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.

The Health and Safety at Work Act 1974 – Fortieth Birthday!

The Health and Safety at Work Act, often referred to as either the HSW Act, or HASAWA for short, is the primary piece of legislation covering occupational health, safety and welfare in Great Britain. The Health and Safety Executive, with local authorities (and other enforcing authorities) is responsible for enforcing the Act and a number of other Acts and Statutory Instruments, including European Health & Safety Directives relevant to the working environment. The Act reflected the recommendations of the 1972 Robens Report, introducing a broad goal setting, non-prescriptive model, based on the view that ‘those that create risk are best placed to manage it’. Rather than the previous existing detailed and industry specific industry regulations, it created a flexible system whereby regulations expressed goals and principles, supported by codes of practice and guidance, which applied to all people at work or affected by work activities, including members of the public. Based on consultation and engagement, the new regime was designed to deliver a proportionate, targeted and risk-based approach.

HASAWA also established two new bodies – HSC and HSE – to implement the framework – later merged into one organisation. The HSE oversees and enforces workplace health and safety legislation, as well as offering advice especially in the form of publications, many of which can be downloaded free from their detailed constantly updated website. Although more recently, and quite controversially, the HSE will now charge for some work under the heading FFI, Fees For Intervention. Besides laying down duties, HASAWA gave the Health and Safety Executive (HSE) and Local Authority Inspectors wide ranging powers – to prosecute and to issue prohibition notices, halting dangerous work or improvement notices. Nowadays the offending employers will also find their details published on the HSE website, as part of a name and shame approach.

HASAWA imposed a range of general duties on employers, the self employed and employees, as well as others such as designers, manufacturers or suppliers of articles and substances for use at work. Section 2(1) “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare of all their employees” is one such general duty still regularly quoted today.

While most modern health and safety law applies ‘across-the-board’, it is worth remembering that there are also additional regulations covering particular industry sectors, such as construction, agriculture, railways, mines and quarries and major hazard and nuclear installations that reflect the particular risk and hazard profile of those sectors. Agriculture continues to be regarded as one of the riskiest industries to work for regarding the number of deaths and serious injuries that still happen in proportion to the number of people that work within the sector.

More than 650 employees lost their lives each year when the HASAWA was launched in 1974. This figure has since plummeted by 85%, to an all-time low of 133 seen now, new Health and Safety Executive (HSE) statistics have recently revealed. The injury figures tell a similar story, falling by 77% from 336,701 in 1974 to 78,222 today. The figures bear testimony to the Act’s tremendous impact on employers.

The current HSE Chair, Judith Hackett says their aim is not to straitjacket employers, but to set standards by outlining how safety improvements can be reached that are ‘universally applicable’, whether workers are in a lab, farm or while shale gas fracking.

Mark Harper, the new Minister of State for Health and Safety, marked the 40th anniversary of the Health and Safety at Work, etc. Act 1974 by commenting that “Britain has come an incredibly long way over the past 40 years in protecting its workforce. Our workplace safety record is now the envy of the world, with businesses and governments queuing up to tap into our expertise. Any death at work is a death too many. But few can dispute that the reduction in fatalities and injuries over the past 40 years is a significant step forward. Britain is now officially one of the safest places in Europe — and the world — to work.”

He added, “So, while we all rightly curse false health and safety excuses, it’s worth thinking how fortunate we are today that we can go out to do a hard day’s work safe in the knowledge that our safety is being taken seriously.”

Having worked in both HR and health and safety for the last thirty years, I believe it is true to say that HASAWA has lost none of its legal bite over that time. However, with the HSE being made to introduce financial savings by charging for some of their work, and with ever increasing business regulation placed on SMEs by whichever government of the day is in power, it would be my observation that unfortunately health and safety priorities regularly lose out to other business pressures, until that is, of course, someone gets injured. Sadly, for many employers safety is still not regarded as the work necessary to achieve prevention from harm but is only reactive to what action should we now do after someone has already got hurt. It is only those organisations that make sure that they have a far more preventative approach to safety, clearly generated down from the top of the management tree, that will not need to fear about an unannounced visit from the HSE, or, receive that dreadful phone call telling them someone at work has been seriously injured or worst still, killed. As far as that is concerned, HASAWA currently still has 133 reasons to keep on working.

Our Consultants would 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

Violence & Aggression in the Workplace

Introduction – The Size of the Problem

The Health and Safety Executive released in February 2014 a new set of statistics on violence in the workplace. The good news being that the number of violent incidents at work has in fact declined over the past decade with the incident rate remaining stable over the last four years. This does not mean that employers should be complacent about the problem. The most recent figures are based on findings from the Crime Survey for England and Wales show that in 2012/13:

• the risk of being a victim of actual or threatened violence at work in 2012/13 was similar to the last few years, with an estimated 1.4% of working adults the victims of one or more violent incidents at work;

• a total of 323,000 adults of working age in employment experienced work-related violence including threats and physical assault;

• there were an estimated 649,000 incidents of violence at work, comprising 332,000 assaults and 317,000 threats (compared with an estimated 643,000 incidents in 2011/12);

• some 1.2% of women and 1.6% of men were victims of violence at work during the year prior to the survey;

• it is estimated that 60% of victims reported one incident of work-related violence while 16% experienced two incidents of work-related violence and 24% experienced three or more incidents;

• the perpetrators were unknown to the employees in 60% of cases of workplace violence;

• among incidents where the perpetrator was known, they were most likely to be clients or a member of the public known through work;

• victims of actual or threatened violence at work said that the perpetrator was under the influence of alcohol in 38% of incidents, and under the influence of drugs in 26% of incidents;

• 51% of assaults at work resulted in injury, with minor bruising or a black eye accounting for the majority of the injuries recorded;

Work-related violence is costly in both human and financial terms. There are the direct financial costs associated with absence, replacing staff and lower productivity. There are also indirect costs, such as investigating and resolving workplace incidents, and the knock-on effects on staff turnover, morale and motivation. Victims of violence and aggression often suffer immediate effects of pain or distress, however for many, the longer term impact on their health and psychological well-being, e.g. stress and loss of confidence, can be damaging and it likely to affect their personal life as well.

What is violence and aggression?

The Health and Safety Executive (HSE) defines work-related violence as: “any incident in which a person is abused, threatened or assaulted in circumstances relating to their work”.

Violence and aggression can include a wide range of unacceptable behaviours, including:

• physical violence, e.g. hitting, throwing objects at people through to spitting or biting;
• verbal abuse or threats;
• damage to personal property;

Acts of violence or aggression can range from minor cases such as disrespect, to far more serious acts that may constitute criminal offences requiring the involvement of the police.

Incidents of work-related violence can occur internally between colleagues and/or their managers or may involve third parties, such as clients, customers, residents, pupils, etc. The people most at risk are those who have to deal regularly with the public.

What does the law require employers to do?

Employers have legal duties to protect their employees from violence and aggression.

The Health and Safety at Work Act, 1974 requires employers to protect, so far as is reasonably practicable, the health and safety of their employees and non-employees e.g. clients, customers, residents, patients as well as agency workers and contractors.

The Management of Health and Safety at Work Regulations 1999 require employers to assess and control all the risks associated with their work activities. Employers need to develop and implement a clear management policy and plan to achieve this.

Under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), employers must report any acts of work-related violence that fall under the definition of notifiable accidents, including fatalities, serious injuries and incidents where the victim is unable to work
normally for more than seven days.

Employers must also consult their employees and safety representatives about health and safety risks and the control measures they implement.

What steps must an employer take?

The risks from violence and aggression should be managed in the same way as other health and safety risks by identifying the risks and putting in place measures to prevent or control those risks. A simple, four-stage management approach is set out below.

Stage one: find out if you have a problem

The best method for identifying any risk is to ask your employees. You could do this informally or use a short questionnaire. Keeping detailed records will help you build up a picture of the problems you may have, although you may have to encourage employees to report incidents promptly. Classifying the incidents by place, time, type, those involved and causes will help identify any potential problem areas or themes.

Also try to consider what might happen, by finding out more about the risk of violence in similar organisations to your own and what your own professional associations publish.

Stage two: decide what action to take

If there is a potential for violence or aggression, then you need to assess the risks and decide how to control them.

There are always a number of simple and cheap solutions to help manage the risks in your organisation.

Some practical solutions to consider are:

• training and information for staff, e.g. explaining your policy on work-related violence, training on how to recognise volatile situations

• improving the layout of your premises, e.g. making sure there is clear visibility or improved lighting in reception and car park areas

• planning job roles carefully, e.g. avoiding lone working

• communication systems especially for lone workers so that they can alert others that they need assistance e.g. panic buttons or regular calling-in procedures

Stage three: take action

Implement the control measures necessary to manage the risks through the use of an action plan. Check with employees that the changes are properly understood and are being adhered to.

Stage four: monitor and review

You need to regularly check that your control measures are working effectively and the risks are being managed. In smaller organisations these checks can be informal but managers and supervisors should involve employees and use their experience. Monitor the number of incidents and learn from each new case.

Violence and aggression policy and procedures

Managing violence and aggression can be incorporated into existing policies or systems. Alternatively to raise the profile of the issue you can develop a specific work-related violence policy that:

• demonstrates a commitment to tackle work-related violence
• clarifies roles and responsibilities
• raises awareness of related issues amongst the workforce
• sets standards for acceptable workplace behaviour
• ensures consistency and fairness in how incidents are managed

Giving a specific named senior manager or director overall responsibility and control of the policy helps demonstrate commitment that work-related violence is taken really seriously. In smaller organisations, policies may be more informal, but employees should still be aware of what behaviour is considered unacceptable and what they should do if they encounter these behaviours.

Your written policy should be backed up with specific procedures or processes for tackling work-related violence. When reviewing your health & safety management policy and system, consider whether the following are all in place:

• detailed and well-communicated emergency procedures
• risk assessments covering work-related violence
• procedures for reporting and investigating incidents of violence and aggression
• clear responsibilities for RIDDOR reporting
• good communications with employees about workplace risks
• adequate consultation with staff especially if you have a safety committee
• drug and alcohol procedures
• effective grievance and disciplinary procedures

If your employees handle cash or products, you may need to make it clear that they should not resist if threatened. If there is an attempted theft, with a threat of real or perceived violence, the safest course of action is not to offer any resistance and to comply with the aggressor’s demands. This should be made clear to employees.

Summary

Violence and aggression at work is a serious problem that affects many people. Tackling it does not need to be very different from how you manage other risks. The key is to talk with and involve employees in establishing the real extent of the problem and getting them to help identify additional, suitable control measures that would help to practically reduce risk.

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