THSP Risk Management https://www.thsp.co.uk Risk Management Solutions throughout the UK and Europe Thu, 25 Apr 2019 09:53:23 +0000 en-GB hourly 1 https://wordpress.org/?v=5.1.1 95524100 Agency workers https://www.thsp.co.uk/agency-workers-2/ Thu, 25 Apr 2019 09:53:23 +0000 https://www.thsp.co.uk/?p=49958 After 12 weeks' employment, agency workers are entitled to the same basic employment terms (including pay) as if they had been hired directly by the hirer, rather than through an agency (regulation 5(1) Agency Workers Regulations 2010).

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After 12 weeks’ employment, agency workers are entitled to the same basic employment terms (including pay) as if they had been hired directly by the hirer, rather than through an agency (regulation 5(1) Agency Workers Regulations 2010). There is an exception to this rule, called the ‘Swedish derogation’, if agency workers receive guaranteed pay between contracts. If there is a breach of this rule, an agency worker can bring a claim against either the hirer, the agency or both, depending on who is responsible.

In London Underground v Amissah, an agency told London Underground (LU) that their agency workers did not have the right to equal pay because of the ‘Swedish derogation’. LU initially accepted this but then realised it was wrong. LU then delayed in providing the information needed by the agency to pay the equalised pay rates. They eventually did so and paid the agency the arrears to pass on to the workers. The agency then went into liquidation before the workers were paid.

The employment tribunal found that both the agency and LU were equally responsible for the breach. However, they said that LU did not have to pay the workers again as it would mean they had ‘paid twice’. The Employment Appeal Tribunal and Court of Appeal disagreed and said that workers should not miss out on compensation when they are not at fault. Unless there are exceptional circumstances, compensation should be the value of the breach (i.e. the underpayment) on a pound for pound basis. The case has been sent back to the tribunal to decide the exact compensation LU will have to pay, but they will have to pay 50% of the money owed to the workers, despite having paid it once before.

This case is a reminder to businesses who use agency workers to establish at the outset whether the Agency Worker Regulations 2010 apply. Relying on an agency’s assurance will not necessarily get the employer off the hook. Remember that the ‘Swedish derogation’ will be abolished from April 2020 anyway (see last month’s newsletter). Businesses using agency workers may wish to revisit their contractual arrangements with agencies as well as their working models.

If you have any concerns about equal pay, THSP’s Employment Law team work with companies to assist in managing these types of issues.  Contact thsp.co.uk.

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Religious discrimination https://www.thsp.co.uk/religious-discrimination/ Tue, 23 Apr 2019 11:43:00 +0000 https://www.thsp.co.uk/?p=49950 Employees are protected against discrimination due to their religion or belief by the Equality Act 2010. Direct discrimination is where an employer treats an employee less favourably because of their religion or belief (or their lack of it).

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Employees are protected against discrimination due to their religion or belief by the Equality Act 2010. Direct discrimination is where an employer treats an employee less favourably because of their religion or belief (or their lack of it). In Gan Menachem v De Groen, the Employment Appeal Tribunal confirmed that it is the employee’s religion, rather than the employer’s, which is relevant in a direct discrimination claim.

The employee worked in an ultra-Orthodox Jewish nursery. The nursery found out she was living with her boyfriend, which contravened the nursery’s religious principles. At a meeting, the employer told her that her behaviour risked damaging the nursery’s reputation with parents. They asked her to lie and say she was no longer cohabiting, so they could deny all knowledge to parents. She refused and was eventually dismissed. She brought various claims in the employment tribunal, including one for direct discrimination on the grounds of religion or belief.

The employee won all her claims in the employment tribunal, but the Employment Appeal Tribunal disagreed about her religion discrimination claims. The Equality Act 2010 protects individuals from discrimination on the grounds of their own religion or belief. In this case, the employee was dismissed because of her employer’s religion or belief, and the employee’s failure to comply with those beliefs, rather than her own. Her direct discrimination claim failed.

The employment tribunal in this case made its decision before the Supreme Court decision on this point in Lee v Ashers (the ‘gay cake’ case). Less favourable treatment because of an employer’s beliefs is not direct religion or belief discrimination. In this case, the employer would have treated any cohabiting employee in this way, regardless of their religion or belief.

If you have any concerns about discrimination in your workplace, THSP’s Employment Law team work with companies to assist in managing these types of issues.  Contact thsp.co.uk.

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Mental Health and Stress https://www.thsp.co.uk/mental-health-and-stress/ Wed, 10 Apr 2019 10:41:26 +0000 https://www.thsp.co.uk/?p=49859 In January 2017, Theresa May invited Paul Farmer, the Chief Executive of Mind, and Denis Stevenson “to undertake an independent review into how employers can better support the mental health of all people currently in employment”.

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In January 2017, Theresa May invited Paul Farmer, the Chief Executive of Mind, and Denis Stevenson “to undertake an independent review into how employers can better support the mental health of all people currently in employment”.

The Stevenson Farmer Report identified some core standards for employers so that “The UK could and should be one of the leading nations in relation to mental health. If the UK prioritises mental health at work, we can become global leaders in reducing stigma, improving the mental health of the population and support for those who need it, and in the process improve the UK’s productivity.”

According to the Stevenson Farmer report the cost to employers of mental ill-health is between
£33 – 42 billion every year, whilst the cost to government is estimated to be between £24 and 27 billion.  In total the cost of poor mental health to the UK economy is somewhere between £74 – £99 billion every year.

April is Stress Awareness month and THSP are looking at ways we can advise our customers on how they can reduce some of this exorbitant cost in their workplaces.

Abigail Hirschman, a trained psychologist from ACAS recently explained that the seriousness of mental health in the workplace had been brought home to them by the number of employees contacting them for help.  She and her team came up with a goal of developing positive wellbeing and productive workplaces, through three simple principles:

  • Employers are visibly committed to positive mental health
  • Managers are informed and open to conversations with their staff
  • Employees are self-aware and ask for help when needed

All three levels have important roles to ensure that the goal is achieved.

There are many things employers can do to alleviate stress in their workplaces, reducing the incidence of poor mental health issues.  These include providing staff (and managers) with a confidential telephone helpline that is available at any time to talk about their problems.  This is known as an Employee Assistance Programme (EAP).

THSP has made a commitment to its customers by partnering with a leading provider of EAP services, Health Assured, to provide an EAP service.  This programme has been tried and tested by our company for many years with great success. 

All it takes is for managers to open a conversation.  If they identify that people may be feeling pressured, or if the employee indicates they are struggling with something, that they give the person the time and privacy to call someone and talk about it.  It could be they just need a simple conversation, or perhaps need counselling.  Health Assured’s EAP gives up to six face-to-face counselling sessions per issue per year.

Life is tough these days, and choices are many.  The day to day events of births, marriages, divorces and deaths, buying or moving home, financial worries, or child / elder care, all have huge impact on people and their relationships with others, adding stress to their already busy lives.  Having someone on the end of a phone to help put some perspective on things, to guide people through their options and engender a sense of calm, is invaluable in reducing their stress levels.

Talk to one of our team about how an EAP could benefit you and your staff.  For only £1 per person per month plus VAT, you’ll have invaluable support for you and your team.  It also covers their spouse/partner and children living in their homes under the age of 24.

Whatever is causing stress in your workplace that could impact people’s mental health, it’s worth tackling it head-on before it’s too late.  Be proactive – call us on 03456 122144 and we’ll help you to reduce absenteeism, keep staff focussed and reduce long terms effects of stress.

Chris Ivey
Consultant Director, Health and Safety

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Transfer of Undertaking – TUPE https://www.thsp.co.uk/transfer-of-undertaking-tupe/ Mon, 08 Apr 2019 13:26:45 +0000 https://www.thsp.co.uk/?p=49853 TUPE has been high on our case work at THSP Risk Management this last couple of months, and has made the Court of Appeal.

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TUPE has been high on our case work at THSP Risk Management this last couple of months, and has made the Court of Appeal. We are often asked if employees can be dismissed because of the transfer. It will usually be automatically unfair, unless there is an economic, technical or organisational (ETO) reason for it (Regulation 7(1) TUPE 2006). The Court of Appeal has recently looked at whether a dismissal for personal reasons at the time of a TUPE transfer can get the employer off the hook for unfair dismissal.

In Hare Wines v Kaur, the employee worked for a business which was taken over by Hare Wines. She had a poor relationship with a colleague, Mr Chatha, who was going to become a director of Hare Wines. The employee was dismissed before the transfer because the new company ‘did not want her’ due to this difficult relationship. Taking these facts into account, the employment tribunal decided that the transfer was the sole or principal reason for her dismissal, which was automatically unfair. The employer appealed, arguing that the sole or principal reason for the dismissal was the difficult relationship, not the transfer.

Both the Employment Appeal Tribunal and the Court of Appeal disagreed. The Court of Appeal said one of two scenarios applied: either the employee was dismissed because of the poor relationship and the TUPE transfer was coincidental; or Hare Wines did not want her on the books because of the poor relationship (which was transfer related). The employment tribunal had been entitled to decide that it was the latter which applied. The transfer was the principal reason for the dismissal, if not the sole reason.

In this case, the employee was dismissed on the day of the transfer. Close proximity between a dismissal and transfer will not be conclusive but is strong evidence in the employee’s favour. The Court of Appeal also noted that the difficult relationship had existed for some time without the employee being dismissed. That only happened when the transfer took place, at Hare Wine’s request. Employers should take great care when dismissing for non-transfer reasons when they are close to a transfer.  If this affects you, please call us on 03456 122144.

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Stress causes up to 40% of all work-related illness https://www.thsp.co.uk/stress-causes-up-to-40-of-all-work-related-illness/ Fri, 05 Apr 2019 08:01:22 +0000 https://www.thsp.co.uk/?p=49840 The headline in the metro last Friday (29/03/19) read “A nation of pill poppers”. It went on to explain that the use of anti-depressants has almost doubled in the past ten years.

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The headline in the metro last Friday (29/03/19) read “A nation of pill poppers”.   It went on to explain that the use of anti-depressants has almost doubled in the past ten years.  Whilst the article suggested that Brexit and austerity may have contributed to the spike in depression, it is also likely that a rise in awareness of mental health problems has also contributed.

According to the HSE, stress causes up to 40% of all work-related illness. Whilst it is not an illness in itself, prolonged stress can lead to an array of mental and physical illnesses, including anxiety and depression.  Stress related illnesses account for more than 14 million lost work days every year and the cost to the UK economy is calculated as being somewhere between £74 and £99 billion every year.

Whilst pressure at work does not always cause stress, how we deal with it varies from one person to another.  What is common however is the causes of workplace stress.  The HSE believe that these causes can be broken down into six categories:

  • Demands –workload, work patterns and the work environment
  • Control – how much say a person has in the way they do their work
  • Support – through encouragement, sponsorship and the resources provided by the organisation, line management and colleagues
  • Relationships– both positive working to avoid conflict and dealing with unacceptable behaviour
  • Role – whether people understand their role within the organisation and whether the organisation ensures that they do not have conflicting roles
  • Change – how organisational change (large or small) is managed and communicated in the organisation.

Due to the number of people contacting ACAS for help, they developed a framework for positive mental health.  It identifies the roles for employers, managers and individuals, and sets a shared goal of positive wellbeing and productive workplaces.

Work is clearly not the only cause of stress. However, the effects are certainly felt in the workplace.  It is therefore common sense that employers do all that they can to help their employees by providing advice and guidance when the pressures of day to day life get too much.

It is for this reason that THSP have provided an Employee Assistance Programme (EAP) to our staff for more than ten years.  

You can have a similar level of support for your employees for only £1 per person per month plus VAT.  Call us on 03456 122144 and speak to one of our staff.

Chris Ivey
Consultant Director, Health and Safety

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Update on the Personal Protective Equipment (Enforcement) Regulations 2018 https://www.thsp.co.uk/update-on-the-personal-protective-equipment-enforcement-regulations-2018/ Wed, 03 Apr 2019 12:11:26 +0000 https://www.thsp.co.uk/?p=49829 Following the implementation of the Personal Protective Equipment (Enforcement) Regulations 2018 which provide an enforcement and penalty regime for (EU) 2016/425, the one-year transitional period for full implementation ends on 21st April 2019.

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Following the implementation of the Personal Protective Equipment (Enforcement) Regulations 2018 which provide an enforcement and penalty regime for (EU) 2016/425, the one-year transitional period for full implementation ends on 21st April 2019. 

PPE designed and manufactured in accordance with the old Directive 89/686/EEC will no longer be allowed to enter the market after this date.  However, products with an EC type examination certificate will remain valid until 21st April 2023, unless the state of the art or standard has changed, the certificate expires before that date or changes have been made to the products safety features.

The Regulation changes are designed to improve ownership of those in the supply chain by clearly defining their legal obligation and to strengthen the product type approval process, improve market surveillance and increase the requirements on certain Personal Protective Equipment (PPE) categories.

For end users Regulation (EU) 2016/425 does not directly apply, Employers who select and use PPE within the organisation are covered by the Personal Protective Equipment at Work Regulations 1992, which remain unaltered.

Purchasers of PPE should ensure that the PPE suppliers they use meet the new requirements and be aware that the supply chain may still supply products using the old directive accompanied with a current EC type examination certificate, however the products must be compliant with the requirements of the regulation and an EU declaration of conformity being available either with the product or on an identified website.

Purchasers should be aware of the products they use, and the standards they have been tested to.  This will make them better informed on what to look for when purchasing future PPE.

Derek Fisher
Safety, Health and Environmental Consultant

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Statutory Pay Increases from April 2019 https://www.thsp.co.uk/statutory-pay-increases-from-april-2019/ Fri, 29 Mar 2019 07:47:52 +0000 https://www.thsp.co.uk/?p=49788 The government has published its draft Social Security Benefits Up-rating Order 2019. From the 1st April 2019, most social security payments, such as maternity, sick and parental payments increase along with the minimum wage.

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The government has published its draft Social Security Benefits Up-rating Order 2019. From the 1st April 2019, most social security payments, such as maternity, sick and parental payments increase along with the minimum wage. Here are the details you may need to familiarise yourself with, but if you have any questions then speak to one of our employment law experts on 03456 122 144.

From the 1st April 2019 The National Minimum Wage will be:

Category of worker Hourly rate
Aged 25 and above (national living wage rate) £8.21
Aged 21 to 24 inclusive £7.70
Aged 18 to 20 inclusive £6.15
Aged under 18 (but above compulsory school leaving age) £4.35
Apprentices aged under 19 £3.90
Apprentices aged 19 and over, but in the first year of their apprenticeship £3.90

From the 7th April 2019 Statutory Maternity, Paternity, Adoption and Shared Parental Pay will be:

Type of payment or recovery
SMP – weekly rate for first 6 weeks 90% of the employee’s average weekly earnings
SMP – weekly rate for remaining weeks £148.68 or 90% of the employee’s average weekly earnings, whichever is lower
Statutory Paternity Pay (SPP) – weekly rate £148.68 or 90% of the employee’s average weekly earnings, whichever is lower
Statutory Adoption Pay (SAP) – weekly rate for first 6 weeks 90% of employee’s average weekly earnings
SAP – weekly rate for remaining weeks £148.68 or 90% of the employee’s average weekly earnings, whichever is lower
Statutory Shared Parental Pay (ShPP)– weekly rate £148.68 or 90% of the employee’s average weekly earnings, whichever is lower
SMP/SPP/ShPP/SAP – proportion of your payments you can recover from HMRC 92% if your total Class 1 National Insurance (both employee and employer contributions) is above £45,000 for the previous tax year

103% if your total Class 1 National Insurance for the previous tax year is £45,000 or lower

THSP’s Employment Law team are always happy to discuss matters relating to staff, including pay and benefits.  Our HR Management Software, TRIBE, can also assist you to keep track of your people and their individual requirements.  Call us and ask for a demonstration. 03456 122144 thsp.co.uk

Andrew Wilson
Consultant Director, Employment Law

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Non-disclosure agreements https://www.thsp.co.uk/non-disclosure-agreements/ Tue, 19 Mar 2019 14:43:27 +0000 https://www.thsp.co.uk/?p=49685 In the year of the #metoo campaign, there have been numerous headlines about the use of non-disclosure agreements (NDAs), often involving high profile people.

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In the year of the #metoo campaign, there have been numerous headlines about the use of non-disclosure agreements (NDAs), often involving high profile people. NDAs are used to ensure past misdemeanours stay private. Many settlement agreements contain confidentiality provisions preventing employees talking about the deal and the events leading up to it.

The Women and Equalities Committee has launched an inquiry into the use of NDAs in discrimination and harassment cases. The enquiry will cover the use of NDAs in all forms of discrimination and harassment, not just sexual harassment.

The Committee will look at whether NDAs are more prevalent in certain types of discrimination. It will investigate whether NDAs should be banned or restricted in these types of case and whether safeguards should be put in place to prevent misuse. The enquiry will also ask questions about the role of internal grievances procedures as well as the responsibilities of boards and directors in relation to NDAs.

The Committee’s job is to examine how well the government is doing its job in relation to equality issues. It can make recommendations if it feels the government’s performance falls short. We will not know the outcome of the inquiry until well in 2019. In the meantime, employers should take advice on the use of NDA and confidentiality clauses in settlement agreements and ensure employees do the same.

If THSP can help with any Employment Law or HR issues please call us on 03456 122144

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Employee Happiness https://www.thsp.co.uk/employee-happiness/ Wed, 13 Mar 2019 14:42:35 +0000 https://www.thsp.co.uk/?p=49670 Lord Price (who used to run John Lewis and Waitrose) is encouraging the government to focus on employee happiness after Brexit.

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Lord Price (who used to run John Lewis and Waitrose) is encouraging the government to focus on employee happiness after Brexit. He has surveyed workplace happiness for several years via his website Engaging Works. His research apparently shows that the UK is ranked tenth in the world for workplace happiness. Austria came out on top.

Lord Price says his data shows that there is a link between workplace happiness and UK productivity. He points to high sickness absence and staff turnover in the UK. He wants the government to issue a ‘happiness strategy’ to help counter these trends.

In theory, it sounds lovely doesn’t it? However, Lord Price’s ideas include compelling employers to share profits with employees, put employees on boards and provide more information to employees on company performance. He also thinks that it should be mandatory for businesses to upskill employees and retrain them. This might sound ideal but is not always possible or desirable.

Post-Brexit, happiness for everyone might depend more on the government securing a Brexit deal, rather than a happiness charter. Once we’ve secured that, the quest for happiness all round seems much more achievable.

If THSP can help with any Employment Law or HR issues please call us on 03456 122144

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Discrimination and the burden of proof https://www.thsp.co.uk/discrimination-and-the-burden-of-proof/ Tue, 12 Mar 2019 11:14:52 +0000 https://www.thsp.co.uk/?p=49642 One of the most difficult aspects of a direct discrimination

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One of the most difficult aspects of a direct discrimination claim is the burden of proof and the circumstances in which the employer will be asked to prove that no discrimination has occurred. In Efobi v Royal Mail Group Ltd the Court of Appeal emphasised that it was not enough for the employee merely to complain about his or her treatment and then require the employer to explain the reasons for it. Before any burden is placed on the employer to explain its behaviour, the employee must prove facts from which the Tribunal could infer that the treatment complained of amounted to discrimination. The employee in that case had applied for 20-30 internal posts but had been rejected for each. He brought a Tribunal claim alleging race discrimination but did not seek disclosure from the employer of the racial origins of the successful candidates or specific evidence as to why each application was rejected. He assumed that the employer would call such evidence of its own accord, but it decided not to. Instead the employer persuaded the Tribunal that the reason Mr Efobi had not been offered any of the positions was that his applications were of a low standard, and not tailored to the particular posts he was applying for. The Tribunal dismissed the race discrimination claim, but the Employment Appeal Tribunal (EAT) held that it should have given more weight to the employer’s failure to explain how each individual recruitment decision was taken and specifically why Mr Efobi was rejected for each.

The Court of Appeal has now restored the Tribunal’s decision. There was no burden on the employer to explain its treatment of the employee until he had established that there was a ‘prima facie’ case of discrimination. In the absence of any evidence that race was part of the reason that his applications were rejected, the claim inevitably failed.

If THSP can help with any Employment Law or HR issues please call us on 03456 122144

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