The Right to Disconnect from Work

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In a bid to improve work-life balance, French companies with more than 50 employees are now required to guarantee workers the “right to disconnect” from technology when they leave the office at night. The law, which took effect recently, has vague enforcement provisions making it obligatory for qualifying firms to start negotiations with their workforces, about when to ignore their smartphones.

It is the French response on how to tackle the modern-day scourge of compulsive out-of-hours email checking. Overuse of digital devices has been blamed for everything from burnout to sleeplessness, as well as relationship problems, with many employees uncertain of when they can ‘power down’. Whilst the foreign press mocked this new law, it is defended by the French who are concerned that increasing use of technology has blurred the lines between work and personal life. A survey of French workers found, that more than a third of them use their devices to access email, or do some work every day. As reported in Le Monde, a recent study found than approximately 3.2 million French workers are at risk of “burning out,” defined as a combination of physical exhaustion and emotional anxiety. This law has few teeth and is about promoting a climate favourable to conversations with people working, about what their expectations are whilst maintaining a healthy workplace.

In the UK a survey of employers suggest that 21% expect staff to always be contactable out of working hours. Employers need to take into account demands from employees for both protection and flexibility.  We need to re-think what work-life balance really means. Some people want to work in the evening, but want to be able to switch off when they are picking up their kids and are cooking dinner. Some want to switch off on their daily commute, whilst others wish to get/keep ahead. What is clear is that the workplace is changing as rapidly as technology, with employees increasingly working remotely, or with colleagues/clients in other time zones.

Peter Stanway, our BackupHR™ legal expert comments:

Many of us fail to achieve work life balance. Now even this concept is being challenged by the idea of work-life integration, which recognises that younger generations are often happy to blend work with home life thanks to technology, providing it is accompanied by mutual give and take.

Whether people are working flexibly or not, it is important to manage those boundaries between work and home, and being able to say ‘actually I am not working now’. People have criticised the French law, stating that the consequences of responding to emails out-of-hours have been largely exaggerated, as the amount of work individuals have to catch up on once they return to work, results in building up more stress.

The fundamental questions to ask is; do after-hour email restrictions hurt or help well-being and productivity?

For many businesses banning workers from accessing their inboxes, or communicating on work issues out-of-hours is simply not realistic. However, employers can introduce procedures that encourage employees to take proper breaks, and, making it clear that when sending emails, people need to have a sensible and reasonable expectation as to whether people choose to respond to emails sent out-of-hours.

Even though legislation is unlikely to be introduced in the UK, employers should not ignore the issues that can arise from excessive use of digital devices and should:

  • Promote a healthy debate about what is acceptable use.
  • Encourage employees to adopt a healthy lifestyle and work-life balance.
  • Develop policies which are realistic and fair.
  • Train Managers in applying that policy sensitively and leading by example.

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 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 Mental Health Network annual conference and exhibition 2017 took place on Thursday 16 March. In May, the Mental Health Foundation is going to look at mental health from a new angle. Rather than ask why so many people are living with mental health problems, they will seek to uncover why too few people are thriving with good mental health. With people struggling to cope with the demands of life, they will explore:

  • how many of us are surviving or thriving, and the difference between the two
  • why some communities are under strain and what government can do
  • steps we can take to look after our mental health, building resilience to cope with the demands of life.

It should be clear that mental health is becoming a much more high profile issue, and within the working environment, it is developing resilience that employers are increasingly beginning to start to focus on.

Resilience can be defined as the capacity to recover quickly from difficulties, because it is rare for individuals never to be confronted with adversity or challenging circumstances during the course of their lifetime. People who are resilient tend to be able to harness their inner strengths and resources to rebound quickly and more fully from setbacks It can help you to boost your own levels of confidence and well-being.

Some people may be more biologically predisposed toward being resilient. The good news is that resilience is not a trait that people either have or do not have – it involves thoughts, beliefs, attitudes and behaviours that can be learned.

There a number of very simple strategies that individuals can take to prevent stress and mental illness, albeit some of them are harder to do than intend:

  • Good nutrition and exercise.
  • Sufficient sleep and relaxation.
  • Prayer and/or meditation.
  • A good social support network.
  • Assertiveness and conflict resolution skills.
  • Taking holidays and avoiding excessive prolonged working hours.

Most of these strategies can be accomplished without any input from the employer, and can be termed lifestyle, or behaviour choices.

It matters to employers because according to Robertson & Cooper, renowned business psychologists, in their Good Day at Work website, employees higher on psychological well-being:

  • Show greater flexibility and originality.
  • Respond better to unfavourable feedback.
  • Make more positive judgements about others.
  • Show higher levels of “Engagement” and productivity.
  • Are likely to live longer … be sick less often … and have happier work and home life.

It is also important to remember that workplace factors have a big influence, particularly the degree that the employees has control over the demands made on them and suitable support from colleagues, boss and the employer.

Self development and training alone is not enough to change a culture. Training in resilience should not be seen as a sticking plaster, covering up organisational weaknesses. Poor job design needs to be addressed. Targets and deadlines need to be realistic. Senior people must not condone a bullying culture which disregards organisational dignity at work policies. Resilience should be seen as part of your organisational wellbeing approach, which ought to include most of these strategies:

  • Develop your employees’ creative problem solving skills.
  • Provide training in handling difficult situations and dealing with conflict.
  • A pleasant physical working environment (e.g. good lighting, seating, etc.).
  • Promote healthy behaviour in the workplace e.g. healthy eating and exercise.
  • Provide training for employees and managers to recognise, and take early action, to ameliorate conditions that can produce stress.
  • Support employees with mental health problems (and other health issues).

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.

Most large businesses will be aware that the Modern Slavery Act 2015 requires them to prepare a statement disclosing the steps they have taken to ensure that there is no slavery or human trafficking in their businesses and supply chains. The Act states that the slavery and human trafficking statement must be approved by the organisation’s management body and signed by a director.

What is less well known is that the Act is meant to filter down to smaller organisations, who supply those large employers. There is however a misconception that the Act does not apply at all to SME’s when in fact it is only the statement that is not really relevant; otherwise there remains a real duty of care on all organisations to help eliminate human slavery and trafficking.

Peter Stanway, our BackupHR™ legal expert comments:

The statement provision applies to businesses in all sectors, including charities, with an annual turnover of £36 million. Failure to comply with the new rules may result in unwelcome publicity, difficulties with customers, clients, investors and funders and, potentially, enforcement action from the Government. Satisfying the requirements of the Act is not a one-off exercise.

Under the Act’s transitional provisions, the first organisations that will be required to publish a slavery and human trafficking statement are those whose financial year ends on or after 31 March 2016. The guidance states that an organisation should seek to publish its statement as soon as reasonably practicable, preferably within six months of the end of their financial year. For example, those organisations whose financial years ended on 31 December 2016, should aim to produce a statement by no later than 30 June 2017.

Organisations, whether incorporated in the UK or otherwise, will be required to publish their slavery and human trafficking statement on their website (if they have one) and include a link to the statement in a prominent place on their homepage. There is no requirement for organisations to include the statement in their annual report and accounts.

SMEs may well find themselves under pressure to demonstrate what they have done to meet the Act’s requirement from the supply chain with larger organisations as well as their own clients or customers. Investors and funders may also require compliance.

Actions:

  • Consider introducing a policy on human trafficking or hidden labour exploitation as it is sometimes called and how it fits into your Employee Handbook
  • Check your practices for ensuring compliance with the minimum wage and right to work in the UK legislation particularly employment agencies and other subcontractors
  • Review your procurement policies to ensure that you can request the information you need from your suppliers and subcontractors.
  • Consider what actions you will take if a supplier or subcontractor is found to have been involved in modern slavery.
  • Consider introducing modern slavery due diligence training for your relevant employees

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.

Coping with change is a necessary skill for the modern workplace, and being adaptable is a key requirement to survive and thrive in any role.

This half-day course will look at some of the common workplace pressures, with a view to learning effective approaches, including meeting your boss’ expectations, knowing when and how to stand up for yourself, developing resilience, whilst juggling work and personal demands.

This course would suit anyone at any level who wants to have a better understanding of survival strategies and skills. This will also aid personal and career development, as being able to adapt quickly is more than just the key to survival, but to success itself.

The course objectives will include: –

  • Understanding Modern Workplace Requirements
  • Adapting to Change
  • Dealing with Constant Pressure and Building Resilience
  • Managing Work Expectations
  • How to achieve Work-life Balance or Integration

We are running this course at the following venues:

  • Rowley Mile Conference Centre, Newmarket – 16th May 2017
  • Park Farm Country Hotel, Norwich – 17th October 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 £90.00 plus VAT per delegate, including lunch. To take advantage of our early bird discount, book before 31st March 2017 for the Newmarket event, or 31st July 2017 for the Norwich event.

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

 

1. Employment Status

Last autumn, a London Employment Tribunal held that Uber was a taxi company, not a technology platform as it claimed, and found that its drivers had legal rights including the right to paid holiday and the minimum wage. Uber announced that they were to appeal to the Employment Appeal Tribunal and that appeal is expected this year. This was the tribunal case that everyone talked about in 2016.

In January, a different employment judge at the same employment tribunal found that a cycle courier was a worker for CitySprint, and three more cases being brought by couriers (against Excel, Addison Lee and eCourier) will be heard by the same employment judge this year.

While employment tribunals’ decisions do not bind other tribunals, those of higher courts do. The Court of Appeal recently heard another case (involving nominally self-employed individuals who work for Pimlico Plumbers) and the result of that case is likely to affect the outcome of other claims.

2. Equal Pay

In what has been described as the largest ever equal pay claim against a private-sector employer, more than 9,500 Asda shop floor workers – who are predominantly female – are seeking to compare their jobs in retail stores with the jobs of colleagues who work in distribution centres, which are traditionally male dominated. In October 2016, the Manchester tribunal agreed that the shop floor staff could compare themselves to distribution workers, and now the tribunal must determine whether there is a pay difference and, if so, whether the difference is due to genuine material factors or not. Other large supermarkets are also facing claims and more retailers could be at risk.

3. Whistleblowing

Perhaps the liveliest area for case law in the last few years relates to the scope of the term “in the public interest” in whistleblowing legislation. Since June 2013, whistleblowing laws have provided that a disclosure is not protected, unless the employee reasonably believes that the disclosure is being made “in the public interest”.

The EAT in Chesterton v Nurmohamed held that matters potentially affecting the operation of the commission scheme of more than 100 managers at a large firm of estate agents could be “in the public interest”. The Court of Appeal is expected to decide whether or not, the EAT’s interpretation of what that phrase means is correct.

4. Employment Tribunal Fees

The Supreme Court is expected to hear Unison’s appeal against the Court of Appeal decision in March 2017 in respect of Tribunal fees. The Court had rejected it on the basis that there was insufficient evidence of claimants’ inability to afford the fees.

5. Holiday Pay

British Gas has applied for permission to take the case brought by a Mr Lock to the Supreme Court. If allowed to proceed, the Supreme Court will finally determine whether EU law can be read across into UK domestic law to require employers to take into account commission (and other) payments when calculating pay for the basic four week holiday entitlement under the Working Time Regulations 1998.

No date has yet been set for the Supreme Court hearing although it is possible that the case will be fast-tracked, given the serious financial implications for employers.

6. Religious discrimination

Last year, the ECJ heard two religious discrimination cases, both concerning female Muslim employees who had been told not to wear headscarves (hijabs). Before the judges make a decision, it is usual practice in the ECJ that an Advocate General considers the case and writes an Opinion (which may or may not be followed).

Perhaps the biggest employment law surprise of 2016 was the Advocate General’s opinion in Achbita, on when employers can ban religious dress, on the basis of maintaining its religious and political neutrality.

A different Advocate General considered that an employer cannot have a blanket ban on religious dress simply because of a desire for neutrality or because a client or customer objects. The two ECJ judgments, expected to be delivered in 2017, will decide which of the two Advocate General approaches is correct.

There are plenty other expected judgments this year and no doubt others that will surprise us, and keep employment law at the fore of legal change.

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.

Employers that enforce sexist dress codes could be in line for stricter punishment and fines, if the Government follows recommendations set out in a new report produced jointly by the Women and Equalities Commission and the Petitions Commission of Parliament.

The report was triggered last year by receptionist Nicola Thorp, who set up a parliamentary petition to make it illegal for companies to force employees to wear high heels to work. The report recommends that the Government “takes urgent action to improve the effectiveness of the Equality Act” and that employment tribunals should be able to ask for more effective remedies, such as financial penalties, for those employers who breach the law. “While negative publicity will be a disincentive for many employers, this cannot and should not be relied on to prevent unlawful discrimination.”

It includes medical evidence from the College of Podiatry suggesting that women who have to wear high heels for extended periods of time could suffer long-term health problems. Many women who supplied evidence to the inquiry, said they would struggle to wear high heels due to conditions, such as multiple sclerosis or cerebral palsy. The report suggests that what constitutes a legitimate aim, should be more clearly defined under the legislation, with examples given including health and safety, projecting a smart and uniform image, and preventing appearance that may cause offence.

Peter Stanway, our BackupHR™ legal expert comments:

It is unlikely that legislation will be a high priority for the Government but we would suggest responsible employers avoid problems by updating dress code policies. It is difficult to argue with Frances O’Grady, general secretary of the TUC, who said: “Far too many employers are still stuck in the past when it comes to dress codes. It is unacceptable that in 2017 bosses are still forcing women to wear painful, inappropriate shoes and uniforms. Wearing high heels on a regular basis can cause foot, knee and back problems. High heels and make-up should be a choice, not a condition of the job.”

Employers can implement a dress code to ensure that employees are dressed in a manner that is appropriate for its particular business, provided this would not be deemed discriminatory. The imposition of outdated rigid dress codes can lead to discrimination claims, for sex, disability or religious reasons. Just because the law appears to be employer friendly, does not mean that employees will wear uniforms with pride, and they still have scope for legal redress. The primary reason for having a dress code is to maintain the organisation’s external image, albeit many employers insist for health and safety reasons. There is nothing to prevent an employer from including terms in contracts of employment or handbooks, outlining their dress code.

Employers’ rules on appearance must be a proportionate means of achieving a legitimate aim. In practice, this means that the more detailed the employer’s rules, the stronger their justification must be.
When reviewing your dress code consider:

  • Whether codes might be discriminatory and, if they might be, whether it can be objectively justified.
  • Dress codes must apply to both men and women equally, although they may have different requirements, e.g. a policy may state “business dress” for women, but may state that “men must wear a tie”.
  • Reasonable adjustments should also be made for disabled people, or religious minorities when dress codes are in place.

Acting reasonably and consistently is the best way to avoid disputes, and to be seen as being fair. Restrictions should relate to the job and be reasonable in nature. It is good practice when drafting or updating a dress code, to consider the reasoning behind it. Consulting, i.e. genuinely seeking the opinions of your employees is good management practice. Once agreed, it should be communicated to all employees.

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 Guardian recently reported that some staff at Le Gavroche in Mayfair say they have routinely worked 14-hour shifts for the equivalent of £5.50 an hour, well below the national minimum of £7.20. They claim they would work up to 68 hours a week, but earn only about £375 before tax. This means that they were being paid less than for working at MacDonald’s. If they were working for 68 hours per week, they should be paid at least £490.

A statement from Le Gavroche said: “All employees receive monthly wages which are fixed or static, whether they are front of house, or in the kitchen, and they are adjusted as a stepped increase over time to reflect length of service, level of responsibility and ability”.

Peter Stanway, our BackupHR™ legal expert comments:

This explanation does make sense, but it does not justify a lack of control to avoid this happening, with all the attendant bad publicity attached to owner TV chef Michel Roux, who apologised saying “I am embarrassed and I am sorry, but in no way was it done intentionally.”

It comes at a time when the Government, via the HM Revenue and Customs (HMRC), launched an awareness campaign based on bad excuses. It is encouraging people to check their wages and warning employers of fines.

An employer failed to pay the minimum wage to a worker because “she only makes the teas” – one of a string of bizarre excuses by employers. Another argued for not paying the legal minimum, saying that a member of staff “wasn’t a good worker”, while one said employees should “prove their worth”.

Among the cases investigated by HMRC was a boss who thought it was acceptable to pay foreign staff (in the UK) below the statutory rate.

Other excuses included:

  1. I’ve got an agreement with my workers that I won’t pay them the National Minimum Wage; they understand and even signed a contract to this effect.
  2. My workers like to think of themselves as being self-employed and the National Minimum Wage doesn’t apply to people who work for themselves.
  3. My workers are often just on standby when there are no customers in the shop; I only pay them for when they’re actually serving someone.
  4. The National Minimum Wage doesn’t apply to my business.

Business Minister Margot James said: “There are no excuses for underpaying staff what they are legally entitled to“.

All workers must be paid at least £7.20 an hour if they are aged 25 and over, in order to comply with the National Living Wage, this will rise to £7.50 in April. Businesses face a maximum fine of £20,000 per worker, for not paying the National Living or Minimum Wage. Failure to pay statutory minimums could also result in a company Director being banned for up to 15 years.

The National Minimum Wage means that:

  • Workers aged 21 to 24 should receive a legal minimum of £6.95 an hour.
  • 18 to 20 year olds should get at least £5.55 an hour.
  • Pay should be at least £4 an hour for the under-18s.
  • Apprentices should receive a minimum of £3.40 an hour.
  • You need to monitor working hours so that people on or just above the National Minimum or Living Wage rates do not fall below them, when they do extra hours.

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.

In Edwards v Bramble Foods Ltd, an Employment Tribunal held that an employer fairly dismissed an employee who refused to do overtime, and whose protests at being asked to do so, threatened to disrupt the business and its ability to fulfil orders.

The company’s busiest period is the eight weeks from mid-September, when it produces and packs goods such as gifts and hampers for Christmas. Employees’ contracts of employment included a clause requiring them to work extra hours when the business requires. The company decided to formalise its overtime arrangements, which involved asking employees to choose between four and eight Saturday mornings they could work in September and October. While the rest of the workforce agreed to work some Saturdays, Mrs Edwards refused to work on Saturday mornings.

Management had a number of “informal chats” with her to explain that, by sharing the workload fairly, the company would be able to meet the demands of the Christmas period. Mrs Edwards continued to refuse, stating that she spent Saturday mornings with her husband, and also mocked her colleagues who had agreed to the overtime. Her behaviour escalated to such a level that she was sent home for three days to calm down, and ‘come back with a better attitude’.

The Employment Judge accepted that there were a number of minor flaws in the employer’s procedure, but they had no doubt that dismissal was within the range of reasonable responses saying:

“She [the claimant] had been given a contract of employment which said that she may be ‘required’ to work additional hours and she had no legitimate reason for refusing what she accepts was a reasonable management instruction. She just didn’t want to do the work it seems. The consequences for the respondent had the claimant not been dismissed might have been disastrous. …Dismissal was unarguably within the range of reasonable responses to a very difficult situation…”

 Peter Stanway, our BackupHR™ legal expert comments:

The Tribunal praised the employer in this case for the patience with which it dealt with the disaffected employee.

Key Lessons

  • Employers should make some attempts to resolve disputes in the workplace but that, should the employer take further steps to dismiss an employee, they have a fairly free rein to take steps which are beneficial for their business.
  • You need well drafted contractual clauses if you want to insist that your employees work overtime.
  • Despite some procedural errors, such as lack of warning, these were descried as ‘minor flaws’ by the Tribunal.  The allegation letter omitted one of the most important allegations against her; the effect her behaviour was having on her colleagues. Allegations should be set out fully and correctly, and should include everything which the dismissing Manager will be considering.
  • Despite these issues, the Tribunal found Mrs. Edwards must have been aware of the seriousness of the situation she found herself in.  It did not help her that the Tribunal found a number of her assertions to be untrue.
  • The Judge had sympathy for the company and the potentially disastrous effect of her actions. A differently sympathetic Judge and a more truthful claimant might have resulted in a different outcome.
  • If faced with a similar dilemma, you will have to tread with great care (and take professional advice).

This case proves that sometimes a robust line can be taken and upheld.

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.

Competent and Competence
The Oxford English Dictionary defines “competent” as being adequately qualified or capable and effective. Competence is considered a legal requirement under English common law. The general requirements for competent persons came from the general duties imposed on an employer in s.2 of the Health and Safety at Work Act 1974. Regulation 7(5) of the Management of Health and Safety at Work Regulations 1999 went on to state that, a person is deemed to be competent if he or she has an adequate combination of training and experience, or knowledge. Regulation 7(8) also requires employers to consider appointing a (nominated safety) competent person within their employment, in preference to one who is not in their employment. This means the employer cannot completely delegate safety to a third party, but must appoint in-house and, if necessary, must provide adequate training to help that person become competent. Certainly, when I talk to a client about who would be the best person to appoint in-house as the nominated competent person for safety, I usually point out that someone who has a good grasp of the organisation’s activities, but is also well versed in understanding the operational side of the business, is usually best placed to become the competent person, providing they still have the thirst to want to learn more.

However, purely from a common sense viewpoint, the prevention of injury and ill-health in the workplace inevitably depends on the presence of competent people at all levels in any organisation. Competence was referred to in the case of Wilsons and Clyde Coal Co Ltd v English (1938), which defined the duty of care that an employer owed to its employees, and this included the need to employ competent people.  Subsequent case law has indicated that to be a competent employee, people must have a positive attitude to health and safety at work, and behave responsibly in the workplace, and, that competence is more than just the possession of qualifications, but also involves having sufficient and relevant experience.

The Management of Health and Safety at Work Regulations 1999, and the Approved Code of Practice, (ACOP) to the now withdrawn CDM 2007 Regulations, stated that to be competent, an organisation or individual must have:

  • sufficient knowledge of the specific tasks to be undertaken and the risks which the work will entail;
  • sufficient experience and ability to carry out their duties in relation to the project; to recognise their limitations and take appropriate action in order to prevent harm to those carrying out the designated work; or those affected by the work;
  • specific knowledge about the tasks they will be expected to perform, and the risks associated with these tasks; this may come from formal or “on the job” training;
  • appropriate experience; people are more likely to adopt safe working practices if they understand the reasons why they are necessary; and past experience should be a good indicator of the person’s/organisation’s track record;

The HSE has been concerned for some time that the approach to the appointment of competent people has subsequently become over bureaucratic and costly. It has recently tried to set a different and less prescriptive approach. In the Guidance document L153 Managing Health and Safety in Construction of the CDM 2015, the focus now is that organisations must have the capability to ensure the health and safety of those involved in the work/project.  Competence should be seen by employers as a long-term issue, building on the basics of selection, training, management of experience and life-long learning and ensuring people have the capacity in terms of time, resources, managerial and supervisory capability to deliver the project.  Furthermore, a (construction) workforce should be able to demonstrate competence through qualifications based on agreed national standards.

In other words, when appointing competent people, employers must take reasonable steps to ensure that those persons have the necessary skills, knowledge and experience appropriate to the role they are appointed.

Reasonable steps need to be proportionate and not over-bureaucratic, and will depend on the complexity of the project/work/sector, and the range and nature of the risks involved. This means, in practice, that those appointed should be capable of understanding how to:

  • identify the significant risks are likely to arise within the workplace, and
  • prevent those risks or manage or control them to acceptable levels;

Put simply, competency describes the behaviour that lies behind competent performance, such as critical thinking or analytical skills, and describes what people bring to the job. In contrast, competence describes what people need to do to perform a job, and is concerned with effect and output, rather than effort and input.

In the HSE’s Managing for Health & Safety (HSG65), competence is defined as “the ability to undertake responsibilities and perform activities to a recognised standard on a regular basis. It combines practical and thinking skills, knowledge and experience”. However, two terms of competent and competency are now very much interchangeable as job performance requires a mix of behaviour, attitude and action.

As part of the review, HSG65 makes some suggestions as to what to look for on ineffective management in relation to competence, including:

  • Lack of awareness of key hazards/ risks.
  • Employees lack the skills, knowledge and experience to do their job.
  • Health and safety advice and training is irrelevant, incompetent or wrong.
  • No standards of performance are set; and people are not held accountable.
  • Only knee-jerk reactions follow incidents/near misses.
  • The organisation does not know what it needs to do to move forward.

I think I would add a couple more common failures I have observed within quite a few SMEs especially. Very few job descriptions have written into them the need to demonstrate health and safety awareness and accountability at all times, and fulfil all necessary health and safety requirements. Likewise, another mistake is thinking that the safety competent person has to be formally trained in safety, when really the key criteria is a full understanding of how the business works, and a practical grasp of what the real safety hazards and risks are.

Competency Frameworks in Health and Safety

Organisational capability is effectively the in-house policies and systems that set acceptable health and safety standards, to ensure not just legal compliance, but identifies the resources and people to make sure standards are delivered and health and safety is effectively managed.

An organisation’s policy on health and safety, therefore, needs to include consideration to the level of competency required throughout the organisation, to ensure there is a competent workforce. Determining competency levels and then identifying, maintaining and monitoring the knowledge, skills, and attributes necessary to meet and maintain those levels can be a challenge, so the development of a competency framework can assist in managing this key element of the management system.

Competencies are essential in securing a competent workforce, and describe both the functional skills and knowledge that enables an individual to perform a technical task, as well as the softer skills in terms of how individuals are expected to behave. Competencies can, therefore, be seen as forming the building blocks for competence.

As such, a “competency framework” can be described as a structure that sets out and defines each individual competency (i.e. the behaviours, knowledge, skills and technical attributes) required by individuals at every level of the organisation, so as to achieve and maintain a competent performance to the required standard.

A well-developed health and safety competency framework that defines the necessary skills, knowledge and behaviours can be used for a number of purposes. By identifying the necessary key health and safety competencies of individual roles, these can be used as part of the organisation’s recruitment and selection procedures, through the inclusion of the competencies in job specifications and consequent selection procedures. This will enable the prospective employee’s current competencies to be identified, and whether any areas lacking are capable of being developed if recruited.

Perhaps the most obvious purpose of a competency framework is to assist in the identification and analysis of employees learning and development requirements. The aim is to understand the amount and types of learning and development that will be needed (typically through information, instruction, training and supervision) to ensure that all employees have the right knowledge, skills and behaviours to perform the jobs they do.

By setting competencies at the appropriate level, the employer can then benchmark against the framework to identify and remedy any shortfalls between the current level of competency possessed by the workforce, the required level and what learning and development, if any, will be necessary to bridge the gap.

Employers need to ensure that the competence performance levels required are being met and that any information, instruction, training or supervision provided has been effective in terms of enabling such performance to be undertaken.

As such, the key competencies identified can form part of an employee’s performance review or appraisal process. Through discussion and employee feedback, this may assist in identifying any key areas of concern or gaps, and enable planning for additional activities to bridge the gaps.

For many organisations, some form of organisational change is inevitable, so as to respond to dynamic internal and external influences. Change can be brought about by changes in technology, legislation, and business demands, etc., all of which have the potential to change the organisation’s competency requirements. By mapping competencies on a framework, this can be adapted and changed to track any organisational changes, thereby enabling the necessary new or revised competencies to be identified, and gained through appropriate means. Change can also mean having succession plans and/or transferring knowledge, skills and responsibilities to other employees.

A competency framework will provide clarity to Managers and workers alike, as to what is expected of them, and can provide a clear focus for future development of all employees.

Developing a Competency Framework

According to the Chartered Institute of Personnel and Development (CIPD), many Managers and individuals find it hard to use the frameworks to help achieve their goals and, therefore, the goals of the organisation. Typical criticisms include that they are often lengthy, complex, misunderstood and not user friendly. They can also be seen as just another paper exercise, with little value to real-world application.

Developing a competency framework can take effort and should be carefully planned. The following steps can be followed when developing the framework.

Prepare by defining the purpose and scope of the framework (e.g. organisation-wide, department or job specific).

  1. Collect the relevant information from job safety analysis, observations, interviews, good practice guidance, National Occupational Standards, etc.
  2. Build the framework by determining competency levels, identifying the competencies required and validating them against specific roles.
  3. Implement the framework through good communication and awareness processes that explain the purpose, benefits and utilisation of the framework.

In respect of the actual template and content of the framework, this will depend upon organisational circumstances and scope of the framework, but will normally include some form of matrix linking roles/functions to the competency, typically through a “competency statement” along with required behaviours or skills necessary to fulfil the competency. Some organisations combine levels of competency with various layers of the workforce, for example, Level 1 refers to all workers with Level 4 being Senior Managers.

As a simple example, a specific job role could be that they are trained as an emergency first-aider. Generated from legislative requirements, the competency statement could be “to provide employees with immediate attention and emergency first-aid treatment if they are injured, or taken ill at work”. From this, the competency behaviours and skills can be described, and will include having the necessary level of knowledge of first-aid treatment appropriate to the risk and needs assessment. This can be described as a technical skill, which is required to ensure the first aider is competent when giving basic first aid treatment.

However, many employees require certain key behavioural competencies, such as having “strong communication skills with the emotional resilience to cope regularly with stressful and angry callers, staying calm and pleasant at all times”. Physical competencies may require “undertaking manual handling activities on an hourly basis.”  Having identified these, the organisation can then use the framework to ensure it selects the most appropriate individuals to cope with the demands and competencies of the job role, as well as ensuring any training is commensurate with the job risk.

Retaining Competence

The main barriers to retaining competence are a lack of practice and changing circumstances. This is why certain training, e.g. first aid, needs to be refreshed at regular intervals to keep up that competence.  Also, we can all develop bad habits over time, so key messages need reinforcing, e.g. manual handling training, advanced driver training, forklift truck training to name but three.

Knowledge may be refreshed or increased by attending training courses or workshops, which also helps develop contacts made and provides the ability to discuss issues with other people. Knowledge can be simply re-reading in-house safe systems of work, or reading industry-related publications.

Developing experience can vary from taking on more job responsibilities, through to external networking meetings with people in similar jobs, as, in the less formal gatherings, anecdotal evidence can provide guidance on a good, or bad, means of approaching a problem. Certainly, we know from our public training events that many delegates feel they gain from listening how other delegates approach specific matters, as well as learning by working with others in interactive exercises that require them to problem solve in a supporting learning environment.

Finally, the issue of developing any employee’s personal qualities can be addressed through a more formal performance review process or appraisal system across an organisation. Effective performance reviews can be a very efficient means of enhancing personal qualities, but conversely remember that a poor review can damage, and even dis-empower, a competent person.

A safety competent person can develop through a mixture of formal training, as well as networking, and possibly having access to someone that can coach them on more of the safety requirements.

Summary

Many organisations have a tendency to compartmentalise health and safety, rather than recognising that not only does it need to be a key business priority, but that health and safety competencies are required in all jobs, to a greater or lesser degree. Identifying early on in the recruitment process what key health & safety competencies are required for each job role, will help appoint people who are better able to fulfil the subsequent job demands, be they physical or mental.  Using key business competencies as part of performance reviews will help further establish job requirements, increase job productivity and will focus training and development needs.  Fulfilling health and safety requirements should always be an aspect of job performance which should be regularly assessed, especially at Management level.  Remember, the duty of care becomes greater the higher within an organisation someone sits.

Defining competence and training competent people is what helps organisations to thrive, and be better able to cope with constantly changing demands, as well as reducing health and safety accidents/incidents to a minimum. A good health and safety culture is a guarantee to a successful business, so start thinking about introducing a competency framework that goes beyond just legal heath and safety requirements, and you may find that this in one safety initiative that has positive and far reaching outcomes.

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