Disclosure and Barring New Update Service

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Category: HR Alerts

The Vetting and Barring Scheme came into force in 2009 to prevent unsuitable individuals from working with children and vulnerable adults. The Government is changing the scheme to a more ‘common sense’ approach. The Disclosure and Barring Service (which replaced the Criminal Records Bureau at the end of 2012) is launching its new Update Service on 17th June 2013.
Previously called a ‘Portable DBS/CRB check’, job applicants will pay a fee of £13 a year, in exchange for which prospective employers can carry out a free ‘update’ search to check their DBS certificates, so they can take it with them when they move jobs or roles. If an individual has subscribed to the Update Service, the employer will be able to go online, with the individual’s consent, and carry out a free, instant check that the DBS certificate is current and up to date.

>b>Peter Stanway, our BackupHR legal expert comments:

The Government says it will put individuals in greater control of their own information; allow DBS certificates to be re-used when applying for similar jobs; and reduce bureaucracy. The stated benefits to employers are:

• Instant online checks of DBS Certificates.
• No more DBS application forms to fill in.
• Employers may never need to apply for another DBS check for an employee again.
• Saving time and money.
• Enhances safeguarding processes and may help to reduce risks.

The DBS also claim that there are benefits to employees:

• Saves time and money.
• One DBS Certificate is all they may ever need.
• They are in control of their DBS Certificate.
• Being able to apply for jobs ‘pre-checked’.

The new service should improve safeguarding and be quicker for employers. It clearly pushes the cost of DBS checks onto the employee but it is not expensive and should pay for itself if it helps people get jobs more quickly.

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.

HM Courts & Tribunal Service has announced that the date for the implementation of fees into the Employment Tribunals (ET) and Employment Appeal Tribunal (EAT) will be Monday 29th July 2013. The amount of these fees will depend on the type of claim and will be:

• Type A claims (i.e. the very straightforward ones such as unlawful deductions from wages etc) – £160 issue fee; £230 hearing fee

• Type B claims (all other claims) – £250 issue fee; £950 hearing fee

The fee will be payable online or through a centralised processing centre on issue and before the hearing. The Government hopes in this way to encourage parties to resolve their disputes prior to bringing a claim or before a hearing.

Peter Stanway, our BackupHR legal expert comments:

Many employers think it is a very good idea and has been a long time coming. Fees may put off some employees whose sole purpose for making a claim is to force the employer into making a commercial settlement. However, there is certainly the potential for this cost to be passed on to the employer at some stage. For example, if a claimant is successful in their claim the employer may be ordered to repay the fees to the claimant. Furthermore, if settlement negotiations are discussed it is likely that claimants and their advisors would expect the Tribunal fees to be repaid by the employer as part of any settlement.

It might deter frivolous claims going to full hearing, but it is far too soon to tell whether this will ultimately reduce the number of actual Tribunal claims so employers still need to follow proper employment processes to reduce the risk of facing a claim in the first place.

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

Newly designed uniforms on Virgin Rail have hit the headlines as some female employees refused to wear the “skimpy” and “revealing” blouses, claiming passengers would be able to see any dark underwear worn underneath. The official uniform launch was delayed by three weeks in order to allow staff “to have a uniform they feel comfortable in”, and to help achieve this any concerned employees have been offered a £20 clothing voucher to buy ‘suitable underwear’. This may be little more than a publicity stunt and/or the result of buying cheap products, but there is a potentially serious issue behind this dispute. Peter Stanway, our BackupHR legal expert comments:

The imposition of disparate dress codes can lead to sex discrimination claims. The leading 1996 case determined that a standard of dress imposed by an employer on its employees does not have to be identical, item for item for men and women, but it must require the same overall standard of conventionality for both sexes.

However conventions do change and in a more recent case a Muslim cocktail waitress was awarded £3,000 in compensation after being found to have been discriminated against, because her employers had forced her to wear a tight fitting red dress during the summer months at work. As her male colleagues were not required to wear similar “brightly coloured, figure hugging” outfits, it was decided that the dress code related to her sex and as such was gender specific, so discriminatory.

The main lesson is not legal but good management practice which is to genuinely seek the opinions of your employees in such decisions. Just because the law appears to be employer friendly, does not mean that employees will wear uniforms with pride and they still have the means of legal redress.

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 Tribunals Service’s annual figures, which cover the period from April 2012 to March 2013, show that employment tribunals received a total of 191,541 claims during 2012/13, 3% up on the previous 12 months. Of these, 11,075 were for failing to inform and consult, a 39% jump in the number of claims received for failures in a redundancy situation. Such a large increase may be due to an increase in collective i.e. multiple claims for large Companies, particularly over failure to consult properly but may reflect a degree of desperation and ignorance in forgetting the fundamentals of fair redundancy dismissals. It may also be a reflection on the difficulty people are facing in finding new work.

Peter Stanway, our BackupHR legal expert comments:

The best way to avoid a claim for unfair redundancy is to ensure the following:

• there is a genuine redundancy situation

• consult fully and meaningfully with all relevant employees

• select employees fairly using a proper process

• consider offering alternative employment.

It is an extremely brave/foolish employer who argues that it was unnecessary or impossible to consult. It is not acceptable to maintain that extensive consultation with representatives has made consultation with the individual unnecessary. Consultation with employees who are likely to be affected by a redundancy situation must take place:

1. Before selection.

2. After selection.

3. Before dismissal or notice of dismissal.

In our experience, most redundancies are for less than 20 people, so the focus should be on good consultation with the individual(s). Worth noting is a recent case which held that even if sites have less than 20 employees, they are still covered by group collective redundancy consultation, if other group sites are also undertaking redundancies.

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.

ACAS is warning employers of companies claiming to be part of and/or acting on behalf of ACAS. They typically offer initial advice, which they don’t charge for, but then ask people to sign up to a long-term, often expensive contract for employment and/or health and safety advice.

If you know of people who have signed up to such a contract, ACAS suggests contacting the Office of Fair Trading. If the advice isn’t from www.acas.org.uk or you didn’t call the ACAS Helpline on 08457 474747 – it’s not ACAS.

Peter Stanway, our BackupHR legal expert comments:.

ACAS don’t use agents and don’t outsource their advice. They offer a confidential service, and all details remain confidential to them and are never passed on to a third party.

If someone contacts you either:

• claiming that ACAS passed your details to them
• claiming to be associated with ACAS
• claims to be associated with ACAS on their website

this is not the case as ACAS don’t use agents. Often they will offer initial free advice and then ask people to sign up to an expensive contract for ongoing advice and assistance.

There have been similar scams in the past by sales driven organisations claiming to be from the HSE or the Information Commissioner’s Office or somehow associated with an official body. We would recommend great caution because the salesmen will have a very plausible and well rehearsed story.
For a free initial chat, please call 01480 677980 and we will be happy to discuss any questions that you may have, in our own right.

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 should be aware by now of their staging date i.e. the date when their obligations under Auto Enrolment take effect. This is the date they must have an appropriate workplace pension scheme in place for their workers.

The number of employers reaching their staging dates peaks in the first half of 2014. Capacity issues are already apparent to those pension providers and advisers involved in Auto Enrolment and this will only intensify as more employers reach their staging dates. Peter Stanway, our BackupHR legal expert comments:.

There is a real danger that employers, SMEs especially, simply view this exercise as a cost, rather than thinking about the reward and retention strategy this could create. Also if there are concerns about dealing with a physically ageing workforce you can be assured that organisations will have a far greater problem with people working well beyond their sell by date if neither they nor their employer have invested in an adequate retirement fund.

Early indications are that far more employees are taking up their auto enrolment pension rights than was first predicted, and the young more so than was originally forecasted. This suggests that the message about saving for retirement is finally beginning to sink in.

Employers who delay their preparations could regret it. The detail of who is going to do what and when will take much longer and be more onerous to conclude than employers might think.

It is well worth looking at the Pension Regulator’s guidance at www.thepensionsregulator.gov.uk on the steps you should take but we would also suggest that you:

1. Allow as much time as you can because the processes involved in arriving at the solution are more complicated than the Pension Regulator suggests.

2. Identify all the external parties that will contribute to your solution and arrange a group meeting. You cannot afford to assume that your pension providers will project manage the process as the legal responsibility actually rests with the employer not the pension provider to have something suitable in place by the staging date.

3. Be prepared to take difficult decisions, such as whether all your employees will have a good pension or just the minimum.

4. Work with appropriate Consultants to implement an effective communications strategy in advance of Auto Enrolment, to ensure your employees understand what it means to them. Effective and ongoing communications should ultimately result in better outcomes at retirement for employees.

5. Keep an eye on changing legislation as many issues are still under review.

Do not try to go it alone. Auto Enrolment is a complex process with many pitfalls. It is important to understand what you are required to do and what you must not do. In some cases Auto Enrolment represents more of a risk than an opportunity. Demand for advice and guidance is gathering pace, so act sooner rather than later.

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 a landmark case, the Employment Appeal Tribunal (EAT) has overturned a previous Tribunal decision that denied compensation to ex-employees of Woolworths who had worked in stores with less than 20 staff. Under UK legislation, the duty to consult collectively about redundancies is only triggered where an employer proposes to dismiss as redundant 20 or more employees at ‘one establishment’ within a period of 90 days or less (from 6 April 2013, the time period for starting collective consultation reduced from 90 to 45 days).

The Employment Tribunal had held that each store amounted to an establishment and collective consultation was required for those stores employing 20 or more staff saying that UK law is in breach of EU law and that reference to redundancies having to be at one establishment should be ignored in future.

Peter Stanway, our BackupHR legal expert comments:

This is a very significant judgment that will have much wider implications for all employers (not just retailers) with multiple sites. This means that wherever an employer is proposing to make 20 or more redundancies, it will probably not matter if they are based at different sites or different locations. Employers will be required to carry out formal collective consultation with appropriate representatives over the relevant time period at all affected sites before implementing the redundancies.

You should be careful if you are embarking on a collective procedure and seek professional advice, as there is the risk of substantial ‘protective awards’ for those who fail to comply.

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.

Any employer proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less must consult the “appropriate representatives” of any of the affected employees about the proposed dismissals. If there is no recognised union in place the employer can consult either: 1. Employee representatives elected specifically for the purposes of the redundancy consultation exercise.

2. Employee representatives appointed or elected for a purpose other than the consultation exercise, but who have authority from the affected employees to receive information and to be consulted about the proposed dismissals.

It may be tempting for an employer to use an existing body of employee representatives (such as a works council or a staff consultative committee) for these purposes, especially if it is keen to avoid arranging elections. However, the EAT’s recent decision in Kelly v The Hesley Group Ltd makes it clear that if the existing body of employee representatives does not have the necessary authority to engage in the collective consultation process this constitutes a breach of the employer’s obligations.

Peter Stanway, our BackupHR legal expert comments:

The key point to take from this case is that whilst employee representative election processes may seem unwieldy and time consuming, they will often be the safest option where the authority of an existing consultative body is unclear. Elections can be arranged quickly and need not delay matters. The case is also a good reminder that employers must ensure that collective consultation is genuine and engaged with a view to agreement. It is not enough for an employer to simply pay lip service to it.

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 a recent case a man weighing over 21 stone was held to be disabled by the Employment Appeal Tribunal. He suffered from numerous health problems both physical and mental. These problems gave rise to a number of symptoms which seriously affected his day-to-day living. The EAT decided that the issue is whether the person has an impairment. The absence of an identifiable cause may present a problem in establishing disability, it does not prevent a finding of disability. The judge ruled that obesity in itself would not render a person disabled, but it may make it more likely that a person is disabled as a result of health problems caused by the obesity. Peter Stanway, our BackupHR legal expert comments:

According to a 2012 NHS report, 26% of the UK’s adult population is obese. Does this mean that all obese people will be classified as disabled? The simple answer is NO but when deciding whether an obese employee is disabled, you should assess if there is a substantial impairment and the effect of that impairment. Are the following areas affected:

• mobility

• physcial co-ordination

• ability to lift

• ability to move or carry everyday objects.

Assuming it is long-term, there is a good chance that the employee is ‘disabled’. If so you then need to consider what reasonable adjustments could be made which may include getting the employee to regain the necessary fitness to do the physical aspects of their job through a proper Occupational Health supervised programme of weight loss.

There are some other lessons:

• Do not assume that all obese employees are disabled.

• The extent to which the employee can modify their behaviour may be relevant. Tribunals have recognised that weight loss may take an employee outside the definition of disability.

• If obesity or lack of physical fitness is increasingly becoming an issue at work consider implementing some sort of fitness at work campaign.

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 Miller v William Hill Organisation Ltd, a Betting Shop Manager was dismissed for ”irregularities’ which was really a euphemism for theft, with heavy reliance being placed on CCTV evidence. She lost her Tribunal but won on appeal. The EAT held that the only conclusion the tribunal could have reached in the light of all the evidence was that the Company’s failure to view the whole of the footage meant the investigation was not as sufficiently thorough as the circumstances warranted. In this case, it would not have taken long for a member of management to examine the whole of the CCTV footage and it would have incurred no expense.

The EAT referred to previous cases concerning serious allegations of criminal behaviour. This requires employers to focus as much time on evidence that might prove an employee innocent, as is focused on proving guilt.

Peter Stanway, our BackupHR legal expert comments:

In this case it would have meant reviewing five hours of CCTV which may seem like a heavy burden but not if you set that against the consequences of getting it wrong. How far an employer should go in terms of an investigation will depend on the circumstances of the case, including the time it will take, the expense involved and the consequences for the employee if he or she is dismissed.

The legal test remains that reasonable investigation is required and William Hill were held to be unreasonable in their efforts, not least because they only looked for evidence of guilt, not of the employee’s potential innocence.

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.