Employment law update

Next meeting: 17th January 2008
The Netherwood Hotel, 13.30 hrs
www.netherwood-hotel.co.uk
Topic: Chemicals Legislation
Speaker: Roger Bentley, H & S Consultant, Astley

Employment law update
Joint meeting with
South Cumbria IOSH District

Minutes of joint meeting held at 2pm on Thursday 13th December 2007 at the Netherwood Hotel, Grange-Over-Sands, Cumbria.

Martin Fishwick, Chairman, welcomed everyone and introduced Joanne Stronach, Employment Solicitor, Burnetts, Carlisle, on her return visit, to give an Emploment Law Update.

Joanne said her talk would focus on:
The Working Time Regulations
Discrimination Legislation &
Long Term Absence from work

The Working Time Regulations
Joanne explained that the UK is in the process of increasing employees’ minimum holiday entitlement to comply with EU recommendations through a gradual progression:
2006/06 - 12 days + 8 Bank Holidays
2007/08 - 20 days + 4 Bank Holidays
2008/09 - 20 days + 8 Bank Holidays
2009/10 - 30 days (including Bank Holidays)

Accrual of entitlement only applies in year one of employment; full entitlement applies even at the start of succeeding years. Pay in lieu of holidays only applies on termination of employment, other than a temporary concession during this transition. The minimum legally required notice for holidays is twice their proposed length. Joanne advised stipulating a longer notice than this in their employees’ contract of employment.

Discrimination Legislation
Joanne said that Discrimination legislation covered:
Age
Gender
Religion
Fixed term & part time employment
Race
Disability
Marital status &
Sexual orientation (extends to family members).
For example, employers need to ensure that part-time workers are given proportional holiday and pension entitlement for employment.

There are two main types of discrimination;
Direct - less favourable treatment;
Indirect - discrimination built into a policy eg reasonable adjustments, such as making job and workplace environment changes for a disabled person are not considered.

Employees claims may result from:
Victimisation - including retaliation (eg after making or being a witness for a claim)
Harassment - such as sexual, sexual orientation, or racial, or to religion/atheism, or unreasonableness, or disability leading to unwanted conduct that the employee finds hostile, humiliating, or offensive etc…
Constructive Dismissal - when a person is "driven" to leave because they feel that workplace victimisation and harassment have not been dealt with effectively.

Any of the above, and other stressors, can have negative effects for the Company, such as absence, low staff morale, poor performance, or productivity, poor reputation and customer service, workplace conflict, and high staff “turn-over”. These factors may impact on the team, a work group, or the individual. The costs to the employee may be physical or emotional, cause stress, depression or anxiety, affect capability and promotion prospects, or result in resignation, and have long term effects subsequently.

Sickness Absence
Joanne explained that sickness absence may take two forms:
Persistent short term sickness and
Long term sickness

She noted that the longer a person is off work, the less likely they are to return. Frequent short term absences should be handled by checking for patterns, identifying the problem(s) and/or reasons for the absence and by monitoring. Levels and patterns of staff absence should be checked regularly, sick notes studied and records kept. Such absences often link to family or sporting events.

Joanne recommended that Companies should have a formal Absence Policy, with trigger levels for Return to Work interviews; a disciplinary procedure, with defined stages: informal, warning(s), and dismissal procedure. The dismissal procedure (based on capability) must be carefully followed and recorded to avoid unfair dismissal proceedings.

In the case of long term absence, it is important to establish medical status. Welfare visits should be made, and communication maintained (eg invites to company functions and events). A prompt response is especially important if stress is quoted on the sick note, as early action is required.

A proper medical evaluation may require advice from an independent medical specialist. This may be costly but facilitates an objective assessment of the employee’s illness and future employment. Reasonable job adjustments or redeployment can then be considered with the employee. A phased back to work plan may be appropriate (and should be monitored); or ill health retirement may have to be considered. Medical advice may have to be interpreted in terms of the company's activities.

Joanne then returned to Disability Discrimination. She said the definition of discrimination is ever widening; it now covers any physical or mental impairment having a substantial and long term adverse effect on the ability to do normal day to day activities. She noted that mental impairment includes stress, and any condition controlled by medication (eg diabetes), can be subject to discrimination. Long term is defined as greater than 12 months, through to a lifetime condition. Past and recurrent disabilities are included. She reminded us that failure to make reasonable adjustments in the workplace is discrimination

Joanne finished with a number of miscellaneous points, some raised in discussion. She stressed the need to ensure employees’ understand training and safety instructions, especially when employing foreign workers with a different cultural background. She quoted a case in which the employer was held liable for an injury, even after the standard training, because English was not the employee’s first language. When companies employ groups of foreign workers it is easier to be proactive with training, English teaching and community contact but the same level of care is needed with individual workers.

If employers need to seek independent medical advice about an employee’s fitness for work the Access to Medical Reports Act must be observed, and the employee's agreement sought, if an independent medical specialist wishes to see past medical records. The final decision about staff fitness for work should be based on the available evidence and information. Employees have the right to with-hold permission for the transfer of personal medical information to an independent specialist, appointed by their employer. They may exercise this right if they fear losing their job, or wish to make a claim against their employer; this has also been known to frustrate RIDDOR reporting.

Bullying is covered by the Employment Rights Act - beware of ignored sickness and/or unresolved grievances - these can result in claims for Constructive Dismissal linked to alleged bullying of an employee.

Martin Fishwick, Chairman, then thanked Joanne for a very informative presentation, and handed over a small gift. He was then pleased to announce that our recent Seminar had been Highly Commended in this year's SG UK Alan Butler Annual Safety Group Awards.

John Westmoreland, Business Secretary, sumarised a long list of H & S events due in 2008, including several CPD help sessions within IOSH Manchester Branch. He noted that the word Specialist is to be dropped from the title of the IOSH Specialist Groups.

IOSH Branch Review Working Group
Val Kennedy, Vice Chairman, then gave the first of three short presentations on topics discussed at the IOSH Branch Officials' Meeting (November 2007). She explained that the most important topic covered was the IOSH Branch Review - see South Cumbria IOSH District minutes on the Manchester IOSH Branch website for important information on the IOSH Branch Review.