Employee Management Ltd

The Employment Appeal Tribunal (EAT) has held that the same standard of enquiry is required of an employer in a capability dismissal relating to ill health as in a conduct case.

In this case, the Claimant was a Production Manager who went off on long-term sickness absence due to work-related stress/depression. An occupational health report was sought by the Respondent which concluded that the Claimant was fit for a phased return to work on light duties/reduced hours. However, the report did not indicate if/when the Claimant would be able to return to his full duties.

The Respondent also referred the Claimant to an occupational psychologist who was familiar with the business. His report concluded that it was unlikely that the Claimant could convincingly declare that he would be able to return to work in a demanding environment without potentially succumbing to further periods of stress-related absence in the future.

The Respondent decided to rely on the latter of these reports on the basis that the occupational psychologist had more knowledge of its business and, as a result, the Claimant was dismissed on the grounds of capability.

The Employment Tribunal found that the Claimant’s dismissal was unfair and was critical of the Respondent’s decision to place greater emphasis on the psychologist’s report than that of the doctor. However, the EAT overturned this decision and submitted the case for re-hearing on the basis that the Respondent had diligently carried out medical investigation following which it believed that the Claimant was incapable of performing the work he was originally employed to do as Production Manager. The EAT felt that the Respondent’s grounds for such a belief were reasonable in the circumstances.

Capability dismissals are often complex and need to balance the personal wellbeing of the employee suffering from ill-health with the needs of the business. However, employers should take heart from this case in that it emphasises that the decision to dismiss is managerial by nature as opposed to medical, and it is for the employer to make its own assessment of the situation based on sufficient evidence.

For step-by-step guidance or “as required” professional support on dealing with potentially risky capability issues, please contact one of our HR consultants for a confidential, no-obligation discussion.

The Bribery Act 2010 will make it a criminal offence for an individual or commercial organisation to offer or receive a bribe to bring about or reward the improper performance of a function or activity.

Employers should be preparing themselves now to ensure that they comply with this legislation, which is due to come into force on 1 July 2011. Failure to have adequate procedures in place may result in an organisation and its Directors facing charges in the Crown Court. Conviction for offences under the Bribery Act 2010 carry severe penalties. These include up to 10 years’ imprisonment, capped fines for individuals and/or unlimited fines for an organisations.

Not only must companies look at their own internal procedures by ensuring that financial and commercial controls are in place (e.g. procedures covering rules on business gifts, hospitality and promotional items, procedures on reporting suspected acts of bribery, and details on how anti bribery measures will be enforced), they must also check those of any third parties who will perform services on their behalf.

The Government’s guidance outlines six principles that an organisation will be expected to observe in terms of actively preventing bribery. These are as follows…

1. procedures should be proportionate to the risk i.e. the greater the risk of bribery, the more a company must do to stop it;
2. ‘top-level commitment’ to the prevention of bribery which must be communicated to all employees, customers, suppliers and anyone associated with the Company;
3. regular risk-assessments should be carried out;  
4. apply due diligence procedures to thoroughly examine trading partners or those who perform services on the Company’s behalf;  
5. communicate bribery prevention policies to staff and train employees accordingly;
6. monitor and review the processes and procedures on a regular basis.  

To assist with compliance, we can provide… 

1. Bespoke policies and procedures;
2. Employee Handbook inserts;
3. Template letters to employees informing of impending legislation;
4. A Risk Assessment form;
5. A letter to third party suppliers requesting information;
6. Relevant factsheets.

Contact us for further professional support in assessing whether you are prepared for the forthcoming legislation.

With the introduction of The Agency Worker Regulations 2010 (AWRs) on the 1 October 2011, how will employers adapt to the changes in legislation and how big will the impact be?

Temporary workers can be attractive to businesses that experience regular fluctuations in demand and production needs. Flexible workers allow these types of businesses to increase staffing levels when required but also to rapidly cut back to leaner staffing profiles at short notice and with little consequence.

The additional rights afforded to flexible workers by the AWRs will undoubtedly have a negative effect on such businesses, especially those that routinely engage such workers for more than 12 weeks at a time. The fees paid to agencies to achieve the savings associated with a flexible workforce could, in effect, become nothing more than a cost due to these workers quickly benefitting from the same rights as their permanent counterparts.

To prepare for the introduction of the AWRs, we recommend employers consider taking the following steps…

1. aim to reduce dependence on flexible workers;
2. introduce/amend the organisation’s policy on the employment of flexible workers;
3. take a closer and more frequent look at staffing and sales forecasting;
4. look to reorganise workloads and/or offer overtime where appropriate;
5. cease the use of agreements exceeding 12 weeks (but remember that qualifying service can be accrued despite a break in service so reemployment will not prevent the accrual of equal rights where cumulative service exceeds 12 weeks);
6. replace long-standing flexible Workers with permanent employees and/or new technology;
7. introduce greater flexibility into the contracts of permanent employees (although seek professional support beforehand in order to minimise the risk of associated litigation).

If you routinely engage the services of flexible workers, please contact us for assistance with your workforce planning, contract amendments, policy formation and agency staff transitions.

A worker in Yorkshire sustained horrific injuries but survived with his life after being dragged through a 125mm gap on an inadequately guarded processing machine in Barnsley.

As a result, two companies were prosecuted by the Health and Safety Executive (HSE) following an investigation into the incident. Barnsley Magistrates Court heard that the operator, then aged 23, got entangled on a computer controlled conveyer system used for moving heavy steel beams after looking into an outlet point to check on the process.

His clothing became caught on the machine and he was forced through an opening on the machine head similar in size to that of a standard CD case. As a result, he suffered serious psychological and physical injuries, which included a shattered pelvis, fracture of hips, his right arm and several ribs.

Following the HSE investigation, it was discovered that there was no guarding in place from dangerous moving parts.

The Court was told that both his employer and the company that supplied, installed and signed-off the new equipment as fit for use, were responsible for ensuring suitable and sufficient guarding was in place.

Whilst it was established that the worker was inexperienced in operating the machine, having been transferred from a different line at the factory because of work levels, it was the lack of guarding that was deemed to be the key factor leading to the incident.

His employer pleaded guilty to breaching Section 2(1) of the Health and Safety at Work etc Act 1974, and the company that supplied and installed the machine pleaded guilty to a breach of Section 6(1)(a) of the same Act. The Magistrates remitted the case to Sheffield Crown Court for sentencing.

After the case, the injured worker said:

“What matters most is that the industry learns from my experience. My life has changed forever and no matter how well I recover from my physical injuries, I will still have the psychological impact of the accident hanging over me. I hope my case highlights the dangers posed by not following health and safety regulations. It still won’t be able to put my life back to how it was before the accident, but at least then it might prevent others from suffering in the future.”

If you require any guidance or support on machinery guarding or any other Health and Safety matter, one of our consultants will be able to help. Call us on 01942 727200.

Aer Lingus pilots at Cork, Shannon and Dublin voted last week to take industrial action from 7 June 2011 which will involve them reporting one hour late for duty for every flight and a refusal to work on rostered free days.

Talks between airline and union bosses broke down on Saturday. They recommenced at the Labour Relations Commission in Dublin on Sunday evening and continued through the night. It has today been claimed that pilots based at Belfast and Gatwick have also balloted for industrial action and will serve notice on the company.

The union involved, Irish Airline Pilots Association (IAPLA), claims that there will be a shortage of pilots over the summer which will result in them working an average of six days out of seven. They maintain that rosters were chaotic last summer, with pilots regularly forced to work on this basis throughout the high season, and that the Aer Lingus management have not taken any steps to address the situation.

Our Human Resources consultants are highly qualified and have specialist knowledge and experience in dealing with Trade Union matters. Contact us if you’ve a current or burgeoning issue in this area.

Sharon Shoesmith’s recent Court of Appeal victory sent out a clear message to employers that an employee’s accountability for serious performance and/or conduct issues does not mean that normal procedural requirements can be circumvented when it comes to processing an associated dismissal.

The former Director of Children’s Services for Haringey Council was removed from her job without warning and on live TV by the then Children’s Secretary, Ed Balls (in conjunction with OFSTED and the council) in December 2008 when the furore surrounding Baby Peter’s death was at its height. Appeal judges ruled last week that her employers had unlawfully dismissed and “summarily scapegoated” her.

This case, emotive as it undoubtedly is, serves as a stark reminder to all employers that failing to follow a proper disciplinary procedure when effecting a dismissal will invariably lead to exposure to potentially valid post-employment claims.

If you’re about to instigate a disciplinary process that could lead to dismissal, contacting us for advice, support and guidance beforehand will help reduce this exposure – and will probably save you time, money and effort in the long run.

Whilst it appears that travel disruptions due to the ash cloud are not going to be as severe as last year, there are always some employees who will look for such opportunities to use to their advantage. A recent call to our 24 hour helpline presented such a case. The employee ’didn’t think’ he had to phone in to work when he knew he wasn’t going to return to work, returned a day late, had ‘lost’ all the travel documentation and ‘forgot’ his flight number.

In the event that you suspect that an employee is using the travel disruption as an excuse for a late return, you are well within your rights as an employer to ask the employee to bring evidence on their return to work. You are also well advised to check such documents (a simple internet check via the airport website or call to the airline with the flight number obtained from the booking form/airline ticket is all it takes).

In any event, we suggest that you remind yourselves of our advice last year.

If your employees are caught up in travel disruption over the next few days, as per your normal reporting in procedures they should be contacting you as soon as they know they will not be able to attend work. Failure to do so will mean their absence is unauthorised and could result in legitimate disciplinary action.

For those that call in to advise you that they are stranded due to the ash cloud the time off work is still unauthorised. However it is beyond their control and therefore you would be advised to be more lenient.

There are some important considerations for the business:

1. Ensuring consistency with regards to your approach to those employees who are unable to get to work
2. What options will you offer employees upon their return? (e.g. unpaid leave, additional holiday, swap shifts, paid leave and work the time taken off at a later date)
3. Can the employees work from wherever they are? For any senior level employees you may want to consider whether to ask the employee to utilise a  hotel business centre.
4. Consider any knock on effects and your consistent approach (for example if nurseries are short staffed and close, some of your employees may not have access to childcare and any time they need off may come under ‘time off for dependants’)
5. Contingency planning, whilst this latest ash cloud is reportedly not going to be as severe as last years, what happens if this goes on a week, a month……?

So, for support and guidance on suspicious claims or ensuring consistency in your approach, please contact one of our HR consultants

It goes without saying that every employee has a right to a fair hearing. It is obvious that a person who is the subject of a grievance should not be involved in the investigation or hearing of that grievance. However, employers may also need to consider the position of others who are closely associated with the subject matter. In this case, the Employment Appeal Tribunal (EAT) considered “apparent bias” among the panel members assigned to deal with an appeal against a grievance.

The Claimant’s grievance was against the Director of Marketing and Communications and related to intimidating, threatening and undermining behaviour. In her evidence, the Claimant referred to the fact that the Director had just received a crimnal conviction for breach of the peace (carrying a firearm), which supported her view that he could display aggressive behaviour.

The Claimant’s grievance was not upheld and she subsequently appealed against this decision raising concerns about the constuitution of the appeal panel, in that one of the members (the University Secretary) was involved in the appointment of the Director, had participated in the decision not to accept his resignation following the breach of peace conviction and had acted as the Director’s spokesperson in publicly articulating support for him, explaining that the university viewed it as a private matter which did not affect his employment.

When the Claimant was advised that the appeal panel would include the Secretary, she wrote to say she would not be attending the appeal hearing on the basis of her perception that the Secretary had a conflict of interest. The letter included the Claimant’s resignation.

The other panel members decided that there was no conflict of interest and the Secretary was included in the appeal panel. The appeal hearing was convened without the Claimant and her appeal was rejected.

The EAT concluded that it was not enough for it to be normal for the Secretary to sit on such a panel and for his two panel members to have decided that he was not in fact biased. It held that no reasonable Tribunal could have thought it was appropriate that he sat on the panel and therefore the earlier decision to the conrary was perverse. Accordingly, the Claimant had been constructively dismissed.

In large organisations (as in this case), it is relatively easy to have a panel who have had no involvement in the matters to date, whether this is just general knowledge of the matters of concern or where they are directly involved. In smaller organisations, it is more difficult and if the employee raises concerns in this regard, it is not the responsibility of the panel to decide whether the person may be biased. This could equally apply in other hearings, e.g. those relating to a disciplinary process.

If you are an employer faced with a complex grievance or disciplinary process and feel you may benefit from professional support and guidance, please do not hesitate to get in touch.

The Government has published a new consultation document called ‘Consultation on Modern Workplaces’ which seeks views on the following proposals:

Flexible Parental Leave  

Keeping 18 weeks’ maternity leave for mothers, then recategorising the remainder as ‘parental leave’ and permitting it to be taken by either the mother, father, or both. The consultation will also consider whether employees should be permitted to take such parental leave in blocks or on a part-time basis.

Flexible Working

Extending the right to request flexible working to all employees, as opposed to just those with children under 17 (or 18 for parents of disabled children).

Working Time Regulations

Amending these to reflect case law providing for the carry over of untaken annual leave to subsequent holiday years where workers have lost the chance to take such leave due to sickness absence or maternity/parental leave.

The document proposes to limit carried-over holiday for sickness absence to the four weeks’ compulsory paid leave provided under the Working Time Directive (i.e. excluding the extra 1.6 weeks the WTRs provide in excess of minimum EU requirements), although consideration is being granted to permitting employers to “buy out” those 1.6 weeks.

Equal Pay:

Obliging Employment Tribunals (where it is productive to do so) to require employers to undertake a pay audit where they have been found guilty of breaching equal pay legislation.

Consultation closes on8 August 2011.

As evidenced by the above, current employment laws are built on shifting sands. For advice on the current position and guidance on how best to prepare for the future, please feel free to contact us.

From 12 September 2012, all reportable work related injuries and incidents reported under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrence Regulations 1995) will move to an online system

It is reported that more than half of reportable injuries are already notified to HSE through the website, and this proportion has been increasing steadily over recent years. However, it is recognised that people reporting a traumatic event often prefer personal interaction, and so telephone notification of major and fatal injuries will still be possible via telephone following the introduction of this change.

In keeping with this drive to improve efficiency and deliver value to taxpayers, the HSE has also announced the closure of its general telephone advice line effective 30 September 2011. Thereafter, the corresponding website will become the HSE’s sole source of information and guidance.

For any further information on the above proposals, or for a free, confidential, without obligation discussion on any pressing Health and Safety issue you might have, please contact one of our consultants without delay.