Friday, 3 November 2017

NOVEMBER 2017 EDITION EMPLOYMEMNT LAW NEWS

My periodic newsletter on all things employment law related that I think you should be aware of.
View this email in your browser
                                        EDITORIAL

Hello  colleagues, readers and chums ,  As we move inexorably towards the festive period, a round up of the years news will be inevitable,    but not just yet !   This month I touch on a truly philanthropic piece of forthcoming legislation,  regarding the rights of bereaved parents.   Beyond that small piece there is the court view that previous issues of concern in a disciplinary case can be included for consideration without it rendering the decision unfair,    (phew!)      Lastly,   my coffee and doughnut piece is on the forthcoming red tape of GDPR     (moan/groan)   but you do need to read up,  it is likely to affect you in some way,    if only because your employees google it and start making demands!     I am currently compiling an information pack for all my clients,  consisting of a fact sheet, a FAQ section and some pro-forma documents,  like policy statement etc. that you might need.  If you are a client and would like some bumf,  drop me a line and I'll send what I have put together as I assemble it.

        However............

           Read on for details of this months reports and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 
 

First The News: 

Parents who lose a child to get paid leave

The new law will support workers whose child dies while under the age of 18
Employed parents who lose a child will have the right to two weeks’ paid leave to allow them time to grieve, the government has announced.
The proposed new law will support those whose child dies when under the age of 18. Under the Employment Rights Act employees only have a day-one right to take a 'reasonable' amount of unpaid time off to deal with an emergency involving a dependant, including making arrangements following a death. As a result what constitutes a 'reasonable' period varies between workplaces.
Kevin Hollinrake, a Conservative MP and sponsor of the bill, said this is a concern of the people he represents. “Sadly I have had constituents who have gone through this dreadful experience, and while some parents prefer to carry on working others need time off,” he said. “This new law will give employed parents a legal right to two weeks’ paid leave, giving them that all-important time and space away from work to grieve at such a desperately sad time.”
Ben Willmott, head of public policy for the CIPD, said that while the institute supports the idea, employers need to look at how to help bereaved parents beyond the two-week period.
“CIPD members overwhelmingly support the idea of paid statutory bereavement leave for parents who have lost a child,” he said. “Our research shows many employers already offer their staff paid bereavement leave. This new law will build on this so all bereaved parents of children under the age of 18 will have the reassurance of knowing they don’t have to worry about work while they grieve for loved ones in the immediate aftermath of such a tragedy.
“Employers that want to support staff who have suffered a bereavement also need to consider how grief affects people in the longer term; recognising that losing a loved one creates huge turmoil in people’s lives.”
He suggested the kinds of support that organisations could offer. “Providing flexible working and access to counselling or employee assistance programmes, and ensuring managers are understanding and supportive, can help people to adapt or manage their work when they are struggling to cope,” he said. “This is relevant in the immediate aftermath of a tragedy as well as around difficult times of the year or events that might bring painful reminders of their loss.”
The bill’s second reading was on 20 October, with the aim of it becoming law in 2020.
 
My Comment :  I think this is a truly splendid bill, and I cannot imagine anyone having an issue with it, well done Mr. Hollinrake.       my thanks as always to HR magazine for their fine piece.    read the piece on my blog page

 


 
Newsflash:

Does including previous issues, result in unfair dismissal? 
 
Does the inclusion of incidents in an investigatory report which did not result in disciplinary action render a dismissal unfair?
Not usually, held Lady Wise in NHS 24 v Pillar.          
 
P was a Nurse Practitioner employed to triage patient calls. In 2013 P directed a patient describing symptoms of a heart attack to an out of hours GP rather than the emergency services resulting in a Patient Safety Incident ('PSI'). Following an investigation and disciplinary meeting, she was dismissed.
The employment tribunal was asked to determine whether two previous PSIs which did not result in disciplinary action should have been recorded in the investigatory report considered at the disciplinary hearing. Both earlier PSIs did not result in disciplinary proceedings, although one did involve a failure to spot a cardiac red flag. Whilst the employment tribunal found the decision to dismiss within the band of reasonable responses on the evidence, it found the use of the earlier PSIs was outside of the band of reasonable responses. NHS 24 appealed.

The EAT, overturning the finding of unfair dismissal, identified this was not a case of totting up of warnings but of a lack of clinical competence. It found the approach to the investigation step in BHS v Burchell was generally aimed at its sufficiency not the gathering of too much information (although not ruling out that overzealous or otherwise unfair investigation could render dismissals unfair).


My Comment:  I think on balance if I were a patient,   I would want to know that someone dealing with me, was clinically competent to do so !     My thanks to the ever informative Daniel Barnett site for this piece.
 

 

 


And this, just in: my coffee and doughnut item!

Five things you need to know about GDPR 

What will GDPR mean for your firm?The General Data Protection Regulation (GDPR) will be enforceable in the UK from May 2018, updating the way businesses must handle personal data, including what they hold on employees. How is this going to affect HR professionals? HR magazine visited a data protection masterclass hosted by Ashfords to find out.
1) It is an update of previous legislation          
 
The Data Protection Directive (DPD) was an EU directive introduced in 1995. Chris Coughlan, head of data protection and privacy at Ashfords, said this was in need of a refresh. “In 1995 Google had not even been incorporated yet,” he said. “It’s a different time now than it was 20 years ago, and the regulations needed to be reformed.”  
A key change from the DPD is an increased scope on who the GDPR applies to. If you are established in the EEA (or the firm processing your data is), you offer your services to residents of the EEA, or you monitor the behaviour of those in the EEA then the rules will apply to you.
2) You may need a DPO (data protection officer) in your team
If you are a public authority, carry out large-scale systematic monitoring of individuals, or carry out large-scale processing of special categories of data or data relating to criminal convictions and offences then you will need to welcome a DPO to your team.
“The DPO needs to report to the board, and they are a protected employee so they cannot be dismissed just because a senior manager doesn’t like what they are saying,” Coughlan explained. “Also, there are certain rules about who can and cannot be a DPO. You cannot, for example, give the role to the CEO as that will create a conflict with their commercial ambition.”
3) The penalties for non-compliance will be considerably harsher
Under the old system the maximum fine for a breach was £500,000. However, the GDPR will increase the amount under a two-tier structure. Less serious incidents could result in a maximum fine of either €10 million (£7.9 million) or 2% of an organisation's global turnover, whichever is greater. The most serious offences have a new maximum fine of up to €20 million (£17.9 million) or 4% of turnover, whichever is greater.
“The consequences of getting this wrong are now extremely significant,” Coughlan said. “But reporting any breach immediately could make things better for you in the long run than if you failed to report it and it was discovered at a later date.”
4) It will still apply after Brexit
The GDPR is a European Directive, so Brexit throws up the question of whether it will still apply.
Secretary of state for culture, media and sport Karen Bradley said it will. “We will be members of the EU in 2018 and therefore it would be expected and quite normal for us to opt into the GDPR and then look later at how best we might be able to help British business with data protection while maintaining high levels of protection for members of the public,” she said.
UK information commissioner, Elizabeth Denham agreed. “I acknowledge that there may still be questions about how the GDPR would work in the UK leaving the EU but this should not distract from the important task of compliance with GDPR by 2018,” she said. “ We’ll be working with government to stay at the centre of these conversations about the long-term future of UK data protection law and to provide our advice and counsel where appropriate.”
5) You should act now
Take steps now to be ready for when this is implemented in May, advised Coughlan. “It’s important to give someone ownership of this,” he said. “Start to try to streamline the data you have – if you find you have data you don’t need just delete it. Start mapping how data flows through your organisation."
He added that businesses should not assume they will not be affected by the changes. “Some firms have said they want to ‘wait and see’ what happens,” he said. “But that could be risky, as we know [Denham] has investigated many types of business, including small firms and charities, in the past.”

My Comment: As if you haven't got enough to do simply running your business,  yet more red tape to have to deal with!    The fact is though,   you will  have to deal with it,  one way or another.     Once again my thanks to those good people at  HR Magazine for useful info & updates.

 

 


Download of employee pay rates,  NMW, "living wage" and other benefit entitlements:

Additionally:
In you need further in depth help working out what exactly counts as minimum wage,  the DBIS has produced this 55 page guide,

"Calculating the minimum wage"     

Thursday, 2 November 2017

Does including previous issues, result in unfair dismissal?

Does the inclusion of incidents in an investigatory report which did not result in disciplinary action render a dismissal unfair?

Not usually, held Lady Wise in NHS 24 v Pillar.          



P was a Nurse Practitioner employed to triage patient calls. In 2013 P directed a patient describing symptoms of a heart attack to an out of hours GP rather than the emergency services resulting in a Patient Safety Incident ('PSI'). Following an investigation and disciplinary meeting, she was dismissed.

The employment tribunal was asked to determine whether two previous PSIs which did not result in disciplinary action should have been recorded in the investigatory report considered at the disciplinary hearing. Both earlier PSIs did not result in disciplinary proceedings, although one did involve a failure to spot a cardiac red flag. Whilst the employment tribunal found the decision to dismiss within the band of reasonable responses on the evidence, it found the use of the earlier PSIs was outside of the band of reasonable responses. NHS 24 appealed.

The EAT, overturning the finding of unfair dismissal, identified this was not a case of totting up of warnings but of a lack of clinical competence. It found the approach to the investigation step in BHS v Burchell was generally aimed at its sufficiency not the gathering of too much information (although not ruling out that overzealous or otherwise unfair investigation could render dismissals unfair).


My Comment:  I think on balance if I were a patient,   I would want to know that someone dealing with me, was clinically competent to do so !     My thanks to the ever informative Daniel Barnett site for this piece.

Five things you need to know about GDPR

What will GDPR mean for your firm?

The General Data Protection Regulation (GDPR) will be enforceable in the UK from May 2018, updating the way businesses must handle personal data, including what they hold on employees. How is this going to affect HR professionals? HR magazine visited a data protection masterclass hosted by Ashfords to find out.
1) It is an update of previous legislation
The Data Protection Directive (DPD) was an EU directive introduced in 1995. Chris Coughlan, head of data protection and privacy at Ashfords, said this was in need of a refresh. “In 1995 Google had not even been incorporated yet,” he said. “It’s a different time now than it was 20 years ago, and the regulations needed to be reformed.”
A key change from the DPD is an increased scope on who the GDPR applies to. If you are established in the EEA (or the firm processing your data is), you offer your services to residents of the EEA, or you monitor the behaviour of those in the EEA then the rules will apply to you.
2) You may need a DPO (data protection officer) in your team
If you are a public authority, carry out large-scale systematic monitoring of individuals, or carry out large-scale processing of special categories of data or data relating to criminal convictions and offences then you will need to welcome a DPO to your team.
“The DPO needs to report to the board, and they are a protected employee so they cannot be dismissed just because a senior manager doesn’t like what they are saying,” Coughlan explained. “Also, there are certain rules about who can and cannot be a DPO. You cannot, for example, give the role to the CEO as that will create a conflict with their commercial ambition.”
3) The penalties for non-compliance will be considerably harsher
Under the old system the maximum fine for a breach was £500,000. However, the GDPR will increase the amount under a two-tier structure. Less serious incidents could result in a maximum fine of either €10 million (£7.9 million) or 2% of an organisation's global turnover, whichever is greater. The most serious offences have a new maximum fine of up to €20 million (£17.9 million) or 4% of turnover, whichever is greater.
“The consequences of getting this wrong are now extremely significant,” Coughlan said. “But reporting any breach immediately could make things better for you in the long run than if you failed to report it and it was discovered at a later date.”
4) It will still apply after Brexit
The GDPR is a European Directive, so Brexit throws up the question of whether it will still apply.
Secretary of state for culture, media and sport Karen Bradley said it will. “We will be members of the EU in 2018 and therefore it would be expected and quite normal for us to opt into the GDPR and then look later at how best we might be able to help British business with data protection while maintaining high levels of protection for members of the public,” she said.
UK information commissioner, Elizabeth Denham agreed. “I acknowledge that there may still be questions about how the GDPR would work in the UK leaving the EU but this should not distract from the important task of compliance with GDPR by 2018,” she said. “ We’ll be working with government to stay at the centre of these conversations about the long-term future of UK data protection law and to provide our advice and counsel where appropriate.”
5) You should act now
Take steps now to be ready for when this is implemented in May, advised Coughlan. “It’s important to give someone ownership of this,” he said. “Start to try to streamline the data you have – if you find you have data you don’t need just delete it. Start mapping how data flows through your organisation."
He added that businesses should not assume they will not be affected by the changes. “Some firms have said they want to ‘wait and see’ what happens,” he said. “But that could be risky, as we know [Denham] has investigated many types of business, including small firms and charities, in the past.”

My Comment: As if you haven't got enough to do simply running your business,  yet more red tape to have to deal with!    The fact is though,   you will  have to deal with it,  one way or another.     Once again my thanks to those good people at  HR Magazine for useful info & updates.

Parents who lose a child to get paid leave

 
The new law will support workers whose child dies while under the age of 18
Employed parents who lose a child will have the right to two weeks’ paid leave to allow them time to grieve, the government has announced.
The proposed new law will support those whose child dies when under the age of 18. Under the Employment Rights Act employees only have a day-one right to take a 'reasonable' amount of unpaid time off to deal with an emergency involving a dependant, including making arrangements following a death. As a result what constitutes a 'reasonable' period varies between workplaces.
Kevin Hollinrake, a Conservative MP and sponsor of the bill, said this is a concern of the people he represents. “Sadly I have had constituents who have gone through this dreadful experience, and while some parents prefer to carry on working others need time off,” he said. “This new law will give employed parents a legal right to two weeks’ paid leave, giving them that all-important time and space away from work to grieve at such a desperately sad time.”
Ben Willmott, head of public policy for the CIPD, said that while the institute supports the idea, employers need to look at how to help bereaved parents beyond the two-week period.
“CIPD members overwhelmingly support the idea of paid statutory bereavement leave for parents who have lost a child,” he said. “Our research shows many employers already offer their staff paid bereavement leave. This new law will build on this so all bereaved parents of children under the age of 18 will have the reassurance of knowing they don’t have to worry about work while they grieve for loved ones in the immediate aftermath of such a tragedy.
“Employers that want to support staff who have suffered a bereavement also need to consider how grief affects people in the longer term; recognising that losing a loved one creates huge turmoil in people’s lives.”
He suggested the kinds of support that organisations could offer. “Providing flexible working and access to counselling or employee assistance programmes, and ensuring managers are understanding and supportive, can help people to adapt or manage their work when they are struggling to cope,” he said. “This is relevant in the immediate aftermath of a tragedy as well as around difficult times of the year or events that might bring painful reminders of their loss.”
The bill’s second reading will be on 20 October, with the aim of it becoming law in 2020.

My Comment :  I think this is a truly splendid bill, and I cannot imagine anyone having an issue with it, well done Mr. Hollinrake.       my thanks as always to HR magazine for their fine piece.

Sunday, 8 October 2017

OCTOBER 2017 EDITION OF EMPLOYMENT LAW NEWS

My periodic newsletter on all things employment law related that I think you should be aware of.
View this email in your browser
                                        EDITORIAL

Hello  Readers, Colleagues and Chums ,   Much to read this month,  all items are of interest as they could affect us all to some degree or another.  For fear of boring you  I've made no reference this month,  to the ongoing saga of the "gig economy"   as UBERS' appeal is to be heard,  but in the meantime another tribunal has found in favour of drivers at Addison-Lee who are workers and not self employed,  so this situation will rumble on for a while.   Do, please find the time to read the piece on Data Protection Bill,   there is a deadline but it will affect how you keep your data.  Vicarious Liability also, may have an impact depending on your type of business.   My "coffee & doughnut " item, is a quite a read,  (that is the idea)   and does show that businesses must be always vigilant as to threats from unexpected sources. 

        However............

           Read on for details of this months reports and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 
 

First The News: 

Data Protection Bill unveiled

 

The Government has published the Data Protection Bill, which will supplement the General Data Protection Regulation (GDPR) in the UK.            The Bill, which was announced in the Queen’s Speech in June this year, adds detail to the requirements under the GDPR.
It incorporates the highly publicised fine regime, under which organisations can be fined up to €20 million or 4% of total worldwide annual turnover.
However, the Bill makes a number of changes for employers to process special categories of personal data (such as health data and data on ethnic origin, political opinion, religious beliefs, union membership and sexual orientation) and data relating to criminal convictions.
To process special categories of personal data, also known as sensitive personal data, employers have to meet strict conditions under the GDPR, such as obtaining explicit consent.
Under the Bill, employers will be able to process special categories of personal data to fulfil obligations or exercise rights in employment law if it has a policy document in place that meets additional requirements.
Under the GDPR, employers can process data on criminal convictions only if this is specifically permitted by law.
The Bill will allow processing of criminal conviction data if it meets the same requirements as processing special categories of personal data.
This means that employers will be able to process criminal conviction data with consent, or to exercise rights or obligations provided that they have a policy in place that meets the additional requirements.
The Bill also reproduces certain exemptions from the Data Protection Act 1998 relating to subject access requests.
In particular, employers will not have to include information in their privacy notices or disclose information to employees in response to subject access requests for:
  • information that is covered by legal professional privilege;
  • information used for management planning by the employer;
  • information about the employer’s intentions during negotiations with the employee; and
  • confidential references given (but not those received) by the employer.
The Bill also creates a number of new offences, including an offence of altering, destroying or concealing information to be provided to an individual through a subject access request.
Culture secretary, Karen Bradley said: “The Data Protection Bill will give people more control over their data, support businesses in their use of data, and prepare Britain for Brexit.
“In the digital world strong cyber security and data protection go hand in hand. This Bill is a key component of our work to secure personal information online.”
The Bill will repeal the Data Protection Act 1998 when it comes into effect. In addition to implementing the GDPR, the Bill deals with personal data processed by law enforcement and national security.
The GDPR will come into effect directly in the EU, including in the UK, on 25 May 2018. When the UK leaves the EU, the GDPR will be incorporated into UK law by the European Union (Withdrawal) Bill.

read the full piece on my blog here      my continuing thanks to Personneltoday.com  for the source material.  
 
Newsflash: 

Vicarious liability: employers face big damages for employees’ actions                                       


Vicarious liability, where employers may be liable to pay damages for an employee’s or others’ actions, can result in high levels of compensation. Akshay Choudhry, an associate at independent law firm Burges Salmon, considers recent cases and how employers can manage this risk.                                                                                     What is the risk?                
Vicarious liability is where employers may be liable to pay damages where someone who works for them causes personal injury or other losses to another person through their actions while at work. It puts employers in a vulnerable situation, not least because the extent of the liability can be far-reaching.
For example, in the recent case of Various Claimants v Barclays Bank, the High Court ruled that Barclays Bank was liable for sexual assaults committed by a doctor engaged by the bank to carry out medical examinations of prospective employees.
Similarly, last year, the courts found a supermarket chain was liable when one of its petrol station attendants racially abused a customer, followed him onto the forecourt and subjected him to a severe physical attack (Mohamud v WM Morrison Supermarkets plc).
In neither case had the employer endorsed or encouraged the assaults in any sense. Indeed, the assailants had acted in gross abuse of their positions. Yet, because the courts found that the assaults were so closely connected to the jobs that the assailants were engaged to do, the businesses were ultimately liable.
These cases illustrate how a business can be liable for the actions of its employees or workers even though, in reality, it would have been almost impossible for the businesses in question to have prevented those actions, and despite the fact that the actions of those concerned were well outside the scope of their expected conduct.

Is vicarious liability limited to employees?

The Barclays Bank case also illustrates another challenging aspect of vicarious liability. The doctor involved was engaged as an independent contractor, rather than as an employee. However, because he was carrying out activities (i.e. the medical examination) on behalf of the bank and that responsibility had been assigned to him and was controlled by the bank, the bank was still liable for his misdeeds.
In fact, vicarious liability can even extend to situations where there is no commercial activity or wage bargain involved at all. For example, the Ministry of Justice (MoJ) was held liable for the negligence of a prisoner who dropped a sack of rice on a prison employee’s back (Cox v Ministry of Justice).
In establishing the MoJ’s liability for the injury caused, it was sufficient that the prisoner had been carrying out activities which were an integral part of the prison’s activities and were for the prison’s benefit.

What should businesses do to reduce their risk?

Where a claimant is trying to establish vicarious liability for discriminatory acts in the employment tribunal, it is open to an employer to avoid liability by showing that it has taken all reasonable steps to prevent the discrimination from occurring.
However, no such employer defence is available in standalone personal injury claims. Businesses should, therefore, focus on preventing wrongdoings from arising in the first place.
For example, businesses should:
  • Ensure all relevant policies are up-to-date and followed as a matter of course. Typically this would mean having in place policies covering expected levels of conduct, health and safety, equal opportunities, bullying, grievances, whistle-blowing and disciplinary matters;
  • Make sure that all relevant individuals understand the expected workplace standards. Your workforce should be aware of and trained on the relevant policies, practices and procedures. If they understand the standards of behaviour expected of them, they may be less likely to act out of line;
  • Carefully consider which of these policies should apply to non-employees working for, or on the premises of, the business;
  • Carefully define the scope of individual job roles; and
  • Ensure appropriate management and supervision is in place.
However, even with preventative measures in place, it is difficult to legislate for the actions of an individual, particularly one who chooses to act with deliberate intent and without regard for the rules.
To prepare for such an eventuality, employers should ensure that they have appropriate mechanisms in place to deal with any financial liability.
For instance, businesses should:
  • Consider whether the scope of cover in any relevant insurance policies (such as public liability or employer’s liability insurance policies) covers all losses for which a business may be vicariously liable, and whether there are any specific risks to address given the nature of the business; and
  • Include suitable indemnities in contracts with suppliers.
While it will be rare for the majority of employers to have to defend claims of vicariously liability, the potential financial and reputational risks that do exist mean the sensible employer will take time to review their risk profile from time to time.

Read the full piece in my blog here            my continuing thanks to Personneltoday.com  for the source material.  

 


And this, just in: my coffee and doughnut item!

Abolition of tribunal fees: Next steps for employers

 


What does the Supreme Court decision declaring tribunal fees unlawful mean for employers on a practical level? Camille Renaudon, a partner at Hibberts Solicitors, looks at the implications.                
The Supreme Court decision on 26 July 2017 to declare employment tribunal and Employment Appeal Tribunal fees unlawful and abolish them with immediate effect took many by surprise.
Firstly, businesses should consider the potential benefit of auditing their records to identify examples of “high-risk” dismissals while fees were payable.
Businesses should assess the potential numbers of historic claims that could now be brought by claimants, and their records should indicate whether those are claims that were referred to the Acas early conciliation scheme, or not.
If they were, some commentators suggest those claims are more likely to now be revived, for a number of reasons.
One key aspect employers should consider is how strong a position they will be in to defend such claims, should they materialise.
Do you have access to evidence, have you retained records and documents? Are the relevant witnesses still employed by you or able to assist with the case? If not, did such witnesses leave in amicable circumstances and are they contactable?
Such considerations will inevitably affect the willingness of an employer who faces a belated claim to engage in the early conciliation process or choose to defend the claim at tribunal.

Out of time claims

At the moment we still do not know the Government’s stance in relation to those potential claimants who were deterred between July 2013 and July 2017 from bringing a claim or lodging an appeal due to fees.
It is unclear whether they may be allowed to submit a claim out of time but it is anticipated that they will.
Should that be the case, significant numbers of claims may be brought long after the event; hence the preparatory steps that employers should take now.
Until we have a test case or guidance from the higher courts on the issue, claims will be considered on a case-by-case basis, and the financial circumstances of each individual claimant will need to be considered and taken into account by a tribunal when deciding whether they will be allowed to submit a claim late.

Recovering fees

Another practical step for employers will be to recover sums owed to them.
It is certainly anticipated that those respondents who were ordered to repay fees to a claimant (and actually did so) will be eligible to be reimbursed for those employment tribunal and Employment Appeal Tribunal fees, just as claimants will be.
In some cases employers will have paid other fees themselves, such as in the case of judicial mediation, and these too will be recoverable.
To prepare, employers should calculate the value of sums subject to reimbursement. Having done that, if proportionate to do so, they should identify an individual or department with responsibility for tracking developments and dealing with any applications for reimbursement.
An announcement regarding the reimbursement process is imminent, so this is certainly something to keep an eye on.
It is also likely there will be a need to increase resources to HR and personnel departments moving forward as it is certainly anticipated that the numbers of new claims will increase significantly.
A report of a seven-fold increase since the decision in one tribunal seems to be a blip, but many anticipate that we will see far greater numbers of tribunal claims being lodged now that fees are no longer payable.

Increased training

Employers now need to consider whether staff need additional training in dealing with tribunal claims, particularly if their exposure to them has been limited because of the vastly reduced numbers of claims seen over the last few years.
They should also consider their insurance policies and see what cover they currently have in relation to tribunal litigation, both for costs and awards made, as this may need to be reviewed.
Finally, for the overwhelming majority of claims, early conciliation via Acas is compulsory and employers may need to reconsider their approach to this.
It may pay to be more receptive to the idea of early conciliation, as potential claimants are now inevitably more likely to issue claims if conciliation is unsuccessful.
Statistics from 2015/16 indicate that 80% of those who contacted Acas did not go on to bring a tribunal claim and for a significant number of those, the fees were the off-putting factor.
Acas research published in 2015 indicated that more than two-thirds of claimants who had been deterred from bringing a claim due to fees said they could not afford them, whereas others stated the fee was more than they were prepared to pay, or that the value of the fee equalled the money they were owed.
Moving forward, a claimant may be less inclined to settle at the early conciliation stage whereas previously they may not have gone on to submit claims in any event.
This may have been where their type of claim could not lead to a monetary award (such as claims for a written statement of particulars of employment) or the value of the claim would have been disproportionate to the fee payable.
Many claimants will also have taken into account that even if successful, they would have had no guarantee of their award actually being paid by a respondent.
They will still face that same risk but some may opt to take their chances in tribunal rather than settle at the early conciliation stage.
Respondents, on the other hand, are now likely to have more to gain by engaging in conciliation in circumstances when previously, when fees were payable, they may not have done.

My Comment:   I have opined that the fees regime was flawed from the outset,  but if this idea materialises, it will be a step too far,  and certainly plunge the Tribunal system into chaos !

read the full piece on my blog here          
my continuing thanks to Personneltoday.com  for the source material.    

 


Download of employee pay rates,  NMW, "living wage" and other benefit entitlements:

Additionally:
In you need further in depth help working out what exactly counts as minimum wage,  the DBIS has produced this 55 page guide,

"Calculating the minimum wage"     
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Health& Safety

Case 411 - Safety pins on swimming pool locker keys

Issue

A swimming pool operator has removed safety pins from their locker keys on H&S grounds

Panel opinion

Other than the general duties under the HSW Act there is no specific H&S legislation or guidance applying to this. Safety pins have been widely used as a means to secure locker keys and should not present significant risks, however use of safety pins is outdated and has gradually been replaced by either clips or wrist bands. This appears to be a specific policy at this leisure centre, so a fuller explanation would be helpful, beyond the simple ‘health and safety’ line.

Case 410 - Children at school have been banned from eating pack lunches outside allegedly due to health and safety

Issue

Children at a school have been banned from eating pack lunches outside allegedly due to health and safety

Panel opinion

This appears to be a specific approach put in place by this school, perhaps as part of a wider food policy.  It is not a requirement of health and safety regulation and central government guidelines on food hygiene or healthy eating do not cover this.  It might be helpful to explain the thinking behind it more clearly therefore.
 

Case 409 - Store stopped providing customer with empty ‘tester’ perfume bottles to customer for health and safety reasons

Issue

Store stopped providing customer with empty ‘tester’ perfume bottles to customer for health and safety reasons.

Panel opinion

Retailers are not prohibited under health and safety at work legislation from providing empty perfume bottles to customers upon request. In this case the store assistant was correctly following company policy on the destruction/recycling of waste. The company should have been more transparent about the real reason for refusal rather than use the excuse of ‘health & safety’.
 

Case 407 - Employer stopped proving funds for alcoholic drinks at staff Christmas night out (offsite)

Issue

Employer stopped proving funds for alcoholic drinks at Christmas night out (offsite), citing health and safety.

Panel opinion

While the employer may have a proper concern to discourage staff from overdoing it where it is funding a night out, claiming health and safety legislation as the reason for its refusal to fund Christmas party drinks on a staff night out is incorrect.
 

Case 404 - Company told by insurers to employ a professional ‘Keyholding Service’ to comply with health and safety regulations

Issue

A Company with an employee nominated as a primary intruder alarm keyholder was told by insurers that there is a legal requirement to establish a "Keyholding Service" with a professional security company in order to comply with health and safety regulations.

Panel opinion

Employers do need to take steps to ensure that those responding to alarm call outs are not exposed to a risk of violence. Those steps will be based on an assessment of the risks to their employees. Whilst a ‘keyholding’ service’ may form part of a safe system of work, there is no legal requirement to engage such a service. The insurance company should not have implied that this was the case.