The cost of illness

With the cold weather about to start again it is inevitable that employers will be faced with staff illnesses but employers need to be aware that having a good sickness absence policy is key to making sure that employees are monitored appropriately.

It is estimated in the UK that about 172 million working days are lost due to sickness every year, costing the economy around £13 billion. Even with such high numbers it is estimated that there are still 28% of employers who do not have a formal sickness reporting procedure.

Employers must make sure that they have a sickness absence policy setting out clearly who to report, by what time they should report any absence and how they should report their absence. Employers should make sure hat they ask the employee what’s wrong, how long they think they will be off for and make a proper note on their personnel file. All line managers should know what the policy is and actively apply it.

If it looks like an employee may be off for sometime, make sure that you keep in contact with them and keep them fully informed about their entitlement to sick pay, contractual and otherwise. Be flexible and try and encourage an employee back to work by making simple changes to their role or workplace if necessary and consider a phased return to work.

When employees do come back, there should be a quick return to work interview, where they are asked about the cause of their absence. Again keeping g a proper note of the return to work and asking the employee to sign means that you will always have something to refer back to if you think that their absence is becoming a problem.

If people are regularly off sick and there is a pattern to their absence you need to speak to them sooner rather than later but be sure of the issues. For example work out a percentage of time off compared to others. Speak to them in private and ask them what the problem is.

It may be that they are off on regular occasions as a result of something that you can help them with, for example unfavourable behaviour by another employee or concerns about their work or workload. If it appears that there is no acceptable explanation behind their absences then tell them that if their attendance doesn’t improve then the next step will be disciplinary action.

Employers able to save £6 million

The Business Secretary Vince Cable and the Chancellor George Osborne this week announced changes to bringing unfair dismissal claims which could save employers across the country, nearly £6 million per year.

As from 6th April 2012 the qualifying period for bringing an unfair dismissal claim in the Employment Tribunal will be increased from 1 year to 2 years.

The Tribunals were originally set up to ensure that there was a cheap and relatively easy way for employees to bring claims against their employers without the need to go to the courts. The current government now intend to bring in charges to the Tribunal which will make them expensive and out of the reach of some.

When a claim is lodged in the Tribunal an upfront fee of £250 will need to be paid and a further £1,000 will be payable where a hearing is listed. If the damages sought are going to be in excess of £30,000 then the fees will be higher.

Although the fees will be refunded where a claim is successful, if a person remains out of work then the costs are likely to put a significant number of people off bringing a claim, even if their claim is not vexatious. Potentially the announcements could mean that employees are going to be unable to enforce their rights but it was also announced that those with no money would have the fee waived. There is very little detail at this stage as to who would qualify for the fees to be waived although perhaps the most likely way of assessing this is that those receiving income support will qualify.

The reality of the announcements are that although employers will have a longer period of time within which to see whether an employee is performing appropriately, they should be very wary that there may well be an increase in the number of discrimination claims on the basis that there will still be no qualifying period for such claims.

As always with such announcements more details will follow.

How could employers be affected by the recent riots?

After the number of problems caused by riots and unrest across the country, many employers are counting the cost to the business both in terms of the damage caused and the loss of business. Many employers also need to take into account the effect that the riots will have on their obligations to employees. There are four main issues that employers may need to consider.

1. Time Off

One of the main concerns that employers may have is where they have had to close the business for a period of time as a result of damage caused and what they need to do for employees.

If employees are ready and willing to work but employers are not able to provide them with work, employers will still be obliged to pay them in full unless there is a lay off or short time clause within their contract. Employers must therefore give consideration as to whether they are able to provide any other work even if it is at a different location.

Employers may be able to allow the employee to work from home or from a different office which it is reasonable to travel to or possibly the employer may be able to find suitable alternative work for the employee to do. This could be simply asking the employees to help out with the cleanup operation, provided of course any health and safety requirements are adhered to. Putting employees at risk of injury for example could leave employers open for substantial personal injury claims.

Employers must be aware however that they cannot force employees to carry out duties other than their normal ones, unless the contract of employment allows such a degree of flexibility.

If the employer finds that the business will be closed for some time and there is no lay off clause, the employer should seek an agreement to a reduction or pay suspension from the employees affected. Failure to make normal payments to employees could result in a claim for breach of contract, unlawful deduction from wages and potentially even constructive dismissal.

If the contracts allow for reduced pay, employers are likely to only have to pay the Statutory Guarantee Pay (SPG). The current rate is £22.20 per day, or the employee's normal daily pay if less. The SPG is only payable for a maximum of one working week per three-month period and is only payable to employees who have been employed for at least one month.

Employers may need to consider requests for time off for dependants. For example, where an employee is being forced to take time off perhaps where a school club has been damaged. If childcare arrangements unexpectedly break down, employees are permitted to take unpaid leave.

If however the employee requests to take the time off as annual leave, then it is for the employer to consider whether they are happy to waive the notice period for any holiday requests. Obviously employers should bear in mind that a degree of flexibility is likely to help staff morale although they are not obligated to consent to the annual leave being taken.

2. Loss of the business

Some businesses may be unable to trade at all in the future perhaps due to the premises and stock being totally destroyed as was the case with the House of Reeves building in Croydon. Where the business will not be able to continue trading potentially there is an argument that the contract of employment has been frustrated.

This means that the contract comes to an automatic end and there is no dismissal by the employer meaning that the employee will not be entitled to notice or pay in lieu and will not be able to make any claim for unfair dismissal. Employees could perhaps make a claim for redundancy under section 136 (5) of the Employment Rights Act 1996.

3. Transport issues

Some employees may have suffered from transport issues during the time of the unrest and may have perhaps arrived to work late or simply failed to turn up at all.

Where employees arrive late, there is no requirement for them to be paid for the period of time that they are not at work. Employers should bear in mind however that those employees should be allowed the opportunity to perhaps make up the time and it would certainly be unfair to take disciplinary action.

If the employee is not able to have attended work due to the transport problems, then it is not necessary for employer to pay them although it would be open to the employer to see whether they wanted to take the day as annual leave, unpaid leave or make the time up at a later date.

Any employee who had not let you know that they were not able to attend work and failed to give any appropriate reason is able to have a disciplinary procedure brought against them in line with the company's disciplinary procedures.

4. Employees arrested, charged or prosecuted

If employers have employees who are arrested, charged and subsequently convicted of any offences as a result of the riots, employers will need to give careful consideration as to whether they want to pursue disciplinary action.

Employers should not take any disciplinary action just because an employee is charged with an offence outside of work. If that employee is remanded in custody until trial, it is unlikely that they will have to be paid. If an employee subsequently receives a custodial sentence, employers may then be able to dismiss the employee concerned provided that the correct disciplinary procedures are followed. Alternatively it is possible that any contract of employment could be frustrated although employers should make sure that each case is treated on its own merits.

It is possible that employers could dismiss employees for gross misconduct if the conduct is relevant to the employers business, for example if a shop worker is convicted of theft or looting.

Any allegation that a dismissal would be on the basis of having brought the employer into disrepute is likely to be difficult unless for example it is clear that the employer was implicated. Perhaps the most obvious example would be where a rioter was clearly seen to have been wearing the employer’s uniform.

Corporate Manslaughter: Know the risks.

In February of this year, Cotswold geotechnical Holdings became the first company to be convicted under the Corporate Manslaughter and Corporate Homicide Act 2007. It was fined £385,000 after an employee was killed when a trench that he was working in collapsed in unnecessarily dangerous conditions.

Employers need to be aware that they have a general duty to ensure, as far as reasonably practicable, the health and safety of employees at work. They can be found liable for corporate manslaughter if its breach of care is particularly serious and causes an employees death. Although directors and managers can not themselves be liable for corporate manslaughter, they can be prosecuted separately for manslaughter or other offenses under health and safety legislation. Employers need to ensure that they minimise the risks of any liability by;

1. Ensuring the organisation complies with its general health and safety obligations, including any industry or sector specific duties.

2. Appointing a senior manager or director to oversee health and safety at the employers workplace

3. Considering where appropriate an independent audit of health and safety management systems and compliance

4. Providing training for staff on health and safety issues and safe working practices

5. Implementing processes to ensure that health and safety issues are reported up the management chain

6. Ensuring adequate records of compliance with health and safety are kept and properly monitored.

Employers should ensure that they do not overlook any circumstance where company cars are required to be driven. Employers need to ensure that they have systems in place that requires the safety of the vehicle if used for work purposes being checked as well as where appropriate, the fitness to drive of employees. Failure to for example have an adequate policy in place relating to driving under the influence of drink or drugs, may result in possible convictions.

The Department for Transport and the Health and Safety Executive do have guidelines and best practice for managing work-related road safety but employers must ensure that these guidelines are incorporated into an adequate policy and procedure.

Its not all about the pregnant lady

Employers are often surprised when men claim for sex discrimination as there is a fairly generalised view that only women can claim sex discrimination.

The recent case of, Evershed's legal services Ltd v Bellin has really highlighted that this is not always the case. The case itself also makes employers aware that just because somebody is on maternity leave they should not unfairly disadvantage male employees.

Mr Bellin was a solicitor who was placed at risk of redundancy alongside one of his female colleagues who at the time was on maternity leave.

A scoring system was put in place and a score was given for "lock-up" which is the time it takes for a solicitor to secure payment from clients for work done.

Due to Mr Belin’s female colleague being on maternity leave, she was given maximum points for lock up which meant that Mr Bellin was then only given a low score of 1.5.

This meant that Mr Bellin's score was 27 and his colleagues was 27.5. it was argued during the consultation exercise that alternatives could have been used such as;

1. giving both candidates a notional score of 1

2. averaging her performance over a 12 month period

3. scoring at the last convenient date before she started maternity leave i.e. the end of December 2007.

Had the firm adopted the last suggestion then the two scores would have been the same.

The Employment Appeal Tribunal found that although there are circumstances where those on maternity leave are given special treatment in comparison to their male and female colleagues, that special treatment should not go beyond what is reasonably necessary to compensate them for the disadvantage occasioned by their condition.

Employers must ensure that although an employee who is made redundant while on maternity leave does have the right to any suitable alternative vacancies ahead of any other employees, when deciding who to make redundant, automatically favouring a female employee on maternity leave does not always mean that it would not unfairly disadvantage male employees allowing them to successfully bring a claim for sex discrimination.

Equally this is something that may well affect more men in the future particularly with enhanced Paternity rights.

Its just a bit of gossip......

Every workplace has a degree of workplace banter and gossip and it is practically impossible for an employer to stop it however, an employer does need to be aware that even where an employee actively participates in banter, they can find the banter or gossip to be offensive.

For example in the case of Thomas Sanderson blinds v English, the employee was a straight male but because he lived in Brighton and had gone to a boarding school, he was teased about being gay. He did participate in the banter himself however, he finally lodged a complaint in relation to an article that was written about him and which was seen by his family.

He subsequently resigned and claimed harassment on the grounds of sexual orientation. The Employment Appeal Tribunal found that he had participated in the banter and innuendo, it could not constitute harassment however, the one article which had clearly offended him was harassment and his claim was therefore successful.

Similarly, in another case, a female employee was in a relationship with a work colleague but was seen kissing another colleague at the works Christmas party and then going in to his hotel room.

A short while later the employee discovered that she was pregnant and informed her managing partner. In turn he informed the HR manager who then started gossiping with other members of staff and speculating as to who the father might be.

The employee was upset and raised a grievance and also asked to move to a different office temporarily. Her request was refused and her grievance was not dealt with. She then resigned and claimed constructive dismissal and sex discrimination.

The spreading of gossip about the identity of the child's father was held to have constituted sex discrimination and harassment. Also, the refusal to let her work at another office also amounted to sex discrimination.

Employers must ensure that they deal with inappropriate banter and gossip by not only speaking to those involved, but also taking disciplinary action where necessary. Employees must ensure that they have a clear policy of equal opportunities and harassment and that it is readily communicated to staff through appropriate training. Failure to do so may result in the employer being open for claims against them in relation to discrimination or unlawful victimisation.

Have your say

Flexible working has always caused employers a degree of difficulty.

Initially the right to request flexible working was introduced in April 2003 but was then extended to other carers in 2007. It had been planned that in April of this year, the right to request flexible working would be extended to parents of children aged 18 or under however, the government has announced that it will not introduce the change.

The government has however committed to extend the right to all employees and as such has now launched a consultation on implementing this pledge.

It is proposed that the right to request flexible working you will be extended to all employees, regardless of their caring responsibilities and it is aimed that a consultation paper will be published later this year to consider the extension.

The government are not proposing to change the requirements of being eligible to request flexible working and the existing eight business grounds on which an employer can refuse requests will also remain unchanged.

What the government does propose however is to replace the current statutory process of considering flexible working request with a simple duty on employers to consider such requests "reasonably". It is envisaged that a statutory code of practice will be introduced outlining what reasonable consideration would involve.

The consultation period ends on 8 August 2011 and if employers want to have their say, now is the time to do so.

The Department for Business Innovation Skills has launched a new consultation document entitled consultation modern workplaces and there are four key issues that are being looked at.

These include flexible parental leave which will retain 18 weeks maternity leave for mothers but will then reclassify the remaining maternity leave as "parental leave" and will mean that the leave can be shared by the mother or father or both. Again most of it will be paid however the consultation will also cover whether employers and employees that agree for parental leave to be taken in chunks or on a part-time basis.

There are three other points which are also going to be looked at which include the extending the right to request that are working to all employees, the provision for amending the working Time regulations to allow employees to carry over untaken holiday in to subsequent years if they lose the chance to take paid holiday because of sickness absence or maternity bleak parental leave.

There is also a consultation involving whether a employment tribunal has a duty to require employers to conduct a pay audit if they have been found guilty of breaching equal pay legislation. The consultation will close on all four points on 8 August 2011.

The government has recently published an independent review of the sickness absence system. It will explore the current sickness absence system and how it could be changed to help people stay in work as well as how the overall cost of the system can be reduced.

One proposal is to place an obligation on employers to take out income protection insurance rather than the payment of statutory sick pay. This would mean that insurers will become involved at an early stage and may be able to provide support to help get employees back to work.

The current Dutch system where employers have to take full responsibility for sick employees, including finding the alternative jobs if they can not get them back to working a current role, is also being considered.

Employers have the right to participate in the review, the results of which will be reported in the autumn of this year.