debit cards and multi-option gift cards which are not store specific and can be redeemed in 25 000 places.

Reward cards are seen as a more memorable way of rewarding staff as opposed to cash, which is quickly spent and quickly forgotten and allows an employer the flexibility to offer employees with a variety of needs a variety of options.

 

 

HR Update 257 - Strike Action and Possible Repeal of Dispute Regulations

Last Modified on: 2007/08/03 14:30
Last Reviewed on: 2007/08/06 17:27

HR Update 257 – Coca Closer Strikes Cold and Simplification of Employment Law Bill

Welcome to August’s HR Update

This months features:

1. Strike at Coca Cola’s largest Bottling Plant in the world
2. Dyslexia is a Disability
3. Employment Law Regulations Regulate Employment Law

1. Strike at Coca Cola’s largest Bottling Plant in the world

Workers at Coco-Cola's largest bottling and distribution centre in the world went on strike last week after rejecting a below-inflation rate pay rise.

The employees at Wakefield intended to strike for 48 hours and their colleagues at Milton Keynes and Buckingham were to go on strike a day later. All were expected to last until Saturday with uncertainty to the effect on supplies of Coca Cola’s range of soft drinks.

Disagreements between employers and the Unite union escalated after the latter rejected a below inflation-rate pay rise. Around 82 per cent of the workers favoured strike action in a vote.
Unite union said it was 'furious' management offered to improve the 2.5% offer by asking workers to sacrifice overtime rates and bonuses.

'Their hard work has delivered the profits for Coca-Cola Enterprises. Their mortgages, gas bills and council tax have all increased but their pay has fallen flat,” Said Davy Hall, Unite Union’s Regional Offer.

Further strikes are set to be staged on August 13th and 14th.

2. Dyslexic Policeman is Disabled

Patterson V Commisioner of Police for the Metropolis

The EAT overturned a decision which previously ruled the claimant as abled. Where previously the claimant’s (newly diagnosed) diagnosis looked at what he could do and that the impact was relatively small, it was concluded that he was not disabled. Medical evidence suggested that he ought to be given 25% extra time for completion of written and financial literacy.

The EAT overturned this decisions and held that a person who needed 25% longer to complete an examination because of his dyslexia was at a substantial disadvantage to the position if he did not have dyslexia, and he was therefore disabled within the meaning of the Disability Discrimination Act 1995.

It stated that the correct comparison to determine disability is to compare what the claimant can do and can not do as a result of the impairment and not to compare them to the average person in the population. 

Source: Daniel Barnett

3. Employment Law Regulations Regulate Employment Law

The Government has published an Employment Simplification Bill in order to “simplify, clarify and build a stronger enforcement regime for key aspects of employment law.”

One of the key changes is a proposal to repeal (and replace) the Statutory Dispute Regulations. The content of the replacement measures is not yet known.

The bill also covers stronger enforcement of the National Minimum Wage and Employment Agency Standards.

 

HR Update 256 - What's Your Age Again?

Last Modified on: 2007/07/05 12:52
Last Reviewed on: 2007/07/16 15:45

Welcome to July’s HR Update

This months features:

1. No excuse when age is asked for!
2. Responding to requests to work from home?
3. Red Light on EU Green Paper to Modernise Labour Laws

1. No excuse when age is asked for!

Republic of Ireland : Cunningham v BMS Sales Ltd

The Equality Tribunal in Ireland recently found in favour of an applicant in an age discrimination case. Although Irish age discrimination law differs from UK law and this case will not set a precedent in the UK, it will still have persuasive power in UK Tribunals.

The case highlights the danger of asking the age of an applicant when recruiting. By asking the age, a recruitment agency or employer put themselves at risk of being found that this information may play a part in the decision not to represent or appoint the applicant – after all why ask for the information on an application form if you are not going to use it?

Mr Cunningham lied about his age on the agency registration form; he put 37 when he was in fact 47. His reason for doing so was that he felt that this information was irrelevant to the post in question. The agency refused to put him forward for the job as he had lied about his age on the form.

The Equality Tribunal found in favour of Mr Cunningham. Although he had incorrectly stated his age, they found that he had been directly discriminated against on the grounds of his age in relation to the agency’s refusal to put him forward for the job. Mr Cunningham was awarded 5,000 Euros (approximately £3,400) for distress and breach of his rights.

It is recommended that age and date of birth questions be removed from application forms and if appropriate be included on equality monitoring forms. These forms should be anonymous and stored separately from application forms. The information within the forms should not be used for any other purpose than to record equality information.

2. Responding to requests to work from home

Recent changes in flexible working legislation, giving employees the right to request changes in order to care for adults as well as young children, have increased the number of employees who may potentially request a different working pattern.

Requests for home working are becoming more frequent and employers are now being asked to consider this by a wider range of workers. A flexible home working request may be made to suit childcare needs. If an employer refuses such a request, they could run the risk of a sex discrimination claim. Therefore in these cases it is advisable for the employer to be able to justify why are refusing the request and not just give one of the reasons listed under the flexible working legislation.

The availability of more sophisticated technology and communication channels, coupled with the expense in some cases of accommodating all employees within a workplace, has lead more employers to look favourably upon requests for home working. This can work particularly well if the employee does not work from home all week but continues to come into the office for meetings or visit client offices when necessary.

Here we look at the Health and Safety issues involved in home working. This is important as under the Health and Safety at Work Act (HSWA), employers have a duty to protect the health, safety and welfare of all employees, including home workers.

The Act requires employers to do a risk assessment of the work activities carried out by home workers. There are five steps that employers need to take to make sure a proper risk assessment is carried out:

• Identify any hazards: it may be necessary to visit the home workers to do this. Examples of hazards may be loose trailing wires or potentially hazardous substances (which should be kept out of children’s reach).
• Decide who may be harmed and how: who may be affected by the work done at home and how could they be affected; this will include the home worker, other members of the household and visitors.
• Assess the risks and take appropriate action: if a hazard is found that may be a risk to the home worker or anyone else in the house, the employer needs to decide whether the risk is high or low and what steps are needed to reduce or eliminate the risk. The hazard may be removed altogether or steps taken to lower the risk to an acceptable level. Loose wires, for example, provide greater risk of an accident if there are children or vulnerable people in the house. These could be tucked away and secured under a desk to eliminate or significantly reduce this risk.
• Record the findings: Employers with five or more employees, including home workers, are required to record the significant findings from a risk assessment. They need to note what steps have to be taken and tell the home worker about the results.
• Check the risks from time to time and take steps if needed: the employer should check the risk assessment from time to time especially if there is a change in the working procedures.

Using electrical equipment for work at home

If a home worker uses electrical equipment provided by the employer for their work, the employer is responsible for its maintenance. Employers are only responsible for any equipment they supply; electrical sockets and the home workers domestic electrical system are their own responsibility.

There are simple steps that an employer can follow to prevent harm or injury to home workers who use electrical equipment at home, including the following:

• Check the plugs are not damaged
• Check the outer covering of the cable or wire is gripped where it enters the plug or equipment
• Check that the outer cover of the equipment is not damaged in any way.
• Check that leads, wires and cables are not damaged
• Check for burn marks or staining that suggests overheating

Working with VDU’s

Employers have a duty to make sure that the display screen equipment used by home workers is safe and does not affect the user’s health. The following points should be assessed and changes made if appropriate:

• Is the screen clear and readable, and without flicker?
• Is the screen free from glare and reflections?
  
• Are the brightness and contrast controls adjusted to prevent eyestrain?
• Is there suitable lighting so that print can be clearly read on the screen?
• Are the keyboard and VDU placed in a position on the desk to allow the home worker to work comfortably?
• Can the chair be adjusted to the right height so that work can be done comfortably?
• Is there enough space under and around the desk to allow free movement?

Other points to consider:

• Premises used by home workers are subject to the smoking ban now in force if the employee could receive work visitors. No-smoking signs should be displayed and both employer and employee are liable for fines if this is breached.
  
• Home insurance may need to change and both parties should agree who will meet the cost of insuring the employer’s equipment and covering visitor liability.
  
• Contract arrangements and work completion times need to be clear and unambiguous. Employees should still be required to work on site, attend meetings or visit clients/customers as required by the business. There should be a provision to cancel the arrangement if it is not working satisfactorily or the needs of the business change.

Click here for additional information regarding risk assessments 
Click here to access our risk assessment forms

3. Red Light on EU Green Paper to Modernise Labour Laws

UK businesses breathe a sigh of relief as the House of Lords argue against modernising labour laws if it involves bringing in any more restrictions.

The European Parliament wish to modernise Labour Laws to “meet the Challenges of the 21st Century”. The committee said that the relatively light regulation of the UK labour market has led to employment flexiblity, enabling the country to avoid the high unemployment and labour segmentation seen in some EU member states.