The Fit for Work service was launched on 15th December 2014 to offer impartial advice to employers for dealing with long-term sickness absence. The free service will help employees return to work after they have been on sickness absence for four weeks or more. It will be rolled out in phases, over a period of months this year.

The Fit for Work service aims to offer employers, and employees access to web and telephone advice about work-related health matters. After four weeks of sickness, employees can be referred to the service for an Occupational Health (OH) assessment, the outcome of which (in most cases) should be a Return to Work Plan. This will contain advice and recommendations to help bring the employee back into the workplace.

Where a Return to Work Plan is in place, it will replace the current GP “fit note” that we are used to seeing, in order to certificate an employee’s absence from work

Employees will primarily be referred to the service by GPs, although employers will also be able to refer employees after they have been absent for more than 4 weeks. Whoever refers the employee, that individual must agree to participate in the process. Consent is a key part of the whole regime; an employee is able to withdraw consent at any time, at which point the whole process grinds to a halt.

Employers will be encouraged to act on the recommendations and advice contained in the Return to Work Plan. Complying with these will not be mandatory, and there are no sanctions for employers if recommendations are not followed. However, if litigation subsequently arises, a failure to follow such recommendations could become evidence in any disability discrimination or an unfair dismissal claim.

From 1st January 2015, the Government has introduced a tax exemption of £500 per year, per employee where the employer funds the costs of any medical treatments recommended to help their employees return to work. This will be applicable to treatments recommended by health professionals within Fit for Work (FFW) and health professionals within employer-arranged Occupational Health Services. Employers will not be obliged to fund medical care.

Fit for Work (FFW) was initially called the Health and Work Service but was rebranded in 2014, following complaints from Doctors’ body, the British Medical Association, that the Government was misleading the public by implying it would be a comprehensive OH service. Health professionals are also concerned about how the service will be staffed, as there are limited numbers of OH Nurses and Doctors available. It is intended that FFW will complement existing Occupational Health provision, rather than replace it. The service will be provided by OH provider Health Management on behalf of the DWP.

Government guidance advises employers to update their sickness absence policies to tell staff that the service is becoming available, and explain how it will work. We are changing our client’s sickness absence policies to allow for referral to FFW. This may assist in obtaining an employee’s explicit consent when referring to Fit for Work. Our strong preference would be to use well-established OH professionals, such as Gipping Occupational Health, with a good track record of helping employers. This help might be advising employers:

• on practical adjustments that are reasonable to implement;
• on sensible and measurable return to work programmes;
• on realistic time scales for when they should be returning to work, or have little chance of doing so;
• when the only feasible option is termination of employment;

We expect difficulties over:

• the need for employee consent;
• case workers at Fit for Work not fully understanding the employer’s business, the employee’s job role, or availability of other suitable roles;
• recommendations not being reasonable because of the case worker’s limited knowledge of the employer’s business;
• the fact that it is only a telephone assessment means undue reliability on what an employee wants to do rather then what they actually can do;
• employees having too great an expectation or the opposite, not taking any active involvement in the return to work process;

We believe that good advice to employers is based on a good understanding of the employer’s business, the job the employee normally does and how these interact with the abilities and disabilities of each employee. We are concerned that without this approach we shall receive exhortations to provide ‘light duties’, or phased return, without a proper appreciation of context. It is yet to be seen how effective a telephone assessment may be, especially if the assessor has a limited amount of information about the job role that the sick employee is required to undertake. Nonetheless, employers should start to acquaint themselves with this system as GPs may look to refer more and more employees to this service, to relieve the pressures currently being placed on their limited resources.

A cheap, i.e. free, service to employers may seem like a good idea but it is not one that we could recommend. As the Government Guidance says “While Fit for Work will deliver some aspects of an Occupational Health Service, it will not deliver a fully comprehensive service. Fit for Work will fill the gap in support where that currently exists”. We are not convinced that this will work well in practice. The impacts and causes of employee sickness absence are often complex and sometimes unavoidable, and need professional personalised input. We have always advocated making contact with employees who are likely to exceed 4 weeks absence as they are much less likely to return to work once they are long-term sick i.e. more than 4 weeks.

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

Is an employer liable for psychiatric illness caused by occupational stress, bearing in mind that according to a recent report by the Royal College of Psychiatrists, “almost one in four British adults… experience a diagnosable mental health problem at any given time”?

The answer is yes, but the threshold for employers to foresee stress-related illnesses in the workplace has been judged as a very high one.

Duties

Employers are under a direct duty to take all reasonable care to ensure that their employees are not exposed to the risk of psychological harm during the course of their employment. A breach of this obligation may give rise to a personal injury negligence claim, as well as an action for breach of contract. While it is generally understood that employers are clearly exposed to the risk of claims of this nature, there has remained a great deal of uncertainty as to the point at which liability may be said to arise.

Stress Claims

For a stress claim to succeed the employee must show:

• they have a medically recognised psychiatric illness or injury;
• their work posed a real risk of causing psychiatric illness and the employer knew (or ought to have known) that the employee was exposed to that risk;
• given the foreseeable risk, the employer failed to take reasonably practicable or adequate steps to prevent or reduce the risk of psychiatric harm to the employee;
• the employee’s psychiatric injury was caused, or materially contributed to, by the work and the employer’s breach of duty;

The case law on this goes back to 2002 and the famous case of Hatton v Sutherland, with a list of 16 key propositions. Since then, a number of additional factors have been made, including:

• Unless they are aware of any particular vulnerability, employers are entitled to assume that an employee can cope with the “normal pressures” of the job, and take employees’ actions at face value. For example, upon an employee returning to work after a period of sickness absence, without any further explanation, one can usually presume that this indicates that they are fit to resume work, although employers should still consider any adjustments necessary to their workload, or other working arrangements to assist their return.
• Once on notice of a potential stress-related illness or vulnerability, the employer must take remedial steps, e.g. sabbaticals, redistributing work and counselling. Whether it is reasonable for an employer to take these remedial steps will depend on several factors, including the size and scope of the operation, resources, and the interests of other employees.
• Allowing a willing employee to continue in their job (not dismissing or demoting them) is unlikely to result in liability.

Recent Case -Example

In a recent High Court decision, Mr Justice Davis had to determine whether or not B&Q had been in breach of a duty of care to their employee Mr Easton, a high performing Manager at B&Q, who was diagnosed with depression in May 2010 for about five months, and received medication during this period. He was an experienced Manager of large retail stores, who had handled the pressures of such work over a considerable period without experiencing any undue stress relating to his work. Mr Easton’s claim focused on issues in the store around a refurbishment, a restructure in relation to staff hours, and the handling of his return to work. He returned to work at a quieter store nearer his home, on a phased basis but was unable to successfully return and was once again re-certified as unfit for work with depression.

The Judge said that an employee, who returned to work after a period of sickness without qualification, was usually implying that he believed himself to be fit to return to the work he was doing before. He ruled that employers have “no general obligation to make searching or intrusive enquiries, and may take at face value what an employee tells him”.

A key issue was the lack of a general risk assessment. But, B&Q had a document (Staff Handbook which Mr Easton had read) about managing stress, inviting individuals to identify and notify the employer of any symptoms concerned. As he had made insufficient efforts to do this, it was concluded that, on the facts of the particular case, a wider risk assessment would have had no effect on the outcome.

His Manager was entitled to act on the basis that Mr Easton would be able to assess whether he wished to take up a particular opportunity. This can be interpreted as suggesting that just because people are depressed/stressed does not make them incapable of reasoned decisions.

On the facts of the case, Mr Easton’s claim failed at the first hurdle ‘foreseeability’ in respect of his first breakdown. This was because of his long managerial career in charge of large retail outlets, with no psychiatric history. The Judge said “The fact he was still taking medication was not determinative as to how his employment should have been handled. There are many people holding down demanding jobs who still require medication”. On the facts, given the high standard of proof required, the relapse was also not foreseeable by the employer.

Case Outcomes

The following specific lessons can be drawn from this case:

1. An employer is generally entitled to take what he is told by his employee at face value, unless there is good reason to think to the contrary. There is no general obligation to make extensive enquiries of the employee, or seek permission for medical input.
2. Outward signs of stress may trigger an obligation to make enquiries, and potentially to complete a risk assessment. Factors such as frequent or prolonged absence, complaints from the employee or others, or a known history of stress related illness are all relevant.
3. Employers are not expected to be telepathic. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job, unless he knows of some particular problem or vulnerability. If there is a particular situation in the workplace which is causing stress or anxiety, it needs to be raised expressly with an appropriate person.
4. The Courts recognise that many employees will experience periods of being overworked and stressed at work. Very few go on to suffer psychiatric illness as a result. The obligation to act arises when the indications are plain enough for a reasonable employer to realise that they should do something about it.
5. Many people hold down demanding jobs with the support of medication for underlying psychiatric illnesses. The mere fact that a person remains on medication is not an indication as to how their work should be managed.
6. Just because a workplace is busy, or even pressurised, does not mean that it is unusually stressful.

Learning Points – Prevention of Injury

To assist in avoiding stress amongst employees, employers should consider whether to:

• Draft a common sense Stress at Work Policy for inclusion in your Health & Safety Policy.
• Familiarise Managers with, and implement, the Health & Safety Executive’s Management Standards for Work-Related Stress.
• Provide particular stress awareness and management training on the potential dangers of prolonged occupational stress.
• Review the demands placed on employees, and conduct appropriate stress risk assessments, especially if an employee is returning to work from stress, anxiety or a depressive illness.
• Use regular performance appraisals to check on health and general well-being.
• Encourage a positive and friendly working environment.
• Be alert to the risk of relapse.
• Provide adequate training and support to all employees. This includes encouraging an open environment, so that employees can speak about stress and Managers can appropriately deal with it. Action should then be monitored and reviewed.
• Train up in-house Mental First Aiders at Work, or offer a confidential counselling service, if one is available, but should not assume that their duty of care is discharged by doing so.

Actions for Dealing with Sick Employees

If employees succumb to stress and that leads to absence from work then:

• Ensure that an employee, on their return to work following long-term sickness absence, has a formal meeting to assess what steps are going to be put in place to ease them back into work on a graduated basis.
• Monitor working hours to ensure the employee is not working excessive hours, and relieve them of some of their duties.
• Obtain independent medical advice, or use an Occupational Health provider, in connection with the management of the employee’s on-going illness, if applicable.
• If not already in use, provide independent counselling, re-distribution of work, a buddy system and flexible working.

Employees should then be monitored and reviewed regularly. Stress-related absence should be treated like any other sick-related absence, and employers should conduct back to work interviews, and consider phased returns. It must be said that, in many cases, the psychiatric illness will meet the definition of a disability under the Equality Act 2010, which means there is a legal duty to consider reasonable adjustments, many of which will have been covered above, but does require creative thought and empathy.

Much of what is said in these legal cases is common sense. Employers need to look after the mental health of their employees; it is good for business, as well as being good for the economy and society. Employees must also look after their mental health, including using established processes for raising concerns, and seeking help as required. Effective management of people involves two-way communication. In the instances where it leads to absence from work, early intervention to prevent it becoming long-term is crucial.

BackupHR™ has a variety of forms and checklists to help clients, but in all cases, early action is the key to prevention, so do not wait for month before seeking assistance; the first four weeks that an employee is away is critical in trying to get an employee back to work if possible, otherwise you could be in for the long haul.

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

Smoking e-cigarettes may be a safer and healthier option to traditional tobacco cigarettes, but it could be almost as dangerous in terms of it being a fire hazard. Smoking an e-cigarette is more accurately described as ‘vaping’. It is claimed that ‘vaping’ is safer than smoking because of the absence of tobacco and smoke. In a market worth £90 million, there are approximately 1.3 million users of E-Cigarettes in the UK, a figure which is expected to rise rapidly.

There is already a fierce debate about the potential for damaging the health of the ‘vapers’ and those impacted by passive smoking, but that is not the focus of this article. E-Cigarettes are a relatively new product and their risks, including their fire risks, are not yet fully understood. Despite the fact that you do not light an E-Cigarette, there are still fire risks associated with this product.

E-Cigarettes are usually made up of: a rechargeable lithium-ion battery, an atomiser and a replaceable or refillable cartridge containing liquid nicotine, flavours and other chemicals. The battery heats up a coil attached to a wick, which heats liquid containing nicotine, creating vapour which is then inhaled.

One of the fire risks is the potential to overheat, catch fire and even explode whilst charging. These fires have resulted in a number of injuries, including first and second degree burns and one incident tragically resulted in the death of an elderly lady. Figures published by the BBC show that e-cigarettes are believed to be the cause of just over 100 fires in less than two years. It is thought the true number of fires caused is understated as cases go unreported, or the source of the fire is not discovered.

Experts are mainly concerned about the chargers used to power the devices. Many of the batteries in these devices do not have over-current protection, found in mobile phones, meaning the E-Cigarette will continue to charge, even when fully charged. And they have been shown to heat up to dangerous temperatures if used with the wrong ‘vaping’ kit.

Currently, there is no regulation of the fire-risks associated with E-Cigarettes, nor are there any plans to introduce such laws. As it stands, the fire safety of E-Cigarettes remains uncertain. It has led to fire chiefs issuing a warning; the chairman of the Local Government Authority’s (LGA’s) Fire Services Management Committee has said “We are warning users that it is simply not worth risking their lives to save a few pounds by buying dodgy, dangerous or incompatible chargers.” The LGA are also “urging e-cigarette manufacturers to introduce clear, prominent and graphic new warnings spelling out to users the dangers of using incompatible chargers with e-cigarette batteries.”

Safety Tips

The fire service provides a number of tips for e-cigarette users:

1. Only use the charger supplied with your e-cigarette kit
2. Do not ‘mix and match’ components between kits
3. Do not over tighten the battery on to the charger
4. Clean the battery’s ‘centre pin’ and charger contact at least once a week
5. Avoid leaving E-Cigarettes on charge overnight or for long periods of time whilst unattended
6. Once fully charged, removed the battery from the charger

Action Points

So what might this mean for employers? Until recently the big issue was whether vapers should be made to share the same smoking areas as smokers and the accepted wisdom is that they ought to be provided with a separate area. This new evidence should prompt employers to take further action:

Undertake a risk assessment particularly if you have employees or residents living on the premises, or, re-visit your fire risk assessment and include e-cigarettes as a potential fire hazard.

• Warn employees about these risks, assuming that you allow employees to charge their e-cigarettes at work.
• Talk to your Insurance Company.
• Consult with employees about this safety issue and take appropriate action.
• Review your smoking and e-cigarette policy regarding any permitted use of e-cigarettes.

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

Nudging People towards better Health & Safety

Cathy Norton recently learnt about the Nudge Theory which is a modern concept for understanding how people think, make decisions and behave. This, in turn, can be used to help people (i) improve their thinking and decisions; (ii) managing change; and finally (iii) identifying and modifying existing unhelpful influences on people. It is particularly with respect to points (ii) and (iii) that this can be relevant in a health and safety context. If you want to learn more about Nudge Theory, then she suggests you go to the “Businessballs” website where this a huge amount on this subject, but what she wants to do is to think about it in a health and safety context. The use of Nudge theory is based on indirect encouragement and enablement. It avoids direct instruction or enforcement. Here are some simple everyday life examples that show the difference between traditional enforced change and ‘Nudge’ techniques:

Enforce	Nudge
Erecting signs saying no littering and warning of fines	Improving the availability and visibility of litter bins
Joining a gym	Using the stairs
Counting calories	Smaller plate
Weekly food shop budgeting	Use a basket instead of a trolley

The ability to make decisions quickly and efficiently is key to successful working. However incorrect or unsafe. Some decisions have life-changing consequences, such as accepting a new job, moving house etc., but many decisions we make are so routine that they are, in fact, made without thinking. This is particularly true in familiar environments such as work, where people make more or less unconscious decisions affecting their health and safety all the time.

So why do people behave in an unsafe way? The vast majority of our behaviour is automatic, in other words it is not conscious, thus allowing us to process multiple tasks simultaneously with little effort. A good example of this is how many times have you driven your normal journey to and from work with no real recollection of the journey, as you were driving more or less automatic pilot.

Apparently another important influence on our behaviour and actions is conformity. Some experts believe that conforming to group behaviour in one way or another has been a necessary survival instinct, and that the tendency to conform may, to a certain extent, becomes instinctual. The problem here is that when lots of people conform to a false but perceived acceptable unsafe behaviour, this can, in fact, produces real unsafe norms. These behaviours can be intensely powerful and can lead to:

• taking shortcuts in working procedures as it has become accepted practice
• not wearing personal protective equipment
• overriding safety devices
• overloading a piece of lifting equipment
• ignoring signage and other instructions

Nudge theory seeks to minimise resistance and confrontation, which commonly arise from more forceful directly and autocratic methods of changing people and their behaviour, such that it can even cause some wilful resistance. Put simply, it is about coaxing or gently encouraging someone to do something differently. Nudge techniques can be considered a means to alter peoples’ decision-making towards positive outcomes. Care must be taken as negative nudges, although not usually intentional, can adversely affect behaviour too.

Below is a simple table of varying characterisations of, and differences between, traditional directed change and Nudge-oriented interventions, in terms of key words and tactical notions that are typical when one thinks of health and safety.

‘Nudge’ at a Glance

Traditional ‘directed’ or ‘enforced’ intervention	Modern ‘nudge’ intervention
Direct, obvious	Indirect, subtle
Legislation, rules, laws	Enablement, facilitation
Judgmental	Non-judgmental
Enforcement, policing	Help, assistance
Bias	Neutrality
Controlled information	Enable, understanding
Instruction, direction	Educate, inform
Persuasion, cajolement	Example, evidence
Encourgement	Referencing peer activity
Justify, argue	Referencing social norms
Imposed action	Option of zero action
Paternalistic, parent-to-child	Adult, equal
Talk down to	Discuss with
Selective truth	Openness, nothing withheld

We have all probably been nudged without even knowing it. Most people will have seen a sign on the motorway saying “tiredness kills, take a break”. This simple nudge encourages people to think in a safe way and then act on it by pulling over for a break. Another example “take your litter home, other people do” encourages us to conform, as we are being told that the norm is to take the litter home so therefore we are more likely to take heed.

The use of nudges is a softer approach, encouraging people to make the right decision in their own best interest. It is about getting people to want to behave safely because it is the norm, and helps them make the right choices by being nudged.

There are many techniques to nudge your employees to behave differently, perhaps in a more healthy way, and often the simplest ideas can make the biggest differences. If you are aware that people are not really mixing well, as there is little social interaction, then by locating tea and coffee making facilities in an area where there are also chairs and tables, will encourage people to take breaks away from work stations and talk with colleagues on a social level. If you locate personal protective equipment close to the work equipment that requires the PPE, then it encourages people to remember to wear and use it. Positioning a relevant written safe system of work alongside the item of machinery that it relates to, will remind people of how to work the machinery and will act as a usual refresher for those employees who may not use the equipment very often.

Think also about how you communicate messages. If you only really focus on the negative aspects of health and safety (think about all of those “elf” & safety stories the press love to cover) rather than the positives, it will affect the way people feel about it. It By using upbeat communication will increase the attractiveness of positive behaviour. For example, rather than reprimanding people for mistakes or omissions, try to commend those employees for any safe acts that they do instead. Rather than telling someone off for not wearing their PPE, rephrase it in a positive manner, such as “I notice you are not wearing your PPE, do you need to borrow some?”

Don’t forget that the way that feedback is given will also help. If employees are excluded from a decision-making process that affects them, they are more likely to reject it; however, if they are involved they will take ownership of the process and are more likely to conform to control measures “they” suggested. This is why I have always been a great advocate that risk assessments and safe systems of work should only ever be undertaken by the people that actually do the jobs. Simple nudge feedback could include, when discussing risk assessments, asking the team to suggest how they think the risk could best be controlled. A really good health and safety culture is when employees are encouraged to prompt or correct any safe behaviour in others in a way that is not telling them off, by using phrases such as “what else do you think could…?”, “have you forgotten anything?” or “what do you think about doing this?” Also when providing feedback on health and safety compliance, try to focus on the positive aspects while not losing sight of areas that still need work, by saying “I’ve noticed a significant improvement in accident numbers in area X and I am looking forward to seeing progress in area Y as well”.

Do not underestimate the dangers of conformity and following the herd mentality. The best way to crack this is if you can nudge the behaviour of one or two influential people in a group, this in turn, will begin to nudge others. This can then create a positive ripple effect. Key influencers may be Managers or Supervisors, Safety Reps, but better still would be a long serving team member, or even a disruptive team member who always has an opinion on everything. Consider offering the key influencers important health and safety monitoring responsibilities, such as conducting risk assessments, writing safe systems of work, auditing safety, being on the health and safety committee.

Finally, the best nudgers of all are the senior leaders within an organisation. However, remember that employees are less likely to want to respond positively to nudges from leaders if they do not really respect that person. Another problem is if the nudger is a “don’t do as I do, do as I say” person and actually sets a bad example, particularly if they are influential, then this will simply cause on-going negative ripple. It is, therefore, vital that those in a position of leadership keep positively nudging the importance of health and safety within the organisation by their continual actions, words and deeds.

Hopefully this article will gently nudge you into writing yourself a list of what you can do to nudge others into believing that the road towards a good health and safety standard at work is, in fact, made up of a lot of little steps with quite a bit of beneficial and regular nudging from time to time.

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

Employment Law Update – 2015

New Statutory Figures

The annual increase in compensation limits has been announced. The new limits are applicable where the event that gives rise to the award or payment occurs on or after 6th April 2015 and are: • £475.00 – the maximum amount of a week’s pay for calculating statutory redundancy pay and the basic award; (up from £464.00)

• £14,250.00 – the maximum statutory redundancy payment or basic award, i.e. 30 weeks; and

• £78,335.00 – the maximum compensatory award which can be made for unfair dismissal (up from £76,574.00) or one year’s gross pay whichever is the lower

These increases mean that the maximum total unfair dismissal award is now £92,585.00, although uplifts can add a further 25%.

It remains very important to follow good practice in your HR procedures; carefully consider all dismissals, and ensure that the handling of appeals is conducted as thoroughly as possible. It is also important to remember that there is no cap at all on the awards that can be made in many cases, including discrimination claims.

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 for any one day will be £26.00 (£25.00 before 6th April 2015).

From 5th April 2015

Statutory Adoption, Maternity and Paternity Pay, and Maternity Allowance, will all rise from £138.18 to £139.58 per week. This will also be the new rate for Shared Parental Leave Pay.

Statutory Sick Pay (SSP) will also increase from £87.55 to £88.45 per week.

The Lower Earning Limit (LEL) will increase from £111.00 to £112.00 per week, i.e. £5,824.00 per annum.

Other Changes for 2015

The General Election is only months away and the outcome will determine the future direction of employment law, although employment law is unlikely to be a high priority for any Government.

The most significant change in 2015 will be the introduction of the new scheme of Shared Parental Leave from April.

While not strictly a legal development, the new ‘Fit for Work’ service is being rolled out in early 2015, providing health assessments for employees who are off sick for more than four weeks. This will be the focus of our next Newsletter.

There are various views on other bits of proposed legislation, e.g. restrictions on zero hour contracts but little certainty about whether/when they will become law.

One likely change is that, from 1st July, the two-year cap on backdated holiday pay claims raised in the Employment Tribunal will come into force. This cap will apply only to claims raised on or after the 1st July 2015.

National Minimum Wage rates are likely to increase from 1st October 2015, depending on the recommendations of the Low Pay Commission which are due in the spring. The Government asked the Commission to carefully consider apprenticeship pay.

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

Shared Parental Leave Guidance Notes & Forms

We have taken the unusual step of drafting detailed Guidance Notes for our clients on Shared Parental Leave (ShPL) and Shared Parental Pay (ShPP), as the new statutory family friendly rights are extremely complex to follow. This means it is likely that both employees and Managers may get matters wrong. Also, there are a variety of forms that employees should use when applying for ShPL, which we have also prepared for your use. The Legislation is already in place for babies born after 5th April 2015, but it is quite possible that clients may get enquiries as soon as parents have to submit their ‘intentions’, and this can be as soon as 8 weeks prior to the birth of the child. If you get any tentative enquiries, then we would urge that you refer to the Guidance Notes and issue the Notes out, not just to the employee making the enquiry, but also to the Manager, as there are circumstances where the Manager cannot refuse such a request, and it is important that your Managers understand this.

Please do not hesitate to contact us if you get any requests for Shared Parental Leave and we will do our best to support you through the Shared Parental maze (including providing you with a copy of our Guidance Notes & Template Forms), although it has to be said that this will be a learning curve for us all!

From 1st December 2014, it will be a criminal offence for employers to require employees, or job applicants, to provide details of their criminal records by making an enforced data subject access request. Although this practice is discouraged by the Information Commissioner (ICO), employers have been able to ask employees or job applicants to make a subject access request to the police, in order to obtain details of their criminal convictions.

Employers may want information about the criminal records of job applicants, or employees for various reasons. Employers cannot apply themselves for criminal records checks on employees or job applicants, except in specific circumstances. These are primarily where a person will be working with children or vulnerable adults, or in specific regulated sectors, in which case the employer can, and in some cases, must get information on the person’s criminal history. One way of obtaining such information has been to require an individual to make an “enforced” subject access request under the Data Protection Act 1998, in order to get a copy of their own criminal record and make it a precondition of employment. This practice is at odds with the right to privacy and the rehabilitation of offenders, so enforced subject access has long been a contentious issue.

Going forward, any employer convicted of the offence will be liable to a fine of £5,000 in the Magistrates’ Court, or an unlimited fine in the Crown Court. The ICO has indicated that it intends to prosecute those who continue to enforce subject access requests in an effort to stamp out this practice.

Why the New Rules?

The core issue is that subject access requests provide far more information than an applicant is legally required to disclose. Applicants do not have to give information about “spent” convictions – i.e. where a certain period of time has elapsed since the conviction without the perpetrator re-offending. A spent conviction is “wiped” from an individual’s criminal record and he or she is entitled to hold themselves out as someone who has never been the subject of that conviction.

Enforced subject access requests ride roughshod over these boundaries. The response to a request will show spent convictions as well as live ones, and will also show police reprimands, warnings and cautions. While it is unlawful to refuse to employ someone because of a spent conviction, there is no specific legal remedy for anyone who is forced to reveal their full criminal history and then refused employment because of information disclosed. The ICO has called enforced subject access an “unsavoury practice” that undermines the rehabilitation of offenders.

Public debate about whether professional footballer Ched Evans should return to his job as a professional footballer, following his release from prison for rape, provides a topical example of a wider problem. Over 9.2 million people were known to the police with a record on the police national computer in 2009/10: around 15% of the UK population. Research by the CIPD found that being in employment is the single most important factor in reducing reoffending.

What is worth taking from the majority of employers’ experience of employing former convicts, however, is that the majority of the time, negative perceptions are not backed up by actual experience. The low employment rate amongst former offenders is undoubtedly a direct cost to the public purse in respect of jobseeker’s allowance, but also in respect of increased indirect costs by a higher level of reoffending. Ex-offenders who had a job to go to on their release from prison had significantly lower reoffending rates.

What does this mean for Employers?

Employers should, therefore, urgently review their recruitment practices and standard documents, particularly those which make employment subject to the production of a clean criminal record.

An option is simply to ask applicants to disclose their criminal records voluntarily. Employers should explain to individuals that they do not need to disclose spent convictions – although there is no certainty they will provide accurate information. The real question is whether it serves any benefit to do so. We would advise that it is rarely relevant, and should be avoided wherever possible.

The new law does not, however, prevent such access requests where the record is required by law, or is justified in the public interest. If you are thinking of still using enforced subject access, you would be sensible to seek professional opinion about your employment sector.

Areas that may need to be considered include:

• recruitment advertising;
• job and person specifications;
• terms and conditions of employment;
• employment application forms;
• data retention;

Please speak with our Consultants if you think you do need to be able to continue with such access request, or believe that you need to know about criminal history for specific jobs or generally.

ACAS has issued new guidance on dress codes and appearance in the workplace.

It sets out the issues for employers to consider, rather than providing answers. Two areas it focuses on are tattoos/body piercings and religious dress.

Issues

There many reasons why an employer may have a dress code, e.g. workers may be asked to wear a uniform to communicate a corporate image and ensure that customers can easily identify them. A dress code can also be used to ensure workers are safe and dressed appropriately. Visual uniformity in the workplace can help subtly promote the impression of “being a team” amongst the workforce.

According to a 2011 XpertHR benchmarking research on dress codes, nearly three-quarters of organisations have a dress code in operation. The primary reason for having a dress code is to maintain the organisation’s external image. Nine-tenths are willing to relax their dress code under certain circumstances. Charity days are the most widespread reason for relaxing dress codes, followed by hot weather.

Key Concerns

• Employers must avoid unlawful discrimination in any dress code policy.
• 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 when dress codes are in place.

Employers can legitimately tell their employees to dress in a certain way at work; indeed, there is nothing to prevent an employer from including an express term in the Contract of Employment, outlining the dress code that employees must observe. Even if there is no explicit contractual reference to clothing, employees are still under an implied duty to obey reasonable instructions regarding standards, including clothing and appearance.

Employers’ responses to requests on dress should follow a consistent and sensible policy. Allowing one employee to wear a turban, but forbidding another to wear a crucifix could be viewed as discriminatory. Acting reasonably and consistently is the best way to avoid disputes, and be seen as being fair. Restrictions should relate to the job and be reasonable in nature, e.g. workers may be required to tie their hair back, or cover it, for hygiene reasons if working in a kitchen. There may also be a safety risk, for example loose clothing may be a hazard when operating machinery.

It is good practice when drafting or updating a dress code, to consider the reasoning behind it. Consulting with employees over any proposed dress code may ensure that the code is acceptable to both the organisation and employees. Once agreed, it should be communicated to all employees.

Tattoos and Body Piercings

ACAS point out that employers may wish to promote a certain image through their workers which they believe reflects their ‘ethos’. This can mean asking workers to remove piercings or cover tattoos while at work, particularly when they are dealing with customers.

Religious Dress

ACAS also recommend allowing groups, or individual employees, to wear articles of clothing etc. that manifest their religious faith. Any restriction should be connected to a real business or safety requirement. They recognise that there are conflicting legal decisions in this area. They advise employers to think about the image they want to convey, and about how they can work with employees to allow them to manifest their faith, in a way that does not conflict with their requirements, rather than provide a strict and limiting code.

Implementation

Introducing a workplace dress code may initially cause ripples of dissatisfaction in employees because it is a change, but a dress code may assist employees because it sets out expectations about their dress and grooming. Thus, they don’t have to worry about whether they are dressed too casually or too formally – all they have to do is follow the dress code.

A proper sense of proportion is required, as standards which could be insisted upon in a professional client-facing role are harder to enforce in a back-office administrative department. Those standards must reflect current business norms, not those that were prevalent when you first started work!

We advise employers to avoid applying a requirement of, say, “conventional business dress” and then being drawn into describing in detail what that means for each gender. “Conventional business dress” means different things for both genders. Try to stick to general prohibitions – no inappropriate footwear, no beachwear, no sportswear, nothing too tight/loose, no offensive logos, nothing that might be expected to attract adverse comment from customers/visitors etc.

Actions

• To avoid claims of indirect discrimination, you should be able to objectively justify dress standards, e.g. when religious dress requirements conflict with safety or hygiene rules.
• There should be a good reason for imposing a dress code, and you should be consistent in your approach (subject to the above discrimination concern).
• If you provide clothing, make it clear who is responsible for its cleaning.
• Communicate your rules so they understand your standards, and make it clear that failure to comply will be a disciplinary matter.
• Do not make it contractual, but do have a rule which you can easily change.
• You should be seen to listen to your staff on this, and it will help “sell” the restrictions if you can point to a complaint, or some objective concern, other than your own personal likes/dislikes.

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

Shared Parental Leave & Pay

Shared Parental Leave (ShPL) is a new right that will enable eligible mothers, fathers, partners and adopters to choose how to share time off work, after their child is born or placed for adoption. This could mean that the mother or adopter shares some of the leave with her partner, perhaps returning to work for part of the time and then resuming leave at a later date. The Regulations are due to come into force on 1st December 2014. The options to use the new ShPL rights will apply for parents who meet the eligibility criteria, where a baby is due to be born on or after 5th April 2015, or for children who are placed for adoption on or after that date. Employers could start to receive notice of eligibility and the intention to take ShPL from qualifying employee from January 2015.

Key Points

• Employed mothers will continue to be entitled to 52 weeks of Maternity Leave and 39 weeks of Statutory Maternity Pay or Maternity Allowance.

• If they choose to do so, an eligible mother can end her maternity leave early, and with her partner or the child’s father, will be able to opt for ShPL instead of Maternity Leave. If they both meet the qualifying requirements and both qualify, they will need to decide how they divide their total ShPL and Pay entitlement.

• ShPL can be taken by both parents at the same time or in turns.

• Paid Paternity Leave of two weeks will continue.

• Adopters will have the same rights to ShPL and Pay.

• Intended parents in surrogacy who meet certain criteria, will be eligible for Statutory Adoption Leave and Pay, and ShPL and Pay.

• Fathers, partners and, in certain circumstances intended surrogacy parents, will be entitled to unpaid time off to attend up to two ante-natal appointments.

• Additional paternity leave and pay will be abolished.

Shared Parental Leave (ShPL)

ShPL is designed to give parents more flexibility in how to share the care of their child, in the first year following birth or adoption. Eligible parents will then be able to share the remaining maternity leave and pay between themselves.

To qualify for ShPL and Pay, a mother must be entitled to Maternity or Adoption Leave, or Statutory Maternity or Adoption Pay or Maternity Allowance, and must share the main responsibility for caring for the child with the child’s father or her partner. In addition, they will be required to follow a two step process to establish eligibility.

Step 1 – Continuity Test:

A mother seeking to take ShPL must have worked for the same employer for at least 26 weeks, and be still employed at the end of the 15th week before the week in which the child is due (or at the week in which an adopter was notified of having been matched with a child or adoption) and be still employed in the first week that ShPL is to be taken.

The other parent has to have worked for 26 weeks in the 66 weeks leading up to the due date, and have earned above the Maternity Allowance threshold of £30 week in 13 of the 66 weeks.

Step 2 – Individual Eligibility for Pay:

To qualify for Shared Parental Pay (ShPP), the parent must, as well as passing the continuity test, also have earned an average salary of the lower earnings limit or more (currently £111) for the 8 weeks’ prior to the 15th week before the EWC.

It will be for the mother or adopter to continue on maternity leave, or opt to take Shared Parental Leave. A mother is normally entitled to Statutory Maternity Pay/Adoption Pay/Maternity Allowance for up to 39 weeks. If the mother gives notice to curtail (reduce) their entitlement before they have received the full 39 weeks, then any remaining weeks could become available as Shared Parental Pay (ShPP). If both parents qualify for ShPP, they must decide who will receive it, or how the pay will be divided, and they must each inform their employer of their entitlement. Both parents cannot receive the ShPP at the same time. If an employee’s employment comes to an end whilst they are still entitled to some ShPP, then any remaining weeks will remain payable by the employer, unless the employee has started working elsewhere.

ShPL may be taken at any time within the period which begins on the date the child is born, or date of the placement, and ends 52 weeks after that date. Leave must be taken in complete weeks and may be taken either in a continuous period, which an employer cannot refuse, or in a discontinuous period, which the employer can refuse.

Ante-Natal Appointments

All pregnant employees are entitled to reasonable time off with pay for antenatal care, made on the advice of a registered medical practitioner. Except for the first appointment, employees should show the employer, if requested, an appointment card or other documents, showing that an appointment has been made.

Fathers and partners of pregnant women are now entitled to unpaid time off to attend two ante-natal appointments (from 1st October 2014), from day one of their employment.

Intended parents in a surrogacy case who meet the conditions set out under the Human Embryology and Fertilisation Act 2008, will a also have the right to unpaid leave to attend up to two antenatal appointments.

So How Will the New Regulations Work in Practice?

Requesting Shared Parental Leave

Technical Guidance for Employers was published in September and is available on the BIS website which is supposed to help us understand and operate the new Shared Parental Leave process. That guidance is 56 pages. ACAS have subsequently published a good practice Guide of Employers and Employees which is 42 pages and a one page four step summary guide available from their website. The following sets out the process but only in the briefest of terms.

Parents who qualify for the right will need to decide if ShPL is the best option for them. Ultimately it is for the mother or primary adopter to decide whether to end their maternity or adoption leave early and opt into ShPL. They will need to consider their personal circumstances and should take into account such things as:

• Who qualifies for Shared Parental Leave?
• When does the mother wish to return to work?
• The financial implications.
• How the sharing of the upbringing of the child could work?

Parents can choose to opt into ShPL at any time, so long as there is some untaken maternity leave to share.

An employee opting for ShPL must notify his or her employer of their entitlement to ShPL, and must book the leave they wish to take otherwise known as ‘EU holiday’). EU holiday is only 4 weeks which is shorter than the UK entitlement of 5.6 weeks. This means that any employer who pays basic pay only during holiday is at risk of a claim for the value of supplemental payments including shift premiums guaranteed and non-guaranteed overtime and other regular payments, they must provide their employer with a notice of entitlement to take ShPL. The notice must be given at least 8 weeks before the start of a period of ShPL. Each parent entitled and intending to take ShPL, must give their employer a notice which must include:

• How much leave is available?
• How much leave they are entitled to take?
• How much leave the parent is intending to take?
• How they expect to take it?

Any notice to book ShPL must be given at least 8 weeks before the leave is due to start.

Discussing Intentions Early On

Having an early and informal discussion can provide an opportunity for the employee and employer to talk about their preference regarding when ShPL is taken. This is particularly important in helping to decide whether the employer needs to recruit a maternity leave replacement for the full 12 months maternity leave, for clearly if the employee is thinking of coming back earlier, this will impact on the length of the maternity leave cover required.

Employers can use this discussion as an opportunity to point out the different options, such as maternity leave, paternity leave (or adoption leave), and can ensure the employee is aware of their statutory rights, or any contractual schemes the employer has in place. It can also be an opportunity to discuss when or how any discontinuous leave can be best accommodated.

Discussing a Request for Shared Parental Leave

Once a notification for such leave has been received, employers should consider:

• Is the request for leave one continuous block or discontinuous blocks?
• Arranging a discussion with the employee to clarify their intentions and how they think discontinuous blocks would work practically.
• What cover will be needed for the employee’s absence?
• Is any modification to a discontinuous leave request necessary?

An employer cannot refuse a request for continuous leave from either the mother or the “partner”.

These are the likely outcomes available to an employer for a request for discontinuous leave:

a. if the employer is in agreement, it can be unconditionally accepted

b. reject the request in its present form

c. propose changes to the request

d. insist the employee takes the leave in a continuous block

e. if the employer and employee cannot agree within two weeks from their written request, then the employee can withdraw their request or take the leave requested as a single continuous period

f. agree a mutually acceptable variation

Parental Leave

Parental leave is for employees to take time off work to look after a child’s welfare; this leave is normally unpaid and is a different statutory right that has existed for many years. At present, this leave can be taken up to the child’s 5th birthday; however, in April 2015 the age limit will increase to under 18 year. Parental Leave should not be confused with Shared Parental Leave.

Shared Parental Leave In Touch (SPLIT) days

Each parent will have the right to have up to 20 Shared Parental Leave In Touch (SPLIT) days during ShPL (this is in addition to the 10 KIT days allowed during maternity and adoption leave.)

Enhanced Maternity Pay

Very few of our clients offer an enhanced maternity pay scheme to their employees. There is no requirement to top up Statutory Maternity Pay. Now is definitely not the time to decide on enhancing maternity pay because it is likely that case law will decide whether enhanced maternity pay provisions should equally apply to male colleagues when requesting Shared Parental Pay.

Other issues

Many people are abbreviating Shared Parental Leave to SPL; we prefer the term ShPL as it clearly distinguishes it from Statutory Paternity Leave also known as SPL.

Much of the regime is based on trust. There is no requirement to check information provided but you may do so. There is some limited scope for obtaining information about fathers who do not work for you, but we take the view that you should check what you can, if you feel you need to do so. There is also plenty of scope for disciplining employees who tell lies, in our Handbooks (fraud, dishonesty and falsification of records).

Please ensure that your Managers are aware of the law and do not make sexist/ discriminatory comments to men who make such requests!

The detailed rules are very complicated and it is possible to overthink all the possible permutations of requests; we are trying to keep it fairly simple!

This is just a summary of an extremely complex set of arrangements that we have yet to see working on a practical level. We do not anticipate a significant take up on this new statutory right. Only time will tell how popular or not this will become. Our Consultants will be pleased to advise you on any element of the issues arising from this newsletter.

Employees with the Statutory Right to take time off to attend Antenatal Appointments

The Children and Families Act 2014 gives those employees and agency workers who are in a qualifying relationship” with a pregnant woman the statutory right to take time off to attend antenatal appointments. This new right comes into force on 1 October 2014 and applies from day one of employment” i.e. no continuous period of employment is required.”0