Failing to Prevent Bribery - Are You at Risk?

The Bribery Act 2010 came into force on 1 July 2011. It created a new offence which can be committed by a commercial organisation if it fails to prevent persons associated with it from committing bribery on its behalf. A business can provide a defence by showing that it had ‘adequate procedures’ to prevent bribery by such persons from taking place, however. Organisations that have not already done so should ensure they have the necessary prevention procedures in place.

What is deemed to be adequate will depend on the nature, size and complexity of your business. The key point is that to rely on the defence, the measures you adopt must be proportionate in view of the likelihood of bribery occurring – for example, a large firm which operates in overseas markets is likely to be more at risk than a small organisation undertaking business primarily in the UK. You should therefore carry out a risk assessment of the potential that exists for bribery offences to be committed, especially when entering into new business arrangements and new overseas markets.

Where appropriate, due diligence should be carried out so that you know exactly whom you are dealing with, especially when engaging others to represent you in business dealings.

Whatever anti-bribery procedures you do decide are necessary should be seen to have the backing of those at the top of the organisation and the policy should be communicated to staff and others who will perform services for you, with training provided where appropriate, so that it is clear that the business culture is one in which bribery is not tolerated. If the risks you face change, your procedures may cease to be effective, so it is important to make sure these are kept up to date.

Concern has been expressed that spending on hospitality could cause a business to fall foul of the Bribery Act. The position is that you can continue to provide bona fide hospitality and spend money on promotional or other business initiatives provided the expenditure is reasonable and proportionate given the sort of business you are engaged in. The expenditure should be made in order to promote your products or services, improve the image of your business or establish good relations with clients, with no intention of corrupting the independence of the recipient.

The Serious Fraud Office has advised that when considering whether expenditure on corporate hospitality can be considered to be a bribe, it will look at five factors:

1. Whether or not the organisation has issued a clear policy regarding gifts and hospitality;
2. Whether the expenditure in question was compliant with the policy and, if not, whether or not it had been sanctioned at the appropriate level within the organisation;
3. Whether or not the expenditure was proportionate with regard to the status of the recipient;
4. Whether or not the expenditure had been entered in the organisation’s books of account; and
5. The lawfulness of the receipt by the recipient under the laws of his or her own country.

Where an offence under the Act is committed with the consent or connivance of a senior officer of an organisation, that person (as well as the body corporate or partnership) is guilty of the offence and liable to be proceeded against and punished accordingly. The maximum penalty for individuals is 10 years’ imprisonment or an unlimited fine, or both. The maximum penalty for commercial organisations is an unlimited fine.

The Ministry of Justice has published guidance on the Act, including case studies illustrating what approach businesses might take in certain situations.

Damages for Wrongful Dismissal

The Supreme Court has ruled (Edwards v Chesterfield Royal Hospital NHS Foundation Trust) that a consultant surgeon who suffered a loss as a result of findings of personal and professional misconduct made against him in disciplinary proceedings that were conducted in breach of his employment contract cannot seek to recover damages in the ordinary courts for loss suffered as a result of the breach.

Michael Edwards was dismissed for gross professional and personal misconduct following a disciplinary hearing regarding allegations made against him by a patient. His contract of employment contained a clause to the effect that matters of professional misconduct or incompetence would be dealt with under a procedure negotiated and agreed by the Local Negotiation Committee. He contended that the General Medical Council had investigated and dismissed the allegations made against him and had his employer followed the correct disciplinary procedure as laid down in his contract of employment, it too would have exonerated him.

Mr Edwards brought a claim of unfair dismissal to the Employment Tribunal (ET). He then changed his mind and withdrew the claim, deciding instead to pursue a claim through the courts for losses arising from a breach of contract. He was seeking more than £4 million in damages for loss of past and future earnings because he claimed his employer’s actions had ruined his career.

The Court of Appeal had found that the law does not preclude an action for unlimited damages for breach of an express contractual obligation such as the agreed disciplinary procedure in this case. However, in a majority decision the Supreme Court held that dismissal damages could only be recovered where the loss could be said to precede and be independent of any subsequent dismissal. No separate contractual claim is available where the breach of contract relates to the manner of the employee’s dismissal, as was the case here. Unless the employment contract expressly contains agreement to the contrary, the remedy for wrongful dismissal as a result of a breach of disciplinary procedures lies in a claim to the Employment Tribunal under the provisions of the Employment Rights Act 1996. In the Court’s opinion, Parliament could not have intended that where disciplinary procedures have contractual status, any breach could give rise to a common law claim for damages.

This decision will come as a relief to employers as claims that the manner in which a dismissal was carried out was unfair will be dealt with by the ET where the maximum compensation award for unfair dismissal is limited to the statutory cap of £72,300.

Drug Policy - Recognising the Signs and What to Do

Research findings from Medscreen, based on drug testing carried out over the last ten years across a variety of professions, reveal that there has been a 3,000 per cent increase in the number of workers testing positive for cocaine. More than five per cent of workers tested are now failing drug tests.

Any form of substance abuse amongst staff can be costly for a business, resulting in a decrease in productivity and increased absenteeism, as well as increasing the likelihood of accidents and injuries. The failure to identify and deal with a problem is an unnecessary risk for businesses.

The Law
The Misuse of Drugs Act 1971 makes it an offence for any person to permit the production, supply or use of controlled drugs or substances on their premises, unless they have been prescribed by a doctor.

Employers also have a general duty under health and safety legislation to ensure, as far as is reasonably practicable, the health and safety and welfare at work of their employees and to make sure that no one else is put at risk as a result of the work activities of an employee.

Under the Management of Health and Safety at Work Regulations 1999 employers have a duty to assess the risks to the health and safety of their employees. If you knowingly allow an employee to carry on working whilst under the influence of drugs and this puts others at risk, you could be prosecuted.

In addition, health and safety law applies to driving activities as it does to other work activities and the risks must be managed accordingly. Drivers must not be under the influence of drugs while driving, attempting to drive or when they are in charge of a vehicle.

What to Look Out For
Possible signs of drug misuse include:

• impaired performance such as lack of concentration, a tendency to become confused and poor judgement;
• sudden mood changes and unpredictable behaviour;
• poor time-keeping;
• unusual irritability and deteriorating relationships with others;
• lower personal standards – self-neglect;
• increased time off work;
• dishonesty and theft.

There may, of course, be other reasons for such behaviour patterns but it is sensible to consider the possibility that misuse of drugs could be the cause.

What to Do
Even if you are confident that your business does not currently have a problem, drug misuse that affects the workplace is a growing threat. It is advisable to have an agreed, written policy setting out the company’s position.

Employees should be well informed as to the policy and know that it applies to everyone in the company. It should form part of your overall health and safety policy. Make sure you consult with employees and with safety representatives.

The policy should include a definition of drug misuse, have clearly stated aims, name the persons responsible for carrying out the policy and give clear guidelines as to what employees must do to comply with the rules.

If an employee suffers from drug addiction, you should support them, not punish them. Offer them counselling and encourage them to seek voluntary help. Addiction could be viewed as an illness in an unfair dismissal case so disciplinary procedures may not be appropriate. The policy should contain a statement assuring employees that problems will be dealt with in confidence, subject to the provisions of the law. It should, however, be made clear that a breach of the law (for example the possession of or dealing in drugs at work) will be reported to the police immediately. Make clear the circumstances in which disciplinary action will be taken.

It is important to train key staff to be aware of the signs of drug misuse and how to handle the situation sensitively.

Review your policy regularly and check that it is widely understood. If you have a staff handbook, it should contain details of the policy. Make awareness of the policy a part of the induction programme for new employees.

Where it is justified, some employers screen employees for illegal substances as part of their drug policy, particularly in safety critical industries. With the widespread advance in non-intrusive methods of testing, this is likely to become more common. However, this is a very sensitive area because of the legal issues involved and we would recommend you take advice to ensure there is no breach of your employees’ rights. Also, the results of any drug tests must be handled in accordance with the Data Protection Act 1998.

Introducing a drugs policy will constitute a variation of your employees’ contracts of employment so changes should be discussed with them in advance. If you would like advice on this or require assistance drawing up a policy tailored to the needs of your company, we can help.

Disability Discrimination - Duty to Make Reasonable Adjustments

The decision of the Employment Appeal Tribunal (EAT) in Hinsley v Chief Constable of West Mercia Constabulary is a reminder to employers that the Disability Discrimination Act 1995 (now superseded by the Equality Act 2010) requires reasonable adjustments to be made to accommodate the special needs of an employee with a disability and this may entail an element of more favourable treatment where a normal provision, criterion or practice places the employee at a substantial disadvantage compared with those who are not disabled.

Sarah Hinsley began working as a probationary police officer in the West Mercia Constabulary on 20 February 2006. In June 2006, she was diagnosed with thyrotoxicosis and in September of that year she failed a fitness test. Recognising that the condition constituted a disability, her employer allowed her to re-take the test at a later date. She also disliked independent patrol duties, so it was agreed that she be relieved of this task.

On 2 December 2006, Mrs Hinsley expressed a wish to leave the force. Over the next few weeks, West Mercia Constabulary made several attempts to persuade her to reconsider, and tried to accommodate any changes that might encourage her to do so. At one stage, she decided she may have acted in haste and might stay in her job, but then changed her mind and seemed set on leaving.

On 3 January 2007, Mrs Hinsley attended an exit interview. She did not appear to have any health problems at that time and was again given the chance to retract her resignation. She again wavered, but then sent a second letter of resignation and on 17 January 2007 her employment was terminated.

On 26 January 2007, Mrs Hinsley went to see her GP and was diagnosed with depression. On 31 January, she phoned the West Mercia Constabulary personnel department and said that she had been diagnosed with depression and wished to withdraw her resignation and be reinstated. Her decision had been hasty, made whilst she was in a distressed state of mind brought on by her illness. She was advised to put her request in writing, which she did.

After careful consideration, the request was turned down on the ground that there was no provision in the Police Regulations for reinstatement or re-engagement of an ex-office holder once he or she had left the force. Mrs Hinsley brought a claim of disability discrimination on the ground that, in failing to reinstate her, West Mercia Constabulary had failed to make a reasonable adjustment to cater for her special needs.

The Employment Tribunal (ET) found that West Mercia Constabulary had done everything in its power to persuade Mrs Hinsley to stay. Furthermore, there was no provision in the Police Regulations for reinstatement or re-engagement other than through the normal two-year qualifying process and the ET did not consider that to require a Chief Constable to go beyond his statutory and regulatory powers was a reasonable adjustment.

Mrs Hinsley appealed against the ET’s ruling.

In reaching its decision, the EAT drew attention to the decision of the House of Lords in Archibald v Fife Council, which recognised that a reasonable adjustment may require alterations to the normal processes for appointment, recruitment, transfer or even promotion. The EAT considered whether the ET was correct in accepting the Chief Constable’s case that he did not have the power to reappoint Mrs Hinsley. On examination of the Police Regulations, whilst it was true that they contained no express provision catering for reinstatement or re-engagement of an officer who had resigned, there was also no express provision prohibiting this. In the EAT’s view, no such procedural bar therefore existed. It would therefore have been a reasonable adjustment to allow Mrs Hinsley back into the force.

The appeal was therefore upheld and remitted back to the ET to determine the question of remedy.

Current Minimum Wage Rates

Employers are reminded that new National Minimum Wage (NMW) rates came into force on 1 October 2011.

The revised rates are as follows:

• The adult hourly rate of the NMW increased from £5.93 to £6.08;
• The development rate (which covers workers aged 18-20 years) increased from £4.92 to £4.98; and
• The rate for workers aged 16 and 17 increased from £3.64 to £3.68.

The apprentice rate, for apprentices under 19 or those aged 19 or over and in the first year of their apprenticeship, increased from £2.50 to £2.60 per hour.

From 1 October 2011, the accommodation offset rose from £4.61 per day to £4.73.

Following a recommendation from the Low Pay Commission, the Government has issued guidance for employers on the payment of the NMW for interns and those carrying out work experience. Whether or not someone is a worker and is therefore entitled to be paid the NMW depends on the arrangements in place. The guidance includes a new worker checklist and examples of case studies.

Costs Awards in Employment Tribunal Proceedings

Costs orders are the exception, rather than the rule, in Employment Tribunal (ET) proceedings. However, where a claimant acts unreasonably in pursuing a claim, the ET can make a costs award in favour of the other party.

In Dunedin Canmore Housing Association Ltd. v Donaldson, the Employment Appeal Tribunal (EAT), when referring to the circumstances in this case and also those in Daleside Nursing Home Ltd. v Mathew, held that where a claimant does not approach the essential facts of the case honestly and reasonably, the ET has a responsibility to ‘make it clear that it is quite unacceptable to cause expense to another party by bringing proceedings on that basis’.

In a more recent case (Nicolson Highlandwear Ltd. v Nicolson), the Scottish EAT confirmed that the appropriate test for making a costs award is whether or not the claimant acted unreasonably in pursuing their claim, not whether or not they succeeded in any aspect of the claim.

Gordon Nicolson, who had originally been a director of the company, was dismissed from his job as retail manager of Nicolson Highlandwear Ltd., which engaged in wholesaling, retailing and hiring out highland wear, after his employer discovered various financial irregularities and that Mr Nicolson was running his own clothing business from the company premises.

Mr Nicolson brought a claim of unfair dismissal. The company responded that he was guilty of gross misconduct and even if his dismissal was found to be unfair, he should not be awarded compensation.

The ET found that Mr Nicolson had been ‘automatically’ unfairly dismissed because his employer had failed to follow the statutory dismissal procedures in force at that time. However, because his own gross misconduct, which ‘some people might describe prima facie as amounting to fraud’, led directly to his dismissal, no compensation award was made. The ET refused the employer’s application for costs. In its view, Mr Nicolson was entitled to seek a declaration that he had been unfairly dismissed, even though he was denied compensation. Also, the fact that he had won meant that it was reasonable for him to have brought his claim, even though no compensation was awarded.

On appeal, the EAT held that the ET’s decision that Mr Nicolson did not act unreasonably by pursuing a claim in which, even if successful, he was unlikely to recover any compensation, was perverse. There was no basis for the ET’s decision that the fact that he had won his claim showed there could be little merit in the application for costs. Furthermore, the ET was wrong to find that it was open to him to pursue his claim for the purpose of obtaining a declaration that he was unfairly dismissed. When bringing a claim of unfair dismissal, the only options available to a claimant when specifying the remedy they are seeking are (a) reinstatement, (b) re-engagement and compensation or (c) compensation only. In any case, Mr Nicolson had ticked box (c).

Mr Nicolson had admitted that he had behaved dishonestly and the only conclusion open to the ET was that he had acted unreasonably in bringing the claim at all and, having brought it, by persisting with it even after it had been made clear that his employer would be relying on his fraudulent conduct to defend the claim and arguing that he should not be granted compensation. In the EAT’s view, ‘the unreasonableness was such as would have led any reasonable Employment Judge to conclude that an award of expenses ought to be made’.

A Guide to Dealing with Requests for Flexible Working Arrangements

The statutory right to request flexible working arrangements is currently available to parents of children aged 17 and under (18 and under where the child is disabled) and employees who care for, or expect to care for, certain adults.

An employee must have completed 26 weeks’ continuous employment with their employer in order to qualify for the right and can only make one request in any 12-month period.

There is a statutory procedure which must be followed when a request for flexible working arrangements is made.

The employee’s request must give details of the revised working pattern they wish to adopt. After acknowledging receipt of the request, the employer has a duty to consider it seriously to decide whether the business can accommodate the requested working pattern.

If the employer is able to agree to the request without further discussion, the employee must be notified of this in writing. If the employer wishes to discuss the application, a meeting must be arranged for discussions to take place with the employee within 28 days of receiving a valid request. If this is not possible, the deadline can be extended with the written agreement of the employee.

The employee has the right to be accompanied at the meeting by a work colleague or a trade union representative. That person may address the meeting and confer with the employee but may not answer questions on the employee’s behalf.

The employer must notify the employee of their decision within 14 days of the meeting. Further time to consider a request requires the employee’s written consent. If the employer and/or the employee are uncertain whether the new arrangements will work in practice, it is possible to undergo a trial period, which could take place during an agreed extension to the time allowed before the employer makes their final decision.

If the employer accepts a flexible working request, they must write to the employee giving details of their new working pattern, the date on which it will start and stating that the arrangement means a permanent change to the employee’s terms and conditions of employment (unless agreed otherwise). The notification must be dated.

If you decide that you cannot accommodate any kind of flexible working for an employee, you must write to them stating which of the listed business grounds for refusing a request apply and explain why these apply in the circumstances. The notification must be dated and set out the procedure to follow should the employee wish to appeal against the decision.

You can reject a flexible working request on only a limited number of set grounds. These are:

• planned structural changes;
• the burden of additional costs;
• a detrimental impact on quality;
• the inability to recruit additional staff;
• a detrimental impact on performance;
• the inability to reorganise work among existing staff;
• a detrimental effect on ability to meet customer demand; or
• lack of work during the periods the employee proposes to work.

Should the employee wish to appeal against the decision, they must do so in writing within 14 days of the date of receiving the written notice of refusal. The employer must arrange an appeal meeting within 14 days of receipt of the employee’s appeal notice. Where possible, the appeal should be heard by a different manager. The employer must inform the employee of the outcome of the appeal in writing within 14 days of the date of the appeal meeting.

The sanction against an employer who fails to grant a request where clear business reasons do not apply is that an employment tribunal can order that the application be reconsidered and can award a maximum level of compensation of eight times a week’s pay, subject to a statutory cap.

Where the employer agrees to change the employee’s terms of employment, there is no provision in the legislation for the employee’s contract to revert back to what it was should their circumstances change. It may, therefore, be sensible to discuss with the employee whether they wish the change to be for a specified period only.

Employees have protection against detrimental treatment for seeking to exercise their rights under this law and any dismissal for having done so will be automatically unfair.

Further information, including standard forms for employees and employers to use at each possible stage of the process when a request for flexible working is made, can be found on the BusinessLink website. It is not mandatory to use the forms, but employers will find them useful in making sure that all the statutory requirements are met.

In Brief: Guidance on Recruiting Refugees and Asylum Seekers

The UK Border Agency has useful guidance to help UK employers understand the status of asylum seekers, refugees and those with humanitarian protection.

This explains what documents employers should ask prospective employees to produce to ensure that they can lawfully work in the UK.

For general information on preventing illegal working, see the Home Office website.

In Brief: ACAS Guidance on Holiday and Holiday Pay

The Advisory, Conciliation and Arbitration Service (ACAS) has useful guidance for employers puzzling over staff holiday pay entitlements.

The guidance leaflet gives a summary of holiday entitlements, setting out:

• the right to annual leave;
• when a leave year starts;
• how and when workers can take leave; and
• how to calculate holiday pay.

There is also a Q & A section that covers issues such as:

• public holidays;
• part-time workers and holidays;
• leave years that start at different times; and
• accrual systems.

The guidance is available on the ACAS website.

Disability Discrimination - Normal Day-to-Day Activities

For the purposes of the Disability Discrimination Act 1995 (DDA), a person had a disability if they had a physical or mental impairment which had a substantial and long-term adverse effect on their normal day-to-day activities. Under the Equality Act 2010, this definition remains essentially the same.

In Chief Constable of Dumfries and Galloway Constabulary v Adams, the Employment Appeal Tribunal (EAT) considered the meaning of ‘normal’ in this context.

Mr Adams was appointed as a probationer police constable in November 2005. Shortly afterwards, he was diagnosed with Myalgic Encephalomyelitis. His condition was extreme from 2am to 4am and by the end of January 2006 he was struggling to complete night shifts. He walked slowly and needed assistance to climb stairs, was sometimes unable to drive himself home and at times required help with undressing when he got home. When he worked day shifts, he was free of symptoms, but these reappeared when he was put back on night shifts. In February 2007, he was dismissed and brought a claim of disability discrimination.

On the question of whether or not Mr Adams was disabled for the purposes of the DDA, the Employment Tribunal (ET) found that he was. The Chief Constable of Dumfries and Galloway appealed against this finding.

The EAT confirmed that normal day-to-day activities are those which can be found across a range of employment situations. The ET can therefore regard as normal something that a person only does at work, if it is to be found in a range of different work situations. This would not, however, include specialist skills that may only be a day-to-day activity in a particular employment.

In the EAT’s view, Mr Adams’ condition did constitute a disability. Walking and climbing stairs are normal day-to-day activities. The Chief Constable had contended that in this case they were not, because the activities were being carried out between 2am and 4am (the only time they presented a problem to Mr Adams). As a policeman, he held a specialised job that required him to work at this time of night, which is not common. The EAT disagreed, being satisfied that enough people in the UK work night shifts for working those hours to be considered normal.

In addition, when Mr Adams’ symptoms were at their worst, this clearly had a substantial effect on him and his condition had persisted for more than 12 months.

The appeal was therefore dismissed and the case remitted to the ET.

Disability Discrimination - Limits on Duty to Make Reasonable Adjustments

Under Section 4A of the Disability Discrimination Act 1995 (DDA), employers had a duty to make reasonable adjustments to working practices in order to ensure that a disabled employee was not disadvantaged. Under the Equality Act 2010, which has now replaced the DDA, this duty remains largely the same.

In a recent case (Tameside Hospital NHS Foundation Trust v Mylott), the Employment Appeal Tribunal (EAT) held that an employer’s failure to take steps to facilitate a disabled employee’s application for ill health retirement was not a breach of Section 4A of the DDA. Whilst upholding other findings of disability discrimination against the Tameside Hospital NHS Foundation Trust, which related to its handling of Mr Mylott’s situation when he was absent from work for a long period with work-related stress, the EAT overturned this aspect of the judgment of the Employment Tribunal (ET). In the EAT’s view, the duty under Section 4A did not extend to enabling a disabled employee who was no longer able to do their work (or any available alternative) to leave their employment on favourable terms. The whole concept of an adjustment is that it is made in order to make it possible for the disabled employee to remain in employment. It does not extend to taking steps to ensure that they are compensated for no longer being able to do so.

On a second point, the EAT upheld the Trust’s appeal against an award of £6,000 in aggravated damages made to Mr Mylott following the ET’s finding of malice against Mr Mylott’s manager. Having examined the ET’s reasons for its decision, the EAT considered that a finding of malice is ‘a serious finding, which is not to be made lightly and which must be fully supported if made’. Whilst the ET was justified in finding that Mr Mylott’s manager had on occasion been ‘brusque’ and ‘insensitive’, this did not justify a finding of malice. Nor did its observations that the manager in question had a ‘dismissive’ manner when giving evidence and that her answers were sometimes evasive support a decision to award aggravated damages.

Adoption - A Woman's Rights

Women who are planning to adopt a child have similar rights as regards protection from unfavourable treatment as employees who are pregnant.

This was illustrated by a landmark decision of the Employment Tribunal (ET). Anna Coulombeau joined Enterprise Rent-A-Car (UK) Ltd. in 2004. She was enthusiastic about her job, received excellent appraisal reports and was promoted to the position of manager. In autumn 2005, she started attending courses to prepare for adopting a child. Shortly after this, she was summoned to two disciplinary hearings and was sacked for gross misconduct. Her appeal to the company against this decision was turned down.

Ms Coulombeau therefore brought a claim for unfair dismissal and sex discrimination. The ET heard that her manager was unhappy because she would be taking time off work for adoption leave. She had been dismissed for making minor mistakes whereas male colleagues had only been reprimanded for making the same errors. The ET held that Ms Coulombeau’s dismissal had been orchestrated and upheld her claims.

Adoption leave is available so that someone who adopts can take paid time off work to care for the child. An employee qualifies for adoption leave if they have worked for the employer for 26 continuous weeks. An employee who is entitled to adoption leave will also normally be entitled to statutory adoption pay for the first 39 weeks after the child is placed for adoption. Paternity leave and pay may be available to that person’s partner.

The BusinessLink website provides further information on adoption leave and pay.

Age Discrimination - Life After the Abolition of the Default Retirement Age

The Default Retirement Age (DRA) has now been abolished and it is no longer permissible for an employer to dismiss an older worker on the ground of retirement unless this can be objectively justified under the Equality Act 2010.

This does not mean that employees will never be able to retire, but that an employer cannot lawfully force an employee to retire at a set age unless the age can be objectively justified under the Equality Act. If this is not possible, the employer faces the double threat of a claim for age discrimination and for unfair dismissal.

Employers therefore have two options. These are:

• to stop retiring people and use other dismissal options where necessary; or
• to use an Employer Justified Retirement Age (EJRA).

For a set retirement age to be objectively justified, its use must be a proportionate means of achieving a legitimate aim. This is not an easy test to pass, and businesses who do wish to have in place an EJRA are advised to seek legal advice before choosing this option. An EJRA will normally be appropriate for occupations where retirement at a particular age can be justified on health and safety grounds – for example for airline pilots or fire fighters. Employers must provide evidence that the chosen EJRA is necessary – not based merely on assumptions – and be able to demonstrate that no alternative or less discriminatory action could achieve the same result. Employers who have chosen to use an EJRA must follow a fair procedure, giving the employee adequate notice of their impending retirement and, if circumstances permit, consider any request to work beyond the EJRA as an exception to the normal policy. However, it is important to have procedures in place to ensure consistency of treatment of employees who request to stay on.

Older employees can retire voluntarily at a time of their choosing and draw any occupational pension to which they are entitled under the rules of the scheme. If an employee has given formal notice that they wish to retire, the employer is under no obligation to permit them to withdraw their notice should they change their mind. If, however, an employee has only told their employer that they plan to retire, they can change their mind before formal notice is given.

Great care must be taken if an older employee is performing badly. Procedures for dealing with performance issues must be fair and applied consistently across all age groups. To avoid a claim of unfair dismissal, any dismissal must be for one of the potentially fair reasons for dismissal under the Employment Rights Act 1996. Care must also be taken that any decisions taken by the employer do not discriminate against an employee who has a condition that constitutes a disability under the Equality Act. In such cases, the employer has a duty to make reasonable adjustments to remove any barriers to the employee’s performance.

Group risk insured benefits are exempt from the principle of equal treatment on the grounds of age, so employers who provide such benefits can cease to provide or offer them to employees who reach the State Pension Age, even if they continue to work beyond that age. The age at which group risk insured benefits can be withdrawn will increase in line with increases in the State Pension Age.

Whilst the abolition of the DRA gives employees greater choice and flexibility over when to retire, the move has been criticised as having a negative impact on an employer’s ability to plan workforce requirements to meet future business needs.

The Advisory, Conciliation and Arbitration Service has published guidance for employers, entitled ‘Working Without the Default Retirement Age’, which contains useful advice on a possible framework for workplace discussions that will help identify an employee’s future aims, and gives examples of ways of raising the issue of retirement without asking questions that could be seen as discriminatory.

Additional Paternity Leave for New Fathers

The Additional Paternity Leave Regulations 2010 give those new fathers who qualify the right to take additional paternity leave during the period which begins 20 weeks after the child’s date of birth and ends 12 months after this date if the mother chooses to return to work with maternity leave outstanding and the father has the main responsibility for caring for the child. Some of the father’s leave may be paid if it is taken during the mother’s 39-week maternity pay period. The period of leave must be continuous; the minimum allowed is two weeks and the maximum 26 weeks. The changes also apply to spouses, partners and civil partners of a child’s mother or of an adoptive parent who has elected to take adoption leave.

An employee wishing to take additional paternity leave must give notice to their employer not less than eight weeks before the start date chosen for the period of leave. This notice must include:

• a declaration by the employee requesting leave confirming that he is either the child’s father, is married to or the partner or civil partner of the mother and that the reason for the leave is that the employee expects to have the main responsibility for caring for the child;
• a declaration from the mother, which must include her name and address, the date on which she intends to return to work, her National Insurance number, confirmation of the information contained in the statement made by the employee requesting paternity leave and a statement that to the best of her knowledge the employee requesting leave is the only person exercising the entitlement to additional paternity leave in respect of the child and consenting to the employer processing the information given in her declaration.

Employers and HM Revenue and Customs have the power to carry out checks on the information provided where necessary. However, business leaders have expressed fears that allowing new fathers to self-certify that they are eligible for leave increases the risk of fraud.

A Guide to the Agency Workers Regulations

The Agency Workers Regulations 2010 (AWR) came into force on 1 October 2011.

All agency workers are entitled, from the first day of their assignment, to information on any job vacancies and to make use of collective facilities and amenities available to comparable workers and employees. These may include staff canteens, childcare facilities, transport services (such as local pick-ups and drop-offs and transport between sites – but not company car allowances or season ticket loans), staff common rooms, prayer rooms and car parking.

Employers should ensure that agency workers know how to access information relating to job vacancies and are aware of all relevant facilities. This can be done either by providing details directly to the worker, as part of an induction pack, or by providing details to the employment agency to pass on to the agency worker as part of the information on the assignment.

Agency Workers Who Have Completed a 12-Week Qualifying Period
Once an agency worker has worked in the same job for the same hirer for a period of 12 calendar weeks, they are entitled to the same basic employment and working conditions as if they had been recruited directly by the employer.

Because the working patterns of agency workers can be irregular, the AWR provide for a number of circumstances in which breaks do not prevent them from completing the qualifying period. Employers are therefore advised to study the rules for calculating this period in order to avoid errors.

Basic employment and working conditions include:

• basic pay;
• duration of working time;
• annual leave;
• night work; and
• rest breaks and rest periods.

The rights with regard to pay include:

• basic pay based on the annual salary the agency worker would have received if recruited directly – this will usually be converted into an hourly or daily rate, taking into account any pay increments the worker would have received;
• overtime payments – subject to the same requirements as if the worker had been recruited directly;
• payment for annual leave;
• bonus or commission payments linked to the amount and quality of work completed – e.g. achievement of sales targets;
• bonuses linked to personal performance or non-contractual payments that are made with such regularity that they are customary;
• vouchers or stamps which have a monetary value and can be exchanged for money, goods or services – e.g. luncheon vouchers, childcare vouchers but not salary sacrifice schemes; and
• paid time off for antenatal appointments.

Some payments may require those recruited directly to complete a period of service – e.g. enhanced entitlement to annual leave after 12 months. An agency worker will need to complete the same period of service to become eligible. This should be calculated from the start of the 12-week qualifying period.

The rights with regard to pay do not include:

• occupational schemes – sick pay, maternity, paternity and adoption pay;
• redundancy and notice pay;
• payment for time off to carry out trade union duties;
• guarantee payments, as they apply to directly recruited staff if laid off;
• advances in pay – e.g. for season tickets;
• payments or rewards linked to financial participation schemes such as share ownership;
• the majority of benefits in kind – e.g. reduced-rate mortgages or employer-funded training allowances;
• bonuses where there is no recognition of a worker’s personal contribution, such as a flat rate bonus paid to the workforce to encourage loyalty or reward long service; and
• additional, non-contractual bonuses – as long as these payments are not made so often that they have become customary.

Agency workers will be covered by the new automatic pension enrolment which is being phased in between October 2014 and October 2017, depending on the size of the company.

To ensure equal treatment after 12 weeks’ service, employers who use agency workers should have in place proper job descriptions and pay structures for the roles they perform. In addition, to facilitate calculation of the qualifying period, a record should be maintained showing the dates and hours worked, the location of their work and their job role. Employment agencies should be provided with information on the basic terms of comparable staff hired directly by the employer.

The AWR contain anti-avoidance provisions which prevent a series of assignments being structured so as to prevent an agency worker from completing the qualifying period. Breaks between assignments will not, therefore, necessarily prevent agency workers from gaining the same basic employment and working conditions as staff recruited directly.

The Department for Business, Innovation & Skills has published detailed guidance on the AWR.

In Brief: ACAS E-learning Guides

The Advisory, Conciliation and Arbitration Service (ACAS) now has ten electronic learning guides available on its website. The topics are:

• bullying and harassment;
• managing absence in the workplace;
• handling redundancy;
• discipline and grievance;
• working parents;
• informing and consulting;
• contracts and written statements;
• sexual orientation;
• religion or belief: and
• age discrimination.

These can be accessed free of charge at once you have registered to use the ACAS website.

Graduate Recruitment

Most businesses would like to benefit from an influx of talent, enthusiasm and fresh ideas. The challenge is to achieve it at an acceptable cost.

One option is to employ a recent graduate. In the past, most graduate recruitment was undertaken by large companies. These days, businesses of all sizes are taking advantage of the opportunity. This briefing is primarily aimed at smaller businesses.

It covers:

• The pros and cons of employing a recent graduate.
• Deciding on the sort of graduate you want, and coming up with an offer.
• Recruiting a graduate.
• Retaining your graduate.

In Brief: Working at Height Regulations

Falls from height are the single biggest cause of workplace deaths and one of the main causes of serious injury. A place is ‘at height’ if there is a risk of a fall liable to cause personal injury.

The Work at Height Regulations 2005 were introduced in order to help prevent accidents of this type and implement the EC Temporary Work at Height Directive on minimum health and safety requirements for the use of equipment for work at height.

Guidance on the Regulations can be found on the website of the Health and Safety Executive.

Driving on Company Business

Research by the Health and Safety Executive shows that 20 people are killed and 250 are seriously injured each week in traffic accidents involving someone driving for business reasons.

The threat of employers being prosecuted for road accidents involving their employees is now more likely as official records are kept of work-related road crashes. Paperwork completed by investigating police officers when logging details of road accidents now includes a section on whether the drivers involved were travelling on company business.

In addition, the Metropolitan Police and several other forces have adopted a policy of investigating company road-safety policies when an accident involving a work vehicle occurs.

Police will investigate whether the company has carried out basic checks, such as making sure employees using their own cars for business purposes have a valid driving licence, are insured to drive on business and have an MOT certificate for their vehicle. In addition, they intend to investigate the reasons for a vehicle involved in an accident being on the road.

Businesses could face prosecution if, for example, one of their drivers who was found to be at fault for an accident did not have adequate insurance cover.

Not all mobile workers are covered by the EU drivers’ hours rules. Many company car drivers cover a lot of miles so it is important to introduce safe driving policies to protect them and other road users. Employers should assess occupational road risk in the same way as they would other workplace risks to health and safety and manage the risks involved. Thought should be given to the choice of vehicle, and working practices, journey schedules, appointments and routes must be organised so that drivers do not break the law.

In addition, it is an offence to cause or permit a driver to use a hand-held phone while driving so the use of hand-held mobile phones should be banned and breach of this rule made a disciplinary offence. Employers should also think twice before supplying staff with hands-free kits. Even though the use of these while driving does not contravene the specific ban on hand-held phones, motorists can face prison if they cause a fatal accident as a result of being avoidably distracted at the wheel.

Section 20 of the Road Safety Act 2006 (RSA) contains an offence of causing death by careless or inconsiderate driving, which covers distractions that can lead to accidents and carries a maximum penalty of five years’ imprisonment. A distraction can be anything which takes a driver’s attention away from the road and which a court rules to have been an avoidable distraction. The definition includes smoking whilst driving, using a mobile phone (whether hands-free or not), listening to music, talking to fellow passengers, drinking, eating, using technological aids and personal grooming.

Dealing with Employee Absence

Employee absences can be both costly and disruptive.

It is advisable to have systems in place to measure and analyse these costs so that you can identify problem areas. Are there patterns of absence? Does a particular department have a below average record?

Unhappy, demoralised employees are more likely to take time off work. Workplace stress is still the most common cause of long-term sickness among non-manual workers. Creating a friendly working environment, where staff feel valued as part of a team and where flexible, ‘family friendly’ policies are in force is likely to pay dividends, keeping absenteeism to a minimum.

To manage absence effectively, make sure staff are well informed as to your sickness policy and procedures. Make sure these are seen to be followed and keep accurate records. These must be kept for at least three years after the appropriate financial year-end.

When hiring new staff, make sure you check their attendance record with the previous employer. If new staff are absent it is good practice to make sure you know if there are problems preventing them from settling in. How staff are treated in the first weeks of a new job is vital. Inadequate training can leave them feeling disillusioned.

It is sensible for employers to ensure that contracts of employment allow them the right to get an independent medical assessment in the event of an employee taking more than a few days off work. You may consider requiring all potential employees to undergo a medical examination with an occupational health adviser.

As a matter of company policy always carry out a ‘return to work’ interview. This may range from ‘hope you’re better, we missed your contribution’ to an identification of underlying problems that will affect your management strategy. It may also deter malingerers.

Long-term sickness must be handled sensitively. You must have an employee’s permission to apply for a medical report. It is vital to keep in touch so that the employee doesn’t feel isolated. Consider referring them to an occupational health specialist. This can identify ways of helping them return to work and give you information as to how long the absence is likely to last.

Disciplinary action for unacceptable absence must be distinguished from dismissal on health grounds. Employers need to be aware of the full range of conditions that count as a disability for the purposes of the Equality Act 2010. Where an employee is suffering from a condition covered by the Act, reasonable adjustments must be made to help them return to work.

As regards the accrual of holiday pay when a worker is on long-term sick leave, the Government is in the process of amending the Working Time Regulations 1998 (WTR) to enable workers to carry forward four weeks of their statutory holiday entitlement to the next leave year if they are unable to take it in the current year owing to long-term illness. This is necessary in order to ensure that the WTR comply with recent European judgments on the correct interpretation of the EC Working Time Directive, which the WTR implement into national law.

In a further decision on this topic (KHS AG v Winfried Schulte), the European Court of Justice (ECJ) has now ruled that the precise terms of the provisions regarding the carry-over of untaken holiday leave for workers who are on long-term sickness leave are a matter for individual Member States. However, the carry-over period for taking any entitlement to holiday accumulated during the sickness absence must be more than any leave reference period, but national law which limits the period to, say, 15 months may be lawful under EU law. The ECJ stressed that the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of EU social law from which there can be no derogations and whose implementation by member states must be confined within the limits expressly laid down by the Working Time Directive.

Dealing with long-term absences, in particular, is a difficult area of the law. Each case must be decided on its own merits and proper procedures must be followed. Employers who have not done so for a while are advised to review stress management and long-term absence policies and procedures so that potential problems are identified early on and remedial action is taken as soon as possible.

Collective Redundancy Consultation

Employers should be aware of the potentially serious financial consequences of failing to consult when making collective redundancies.

If an employer is proposing to make redundant 20 or more employees at one establishment within a period of 90 days or less, the collective consultation provisions of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) come into play. Where the employer is proposing to dismiss 100 or more employees, the consultation period must be at least 90 days; otherwise it must be at least 30 days. Failure to consult with the appropriate representatives of affected employees can lead to a protective award requiring the employer to pay each affected employee 90 days’ pay. Even if the obligation to consult is for a minimum 30-day period, a serious breach of the requirement can result in employees being granted a 90-day protective award.

Genuine efforts to consult must be made – merely keeping employees informed does not fulfil this duty. Consultation of the required duration must take place before any employees are given redundancy notices. Consultation must be meaningful, with a view to reaching an agreement. If the decision to dismiss employees has already been taken, it effectively compromises the consultation process.

In addition, in a collective redundancy situation, the employer has a statutory duty to notify the Secretary of State for the Department for Business, Innovation and Skills before giving notice to terminate an employee’s contract. If an employer fails to give the required notification, the Secretary of State may institute legal proceedings that could lead, on summary conviction, to a fine of up to £5,000.

The obligation to consult over avoiding proposed redundancies extends to consultations over the reasons for the closure of a business. Where it is recognised that dismissals will inevitably, or almost inevitably, result from closure, dismissals are proposed at the point when the closure of the business is proposed. Where closure and dismissals are inextricably linked, the duty to consult over the reasons for the closure arises.

Collective consultation does not replace the need to consult with individuals who may be made redundant in order for any subsequent dismissal to be fair.

It is important that employers are aware of this requirement to consult at an early stage in the decision-making process. Making employees redundant always requires care and advice should be sought as soon as redundancies are contemplated. Restructuring a business, even where staff may not actually leave your employment, also carries with it potential risks. Care must always be taken where fundamental changes are made to employees’ jobs. We can help ensure that a proposed redundancy programme or the restructuring of your business is carried out with the minimum risk of unanticipated financial consequences.

As part of its ‘Red Tape Challenge’, the Government recently carried out a consultation exercise on whether the current 90-day minimum consultation period where more than 100 redundancies are contemplated can be reduced.

In Brief: Assessment of Repetitive Tasks Tool

Musculoskeletal disorders (MSDs) are the most common occupational illness in Britain. They include problems such as low back pain, joint injuries and repetitive strain injuries of various sorts, and affect more than 500,000 people every year. They are often linked to fairly simple repetitive workplace tasks, such as packing on a production line or the regular use of hand tools, so it is easy for employers to fail to recognise the risks such practices pose to employees.

The Health and Safety Executive has made available an Assessment of Repetitive Tasks (ART) tool, to help businesses reduce the likelihood of their workers developing MSDs of the upper limbs associated with repetitive tasks. The ART tool is designed to help you assess the common risk factors associated with repetitive work that contribute to the development of upper limb disorders. It can help you identify where the significant risks lie in your workplace, suggest where to focus risk reduction measures and help prioritise improvements.

In Brief: Guidance on Cancer and Working

Employees diagnosed with progressive forms of cancer are regarded as having a disability for the purposes of the Equality Act 2010. Employers therefore have a duty to make reasonable adjustments to help employees overcome disadvantages arising from their condition.

The Chartered Institute of Personnel Development, together with the Working with Cancer group and the cancer information charity Cancerbackup, has available guidance to assist employers in responding to the needs of employees affected by cancer or other critical illnesses.

In Brief: Advice on Occupational Asthma

The Health and Safety Executive (HSE) estimates that each year between 1,500 and 3,000 people in Great Britain develop occupational asthma. The number rises to 7,000 cases a year if asthma made worse by work is taken into account. The cost to society is estimated to be up to £1.1 billion over 10 years.

The HSE has a website containing advice on how to reduce occupational asthma. This is aimed at employers and is part of the HSE’s campaign to reduce significantly the number of occupational asthma sufferers by the end of the decade.

In Brief: Data Protection

The Information Commissioner's Office (ICO) has published a consolidated version of the guidance on data protection issues in employment. This brings together the four existing guides on recruitment and selection, employee records, monitoring at work and medical information and is intended to provide employers with a complete manual on data protection in the workplace.

Technical guidance which deals with the potential conflict between an individual’s right of access to information held about themselves and another individual’s right to privacy or confidentiality is also available. This sets out the main factors you need to consider if you receive a subject access request which involves information relating to other individuals as well as the person making the request.

See the ICO website for this and other guidance on data protection issues.
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