A recent Supreme Court decision on holiday pay has provoked much press, and considerable angst amongst employers, fearing that they could owe thousands in back pay.

Certainly, the decision in Harpur Trust v Brazel last week was an important one. After a 7-year legal battle, the Trust lost its argument that holiday pay should be pro-rata’d for a permanent worker (a peripatetic music teacher).

The good news for many employment experts is that it at least brings some certainty. The bad news for some employers is that it could leave them exposed to claims on back pay, as they have not been paying enough for holidays to employees that work term time only.

In reality, outside the education sector, not many workers will fall within the provisions of this decision. And, under normal circumstances, even if the Employment Tribunal subsequently finds against the employer, claims are generally limited to back pay for 2 years.

And, the decision does not affect part time workers, as it is widely accepted that the way most employers calculate their holiday pay is correct. That method is generally to pro-rata the time they work in either hours or days per week when calculating their holiday allowance. But, because they generally work regularly throughout the year, the calculation is the correct one.

What does the decision mean?

The worker in question was a music teacher who only worked during term time. To calculate her holiday pay, 12.07% was added to her pay at the end of each term.

How did they arrive at this particular figure? They simply calculated that the statutory 5.6 weeks holiday was 12.07% of a full 52 week working year. This has been a pretty standard calculation for many years.

She argued that though she only worked for 32 weeks a year, when work was available, the Working Time Regulations gave her 5.6 weeks holiday every year. The Supreme Court has agreed, while recognising the bizarre outcomes that this could cause – for example, in the highly unlikely situation of a worker on a permanent contract who only works one week a year could also be entitled to a full holiday allowance of 5.6 weeks!

They suggested that in reality, this was highly improbable. And we rather agree, especially as now employers should now look closely at contracts for such workers. They are known as part year workers, and such calculations will only apply if they are on permanent (what we prefer to call on-going) contracts.

Should employers do anything?

As this will only apply to a small fraction of workers, then the headlines that we have seen that this will have “Huge implications for HR” are rather too sensationalist.

We suspect that contracts in the education sector will rapidly adapt, as will pay levels to take into account these recent changes.

In most of the sectors, the effect will be minimal. But if you do employ part year workers because you supply the education sector or other seasonal sectors, then take good advice about your contract. There may be a nasty surprise lurking within there.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

A brilliant quote that was once sent to me by an Irish friend who had witnessed an argument between two colleagues. “There are three sides to any story, yours, mine and the truth”.

As a mediator who has frequently sat between two sides at loggerheads, nothing could be more accurate. And it is something that employers, Managers, HR, Trustees, Directors etc., and even those investigating workplace incidents of any description, would do well to bear in mind.

Because disputes, conflict and any differences of opinion on incidents that have happened will inevitably arise at work. This is not necessarily a bad thing. Those who feel passionately about what they are doing may come at a problem from a different angle. And, until both can agree on what the real story is, very often no progress can ever be made.  Two people may witness the same incident, but their recollection can be very different depending on how they feel and relate to the people at the heart of the matter.

So, always remember this saying when presented with a problem, especially some form of conflict. When somebody makes an accusation and somebody robustly defends it, there are three sides and the truth will often lie somewhere in the middle.

This is why we always say that accusations made anywhere are merely allegations until the evidence has been considered. And those who respond and vehemently deny these allegations are only presenting their side of the argument.

Your duty as an employer is to find out, as far as you practically can, where the truth lies, or at the very least, the balance of probabilities. Then, once you have established this as clearly and as certainly as possible, you need to act reasonably and sensibly in your response to the facts.

If the situation is serious enough and warrants it, hold a formal investigation. This is not to be done lightly – it is not necessarily straightforward, and could be quite time consuming, but it needs to be done properly. ACAS has a good guide and we have lots of practical advice and expertise too.

Before you even start, decide who will investigate. Establish the terms of reference and decide who needs to be interviewed. Give all sides the opportunity to explain themselves, ask others what has happened and carefully note down their responses.

In really tricky cases, you may need outside help. We have held plenty of such investigations, and the very fact that they are being carried out professionally and independently, often sends the message that matters are being treated very seriously.

But, however trivial the incident, however straightforward it seems, leaping to conclusions, making instant decisions off the cuff is never advisable. Even in seemingly the most open and shut case.

If you have not taken your time and drawn breath before acting, then if things ever come to a head in an Employment Tribunal, that chain of events will be looked at very closely. And, if there is one thing that Employment Tribunals hate, it is employers who act in haste, without factual evidence and due consideration.

It’s called acting reasonably and proportionally, based on the merits of each case.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

The Met office has issued extreme temperature warnings for the end of this week, and into next. It is important for employers to be prepared.

While no one can prevent such high temperatures, employers are under an obligation to mitigate the effect, where reasonably practical. And, with some news feeds predicting the heatwave could cause up to 2,000 deaths, such action is essential.

The Workplace (Health, Safety and Welfare) Regulations, 1992, lay down particular requirements for most aspects of the working environment. Regulation 7 deals specifically with the temperature in indoor workplaces and states that:

‘During working hours, the temperature in all workplaces inside buildings shall be reasonable.’

However, the application of the regulation depends on the nature of the workplace, such as a cold store, an office, a warehouse.  Whilst the Workplace Regs do state that the lower working temperature in a normal working environment is best not to fall below 16 degrees Celsius, there is no upper temperature limit.

Everything has been complicated further this year by rising energy prices, meaning that in some offices, in particular, some employers may be loath to turn on the air-conditioning. Which for a week or two, could be a false economy.

Most properly considered workplace risk assessments will include provisions for extremes of temperature, either very high or very low. If they do not already do so, pull out your risk assessment and make sure that you have provided for such conditions.  Also remember that everyone copes differently with heat, some lap it up while others wilt. Also, with high temperatures come high levels of pollen, so some people may really suffer from debilitating hay fever, even if they are normally able to manage the condition, so be aware of this too.

In addition, there are just some very practical steps that all employers can take.

  • Ensuring access to drinking water for all employees, whether they work inside or outside.
  • If normally only hot drinks are provided free of charge, purchase cold drinks and squashes to encourage people to stay hydrated.
  • Where possible, provide shade for those working outside.
  • Pulling down blinds and closing curtains where appropriate for those inside.
  • Adequate protective equipment, particularly headgear, for those working in direct sun.
  • Encouraging outdoor workers to use appropriate sun creams to protect themselves from long-term skin damage.
  • Allow everyone to take slightly longer rest breaks if they feel that they are struggling with the heat.
  • Adequate general ventilation (windows open to create an air flow) or air conditioning for those working inside.
  • Relaxing clothing policies, particularly where staff are required to wear hot uniforms.
  • Make sure those who have to wear PPE have regular breaks where possible.
  • Allowing, where practical, different shift patterns for workers so they do not have to travel in the heat.
  • Make sure that ice cubes are available in any canteen/rest room fridges for people to use.
  • Allow more home working for those employees who can, and who feel their home working environment may be cooler and/or their journey into work by public transport would otherwise be really uncomfortable. Or whose hay fever means they would struggle to travel into work but may be able to do some work at home.

With climate change, scientists are predicting that such events will happen far more regularly in the future. It is best that employers remain prepared to protect their employees as much as possible for such eventualities.

As in all cases, it is the responsibility of employers to act reasonably and that may involve bending certain rules in such hot weather.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Several cases recently published have underlined how easy it is for employers to do what they might think is the logical thing, only to find themselves unsuccessful in an Employment Tribunal.

In each of these cases, the cost to the employer has been substantial. This could be particularly damaging for a small organisation faced with a similar situation and outcome.

The first case was rather obviously a matter of wrongdoing. The case of Ms A Burns v Tralee Ltd and Mr S Sohal relates to a cleaner who worked in a care home, and was 5 months pregnant. The home had correctly done a Pregnancy Risk Assessment which highlighted the need for more regular breaks to sit down during her pregnancy.

However, the Management of the care home clearly thought that they were entitled to be critical of this pregnant employee. She was struggling to work quite as effectively as she did before because of her condition.

The Tribunal held that Management had refused to give her adequate breaks, and make reasonable allowances for her condition. They had criticised her for being ‘pathetic’ for asking for a five-minute break, which they refused. She was also accused of treating her pregnancy as an excuse not to pull her weight. And they pointedly removed her from a staff WhatsApp group.

This meant that the Tribunal awarded £25,000 against the care home, as she decided she could not face returning to work after her pregnancy, and the discrimination she had had to endure.

In R Sunderland v Superdry the damages were even more eye watering. Nearly £100,000.

The case involved a female worker again. This time, the Tribunal decided that for a number of years she had been denied promotion, and, she had an excessive workload imposed on her because it was known that she would not complain. The case heard that this was partly because, as a woman in her 50s, Management deemed her a ‘low flight risk’ and she was unlikely to leave the organisation “no matter how she was treated”.

So, Management reckoned that because of her age, she could not afford to leave the organisation, and so had no choice but to put up with seeing younger professionals being promoted above her. And, as a highly skilled designer, she was still expected to put up with an enormous workload.

In finding in favour of the Claimant, and making an award of over £96,000, the Judge said  “We find that the decision makers had decided not to promote her, and to subject her to an over-demanding workload with little or no real assistance, because she was an excellent designer on whom they could rely to create products that would sell well, and because they judged that there was little risk of her leaving the business no matter how she was treated.”

“We find that they probably thought this insignificant measure because of her age. We find that a similarly valuable designer who was significantly younger than the Claimant probably would have been promoted to Senior Designer or, later, to Lead Designer.”

Finally, and this case has, at the moment, been sent back to the original Tribunal for consideration again by the Employment Appeal Tribunal, Daley vs Vodafone Automotive Ltd is itself a case about an appeal.

Daley was dismissed for gross misconduct. He appealed the decision with the company and revealed, for the first time, at the appeal hearing that he had been suffering from depression and was on strong medication. This, he said, explained his abusive and obstructive behaviour.

The company dismissed his appeal and did not consider this latest evidence, as it was the first time he had brought it up. This was fundamentally wrong, the Appeal Court said, the employer has to investigate new evidence whenever it is revealed.

As a result, it has sent the case back to the original Tribunal to consider the evidence and decide what award, if any, should be made.

Learning Points

Tribunals are becoming increasingly intolerant of employers who behave unreasonably, even if it is only what some employers might consider to be ‘mild admonishment’, or, ‘a gentle exploitation’ of an older and steadfast employee.

Where discrimination can be proven, in one case of a pregnant worker, in another of a designer in her 50s who had clearly been over-worked and under-rewarded, awards can be very high.

Finally, appeals are meant to be genuine. So, if an appeal has evidence put before it, it cannot be dismissed simply because it was never mentioned before.

Even though it still takes a long time for a Tribunal to be heard, typically over 12 months from the time the claim is submitted, people continue to demonstrate an appetite to have their cases heard, especially in discrimination cases when they feel an emotional need for the actions of their former employer to be chastised and for them to be vindicated.

We tell our clients time and time again to treat people as you would like to be treated yourself, fairly, reasonably and with dignity.  We also remind them that there is little point having fine words within various policies if, in fact, they are not followed in practice.  And, always seek proper professional advice early on when you have employees you are concerned about, so that you do not end up making large pay outs.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

There have been some significant changes to fire safety, through the Fire Safety Act 2021 which came into force on 16th May 2022.

However, these changes will only apply to organisations that own, run, manage or are otherwise responsible for multiple dwelling residential buildings. We do know, however, some of our clients are in that position.

The original fire safety legislation, or Fire Safety Order, was put into law in 2005, and was primarily designed for non-domestic buildings. However, it did include residential facilities, where they had multiple dwellings, or other premises such as hotels and care homes. But in these cases, responsibility for the areas outside of those dwellings was unclear, or at least open to interpretation.

So, as a result of Grenfell, and an increasing awareness about the risks of fire safety using some of the modern insulating materials, legislation has been passed to bring multiple dwelling, residential properties much more in line.

While it was clear that “Responsible Persons” had responsibility for common areas as well as the individual dwellings themselves, there was a lack of clarity in the law over how to treat the exterior of multi-occupancy dwellings. Particularly cladding, balconies and fire escapes.

This new legislation makes it clear who is responsible for these areas, and what responsibility they have, putting beyond doubt “that structure, external walls and flat entrance doors fall within the scope of the Fire Safety Order”.

Action Points

Organisations and Responsible Persons need to do the following:

  • Decide whether the new Fire Safety Act applies to premises they are responsible for;
  • Review current risk assessments for affected premises to ensure they reflect the changes and “Best Practice”;
  • Train those undertaking fire risk assessments, making them aware of the new guidance;
  • Ensure they are competent to apply such guidance;
  • After carrying out fire risk assessments, make sure all recommendations are reviewed;
  • That action is taken to reduce fire risks;

The enforcing authorities will be publishing “Best Practice” guidance. They will expect organisations to have followed it, or to have taken actions that demonstrate they understand the guidance and are complying with it.

Fire is a serious hazard that all organisations must consider within their Workplace Risk Assessments.  This is why we always recommend that clients appoint an external fire safety expert to undertake fire risk assessments, as there are many technical, building and workplace considerations to include when assessing fire risks. It is highly unlikely that clients will already employ someone in house with sufficient fire safety knowledge and competence.

As the Law continues, quite rightly, to tighten up on fire safety for both workers and residents, this is another reason for using external professional expertise, who typically are former or retired fire brigade officers.

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

In a major change to Fit Note (medical certificates) Regulations, these can currently only be produced by Doctors, the Government has announced that the ability to issue these will be extended to a number of other regulated professionals.

This is designed to take considerable pressure off GP surgeries, many of whom complain they spend their life issuing and arguing about Fit Notes.

So, from 1st July 2022, the following registered professionals will be able to issue Fit Notes:

  • Pharmacists
  • Occupational Therapists
  • Nurses
  • Physiotherapists

The announcement, which can be read here (More healthcare professionals given powers to certify Fit Notes – GOV.UK) makes it clear that these are not just to be issued over the counter. A proper assessment of an individual’s fitness must take place first.

There is some logic to these proposals. For instance, someone who is clearly badly injured and has been treated by a nurse or a physiotherapist does not need to go back to the surgery for a much sought-after appointment, just to pick up a Fit Note signed off by a GP. Likewise, someone who presents themselves at a pharmacy with flu-like symptoms does not need to use up valuable surgery time.

It has been broadly welcomed by the governing bodies of each of these professions, although how it plays out in practice remains to be seen.

If you are a sceptical employer, or there is a culture of absenteeism in your organisation, then you may well be worried it will exacerbate the problem. If you are concerned that an unauthorised person has signed the certificate, then you should be to check their status here (Check the health and care professionals’ Register).

Likewise, for individuals that are regularly absent, having multiple opportunities to get Fit Notes signed off may seem beneficial. But in reality, anyone can feign illness if they are prepared to do so, and the employer should have sufficiently robust procedures in place to manage absenteeism and sickness.

It also gives us an opportunity to underline that Fit Notes are not legally binding documents, they are purely medical guidance provided to the employee. This does not mean that an organisation can choose to ignore every Fit Note that it sees, merely that it should be seen as part of an attendance and return to work process.

Where an employee is signed off and wishes to return to work earlier, for instance, this can be accommodated. Individual consultation, a jointly agreed risk assessment and a proper plan for their return, including reasonable adjustments, such as a phased return to work, is strongly advisable and is good practice.

Just because nurses and others will be able to issue Fit Notes does not mean that all will do so. This appears to have been announced with minimal consultation and notice, and we are not convinced, as yet, that there is massive enthusiasm from the named health professionals that they will want to be put in the position of having to sign of Fit Notes after an assessment.

So, we await the detail. We suspect that many pharmacies and GP practices will either choose not to allow it, or will want to do so only after people have been properly trained.

As the Government continues to grapple with the crisis in the NHS, and as GPs continue to report an overwhelming workload, these changes could at least relieve some bottlenecks. And should allow those who genuinely need to be signed off sick to do so without having to wait two weeks for an actual appointment, or more likely, simply a quick telephone call as currently seems to take place.

 

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

The Health and Safety Executive (HSE) has recently published a 10-year strategic plan “Protecting People and Places” to build on the U.K.’s excellent safety record, and to expand its responsibilities.

After being heavily criticised for its faltering response during the first year of the pandemic, the HSE wants to ensure that its future focus is better targeted and more wide-ranging. A tough balancing act.

It’s five key objectives are listed as:

  1. Reducing work-related ill-health, especially mental health and stress.
  2. Making sure that the public feels “safe where they live, where they work, and in their environment”.
  3. Ensuring that health and safety legislation does not prevent innovation and progress.
  4. Maintaining the UK’s exceptional safety record by “learning from evidence and past events to protect people”.
  5. Ensuring that the HSE attracts and retains a highly skilled and capable workforce.

These are very grand aims. And, according to the HSE, they reflect the changing world of work and legislation. Among other things, they will be establishing a Building Safety Regulator, and take on more responsibilities for chemical regulation.

Mental Health

As part of their first objective, they have said they will treat mental health as seriously as physical health, and will be looking at the actions of employers in this regard. They see this as especially important when there is so much coverage in the media regarding mental health, stress and depression, particularly following the pandemic.

This work has already begun – Sarah Newton, Chair of the HSE Board, said ‘We worked with and listened to experts from MIND, ACAS and the Federation of Small Businesses, and last month achieved the milestone of 500 champions for our campaign to increase awareness of the risks of work-related stress and encourage businesses to take action.’

500 champions are all well and good, but many of these are fundamental problems, going to the heart of organisations. The danger is that people will just train and appoint Mental First Aiders thinking this is sufficient, when it is invariably just a sticking plaster on a festering wound.

Change of Direction

It is also worth pointing out that this is a significant change of direction for the Executive, as previously Inspectors appeared to rather shun the notion of Mental Health falling within their domain. And their second aim, concentrating on the home and the environment, as well as the workplace, is a considerable widening of their focus.

Commentators have pointed out that this has been brought about, in part, by the Grenfell enquiry, and it is worth remembering that it was 5 years ago this month that this terrible tragedy occurred. For the Grenfell survivors and relatives, they feel that they are still a long way away from achieving justice for loved ones lost.

But, the pandemic has also changed how individuals feel about their safety and their attitude towards risk, both at home and in work. And hybrid working means that the lines between home and the workplace are increasingly blurred.

People tend to feel safer working in their own homes, but familiarity can breed contempt. As an example, the HSE has reported a significant rise in musculoskeletal disorders (MSDs) in the last year alone, arising mainly from poor ergonomic home workstations.

The passing of the Building Safety Act 2022 very recently means that they can now establish a regulator to concentrate exclusively on the building industry. They claim this is the sector with the biggest issues and the highest number of fatalities, outside of road traffic accidents. So, it needs its own regulator that understands the issues.

Its last aim, to recruit a high-class workforce will very much be determined by the market. Every employer knows how difficult it is to recruit at present, will the HSE be able to attract and retain the necessary experts?

Laudable Goals

Alongside its stated objectives are 6 goals that they say will drive their strategy up to 2032. Their goals for the HSE are:

  • It remains relevant by keeping its regulatory framework under continual review.
  • As a fair and just regulator, it will target higher-risk activities and poorer performing employers.
  • It will be people-focused.
  • It will take a collaborative approach.
  • To remain financially viable, it will combine cost recovery and Government funding to guarantee the right level of investment.
  • It will be accessible, developing its digital capability and employing new technologies at its disposal.

These are laudable and worthy aims and make perfect sense. But the proof of the pudding is in the eating, or in the HSE’s case, in the implementation.

And, for an organisation that had never been needed more than in the pandemic, its response was disappointing. And many, including us, accused them of “going missing in action”, seemingly judging the work environment too dangerous to risk their own inspectors in the field. And, only producing relevant documentation for employers to use months after industry bodies, like IOSH, had already produced their own, that were of far better quality and practical to use than the HSE guidance.

As the saying goes, actions speak louder than words, and the HSE has had a lot of missed opportunities over the last few years. They now need to catch up if they want to still remain a credible institution, as well as being a regulatory enforcer.

 

Our consultants would be pleased to advise you on any element of the issues arising from this newsletter.

The Government has announced plans recently to pass legislation changing the way exclusivity clauses in contracts work for some of the lowest paid workers.

What does this mean in practice? That for workers in these groups, employers can no longer insist that they work exclusively for them.

This legislation will be targeted particularly at those on what is popularly known as “zero hours contracts”, the correct legal term is casual terms of engagement, and those earning less than £123 per week.

In other words, if the employer can only offer very little work, or reserves the right to offer no work at all, then they cannot insist that the worker does not look elsewhere for work to supplement their earnings.

For most employers this will have little or no effect. But there will be some who have traditionally used zero hours contracts for key groups of their workforce to cope with operational peaks and troughs.

If this legislation goes through, employers may want to stop these types of workers from working at the same time for competitors. They may be forced to protect themselves by either offering better contracts, or more hours, taking them over the £123 per week.

It will be a little time before such legislation is passed, but those who rely on these types of labour had better start planning now, if they feel it will have a detrimental effect on their operations.

 

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Week commencing 9th May was Mental Health Awareness Week, and the theme for this year was loneliness.

Mental health has become increasingly important as the world faces its most stressful time for many decades. A global pandemic, a major war on the borders of Europe and predictions of a global recession constantly blasted over all forms of news are certainly not helping any of us to feel better.

Most of our clients fall into one of two categories. They are either in an industry that is much in demand, but faced by a talent shortage so everyone is working at the limit, or they have been badly affected by the current economy, supply chain difficulties, extra employer costs and are facing economic uncertainty.

But while many can understand those types of stress, the problem of loneliness, especially for those at work, creeps up insidiously.  By very definition, those who are lonely do not speak to many people, certainly do not communicate effectively with them. So as an employer you may well be unaware of the feelings of these workers.

And while it is fairly obvious that working from home can create loneliness, it is often more difficult to spot those at the workplace who feel the same way.

The NHS has a very good section on mental health – Every Mind Matters – NHS

And an interesting article and quiz on loneliness which might also be useful – Loneliness – Every Mind Matters – NHS

What steps can employers take to help and support employees who feel lonely?

First of all, take the opportunity of Mental Health Awareness Week and raise the profile of the problem within your workforce. Open up clear dialogue between yourselves, your Line Managers and your staff to make sure the question gets asked of everybody – “Are you feeling lonely? Is there anything we can do to help?” Talking is always a good starting point.

By raising the issue with your Managers, they might also start to actively think about those employees who are showing signs of loneliness, and do something about it. This should not be a tick box exercise, but something they learn, and can be trained to look out for on a permanent basis.

Improve your communications with your workforce generally. Depending on the size of your organisation, a round robin email, or a more formal newsletter, can help everyone stay informed, be recognised and be included. Giving people something to talk about encourages them to talk.

Recognise who is most likely to be lonely. New starters, especially if they come from different backgrounds or different generations from others, can find it very lonely in the early days. Making sure they have a mentor who looks after them and helps assimilate them into the organisation, really helps.

As more and more return to the workplace, including them in social events or more formal meetings will also allow them to meet more people, make more connections.

Home workers clearly can go days or even weeks without any meaningful conversation with the rest of the organisation. This should not happen, and Management should recognise the importance of regular communications, and events with such individuals. Creating special projects on which a number of your home workers can collaborate can also be a way forward, encouraging them to communicate regularly and work together.

Finally, look to use outside resources as well. There are some fantastic online resources that can cost effectively take individuals through a programme, or you can use a more traditional organisation or professional to help monitor your employees.

The last couple of years have been a stressful time. And many will keep their concerns and their thoughts to themselves. Those with less confidence may be worried to share, thinking, probably wrongly, that it might jeopardise their future.

Having a healthy, involved and engaged workforce will be far more productive than having one that feels isolated, under stress and undervalued.

 

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

A couple of high-profile, corporate cases recently have highlighted what happens when organisations panic. When they try to fix one problem, but unwittingly create another elsewhere.

And, in case anyone was wondering whether it was all worth it, it also underlines the importance of having robust legislation to ensure that organisations do the right thing, not just try to fix today’s problems.

Sainsbury’s fined £1 million

This was a health and safety case which happened during Covid, which resulted in not only Sainsbury being fined £1 million, but also resulted in very serious injuries to a lady on a mobility scooter.

As the pandemic began to hit, Sainsbury’s in Newbury were keen to get their health and safety correct to protect both customers and staff. So, they put together a queueing system outside the store, the likes of which many of us became familiar with during 2020.

The problem was that the tape they used to divide the lanes was so weak that customers either broke it deliberately, or the plastic barriers below it blew over in the wind. So, they decided to use something altogether more robust, and pretty well unbreakable. The problem was that the parcel strapping was black, not easily seen and at head height for anyone on a mobility scooter.

The lady involved endured life changing injuries when she failed to spot the tape fixed between two car park pillars.

Sainsbury’s were investigated and prosecuted by the local Health and Safety Executive. The judge recognised that they were trying to do their best in difficult circumstances. However, no health and safety risk assessment had been carried out. If they had, they would hopefully have spotted the danger immediately.

As no risk assessment was carried out, and the result of the serious accident that occurred was found to be the fault of the organisation, Sainsbury’s were duly fined £1 million. Something that will have a big impact on the store and organisation’s reputation and profitability. Let us not forget that all of the supermarkets continued to have a pretty profitable time during the pandemic which could explain the size of the fine.

The investigating officer stated “I think the message to take from this is to not to take your eye off the ball. Consider all areas of potential hazards and risk assess.”

“If Sainsbury’s had carried out an adequate risk assessment, I am sure staff would have considered the potential outcomes. Of course, the circumstances of the pandemic played a role in this, but I think the lesson to take is that it is easy to be distracted, and think you’re doing the right thing in one area, but actually find yourself creating another issue somewhere else.”

The victim is likely to also have a very strong and expensive personal injury claim.

The P&O situation

We have not really had to comment too much on P&O’s current, lamentable situation. There has been enough coverage about it in the press.

But it, like the Sainsbury’s case, shows exactly what happens when the organisation takes a short-term view and either ignores the consequences, or thinks it can get away with it.

By the admission of their Managing Director, P&O Ferries (not P&O cruises, who are a completely separate company and entirely innocent, but whose reputation has also been badly affected), the organisation knew they were breaking the law. Nevertheless, they decided that the cost of doing so and any subsequent fallout was preferable than continuing to pay the lawful UK national minimum wage or above to their workers.

Not only were they relying on a slightly perverse provision in the law that said ships registered overseas were not subject to UK employment law, even on UK routes, but they had also cynically re-registered a number of their ferries a few years ago to take advantage of this loophole.

The subsequent fallout has surely cost them far more than the savings that they make on the hourly rate for their crew. Their failure to even carry out the minimum of consultation, let alone the statutory 45 days, shows why we have such laws.

Their fairly weak argument that they had lost £100 million the year before during the pandemic so that they could not afford to continue, scarcely holds water. Especially when their parent company had just spent £250 million on sponsoring the European golf tour.

The immediate outcome has been that the Government has rushed through a change in the law to ensure that any new crew have to be paid the national minimum wage. We suspect that the fallout for P&O will continue for many years, and we wonder whether they will have a viable future in the UK. If they are relying on insurance cover to cover the costs of the losses from their actions, that may not happen given the fact that they made a conscious decision to break the law on collective redundancy consultation.

If they had operated in exactly the opposite way, done proper group redundancy consultation and supported their workers throughout all of this, the public probably would have come flocking back. How their rivals must be rubbing their hands with glee.

In a tight labour market, they are unlikely to be an attractive employer to anyone other than a seafarer from abroad, who regards c. £5 per hour as a good deal.

So, what is the learning from these two cases?

Large employers are no more immune from getting matters wrong than SMEs if they fail to follow good professional advice. Always take a holistic view when making business decisions, be it traffic flow as part of a car park risk assessment through to making large scale redundancies.

Follow the basic legal requirements, take a reasonable and considered approach as opposed to a knee jerk one.  Always consider the reputational as well as safety risks arising from rushed decisions, or calculated ones designed to get around the law.

 

 

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.