Pannone HR Blog feed

Plans for extended maternity rights

2010-03-11 00:00:00

It has been reported that draft legislation has been passed by a committee of the European Parliament, which extends maternity leave across Europe from 14 weeks to 20 weeks on full pay.

In the UK women get 52 weeks statutory maternity leave (26 weeks Ordinary Maternity Leave and 26 Additional Maternity Leave) of which the first 6 weeks are on 90% pay, followed by 33 weeks on Statutory maternity pay, which is currently 124.88 a week.

Ministers have expressed concerns over the extension and are reported as stating that they consider it unnecessary and risky particularly in the current economic climate. It is generally felt that the existing maternity pay systems employed in the UK are already generous and the amendments will only serve to complicate and upset the system. There were comments that an increase in paid maternity leave could upset the delicate balance between the needs of businesses and workers at a time when many companies cannot afford it.

Of more concern though is the widely held view that employers may avoid taking on women if the extension to maternity rights is passed because of the potential additional expense. Similar comments have been made in the past by smaller businesses who felt that the increase in maternity/paternity/family friendly legislation made employing women of a certain age too expensive for them.

Whilst one can understand that in the current economic climate businesses are trying to avoid unnecessary expenses, it is extremely unfortunate that some businesses see the payment of fair maternity pay and maternity rights as an unnecessary expense. If employers reject female candidates for this reason, they are missing out on a large pool of talent and may be the poorer for it in the long term.

Bullying at Work: lessons to be learned from the allegations against Gordon Brown

2010-03-03 00:00:00

The recent media controversy about Gordon Browns alleged bullying of staff at Number 10 Downing Street has thrown the spotlight on an important issue for every employer: how to deal with bullying in the workplace?

The two main forms of workplace abuse are harassment and bullying. Generally speaking, a harasser demeans an individual because of their age, sex, race, disability, sexuality or religion whereas a bully may be offensive, insulting or threatening for no apparent reason. Either form of abuse can be distressing for the victim.

The abuse itself takes many forms. Sometimes it is very obvious e.g. sexual advances, verbal abuse or violence, but it can also be less obvious e.g. gossip, ridicule and threats about job security. Work pressure can also be a factor; an employee may feel bullied into taking on more work than they can manage in terms of quantity or complexity or may feel pressured into working increasingly longer and longer hours. The common theme is that the behaviour is unwanted by the victim.

It is, however, important to appreciate that just because an employee alleges they have been bullied, this does not necessarily mean that they have been. We frequently see allegations of bullying made in circumstances where an employee is undergoing a process of informal or formal performance management. Provided the process is handled fairly, employers should not shy away from dealing with issues concerning an employees performance or capability.

Bullied employees, who feel that the problem is not properly addressed by their employer, may bring discrimination claims if the bullying is on prohibited grounds e.g. race (for which compensation is unlimited), may resign and claim constructive dismissal or claim that they have suffered a mental injury because their employer has failed to care for their health and safety.

Much can however be done to prevent and deal with workplace bullying. Following a few basic steps can help an employer to defend costly claims made by a bullied employee:

Make sure you have an equally opportunities policy and a dignity at work policy which covers all forms of abuse including discrimination on the grounds of sex, race, age, religion and belief, disability and sexual orientation;

Provide training on bullying and harassment to new starters and to existing employees on an ongoing basis;
Have dedicated grievance policies and procedures so that individuals have ways to report bullying;
Offer confidential counselling helplines and support employees who have made complaints;
Fully and promptly investigate complaints, ideally use trained individuals to investigate and keep detailed records for future reference;
If appropriate, impose disciplinary sanctions upon the perpetrator of the abuse;

How are allegations of bullying dealt with in your workplace? Do you have any tips for other employers?

Guidance on fit-notes for employers published

2010-02-25 00:00:00

The Department of Work and Pensions has published guidance to help employers use the new fit note and assist more staff to return to work following periods of ill health. The guidance has been published after extensive consultation with medical representatives and business groups and is intended to help employers understand the information that will be provided on the notes and how this will affect return to work policies.

The new fit notes, which are set to replace the traditional doctors sick notes, will be implemented on 6 April and will ask GPs to state whether individuals are 'unfit to work' or 'may be fit for work taking account of the following advice'.

Doctors will then need to list whether the employee would benefit from a phased return to work, altered hours, amended duties or workplace adaptations. However, the note does not required doctors to go into detail regarding which activities an employee can carry out at work. The guidance states that the GP advice in the fit note is not binding and it is up to the employer how they act on the advice.

The wording of the notes may well lead to disputes between employers and staff about what constitutes suitable work following a period of sickness absence. The new guidance states that if an employer does not understand the advice on the fit note, they should discuss it with the employee in question, and if the matter is not resolved, they can then contact the GP in person. There are concerns over the costs implications and practicalities of this as busy GPs may not be able to respond to queries immediately and are likely to make a charge when they do respond.

The DWP claims fit notes will cut the cost of sick leave for employers and benefit the UK economy by an estimated 240m over the next 10 years. Lord McKenzie, DWP minister, said: The fit note will reduce the costs employers often have to bear when people are off sick for a long time. We know work is good for peoples health. With the right support in place, employers and doctors can work with employers to help them get back to work sooner.

What do you think of the scheme? Do you think it will help you to get staff back to work sooner after a period of ill-health?

Is any company, anywhere in the world, safe from the UK Pensions Regulator?!

2010-02-23 00:00:00

The UK Pensions Regulator itself seems to think not and with good reason. It has been reported today that it is claiming up to 2.1 billion from Nortel Networks Limited, the Canadian communications company which has a UK subsidiary - Nortel Networks UK Limited - with a final salary occupational pension scheme in deficit. Nortel Networks Limited, which filed for creditor protection in Canada in January 2009, and its creditors are now resisting the claim in a hearing scheduled for this Thursday in the Ontario Superior Court. Nortel Networks UK Limited also went into administration in January 2009.

It appears that the UK Pensions Regulator has revealed its intention to impose a financial support direction (which is an order to a group company to put in place financial support in relation to a deficit in a final salary occupational pension scheme operated by another group company) on Nortel Networks Limited. The direction would require Nortel Networks Limited to put in place financial support in relation to the deficit in the final salary occupational pension scheme operated by Nortel Networks UK Limited. This could include the provision of additional financial resources by Nortel Networks Limited to that scheme.

In 2009, the UK Pensions Regulator persuaded a court outside of England and Wales - a US Court - to recognise a financial support direction for the first time. In that case, the UK Pensions Regulator had imposed a financial support direction on Sea Containers Limited (a company which is registered in Bermuda). Recognition of the UK Pensions Regulators powers by the Ontario Superior Court would further reinforce its confidence and willingness to pursue companies around the world for the pensions liabilities of UK subsidiaries.

For those UK subsidiaries which operate final salary occupational pension schemes and have overseas parent companies, do those parent companies fully appreciate their exposure? I suspect that many do not and could well do with it being highlighted to them. For those UK companies which operate final salary occupational pension schemes, do those UK companies appreciate that the ability and willingness of the Pensions Regulator to pursue overseas parent companies makes UK companies a less attractive investment proposition? This is yet another reason why UK companies should carefully manage their final salary pension liabilities.

Holiday leave lost due to illness may be carried over to next year

2010-02-19 00:00:00

An employment tribunal has held that employees should be allowed to carry over annual leave entitlement to the next year when they have been too ill to take it. This is the first employment tribunal to look at paid holiday and sick leave since two major decisions from the European Court of Justice were given on the issue last year, Pereda v Madrid Movilidad and Stringer v HMRC.

In the present case, Shah v First West Yorkshire, the Claimant broke his ankle which resulted in him taking three months off work. Upon his return, he asked whether he could claim back four weeks holiday that had been previously booked and that fell within his period of sickness absence. Six weeks later, the company replied and his request was refused.

The tribunal judge ruled: "Shah is entitled to take the holidays which he was prevented by ill-health from taking in March of 2009 at some subsequent time in the following leave year."

Last year, the cases of Pereda and Stringer ruled that, in certain circumstances, holiday entitlement should be allowed to be taken in the next annual leave year, despite the Working Time Regulations specifying it is unlawful to carry over more than eight days per year per full-time employee.

In Pereda v Madrid Movilidad, the ECJ ruled that workers who were ill during their holiday should be allowed to reschedule their leave, even it if meant that this would be within the next leave year. Earlier in the year, in the case of Stringer v HMRC, it was decided that workers continued to accrue holiday pay during sick leave, and that holiday could either be taken during sick leave or be carried forward in such cases.

At present, employers are not currently obliged to allow workers to carry any annual leave over to the next year and the judgment of Shah v First West Yorkshire will not be not binding on other tribunals. However, this decision may indicate that employers wishing to engage in good practice should allow leave to be carried forward due to illness.

What is your current policy in relation to sickness during holiday leave? Would you consider changing your policies so that they are in line with recent decisions or will you await firmer guidance on the issue?

Serial Litigant exploiting vulnerable Employers

2010-02-19 00:00:00

It has recently been revealed that a serial litigant is believed to have earned thousand of pounds by submitting age discrimination claims against companies who placed advertisements using the words school leaver or recent graduate.

The serial litigant did not apply for the jobs he simply submitted his claim online and then contacted the companies requesting a settlement from them in return for him withdrawing his claim and dealing with closing formalities. It is reported that he initiated claims against at least 60 firms over three years in addition to which he has had claims struck out in London, Exeter, Bedford, Ashford, Birmingham, Bristol, Liverpool, Watford and Southampton.

He has relied on the fact that many employers would rather pay a relatively small amount and effectively get rid of a claim rather than spend the many thousands it would cost to defend it, seeing as even if they were successful there will no benefit to them. It is worth noting that costs orders have been made against this litigant but he simply ignores them.

Not only do the above facts highlight the ease with which the tribunal service can be exploited by unscrupulous people, it also illustrates the significance of carefully worded advertisements that do not contravene equal opportunity legislation.

Cash bonuses for staff whistleblowing about IT piracy

2010-02-15 00:00:00

I was interested to read recently that the Business Software Alliance (BSA) offers rewards of up to 10,000 to whistleblowers who report their employers use of illegally copied or under-licensed IT software.

Last year the BSA received 420 reports from whistleblowers. Disgruntled IT staff are a common source of BSA whistleblowers, including those who have been denied pay rises or made redundant during the recession. The BSA operates a strict confidentiality policy, meaning that whistleblowers are guaranteed anonymity and the whistleblower is not obliged to report the alleged wrongdoing to the employer first. However, due to loopholes in the Public Interest Disclosure Act regime, a whistleblower may well lose the wider protection it affords against detriment and dismissal if they do not report the problem to the employer first.

According to the BSA, which is funded by technology companies including Microsoft, Adobe, McAfee, IBM and Siemens, an estimated 1.5bn per year is lost from illegal copying, sharing or distribution of business software in the UK alone. Small to medium sized businesses are the worst culprits; they often do not really appreciate that when they purchase business software, they are not buying the software as such, they are actually buying one or more licenses to use that software. A business which under-represents the number of users that it has will be guilty of illegal under-licensing. In 2008, the BSA recovered around 2m in payments from companies caught illegally using software.

Do you think the BSA should offer financial incentives to whistleblowers in this manner?

Equality Bill: religious organisations and sexual orientation

2010-02-04 00:00:00

Under the current sexual orientation regulations, religious organisations can restrict employment for the purposes of an organised religion to those of a particular sexuality (usually heterosexual) to comply with religious doctrine or to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers due to the nature of the employment and the context in which it is carried out.

The Equality Bill, which is currently going through its final stages in parliament, sought to define the meaning of employment for the purposes of an organised religion so that the exemption would only apply if the employment wholly or mainly involves...leading or assisting in the observance of liturgical or ritualistic practices of the religion, or...promoting or explaining the doctrine of the religion (whether to followers of the religion or to others).

Religious organisations took the view that this would severely restrict their freedom of choice over who to employ. The Bill was debated in the House of Lords last week and, in a debate which saw an unusually large turnout, three amendments were passed by the Lords in an attempt to return to the status quo. The Government's attempt to introduce a re-worded clause to "provide more clarity and greater legal certainty" about the scope of the exception was defeated. The debate intensified when, on Monday, the Pope said that the Bill violated natural justice and urged bishops and Roman Catholics to fight it.

It now seems from reports that the Equalities Minister, Harriet Harman, has backed away from the confrontation; she has made it clear that she will not bring back the amendment when the Bill returns to the Commons.

However, although the status quo will be maintained in the Equality Bill, this is unlikely to be the end of the story. The gay rights group, Stonewall, has said that it will support the case of any person, refused employment in a religious organisation on the grounds of their sexuality, so it is likely that we will see more case law on this point in the future.

National Apprenticeship Week

2010-02-03 00:00:00

This week (1^st to 5^th February 2010) is National Apprenticeship Week.The week, which is organised by the National Apprenticeship Service (NAS), aims to celebrate the talents and skills of apprentices and recognise their employers.

The Government aims to increase the number of apprenticeships available in the future, seeing it as a crucial way of reducing the proportion of 16- to 18-year-olds not in education, employment or training (NEETs). The Prime Minister, Gordon Brown has said: we will continue to expand apprenticeships with the ambitious goal that within the next 10 years, one in five young people should be able to take up an apprenticeship. And we are committed to providing an apprenticeship place for every suitably qualified 16-18 year old from 2013 and increasing the number of advanced apprenticeships so that those in vocational learning have clear routes to progress in their careers.

An apprenticeship can be a positive experience for both the apprentice and the employer. Many employers recognise that a failure to train young people starting out in their careers will lead to skills gaps and recruitment problems later on. However, it is important for employers new to apprenticeships to understand that taking on an apprentice is not like employing any other employee; an employer has specific obligations and duties towards an apprentice which are different from those held towards other employees.

In particular, an apprenticeship is usually for a fixed term which cannot easily be terminated early. Interestingly, the Court of Appeal has confirmed that modern apprenticeships, which involve the employer, the apprentice and a third-party training provider, can still be a common law contract of apprenticeship. Premature termination of a contract of apprenticeship may result in compensation for loss of wages, loss of training and loss of status. Damages for breach of a contract of apprenticeship are therefore potentially much greater than damages for breach of a contract of employment. For example, in 2006 an apprentice was reportedly awarded 24,000 for breach of contract/unfair dismissal after he was sacked before the end of his apprenticeship contract.

Does your business employ apprentices?

If so, have you found this to be a positive or negative experience?

Do you have any tips for other businesses thinking about taking on their first apprentice?