Pannone HR Blog feed

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?

The high cost of failure to conduct health & safety risk assessments

2010-02-02 00:00:00

Todays news that a mental health charity has been fined 30,000, plus 20,000 costs, for failing to protect the health and safety of their employee serves as a timely reminder of the importance of conducting regular robust risk assessments.

Ashleigh Ewing, 22, was stabbed to death by a paranoid schizophrenic who she was visiting at home within her role as a care worker for the Sunderland based charity, Mental Health Matters.

Prosecutor Kevin Donnelly said Miss Ewing's death was not caused by Mental Health Matters but that Mental Health Matters failed to identify and respond to the increasing risks to which Ashleigh Ewing was exposed in the course of her employment. The court was told that there was no guarantee Miss Ewing would not have been killed had risk assessments been carried out, but that the likelihood could have been reduced.

The case highlights the need to keep health and safety risk assessments under regular review. Pam Waldron of the Health and Safety Executive said: While Mental Health Matters had procedures in place, paperwork doesn't save lives. Those procedures and policies have got to be followed through.

John Gollaglee Head of the Health Safety and Environmental Team at Pannone LLP commented: I would strongly advise companies and organisations that place their workforce in contact with potentially violent or dangerous individuals to take a step back to review the controls they have in place following this terrible tragedy. This appears to be a set of circumstances where the dangers presented by certain clients were such that regular focussed and robust reviews of risk may have assisted in averting the loss of life and demonstrated that the charity was meeting its statutory obligations to protect - in so far as reasonably practical - against the risks inherent in its undertaking.

To view Johns profile click here

More powers to Tribunals for Whistleblowers

2010-01-28 00:00:00

The Department for Business, Innovation and Skills has clarified its proposals to give Employment Tribunals the power to pass on whistleblowing (Public Interest Disclosure Act 1998) allegations arising during claims to a prescribed regulator.

According to the proposals the tribunal claim form (ET1) is to be amended so that claimants will be invited to tick a box, indicating whether their claim includes allegations of a protected disclosure and, if so, that they wish the tribunal to refer the allegations on. Where this box is ticked and the tribunal identifies a protected disclosure, will the information be passed on to one or more relevant authorities on a prescribed list. The Tribunal Rules of Procedure 2004, will be amended to allow for such disclosure of otherwise privileged information and both parties to the tribunal proceedings will be contacted in writing by the tribunal to confirm that a relevant authority has been contacted and that a copy of the ET1 (or relevant extracts) has been disclosed.

However, this proposal poses a number of problems. Firstly, it has been my experience to date that whilst employees are aware of facts involving their employers which are of concern, they may not be aware that these facts constitute a protected disclosure and so, may not elect to tick the box. Alternatively, we could see the complete opposite where employees simply use this as an opportunity to list various misdemeanours of their employers' in the hope that one of them qualifies as a protected disclosure. There is also clearly scope for employees to use the threat of "ticking the box" as a bargaining point in order to persuade their employer to settle the potential claim.

So, whilst there is some benefit in allowing tribunals to take appropriate action where employers are conducting their business in an inappropriate manner there is also the possibility that employees will use such information as a way of getting bigger pay-outs from their employers, which in turn means that employers can carry on running their business improperly.

Could it be that the proposal needs to go a few steps further in, giving a list within the form of what types of conduct would be covered and also empowering tribunals to report matters of concern to a Regulator regardless of whether a case settles or not? Or should the report be made only at the point at which there is a finding by the tribunal that a protected disclosure has been made?

I would be very interested to hear views from both sides of this argument!

Plans revealed for 6 months paternity leave

2010-01-28 00:00:00

Plans to change paternity leave entitlement were unveiled by Gordan Brown last year and this week the government has announced proposals to increase paternity leave from two weeks to six months.

The plans could come into force from April next year and will allow mothers to transfer up to half of their year-long maternity leave entitlement to their partner during the last six months. Ministers hope that the principle of sharing leave between parents will help achieve the goal of a more flexible workforce and give parents more options.

Currently fathers are entitled to 2 weeks paid leave while mothers can take up to 52 weeks, 39 of which are paid.

The government has sought to reassure small businesses by saying that less than 1 per cent of them would be affected by the change. The take-up is likely to be low with less than 1 in 16 fathers expected to leave work for a period of full time child care.

General Secretary for the TUC (Trade Union Congress), Brendan Barber said "As both parents work in most modern families, it's right that mums and dads should decide who looks after their baby, rather than the state deciding for them by only paying the mother for parental leave.

Although an extension to paternity leave would, according to Gordon Brown, give couples more freedom, dads more rights and children more time with the two people who love them most, it has been met with some criticism given the fragile economic climate. David Frost, the director-general of the British Chamber of Commerce has called for a three year suspension to changes in employment law while firms cope with the downturn.

According to Working Families, 4 in 10 fathers do not take paternity leave with 72 % maintaining that they cannot afford it.

As an employer, would you encourage male employees to take up to six month paternity leave?

Disciplinary Hearings: professionals have a right to legal representation

2010-01-27 00:00:00

The Court of Appeal has confirmed that professionals in the public (and possibly the private) sector are entitled to legal representation at disciplinary and appeal hearings if the hearing might impact upon their right to practise their profession in the future (G v X School).

G was a teaching assistant at X school. He was alleged to have kissed a 15 year old boy. The school governors conducted a disciplinary hearing and dismissed him, reporting his dismissal to the Independent Safeguarding Authority (ISA) so that it could determine whether he should be placed on a 'barred' list of those unsuitable to work with children.

The Court of Appeal, following non-binding comments made in its earlier decision in Kulkarni v Milton Keynes Hospital NHS Trust, found that G was entitled to legal representation at the disciplinary and appeal hearings under Article 6 of the European Convention of Human Rights (ECHR) because the right to practise a profession was a civil right or obligation, being listed by the ISA would fundamentally limit G's ability to practise his profession and the school's internal process would have a substantial influence or effect on the decision-making of the ISA.

It is not yet clear which professions the principle applies to. Kulkarni involved a doctor and G v X School involved a teaching assistant. It seems likely that the principle might extend to any professional whose ability to practice their profession in the future is at risk because of the disciplinary proceedings; that is, that they may lose not just the immediate job that they hold, but also their ability to continue to work in their chosen profession at all. However, due to the technicalities of European law, it is not yet clear whether the principle will extend, without a need for legislative change, to professionals in the private sector.

Do you think legal representation at disciplinary hearings will cause practical problems?

Would you, as an employer, instruct your own legal representative to attend a disciplinary hearing if the employee has one?

Annual Leave: EAT says employees must use it or lose it

2010-01-26 00:00:00

The Employment Appeal Tribunal (EAT) has confirmed that workers must comply with their employers rules for taking annual leave (or, in an absence of such rules, the notice provisions of the Working Time Regulations). This is the case even if the worker stands to lose any unused holiday entitlement at the end of the leave year, because they have failed to follow the rules (Lyons v Mitie Security Ltd).

The EAT made it clear that an employee could lose the right to take untaken leave if the rules governing the giving of notice were not followed or if the employer refused the request on other grounds e.g. staffing requirements leaving insufficient time to take the leave before the expiry of the leave year. However, the EAT cautioned that employers must not operate such rules in an unreasonable, arbitrary or capricious way so as to deny any entitlement lawfully requested.

However, it seems likely that this use it or lose it approach will not apply to situations when the employee is unable to take their holidays because of ill health (Stringer and others v HM Revenue & Customs /Pereda v Madrid Movilidad SA). The ECJ has made it clear that sick employees can choose to carry untaken holiday over into a subsequent holiday year and any tribunal considering the question of carry over in the future will need to decide whether they can interpret the WTR to give effect to Stringer/Pereda.

Similarly, it seems likely that this use it or lose it approach will not apply to situations when the employee is unable to take their holidays because of maternity leave. The judgment of the ECJ in Merino Gomez v Continental Industries del Caucho SA, suggested that it would amount to sex discrimination if a woman were to lose her entitlement to statutory annual leave as a result of going on maternity leave. This suggests that employers have a duty to facilitate the worker taking all her annual leave before she goes on maternity leave or to permit her to carry it over.

Does your business operate a 'use it or lose it' approach to holidays?

How are you dealing with leave for employees on maternity or long term sick leave?

The growth of workplace bullying in the recession climate

2010-01-13 00:00:00

Surveys published recently suggest that workplace bullying has increased. Across different jurisdictions, stress and depression contributes to 13.7m working days lost. A large proportion of these symptoms are due to bullying.

One workplace bullying charity (the Adrea Adams Trust) defines the problem as an abuse of power or position. It is offensive discrimination through persistant, vindictive, cruel or humiliating attempts to undermine, criticise, condemn, and to hurt or humiliate an individual or group of employees

Unison has conducted a survey which reports more than one-third of workers saying they were bullied in the past six months. This is double the number a decade ago. Dave Prentis, General Secretary of Unison has said this statistic is shocking.

What are the reasons for the increase in workplace bullying? It may be that employees are more aware of it as a concept, and are therefore better able to identify it. It may be that, as part of the growing litigation culture, people are able to list bullying with their other workplace complaints at the Tribunal.

An article in the Guardian recently cited academics concerns that economic conditions are an important factor. Managers may be bullying people out of their organisations in order to keep costs down. There is also the decline in trade unions and collective action to consider.

Both ACAS (Advisory, Conciliation and Arbitration Service) and charitable organisations, such as the Andrea Adams Trust, suggest that the answer is training. In these challenging economic times, managers are put under pressure to deliver targets, turnover and profits. They, in turn, put pressure on their subordinates. If they are not equipped with the right training, staff may feel bullied under the weight of these demands.

ACAS suggests that promoting health and wellbeing at work is about focusing on the way people relate to each other in your organisation. In addition, the responsibility for health and wellbeing at work belongs to both employers and employees.

There needs to be an emphasis on dealing with problems without recourse to litigation. A healthy balance needs to be struck between dignity at work and the business commercial needs. Greater dialogue between employees and managers can avert these problems and both need sufficient training to find the correct balance.