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Risk Advisor - RMAS Newsletter

5th April 2011 - Stay legal with the latest copy of Risk Advisor

Risk Advisor 04/11The latest changes to Employment Law, some recent Case Law, RMAS at Huntingdonshire Business Fair and more . .

 

There is a lot to cover off this month including the latest changes to Employment Law, the first prosecution for Corporate Manslaughter, a review of some recent case law, RMAS at the Huntingdonshire Business Fair and of course the usual warped RMAS view on life.

 

What's in this month's newsletter?

 

 

 

Employment Law Changes

Here is the very latest on the Employment Law changes including information about the Royal wedding. 

 

STOP PRESS: LEGISLATION PUT ON HOLD!
In the October Newsletter we explained that a number of changes were planned to take place in April 2011 such as Additional Paternity leave; the right to request flexible working was to be extended to those with responsibility for children up to the age of 18; and the right to request time off for training is due to be extended on 6th April 2011 to all companies (not just those with over 250 employees).

The Government have announced that employment regulations are to be reviewed for their effect on small businesses.  Meanwhile two specific workplace rights are to be relaxed in order to cut red tape.


In the biggest concessions under these plans the Government have announced that employers with fewer than 250 staff will be exempt from having to give staff the right to request time off for training.  The proposal to extend the right to request flexible working to parents of children aged up to 18 – an increase from 16, will also not now go ahead in order to avoid burdening small companies.


The Government also announced their plans for a three year moratorium on new business regulation for businesses of fewer than ten employees and for genuine start ups.

 

THE BUDGET       


Further Employment Issues

Consultation will take place with employers to remove the section from the Equality Act 2010 which said that employers could be held liable for the harassment of staff by third parties. (e.g. customers or suppliers).

 

The provision in the Equality Act 2010 for dual discrimination (e.g. disability and race) which had been delayed for further consultation will not now be implemented.


Encouragement is given to public bodies to disclose their TUPE-related liabilities at an early stage of the commissioning process of public tenders.

 

Consultation will take place regarding moving the Mayday bank holiday to either St George's Day (in England) or a new 'UK Day' or 'Trafalgar Day' bank holiday during the October half term.

 

Your chance to have your say
There will be an audit of 22,000 regulations that affect business starting with those affecting retail and manufacturing and the government will be seeking feedback on which ones could be relaxed.

 

OTHER Employment Issues :

 

Facts & Figures

The following payments have or are about to increase -

  • The compensatory award for unfair dismissal increased on 1st February 2011 from £65,300 to £68,400
  • The basic award/ statutory redundancy payment increased from £380 to £400 with the maximum amount being £12,000
  • On the 6th April 2011 Statutory Sick Pay will increase from £79.15 to £81.60
  • On the 3rd April 2011 Statutory Maternity Pay/ Statutory Paternity Pay/ Statutory Adoption Pay will rise from £124.88 to £128.73

 

Positive Action in Recruitment

The Equality Act 2010 came into force on 1st October 2010 and the section regarding positive action in recruitment and promotion will apply as of 6th April 2011. ‘Positive action’ means the steps that an employer can take to encourage people from groups with different needs or with a past history of disadvantage to apply for jobs. 

One of the conditions of the positive action provisions is that employers must not routinely treat people with a protected characteristic more favourably.

 

Changes to Additional Paternity Leave

At present fathers are entitled to 2 weeks’ statutory paternity leave (OPL). However, eligible employees will now be entitled to take up to 26 weeks additional paternity leave for the purpose of caring for the child.  It applies to those babies due to be born on or after 3rd April 2011, it also applies to adoptive parents who are notified that they have been matched with a child on or after 3rd April 2011.

To be eligible for additional Paternity Leave fathers must have been continuously employed for 26 weeks by the qualifying week and must also still be employed with the same employer the week before the individual wants to start the leave.

For an individual to qualify for Additional paternity Leave they must be taking the time off to care for the child and the child mother or adopter must:

  • Have been entitled to one or more of the following – Statutory Maternity Leave, Statutory Maternity Pay, Maternity Allowance or Statutory Adoption Leave or Pay
  • Have returned to work and ceased claiming any relevant pay

 

Additional Statutory Paternity Pay

For the father to qualify for additional statutory paternity pay they must be an employed earner.  They must also earn at least the lower earnings limit for National Insurance contributions in force at the end of the qualifying week.

  • The mother or adopter must have returned to work
  • Stopped claiming any relevant pay, with at least two weeks of unexpired Statutory Pay period remaining

 

Retirement

Employment LawThere is currently some confusion over when the default retirement age (DRA) will be completely scrapped due to a revised timetable which has been published by ACAS.  This suggests that the DRA will now carry on until April 2012.  Currently employers can give between 6 and 12 months notice of an employee’s intended retirement date.

 

As a result of the transitional provisions which phase out the DRA, the 30th March 2011 will be the last point at which employers can give the full six months notice for an employee to retire prior to the scrapping of the DRA on 1 October 2011.

 

However it is understood that the Government may allow employers the right to give the full 12 months’ notice of an intended retirement date up to the date on which the transitional provisions come into force.  This will only apply to employees who are 65 on or before 30th September 2011.  

 

Business Immigration

The Government has published its proposed changes which are expected to come into force on 6 April 2011 and will make it harder for businesses to employ overseas nationals in the UK. Applications will not be guaranteed, they will be subject to more detailed rules and scrutiny, and this may have an impact on business critical issues.


Royal Wedding

The Royal Wedding is set to go ahead on April 29 this year and to mark the occasion it was announced that this date would be a bank holiday.  However, not all employees will be legally entitled to the day off. 

 

Staff will only be entitled to take an extra day's paid annual leave on the day provided their contract is worded in the appropriate way.   For example those contracts that list the specific bank holidays that staff are entitled to, such as Christmas Day or Good Friday, will not entitle staff to an extra day.  

 

Alternatively some contracts may simply state that the employee is entitled to 5.6 weeks annual holiday inclusive of bank and public holidays, in this situation, if the employee wants to take leave on the additional bank holiday, it will have to come out of their remaining holiday ‘allowance’.

Only contracts which state the worker is entitled to four weeks' holiday a year "plus bank holidays" are likely to be safe.

 

Therefore depending on how the contracts are worded it may be that the employer will have to pay for an additional day for all staff or insist that the Royal Wedding day is taken out of their existing overall holiday entitlement.

 

It will be up to the employer to make a decision about whether the day off will be paid or unpaid. Prior to making the decision the first thing to do is to check the different contracts within the company and the wording of the section relating to holiday and bank holiday entitlement. This will help to establish whether there is a contractual duty to pay for an additional day. If there is no contractual duty, consideration should be given to the impact for agreeing to an additional day or not, not only from a financial perspective but from a publicity and a moral standpoint.


FUTURE LEGISLATION TO LOOK FOR:

 

Bribery Act

The Government has delayed the implementation of the Bribery Act. It will not now come into force in April as planned, but will be put on hold while the Government rewrites guidance for businesses on how to comply with the 2010 law.

 

Agency Workers Directive

On 21 January 2010 the Agency Workers Regulations 2010 were laid before Parliament, and will come into force on 1 October 2011. 
The main purpose of the Agency Worker Directive (AWD) is to ensure the appropriate protection of temporary agency workers through the application of the principle of equal treatment and to address unnecessary restrictions on the use of agency work.

 

Changes to the Vetting and Barring Scheme (CRB checks)

The Government have carried out a major review of the Vetting and Barring Scheme some of the outcomes include that the Criminal Records Bureau which deals with disclosure of criminal records and the Independent Safeguarding Authority be merged to provide a more efficient and economic service.

CRB checks will become portable for workers moving between different jobs and the system will work towards a continuous update service where for a fee an employer can have access to up to date criminal records information online. The aim will be that the provisions of the Bill will come into force in 2012 with the final stage of introducing a new disclosure and vetting service in 2013.

If you need any assistance in reviewing your Employment procedures and documentation in light of these changes or if you just need some HR support call RMAS on 084 321 81 673 or email RMAS

 

With thanks to Judith Rowntree of JKR Human Resources for this in-depth review of the latest Employment Law changes.

 

First Corporate Manslaughter Prosecution

Building siteCotswold Geotech Holdings has become the first company convicted under the Corporate Manslaughter and Corporate Homicide Act 2007

 

It received a fine of £385,000 (a sum more than its annual turnover) to be paid in 10 yearly instalments. Whilst a real test of this Act may come when a significantly larger company is prosecuted, this judgment and level of fine suggests any smaller organisation with major shortcomings in health and safety could risk going out of business following a fatal accident.

 

If you are a small company, don’t have a suitable Health & Safety system or have not reviewed it recently call RMAS on 084 321 81 673 or email RMAS. We are here to help avoid this happening to you.

 

Case Law

Case LawIt can’t happen to me! It did to these people . . .

Here are some recent cases that have come through the courts -

 

Berisha v Dam Trading & Collier (QBD, February 2010)

In January 2006 Mr Berisha commenced work as a labourer and was injured in an accident a few days later whilst working on a cable stripping machine.  There was no guard. Even though liability is clear cut, the Claimant had difficulties bringing a claim because the employer was uninsured (even though Employers Liability insurance is compulsory).

 

The Court allowed the claim to proceed against the individual directors,  whose personal property amounted to between £1 million and £1.5 million.

The compensation (the value of which is not mentioned in the law report) and the legal costs were ultimately paid personally by the directors.

Moral: failing to take out Employers Liability insurance can prove costly!

 

Kmiecic v Isaacs (QBD, March 2010)

Mr Kmeicic had an accident when he was carrying out work as a casual labourer for Mr Sniegula, a building contractor, at the home of Miss Isaacs. Kmiecic borrowed a ladder from Isaacs to gain access to a flat roofed garage.  While using the ladder, it toppled and Kmiecic fractured his right elbow in his fall.

Sniegula was in breach of many Health and Safety regulations, particularly with regards to failing to provide adequate equipment. However, Sniegula was uninsured (even though Employers Liability insurance is compulsory). Kmeicic therefore sued Isaacs.

The judge dismissed the case because Health and Safety duties should not normally be imposed on a householder employing an independent contractor.  However, such duties could be imposed if the householder played an unusually large role in the planning, management or execution of the relevant work.

Note: this principle applies to business owners. If you contract someone to do work on your premises, don’t interfere excessively (and check that they are insured!)

 

Esdale v Dover District Council (CA, March 2010)

Mrs Esdale was injured when she tripped on a footpath which was the responsibility of Dover District Council. The path was partly concrete and partly tarmac.  She tripped on the join, which had a difference in levels of between ¾ and 1 inch. Esdale sued under the Occupiers Liability Act 1957 (an Act which applies to all occupiers of premises, whether they be business or residential).  The Council had inspected the path regularly over the years and could produce copies of the inspections. The Judge had to consider whether the “defect” gave rise to a real danger.  He felt the difference in levels was clear to see, i.e. no vegetation was growing in it to hid it, and the 2 surfaces are of different colours.  He didn’t feel that the difference in height created a significant danger.  He concurred with the Council inspector who hadn’t identified the “defect” as a problem.

 

Esdale appealed to the Court of Appeal unsuccessfully.

 

Note: This is an excellent example of an occupier undertaking regular inspections (as required by Health and Safety legislation) and then being able to rely upon the inspection records to show that they have taken all reasonable actions as required.

 

If you have feel you may be uninsured or require help with Health & Safety legislation call RMAS on 084 321 81 673 or email RMAS

 

With thanks to Ian Pears Partner at Park Woodfine Heald Mellows LLP for providing the information on these cases .

 

 

 

RMAS at Huntingdonshire Business Fair

Come and meet the team on 7th April at Wood Green Animal Shelter

FSB logo

 

Chamber of commerce logoRMAS together with our colleagues from Direct Route Collections and Account Assyst will be exhibiting at the Huntingdonshire Business Fair being held at Wood Green Animal Shelter on 7th April. The fair is open from 10.00am to 5.00pm. Please come along to find out more about our range of risk management services. The Business Fair is being run by the Cambridgeshire Chamber of Commerce and FSB



It Makes You Think

Some More of Life’s Quirks as observed by RMAS

 

Thinker

At  RMAS we are always amused by life and people, particularly when they can be so daft.

 

Here are this months’ selection:

 

Why does your Obstetrician or Gynaecologist leave the room when you get undressed if they are going to look at you anyway?

 

Why does Goofy stand erect while Pluto remains on all fours? They're both dogs!

 

If quizzes are quizzical, what are tests?

 

If corn oil is made from corn, and vegetable oil is made from vegetables, then what is baby oil made from?

 

If electricity comes from electrons, where does morality come from?

 

Why do people point to their wrist when asking for the time, but don't point to their backside when they ask where the bathroom is?

 

Please let us know of any of your favourites .

 

We trust you found the latest copy of Risk Advisor to be of interest. Please feel free to contact us if you would like assistance on any of the areas raised in this or previous publications call RMAS on 084 321 81 673 or email RMAS today.

Alternatively if you know of someone who could benefit from our services please forward this message or provide them with our details.