The EAT (Employment Appeal Tribunal) has recently given useful guidance on the circumstances under which an employer is under an obligation to conduct a risk assessment for a pregnant worker.

The EAT held that for an employer to be under an obligation to conduct a risk assessment these preconditions must be met:-

• The employee notifies the employer in writing that she is pregnant;
• The work is of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother or her baby;
• The risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace.

Bear in mind however that if the conditions are met and a risk assessment is not carried out, the employer will be guilty of discrimination.

In practical terms, this guidance suggests that a risk assessment may not be needed for a clerical worker who is not exposed to “chemical or biological agents”. On the other hand, for someone carrying out physically demanding work a risk assessment should be carried out.

The old system of sick notes changed in April, but how much difference will the move to “Fit Notes” really make in most cases?

The essential difference is that a doctor may now suggest ways in which an employee may be helped to return to work, possibly by adopting one of the following:-

• A phased return to work
• Changed hours of work
• Amended duties
• Workplace adaptations

It is important to note that the recommendations are not binding on an employer, though you should be particularly careful in the case of an employee with a disability as the Disability Discrimination Act imposes certain obligations on an employer and these have not changed.

The Department for Work & Pensions (DWP) has produced a 24 page guide for employers which you can view by Googling “fit notes”.

A useful decision from the EAT (Employment Appeal Tribunal)

Should you have staff who fail to take their holiday until the end of your company holiday year, you might well find this decision of the EAT useful. Bear in mind that decisions of the EAT are binding on employment tribunals.

In Lyons v Mitie Security the EAT held that the right to statutory leave is not inalienable. So what does that mean in plain English?

Well, if you have a notice requirement that you have to be given a month’s notice of holiday requests of a week or more & an employee (or several employees) request time in the last month of the holiday year having failed to give that notice, you as employer may say “No”. What is more, you would not be obliged to let them carry the unused leave over to the following holiday year.

All in all, a useful decision – but one to be followed very carefully.

Everyone hopes that they will never have to appear at an employment tribunal, but however careful you are & however much you follow correct procedures, it can happen to you.

Below we give some helpful tips that should help you should you have to give evidence on your own behalf or for someone else. We have seen people become so nervous when they are giving evidence that they :-

• Lose the ability to think

• Don’t know what they are saying – or where they are

• Speak at great speed – because they want to get it over with don’t they

Tribunal chairmen (or employment judges as they are now called) are used to these problems and will try to put you at ease as far as the situation makes this possible.

So try to remember these tips if it ever happens to you -

There are several questions that are asked regularly. Here, we try to answer most of them, especially the ones that concern part time workers or those employers for whom Bank Holidays are normal working days.

As there is no statutory to take Bank Holidays everything depends on the terms in the contract. For some businesses, such as care homes, bank holidays are normal working days and are stated as such in the contract.

2. Are employees who are required to work on Bank Holidays entitled to additional pay &/or time off in lieu?      

There is no statutory entitlement to either, so everything depends on the terms of the employment contract. However, all employees are entitled to at least 5.6 weeks of annual holiday based on their normal or average hours of work. For a 5 day week worker this equates to 20 days plus the 8 bank holidays. For a part timer working 15 hours per week, it amounts to 5.6 X 15 = 84 hours per year of paid holiday. Think of it as holihours rather than holidays.

So many companies seem to regard recruitment as a game of chance in which they might be lucky, but if not, the new recruit will go within the Probationary Period. This is a costly way to do things and means the chances of recruiting the “right” candidate are greatly reduced.

It still surprises me that so many companies do not take up references; do not ask to see the qualifications that candidates claim to have or even to see the original driving licence of someone who will be driving on company business.

If you want to learn how to improve your chances of recruiting successfully, I will be running a full day seminar on Friday 23rd April in collaboration with Robin Hills who has considerable experience of the proccess, including the use of psychometric testing.

Between us we will cover:-

An overview of the recruitment process

Job Descriptions and Candidate Profiles

Reviewing CV’s

Interview preparation

Types of Question – Open, Closed, Silent, Reflective, Follow-on, Non-verbal, Leading

Interviews – assessing competencies & attitudes

Avoiding discrimination – Disability, Sex, Sexual Orientation, Race, Age, Religion or Belief

Other legal issues – Data Protection, The importance of consistency and records, The right to work in the UK.

The seminar will be limited in numbers to ensure audience involvement and will cost £295.00 per person plus VAT. To register your interest, without commitment at this stage, e-mail your contact details to emplaw@btconnect.com.

On 6 April 2009, the statutory dismissal and disciplinary procedures (SDDPs) will be repealed in England, Wales and Scotland. This will mean that you no longer have to follow them when you take disciplinary action against an employee within your business.

If you have to deal with a disciplinary issue or dismissal to which the statutory procedures no longer apply, you will still have to follow a fair and reasonable procedure.

It will be expected of your business to follow the good-practice advice set out in the revised ACAS code of practice on disciplinary and grievance procedures. If you fail to do so and the issue ends up at an employment tribunal, the tribunal could increase the employee’s compensation by up to 25 per cent.

Below are the key points of the ACAS Code of Practice for disciplinary and grievance procedures for you here.  You should read and make sure you fully understand all points before entering into any disciplinary and grievance proceedings.

Key Points:-

ACAS Codes of Practice Effective from April 2009 and replaces the Statutory Disciplinary & Dismissal Procedure (SDDP)

Tribunals will take the Code into account and may increase or reduce awards by up to 25% where either employer or employee has unreasonably failed to follow its provisions

Procedures should be – in writing, specific and clear

All disciplinary and grievance matters are to be dealt with promptly and consistently

Employees have the opportunity to put their case forward before any decision is made

Employees reserve the right to be accompanied by a work colleague or trade union representative during any grievance and disciplinary proceedings

ACAS state there is the right of appeal against any decision made

Grievance and disciplinary investigations are to be prompt, full and impartial

The right to be accompanied does not apply to (purely) investigatory meetings

“If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting” It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, within this written notification

ACAS Code of Practice also states at the grievance and disciplinary hearing –
“The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this”

Comments
 
Apart from the provision to call witnesses there really is little that’s new within the ACAS Code of Practice for Grievance and Disciplinary Procedures, but it is essential that you familiarise yourself with these key points

Did you know that there is a Government funded scheme which can provide considerable financial support towards the cost of Leadership and Management Development?

For businesses with between five and 249 employees, funding can be provided for up to seven managers. The scheme allows each manager to receive up to £1,500 worth of training, development and coaching in various areas including HR Management .

Of each £1,500 the first £500 is paid from the scheme. A further amount up to £500 is then available on a matched basis i.e. pound for pound. This means that with 7 managers in the scheme, the company can receive  £10,500 worth of training at a cost to the company of only £,500.

In February the limit on the maximum compensatory award for unfair dismissal was increased to £63,000.

A number of other limits were also raised such as the statutory ceiling on a week’s pay for redundancy payment purposes, which went up to £330 per week.

Do remember that there is no upper limit on awards which are made in respect of discrimination claims.