Employee Management Ltd

Although golf is not commonly viewed as a sport which carries a high risk of injury, a recent Court of Session case in which a man who lost an eye was awarded £400,000 in damages acts as a stark warning that lapses in health and safety can cost clubs dearly.

The incident occurred in 2007 as the gentleman in question was en route from the sixth green to the seventh tee on a path along the edge of the eighteenth fairway at Niddry Castle Golf Club, West Lothian. A shout of “fore” came from the eighteenth tee but a ball still struck the man and caused him to lose of an eye. A subsequent personal injury claim was lodged against the golfer who struck the ball and the golf club. £400,000 damages were agreed, but liability remained in dispute.

The victim argued that it was unsafe for the golfer to play his shot whilst he was in range and that the golf club owed him a duty to take such care as was reasonable in the circumstances to ensure this did not happen.

Responding, the golfer argued that it was a freak accident and therefore a remote possibility which could not reasonably have been foreseen. The golf club claimed that its duty of care to the victim had to be seen in a sporting context, the relationship between the two players and the fact that the game was not entirely risk free. It was further argued that the victim may have been solely or partly to blame as there was conflicting evidence over whether he ducked or covered his head.

The Court determined that… 

1. the golfer owed a duty of care to the victim, should have been aware of the risk his shot posed to him and that primary liability therefore lay with him;
2. the victim did not act inappropriately in response to the shout of “fore”; 
3. the golf club had not conducted a risk assessment of the course and it should have taken a more proactive approach to ensuring the health and safety of players, regardless of the fact that no previous accidents had occurred there;
4. there ought to have been warning signs erected on the route taken by the victim and therefore the golf club failed in its duty of care to him.

Acknowledging the subjective aspect of allocating responsibility between the parties, the Court assigned 70% liability to the golfer and 30% to the golf club.

This case highlights the importance of golf clubs keeping up to speed in respect of their health and safety responsibilities and the potential cost of neglecting to do. Clubs should risk assess their courses and act appropriately. At Employee Management Ltd, our health and safety consultants have provided professional services to a number of golf clubs in recent years and are well versed in the issues they typically face. For a confidential, no obligation discussion on the assistance they can provide, please make contact without delay.

An independent review of the sickness absence system has recommended the creation of an Independent Assessment Service (IAS) to assess the physical and/or mental function of individuals who are signed off work for four weeks and to advise on how their return to work might be facilitated.

With 140 million days lost to sickness absence annually, it’s perhaps no surprise that the review suggests that the current sickness absence system is failing. Among the other recommendations it makes are:   

1. clearer guidance on the completion of Fit Notes;
2. tax relief for employer expenditure on combating sickness absence;
3. abolition of the Percentage Threshold Scheme and Statutory Sick Pay record-keeping obligations; and
4. incorporation of sickness absence into the ‘Employers’ Charter’.

The review claims that implementation of its proposals could result in annual savings of £400 million for employers, £300 million for the State and boost economic output by up to £1.4 billion. The Government’s response to the review will be published in due course.

Capability issues are invariably complex to deal with. An employer must balance the personal wellbeing of the employee with the needs of the business. Step-by-step guidance or “as required” professional support on dealing with potentially risky matters in this area form part of the bespoke HR services we provide. Whether you have a specific issue you need advice on or just need some general pointers on how best to manage long term absence, please contact one of our HR consultants for a confidential, no-obligation discussion.

Last week saw some significant announcements from Vince Cable on reforms to employment law, the main one being that in 2012 the qualifying period for making claims for unfair dismissal will increase from 1 to 2 years.

The impact of this announcement may mean that some employees with around a year’s service may be inclined to submit unfair dismissal claims over the next few months to take advantage of their current position. In addition, employers may find more discrimination claims being submitted as there is no qualifying period applicable to such claims. It is important that employers ensure that they don’t fall foul of either type of claim and seek professional advice at the earliest opportunity.

The other main proposals are… 

1. compulsory lodging of all claims with ACAS (in order to facilitate initial mediation) before they can be lodged with the tribunal;
2. consultation on the introduction of protected conversations, with the proviso that they will not extend to protect discriminatory acts;
3. a call for evidence, with a view to consultation, on reducing the minimum period for redundancy consultation to 60, 45 or 30 days;
4. options for a ‘rapid resolution scheme’ to enable simple claims to be settled within three months;
5. amendment to s147 of Equality Act 2010 to clarify compromise agreements can be used to settle discrimination claims;
6. complaints about breach of employment contract to be taken out of whistleblowing law;
7. financial penalties to be introduced on employers who breach employment rights, payable to the Exchequer, subject to a discretion exercisable by Employment Judges;
8. a fundamental review of employment tribunal rules of procedure to include changes to costs and deposit orders;
9. Employment Judges to sit alone in unfair dismissal cases;
10. CRB checks to be portable so no need for a fresh application when moving jobs;
11. maternity and paternity leave to be modernised with emphasis on greater involvement for fathers.

Please be aware the none of the above are yet in effect – they are merely proposals at this stage and some may never actually come to pass. If they do, it is quite possible that implementation will not take place until 2013.

In the meantime, Employee Management Ltd can help ensure the effective management of performance and procedural fairness of related dismissals via the provision of robust policies. We can also undertake comprehensive workplace investigations into associated disciplinary and grievance issues and if a situation escalates to litigation then tribunal representation is one of our main employment law services. If your business has a current need in any of these areas, please contact us without delay.

In accordance with the Management of Health and Safety  At Work Regulations 1999, every company must appoint a ‘Competent Person’ whose role it is to ensure that all standards and procedures meet the legal health and safety requirements. As experienced health and safety consultants, Employee Management Limited (http://www.employeemanagement.co.uk/) can act as your company’s ‘Competent Person’ at a greatly reduced cost.

Hiring external health and safety consultants can be expensive, but so can the penalties imposed by the Courts for failing to comply with Health and Safety regulations, in some cases running into excess of tens of thousands of pounds. The Health and Safety Offences Act 2008 (HSOA) came into force in 2009 and made significant changes to health and safety law, in particular increasing the amount which the Magistrates’ Court could fine companies found to be in breach of the law, raising the limit to £20,000 per breach.

Having a designated ‘Competent Person’ is one of the key health and safety guidelines set out in legislation with which companies must comply. The ‘Competent Person’ must have sufficient training, experience and knowledge to ensure that all health and safety responsibilities are being met by the company. They should also have the personnel qualities to enable them to work with colleagues and inform them of the company health and safety procedures, as well as their personal responsibilities.

Given the importance of meeting these legal requirements, many companies entrust the role of ‘Competent Person’ to external health and safety consultants. Employee Management Limited is highly experienced in this field and can provide a comprehensive service as your nominated ‘Competent Person’ which best suits your organisation’s needs. From reviewing and updating the Health and Safety handbook to supporting the Health and Safety Committee, mentoring staff and assisting with accident investigations, EML can provide full health and safety compliance at prices which are affordable even for smaller companies.

Go to http://www.employeemanagement.co.uk/ for further information on the full range of Health and Safety and HR consultancy services from Employee Management Limited.

Dismissals are often rendered unfair where an employer treats similar cases differently, or treats two people similarly involved in the same incident differently where there is no apparent justification for doing so.

However, in a recent case, the Employment Appeal Tribunal (EAT) held that as long as inconsistent treatment is explained then the associated dismissal will not always be unfair.

The Claimant worked as an electrician.  Whilst he was repairing a machine, he disabled sensors and entered the machine despite warning notices. As a result, he was summarily dismissed for gross misconduct on the basis that his actions were a serious breach of health and safety procedures.

The Claimant was deemed to have been unfairly dismissal by an Employment Tribunal due to the fact that another employee who had seriously breached health and safety procedures a year earlier had not been similarly dismissed.

The EAT found that the Tribunal had failed to take into account of the employer’s reason for the differential treatment.  In the earlier case, the employee had been dismissed on the grounds of incapacity as a consequence of a serious injury he suffered because of the health and safety breach, and that but for his long term absence from work, he would have been subject to disciplinary proceedings for alleged gross misconduct.  The employer had therefore established a reason why the two individuals were treated differently.

This case clearly illustrates the importance of considering previous instances of similar misconduct when determining the most appropriate disciplinary sanction in any given situation. Any precedents set previously should always be taken into account and where they are deviated from there should be clearly documented (and ideally, objectively justifiable) reasons for doing so.

At Employee Management Ltd, our HR specialists can facilitate the consistent treatment of employees via the provision of robust policies and procedures. They can also assist by conducting comprehensive workplace investigations into disciplinary and grievance matters. If a situation escalates to the point of litigation then tribunal representation is one of our key employment law services. To speak in confidence about any issue you may have in this regard, please contact one of our HR consultants without delay.

Beware the dangers of loose ends when it comes to the termination of an employee’s contract! Ambiguity and uncertainty are to be avoided at all costs if you don’t want to be on the wrong end of tongue lashings and sizeable awards for compensation by employment tribunals.  

In this case, the Claimant was employed by the Respondent as a delivery driver and had been off on long-term sick since early 2005 following a workplace accident that resulted in serious spinal injuries.

In early 2006, the Claimant moved house but neglected to notify the Respondent of his new address and all contact between the parties ceased.

In mid-2006, having not received a current sick note, the Respondent wrote to the Claimant setting a deadline for explanatory contact to be made, failing which it would be assumed that he had terminated his own employment.

The letter was returned undelivered and the Respondent made no further attempts to contact the Claimant, despite him having now instigated a Personal Injury claim against the company through solicitors, and considered him to have terminated his employment effective from the aforementioned deadline.

In reality, the Claimant did not have sight of the Respondent’s letter until mid-2009 when he received another letter from the Respondent in respect of his PI claim which enclosed a copy of it. This prompted the Claimant to swiftly lodge claims for unfair dismissal, disability discrimination and breach of contract with the Employment Tribunal.

These claims were struck out at a Pre-Hearing Review on the grounds that they were submitted out of time, the Employment Judge finding that the Claimant’s failure to inform the Respondent of his change of address was in breach of an obligation provided for in the company’s staff handbook and therefore constituted an implied unilateral termination of employment by him.

However, this decision was overturned on appeal to the Employment Appeal Tribunal (EAT) which held that the Claimant had not terminated his own employment because the Respondent had failed to clearly accept the repudiation of his contract referred to by the Employment Tribunal. It qualified this decision by explaining that the letter requesting contact did not amount to an acceptance of the Claimant’s resignation and that the Respondent should have attempted to make contact with him via his solicitors when the letter was returned undelivered, and upon receipt of his PI claim which also served the purpose of provided a means of contact. The EAT therefore determined that no effective steps had been taken by either party to terminate the Claimant’s employment until the Respondent’s letter to the solicitors in mid-2009, and on this basis, his claims had been submitted in time and were remitted to the Employment Tribunal for consideration.

As mentioned at the outset, this case highlights the importance of clear, effective and unambiguous correspondence between employers and employees in respect of termination of employment, and also the risks involved when employers fail to be pro-active in this regard by stating their position unequivocally and in no uncertain terms. Failing to ensure a contract has been terminated can result in the employee continuing to accrue pay and benefits, and may also render that employee eligible to bring related tribunal claims long after it has been assumed that the employment relationship has ended.

Our human resource consultants routinely advise clients on how best to minimise exposure to tribunal claims when dealing with terminations. If a situation does escalate to the point of litigation then tribunal representation is one of our key employment law services. To speak in confidence about any issue you may have in this regard, please contact one of our HR specialists without delay.

An organisation’s HR function, whether in-house or outsourced, has a significant role to play in effective change management. Companies which understand the importance of involving Human Resources when managing change are more likely to transition through change successfully. HR consultants Employee Management Limited (http://www.employeemanagement.co.uk/) are acutely aware of the importance of HR’s role in the change management process and have vast skill and experience in providing the following change management services on behalf of employers:

• Liaising with key members of the team who will be affected by aspects of the change to ensure HR’s involvement in the process from the outset.
• Assessing any skill gaps and training needs in respect of the team leaders/management involved when it comes to change management and the issues that surround it, and providing advice and training where needed.
• Defining the short-term goals of the project which will bring about change alongside the strategy over the long-term.
• Considering the impact of change in a certain department/team/section of the company upon the rest of the organisation, something that we, as HR specialists, are well placed to do.
• Identifying the change management/negotiation skills of the stakeholders, as well as any general concerns they may have about the process.
• Ensuring the right medium of communication for all levels within the process and helping to deliver a consistent message at all times.
• Overall assistance with change, performance management and motivation.
• Having the ability to administer and possibly manage any restructure or redundancy which arises from the change process.

Employee Management Limited (EML) and it’s team of skilled Human Resource consultants can help companies with all of these factors to ensure effective and successful change management. EML will design the best approach for the particular process of change within the organisation, meeting with individual stakeholders to assess their views. Recommendations for action will be made, including advising on relevant employment legislation. EML can also act as mediators, helping to facilitate the communication of proposed changes with a view to obtaining the support of affected employees in order to ensure the effective implementation of new regimes.

For further information on the full range of services offered by EML, visit http://www.employeemanagement.co.uk/.

Although the rules on what constitutes a reasonable disciplinary investigation in an employment context are not set out in any related legislation, it is still vital that employers know what Employment Tribunals look for when assessing fairness.

In the absence of any contractual requirements and/or collective agreements that determine the steps to be taken during such an investigation, there are no hard and fast rules on how they should be conducted. The key issue is whether the employer’s handling of the situation is reasonable or not.

Although not definitive, case law at least sheds some light on the elements that need to present if an investigation is to be considered reasonable. These include…

1. the general even-handedness of the Investigating Officer;
2. the investigation being confined to the facts of the case;
3. a thorough and timely search for all relevant evidence (not just that which supports the allegations against an employee!);
4. statements being taken from all potentially relevant witnesses;
5. an accurate record being kept in respect of all actions taken by the Investigating Officer.

Such an approach would accord with the relevant ACAS Code of Practice, which is routinely referred to by tribunals when assessing the reasonableness of disciplinary processes, and can be the source of additional penalties where it is deemed not to have been followed.

As employees often confuse investigatory meetings with disciplinary hearings, it is advisable to confirm at the outset of any such meeting that it is in fact not a disciplinary hearing, merely a fact-finding exercise to determine whether or not such a hearing is necessary.

Another popular misconception on the part of employees is that they have the right to be accompanied at investigatory meetings. As long as this right is not provided for within an internal disciplinary procedure, the statutory right to be accompanied does not apply to investigatory meetings.

The issue of whether to suspend an employee pending investigation is another common area of uncertainty for employers. Typical situations in which suspension may be appropriate are where the allegations under consideration constitute gross misconduct (in which case, to allow the employee to carry on working during the investigation could undermine the seriousness of the alleged misconduct), where working relationships have broken down and where there is a risk that the employee in question may tamper with evidence. However, suspension is not a measure to be taken lightly. An employer should be sure that the circumstances merit it, as unjustified suspensions can lead to constructive dismissal claims. Care needs to be taken not to damage the employee’s reputation by maintaining confidentiality as far as is reasonably practicable. The period of suspension should be kept to a minimum, and whether its continuance is necessary should be kept under review. The employee should also be kept up-to-date on the progress of the investigation and notified of any likely delays. Suspension should, in most circumstances, be with pay, and consideration should be given to holding return-to-work interviews where investigations do not lead to disciplinary action so that any concerns employees may have on their return may be addressed.

Other elements we would consider vital to ensuring the reasonableness of a disciplinary investigation are as follows…

1. The Investigating Officer should not go on to assume the role Disciplining Officer – in most cases, the role of the latter should be adopted by somebody of equivalent (but preferably greater) seniority than the former.  
2. The Investigating Officer should be impartial, and this usually requires him or her to have had no involvement in the allegations under investigation. 
3. The allegations should be kept confidential insofar as is reasonably possible.
4. During the investigatory meeting, the reason for the investigation should be confirmed to the employee, and the Investigating Officer should ask open questions about the subject matter so as to avoid any implication of guilt.
5. During the investigatory meeting, the employee should be provided with sufficient opportunity to review any documentation referred to.

Although the above recommendations may seem to paint the picture that the effective execution of a disciplinary investigation is an exact science, the accurate and consistent application of carefully drafted policies and procedures which take into account these steps should be enough to ensure they stand up to external scrutiny and are regarded as reasonable by the powers that be.

At Employee Management Ltd, our HR specialists are highly skilled in the origination, implementation and maintenance of robust policies and procedures, and have vast experience in conducting comprehensive workplace investigations into disciplinary and grievance matters. If a situation escalates to the point of litigation then tribunal representation is one of our key employment law services. To speak in confidence about any issue you may have in this regard, please contact one of our HR consultants without delay.

Change is as natural a phenomenon for businesses as it is for individuals. The challenge for companies is how to ensure effective change management without disrupting operations. HR consultancy Employee Management Limited (http://www.employeemanagement.co.uk/) looks at why effective change management is so vital for companies.

Corporate change can be either a specific shift within an organisation, such as a restructure or the introduction of a different IT system, or something more nebulous, such as a general drive to encourage employees to accept change in their working environment. Whether a specific shift or a general process, managing the transition effectively is essential if businesses are to benefit from the change rather than suffer during the period of adjustment.

Organisations need to evolve in order to accommodate, but hopefully profit from, external developments. From growth into global markets to embracing technological advances; incorporating new government legislation to implementing new strategies to cope with tough economic conditions. Over the last decade, change management has grown in its importance to organisations for three main reasons:

1)    Increased change in the corporate sphere – change is happening more frequently and on a greater scale than ever before. To keep up with the amount of change (technological, strategic, legislative, structural, etc.), companies need to plan and take an organised approach to all levels of change.

2)    An empowered workforce – in recent years there has been an empowering of the workforce which encourages responsibility down through the ‘ranks’ of employees. While this has many corporate benefits, Management need to be wary about how they communicate and implement top-down change, taking into account this new value system of empowerment.

3)    Keeping a competitive edge – the advent of the internet and the speed of information access around the world has made it harder than ever before to maintain a competitive edge. Now, it is the businesses that are most nimble when it comes to embracing change who keep ahead of the pack, and to do that they must be highly effective at change management.

Employee Management Limited are HR specialists experienced in advising companies on how to implement and manage change to ensure a smooth transition, a contented workforce and a new and improved future. Go to http://www.employeemanagement.co.uk/ to find out more.

According to the BBC website and Daily Telegraph, a leaked Government Report  states that unproductive workers should lose their right to claim unfair dismissal.

Currently, employees who feel they were unfairly dismissed can make a claim after 12 months’ employment. Chancellor George Osborne recently announced new measures aimed at restricting the number of unfair dismissal claims, those being an increase in the qualifying period for a claim for unfair dismissal to two years and the introduction of fees for lodging Tribunal claims.

However, this report goes one step further in calling for an end to unfair dismissal rights for certain employees. The report highlights the public sector, where it claims that managers are forced to offer under-performing staff large settlements because they fear costly tribunal awards. The report says that the unfair dismissal rules have made public bodies “reluctant to dismiss unsatisfactory employees…[They] therefore accept inefficiency that they would not tolerate if dismissal of unsatisfactory employees was easier.” It goes on: “A proportion of employees, secure in the knowledge that their employer will be reluctant to dismiss them, work at a level well below their true capacity; they coast along.”

The report does warn that simply scrapping the law would be “politically unacceptable” and therefore recommends a replacement regulation referred to as ’Compensated No Fault Dismissal’. This would allow employers to dismiss unproductive staff with basic redundancy pay and notice. The report does, however, acknowledge that such a procedure could be open to abuse by employers. 

In the meantime, Employee Management Ltd can help ensure the effective management of performance and procedural fairness of related dismissals via the provision of robust policies. We can also undertake comprehensive workplace investigations into associated disciplinary and grievance issues and if a situation escalates to litigation then tribunal representation is one of our main employment law services. If your business has a current need in any of these areas, please contact us without delay.

To have your say on the above issue, or any other HR / Employment Law related topic, why not join EML’s Human Resources Advice Group on LinkedIn?