http://www.lelc.co.uk/en-gbFri, 17 Feb 2012 01:01:01 GMThttp://www.lelc.co.uk/news/58/director+feels+the+heat+after+premises+fire/ Overview You may recall last year, we informed you there are still many employers/persons in control of premises not paying sufficient attention to fire safety law? (See Lloyds Law Safety Alert: Fire breaches lands employer in court 1211). Unfortunately, the message is still not getting through, as another serious case – considered a landmark hearing for the UK fire and rescue service (FRS) – shows, as it is believed to be the first time that a jury, rather than magistrates or an individual judge, has convicted a defendant under the Regulatory Reform (Fire Safety) Order 2005, commonly referred to as the FSO. What happened? A fire broke out in a London hotel and the blaze spread quickly from a first floor guest bedroom, up a staircase to the floor above and along a corridor. Three people escaped from the fire, two by using the stairs and a third by climbing out of a second floor window. Following the fire, London FRS fire safety inspectors visited the hotel and discovered a number of serious fire safety concerns. These included defective fire doors, blocked escape routes and no smoke alarms in some of the hotel’s bedrooms. The hotel owner/director was also unable to produce a suitable and sufficient fire risk assessment and was found not to have provided staff with adequate fire safety training. What were the consequences? The owner initially appeared before magistrates for contraventions of the FSO, and the case was first heard at Highbury Corner Magistrates Court, where he pleaded not guilty to all twelve charges. The case was committed to Blackfriars Crown Court for trial, where the defendant was found guilty on all counts, with the fine being apportioned between the corporate defendant (the hotel as a ‘limited company,’) fined £30,000, and the individual defendant (the ‘owner/director’) receiving a fine of £180,000. The defendants were further ordered to pay prosecution costs of £50,000 and compensation of £2,000 (to a guest who had to escape the fire through a second floor window). What do you need to do? The above case is yet another illustration of the powers of the FSO, so it is vital to recognise that responsibility for fire safety is specifically that of the ‘Responsible Person’ i.e. the employer/occupier or person otherwise responsible for the premises. In practice, this means that Responsible Persons in control of premises are required by law to carry out a fire risk assessment and act on its findings. The risk assessment should also identify actions that need to be taken in order to protect the building from fire. It must be kept under constant review and amended if any changes are made to the premises This is a good time to ensure risk assessments, standards, training and supervision are appropriate, up-to-date and the provisions of your health and safety policy are being applied in practice. Fri, 17 Feb 2012 01:01:01 GMThttp://www.lelc.co.uk/news/57/convictions+to+become+%91spent%92+sooner/ The Government is proposing to reduce the amount of time an individual must wait before a criminal conviction can be classed as ‘spent’. It is anticipated that the changes will come into force in April 2013. This is of interest to employers as once an individual’s conviction is spent, it does not have to be disclosed unless an exception applies. An example of when an exception would apply is if the job was exempt under the Rehabilitation of Offenders Act, such as a dentist, or there is a regulated activity under the Safeguarding Vulnerable Groups Act 2006, for example teaching children in a school. The Government hopes that by enabling convictions to become spent sooner, it will be easier for former offenders to find work and break the cycle of offending. For those employers that are required to carry out Criminal Record Bureau (CRB) checks Lloyds can help you with this. We act as an Umbrella Body to the Criminal Records Bureau. This means we can act as an intermediary between you as the employer and the Criminal Records Bureau and simplify the whole checking process for you. If you would like further information about this service please contact us on crb@lelc.co.uk If you have any employment issues regarding spent or unspent criminal convictions please contact Lloyds for advice. Mon, 13 Feb 2012 01:01:01 GMThttp://www.lelc.co.uk/news/56/unsecured+load+and+first+aid+failings+cost+employer/ Overview Employers are required to ensure there are effective control measures in the workplace to prevent injury or ill health as far as is reasonably practicable. They are also required to ensure there are adequate first aid arrangements for their employees whilst at work. The level of first aid arrangements required is dictated by a needs assessment of risk, accompanied by an appropriate level of training and effective communication to ensure everyone in the organisation is aware of what to do in the event of an injury. Not following these requirements led to a serious workplace injury, followed by an inadequate first aid response, that subsequently landed an employer in court as this recent case shows. What happened? An employee was using a forklift truck to load computer cabinets onto a trailer at a logistics company’s distribution park in Lichfield, Staffs, when he noticed that one of the cabinets was rocking on the forks. He got out of the forklift to catch it, but the load fell forward, hitting him on the head and knocking him to the ground, breaking his neck and right wrist. Why did it happen? Firstly, the company had failed to assess the risks of moving and loading goods in a secure manner, and to instruct, monitor and supervise forklift drivers properly. Secondly, the company’s system for dealing with accidents or injuries at work was also inadequate. Although the employee was bleeding from a visible head wound, the depot manager did not know who the first aiders were, and rather than leaving him in the office with a colleague, the manager instead took him around the site looking for help. When a trained first aider finally assessed his injuries, he failed to recognise their seriousness; nobody called an ambulance and the first aider drove the injured employee by car to a hospital with no accident and emergency unit. What were the consequences? After being airlifted to Heartlands Hospital in Birmingham, he eventually spent six days in hospital and 14 weeks in traction, and is now partially disabled. The investigating Health and Safety Executive (HSE) inspector commented: "There had been a string of management failings. It was clear that this employee had suffered a head injury and the company should have treated this as a very serious incident and called an ambulance immediately.” The company admitted breaching Section 2(1) of the Health and Safety at Work Act 1974 at Stafford Crown Court for failing to ensure its employees’ safety, and was fined £60,000 and ordered to pay costs of £41,339. What do you need to do? The common thread throughout is that there was a failure to identify risk and put into practice effective forklift truck control measures, proper first aid arrangements, and communicating them to management and staff. This is a good time to ensure risk assessments, standards, training and supervision are appropriate, up-to-date and the provisions of your health and safety policy are being applied in practice. CALL LLOYDS ON 0844 7700 656Wed, 8 Feb 2012 01:01:01 GMThttp://www.lelc.co.uk/news/55/timings+for+law+reforms/ January is proving to be a busy month for updates on the government’s law reforms. In a written answer to Parliament the Employment Relations Minister has provided further details of timings for reforms announced last year. Subject to Parliamentary approval the following tribunal changes will come into effect on 6th April 2012: Unfair dismissal cases These will be heard by a judge sitting alone. At the moment, unfair dismissal cases are usually heard by a judge and two lay (non-legal) members. Witness statements will be ‘taken as read’ unless a judge directs otherwise This means that witnesses will not usually be required to read out their statements as part of their evidence; instead the tribunal will read these in private. Witness expenses The government will withdraw state-funded witness expenses. Instead, Tribunals will be given powers to direct parties to bear the costs of witness attendance, including the costs of witnesses called by the successful party. The Employment Relations Minister has stated that the following ‘will be implemented when parliamentary time allows’: Financial penalties for employers Of concern is if employers are found to have breached employment rights the tribunal will have discretion to decide whether or not to impose a financial penalty on the employer. The penalty would be payable to the Exchequer and would be in addition to any award made to the employee. Such penalties will be half of the total award made by the tribunal, subject to a maximum cap of £5,000. The penalty will be reduced by 50% if paid within 21 days. The impact of this is that it could be more costly for an employer if they fail to comply with an employee’s legal rights. How you treat your employee’s now could affect any future claim brought against you when this penalty system is in place. Early conciliation This will require claimants to submit tribunal claims to ACAS initially so that the parties can try to reach an agreement without resorting to an employment tribunal. If agreement cannot be reached or parties refuse to take part the claimant will then be able to submit a claim to an employment tribunal. We will keep you updated with any further developments. If you have any questions, or we can be of assistance please do not hesitate to call Lloyds Law. CALL LLOYDS ON 0844 7700 656 Tue, 31 Jan 2012 01:01:01 GMThttp://www.lelc.co.uk/news/54/employer+failed+to+follow+own+safety+procedures/ Overview Most employers recognise that it is a legal requirement to carry out risk assessments and have an effective Health and Safety Policy. In reality though, accidents and subsequent offences occur when the risk assessments are inadequate and/or the procedures called for in the health and safety policy are ignored or not properly maintained, as the recent prosecution case below shows. What happened? The line supervisor in an Essex packaging company was using cleaning paper to dry machine parts, when the paper got caught between two glue rollers, pulling her right hand into the machine and severing the tips of two of her fingers. An investigation by the Health and Safety Executive (HSE) found that although the company's stated policy was not to clean the gluing machine while its rollers were rotating, it was standard practice to ignore this. Why did it happen? Basildon Magistrates' Court was told staff were not given adequate training in how to clean the machine safely, and the guard it had been fitted with was not well enough maintained to prevent access to the rollers. The investigating HSE inspector commented: "The worker was failed by the company's lack of proper training, inadequate assessment of risks, an absence of safe working practices and preventing access to dangerous equipment. "It is simply unacceptable that this lady should be injured at work as a consequence of her employer's negligence. I hope other employers take note of this case and review their own processes." What were the consequences? The employee was off work for approximately two months but has been told the nerve damage she suffered to her fingers may be permanent. The packaging firm of Edgware, Middlesex, pleaded guilty to breaching Section 2 (1) of the Health and Safety at Work etc Act 1974 and was fined a total of £12,000 with costs of £4,971 – note: Section 2(1) of the Health and Safety at Work Etc. Act 1974 states: ‘It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.’ What do you need to do? This is a good time to ensure risk assessments, standards, training and supervision are appropriate, up-to-date and the provisions of your health and safety policy are being applied in practice. CALL LLOYDS ON 0844 7700 656 Fri, 27 Jan 2012 01:01:01 GMThttp://www.lelc.co.uk/news/53/increase+to+parental+leave+to+come+into+effect+in+2013/ The Department of Business Innovation and Skills has confirmed that the entitlement to parental leave will be increased from 13 to 18 weeks in March 2013. Parental leave gives qualifying employees the right to take a period of unpaid leave to care for a child. Overview of the Current Position To qualify for the right to take statutory parental leave employees must: Have one year’s continuity of service Have or expect to have responsibility for the child (usually biological or adoptive parents) Be taking time off to care for the child Employees of either sex can take parental leave providing they qualify. The current entitlement is to: A maximum of 13 weeks parental leave to care for a non-disabled child and A maximum of 18 weeks parental leave to care for a child who is in receipt of disability living allowance The employee must take their parental leave before: The child’s fifth birthday A disabled child’s 18th birthday The fifth anniversary of an adopted child’s placement with the employee (or the adopted child’s 18th birthday whichever is sooner). Employees cannot take more than four weeks parental leave per qualifying child per year. Parental leave must be taken in blocks of weeks, apart from where it is taken to care for a disabled child. In that circumstance parental leave can be taken as single days. If your employee wishes to take a period of parental leave they will usually need to give you 21 days’ notice of this. It is possible in some circumstances to postpone your employee’s requested parental leave; however this is not action that should be taken lightly and you should seek advice from Lloyds Law before doing so. Proposed Changes to Parental Leave In 2011, the government published its Consultation on Modern Workplaces which proposed various changes to existing arrangements for unpaid parental leave. These include the removal of the requirement for a qualifying period of a year's service and the extension of the age until which parental leave may be taken. The consultation was closed in August and we are currently awaiting the government’s response. This was expected at the end of last year but has been postponed until early 2012. We will update you once the response has been published. In the meantime, if you have any employment issues with which we can assist, please do not hesitate to contact us. CALL LLOYDS ON 0844 7700 656 Mon, 23 Jan 2012 01:01:01 GMThttp://www.lelc.co.uk/news/52/unfair+dismissal+qualifying+period+%96+further+developments/ On 6th April 2012 the length of service required by an employee to bring an ordinary unfair dismissal claim will increase from one to two years’ service. How this would affect existing employees has been unclear. However, the Department for Business Innovation and Skills has indicated (although not yet formally announced) that subject to parliamentary approval, the increased qualifying period will only apply to employees whose employment begins on or after 6th April 2012. What this means is that: Employees employed before 6th April 2012 will only need one year’s continuity of service to bring an ordinary unfair dismissal claim Employees employed on or after 6th April 2012 will need two years continuity of service to bring an ordinary unfair dismissal claim Based on previous practice, we anticipate that parliament will adopt the above approach. If so, it will be important that you maintain accurate employment records to enable you to determine at which point each employee will qualify for ordinary unfair dismissal rights. We will keep you updated on any further developments in this area. In the meantime, if you have any employment law issues we can assist you with please do not hesitate to contact us. CALL LLOYDS ON 0844 7700 656 We can help at every stage through to resolution Wed, 18 Jan 2012 01:01:01 GMThttp://www.lelc.co.uk/news/51/case+law+developments+2011/ Employment law is an ever changing area and we have seen a number of interesting cases over 2011. We have selected some hot topics and put together a brief roundup of cases of interest. Discrimination Philosophical belief As you may already be aware, it is unlawful for employers to discriminate against workers because of their philosophical belief. ‘What is a philosophical belief?’ I hear you ask. Well for a philosophical belief to be protected under the Equality Act, a number of guidelines have to be met. These include the belief being genuinely held, attaining a certain level of cogency, seriousness, cohesion and importance, and being worthy of respect in a democratic society. Last year tribunals found that the following were philosophical beliefs for the purposes of protection from discrimination: A belief in the sanctity of life extending to a fervent anti-hunting belief A belief that public service broadcasting has a higher purpose of promoting cultural interchange and social cohesion However, the following were held not to pass the test: A belief that people should wear a poppy from 2nd November to Remembrance Sunday A belief that the terrorists attacks of 9/11 and 7/7 were carried out by the US and UK government as part of an evil conspiracy If you have any questions regarding philosophical beliefs and discrimination, please contact us for advice. Marital Status It is clear that an individual can bring a discrimination claim if they are treated less favourably because they are married. In Dunn v The Institute of Cemetery and Crematorium Management, the EAT held that an employee could bring a discrimination claim on the basis that she was married to a particular person. Employers should therefore ensure that they treat all employees fairly, irrespective of who their spouse may be. Sex Discrimination In Eversheds Legal Services Ltd v De Belin the EAT held that an employer discriminated against a male employee on the ground of his sex during a redundancy selection exercise. The employer awarded a female employee who was on maternity leave a maximum score for a criterion which they could not judge because she was on maternity leave. However, the male employee was scored on his performance and it was his actual score that was used. Whilst pregnant employees and those on maternity leave can be treated more favourably than male colleagues, this should only be to the extent that it is reasonably necessary to remove the disadvantages caused by their condition. It was held in this case that the employer's actions had gone too far. They were not a proportionate means of removing the woman's disadvantage. There were less sex discriminatory alternatives available, such as measuring both employees' actual performance during the period before the woman's maternity leave started. Because of this, the employer was found to have discriminated against the male employee. This case highlights the pitfalls that employers can fall into in redundancy situations, particularly where ‘tricky’ issues are involved. As such, you should always seek advice prior to taking any action. Social Media and Dismissals The number of cases involving dismissals for comments made using social media is increasing. The cases from last year highlight the importance of having a social media policy in place and acting reasonably in dealing with ‘online conduct’. In Crisp v Apple Retail (UK) Ltd, the employer was found to have fairly dismissed an employee for making comments on Facebook that it considered could damage their reputation. The employer had clear policies and procedures in place which it was able to successfully rely on. However, the case of Witham v Club 24 shows that even if you have policies and procedures in place it is important to act reasonably in relation to online conduct or you risk a successful unfair dismissal claim. In this case the tribunal found that the employee’s comments on Facebook were relatively minor, they did not specifically refer to a client nor was there any evidence of any actual or likely harm to the relationship with the client. As such, the employer was found to have unfairly dismissed the employee. To support clients with the increase in the use of social media, computers and the internet Lloyds Law have an updated computer and internet policy available on request as well as a social media policy. If these are of interest to you, please contact your consultant who will be happy to help. Changing Terms and Conditions In the current economic climate increasing numbers of employers are proposing changes to their employees’ terms and conditions, such as pay reductions. If, following consultation, employees do not agree to such changes employers may need to dismiss employees and re-employ them on new terms and conditions. In Garside and Laycock Ltd v Booth an employer found themselves in exactly that situation. Two employees refused to accept a five per cent pay cut which had been agreed by the majority of the workforce. The EAT confirmed that employers in such situations do not need to show that their business reason for wishing to make the change was special or extraordinary; the main focus of the tribunal should be the reasonableness of the employer's decision. If you wish to make detrimental changes to your employees’ terms and conditions, it is vital that you seek advice before taking action. You will need to ensure that you can demonstrate that you have good business reasons for the change, you have followed a fair process (depending on the number of employees who could be affected by the change this can mean undertaking collective consultation) and that any dismissals were reasonable. We will be keeping you updated with case law developments throughout 2012. Remember that Lloyds Law is here to help. If you have any employment law issues please do not hesitate to contact us. CALL LLOYDS LAW ON 0844 7700 656Fri, 13 Jan 2012 01:01:01 GMThttp://www.lelc.co.uk/news/50/2012+%96+in+brief/ With changes on the horizon for 2012 we thought we would set out some of the main anticipated developments. February The limits on certain tribunal awards and other sums payable under employment legislation will increase from 1st February 2012. These can be found below: Title Current rate Increased rate Limit on a week’s pay (relevant for such things as redundancy pay calculations) £400.00 £430.00 Guarantee pay (maximum per day) £22.20 £23.50 Maximum compensatory award for unfair dismissal £68,400 £72,300 April On 6th April 2012, the length of service required by an employee to bring an ordinary unfair dismissal claim is set to increase from one to two years’ service. April is also the month in which the minimum rates for statutory payments increases. You can find the proposed new rates below: Title Current rate Proposed increased rate Statutory Maternity Pay First 6 weeks paid at 90% of normal weekly earnings Then 33 weeks at £128.73 (or 90% of normal weekly earnings if this is lower). First 6 weeks paid at 90% of normal weekly earnings Then 33 weeks at £135.45 (or 90% of normal weekly earnings if this is lower). Paternity Pay £128.73 per week (or 90% of normal weekly earnings if this is lower) £135.45 per week (or 90% of normal weekly earnings if this is lower) Adoption Pay £128.73 per week (or 90% of normal weekly earnings if this is lower) £135.45 per week (or 90% of normal weekly earnings if this is lower) Statutory Sick Pay £81.60 per week £85.85 per week October This is the month in which any increase to the National Minimum Wage will take effect. We will make you aware of any developments once they have been announced. As you may already be aware changes to the law in respect of pensions will mean that employers will be required to automatically enrol eligible ‘jobholders’ into a qualifying pension scheme and make a contribution towards it. When this duty will apply to your organisation depends on the number of people in your PAYE scheme, larger employers are affected first with implementation dates taking place over a four year period. For the largest employers (those with 120,000 people in their PAYE scheme) the new pension duty applies from 1st October 2012. You can check the date on which the new duty is likely to apply to your organisation by clicking here Other Developments There are a number of other matters we will be hearing more about in the coming year. These include: The Government’s Response to the Consultation on Modern Workplaces This consultation was in respect of proposals regarding changes to parental leave, flexible working, holiday carry over rules in the Working Time Regulations and increased flexibility for employers regarding holiday. We expect the government to announce their response to the consultation early this year. Future Consultations The government intends to consult on protected conversations. These are described as frank conversations that can be held between employers and employees which neither party could use as evidence against the other in a tribunal. There will also be a consultation on the introduction of a ‘rapid resolution scheme’ which could be used as an alternative to tribunals hearing low value and straight forward claims such as those for holiday pay. The government will be seeking views on introducing a "simpler, quicker and clearer dismissal process", which could potentially include changes to the Acas Code of Practice. Amendments to Whistleblowing Rules At the moment there is a ‘loophole’ that enables workers to blow the whistle about breaches of their own personal work contract. Vince Cable has made it clear that the whistleblowing legislation was not intended to permit this and that it is going to be stopped in future. As such we can expect to see developments in this area. Additional Financial Penalties for Employers The government intends to introduce financial penalties for employers who lose at tribunal. This would be in addition to the amount awarded to the claimant and would be payable to the Exchequer. The penalty will be half of the total award made by the tribunal and will be subject to a maximum cap of £5,000. The penalty will be reduced by 50% if paid within 21 days. The levy of a financial penalty will not be automatic, and will instead be at the tribunal's discretion. If a penalty is imposed, employers will be able to appeal. There is no date yet announced for this change. We will keep you updated with developments; in the meantime if you have any employment law queries please contact Lloyds Law. CALL LLOYDS LAW ON 0844 7700 656 Fri, 6 Jan 2012 01:01:01 GMThttp://www.lelc.co.uk/news/49/hse+reduces+hourly+rate+inspection+fee/ What has been announced? You may recall that in Lloyds Safety Alert (0711A), we told you about the HSE’s (Health and Safety Executive) plan to charge employers for inspectors’ time under the cost recovery scheme due to start in April 2012? The good news is that the original proposal to charge businesses at £133 per hour has been reduced to £124, a drop of around 7%, following a revised estimate of the HSE’s operating costs in the 2012-13 financial year. What is charging a fee all about? We thought a brief reminder of what the scheme entails and how it will impact on businesses would be useful. Under the plans (called the ‘fee for intervention scheme’) the HSE will recover costs when duty holders are, in an inspector’s opinion, in ‘material breach’ of the law - this applies where the duty holder has breached the law and a requirement to rectify the breach is formally made in writing, through improvement and prohibition notices, electronic mail or letter. Duty holders that are complying with the law or are in ‘technical breach’ — where no formal intervention is necessary — will not pay anything. What will it cost businesses? The HSE will recover costs at £124 per hour, as well as passing on any costs of additional specialist support it requires during the intervention. Additionally, current estimates are that writing a letter or email will cost £750 and issuing an Improvement or Prohibition Notice, £1500 each. Fees would be charged up to the point where the HSE's intervention in ensuring a business has corrected the breach is complete. What do you need to do? As compliant firms will not pay a penny in intervention fees, it makes sense to ensure your health and safety policy and associated management system is operating as it should. If this is the case, you will have nothing to fear should you be on the receiving end of an HSE inspection (note: local authority inspectors – Environmental Health Officers (EHOs), have no plans to implement similar charges during their inspection programmes at least for 2012). This is a good time to ensure risk assessments, standards, training and supervision are appropriate, up-to-date and the provisions of your health and safety policy are being applied in practice. CALL LLOYDS LAW ON 0844 7700 656 Tue, 3 Jan 2012 01:01:01 GMThttp://www.lelc.co.uk/news/48/charles+dickens%92+a+christmas+carol+%96+the+employment+edition/ With the year rapidly drawing to a close, we thought it would be a good time to have a look at some of the key employment law developments that have taken place this year and to take a peek at what changes are on the horizon for 2012. In the spirit of Charles Dickens’ A Christmas Carol, the ghosts of employment law past, present and future will guide you through the employment law developments to help you start 2012 on a positive note. The Ghost of Employment Law Past Retirement and the Abolition of the Default Retirement Age From 6th April 2011 the default retirement age of 65 was abolished. This marked a significant change in the law making it considerably more difficult for employers to safely compulsorily retire employees. Whereas, there was previously a safe age at which an employer could compulsorily retire an employee, this is no longer the case. Now, retirement dismissals will be age discriminatory and unfair unless employers can show that the dismissal is a proportionate means of achieving a legitimate business aim. This is a difficult test to meet and you should take advice before retaining a retirement age in your organisation or compulsorily retiring an employee due to the risks involved. If you choose to operate without a company retirement age, either because you cannot justify having one or you do not feel it is necessary in your organisation, it will be the employee’s choice as to when they wish to retire. Employers can still safely dismiss older employees just as they can younger members of the workforce providing: The dismissal is for a fair reason A fair process is followed It is reasonable to dismiss in the circumstances and There is no discrimination In short, you need to ensure you have appropriate policies and procedures in place that apply across your workforce and that you treat employees of all ages fairly. The Ghost of Employment Law Present This year has seen the introduction of two important pieces of legislation, that whilst not employment law, still have significance for employers. These are the Bribery Act and the Agency Workers Regulations. The Bribery Act The Bribery Act came into force on 1st July 2011. It sets out four criminal offences that can be committed, these are: Bribing another person Bribing a foreign public official Being bribed The corporate failure offence All employers need to be aware of the Bribery Act as it introduces a corporate offence which didn’t previously exist. Your organisation can now be convicted of a bribery offence where a person associated with your organisation, such as an employee or a subsidiary company, bribes another person with the intention of obtaining or retaining business or a business advantage for your organisation. This is the case even if you were unaware of the bribery taking place. There are stiff penalties for both individuals and organisations who are convicted of Bribery Act offences. For organisations who fail to prevent bribery, the penalty is a fine. This can be unlimited if your organisation is convicted by a jury. Furthermore, it can also mean that your organisation is excluded from public contracts. However, it is not all doom and gloom for employers as there is a defence to the corporate failure offence. If you can prove you had adequate procedures in place which are designed to prevent those associated with you from bribing, your organisation will not have committed an offence, even if bribery does take place. It is important that you take steps to protect your organisation as this is an Act which is going to be enforced. The first prosecution and conviction took place earlier this year. In this case, a former magistrates' court clerk was convicted of being bribed when he accepted £500 in exchange for omitting to record a traffic offence. He was given a three-year sentence under the Bribery Act and a six-year sentence for misconduct in public office. If you wish to find out how to protect your organisation from conviction under the Bribery Act, Lloyds has a Bribery Act Workshop available. Please contact us for details of this additional service. The Agency Workers Regulations With much fanfare, the Agency Workers Regulations came into force on 1st October 2011. The Regulations give temporary agency workers new rights to a limited form of equal treatment and bring with them new obligations for hirers and those involved in the supply of temporary agency workers. Some of the temporary agency workers’ new rights apply from day one of an assignment, others are subject to a 12 week qualification period. Day one rights: Access to the hirers collective facilities and amenities Access to information about vacancies with the hirer Rights after completing a 12-week qualifying period: Entitlement to the same basic working and employment conditions the temporary agency worker would have received if they had been recruited directly by the hirer to do the same job. This includes pay (although some elements are specifically excluded) and time off. Additional rights for pregnant temporary agency workers. These include the right to take paid time off to attend antenatal appointments. If an agency worker is not given the equal treatment they are entitled to, a tribunal can award compensation that is just and equitable in the circumstances. Hirers will be solely liable for any breach of the ‘day one rights’. Whilst not strictly jointly and severally liable, both the hirer and the temporary work agency can be liable for any failure to provide equal treatment to the extent they are responsible for the breach. It is therefore important that those who supply temporary agency workers and those who hire them co-operate with each other to ensure the agency workers receive the equal treatment they are entitled to. If you use or supply temporary agency workers and would like further advice on the Regulations, please do not hesitate to contact us. The Ghost of Employment Law Future We are moving into 2012 with the government proposing to radically reform employment law. There are a number of plans for changes and an even greater number of proposals, below you can find an overview of some of the key areas: Doubling the Qualifying Period for Claiming Unfair Dismissal At the moment, to claim ordinary unfair dismissal employees need to have one year’s continuous employment. However, this is set to increase on 6th April 2012 when an employee will need to have two years’ service to bring such a claim. The Government has estimated that the increase in the qualifying period will encourage growth and give businesses the confidence to take on employees. Whilst the change initially seems to be a positive move for employers, providing more freedom to dispense with employees with less than two years’ service, it is important to remember that there are some claims that employees can bring irrespective of their length of service. Such claims include, discrimination and dismissal for certain specified reasons such as whistleblowing. It is important to remember that as is currently the case, the safety of any dismissal always depends upon the facts of the case. In reality, rather than significantly reducing the number of unfair dismissal claims, it is likely that we will see a rise in the number of claims which do not have a length of service requirement. As these claims are more complicated, they will require employers to spend more time defending them – irrespective of whether or not they have any merit. With this in mind the increase in the qualifying period may be a double edged sword. Introduction of Tribunal fees The government previously announced that employees who wish to bring a tribunal claim will be required to pay a fee to do so. The government has commenced consultation on the fee structure and has put forward two proposals. The first proposal is that the claimant would be charged a fee at the point of making a claim and before the case is heard. The level of the fee would depend on the type of claim, with fees being split into three suggested levels. Fees for issuing a claim are suggested to range between £150 and £250, hearing fees are between £250 and £1,250. The second proposal is that there would be a fee payable for bringing a claim and not for a hearing. Fees in this proposal are suggested to range from £200 to £1,750 with the highest fee being applicable to instances where a claimant seeks an award of over £30,000. In respect of options one and two, fees are also proposed where certain applications are made to the tribunal after a claim has been accepted. These include a fee of up to £250 if a party requests written reasons for the tribunal’s decision and a fee of £60 payable by the employer if a case is dismissed or withdrawn after settlement. To ensure access to justice for all, there would be help available for eligible claimants who would have difficulty paying tribunal fees. The fees may be waived completely or the employee may only be required to make a contribution towards it. If a claimant wins their case, the tribunal could require the employer to reimburse the claimants fees for using the tribunal. The impact assessment carried out by the government indicates that the current proposals will leave claimants worse off while respondents, taxpayers and the HM Courts & Tribunals Service would be better off. Whether the introduction of fees will significantly reduce the number of tribunal claims remains to be seen. As the suggested levels are relatively low and help will be available in certain circumstances to those who have difficulty paying, it is doubtful that we will see a dramatic reduction in the number of claims due to the introduction of fees alone. The earliest we can expect fees to be introduced is 2013. If the government decides to implement the second fee option they estimate that fees would not come into force until 2014. Protected Conversations In November the government confirmed that they will be consulting on the introduction of ‘protected conversations’. These are frank conversations that can be held at either an employer or employee’s request without the discussion being admissible as evidence in a tribunal. Nick Clegg previously suggested that protected conversations could cover those about performance and retirement. It is unclear at this stage when the government is proposing to implement protected conversations or how they are proposing they will work in practice. If the proposals are well thought out, this could be a positive step for employers providing greater freedom to safely have difficult conversations with employees. We expect that whatever the ‘rules’ are for protected conversations that there will inevitably be litigation, predictably as to whether or not a particular conversation met whatever requirements are in place for it to be protected. Furthermore, if it is going to be necessary for employers and employees to agree to enter into protected conversations, how many of these will actually take place in practice remains to be seen as employees may be reluctant to have frank discussions where they suspect they are not going to like what the employer has to say. The government will be consulting on protected conversations in the new year and we will keep you updated with the proposals. And Finally….. In the words of Charles Dickens "A merry Christmas to everybody - A happy New Year to all...” Wed, 21 Dec 2011 01:01:01 GMThttp://www.lelc.co.uk/news/47/consultation+on+tribunal+fees+/ The government previously announced that employees who wish to bring a tribunal claim will have to pay a fee to do so. A consultation has now been launched on the proposed fee structure, with two alternative proposals being put forward. Option one The claimant would be charged a fee at the point of making a claim (issuing fee) and before the case is heard (hearing fee).The level of the fee would depend on the type of claim, with fees being split into three suggested levels as shown below: Fee Amount Issuing Fee Level 1 -£150 Level 2 - £200 Level 3 - £250 Hearing Fee Level 1 - £250 Level 2 - £1,000 Level 3 - £1,250 Level one would cover claims for unpaid wages and redundancy payments, level two would cover unfair dismissal claims and level three would be for discrimination and whistleblowing claims. Option Two Claimants would only be charged a fee at the point of making a claim. The amount of the fee would depend on the nature and the value of the claim. In this proposal a Level four fee would be introduced where the claimant seeks an award over £30,000. The suggested fees for this proposal are: Issuing Fee Amounts Level 1 claims £200 Level 2 claims £500 Level 3 claims £600 Level 4 claims £1,750 In respect of options one and two, there will be help available for claimants who would have difficulty paying the tribunal fees and who meet appropriate criteria. The fees may be waived completely or they may only be required to make a contribution towards the fee If a claimant wins their case, the tribunal could require the employer to reimburse the claimants fees for using the tribunal. Fees are also proposed where certain applications are made to the tribunal after a claim has been accepted. These include a fee of up to £250 if a party requests written reasons for the tribunal’s decision and a fee of £60 payable by the employer if a case is dismissed or withdrawn after settlement. The consultation closes on 6th March 2012. If the government decides to implement option number one, fees would be introduced in 2013. If they implement option number two they estimate that fees would not come into force until 2014. We will keep you updated on the outcome of the consultation. If there is any employment law matter we can assist you with, please do not hesitate to contact us. CALL LLOYDS LAW ON 0844 7700 656 Tue, 20 Dec 2011 01:01:01 GMThttp://www.lelc.co.uk/news/46/proposed+new+statutory+payment+rates+/ The government has just announced proposed new rates for statutory payments for 2012. It is expected that the proposed rates will come into force on 9th April 2012. The following payments are proposed to increase to £135.45: • Statutory Maternity Pay • Maternity Allowance • Ordinary/ Additional Paternity Pay • Adoption Pay Statutory Sick Pay (SSP) will increase to £85.85. If you have any questions about statutory payments, or there is any other employment law matter we can assist you with, please do not hesitate to contact us. Wed, 14 Dec 2011 01:01:01 GMThttp://www.lelc.co.uk/news/45/santa+claus+is+coming+to+town/ The festive season is upon us once again and whilst it is a time to eat, drink and be merry it is also a time for employers to ensure that they are prepared for the workplace issues that Christmas can bring. Whilst you may think we have a bad case of ‘Bah Humbug!’ it is important that you take steps to prevent Santa from bringing you the unwanted gifts of grievances, harassment, disciplinary and other issues. Not Everyone Celebrates Christmas It is important to remember that not all employees celebrate Christmas. In your workforce you may have employees of different faiths or beliefs and it is important to ensure that you and your employees are sensitive to this. Care should be taken to ensure that those who do not celebrate Christmas are not made to feel uncomfortable in the workplace during this time. You should also ensure that religious festivals of other faiths are equally recognised. Christmas Parties You should bear in mind that if you are holding a Christmas party (or any other social event) for your staff, it is likely you will be liable for any harm done at the party. This is because a tribunal can find that it is being held in the course of work, this is particularly the case where you organise or pay for the party. As mistletoe and wine can lead to misconduct issues and employee complaints it is important that you make it clear to employees what the expected standards of behaviour are and that inappropriate behaviour will not be tolerated. Lloyds can supply a memo to assist you with this. It will remind your employees that just like Santa, you will know if they have been bad or good so they should be good for goodness sake! If you would like further advice on Christmas parties, or on any other employment matter please do not hesitate to contact Lloyds Law. CALL LLOYDS LAW ON 0844 7700 656 We can help at every stage through to resolution Thu, 8 Dec 2011 01:01:01 GMThttp://www.lelc.co.uk/news/44/fire+breaches+land+employer+in+court/ Many employers are still not paying sufficient attention to their legal obligation to comply with fire safety law. Not only does this put employees and others on or near the premises at risk, but it can have catastrophic consequences for a business if the premises are damaged or totally lost by fire – no place to trade and work and possible law enforcement and insurance difficulties. The following recent case illustrates how it all went wrong for a Suffolk based employer. What happened? An investigation following a fire in a furniture warehouse in Newmarket, Suffolk, found a number of ‘safety critical’ fire safety breaches. They included: Complete obstruction of the fire exits within the warehouse. No fire risk assessment. Poor housekeeping. No reliable means for raising the alarm in the event of a fire. No maintenance of fire safety systems. A lack of emergency lighting. The Suffolk Fire and Rescue Service inspecting officer was so concerned about the safety of the company’s employees that he considered prohibiting the use of the warehouse. It was only due to the staff undertaking immediate and sufficient remedial work that the premises remained open for trading. What were the consequences? The company and two of its directors pleaded guilty to 12 offences of the Regulatory Reform (Fire Safety) Order 2005 (The ‘FSO’) at Bury St Edmunds Magistrates’ Court and were fined £12,000. What do you need to do? This case highlights the importance of compliance with fire safety regulations, and that when employees and others are placed at serious risk, the enforcing Fire and Rescue Service will take robust action against employers/premises occupiers. Therefore, check that you have sufficient fire prevention measures in place already and if not, decide what more needs to be done - then do it! This is a good time to ensure risk assessments, standards, training and supervision are appropriate, up-to-date and the provisions of your health and safety policy are being applied in practice. If you have a query regarding this alert, or any other health and safety related issue, please do not hesitate to contact us. CALL LLOYDS LAW ON 0844 7700 656 Wed, 7 Dec 2011 01:01:01 GMThttp://www.lelc.co.uk/news/43/the+tough+new+approach+to+combating+driving+when+under+the+influence+of+drugs/ It is a criminal offence to drive whilst unfit because of drug use. As an employer it is also an offence to cause or permit a driver to drive whilst unfit due to being under the influence of drugs. Approximately 18% of people killed in road accidents are found to have traces of illegal drugs in their blood, the most common being cannabis. Unsurprisingly this is an area the authorities are focusing their resources upon as they aim to combat the percentage of drug related road deaths. As a result there has been a significant increase in the number of prosecutions being brought by the police against drivers alleged to be guilty of this offence. The penalty carries automatic disqualification and a possible custodial sentence. In furthering this campaign the government is to introduce technology that will enable the police to more thoroughly screen drivers suspected of driving whilst being under the influence of illegal drugs. This is in line with the practice that is operated in many European countries. The new drug driving screening equipment will strengthen the police’s ability to detect low levels of drugs in the saliva of drivers. These are known as ‘cut-off levels’ and can detect the presence of drugs such as cannabis at various readings. For instance the legal ‘cut off’ levels in France are 15ng; Germany 5ng; Norway 20ng. In the UK the cut off level is set at 10ng. This new equipment will be sensitive enough to detect the presence of cannabis at the 10ng level. Companies screening drivers for drugs under a company’s drug and alcohol policy should be mindful of these levels as most of the current saliva screening technology does not detect to these cut off levels. The new will do; so even if you do currently test and screen your staff they could still be found to have an unacceptable amount of cannabis in their system if tested by the police. Of course this then leaves you open to prosecution. At Lloyds we are working with Modern Health Systems Ltd who have devised and can provide the equipment that will be used by our authorities and is already in use in Europe. They are able to offer advice on the new procedures and appropriate equipment to meet your needs and to ensure that your staff are working legally and safely. If you would like some specialist advice or if you need to update your drugs and alcohol policy in light of these recent developments please contact Lloyds Law. If you have a query regarding this update, or any other employment law related issue, please do not hesitate to contact us. CALL LLOYDS LAW ON 0844 7700 656 We can help at every stage through to resolution Thu, 1 Dec 2011 01:01:01 GMThttp://www.lelc.co.uk/news/42/government+announces+%91radical+reform+of+employment+relations%92/ Employers will be forgiven for thinking the government’s proposals to reform employment law have more instalments than a soap opera. In a speech made yesterday Vince Cable announced further proposals for reform and outlined the government’s response to the ‘Consultation on Resolving Workplace Disputes’. The changes and proposed changes are all part of the government’s plan to ‘safeguard workers’ rights, whilst deregulating to reduce the onerous and unnecessary demands on businesses’. In this Legal Update we take a look at the key developments: Early Conciliation Claimants will be required to submit tribunal claims to ACAS initially so that the parties can try to reach an agreement without resorting to an employment tribunal. If this does not work, or parties refuse to take part a claimant will then be able to submit a claim to an employment tribunal. Protected Conversations The government has confirmed that these will be introduced. They will allow employers and employees to have an open conversation regarding matters such as performance and retirement without it being admissible as evidence in a tribunal. The details of the scheme will be the subject of consultation next year. Compromise Agreements These are a contract between an employer and an employee in which the employer agrees to pay the employee a sum of money in exchange for the employee giving up their rights to bring certain claims against them. The government has confirmed that it will be amending wording in the Equality Act to make it clear that compromise agreements can be safely used to settle discrimination claims. Furthermore, the government has announced that they will be consulting on simplifying compromise agreements to make it easier for employers and employees to reach settlements. Rapid Resolution Scheme The government is considering alternatives to tribunal hearings to resolve straightforward employment claims. One option under consideration is an independent legal expert making decisions based on written evidence. Financial Penalties The government intends to introduce a provision which will enable tribunals to impose a financial penalty on employers who are found to have breached employment rights. The sum would be payable to the Exchequer. A penalty will not be payable in all cases, as Tribunals will have discretion to decide whether or not to exercise this power. Whistleblowing The law in relation to whistleblowing will be changed so that employees who complain about breaches of their own employment contract can no longer be considered to be ‘blowing the whistle’. This is good news for employers as it reduces the types of complaint that will be considered to be ‘whistleblowing’. CRB Checks There will no longer be a need to make a fresh application for a CRB check when an employee moves jobs. From 2013 once a CRB check has been completed the results will be available online and for a small fee the individual’s record will be kept up to date ending the need for repeat applications. Increased Flexibility in the Workplace Maternity and paternity leave will be modernised and the right to request flexible working will be extended to all employees. If you would like to read Vince Cable’s speech you can do so byclicking here. Lloyds Law will keep you up to date with any further developments. In the meantime, if you have any employment law issues please do not hesitate to contact us for help. CALL LLOYDS LAW ON 0844 7700 656 We can help at every stage through to resolution Thu, 24 Nov 2011 01:01:01 GMThttp://www.lelc.co.uk/events/11/11/#event-12 10 am to 12 noon Employment update and preparing for 2012 1 pm to 3 pm Behavioural safety - kicking bad habits Delegate fee (including refreshments and lunch) Free to clients of Lloyds Law £50 + VAT per delegate per day or part day Venue Holiday Inn Kings Cross/Bloomsbury 1 Kings Cross Road London WC1X 9HX Telephone: 0207 833 3900 Parking available at local NCP car park Download our brochure for details of our full seminar programme for Autumn 2011 Please contact our seminar co-ordinator on 0844 7700 656 to reserve your place or complete the booking form belowWed, 23 Nov 2011 01:01:01 GMThttp://www.lelc.co.uk/news/41/worker+loses+fingertip+in+unguarded+drill/ A disturbingly high number of fatal and serious injuries are regularly occurring from the use of machinery across the spectrum of industry, resulting in robust action being taken by the enforcing agencies against employers who fail to ensure their machinery is properly maintained and operated in a safe manner. It is important to recognise that there does not have to be an injury for an employer to be prosecuted – a breach of the relevant health and safety legislation could be sufficient grounds for enforcement action. However, in the case illustrated below, the breach did result in injury, which could have been avoided had the right equipment been installed. What happened? A 46-year-old worker was using an industrial drilling machine to drill holes in an iron bar at an engineering firm in Wigan, Lancashire. In order to move the piece of metal into a different position the worker switched off the drill, but it took 30 seconds to stop. As he reached across to switch the machine back on, the drill was still moving and the glove on his right hand got caught in the rotating mechanism, which pulled his hand into the machine. His index finger was severed below the first joint, his middle finger was badly cut and his ring finger was dislocated. Why did it happen? The investigating Health and Safety Executive (HSE) inspector found the accident happened because there was no guard around the chuck and bit to prevent access to dangerous parts. If there had been a guard around the rotating drill, then the worker’s injuries would almost certainly have been avoided. It is also accepted good practice that employees remove rings, gloves, etc to ensure they can’t become entangled in rotating machinery. What were the consequences? In addition to the worker suffering a life-long injury to his right hand, his employer, who did not make sure basic health and safety measures were in place at their factory, pleaded guilty at Wigan Magistrates’ Court to breaching reg. 11(1) of the Provision and Use of Work Equipment Regulations 1998 (PUWER), for failing to take measures to prevent access to dangerous parts of machinery, and was fined £12,500 and ordered to pay costs of £1703. What do you need to do? Take a good look at all your machinery in use, decide what potential harm can be caused and how. Then consider what you need to do to prevent or reduce the identified risks – look at supplier’s instructions, industry standards/good practice, regulatory requirements, etc. Check whether any of these measures are in place already and decide whether more needs to be done - then do it! As well as routine machine operations, you will need to include maintenance, adjustment/setting and cleaning tasks etc, and what happens when there are jams or breakdown issues? The clear message from the HSE is that employers who fail to prevent access to dangerous parts of machinery are breaking the law and can expect enforcement action to be taken against them. This is a good time to ensure risk assessments, standards, training and supervision are appropriate, up-to-date and the provisions of your health and safety policy are being applied in practice. CALL LLOYDS LAW ON 0844 7700 656 Wed, 9 Nov 2011 01:01:01 GMThttp://www.lelc.co.uk/news/40/is+a+refusal+to+allow+an+employee+to+wear+a++poppy+at+work+discriminatory%3f+/ An employment tribunal has handed down a timely decision as to whether an employer’s refusal to allow an employee to wear a poppy at work amounts to discrimination. It was held that it does not. The Equality Act prohibits discrimination by employers on the grounds of philosophical belief. In Lisk v Shield Guardian Co Ltd and others, the employee argued that when his employer refused to permit him to wear a poppy at work, he had been discriminated against, harassed and victimised because of his philosophical belief. He argued that his belief was: ‘We should pay our respects to those who have given their lives for us by wearing a poppy from All Soul’s Day on 2nd November to Remembrance Day’ or ‘That it is necessary to show respect to those who gave their lives by wearing a poppy’. However, the tribunal found that the employee’s particular belief was not protected by the Equality Act as it did not amount to a philosophical belief. Because of this, he had not been discriminated against, harassed or victimised. The tribunal felt that however admirable, the belief was not a philosophical belief for a number of reasons. One of which was that the belief was too narrow. The advice of Lloyds Law regarding the wearing of poppies in the workplace is that whilst it is not discriminatory to refuse to allow them to be worn, it is advisable to act reasonably. You should communicate your position clearly to your employees, and if poppies are not permitted to be worn, explain your reasons for this. CALL LLOYDS LAW ON 0844 7700 656 We can help at every stage through to resolution Mon, 7 Nov 2011 01:01:01 GMT