Employment Review - June 2008
In this Review, Vanessa DiCuffa (pictured above) looks at new rights which will be given to Agency Workers and also the draft code of practice published by ACAS on discipline and grievance which will form part of the proposed changes to employment law including the repeal of the statutory dismissal and grievance procedures. With ever increasing numbers of staff signed off work with depression, the Review looks at ACAS guidance on how to spot and deal with this issue in the workplace.
Cases concerning employment liability for suicide, sick pay during maternity leave and striking out defences to claims where employers intimidate claimants are also featured.
Agency staff to get equal rights
ACAS publish Draft Code of Practice on discipline and grievance
Prejudice against people with facial disfigurements
Spotting signs of depression in the workplace
Employer liability for employee suicide
Proposals for new immigration scheme published
Bosses discriminate against women planning to start families
No sick pay during maternity leave
Strike out for intimidation of litigants
Employment claims insurance - protecting your balance sheet
Agency staff to get equal rights
The Government, TUC and CBI have agreed a deal which will see agency workers in the UK receive equal treatment after 12 weeks employment.
This is following the EU debate on agency workers rights. Half of all temporary placements last under 12 weeks so this option still preserves flexibility for a large proportion of Agency Workers.
On the 20th May 2008, the Government, TUC and CBI issued an agreed joint statement in relation to the treatment of agency workers. Under the proposals, agency workers will be given equal pay and holiday entitlement after being in the job for 12 weeks. Equal treatment for agency staff means they will be entitled at least to the same basic employment conditions they would have been entitled to had they been recruited directly to occupy the role.
However, this will not cover ‘occupational social security schemes’ including statutory sick pay and pension payments. Although this agreement was described by the CBI as the “least worst option”, employers will need to ensure that temporary placements are monitored to avoid agency workers acquiring unnecessary rights simply by leaving someone in a role for too long. Employers may need to be more creative with how they fill temporary vacancies to maintain flexibility in their workforce.
ACAS publish Draft Code of Practice on discipline and grievance
In advance of the planned abolition of the statutory dismissal and discipline procedure, ACAS have published the draft Code of Practice on discipline and grievance.
This is to take into account the changes set out in the Employment Bill. The Government plans to introduce these changes in workplace dispute resolution in April 2009, and the ACAS code is intended to come into force at the same time.
We would be interested in feedback from our clients on the proposed code. You can read the draft at http://www.acas.org.uk/CHttpHandler.ashx?id=880&p=0. If you wish to make any comments on the draft code, please contact David Potter.
David Potter, Partner & Head of Employment
+44 (0)115 936 9389
david.potter@freethcartwright.co.uk
Prejudice against people with facial disfigurements
The charity Changing Faces recently commissioned research on reactions to facial disfigurements in the workplace. It was revealed by the survey that an overwhelming majority of people are unknowingly prejudiced towards those with such disfigurements.
The participants were asked to look at images of people with or without facial disfigurements. The charity gave them a list of positive and negative words and asked them to assign these to the images. All of the respondents claimed to hold no prejudices against those with disfigurements; however 9 out of 10 surveyed held implicit prejudices.
Changing faces has launched the Face Equality campaign in response to the survey. The campaign aims, over the next 3 to 5 years, to raise awareness of facial prejudice and discrimination.
The charity is aiming to combat facial discrimination in the workplace. There are three principles that employers should meet:
1. Becoming familiar with the causes and effects of disfiguring conditions - staff should be trained and kept informed. Procedures and policies should be adopted to limit facial prejudice and discrimination in recruitment, retention and career advancement.
2. Adopt the positive in your thinking about people with disfigurements - organisations should change their culture and promote inclusion of people with disfigurements.
3. Adopt new ways of behaving when you meet someone with disfigurements - staff should be trained in face equality training so that people with disfigurements are recruited, retained and served equally and fairly.
In the current climate where there is a serious skills gap and finding quality staff is increasingly difficult, employers are well advised to address these types of issues since many talented employees may be amongst this category.
If you would like more information about the work Changing Faces does with employers then please go to their website www.changingfaces.org.uk.
Spotting signs of depression in the workplace
To coincide with Depression Awareness Week (21-26 April 2008), ACAS has provided advice to employers on how to spot and deal with mental health problems at work. Employers often underestimate how much employees are suffering from stress, anxiety and depression.
Mental health problems in the workplace can be very disruptive for both the business and the individual, impacting on their personal life and their work performance. ACAS urges bosses to look out for early indicators before they develop into something more serious, like stress or depression.
Early indicators include:
• Keeping your eyes open - potential warning signs include changes in day to day behaviour such as seeming distracted, unable to cope with work, sudden loss of motivation
• Not making assumptions - try to establish if the change in behaviour is just a blip or a sign of a more serious problem
• Getting to the root of the problem - try and arrange a moment to catch someone privately, and informally ask if they are ok
• Find out how you can help - if it is work related look at ways to remedy the stress. If it is personal, consider how things can be adjusted to improve the situation, for example, working flexibly
• Creating a culture - the long term aim should be to create a working environment which eradicates the stigma mental health can carry
• Work with your organisation to train management and staff
Depression in the workplace presents serious problems for businesses. Awareness of the condition will help employers deal with the problems better. Experience suggests that employees may use depression as a way of avoiding going through internal employer processes. Although there may be situations where this may be appropriate, it is crucial that specialist legal advice is taken to ensure that unnecessary delay is not faced.
Employers and employees can find further guidance on the ACAS website. www.acas.org.uk
Employer liability for employee suicide
Who would have thought that an employer would be liable for an employee’s suicide when conditions at work lead to an employee suffering serious depression culminating in his suicide?
In Corr (Administratrix of the Estate of Thomas Corr (deceased)) v IBC Vehicles Limited [2008] the House of Lords found an employer was responsible for the physical and psychological injuries that an employee suffered due to a workplace accident, including his suicide six years afterwards. The claim was brought under the Fatal Accidents Act 1976 by the widow of the former employee who had suffered a very serious accident at work.
The employee became severely depressed due to the accident. It was held that as the suicide had stemmed from the employee’s severe depression which was a direct result of being seriously injured during a workplace accident, it was a reasonably foreseeable consequence of the accident. The decision may well have been different if the employee had a history of mental illness/depression and it was therefore difficult to see the clear causal link.
The impact of this decision is that it again confirms that an employer has potential liability for all reasonably foreseeable consequences stemming from a workplace injury, which now includes an employee’s suicide. If the courts are willing to allow liability for an employee’s suicide, this could have ramifications on other aspects of employer’s liability. It begs the question what else will employers be seen as being liable for in the future? It is more important than ever to ensure that there are appropriate health and safety procedures in place in order to reduce the risks of accidents in the workplace, as well as stress related illnesses such as depression.
Corr (Administratrix of the Estate of Thomas Corr (deceased)) v IBC Vehicles Limited [2008] UKHL13
Proposals for new immigration scheme published
The Home Office has published stricter criteria for skilled and temporary workers under the new points based immigration scheme. Low skilled workers from outside the E.U. will not be able to apply for work under the system.
If a British based employer wants to recruit migrant workers for skilled posts, they will first of all have to show that they advertised the vacancy in the UK. Also, immigrant workers will need a job offer before they can apply for a visa. They must also show that they have the requisite amount of points.
Points are allocated for a variety of factors, including their education, standard of spoken English, and being able to prove that they will be doing skilled work and earning over £24,000 for doing so.
Further details of the system can be found on the UK Border Agency website www.bia.homeoffice.gov.uk .
Bosses discriminate against women planning to start families
Social policy dictates that women with children should be encouraged to work and not suffer prejudice because of their childcare commitments. Despite this and the continual policies introduced by government to reduce discrimination and increase rights for women who work, it is still evident that employers generally are reluctant to employ or promote women.
A recent study has found that the majority of bosses in the UK discriminate against female job applicants that they know intend to start a family.
Figures have been published that suggest that approximately 75% of managers questioned said they would not take on a woman if they were aware that she intended to start a family within the following six months. It was also found that some interviewers asked candidates if they have plans to start a family. This practice is banned under sex discrimination law.
It was also found that 52 per cent of managers admitted they weighed up the chances of a candidate getting pregnant, taking into account factors such as a woman’s age and whether she has just got married.
Although this is nothing new in reality, this further survey will heighten women’s awareness to unlawful practices by employers and employers need to be wary of this and ensure that decisions they make in terms of recruitment and promotion are well documented and fair so that under scrutiny, unlawful discrimination is ruled out.
Employers should also be mindful that as disruptive as absences on account of pregnancy can be, pregnancy is a short term issue and in the longer term, women employees may add tremendous value to a business and be extremely committed to their career.
No sick pay during maternity leave
The Employment Appeals Tribunal recently overturned a tribunal’s decision regarding sick pay whilst on maternity leave.
In the case of Department of Work and Pensions v Sutcliffe the tribunal said that even though the maternity policy and employment legislation have the combined effect of excluding remuneration from an employee’s rights during maternity leave, she was entitled to sick pay. The tribunal stated that sick pay was not remuneration.
The EAT disagreed and said that, in accordance with the maternity leave policy, an employee was not entitled to receive sick pay when absent through a pregnancy-related illness during ordinary maternity leave. They said that the maternity policy was incorporated into the employee’s contract even though it was on the intranet which was not accessible by the employee.
This serves as a reminder that when an employee is on maternity leave, statutory or contractual maternity pay replaces the remuneration elements of an employee’s contract.
Department of Work and Pensions v Sutcliffe EAT0319/07
Strike out for intimidation of litigants
Employers need to be careful how they behave at a Tribunal hearing. The Employment Appeals Tribunal (EAT) recently stopped an employer defending a claim when the main witness threatened the claimant at the tribunal. The witness had threatened and swore at the claimant in a car park near the tribunal.
The Employment Tribunal initially said that it would not be possible for there to be a fair trial after this act of intimidation. The EAT agreed with this saying that a possible exception is where the intimidation happens very late in the trial in which case a fair hearing may remain a possibility.
Another recent case heard by the EAT involved the respondent threatening the claimant
outside the lifts at the Southampton tribunal. A similar conclusion was reached.
Force One Utilities v Hatfield UKEAT/0048/08/DANicholls v Corin Tech Limited and others UKEAT/0290/07/LA
Employment claims insurance - protecting your balance sheet
We currently offer a full employer protection package which combines the provision of an employment helpline with insurance against employment claims and the legal expenses associated with those claims.
You may consider that purchasing employment disputes insurance such as this, when you manage your staff well and haven’t had many employment law problems, is an unnecessary expense. You may also have taken the view that paying for relatively small claims on a rare occasion is manageable.
However, our experience is that even best practice employers are increasingly having to deal with more complex and potentially expensive claims with exposure to high awards and legal costs, particularly in relation to claims for discrimination, harassment or whistleblowing where there is no statutory cap on the amount of compensation that can be awarded. The impact of such unbudgeted financial exposure on the balance sheet for any size of organisation can be very significant.
Whilst we consider that our full employer protection package is the most effective way of fully protecting your organisation we would like to inform you that special insurance is available to cover just these peak employment claims and it may be prudent for you to consider this lower premium alternative rather than not purchasing any policy at all.
The high excess balance sheet protection has the following benefits:
• The cost to you of a dispute with an employee is capped at £25,000 or £50,000 depending which excess you select. Legal costs and any potential awards or settlements above this excess will be met by insurers (up to £150,000 or as otherwise selected)
• We are authorised to handle your claim by insurers so you can continue to use our services seamlessly under your insurance policy
• The significantly reduced premiums represent an excellent opportunity to protect your organisation from a peak financial loss
If you would like to know more please contact David Potter or Julian Middleton and we would be delighted to discuss this further with you.
If you want to know more…
Speak to us today and find out what we can do for you. Please contact any of the following:
David Potter, Cumberland Court, 80 Mount Street, Nottingham NG1 6HH
Tel: 0115 936 9389
Fax: 0115 859 9617
david.potter@freethcartwright.co.uk
Joanne Kay, Floor 2, West Point, Cardinal Square, 10 Nottingham Road, Derby DE1 3QT
Tel: 0845 634 1724
Fax: 0115 859 9617
joanne.kay@freethcartwright.co.uk
Julian Middleton, One Colton Square, Leicester, LE1 1QH
Tel: 0116 248 1115
Fax: 0845 634 2590
julian.middleton@freethcartwright.co.uk
Pat Jones, First Floor, St James Building, 61-95 Oxford Street, Manchester M1 6FQ
Tel: 0845 634 2561
Fax: 0845 634 2541
pat.jones@freethcartwright.co.uk
Vanessa DiCuffa, One Victoria Square, Birmingham, B1 1BD
Tel: 0845 634 2584
Fax: 0845 634 2576
vanessa.dicuffa@freethcartwright.co.uk