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.

Employers with employees who drive on company business are strongly advised to make them aware of the applicable law and to ensure that their road safety policies include a warning not to contravene the latest Highway Code.

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.

In addition, under the pensions auto-enrolment rules, employers are not obliged to enrol workers who have reached 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.

A Guide to Third Party Harassment

With effect from 1 October 2013, the third party harassment provisions contained in Section 40 of the Equality Act 2010 have been repealed.

The provisions made employers liable for harassment of their employees by third parties, such as customers or clients, when unwanted conduct had taken place on at least two other occasions and the employer was aware of it but failed to take reasonably practicable steps to prevent it. The harassment did not need to be by the same person each time for the ‘three-strikes rule’ to apply.

The Government was of the view that the provisions were unworkable, given that an employer has no easy way of controlling the behaviour of third parties, and there was little evidence that there was a significant need for them or that they were effective in practice. In 2012, therefore, as part of its ‘red tape challenge’ to relieve businesses from unnecessary and burdensome regulations, a consultation on proposals to remove the provisions was carried out. Although a majority of those who responded were against any change in the law, the Government was not persuaded that there was a case for retaining the provisions as other avenues of legal redress are available to protect employees in such circumstances.

The law on an employer’s liability for third party harassment developed over time. In 1997, the Employment Appeal Tribunal ordered a hotel group to pay compensation to black waitresses it employed after they were the butt of racist and sexist jokes made by the comedian Bernard Manning during a function at one of its hotels (Burton v DeVere Hotels). This seemed to establish that employers could be liable to their employees for sex or race discriminatory acts committed by a third party in a wide variety of circumstances. In 2003, however, the House of Lords criticised the EAT’s logic and expressed the view that an employer is not liable to an employee in respect of sex or race harassment of the employee by a third party unless the employer failed to prevent the harassment for a reason related to the sex or race of the employee (Pearce v Governing Body of Mayfield School).

In 2008, the Sex Discrimination Act was amended. The definition of sexual harassment was expanded to include unwanted conduct that was ‘related to’ the sex of another person instead of ‘on the grounds of’ sex. This change enabled a claim to be made by someone who was not the subject of the unwanted conduct but where its effect was to violate that person’s dignity or to create an intimidating environment for them. In addition, it became unlawful for an employer to fail to take reasonably practicable steps to protect an employee from harassment by a third party where such harassment was known to have occurred on at least two other occasions. The person responsible for the harassment did not have to be the same on each occasion. The Equality Act extended the protection afforded by these changes to all protected characteristics.

However, the repeal of the specific provisions protecting employees against third party harassment does not mean that employers should not have procedures in place to deal with complaints, as there are other ways in which an employee can seek redress if they are subject to conduct that would count as third party harassment.

For example, a claim might be possible under Section 26 of the Equality Act, which contains general provisions regarding harassment and unwanted conduct, on the basis that the employer’s failure to act is unwanted conduct related to a protected characteristic that causes a hostile, intimidating or degrading environment. Alternatively, a claim of direct discrimination under the Act might be pursued on the basis that the employer’s failure to act was on account of a protected characteristic and constitutes less favourable treatment.

In some cases, it might be argued that an employer’s failure to act to prevent third party harassment was a fundamental breach of the employee’s contract of employment, thus entitling them to resign and claim constructive dismissal.

There may also be situations where an employee suffers psychological damage as a result of repeated third party harassment, in which case a negligence claim might be pursued in the civil courts. If the harassment is such that it amounts to a criminal offence, the Protection from Harassment Act 1997 would apply.

It is perhaps difficult to see how that the repeal of the third party harassment provisions has simplified matters for employers. We recommend a zero tolerance approach, with prompt remedial action being taken as soon as you receive a complaint from an employee or become aware of unwanted conduct of any kind.

In Brief: Guidance on Preventing Illegal Working

The Government has useful guidance for employers aimed at preventing illegal working in the UK. This explains:

• the law on illegal working;
• your role and duty as an employer;
• the document checks you should carry out;
• images of the various documents you could be given;
• the various types of immigration statuses held by people; and
• the consequences if you do not carry out document checks and are found to be employing an illegal worker.

Employment Tribunal Fees

In July 2013, the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 introduced a fee structure for single claims to the Employment Tribunal as follows:

• For level 1 claims (e.g. claims for sums due on termination of employment, such as unpaid wages, payment in lieu of notice, redundancy payments etc.) the issue fee is £160 and the hearing fee, payable approximately six weeks in advance of the hearing, is £230; and
• For level 2 claims (e.g. unfair dismissal, discrimination and claims arising under the Public Interest Disclosure Act 1998) the issue fee is £250 and the hearing fee is £950.

ETs have a discretionary power to order the losing party to meet the fees paid by the winning party.

The fee for bringing an appeal to the EAT is £400 and the hearing fee is £1,200.

The Regulations also:

• remove the £20,000 cap on costs that can be ordered by the ET;
• introduce a ‘sift stage’ for reviewing claims and responses to identify those that should be struck out; and
• introduce ‘preliminary hearings’, which will take the place of case management discussions and pre-hearing reviews.

Many people on low incomes will not be required to pay the full fees – under the same remission system that already exists for those who pay fees to use the civil courts’ service.

Since the introduction of the fees, the number of ET claims has fallen dramatically. Between October and December 2013, there were 9,801 new cases – a 79 per cent reduction compared with the same period the year before. The UK's largest public service trade union, Unison, supported by the Equality and Human Rights Commission, brought judicial review proceedings challenging the lawfulness of the new regime on the basis that it makes it 'virtually impossible, or excessively difficult' for many people of modest means to exercise their right to bring an ET claim and discriminates against employees with a protected characteristic.

The challenge was dismissed by the High Court, however. Whilst understanding Unison's belief that the lawfulness of the fee regime had to be challenged 'as a matter of urgency', the 'fundamental flaw' in the proceedings was that there was as yet insufficient evidence to support the arguments made for overturning it.

In the Court's view, provision for the remission of charges in cases of hardship meant that there was 'sufficient opportunity', even for those of very modest means, to accumulate funds to pay them. Proceedings are now expensive, but not to the extent that bringing claims will be 'virtually impossible or excessively difficult', the Court observed.

The Court also noted that, given that the Lord Chancellor had agreed that a successful employee should expect to be able to recover the fees they have incurred from the employer, the level of fees payable did not breach the 'principle of equivalence'.

The Court went on to acknowledge that there may be substance in the argument that the fees structure failed properly to take account of the impact on women bringing discrimination claims, but noted that it was too early to say whether such concerns would be justified by experience.

The Court also expressed a strong suspicion that the higher fees applicable to more complicated, type B cases, such as unfair dismissal, discrimination and whistleblowing claims, might have a disparate impact on minority groups, such as ethnic minorities and people with a disability. It was therefore incumbent on the Lord Chancellor to keep the system under careful review to eliminate, as far as humanly possible, any indirect discrimination.

Collective Redundancy Consultation - Acas Guidance

The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013 made changes to the rules relating to collective redundancy consultation.

From 6 April 2013, where an employer is proposing to dismiss as redundant 100 or more employees at one establishment within a period of 90 days or less, the minimum consultation period necessary before the first dismissal takes effect was reduced from 90 to 45 days. Where at least 20 but fewer than 100 employees are proposed to be made redundant, the consultation period remains at 30 days.

In light of the changes, the Advisory, Conciliation and Arbitration Service (Acas) has published new guidance, ‘How to manage collective redundancies’, which contains a ten-point checklist for handling collective redundancies as follows:

1. When does consultation start?
2. What is meant by an establishment?
3. How many employees are involved?
4. Who to consult?
5. What information should you provide?
6. How should consultation be conducted?
7. How long should consultation last?
8. When do you carry out individual consultation?
9. When does dismissal take effect? and
10. What are the rights of redress?

There is a brief section on consultation when redundancies are necessary owing to the transfer of a business under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) or when a business is insolvent. The guidance then goes on to deal with the redundancy selection procedure itself, including the role of the ‘teller’ – the person who has to break the bad news to employees selected for redundancy.

There are also useful appendices on redundancy and the law, an example of a redundancy selection matrix, sample paragraphs on areas commonly covered in redundancy agreements, information on statutory redundancy payments and on the election and roles and responsibilities of employee representatives.

It should, however, be noted that in the recent case of USDAW and Others v WW Realisation 1 Limited (in Liquidation) and Another, the Employment Appeal Tribunal (EAT) ruled that the words ‘at one establishment’ in Section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) should be deleted in order to give effect to EU Council Directive 98/59/EC on the laws relating to Collective Redundancies.

The effect of the ruling would be that the duty to consult would be triggered when 20 or more employees were to be dismissed as redundant from a business as a whole, irrespective of the number of people employed in each individual workplace.

Until the EAT’s decision, the Secretary of State for Business had declined to become involved in the proceedings as he had ‘nothing to usefully contribute about the consultation process between the parties’. Following the ruling, however, the Secretary of State applied for permission to appeal the decision.

The EAT accepted the Secretary of State’s apology for declining to attend the earlier hearings and granted permission to appeal the decision. There were compelling reasons for allowing an appeal, including a parallel reference to the European Court of Justice (ECJ), the importance of the ruling in terms of its effect on business as a whole and the value of the claims.

However, permission was granted on condition that the Secretary of State indemnifies the claimants for their reasonable costs in the Court of Appeal.

The Court of Appeal has now decided to make its own referral to the ECJ as to the correct interpretation of the Directive with regard to this matter.

We will keep you informed of developments in this important case.

Employers should also note that the the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, which came into force on 31 January 2014, amended the provisions relating to collective redundancies in TULRCA to allow a transferee employer who is involved in a transfer to which the TUPE Regulations apply and who is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days to elect to begin consulting representatives of affected employees, including transferring employees, about the proposed dismissals before the transfer takes place, provided the transferor agrees to it and is given written notice of the transferee's intention.

A General Guide to Recruiting Staff

Getting the recruitment process right is vital to ensure that you not only select the most suitable candidate for the vacancy but also do so without falling foul of the applicable law.

The Law
The Equality Act 2010 is intended to eliminate discrimination from all workplace situations, including recruitment procedures. The Act protects people from being treated less favourably because they have a protected characteristic. The relevant protected characteristics in employment are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race (including ethnic or national origins, colour and nationality); religion or belief (including lack of belief); sex; and sexual orientation.

In particular, the Act requires employers to make reasonable adjustments to accommodate the needs of disabled job applicants. This could entail adapting recruitment and selection procedures, such as providing the job application form in large print for someone with a visual impairment, or making sure there are no physical barriers that make it difficult for a disabled candidate to attend for interview.

The Act also contains positive action provisions, which mean that it is not unlawful for an employer to recruit or promote a candidate who is of equal merit to another candidate if the employer reasonably believes that the candidate has a protected characteristic and that people with that characteristic are under-represented in the workforce or suffer a disadvantage connected to that characteristic.

Section 60 of the Act prohibits the use of pre-employment health questionnaires prior to a job offer being made. Employers are not prevented from asking job applicants any questions about their health but can only do so for specific purposes, such as deciding whether they need to make any reasonable adjustments to enable an applicant to participate in the selection process or whether a job applicant can carry out a function that is essential (‘intrinsic’) to the work concerned. Once a person has been offered a job, whether this is an unconditional or a conditional offer, the employer is permitted to ask appropriate health-related questions and require a medical assessment where this is normal practice for all applicants.

All employers must comply with the minimum hourly wage rates for workers as provided for by the National Minimum Wage Act 1998. Also, if you are intending to employ young people, there are restrictions on the number of hours they can work and their working conditions.

It is an offence under the Asylum and Immigration Act 1996 to employ anyone who does not have permission to live or to work in the UK. Advice on how to check that a prospective employee is eligible to work for you can be found on the UK Visas and Immigration website.

Unless there is a specific need to check someone’s criminal record for a job, the Rehabilitation of Offenders Act 1974 provides that it is against the law for an employer to refuse to employ them because of spent convictions. For certain jobs exempted under the Act, for example working with children or in healthcare, employers will need to carry out a criminal record check on new employees before they can start work. Criminal record checks are now called Disclosure and Barring Service (DBS) checks and are carried out by the DBS. See the DBS website for further information.


Employers must also make sure that all personal data received during the recruitment process is managed in compliance with the Data Protection Act 1998 (DPA).

Under the Trade Union and Labour Relations (Consolidation) Act 1992, it is unlawful to refuse employment to someone because they are or are not members of a trade union.

The Employment Rights Act 1996 requires all employees, whether part-time or full-time, to be provided with a written statement setting out the main particulars of their employment, provided their employment lasts for one month or more. All the required particulars must be given within two months of the start of the employment.

All those involved in the recruitment procedure should receive training on the equal opportunities aspects of the process and other relevant legislation.

Guidance
If the skills required to fill your vacancy are in short supply, you may need to redesign the job in order to make it a more attractive prospect – perhaps by offering a greater variety of tasks, training and development opportunities or flexible working arrangements.

The Job Itself
Clarify the requirements of the job and decide what sort of contract of employment you wish to offer. Produce a job description detailing the purpose, tasks and responsibilities of the job. A good job description not only provides the basis for drawing up a person specification but also helps with induction and training when the successful candidate starts work.

Person Specification – The Ideal Candidate
Profile the knowledge, skills and aptitudes deemed essential and desirable. Consider allocating a weighted score to each, based on their relative importance, to come up with an ‘ideal’ total score. The specification can be used later as a check list when assessing the suitability of each applicant and the candidate’s performance at the interview can be compared with the job specification’s ideal score. Take care, however, not to include unnecessary requirements that discriminate against people with a particular protected characteristic.

The Job Advertisement – Attracting the Right Candidates
It is advisable to select at least two recruitment methods in order to draw on as wide a pool of candidates as possible. Each job advertisement should be designed to attract the right candidate, concentrating on the experience, knowledge and competencies necessary for the role, but must avoid bias against anyone with a protected characteristic. For example, avoid terms that could be seen as excluding someone from applying for a role based on their age. Even requiring a certain level of experience from candidates could be seen as discriminating against someone who is too young to have had the chance to gain that experience.

The Application Form
Using a job application form makes for an easier comparison between candidates, but will not be suitable for all jobs. A form should be designed to capture the information necessary to enable an informed selection of candidates at the initial sift stage. Provide information on any selection tests that will be carried out as part of the recruitment process and whether these will take place before or at the time of the interview. Also, make it clear at what stage any references will be sought. Include copies of the job description and person specification as well as a statement of commitment to equal opportunities. Prospective applicants should be offered alternative ways of providing the requested information to guard against claims of less favourable treatment. For example, requiring a form to be filled out ‘in your own handwriting’, where written English is not a requirement of the post, may discriminate against a disabled person or someone for whom English is not their first language.

Sifting the Applications
Identify the applicants who best meet the job description and the person specification. Ideally, this process should be carried out by two or more people so that it is as objective as possible. Send a letter inviting selected applicants to attend for interview, asking them to advise the organisation in advance if they need particular arrangements to be made to accommodate them on arrival or during the interview.

The Interview
Make sure you have made reasonable adjustments to accommodate any candidate who has indicated on the application form that they have a disability.

The length and style of the interview will depend on the nature of the job, but this should be carefully planned in advance. It should be structured so that each candidate is asked the same questions and is given the same opportunities to demonstrate their suitability for the job. This and the use of a scoring system based on the person specification will make it easier to compare their performance.

If you require candidates to complete a test, this must be free of bias and directly related to the necessary requirements of the job. Any information collected during personality tests must be handled in accordance with the data protection principles laid down by the DPA.

Make formal notes immediately after the interview. These will not only help you to reach a decision as to who is the best person for the job but will also enable you to provide feedback if a candidate requests it, bearing in mind that your reason for appointing or not appointing a particular person may be subject to a challenge under discrimination legislation.

The Successful Candidate
Once you have made your decision and carried out any necessary checks, inform all applicants, in writing, of the outcome as soon as possible.

The letter to the selected candidate should set out the job title; any conditions applying to the offer; the terms (including salary, hours, benefits, pension arrangements, holiday entitlement and place of employment); the start date and any probation period; and what the candidate must do either to accept the offer or to decline it. If the letter is to be the employment contract, or form part of it, it should say so and include the main terms and conditions.

The Advisory, Conciliation and Arbitration Service provides free documents for use when hiring staff.

Changes to Employment Law - 2014

Changes to employment law and practice are normally implemented in either April or October in order to make life easier for employers, who must ensure that their policies and procedures comply by the implementation dates. The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 were an exception to this rule, as this legislation came into force on 31 January 2014. The Regulations amend the provisions relating to collective redundancies in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) and make various changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

For example, TULRCA is amended to allow a transferee employer who is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days to elect to begin consulting representatives of affected employees, including transferring employees, about the proposed dismissals before the transfer takes place, provided the transferor agrees to it and is given written notice of the transferee’s intention.

Another change is that there is now a limit of one year during which collective agreements negotiated prior to a TUPE transfer will continue to bind transferee employers. After that time, terms of employment will be able to be renegotiated provided the new terms are no less favourable to employees than those which applied immediately before the variation.

The Regulations also extend the minimum time period for complying with the rules regarding the provision of employee liability information from 14 to 28 days prior to the date of a TUPE transfer where this takes place on or after 1 May 2014. In addition, businesses with fewer than ten employees will be allowed to inform and consult directly employees affected by the transfer when there is neither a recognised independent trade union in place nor any existing appropriate representatives. This exception applies in respect of transfers which take place on or after 31 July 2014.

The Department for Business, Innovation and Skills has published a guide to the TUPE Regulations as amended and this includes a full list of the changes.

The main employment law changes scheduled for introduction in April 2014 are:

Pensions Auto-enrolment
From 1 April 2014, the joining window for employers to auto-enrol eligible workers into a qualifying pension scheme is extended from one month to six weeks. In addition, the Employers’ Duties (Registration and Compliance) Regulations 2010 are amended to extend the deadline for registering details with the Pensions Regulator from four months to five months and the re-registration deadline from one month to two months.

Financial Penalties for Employers Who Breach Employment Law
From 6 April 2014, an Employment Tribunal (ET) has the discretionary power to impose a financial penalty on an employer who is found to have breached a worker’s employment law rights where the breach has one or more aggravating features. The penalty will be 50 per cent of any financial award, with a minimum penalty of £100 and a maximum of £5,000. The sum payable will be reduced by 50 per cent if the penalty is paid within 21 days.

Acas Early Conciliation
Under the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014, those wishing to bring an ET claim from 6 April 2014 will first have to send details of their dispute to the Advisory, Conciliation and Arbitration Service (Acas), which will offer the parties the opportunity to settle the matter through a new, free service called Early Conciliation. If the offer is refused or the attempt at conciliation fails, the claimant will be able to proceed with their claim.

Discrimination Questionnaires
On 6 April 2014, the statutory discrimination questionnaire procedure was abolished and replaced with non-statutory guidance from Acas, 'Asking and responding to questions of discrimination in the workplace'.

Statutory Pay Rate Increases
The rate of Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay increased from £136.78 to £138.18 for payment weeks commencing on or after 6 April 2014. In addition, the rate of Statutory Sick Pay increased from £86.70 to £87.55.

Also, the date for implementation of any annual inflation-linked changes to ET awards, including the rates for redundancy pay, has been changed from 1 February to 6 April. The rates that apply where the event which triggers the claim falls on or after 6 April 2014 can be found in the Employment Rights (Increase of Limits) Order 2014.

Flexible Working
From 30 June 2014 (not 6 April as originally planned), the right to request flexible working arrangements will be extended to all employees who have completed 26 weeks’ qualifying service. The current statutory procedure will be repealed and replaced with non-statutory guidance, produced by Acas, giving practical examples to help businesses manage the new extended right. The right currently applies to employees who have children under the age of 17 (18 if the child is disabled) or those who have caring responsibilities.

The main employment law changes due to be introduced in October 2014 are:

National Minimum Wage Rates
The National Minimum Wage (NMW) rates are reviewed annually and any changes introduced on 1 October. The rates that will apply from 1 October 2014 are as follows:

• the adult NMW rate will increase from £6.31 to £6.50 per hour;
• the NMW rate for workers aged 18 to 20 will increase from £5.03 to £5.13 per hour;
• the NMW rate for 16- and 17-year-olds will increase from £3.72 to £3.79 per hour; and
• the apprentice rate of the NMW, which applies to apprentices under 19 or over 19 and in the first year of their apprenticeship, will increase from £2.68 to £2.73 per hour.

Equal Pay Audits
The Government plans to introduce regulations requiring an ET to order an equal pay audit in the specific circumstance where an employer is found to be in clear breach of equal pay law.

The Health and Work Service
The Government has announced its intention to introduce a new Health and Work Service, offering free occupational health assistance to employees, employers and GPs, with trials commencing in late 2014. Once an employee has reached, or is expected to reach, four weeks' sickness absence, he or she will normally be referred by their GP for an assessment by an occupational health professional, who will look at all the issues preventing the employee from returning to work and provide them with a plan to try to expedite their return.

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 16 and under (under 18 where the child is disabled) and employees who care for, or expect to care for, certain adults. From 30 June 2014, however, the right will be extended to all qualifying employees.
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.

Currently, 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.

From 30 June 2014, the statutory procedure will be removed and replaced with non-statutory guidance, produced by Acas, giving practical examples to help businesses manage the new extended right. Employers will have a duty to consider all requests in a reasonable manner. They will have the flexibility to refuse requests on business grounds but the Government believes that the new laws will benefit employers as well.

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 GOV.UK 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: ACAS E-learning Modules

The Advisory, Conciliation and Arbitration Service (ACAS) offers useful electronic learning modules on a variety of topics. These include

• discipline and grievance;
• equality and diversity;
• bullying and harassment;
• contracts of employment and written statements;
• working time and holidays;
• pay and reward;
• handling redundancy;
• performance management;
• conflict resolution; and
• managing people.

The online courses can be accessed free of charge once you have registered to use the ACAS website.

In Brief: Data Protection Guidance for Employers

The Employment Practices Data Protection Code contains guidance on the impact of data protection laws on the employment relationship. It is intended to provide employers with a complete manual on data protection in the workplace and covers such issues as the obtaining of information about workers, the retention of records, access to records and disclosure of them.

This and other useful guidance for employers on data protection issues can be found on the website of the Information Commissioner’s Office.

In Brief: Advice on Occupational Asthma

The Health and Safety Executive (HSE) has a website dedicated to advice on how to reduce occupational asthma. This is aimed at employers and is part of the HSE’s ongoing campaign to reduce significantly the number of occupational asthma sufferers.

The website includes case studies for jobs with high rates of occupational asthma and links to useful publications.

A Guide to the Agency Workers Regulations

The Agency Workers Regulations 2010 (AWR) came into force on 1 October 2011. They apply to those workers who are supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer.

All temporary 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 temporary 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 a temporary 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 temporary 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. A temporary 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.

Temporary agency workers are covered by the automatic pension enrolment scheme, which commenced in October 2012 and is being phased in gradually, depending on the size of the company. For further information, see the website of the Pensions Regulator.

To ensure equal treatment after 12 weeks’ service, employers who use temporary 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 a temporary 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.

Detailed guidance on the AWR can be found on the website of the Department for Business, Innovation & Skills.

Drug Policy - Recognising the Signs and What to Do

Substance abuse amongst staff can affect all areas of employment, whether it be a decrease in productivity, increased absenteeism or the increased likelihood of accidents and injuries. The failure to identify and deal with a problem is an unnecessary risk for businesses and can prove costly.

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.

A Guide to Selecting Employees for Redundancy

In the current economic climate, businesses may face having to dismiss employees by reason of redundancy.

Redundancy is a potentially fair reason for dismissal, but it may be found to be unfair – for example if a particular employee is unfairly selected for redundancy. Where the decision to make someone redundant follows the reasonable application of a fair process, however, it will not normally be open to question.

When selecting employees for redundancy, employers should, wherever possible, try to use objective criteria that are precisely defined and capable of being applied in an independent way.

In an ideal world, the business’s written procedures will contain details of agreed redundancy selection criteria to be used in such circumstances. Where this is the case, the employer should follow the established procedure unless there is a very good reason for not doing so.

Proper consultation is the key to a fair process. Where there is a recognised trade union, the employer will consult the union, before any action is taken, as to the best way to achieve the desired result. This will include agreeing the criteria to be applied in selecting the employees to be made redundant. When the selection has been made, the employer will again consult with the union to confirm that decisions have been made in accordance with those criteria. Where there is no recognised trade union, it is best practice to agree with managers, employees and their representatives, in advance of the redundancy process, the criteria to be used at each stage. There should also be an appeals procedure which is clearly communicated to the employees concerned.

Once ways to minimise or avoid compulsory redundancies have been exhausted, the next step is to define the pool of employees from which redundancies will be made.

Defining the Pool of Employees
In dealing with unfair dismissal claims that challenge the fairness of an employer’s decisions with regard to the composition of the redundancy selection pool, an Employment Tribunal will ask whether the employer acted reasonably in selecting those particular employees taking into account the actual position at the time of redundancy.

Although specific jobs may be being lost, the pool should not be confined to those currently occupying those jobs but should include all employees capable of doing that work – i.e. those undertaking the same or similar roles. This will normally include employees carrying out the same kind of jobs in other parts of the business and those who work a different shift pattern. In some cases, it will also include those working at other sites. This will depend on the terms of the employees’ contracts of employment and their past working patterns.

Limiting the chosen pool to employees on part-time or fixed-term contracts may be potentially discriminatory if more women than men are employed on such terms.

There is no need to select a pool or undertake a formal redundancy selection process when the entire business is shutting down and there are no other sites to take into consideration. There will also be cases where the redundant post is unique and it is therefore reasonable for the employer to focus on a single employee without developing, or even considering the development of, a redundancy pool.

The law recognises that different people can quite legitimately have different views as to what is or is not a fair response to a particular situation. Employers do, therefore, have a broad measure of flexibility in determining the selection pool for redundancy. Merely identifying factors an employer has not taken into account will not of itself justify the conclusion that the decision reached was unreasonable. Any such finding must be based on a ‘sound rationale’.

Selecting From the Pool of Employees
The following criteria can be used when selecting employees for redundancy:

• Skills and experience;
• Attendance and disciplinary records;
• Standard of work performance; and
• Aptitude for work.

Care must be taken at every step to ensure that the chosen criteria are assessed objectively and applied fairly and consistently. The assessment should be carried out by someone with direct knowledge of the employees’ work and written records of the process kept.

Be careful of using terms that are hard to quantify and therefore more likely to be subjective. For example, assessing employees according to their ‘flexibility’ could discriminate against disabled employees or women relying on childcare arrangements to enable them to work. Likewise, care must be taken to avoid claims of disability discrimination when assessing sickness absence or performance.

‘Performance’ data should be supported by (at least) annual performance appraisals to ensure that any assessment made is based on objective evidence.

For a dismissal to be fair, it is necessary that an employee can be provided with sufficient information in order to be able to challenge his or her selection for redundancy.

In the past, employers have sometimes adopted a ‘last in, first out’ approach. However, this could mean that only young people are selected for redundancy, which would lay the employer open to a claim for age discrimination.

The criteria used should be appropriate in the circumstances and this will often depend on the size of the business. There is no requirement that they can only be valid if they can be scored or assessed in a ‘box-ticking’ exercise. The criteria are bound to involve a degree of judgment, but this does not mean that they cannot be assessed in an objective way.

It is important to select criteria that will help maintain a workforce that can best support the future needs of the business, so making sure the necessary skills and experience are retained is crucial. As the reduction in work which causes the redundancy dismissals need not relate to the actual work carried out by the dismissed employees, there may be occasions when an employee whose job is redundant ‘bumps’ another employee out of their job and the latter is made redundant instead. This most often happens when a more senior employee is willing to accept a more junior role in order to avoid redundancy.

Employers are reminded that where an employer is proposing to dismiss as redundant 20 or more employees within a period of 90 days or less, specific procedures for handling collective redundancies come into play.

Employment Rights - Ministers of Religion

The Supreme Court has ruled that a Methodist minister was not an employee of the Church and so cannot pursue her claim for unfair dismissal (President of the Methodist Conference v Preston).

For many years, it was accepted law that ministers of religion did not normally come within the definition of ‘employee’ for the purposes of the Employment Rights Act 1996 (ERA) because they were traditionally deemed to be ‘office holders’ working for God and the unique nature of their appointment to carry out essentially spiritual duties meant that they did not have a contract of employment because there was no intention to create legal relations.

Recent case law has changed this position, however, with the courts recognising that the employment arrangements between a church and its ministers should not lightly be assumed to deny ministers statutory protection in the event of a breach of those arrangements.

Hayley Preston became an ordained minister of the Methodist Church in 2003. In 2005, she was offered and accepted the position of superintendent minister in the Redruth circuit for a period of five years. When she subsequently brought a claim for unfair dismissal, the Employment Tribunal (ET) ruled that she could not proceed with her claim because she was not an employee. Ms Preston appealed against this decision.

The Employment Appeal Tribunal (EAT) overturned the ET’s decision. In doing so it referred to the 2005 decision of the House of Lords, in Percy v Board of National Mission of the Church of Scotland, that the relationship between a minister of religion and her church could be considered to be one of employment within the meaning of the Sex Discrimination Act 1975. As the claimant did not pursue her claim for unfair dismissal, the appeal did not consider whether or not she was an employee within the narrower definition under the ERA. However, the Law Lords had expressed the view that the employment status of ministers of religion needed clarification.

The Court of Appeal subsequently upheld the EAT’s decision, ruling that it was correct in law to find that the relationship between the Methodist Church and Ms Preston was contractual and that her contract was one of service. She was therefore an employee of the Church and entitled to bring a claim of unfair dismissal. The President of the Methodist Conference appealed against this decision and the appeal was upheld by the Supreme Court by a majority of 4:1.

In the Supreme Court’s view, the EAT and the Court of Appeal had ‘over-analysed’ the decision in Percy and paid insufficient attention to the Methodist Church’s Deed of Union and the standing orders which were the foundation of Ms Preston’s relationship with it. The primary considerations in such cases should be the manner in which a minister is engaged and the rules governing his or her service. The intentions of the parties concerned must be construed against their factual background, taking into account the rules and practices of the particular church and any special arrangements made with the particular minister.

The Court found that the manner in which a minister is engaged by the Methodist Church is incapable of being analysed in terms of contractual formation. The mere fact that the arrangement includes payment of a stipend, the provision of accommodation and recognised duties to be performed by the minister is not sufficient to lead to the conclusion that a minister is an employee. Furthermore, the disciplinary scheme applies equally to lay members of the Church and the relationship between a minister and the Church is not terminable except by the decision of the Conference or a disciplinary committee. There is no unilateral right to resign, even on notice.

The Court held that the ministry is a vocation by which candidates submit themselves to the discipline of the Church for life. No special arrangements existed in Ms Preston’s case and her rights and duties arose from her status in the constitution of the Church and not from any contract.

The appeal was therefore allowed and the order of the ET dismissing Ms Preston’s claim was restored.

A Guide to Garden Leave

‘Garden leave’ is the term used to describe the situation in which an employee who has resigned or been dismissed is required to serve out their notice period at home, rather than reporting for work.

Normally, garden leave is used as a protective measure to prevent the departing employee from having access to sensitive data or information that could be useful to a competitor or which would assist them in setting up in competition with their former employer, and from poaching staff.

Whether or not an employer can lawfully instruct an employee to stay away from the office on garden leave during their notice period will depend on whether or not their contract of employment contains a specific clause to this effect and whether the employer’s application of its terms is reasonable. The garden leave clause may be in addition to a ‘non-compete’ or restrictive covenant clause in the same contract.

As restrictive covenants are sometimes difficult to enforce, ensuring that a departing employee is denied immediate access to sensitive data is often sensible. Also, the period of garden leave is not counted as part of the restrictive covenant period.

Where there is no express garden leave clause in the employee’s contract of employment, they could argue that its imposition is a repudiatory breach of contract and claim constructive dismissal.

For the duration of the garden leave, the employee must remain available to work for the employer during normal working hours. They continue to receive their usual salary and benefits, which will normally include bonuses, and can rely on their contractual and statutory rights. As the employee is still bound by their contractual duties, they continue to owe the employer a duty of confidentiality and must continue to act in good faith.

An employee subject to garden leave is obliged to carry out any contractual duties requested by the employer, which may include being asked to return to work. The employer may also place restrictions on contact with clients or other business contacts and impose a ban on making any statements about the employer to the media.

The period of garden leave cannot exceed the employee’s notice period and must not be excessive. In the even of a dispute, the courts will consider whether or not the employee’s skills will suffer as a result of the period out of the workplace.

A Guide to Preventing Disability Discrimination in the Workplace

Under the Equality Act 2010, which repeals all previous discrimination law and brings together the relevant legislation in one place, it is unlawful to discriminate against a worker on account of a physical or mental disability or to fail to make reasonable adjustments to accommodate a worker with a disability.

It is not always necessary to categorise an impairment as physical or mental. It is the effect of the impairment, not its cause, which is material in deciding whether or not someone is disabled for the purposes of the Act. A person will be classified as disabled if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities.

‘Substantial’ is defined as ‘more than minor or trivial’ and an impairment is considered to have a long-term effect if it lasts for 12 months or more. Even if the condition ceases, it is still deemed a disability if it is likely to recur.

The Act does not specifically define ‘normal day-to-day activities’ but, in this context, ‘normal’ should be given its ordinary, everyday meaning and, in general, the activities are those people do on a regular or daily basis, such as shopping, reading and writing, having a conversation or using the telephone. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is normal for a large number of people, and carried out by people on a daily or fairly regular basis. This does not have to be a majority of people, however. Some activities, for example applying make-up or using hair curling equipment, are predominantly carried out by women and would not, therefore, be said to be normal for ‘most’ people. They would, nevertheless, be considered to be normal day-to-day activities.

Normal day-to-day activities do not include work of a particular kind because no particular form of work is ‘normal’ for most people. In any individual case, the activities carried out might be highly specialised. The Act only covers effects which go beyond the normal differences in skill or ability. However, work may still involve normal day-to-day activities – for example sitting down, standing up, verbal interaction, writing, using everyday objects such as a keyboard, or lifting or moving everyday objects.

Whether a person satisfies the definition of a disabled person for the purposes of the Act will depend upon the full circumstances of the case.

The Act replaces the concept of disability-related discrimination with a new protection from discrimination arising from disability. This means that an employer discriminates against a disabled person if it treats them less favourably than they would another person because of something arising from, or in consequence of, their disability. The employer will have a defence if it can show that the unfavourable treatment was a proportionate means of achieving a legitimate aim or if the employer did not know, or could not reasonably have been expected to know, that the employee had a disability.

Where a provision, criterion or practice (PCP) puts a disabled employee at a substantial disadvantage compared with a non-disabled employee, the employer must take all reasonable steps to eliminate the disadvantage. This could include re-deployment to a different type of work if necessary. The making of an assessment as to what reasonable adjustments might be made is not in itself capable of amounting to a reasonable adjustment.

The duty to make reasonable adjustments for the benefit of an employee who becomes unable to do their job owing to disability is a positive duty which can, on occasion, require the employer to discriminate in favour of a disabled employee if he or she could carry out an alternative job within the same organisation. Depending on the circumstances, this could mean that an existing disabled employee must be given a job, even if there are other better-qualified candidates for the post, if he or she is capable of doing it.

If a non-disabled person would be affected by the PCP in exactly the same way as a disabled person, for example where its effects are purely financial, there is no comparative substantial disadvantage to the disabled person and no duty to make reasonable adjustments arises.

Nor does the duty to make reasonable adjustments to working practices extend to enabling a disabled employee who is 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.

All reasonable steps must be taken to avoid disadvantage to disabled workers that arise because of physical features in the workplace. This could involve making adaptations to the premises, such as removing the physical feature in question, altering it or providing a reasonable means of avoiding it.

In addition, steps must be taken to provide auxiliary aids or services to help disabled personnel overcome a disadvantage. For example, a specially adapted computer keyboard could enable an employee with arthritis to overcome the substantial disadvantage posed by their condition.

These duties are also owed to job applicants. For example, employers must make adjustments to recruitment and selection procedures in order to accommodate disabled candidates, such as providing the job application form in large print for someone with a visual impairment.

In addition, in order to protect job applicants with a disability from discrimination during the recruitment process, the Act prohibits the use of questionnaires on an applicant’s general health and related issues prior to a job offer being made. This includes prohibiting the use of such questionnaires before selecting a pool of applicants from whom the successful candidate will be chosen.

The measure does not prevent employers from asking job applicants any questions about their health but stipulates that they are only allowed to do so for specific purposes, for example deciding whether a job applicant can carry out a function that is essential (‘intrinsic’) to the work concerned.

The Act also contains provisions that allow positive action specifically in the process of recruitment and promotion, in limited circumstances. These provisions mean that it is not unlawful to recruit or promote a disabled candidate who is of equal merit, in relation to the specific job or position for which they have applied, to another candidate for the same post if the employer reasonably thinks that people with a disability are under-represented in the workforce or suffer a disadvantage connected to their disability.

This kind of positive action is only allowed where it is a proportionate way of addressing the under-representation or disadvantage. The Act does not allow an employer to appoint a less suitable candidate just because he or she is disabled and that protected characteristic is under-represented or disadvantaged.

Employers must not treat an employee unfairly who has made or supported a complaint about discrimination because of disability.

Disabled employees are also protected from harassment. Harassment is unwanted conduct that is related to a person’s disability that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for that person or of violating their dignity.

The Equality Act also outlaws discrimination by association and discrimination by perception.

Discrimination by association, in this context, occurs when a person is treated less favourably because they are linked or associated with someone who is disabled. The person is not themselves disabled but is treated less favourably than others because of the disability of a friend, spouse, partner, parent or another person with whom they are associated.

Discrimination by perception, in this context, happens when a person is discriminated against because they are thought to have a disability when in fact they do not.

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: 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: 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.

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.

ECHR Rules in Religious Discrimination Claims

The European Court of Human Rights (ECHR) has handed down its rulings in four UK cases in which Christian employees claimed to have suffered discrimination at work on account of their religious beliefs. Two of the cases concerned women who were prevented from wearing a crucifix at work and two involved employees who were expected to perform work that was inconsistent with their religious beliefs.

Article 9 of the European Convention on Human Rights protects an individual’s right to freedom of thought, conscience and religion. This includes a right to manifest one’s beliefs, subject only to such limitations that are ‘in accordance with law’ and are ‘necessary in a democratic society’.

The judges ruled in favour of Nadia Eweida, the British Airways employee who lost her case at the Court of Appeal that she had been the victim of religious discrimination after she was suspended for refusing to conceal her cross when asked to do so as she regarded it as an important visible expression of her faith.

Ms Eweida was reinstated after BA changed its uniform policy to allow staff to display a symbol of their faith. However, she was of the view that the airline had been guilty of having different rules for different minority groups, and pursued her case through the courts.

The ECHR ruled that the UK courts had erred in attaching too much importantance to BA’s desire to present a particular image. There was no evidence that the wearing of religious clothing, such as turbans, by adherents of other faiths had negatively affected BA’s brand. In this particular case, Ms Eweida’s rights under Article 9 had been breached.

The ECHR rejected the claim of Shirley Chaplin, however. Mrs Chaplin, a former nurse, had been asked not to wear her crucifix necklace by her employer, the Royal Devon and Exeter Foundation NHS Trust, for health and safety reasons. When she refused, she was moved to a desk job that did not involve working with patients. The ECHR held that although her right to manifest her religion had to be taken into consideration, it was outweighed by the need to ensure health and safety in a hospital ward. There was therefore no breach of her rights under Article 9.

Lillian Ladele, a former registrar who was disciplined by Islington Borough Council after she refused to carry out civil partnership ceremonies lost her action as did Gary McFarlane, a counsellor for Relate who was dismissed after he expressed concerns about the possibility of having to carry out relationship work involving same-sex sexual issues. In reaching its decision, the ECHR concluded that national authorities are allowed ‘a wide margin of appreciation’ exactly how they achieve a balance between competing rights under the Convention. The scope of this margin will vary according to the circumstances, the subject-matter and the background and, in these cases, it was not exceeded.

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 KHS AG v Winfried Schulte, the European Court of Justice (ECJ) 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.

In Neidel v Stadt Frankfurt am Main, a firefighter in Germany retired after a long period of sickness absence. His request for payment in lieu of leave not taken was rejected on the Ground that German civil and public law makes no provision for financial compensation for leave not taken. The matter was referred to the ECJ, which confirmed that workers in Herr Neidel’s position do have a right to payment in lieu of any untaken holiday they have accrued, but this only relates to the statutory minimum four-week period of paid leave specified in the Directive, even if the member state’s national law entitles workers to a more generous annual leave entitlement. It is up to individual member states whether or not they extend the entitlement over and above the minimum allowed.

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.

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 (£74,200 after 1 February 2013).