• April Headlines
• Employment Status
• Case Law – Is Obesity a Disability?
• Policy Training Package – our fantastic spring promotion
• Fixed Fee Recruitment

APRIL HEADLINES

Spring 2013 has brought along a batch of employment law changes that you must be aware of to ensure compliance with current regulations and legislation.  They are…

1. CRB checks are now known as DBC (Disclosure Barring Service) checks.  They are portable between employers.
2. The Collective Consultation Period for redundancy has been reduced from 90-45 days when 100 or more employees are at risk.
3. RTI introduced – HMRC requires all payroll deductions to be reported to them in ‘real time’ of payroll runs
4. Statutory Sickness Pay, Maternity Pay, Paternity Pay and Adoption Pay rates will increase from April 2013
5. Employee Shareholder scheme delayed until 1st September 2013
6. The maximum redundancy payment has increased from £430 to £450

EMPLOYMENT STATUS

• Do you have people working for you?
• Are they employed by you?
• Do they contract into your company through an agency or are they self employed and working for you on a specific contract or ad hoc basis?

A working individual may be:

1. an employee
2. an employee shareholder with reduced employment rights (from September 2013)
3. a worker (which has a distinct legal meaning)
4. self-employed
5. entitled to various individual rights, for example under the Equality Act 2010 or the Agency Workers Regs 2010

Employee status is significant because ‘employers’ will be exposed to the majority of employment rights if the ‘working person’ can prove that they are an employee rather than self employed.  If a ‘self employed’ person only works for your organisation and has no other employment, ensure that you have in place robust documentation and checks to define that they are in fact self employed and are not entitled to claim ‘employment status’.  If the ‘self employed’ person fails to pay their tax or N.I. and you cannot evidence that they are not your ‘employee’ then you may be liable to pay the HMRC for their Tax and N.I. for the duration that they have undertaken work on behalf of your organisation.

As an employee, they would also be able to claim the following rights…

1.  unfair dismissal
2. statutory redundancy payment
3. maternity and paternity leave and pay
4. parental leave
5. the right to request flexible working
6. rights under TUPE
7. rights to preferred payments in the event of the insolvency of the employer

CASE LAW – IS OBESITY A DISABILITY

Under both the Equality Act 2010 and its predecessor, the Disability Discrimination Act 1995, a person is disabled if he or she has a physical or mental impairment and that impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities.

Is obesity considered a disability?

In Walker -v- Sita, The Employment Appeal Tribunal (EAT) had to decide whether a Claimant who suffered from multiple symptoms (including asthma, diabetes, knee problems, anxiety and depression, bowel and stomach problems, carpal tunnel syndrome and fungal infections) accentuated by his own obesity, was disabled.  The EAT had to consider if ‘obesity’ was an ‘impairment’ itself.

The EAT held that the Claimant was disabled and stressed that an employment tribunal should not focus on what the cause of an impairment may be.  In this particular case, it did not matter that there was no pathological, underlying cause (or causes) of the Claimants various impairments.  What an employment tribunal had to do was consider if the mental or physical impairments were genuine and that the other constituent parts of the definition of “disability” were met.

The key point for employers to note from this case is that whilst obesity itself may not amount to a disability, the side effects associated with it could well do so.

POLICY TRAINING PACKAGE

How familiar are your managers with your policies and procedures?

If your managers are fully up to date with the content of your policies and understand how to implement these, they will be more efficient and deal with HR situations more effectively.  This is why OSM are offering a “Policy Training Package”.

For a competitive fixed fee we can:

• review your existing policies and procedures
• hone them to make them work effectively for your business
• produce training material
• deliver comprehensive training to your people managers

PAY AS YOU GO RECRUITMENT

Recruitment is a task that is crucial to organisational performance as attracting the right person can make a massive difference to your organisation.  However, recruitment can be very time consuming and expensive!

This is why OSM offers the Fixed Fee Recruitment support package which means that, instead of paying a large finders fee, OSM offers a service that sees you only paying and hourly or daily charge out rate (pay as you go recruitment).

OSM can undertake as little or as much as you require to relieve the pressure of recruitment – from training you to become an effective recruiter through to delivering the whole package where we work with you to identify the requirements and then recruit on your behalf.

If you need a more bespoke approach, just ask us and we will work with you to meet your needs.

Our service does not end there – we can provide your new recruit with a tailored employment contract and induction training to maximise their potential within your organisation.

Being thorough from the beginning can mean that you get the right person for the job with minimal fuss.

CALL OSM CONSULTANTS ON 0844 811 7050 OR EMAIL info@osmconsultants.co.uk 

By ensuring that the correct workplace policies and working practices are in place your organisation is then able to successfully promote employees rights to a safe and inclusive working environment.  This inevitably reduces costs and enables organisations to retain and attract the best staff and improve performance and productivity.

This in turn helps organisations to improve relationships with customers and safeguard its reputation to enable it to prosper.

Karen Owen-Smith

OSM Consultants Limited – 0844 811 7050

info@osmconsultants.co.uk

1. Having an effective Social Media Policy
2. Different types of Employment Contracts
3. Changes to the Collective Redundancy Rules
4. Redundancy and Restructuring
5. Policy Training Package – our fantastic spring promotion!

Here at OSM, our aim is to make sure that you have the correct policies and procedures in place and the right tools to be able to deal with situations as they arise.  Read on for our March recommendations and updates.

1. Social Media

Has your organisation experienced:-

• a member of staff or representative using social networking sites during work time?
• a member of staff or representative speaking ill of the organisation via a social networking site?
• a member of staff or representative speaking ill of a colleague via a social networking site?

If you have answered “yes” to any of the above scenarios or such matters would cause you concern, then read on….

Recently, there have been a number of high profile cases involving the use of social media where the actions of employees or representatives have led to their employers taking action against them.

Some cases were favourable to the employee, some to  the employer.

In the case of Smith -v- Trafford Housing Trust, a Christian manager with a long and respected service history, was demoted with a pay cut for posting what was seen to be homophobic comments on Facebook.  Mr Smith took his employer to tribunal for breach of contract which was upheld on the basis that the comments were not related to his work or his employer and were made outside of normal working hours.

In another largely publicised incident, HMV bosses were left red faced when a disgruntled employee opted to tweet live during a redundancy notification session.  They managed to post 7 subversive messages before the company regained control and deleted the posts.

The HMV incident clearly was damaging to the brand in an already difficult time and the company would have been within their rights to discipline the individual concerned.

However, in the case of Teggert -v- Teletech, the Tribunal held that it was fair for an employee to be dismissed on the grounds of gross misconduct following the posting of obscene comments on Facebook.

OSM recommends that organisations have a robust Social Media Policy and procedures in place along with relevant training given to employees.  This will enable staff to be aware that the organisation takes social media breaches seriously and the organisation can deal with any such breaches of the policy and procedures effectively.

Call 0844 811 7050 for support and guidance on creating effective social media policies and procedures

2. Employment Contracts

There is no”one size fits all” Contract of Employment.  A Contract of Employment is an agreement between an employer and employee.

The Contract commences as soon as the offer of employment is made by the employer and accepted by the employee.  The commencement of work by the employee implies that they have accepted the terms and conditions offered.  However, it is advisable to put such details into a Contract of Employment to ensure that the organisation is legally compliant.

It is recommended that the Contract of Employment is signed by both the employer and the employee and that it contains various information such as holiday entitlement, salary, hours of work, probationary periods, etc.  It is important that the contract mentions other matters such as social media, intellectual property and other important factors that an employer should have in place to protect the business.

Below are some examples of types of Contracts of Employment which are used in business in the UK:

Fixed-term contracts

Employees are employed on a fixed term contract if the following factors apply:-

       a. Their contract ends on a particular date,

            or on completion of a specific task

       b. They have an employment contract with

            the organisation they work for

An example of a fixed term contract is a seasonal or casual employee taken on for 3 months during a peak period; covering for  maternity leave or a specialist employee employed for a fixed term to complete a specialist project.

OSM Consultants can help your organisation ensure legal compliance and draft tailored Fixed Term contracts for your organisation.

Annualised Hours Contract

Annual hours or annualised hours are the terms used to describe a contract which states the agreed number of guaranteed hours the employee is contracted to work through a twelve month period.  This is different from a standard weekly contract e.g. 38, 40 or 48 hours per week – each week, every week.

An Annualised Contract allows the organisation to increase or reduce, in advance, the number of hours to be worked at a given time to match the needs of a business.  For example, a cold drinks manufacturer may find their business peaks during the hot summer weather and dips during the winter.  In this case the employee will be obligated to work more hours during the summer than during the winter.

Shifting from the traditional “hours worked per week” contract to an annualised hours contract can deliver tangible results which OSM can help you achieve.

Zero Hours Contract

Many companies, especially those in the retail and hospitality sector, take on staff with “zero hours” contracts – that is, where people agree to be available for work as and when required, but have no guaranteed hours or times of work.  Zero-hours contracts effectively provide employers with a pool of people who are “on-call” and can be used when the need arises.

Zero-hours contracts can help solve fluctuating staffing needs, but they require careful management.

It is important to note, as an employer, you are not obliged to offer work to workers on zero-hour contracts – but nor are they obliged to accept any work you offer.  It’s important to be aware of the provisions of the National Minimum Wage Regulations, which state that workers on ‘stand-by-time’, on ‘call time’ and ‘downtime’ must still be paid the National Minimum Wage if they are at their place of work and required to be there.  Similarly, such time is likely to count as ‘working time’ under the Working Time Regulations if the worker is required to be on-call at the place of work.

OSM can review your contracts of employment or support changing contracts.  

Call 0844 811 7050

3. Changes to the Collective Redundancy Rules

The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2103 has been published and states that the maximum period for collective redundancy consultation has been reduced from 90 to 45 days where 100 or more redundancies are proposed.  The changes come into effect on 6th April 2013 and exclude the expiry of fixed term contracts from the definition of redundancies when required to calculate how many redundancies are proposed.

4. Redundancy and Restructuring

Following a tough 2012 and predictions of a difficult 2013, workplace relations look set to be tested to the limit. However, being able to manage redundancies and restructuring in a constructive and positive manner puts organisations in a strong position for recovery.

The threat of redundancies can cause serious disruption to an organisation, damaging morale and productivity and putting a strain on working relations.  Good communication between management and staff is essential to ease the pain and minimise operational disruption.  Proper consultation and planning at such a time can help keep staff engaged and prepare the way forward for recovery.

When managing redundancies, it is essential for employers to ensure that they comply with the law to avoid tribunal claims later for unfair dismissal.

OSM have extensive experience of redundancies and restructuring of organisations and may be able to offer practical solutions to avoid redundancies in the first instance.  If they are necessary, we can guide you through the process to ensure you handle the legal and compliance side effectively while maintaining a people focused approach.

For more advice and pro active solutions, call 0844 811 7050

5. Policy Training Package

How familiar are your managers with your policies and procedures?

If your managers are fully up to date with the detail of your policies, they will be more efficient and deal with HR situations more effectively. This is why OSM are offering a ‘Policy Training Package’.

For a fixed fee, we can:-

• review your existing policies and procedures
• hone them to make them work effectively for your business
• produce training material
• deliver comprehensive training to your people managers

Call today on 0844 811 7050 to discuss this special spring promotion or email info@osmconsultants.co.uk 

1. Corporate Manslaughter
2. Health & Safety -v- Religious Rights
3. How Effective Leadership can change H&S Culture
4. Accidents in the Workplace
5. OSM Spring offer

1. Corporate Manslaughter

Recent research has shown that some company directors are making cuts that may have an adverse affect on health and safety in their place of work.  63 new Corporate Manslaughter cases were opened by the CPS in the UK in 2012.  This is an increase of 40% from the 2011 figures!

The law governing this is the Corporate Manslaughter Homicide Act 2007 and was introduced in April 2008. The Act was designed to make it easier for companies to be found guilty of Corporate Manslaughter for deaths arising from management  failures that constituted a gross breach of a duty of care.

OSM recommends that senior people with positions of responsibility should protect themselves and their organisation from the most serious prosecution, arising from fatalities and other injuries that can result in other criminal convictions and crimes.

Call OSM Consultants on 0844 811 7050 for support and assistance in putting measures in place to mitigate the chances of this happening to you!

2. Health & Safety -v- Religious Rights

In January 2013 the European Court of Human Rights (ECHR) ruled in favour of hospital bosses who ordered a nurse to remove a Christian cross she was wearing because it posed a Health and Safety risk.  The ECHR ruled that the reason for asking the nurse to remove her cross – namely for the protection of patients and workers health and safety on the ward – was inherently of much greater importance than the nurses claim of discrimination on religious grounds.

Despite the ruling, OSM advises employees to explore all options available to them, as alternatives, when faced with objections from an employee (especially as sensitive as one related to their religion or belief).

3.  Effective Leadership and H&S Culture

CAN EFFECTIVE LEADERSHIP CHANGE HEALTH AND SAFETY CULTURE IN THE WORKPLACE?

Organisations must have health and safety documentation, policies and processes in place to ensure that they comply with UK and EU laws, regulations and directives.

Although some organisations have such policies and procedures in place, how many organisations actually advise their employees of their existence and how to implement such policies, documents and processes on a day to day basis to reduce the chances of things going wrong in the first instance?

Senior people in all types of organisations should try to lead the way in ensuring that measures are put in place so that safe working practices are followed and a safe working culture exists throughout the organisation.

This can be achieved by a number of key factors that OSM Consultants can advise and support you with!  Call us on 0844 811 7050

4. Accidents in the Workplace

An incident occurred recently where a farm worker was left in a horrific state when he was ran over by a poorly maintained tractor.  The facts of the case were that the tractor had a faulty starter motor and the farm workers (on a regular basis) used a screw driver to try to start the tractor.

A farm worker was standing beside the tractor one day when trying to start it with the screwdriver but did not realise that the tractor had been left in gear.  The tractor subsequently moved forwards as it was started and it ran over the employee that was starting it.

The employee was left with severe crush injuries and incapacitated for over 6 months.  The farm worker was awarded £15000 in damages and costs.

Although this incident happened when using farming machinery, all industries should take notice!  They should ensure that:

• Machinery is checked on a regular basis by a competent and qualified person
• Any faulty machinery is fixed ASAP and is not used in the interim
• Any checks or servicing are logged and records checked
• People using the machinery have sufficient and relevant training
• Risk assessments are undertaken on the use of the machinery
• The correct PPE is used when using the machinery, as identified via risk assessment

5. Policy Training Package

How familiar are your managers and staff with your H&S policies, procedures and processes?

If your managers and staff are fully up to date with their existence and how to follow and implement the H&S polices, procedures and processes, they will be more efficient and deal with H&S situations more effectively!  This is why OSM are offering a “Policy Training Package”.

For a fixed fee, we can:-

• review your existing policies and procedures
• hone them to make them work effectively for your business
• produce a training and process manual
• develop comprehensive training toy your people managers

Call today on 0844 811 7050 to discuss this special spring promotion which promises a 15% discount on our usual prices!

Here at OSM we have the skills and knowledge to help you put in place the requirements to  assist you in attaining the accreditation you require.

We are currently working with small and medium organisations in putting in place the processes to enable them to attain ISO 18001, ISO 9001, CHAS and CQC accreditation.  If you want to join them then call 0844 811 7050 or email info@osmconsultants.co.uk.

This month we will cover the following topics:

• General Update
• On Site Visits
• Personal Protective Equipment
• Case Law
• Machinery and Plant
• Company Vehicles

GENERAL H&S UPDATE

There have been a couple of instances of late where employees have not received suitable training or been provided with the correct PPE when working at height.

It is very risky for employees to neglect their staff in these circumstances and not provide  them with adequate training; PPE; and put the correct checking measures in place.  If an accident does occur, the company could be faced with an injured employee, loss of production, a potential personal injury claim, fine and even prosecution!

If your company is not carrying out the correct procedures when working at heights, call 0844 811 7050 for support and advice to ensure that this trend does not continue.

ON SITE VISITS

OSM’s existing clients are finding it very helpful that OSM’s representatives visit them on site to help with any H&S issues they may have and go over an above the usual service provided by its respective competitors.

We can visit your company premises at a time to suit you and can be there as much or as little as required, to suit your H&S requirements.
We acknowledge that companies work various hours and can visit premises out of core office hours to deal with shift working etc.

PERSONAL PROTECTIVE EQUIPMENT

 
Employers have a duty to ensure that staff are both provided with and trained to use appropriate PPE at work.

PPE can include items such as:

• gloves
• eye protection
• safety footwear
• overalls
• respiratory protective equipment
• high visibility clothing
• hards hats
• car protection

PPE is important as it helps to ensure that the workplace is a safer place to work and if used correctly, the PPE can help minimise the risk of any injuries being sustained.

The use and awareness of PPE within the workplace also encourages staff to work safely and responsibly.

For advice on the appropriate PPE that should be used within your company call

0844 811 7050

CASE LAW

A Southern England restoration company has been fined after an unsupervised labourer fell more than 4 meters from a poorly constructed scaffold tower whilst stripping out a basement gym in central London.

The employee fractured two vertebrae and broke 5 ribs in the fall.

An investigation by the HSE found that none of the employees working at height had the skills and experience to safely erect a scaffold tower and that it had been constructed without adequate supervision.

The employer was fined £8000 and £3500 costs after pleading guilty to a single breach of the Construction (Design and Management Regulations) 2007.

USING MACHINERY AND MAINTAINING PLANT & EQUIPMENT IN THE WORKPLACE

If your organisation has any machinery that it uses on or off site, as an employer you have a duty and a legal obligation to ensure that the machinery:

• is safe to use
• is serviced on a regular basis
• has safe guards in place
• is used by staff who are trained to use it
• is not used if it is evident it is not working properly (signs must be put in place to prevent use)
• is only used by people who have the correct PPE
• has risk assessments undertaken as to its safety on a regular basis
• receives regular checks for safety and such checks are logged

If machinery is not correctly maintained, injuries are more likely to occur from accidents such as sharp edges causing cuts, severing or stabbing injuries, crushing injuries or people getting struck by moving parts

COMPANY VEHICLES

Does your organisation employ staff who drive Company vehicles?

If you answered yes to  this question then you must ensure that your company has in place robust policies and procedures so that both the safety of the employee and employer are protected.

Call 0844 811 7050 for more information as to how you can put measures in place.

Whilst it is excellent that businesses support people in gaining valuable work experience, the organisation must ensure that it mitigates itself against any potential incidents that could happen.

From a H&S perspective, it may be prudent to:

• Notify your insurance company
• Undertake a risk assessment and put measures in place to rectify any risks identified
• Plan what the work experience person is safely and competently able to do
• Ensure they are supervised at all times
• Provide them with a comprehensive induction pack
• Ensure that any relevant PPE is provided
• Make sure the place of work is safe
• Ascertain what previous experience they have