April 2017 Changes

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Minimum Wage 2017

The draft National Minimum Wage (Amendment) Regulations 2017 (‘the regulations’), have been published and they will come into effect from 1st April 2017:

  • The National Living Wage for 25-year-olds and over will increase by 30p from £7.20 for to £7.50.
  • The Adult rate (21-24) will increase to £7.05 an hour, which is 10p more than the current rate of £6.95.
  • The Youth Development rate which affects 18-20-year-olds will increase to £5.60 per hour, which is 5p more than the current rate of £5.55.
  • The under 18-years-old rate will also see an increase up to £4.05 per hour, which is 5p more than the current rate of £4.00.
  • The Apprentice rate will receive an increase to £3.50 per hour which is 10p more than the current rate of £3.40

The fact that the Living Wage has increased by more than inflation is probably significant in terms of Government policy.

It is worth noting that the increase used to take effect on 1st October, but this change in review date was announced in the Chancellor’s Autumn Statement.

What you must do:

  • If you have people employed on the NMW, review what you can do to limit the impact.
  • If you employ people on just above the living wage, then consider whether you will remain competitive in your reward strategy, and what you are going to do about it.
  • Do not consider trying to avoid payment, as the financial and PR consequences can be substantial.
  • If applicable, communicate with your staff the impact on their pay, and consult over ways to improve productivity.

From April 2017

Statutory Adoption, Maternity, Paternity and Shared Parental Leave Pay, and Maternity Allowance, will increase to £140.98 per week, from £139.58.

Statutory Sick Pay (SSP) will increase to £89.35 per week, from £88.45.

The Lower Earning Limit (LEL) will increase from £112.00 to £113.00 per week, i.e. £5,876.00 per annum.

The Upper Earning Limit (UEL) has also increased from £827.00 to £866.00 per week, i.e. £45,032.00 per annum

New Statutory Figures

The Government has not yet announced what will be happening to compensatory payments in relation to unfair dismissal and redundancy pay, and is unlikely to do so until mid March.

Salary Sacrifice

As widely predicted, the Government has confirmed that it is to limit the benefits that attract tax and national insurance advantages, when provided as part of a salary sacrifice arrangement.

This will affect types of salary sacrifice schemes differently. The benefits that can continue to benefit from tax and NI relief, if provided through salary sacrifice, will be:

  • Enhanced employer pension contributions to registered pension schemes (and pensions advice)
  • Childcare (employer-supported childcare and provision of workplace nurseries)
  • Cycle to Work and ultra-low emission cars will also be exemptSchemes such as gym membership, phones and insurance will no longer be tax free.

All arrangements in place before April 2017 will be protected for up to a year, and arrangements in place before April 2017 for cars, accommodation and school fees will be protected for up to 4 years, i.e. until April 2021.

 

Please feel free to ask any questions of our Consultants who would be pleased to advise on any element of this newsletter.

The annual increase in compensation limits has just been announced. The limits apply to dismissals (redundancies or detriments etc.) occurring on, or after 6th April 2017:

  • £489.00 – the maximum amount of a week’s pay for calculating statutory redundancy pay, and the basic award; (up from £479.00)
  • £14,670.00 – the maximum statutory redundancy payment or basic award, i.e. 30 weeks; and
  • £80,541.00 – the maximum compensatory award which can be made for unfair dismissal (up from £78,962.00), or one year’s gross pay whichever is the lower

These increases mean that the maximum total unfair dismissal award is now £95,211.00, although uplifts can add a further 25%.

It is crucial to follow good practice in your HR procedures; considering carefully all dismissals, and ensure that the handling of appeals is conducted fairly and thoroughly. It is important to remember that there is no cap at all on the awards that can be made in many cases, including discrimination claims. Consequently, please seek advice from your HR Consultant, at the earliest opportunity, if you are considering terminating anyone’s employment, for whatever reason, and regardless of their length of service, so that they can ensure that you minimise any potential risks.

If you have started any redundancies, then you will need to update any calculations if the redundancy will take effect after 6th April 2017.

Employees may be entitled to receive guarantee payments for up to five days of lay-off, in any three-month period. The maximum amount of such a statutory guarantee payment will increase to £27.00 (from £26.00) for any one day.

The National Insurance employer threshold and employee threshold will be aligned from April 2017, meaning that both employees and employers will start paying National Insurance on earnings above £157.00 per week.

The personal allowance for tax will increase to £11,500 in April 2017, and will be £12,500 by 2020. The new threshold Upper Earnings Limit (UEL) for higher-rate tax will be £45,000.

 

Our Consultant would be pleased to answer questions on any of the above, or you can find much of the data on our website, by clicking on Frequently Asked Questions.

The apprenticeship levy, which the Government hopes will help create three million new apprentices by 2020, is due to come into force in April.

Introduction

There is no doubt that apprenticeships are a valuable part of the UK economy, with much of the business community initially welcoming a chance to develop this route into the workplace. It is worth noting:

  • Apprentices can be anyone over the age of 16 not in full time education.
  • Apprenticeships can be for school leavers, or those who are seeking to start a new career.
  • Many of the protections for young workers in the Working Time Regulations will apply to apprentices.

There are 3 levels of Apprenticeship:

  1. Intermediate Level Apprenticeships – apprentices work towards work-based learning qualifications, such as a Level 2 Competence Qualification; Functional Skills; and in most cases, a relevant knowledge-based qualification.
  2. Advanced Level Apprenticeships – apprentices work towards work-based learning, such as a Level 3 Competence Qualification; Functional Skills; and in most cases, a relevant knowledge-based qualification.
  3. Higher Apprenticeships – apprentices undertake a framework at Level 4 and above, which will include a Competence-based Qualification; Functional Skills; and in some cases, a broader vocationally related qualification, which could be a Foundation degree.

Recruiting apprentices means a commitment to train and guide an apprentice as they learn to do the job in your working environment. To do this, you need to provide them with planned, structured training that will help them learn on the job. The training should be practical, logical and reflect the level and content of their college work.

You also have a commitment to treat them fairly as an employee. This means paying them a fair wage in line with industry standards, the NMW, as well as giving them the same benefits and entitlements as your other employees.

Employers will be able to spend apprenticeship levy funding on apprenticeship training and end-point assessment (the assessment of apprentices by an independent organisation, required before they can complete the apprenticeship), either under an apprenticeship standard, or an apprenticeship framework. The funding can be spent only with an approved training provider, or an approved assessment organisation.

Employers will not be able to use the apprenticeship levy to fund other costs of apprenticeships, or other training costs. Government guidance states that the levy cannot be spent on:

  • wages;
  • statutory licences to practice;
  • travel and subsidiary costs;
  • managerial costs;
  • traineeships;
  • work placement programmes; or
  • the cost of setting up an apprenticeship programme;

Employers will not be able to use the levy to fund apprentices who have already been accepted onto an apprenticeship programme before the new system for apprenticeship funding in England comes into effect on 1 May 2017.

Employers looking to employ apprentices should note that, if they are in a sector which has an approved apprenticeship standard, they must use a prescribed form of “approved English Apprenticeship Agreement” which complies with the conditions set out in the Apprenticeships, Skills, Children and Learning Act 2009. We can supply such Agreements, so please contact us.

Levy

The levy, which will raise an estimated £3 billion by the end of this Parliament, could have serious consequences for employers, many of whom see it simply as an additional tax. Regardless of such views, employers have just less than two months to prepare for the levy coming into force, which is not helped by the fact that the Government is still consulting on the details.

The Government estimates that 2% of UK employers, approximately 22,000 organisations, will be required to pay the levy. It is worth noting that it is not just large employers who will be affected. Some smaller employers will be impacted, as a workforce of 100 people and an average salary of just over £30,000 will take businesses over the threshold. If businesses have an annual payroll cost of less than £3 million, then they will not be required to pay the levy. For employers that have more than this, however, there will be a 0.5% tax on the total pay bill, which will be paid through Pay As You Earn.

Employers in England that pay the levy will be able to access the funds they have paid in via a new online portal called the Digital Apprenticeship Service (DAS). They will also receive a 10% top-up from the Government to their total monthly contributions in England. Any training must be provided through an accredited provider. Only employers in England will be able to benefit from the DAS.

The Apprenticeship Levy will need to be reported each month on the Employer Payment Summary (known as the EPS) and should include the following:

  • the amount of the annual Apprenticeship Levy allowance which has been allocated to that PAYE scheme
  • the amount of Apprenticeship Levy you owe to date in the current tax year

HMRC have confirmed that it is not necessary to report Apprenticeship Levy if the employer has not had to pay it in the current tax year. The levy will not affect the way you fund training for apprentices who started an apprenticeship programme before 1 May 2017. You’ll need to carry on funding training for these apprentices under the terms and conditions that were in place at the time the apprenticeship started.

Calculations

The Government is introducing a ‘levy allowance’ of £15,000 per year. This means that the total amount you need to spend, if you qualify, is 0.5% of your pay bill, minus £15,000.

Work out what your total pay bill is. This is made up of the total amount of your employees’ earnings that are subject to Class 1 National Insurance contributions. Employees’ earnings include any money they make from employment, such as:

  • wages;
  • bonuses;
  • commissions;
  • pension contributions;

The levy is not charged on other payments to employees, such as benefits in kind. You should then work out what 0.5% of your total pay bill is, and then subtract the £15,000 allowance.

For example, an employer with an annual pay bill of £5,000,000 will need to spend £10,000 on the levy:

  • Levy sum: 0.5% x £5,000,000 = £25,000
  • Subtracting levy allowance: £25,000 – £15,000 = £10,000 annual levy payment

Preparations

Although some aspects of the changes to apprenticeships remain unclear, there are steps employers can take to prepare themselves for the introduction of the Levy. Employers who do not currently use apprentices, but who are likely to be net contributors to the Levy, should consider how best to use their Levy allowance so:

  • Check the likely Levy contribution, and try to work out how much you will have to pay;
  • If appropriate, consider how the Levy payment will be split across any Group companies, and how the funds will be allocated where the Group has multiple employers;
  • For employers with operations in Northern Ireland, Scotland and Wales, consider what your ‘English fraction’ will be;
  • Establish what apprenticeship funding you will receive from April 2017, including the value of any top-ups, and consider what your training obligations will be against funding and Levy spend;
  • Decide who in the business will be responsible for managing the access to the DAS;
  • For Levy paying employers, you can register with DAS from January 2017 to get used to the new system before the Levy is introduced in May 2017;
  • For some employers, it will be essential to ensure that they have the financial capability to pay the levy;

How can the Apprenticeship Levy work for you?

It is possible that many employers will not recoup the levy that they pay, and will, therefore, simply see it as another employment tax, particularly those that have no need for structured training that could fall within the scope of an apprenticeship scheme.

Be proactive and identify areas in an organisation where training is most needed, to ensure that the apprenticeship levy works in favour of your organisation.

Find an appropriate training provider with a proven track record.

Ensure you have an appropriate agreement (contract) for each apprentice.

Employers that do not pay the levy will still be able to access Government support for apprenticeships.

There is an opportunity for other employers to get out of the levy more than they pay in, if they take the time now to look at their learning and development needs, and ascertain what could fall within the structure of an apprenticeship.

ACAS identify four reasons why employers should recruit apprentices:

  • 90% of businesses engaging apprentices report improved productivity.
  • Apprenticeships allow employers to fill skills gaps and reduce recruitment costs.
  • The Government estimates that employers can recoup their investment within two years.
  • They are the building blocks of the future, with new ideas and skills.

Additionally, employers should think more broadly than the immediate view of an “apprenticeship” as something for young starters. Consider what training has been have put off because of the possible cost, and ascertain what could be done by way of introducing apprenticeship to gain the best value from this new levy.

 

You are welcome to contact our Consultants who would be pleased to advise you on any element of the issues arising from this newsletter.

A group of employees (Sparks and Others) in the Department for Transport (DfT) applied to the High Court for a declaration that the staff handbook was incorporated into their employment contracts. The High Court agreed that they were incorporated, and that the DfT could not vary the terms without agreement from the employees. The DfT appealed the decision to the Court of Appeal in respect of the short-term absence management policy.

The effect of the absence management policy was to restrict disciplinary action for short-term absence to a trigger of 21 days in a 12 month period. If contractual the DfT could not deviate from this without being a breach of contract. For the employees this was an important term of the Handbook as it meant that the changes proposed would trigger the absence management policy and formal sanctions sooner than under their existing procedure.

The Court of Appeal dismissed the DfT’s appeal and gave guidance on whether terms of a staff handbook are incorporated into employee contracts, including:

  • The issue will always depend on the precise terms of the documents;
  • The wording of the documents as a whole;
  • The contractual intention of the documents.

Peter Stanway, our BackupHR™ legal expert comments:

This case highlights the importance of ensuring that your Handbook of Employment Policies, procedures and rules is a separate document to employment contracts. It is also advisable to be clear that the policies and rules are subject to amendment by the employer at any time, in line with business needs. By regularly updating them, you are reinforcing the point that such employment terms can and will be regularly changed.

The Court of Appeal decided that looking at the language of the document, and specifically the attendance policy contained within the Staff Handbook, these were legally enforceable contractual terms rather than just notes of guidance and good practice with no legal force. In other words the relevant paragraphs were to be construed as conferring rights on the employee rather than merely setting out simply good practice which the employer intended to follow. Therefore the new policy of attendance management and specifically over the matter of short term absence triggers, introduced by the employer was not deemed effective to vary the terms of the employment contracts and so was not contractually binding on employees.

The Court were also critical of the fact that the Handbook and Procedures had been changed and there had been various versions created, but not all of the versions had been retained and so were not available for consideration.

Actions:

  1. Check what your contracts and handbook say about the terms;
  2. If you want to make changes to existing contractual terms, ensure that you seek advice before doing so;
  3. Make sure that within your Handbook it is clearly stated that the Employer reserves the right to amend terms when necessary and legitimate to do so;
  4. Even if your Handbook is not deemed to be contractual it is always advisable to undertake a consultation process prior to introducing an updated Handbook with varying terms;
  5. Ensure that you keep copies of earlier versions of Handbooks;
  6. If you are using a contract template you have obtained online or ‘borrowed’, get the documents reviewed now, before you need to rely on them;
  7. You may need to review your policies to ensure that they are up to date with constantly changing employment law requirements.

This decision highlights that each case will turn on its particular facts. You need good professional advice on making changes. Having contacts and handbooks drafted by professionals reduces the risk of ambiguity.

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 us for specific advice.

The concept of vicarious liability means that if an employee injures someone in the course of their employment, that injured person may sue the employer for damages, i.e. recovering compensation for death or injury caused by alleged breaches of health and safety. Therefore, an employer can be liable for a civil wrong committed by an employee during the course of his or her employment. This happens given the relatively limited financial resources of most employees compared with their employer, who will have proper insurance cover.

In the recent case of Cox v Ministry of Justice (2016), the Supreme Court has restated and expanded the principles that apply to the concept of vicarious liability. This case did not directly involve an employment relationship, but the general principles laid down by the Supreme Court are clearly applicable to employer and employee.

The Facts of the Case

The facts were that Mrs Cox was employed by the Ministry of Justice (MOJ) as the Catering Manager at Swansea Prison. She was responsible for all aspects of catering, including the operation of the prison kitchen. She supervised prisoners who worked in the kitchen, alongside civilian staff. She told some prisoners to take supplies to the kitchen stores. A prisoner accidentally dropped a sack of rice onto her back, injuring her. She brought a claim against the MOJ.

At first instance, the claim was dismissed on the basis that the prison service was not liable because the relationship between the prison service and the prisoner was not that of employer and employee. The Court of Appeal reversed that decision.

The Final Ruling

The Supreme Court upheld the Court of Appeal’s decision and stated there were five factors which made it fair, just and reasonable to impose vicarious liability on a defendant, where the defendant and the person guilty of the tort (the wrong) were not bound by a contract of employment.

  • The first factor is that the defendant is more likely to have the means to compensate the victim, and can be expected to have insured against the possibility of vicarious liability.
  • The factor that the wrongdoer will have been under the control of the defendant, no longer has the significance it used to have. In modern life, it is not realistic to look for a right to direct how an employee should perform his or her duties as a necessary element in the employment relationship.
  • The other three factors are: the tort (the wrong) was committed as a result of activity being taken by the wrongdoer on behalf of the defendant; the wrongdoer’s activity is likely to be part of the business activity of the defendant; and the defendant will have created the risk of the tort.
  • In considering each of the requirements, it was held that prisoners were integrated into the operation of the prison, so that that the activities assigned to them formed an integral part of the activities which the prison carries on in the furtherance of its aims, i.e. in providing meals to its prisoners. Prisoners were placed in a position where there was a risk of them committing a variety of negligent acts, and the work was done under the direction of prison staff. The five requirements were met, and so the prison service was vicariously liable to the claimant.
  • A relationship other than one of employment is, in principle, capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the defendant’s business, and for its benefit and, where the commission of the wrongful act is a risk created by the defendant by assigning those activities to that individual.
  • The defendant need not be carrying on activities of a commercial nature. The benefit which it derives from the wrongdoer’s activities need not take the form of a profit. It is sufficient that there is a defendant carrying on activities in the furtherance of its own interests.
  • Defendants cannot avoid vicarious liability on the basis of arguments about the employment status of the wrongdoer.
  • The prison service places these prisoners in a position where there is a risk that they may commit a variety of negligent acts, which is recognised by the provision of health and safety training. Mrs Cox was injured as a result of negligence in carrying on activities assigned to him, and the prison service was, therefore, vicariously liable.
  • Lord Reed was particularly impressed by the desire to protect members of today’s workforce who do not have a contract of employment but are, in practice, working for others. So, defendants who have got around actually employing staff will not be able to shield themselves from vicarious liability based upon technicalities. If the reality is that the worker is working on the defendant’s behalf, and for the defendant’s benefit, vicarious liability will follow. Therefore, organisations engaging people on contracts which are not employment contracts should now beware!

The Basic Principles

The Cox case further developed the principles stated by the Court of Appeal in the key case of Majrowski v Guy’s and St Thomas’s NHS Trust (2005), which was about harassment by a Manager. The Court of Appeal found that the employer was liable, and made the following points.

  • Vicarious liability is a legal responsibility imposed on an employer, although the employer is free from blame, for a civil wrong committed by an employee in the course of his or her employment.
  • True vicarious liability is liability for an employee’s unauthorised, or not negligently permitted, unlawful mode of doing an unauthorised act in the course of employment.
  • For such liability to apply, the act must be so closely connected with what the employee was authorised to do, that it would be fair and just to regard it as a mode, even of an improper one, of doing it.
  • In deciding whether the connection is sufficiently close, the Court has to balance the social interest in furnishing an innocent victim with a remedy against a financially responsible defendant, with the need to avoid foisting an undue burden on a business enterprise.
  • An employer cannot avoid vicarious liability by showing that the employee was guilty of intentional wrongdoing, or that the act was criminal, or that the employee was acting contrary to express instructions, or that his or her conduct was the very negation of the employer’s duty.

Implications

This means that an organisation can now potentially be held vicariously liable for the actions of not only its employees, but also to all types of workers, unless they are truly independent contractors, whose activities are entirely attributable to a recognisably independent business of their own. It may also cover volunteers. It is apparent that short shrift will be given by the Courts to technical arguments about the employment status of the wrongdoer.

The judgment also confirms that the doctrine is not limited to defendants carrying on activities of a commercial nature; it is sufficient that there is a defendant which is carrying on activities in the furtherance of its own interests, which do not have to be economic. Such interests could be charitable, or the interests of a religious institution. Or, they could be the interests of complying with a statutory duty in the case of a public authority or hospital.

The Supreme Court recognised that extensions to the vicarious liability doctrine are necessary to maintain protection for victims. It may not be welcomed by employers, but it is a welcome development for innocent injured parties, who should not be left at the mercy of arbitrary distinctions between different categories of worker, when a defendant has created the risk of their injury.

Practical Steps:

Many employers struggle with the fairness of vicarious liability, but it is well established, so all that good employers can do is to work hard at maintaining a healthy and safe working environment. So:

  • Undertake good quality training, not only for employees, but for a wider group of workers for whose actions the organisation might be vicariously liable.
  • Deliver robust disciplinary sanctions for employees and workers who depart from expected standards of conduct and competence.
  • Conduct rigorous background checks, without contravening your policy/the law on the rehabilitation of offenders.
  • Consider revising your policy documents on interfacing with the public/ customers/stakeholders etc., stressing the need for safe working and considerate conduct.
  • Think about how to impart good practice standards to your general workforce – not only those with conventional employment contracts, but agency staff, contractors, work placement schemes and volunteers etc.
  • Ensure that genuinely self-employed contractors have appropriate third party insurance.
  • The key is to ensure that only trained personnel undertake any activity that could be dangerous to the health and safety of others.

 

 

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

According to the Met Office we are already into the summer as of 1st June. True to form as the weather heats up those of us who spend all of our time indoors at work will, in our spare time, be heading out into our gardens or up the coast in an attempt to stop ourselves looking lily white any longer. In contrast those employees that spend large amounts of time working outdoors have the opposite problem of making sure that their skin is not over exposed and they keep well hydrated especially when doing physical work. So what do the experts tell us about this periodic British opportunity of a potentially decent summer?

The Met Office has published a range of new web pages entitled Get Ready for the Great British Summer, teaming up with a number of partners, such as Cancer Research UK and PDSA to encourage us to be prepared for and enjoy the summer. The web pages include a new safety section with tips about sunscreen and hats from Cancer Research UK. Sunscreen (factor 15 or higher is recommended) should be the last line of defence to help protect skin from sunburn. It’s really important to use shade and clothing too. Factor 15 or higher sunscreen can help protect parts of the body you can’t cover with clothes, but no sunscreen, whatever its SPF or star rating, can offer 100 per cent protection from UV rays. And to get the level of protection written on the bottle it’s important to apply enough (about an ice-cream scoopful to cover your whole body if wearing a swimsuit) and reapply regularly. There is even some helpful advice from the PDSA on how to make sure that your pets (working and domestic) don’t suffer heatstroke. Typical symptoms being excessive panting; extreme salivation; distress and collapse. It goes without saying that all pets need access to clean drinking water, they too should not stay out in the sun for long and not left in cars unless under complete shade with adequate ventilation.

The Health and Safety Executive (HSE) considers matters within the work place reminding organisations and managers responsible for workers whose job keeps them outside for most of the day. Their relevant leaflet INDG337: Sun Protection: Advice for Employers of Outdoor Workers gives advice on reducing the health risks for employees when they are working in the sun.

The leaflet advises outdoor workers to follow the sun protection six-point code:

  1. Keep tops on to act as a barrier from the rays of the sun.
  2. Wear a suitable hat especially one with a brim or flap that protects the ears and back of the neck.
  3. Stay in the shade wherever possible, especially at break times.
  4. Use a high factor sunscreen on any exposed skin.
  5. Drink plenty of water to avoid dehydration.
  6. Check skin regularly for any unusual moles or spots and see the doctor promptly if anything is changing in shape, size or colour, itching or bleeding.

Employers or manager responsible for outdoor workers should:

  • Make their workers aware of the above points and especially.
  • Include sun protection advice in routine health and safety training, as well as informing workers that a tan is not healthy but a sign that skin has already been damaged by the sun.
  • Make sure that they drink plenty of water to avoid dehydration, siting water points and rest areas in the shade.
  • Encourage workers to keep covered up with hats and long sleeved shirts during the summer months, especially at lunch time when the sun is at its hottest.
  • Encourage workers to use sunscreen with a sun protection factor (SPF) of at least 15.
  • Consult with employees and take their views into account when introducing any new sun safety initiatives.

The HSE says, “UV radiation should be considered an occupational hazard for people who work outdoors” so this needs to be considered as part of any generic workplace risk assessment undertaken.

Other workers that need to be considered are those that work in hot conditions all year round but when there is additional summer heat their environments can get even hotter. These can range from professional kitchens, bakeries, laundries and boiler rooms through to heavy industrial processing activities such as smelting or welding. These workers are at risk of heat stress which is when the body’s means of controlling its internal temperature starts to fail. Air temperature, work rate, humidity and work clothing are all factors that can cause heat stress; the problem being is that it is not an obvious risk to people that are only passing through rather than actually working there. Factors to reduce risks include:

  • Control the temperature e.g. fans or air conditioning.
  • Provide mechanical aids to reduce work rates.
  • Regulate the length of exposure e.g. job rotation.
  • Prevent dehydration encouraging people to drink small amounts frequently during and after working.
  • Provide training about heat risks, symptoms of heat stress, safe working practices and emergency procedures.
  • Make sure first aiders know about what to look out for and what treatment to provide as well.
  • Allow workers to acclimatise to their environment and asses whether they are fit to work.
  • Identify those who may be more susceptible due to illness, a medical condition or medication that can bring on early onset of heat stress e.g. pregnant women or those with heart conditions.
  • Monitor the health of workers at risk and seek OH advice if necessary.

There is some useful information on managing temperature at work at: Temperature

Finally, for those that are simply suffering the heat in an office environment, there is no upper temperature limit that employers must adhere to. However, the Workplace, Health, Safety & Welfare Regulations do require that working areas should be adequately ventilated with clean fresh air draw from a source outside of the workplace with suitable circulation. That can mean either opening windows to switching on the air conditioning. Don’t forget that those air conditioning units need to be periodically serviced so that filters can be cleaned to reduce the risk of legionella. High quality drinking water must be readily available to all workers. Even workers that spend many hours in a vehicle driving can suffer with heat exhaustion increasing the risk of accidents to make sure that they carry plenty of fresh drinking water in their vehicles, switch on the air conditioning, and take appropriate rests especially when driving at the hottest time of the day.

So check that your risk assessments cover this welcome advent of the sun and make sure that your control measure are adequate for all of your workers, indoors and out, and anyway in between!

Dr Beatt was employed by Croydon University Hospital NHS Trust as a consultant cardiologist. The working relationships between the doctor and several of his colleagues were strained, and the cardiology department had been described as dysfunctional.

Whilst he was performing an operation, his head nurse, Sister Jones, was suspended and the patient died. The Claimant argued that the head nurse’s absence contributed to the patient’s death. Dr Beatt held her in high regard and it was thought that this influenced his objectivity.

He raised concerns over a lack of medical support, specifically about staffing levels and patient safety in general. The hospital decided the allegations were “entirely without merit and … gratuitous in nature”, and motivated both by his antagonism to the department’s assistant director and his wish to see Sister Jones reinstated. He was duly dismissed for gross misconduct, on the grounds that he had made false accusations of poor patient safety and unfounded accusations against a colleague.

He won his claim of automatic unfair dismissal for making protected disclosures (whistle-blowing) at the Employment Tribunal.

The case went to the Court of Appeal which found in his favour. There was no dispute that the Claimant had made protected disclosures – the only question for the court was whether the Tribunal was right or in any event entitled, to find that that was the principal reason why he was dismissed. It was irrelevant if the Hospital thought they were not protected disclosures, or ones made not in good faith. Deciding if a disclosure is protected is an objective assessment for the employment tribunal as to whether the statutory conditions for protection are met. The Court found that in whistleblowing cases, there were two questions:

  • Is the making of the disclosure the reason for the dismissal?
  • Is the disclosure in question protected within the meaning set out in the Employment Rights Act (ERA)?

The Court commented that it would enormously reduce the scope of the protection for whistle blowers if liability could only arise where the employer itself believed that the disclosures were protected.

Peter Stanway, our BackupHR™ legal expert comments:

Dismissing a whistle blower is always going to be a high risk strategy, so this Judgment is unsurprising as, for policy reasons, a high level of protection is granted to whistle-blowers. As Underhill LJ said: “It is all too easy for an employer to allow its view of a whistle blower as a difficult colleague or an awkward personality (as whistle blowers sometimes are) to cloud its judgement.”

The Judge, who has a strong background in employment law, went on to say “if there is a moral from this sad story” it’s that employers should proceed to the dismissal of a whistle blower only where they are as confident, as they reasonably can be, that the disclosures in question are not protected or, that a distinction can clearly be made between the fact of the disclosures, and the manner in which they are made.

Action Points for Employers:

  • Be careful to consider whether any disclosures are protected or not. A disclosure will be protected if it meets the statutory conditions and this is an objective test rather than a subjective one. Try to be dispassionate.
  • You should not allow your view of a whistle blower as a difficult colleague or an awkward personality to cloud your judgment about whether the disclosures in question do in fact have a reasonable basis. This will be judged by the tribunal.
  • You should therefore only dismiss if you are confident that the disclosures in question are not protected, or where a distinction can clearly be made between the disclosures themselves, and the manner in which they are made.

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 us for specific advice.

No-one likes to deliver bad news, but every Manager has to do this at some stage. If it is done effectively, the outcome can be more constructive than if it is done badly, or not at all.

We will identify useful approaches and techniques that will help Managers to be more confident and purposeful, by practising how to do it in a supportive and safe environment. Delivering bad news without proper preparation can be stressful to all concerned, so come to learn how to be more comfortable dealing with this part of a Manager’s job.

The course objectives will include: –

  • What is bad news?
  • What is the process?
  • Preparation
  • Meetings
  • What happens next?

We are running this course at the following venues:

Rowley Mile Conference Centre, Newmarket – 11th October 2017
Park Farm Country Hotel, Norwich – 30th November 2017

The course will commence at 8.30 am, with registration and refreshments from 8.00 am. The course will finish around 1.30 pm, with breaks for refreshments and lunch.

The cost for this training event will be £75.00 plus VAT per delegate, including lunch.

To reserve your place on this course, please contact Jackie Bolton either by e-mail: jackie@www.backuphr.com or call 01480 677981.

 

The Government Legal Service (GLS) was recruiting lawyers in what the EAT called “a fiendishly competitive recruitment process”. The process included a multiple choice Situational Judgement Test (SJT). Ms. Brookes was required to sit the SJT, consisting of right or wrong answers to multiple choice questions, meaning marking can be done by a computer without human intervention or judgment. She asked the GLS to make adjustments on the ground of her Asperger’s Syndrome. She was informed that an alternative test format was not available (although time allowances were). She completed the SJT and failed narrowly.

She claimed disability discrimination due to her Asperger’s, as she was unlawfully disadvantaged by the multiple choice method of testing, and that the Respondent should have granted her request to be allowed to answer the questions in the SJT in the form of short narrative written answers.

An employment tribunal found that the GLS:

  • had indirectly discriminated against the Claimant
  • had failed to comply with the duty to make reasonable adjustments and
  • had treated her unfavourably because of something arising in consequence of her disability

Having heard expert medical evidence, it concluded that the PCP generally placed people who had Aspergers syndrome, at a particular disadvantage compared with those who did not have it. It found that she was put at that disadvantage, especially since her Asperger’s causes difficulties in imaginative reasoning in hypothetical scenarios. The Tribunal ordered the Respondent to pay compensation and made a recommendation that they issue a written apology to the Claimant, and review its procedures in relation to disabled people applying for employment.

The EAT ruled that the employment tribunal was entitled to conclude the provision, criterion or practice (PCP) placed Brookes at a particular disadvantage, because she has Asperger’s Syndrome. The EAT also agreed that the requirement to take the SJT in its unaltered form, amounted to unfavourable treatment; this could not be justified as a proportionate means of achieving a legitimate aim, for the reasons found in respect of indirect discrimination. Throughout the case, Ms Brookes had not asserted that the entire process should be changed dramatically and did not dispute what the SJT sought to measure – the ability of candidates’ decision-making powers. She merely alleged that small changes could be made to ensure a fairer process for all applicants.

Peter Stanway, our BackupHR™ legal expert comments:

This case is important because similar tests are widespread methods of recruitment across all sectors consequently certain candidates may be disadvantaged – such as those with dyslexia or autism (aspergers being on the autistic spectrum). It highlights the importance of considering reasonable adjustments for disabled candidates at all points in the recruitment process including testing.

  • Employers should ensure that on application, candidates are asked whether they require any reasonable adjustments. If they indicate that they do, then you should enquire further as to what would help them.
  • If you use any form of testing method, then you should consider whether an alternative should be deployed in the event that the candidate is unable to complete such tests, exactly as you would normally require. This does not necessarily make that candidate unsuitable for that role.
  • If you are unable to make reasonable adjustments, your reasons must be justifiable e.g. disproportionately too costly and properly documented so that your decisions can stand up to scrutiny, if challenged.
  • Ensure disabled candidates are not disadvantaged to the extent that they are unsuccessful in their application, purely because their disability did not allow them to perform as well as a non disabled person.

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 us for specific advice.

The Government rolled out its latest initiative, i.e. Tax-free Childcare scheme, in late April to show greater support for working parents. This issue has been addressed repeatedly by different governments, so that keeping up has never been easy.  To support parents, Governments have funded free nursery places for very young children, and have offered further support with government money in the form of tax incentives.  Until 2017 this second-phase of financial support has been delivered through Childcare Vouchers – a very tax efficient way of paying for some childcare provision.

Tax-free Childcare is designed to save parents up to £2,000 per year, per child, for children up to the age of 12, but in reality the average saving has been estimated at just £800.
There were problems with the Childcare Voucher offering, not least that to qualify for this support the working parent(s) had to be offered the scheme via their employer.  In our experience, most SMEs employers do not offer (or are completely unaware of) this option, and therefore many working households have missed out on this financial support.

Since 2005, employers have been able to provide parents with childcare vouchers as part of a salary-sacrifice scheme. These vouchers currently help around 780,000 working parents save up to £933 of tax and national insurance on their childcare costs per year. From April 2018, new entrants to the childcare vouchers scheme will not be permitted. Parents already in the scheme will, however, be able to remain in the scheme for as long as they require.

While some families will benefit from the roll-out of Tax-free Childcare, others risk being worse off, which means that employers need to be on top of these changes. Each case needs to be taken on an individual basis. Parents cannot use both childcare vouchers and Tax-free Childcare.  If employees leave the childcare voucher scheme in favour of Tax-free Childcare, they will be unable to re-join, even if their circumstances change in the future. With the roll-out expected to include children up to 12 years old by the end of 2017, there may be quite an increase in enquiries from parents in the not too distant future.

Employers can choose to play a voluntary role, by providing employees with information on the scheme, and/or by paying into employees’ childcare accounts.

Employers are not obliged to play a role in the Tax-free Childcare scheme, as the scheme will operate directly between parents and the Government. This may sound like good news for employers, but childcare costs can also be a problem for employers.  Enforced absence and financial hardship are issues that will distract even the best employees from their work.  This can be bad for productivity, not to mention those who may be actively considering leaving the workplace.

Employers ought to learn about the details of both schemes and understand how they will impact different employees, so they can not only educate their staff and offer guidance on the decisions ahead, but also show their commitment to enhancing their employees’ lives, both in and out of work.

Employers can act as a source of information on the scheme, for example by referring employees to the Government web portal for advice. www.childcarechoices.gov.uk through which parents can sign up to receive email alerts that will tell them when they can apply for Tax-Free Childcare.

A useful time to provide this information may be prior to, and on return from periods of family-related leave. There are also some good websites, such as: Employers For Childcare who produced a guide. Their guide includes a comparison of Tax-Free Childcare with other forms of support, practical examples, and answers to FAQs.

Actions

Employers can show their support for working families (particularly as some employees will be worse off under the new scheme) by:

  • Building a culture that clearly values each employee and their need for a family life
  • Providing employee benefits that helps to keep more money in parents’ pockets e.g. by choosing to pay into a childcare account
  • Having policies that help new parents return to work
  • Pointing employees in the right direction to get guidance

It should be noted that BackupHR™ are not experts in childcare vouchers so on this occasion we are probably not the first point of call for queries on this matter which is why we have provided information links instead.

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 us for specific advice.