NEW DAWN RESOURCES 2016 LTD
Issue 2
New Dawn Resources
Summer/Autumn 2016 HUMAN RESOURCES BY REAL HUMANS
ISSUE 2
Half Year Update Newsletter Overview
The 2nd Half 2016 NDR Newsletter How quickly 6 months seems to fly by. We received some great feedback about our first newsletter back in January – many of you found different articles informative and useful, and we hope to continue providing useful information to our clients and interested parties as we enter the second half of this year. HR related issues and legislation are ever-changing and arising, and we’ll always aim to explore and inform readers of the topics we believe to be most pertinent and useful to know about in our newsletters. As always, if you’d like further information on any of the topics we feature in this newsletter, feel free to get in touch with us to enquire further.
We hope you find this newsletter useful, and we look forward to welcoming you to our next edition in 2017. Vanessa Scrimshaw Chartered Fellow MCIPD
Brexit & Employment Legislation
H&S Sentencing Council Guidelines
Tipping
National Minimum/Living Wage & Age Discrimination
Apprenticeships
Psychoactive Substances Act
Gender Pay Reporting
Absence Managements & Fit Notes
Debt & Employees
NEW DAWN RESOURCES 2016 LTD
Issue 2
Brexit & Employment Legislation On the 23rd June I turned off the news and went to bed just before midnight having been told that the first results wouldn’t start coming in until around 8am and all indications support a Remain outcome. I woke at 6.30am to find it was all over and we were ‘out’. Now that the country has voted to leave the European Union, one of the burning questions for HR professionals is, what will happen to the significant body of employment law that derives from Brussels? Our clients and therefore we, are likely to be asked by their workforces and colleagues “what does this mean?” And that question has massive scope:
What does it mean for EU workers and for team managers of EU workers? Is new employment law pending, and what will that look like? Are jobs secure? Or are the worst case economic scenarios posed by the Remain going to come to fruition?
Business owners will undoubtedly be concerned that some of the more negative aspects of the Leave campaign’s rhetoric around immigration could tip over into racial discrimination in your workforce. Or that confusion about the future may slow down recruitment or introduce caution into the minds of the best external talent that you’re trying to recruit into your businesses. Over the past decades, EU directives have affected workers’ rights across the economy typically, European law is initiated in Brussels through directives and, once agreed, transposed into national legislation across all of the Member States. EUderived law has been incorporated into UK law using a range
of legal approaches as well as through standalone acts of Parliament, such as the Equality Act 2010. Analysis by legal experts Lewis Silkin before the ‘Brexit’ vote concluded that very little would change: EU-derived law is so embedded in UK law that it would be very complex to unpick, and would require new legislation, which could take years to start coming through. At this point it is important to acknowledge that any analysis of what the future holds for EU-derived employment law is based on speculation, and reliable commentary will have to wait until we see what appears on the negotiating table. Ultimately, any changes to workplace rights will depend on the shape of the political and economic relationship that the UK negotiates with the EU. Trade agreements that would allow the UK continued access to the single market or joining the European Economic Area, like Norway, could require the UK to still accept the majority of EU regulations. Further, there will be legal and practical challenges associated with any attempt to unravel EU-derived requirements from non-EU-derived requirements, especially where case law has drawn on domestic courts’ interpretation of EU Directives and on European Court of Justice (ECJ) rulings. Whatever the longer term implications are of the referendum outcome, it’s likely that a significant proportion of your workforce is giddy, excited with the story that’s going to unfold, whilst another proportion may be bowled over, grieving for an identity that’s been taken away. With these strongly held differences of opinion and emotions running high employers need to keep an eye on their employees and ensure that these differences are not spilling over, or turning into anything more sinister.
NEW DAWN RESOURCES 2016 LTD
Issue 2
Sentencing Council Guidelines for ‘Health and Safety, Corporate Manslaughter and Food Safety and Hygiene Offences’ 2016 Described as the most dramatic change to health and safety legislation since the introduction of the Health and Safety at Work etc. Act in 1974, the guidelines have been introduced to give courts comprehensive guidance for these offences. They introduce a structured nine step approach that the Court should follow, so as to calculate sentences. It will have a significant impact on the sentencing of offences. The detail to the Guideline is set out below, but the headlines are:
Levels of sentencing for all relevant offences are likely to increase significantly; Turnover of organisations will be used as a determinant of size, and therefore level of punishment; and Decisions around levels of ‘harm’ and ‘culpability’ will be crucial to determining the applicable sanction.
Health and Safety offences - Organisations
The Guideline is based on the concept that ‘culpability’ and ‘harm’ are used to determine the level of fine, crossreferenced against the size of the Defendant organisation.
The measure of ‘culpability’ varies from ‘low’, where failings are minor and not systemic, to ‘very high’, where there has been a deliberate breach or flagrant disregard for the law. The level of ‘harm’ is based upon the risk of harm created by the offence, which is then exacerbated if actual harm has occurred. Once the ‘culpability’ and ‘harm’ categories are established, the turnover of the organisation will be used to allocate a particular sentencing matrix. There are different matrices depending on the size of the organisation:
Micro – Turnover not more than £2 million Small – Turnover between £2 and £10 million Medium – Turnover between £10 and £50 million Large – Turnover over £50 million
Once the matrix has been used to determine the fine range, it will then be for the Court to engage in the normal sentencing exercise and follow the following process:
Consider any mitigating and aggravating features of the case, as listed in the Guideline; Ensure that the fine is proportionate to the means of the offender;
Consider other factors that may warrant adjustment of the fine, such as the impact of any fine on the local economy; and Apply a reduction for a guilty plea (where appropriate).
Health and Safety offences – Individuals The exercise to determine ‘culpability’ and ‘harm’ remains very similar to that used for organisations. There are also similarities with the use of a matrix to determine a starting point and category range for punishment. The key ‘take home’ message is the increasing possibility of custodial sentences. Even for those offences involving low culpability, there is still the possibility of a 26 week prison sentence in cases involving the highest level of harm.
NEW DAWN RESOURCES 2016 LTD | Issue 2 (July 2016)
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Companies – Corporate manslaughter
The impact
The Guideline is much clearer for corporate manslaughter sentencing. There is no need to determine the level of ‘harm’ as all prosecutions will follow a fatality. ‘Culpability’ levels are also reduced into two categories: ‘serious’ and ‘more serious’.
We expect the Guideline to increase the level of fines dramatically. Further, when sentencing, there will be significant work input by both the Prosecution and Defence when determining the correct levels of ‘harm’ and ‘culpability’. The difference between one harm category and another could be over £1 million and this is likely to have the following effects:
The proposed fines are significant and much larger than the majority of those imposed for corporate manslaughter offences since April 2008.
Food Safety and Hygiene offences – Organisations and individuals
The Guideline covers a multitude of food safety and hygiene offences including placing unsafe food on the market, inadequate traceability, food recalls and withdrawals, failure to adopt systems based on HACCP principles and misleading consumers through labelling, advertising and presentation of food. The approach to sentencing is the same as the health and safety offences with the same concepts of ‘culpability’ and ‘harm’. For individuals there is an increased possibility of custodial sentences for offences involving ‘very high’ or ‘high’ culpability. A key change in the Guideline is to the list of mitigating features which now excludes any evidence that the business or individual has effective food safety and hygiene procedures in place or evidence of any steps taken to remedy the problem. Therefore where a business may have fallen just short of establishing a due diligence defence; evidence of its systems and procedures will no longer be considered a mitigating feature.
Sentencing hearings will take longer and it may be necessary to undergo hearings to establish facts so that there can be evidence and legal arguments on the correct level of ‘harm’ and ‘culpability’; Expert evidence may be required, even for simple guilty pleas, in order to settle on the correct sentencing categories; and Organisation responses to regulator investigations may need to be more focused on mitigating the most serious sentencing categories.
The Guideline is arguably cynical; it is based on the premise that duty holders will take health and safety and food safety more seriously if the penalties are higher. Those organisations that react to the Guideline and bring it to the attention of senior managers and Directors will most likely be those that have robust procedures in place already.
Further information can be found at: www.sentencingcouncil.org.uk
NEW DAWN RESOURCES 2016 LTD
Issue 2
Government Consultation on Tipping The
Government
has
launched
a consultation on its proposals to secure a fairer deal for workers. The consultation
paper
reflects
the
evidence received from consumer, worker and employer groups, and sets out the Government’s proposals for the handling of tips and service charges.
They
include:
updating the current voluntary code of practice and putting it on a statutory footing
to
increase
employer
compliance
increasing
transparency
for
consumers to make it clearer that suggested discretionary payments for service are discretionary and that consumers are free to choose
preventing or limiting any employer deduction
from
discretionary
payments for service, except for those required under tax law You can see the full consultation document at: www.gov.uk/government/uploads/sy stem/uploads/attachment_data/file/5
It is intended to inform intelligent discussion in a forthcoming Westminster Hall debate about the introduction of the National Living Wage alongside a new 21-24 year old age band, which has led to renewed interest in the rationale behind minimum wage age-banding, fears that workers over 25 will now be discriminated against in favour of younger, cheaper, workers and concerns that workers aged 21-24 are now ineligible for the full minimum wage. The rationale for minimum wage age banding has typically been that younger workers occupy a more vulnerable position in the labour market, with a greater need to acquire experience, and that if younger workers were eligible for the full minimum wage they might be priced out of the labour market. From the 1st April 2016 non-compliant employers will face:
Higher penalties – 200% of arrears (still capped at £20k per worker)
Potential disqualification from acting as a company Director for up to 15 years
21946/bis-16-172-tippingconsultation.pdf
Age Discrimination and National Minimum/ Living Wage – is it the right approach? The House of Commons library has produced a debate pack (ie briefing note for MPs) on the interaction between bands of the national minimum wage and age discrimination.
Psychoactive Substances Act Now in Force The Psychoactive Substances Act 2016, which received Royal Assent on 28 January 2016, came into force on 26 May 2016. The Act makes it an offence to produce, supply or offer to supply, import or export any psychoactive substance if it is likely to be consumed for its mind-altering properties. There is a list of exemptions, which includes legal substances that are in everyday use, such as nicotine, coffee and alcohol, and medicines, which are regulated elsewhere. The substances targeted by the Act have frequently been referred to as 'legal highs' and usually contain one or more chemical substances which, when consumed, imitate the effects of illegal drugs that continue to be controlled by the Misuse of Drugs Act 1971. They often contain ingredients that have not been tested on humans and so their effects are hard to predict. The drugs have three main effects – as stimulants, hallucinogens.
sedatives
or
Possession of a psychoactive substance is not in itself an offence, except where it occurs within a 'custodial institution' – i.e. a prison, young offender institution, remand or removal centre etc. Employers who do not already do so are
New rules to protect apprenticeships
advised to include the use of psychoactive substances in their workplace drugs and alcohol policies. As screening for their use can be difficult, employers should focus
The Government has banned organisations from using the term “apprenticeship” where it is applied to describe a scheme that is not a statutory apprenticeship, for example in a job advert.
their policies on the effects of such mindaltering
substances
on
employees'
behaviour and ability to work, rather than on the drugs themselves, is recommended.
NEW DAWN RESOURCES 2016 LTD | Issue 2 (July 2016)
6
ACAS Early Conciliation Service ACAS has just published a lengthy research paper on the effect of its conciliation processes in employment tribunal claims. There is an enormous amount of material in the report for those interested in employment tribunal statistics. One particularly interesting point, in light of the current debate around tribunal fees, are the reasons given for claimants withdrawing their cases:
27% Said they thought they would not win or that it would be a waste of time
20% Said that the tribunal fees were off-putting
17% Said they found the process too stressful
The sample is small, but this represents some of the best information we have about the reasons for the withdrawal of claims and the year on year reduction in the number of claims going to court.
Gender Pay Reporting Begins Government consultation on draft regulations ended 11th March 2016 and the regulations are expected to be implemented from October 2016. The first data collection date will be 30th April 2017 with the first reports due to be published by 30 th April 2018. The regulations will make it compulsory for organisations with 250 or more employees to publish information about the difference in pay between men and women. This will need to include details of the gap in bonus payments. Further details of what this means for employers are yet to be disclosed, including the particulars that they will need to provide and where the information should be published. It is expected that employers will be given time to get to grips with the legislation before the reporting requirements come into force.
Knowledge vs Risk 2
In-house
Bridge Mills, Holmfirth
NEW DAWN RESOURCES 2016 LTD | Issue 2 (July 2016)
May
Vanessa Scrimshaw
Supervisory 3
In-house
Bridge Mills, Holmfirth
June
Cheryl Evans
Knowledge vs Risk 3
In-house
Bridge Mills, Holmfirth
June
Vanessa Scrimshaw
Allergens
In-house
Bridge Mills, Holmfirth
June
Gursh Salona
L2 Health & Safety
C.I.E.H
Bridge Mills, Holmfirth
June
Gursh Salona
L2 Food Safety
C.I.E.H
Bridge Mills, Holmfirth
July
Gursh Salona
L2 Manual Handling Principles
C.I.E.H
Bridge Mills, Holmfirth
July
2016 Training Schedule – Course Subject L2 CIEH Food Safey refresher
Type C.I.E.H
Venue Bridge Mills, Holmfirth
Date July 2016
Times
Gursh Salona
Training Gursh Salona
Allergens 1 Supervisory
In-house
Bridge Mills, Holmfirth
April September
Gursh Salona Cheryl Evans
Food Safety L2 Allergens
C.I.E.H In-house
Bridge Mills, Holmfirth
April September
Gursh Salona
Supervisory 1
In-house
Bridge Mills, Holmfirth
April
Cheryl Evans
Knowledge vs Supervisory 2 Risk 1
In-house
Bridge Mills, Holmfirth
April October
Vanessa Scrimshaw Cheryl Evans
L2 COSHH
C.I.E.H
Bridge Mills, Holmfirth
October
Gursh Salona
L2 COSHH
C.I.E.H
Bridge Mills, Holmfirth
May
Gursh Salona
L2 Food Safety Supervisory 3 Supervisory 1 L2 Food Safety
C.I.E.H In-house In-house C.I.E.H
Bridge Mills, Holmfirth Bridge Mills, Holmfirth
May November May November
Gursh Salona Cheryl Evans Cheryl Evans Gursh Salona
Knowledge vs Safey Risk 2refresher L2 CIEH Food
In-house C.I.E.H
Bridge Mills, Holmfirth
May November
Vanessa Scrimshaw Gursh Salona
Supervisory 3
In-house
Bridge Mills, Holmfirth
June
Cheryl Evans
Knowledge vs Risk 3
In-house
Bridge Mills, Holmfirth
June
Vanessa Scrimshaw
Allergens
In-house
Bridge Mills, Holmfirth
June
Gursh Salona
Course Booking:
7
Cost
L2 Health Safety C.I.E.H Jo Bridge Mills, Holmfirth June Gursh Salona To book &your place please contact on 01484 680098, email Joanne@newdawnresources.co.uk or speak to your HR
Advisor for more information. A 5% discount will be applied to bookings of two delegates or more for one session. L2 Food Safety
C.I.E.H
Bridge Mills, Holmfirth
July
Gursh Salona
L2 Manual Handling Principles C.I.E.H pre-registration Bridge Mills, Holmfirth July Gursh Salona Delegates are required to complete forms and documentation for all C.I.E.H courses and payment in full is L2 CIEH Food Safey refresher C.I.E.H Bridge Mills, Holmfirth July Gursh Salona
required prior to confirmation of your booking. Supervisory 1 Certification:
In-house
Bridge Mills, Holmfirth
September
Cheryl Evans
L2 Allergens
In-house
Bridge Mills, Holmfirth
September
Gursh Salona
All courses delivered through New Dawn Resources are certified, assuming the delegate attends the full session and takes Supervisory 2 in the course. CIEH In-house Bridge Mills, a Holmfirth October Cheryl Evans an active part courses include multiple choice exam which is sent immediately following the course to L2 COSHH Bridge Mills, Holmfirth October Gursh Salona CIEH head office for marking,C.I.E.H all delegates who pass the exam will receive an official C.I.E.H certificate. Supervisory 3
In-house
Bridge Mills, Holmfirth
November
Cheryl Evans
L2 Food Safety
C.I.E.H
Bridge Mills, Holmfirth
November
Gursh Salona
L2 CIEH Food Safey refresher
C.I.E.H
Bridge Mills, Holmfirth
November
Gursh Salona
Have you visited our blog? Every 2-3 months we post a new blog on a current HR/H&S issue – a topic that has been in the news, legislation that might have recently changed or been updated, or something that we might have frequently been asked about. Our most recent blog post was on changes to ‘fit notes’ (what we once knew as ‘sick notes’) which we discovered have still been causing some uncertainty since their introduction in 2010. Visit the link below to have a quick read through our archive of posts – we’re always trying to provide plenty of useful information to businesses.
http://www.newdawnresources.co.uk/blog
NEW DAWN RESOURCES 2016 LTD | Issue 2 (July 2016)
Cheryl’s Chat - Debt & Employees Here at New Dawn we like to keep ourselves busy! One of the advantages of being members of CIPD is the opportunity we have to meet fellow associates, attend briefings and seminars on many subjects relating to HR. Following a recent client situation in which we advised a Company on how they could support a troubled employee, I thought it would be interesting to attend a briefing held by ‘Step Change’. Although I was already familiar with ‘Step Change’, a debt charity providing advice, support and solutions to people having to deal with debt problems, many companies and employees aren’t aware the organisation even exists. ‘Step Change’ provide a free service as opposed to the somewhat expensive fee charging debt management companies. We all experience difficult times throughout our life financially, some more than others. There are many reasons that people find themselves in debt and not always for the reasons you would expect such as gambling, over-spending, and unrealistic budgeting etc. More often than not being in debt is a result of a significant life changing event such as divorce, injury of the main earner, death of a spouse, or possibly unplanned dependants care costs. The impact on employees at work can be considerable. So what is it we need to watch for? As you all know, people react differently in situations and it may be that, let’s say Fred, Fred now comes into work earlier every day, clocking in and straight down to it: Fred’s name appears on every overtime list and he seems to be at work all the time. He’s earning all this money yet still comes and asks for an advance! Fred’s starting to look extremely tired but doesn’t appear to want to go home. Alternatively it can just be a change in approach to daily work, perhaps an individual becomes careless, doesn’t seem focussed on the job, not ‘with it’ or doesn’t seem as engaged as usual. They seem to be more sensitive or withdrawn, not their ‘normal, bubbly self.’ Perhaps Betty keeps having an odd day off, calling in sick when previously she has always been the first to show off her star badge for 100% attendance. When Betty is in the office there may be a lot of ‘personal’ calls for her and she is spending all her time on ‘other stuff’ rather than working on her in-tray, the normal chatty Betty is pretty quiet now and she is obviously aware of the strange looks between her fellow colleagues. Communication is key! It is so important that Managers DON’T IGNORE the signs, quite often just a 30 minute welfare meeting with Fred or Betty will open up the discussion. Deal with the issue by telling them you are a little concerned, encouraging them to tell you so that you can show understanding and support. Remember too that it’s not always employees with the lower skill level or lower rate of pay. By not dealing with the issues, Companies may find themselves at an increased risk of fraud and theft, higher sickness levels, increase in staff turnover and lower productivity. We encourage employers to have literature in the canteen, on the notice board, a poster or a few cards scattered about. ‘Step Change’ can provide this if you get in touch with them by visiting their website www.stepchange.org. The charity helps your employees to put it all in perspective. There aren’t any hidden costs and they know all about those irresponsible payday lenders! By helping your employees with a sustained payment plan to help manage finances and debts, it will help them to be able to focus on the more important things in life, family and work!
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NEW DAWN RESOURCES 2016 LTD | Issue 2 (July 2016)
NDR’s Top 3 Questions If I decided not to follow dismissal procedures for an employee on probation would the employee (the probationer) have any right to redress? Giving an employee the status of "probationer" does not give the employer the right to terminate the employee's employment without the employee having any legal recourse. Where it is a term of the employee's contract of employment that the employer will follow a disciplinary or other procedure (such as a redundancy procedure) prior to the employee's dismissal and this is not followed, if the employee can show that conducting the procedure would have taken time and therefore extended the period of employment, he or she will able to claim as damages for breach of contract lost wages for the time that the disciplinary or other procedure would have taken. The limit of damages is the time that it would have taken to pursue the procedure and, in most cases, the compensation awarded tends to be a sum of approximately three to four weeks' pay. So, if an employer dismisses an employee on probation for conduct reasons without following a contractually binding disciplinary procedure, the employer is at risk of a breach of contract claim for failing to follow its own procedure. An employee who is on probation is unlikely to have the required length of service to be able to claim unfair dismissal. However, he or she would be able to bring a claim if the dismissal is for an automatically unfair reason, such as pregnancy or whistleblowing
Should I address an employee’s poor performance through our disciplinary or capability procedure? Whether an employer should deal with an employee's poor performance through its disciplinary or capability procedure will depend on the nature of the poor performance. The employer will need to carry out an investigation, which will include meeting with the employee concerned, to establish whether the employee's poor performance is conduct or capability related. If it is conduct related (ie the employee has some control over his or her actions), it is appropriate for the employer to follow its disciplinary procedure. However, if the employee's poor performance is capability related (ie he or she does not have control over his or her failure to meet the employer's standards of performance), it will be appropriate for the employer to follow a capability procedure for performance management. It is not always obvious whether an employee's poor performance is due to capability or conduct. In some cases it will be a combination of the two. The employer may need to adopt the procedure that appears to it to be the most appropriate, and change course if the evidence that emerges suggests that this is necessary. Irrespective of which procedure the employer follows, it should comply with the Acas code of practice on disciplinary and grievance procedure.
…We don’t have a separate Capability Procedure. For many employers their standard Disciplinary Policy covers both management of conduct and capability issues. This is not necessarily a problem however a separate policy to cover capability can assist managers and employees to better understand the process of performance management. Where there is no separate policy or guidance managers must ensure they follow the conduct process but apply it to the principles of capability and performance management.
9
NEW DAWN RESOURCES 2016 LTD | Issue 2 (July 2016)
10
Top 3 Questions Continued… Should I or can I deal with all types of unauthorised absence in the same way? No. Unauthorised absence may take various forms. It can take the form of an isolated unplanned absence for a good reason (for example to care for a dependant in the event of an emergency) or a persistent pattern of unauthorised absences (for example "Monday morning syndrome"). Alternatively, an employee may "go AWOL", taking an extended period of unauthorised absence. The length of, and reason for, the absence should determine how the employer deals with it. While unauthorised absence without good cause is a disciplinary offence, an employer faced with an incidence of unauthorised absence should investigate the situation and hear the employee's explanation, before it takes formal action. The’ back to work interview’ is usually the best place to start. Clearly, employers need to be consistent, fair and non-discriminatory in how they deal with unauthorised absence, or risk being liable in the event of an unfair dismissal and/or unlawful discrimination claim. However, the level of action that is appropriate for an employer to take in respect of unauthorised absence will depend on the circumstances of the case. For example, an employee who takes a one-off day of unauthorised absence for a good reason would normally be treated differently to an employee who has a prolonged period of absence without proper cause and who repeatedly fails to return the employer's attempts to contact him or her.
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CONTACT NEW DAWN RESOURCES TEL: 01484 680098 EMAIL: INFO@NEWDAWNRESOURCES.CO.UK BRIDGE MILLS, HOLMFIRTH, HD9 3TW