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11-07-2007, 05:55 PM   #1
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Dear $username,

this GPManagement newsletter summarises the latest posts from the file uploads section, I hope you find it useful. In addition there is an update from Judicium immediately below.





Employment and Safety Newsletter


No smoking
More holidays
Company drivers and employers' liability
Minimum Wage
Retirement and dismissal
Vulnerable workers
Common sense re groups of companies
If you don't resign we'll have to dismiss you ...


1. No smoking
We've covered this before, but the smoke-free rules are now in force. Breaking them can now involve fines and penalties so it is worth drawing attention again to the new rules.

As from 1st July smoking is banned in England in all enclosed workplaces and public places - similar rules are already in force in the rest of the UK and in Ireland (although we understand that in Ireland, unlike in the UK, the ban applies to tobacco smoking only). There are heavy penalties and fines for those who break the law. Discounts for prompt payment are available if the offence is either failure to display no-smoking notices as required or smoking where smoking is prohibited. There is no discount from the fine (max £2,500) if the offence is failure by an employer or other person to discharge the duty imposed on him to prevent smoking where it is prohibited.

Workplaces covered are those used by more than one person (even if the persons who work there do so at different times or only intermittently) which have a roof and walls unless there are openings in the walls which are at least half of the wall area, excluding windows and doors that can be opened. There must be A5 size signs at the entrance to the workplace stating “No smoking. It is against the law to smoke in these premises”. There is no exemption for special smoking rooms. If a person wishes to smoke at work, they will have to go outside.

The rules cover work vehicles if they might be used by more than one person and there are special rules about signs in such vehicles (amazingly, the prescribed minimum size of in-vehicle signs is not the same in England as in other parts of the UK).

On a more entertaining note, the Daily Mail has reported that the landlord of the Wellington Arms in Southampton thinks he may have found a way around the smoking ban. Apparently his pub is the official consulate in Britain for a Caribbean island called Redonda and he is hoping to upgrade to embassy status - which would mean his pub would be on foreign soil and the ban would not apply. The Foreign Office, it seems, is unimpressed.


2. More holidays
The Government has published draft regulations to "boost the minimum holiday entitlement from 20 days a year to 24 days this October, and to 28 days from April 2009". The final regulations are expected during July.

The devil, as usual, is in the detail but the basic position is simple - workers will be entitled to the extra holiday with pay, referred to in the draft regulations as "additional leave", from 1st October 2007. For a full time worker who works 5 days a week the additional leave will be 4 days per year as from 1st October increasing to 8 days from 1st April 2009 (put back from October 2008 as previously proposed).

As with the basic 20 days holiday entitlement, part time workers will be entitled to additional leave pro rata. As at present, there will be no statutory entitlement to time off for bank holidays but if they are taken they will be counted as part (or all) of the new entitlement.

A worker's leave year for additional leave will be the same as for the basic 20 days entitlement. Additional leave will be calculated proportionally depending on when each worker's leave year starts. So, for example, a full time worker whose leave year started in April 2007 will be entitled to 2 days additional leave from October 2007 to March 2008.

Unlike the basic 20 days entitlement which is obligatory under EC law and is subject to EC requirements, additional leave is a purely UK arrangement and is not subject to EC requirements. As a result the draft regulations can and do provide that:

payment in lieu of additional leave will be permitted until 1st April 2009 (obviously payment in lieu will also be allowed without time limit when employment is terminated, as it is for the basic holiday entitlement);
carry over of untaken additional leave for up to one year will be permitted.
The draft regulations themselves are intricate and provide for various special situations. We recommend a wet towel and seeking our advice in such cases.


3. Company drivers and employers' liability
Employers can be liable for a wide variety of staff misdeeds. Sometimes this is criminal liability if a statute so provides but more often it is civil liability to, for example, a customer or client or a member of the public under the general law on "vicarious liability". The use of vehicles by staff provides particular risks to employers. The key to minimising the risk is to have a standard company policy which all staff must adhere to, set out in a document and possibly supplemented with simple instructions in each vehicle for the driver to refer to in case of any incident.

While having a car policy and issuing guidelines is important, it is not enough - employers must also take reasonable steps to ensure that their employees follow the guidelines. In respect of vehicles, items to be covered in a policy might include:

setting out the maximum number of hours driving without a break;
forbidding use of hand-held mobile phones when driving on company business or in a company car;
no-smoking rules if the vehicle is used by more than one person;
rules covering alcohol and drugs abuse;
policies and training regarding safe operation of vehicles;
who is allowed to drive;
responsibility for reporting/repairing defects;
ensuring that employees are properly licensed;
ensuring that proper insurance is in place (especially if staff use their own cars on company business).
If a company has a vehicle fleet manager it will be important not only for the HR department to know about issues which might affect employer liability but also that HR has a system to ensure that the fleet manager is kept updated on these issues as well (to take a topical example, consideration should be given to the possible effects of the Corporate Manslaughter Bill, now well on its way to becoming an Act of Parliament).


4. Minimum Wage
Draft regulations (the National Minimum Wage Regulations 1999 (Amendment) Regulations 2007) were issued in June 2007 to increase the National Minimum Wage on 1st October 2007 as follows:

for over 21 year olds the increase will be from the current £5.35 to £5.52;
for 18-21 year olds the increase will be from £4.45 to £4.60; and
for 16-17 year olds the increase will be from £3.30 to £3.40.
Also as from 1st October three new classes of persons will be added to those who do not qualify for the national minimum wage, as follows (i) persons doing work experience as part of a further education course; (ii) workers participating in the latest phase of the Leonardo da Vinci Programme (an EC scheme providing participants with vocational training); and (iii) workers participating in the EC Youth in Action Programme.

Agricultural workers have their own special minimum pay rates, depending on "grades" which range from basic trainee to management. As from 1st October the minimum wage for a standard agricultural worker in England and Wales (Scotland is slightly different) will increase from the current £5.74 per hour to £6.00 per hour.


5. Retirement and dismissal
In spite of the anti-age discrimination rules introduced last October there has been, for most people, little practical change to the law as it affects retirement age. The detail of the rules has been changed substantially but the new regulations have, in practice, a similar result as the previous rules. Under the new rules, it is still generally lawful to require an employee to retire once he or she has reached age 65 although the previous absolute bar against a person claiming unfair dismissal if dismissal took place at or after age 65 has been repealed.

The 2006 anti-age discrimination regulations were made to comply with European law. Last December the Heyday organisation (part of Age Concern) took a case to the High Court claiming that allowing enforced retirement at age 65 means the British regulations do not comply with EC requirements. The High Court referred the case to the European Court of Justice which has yet to consider it.

Informed opinion is that Heyday is unlikely to win. This view has recently been strengthened as a result of a remarkable case heard by the Employment Appeal Tribunal. An elderly gentleman named Bernard Lloyd-Briden worked as a school cleaner. He was dismissed in June 2006 at the age of 82 and sued for unfair dismissal. The pre-October 2006 rules were still in force when he was dismissed so, applying those rules, an employment tribunal rejected his claim.

82 year old employees are likely to be made of tough stuff and Mr L-B was no exception. He appealed to the EAT. He argued that the European law requiring Member States to remove age discriminatory rules in the employment field had been passed in 2000 and therefore the British rule placing an absolute bar against a person claiming unfair dismissal if the dismissal took place at or after age 65 had to be disregarded. Indeed, as noted above, that rule was subsequently repealed, albeit replaced by the rules to which Heyday objects.

In June 2007 the EAT has dismissed Mr Lloyd-Briden's appeal. If the European Court in the Heyday case applies similar rationale to that used by the EAT it will presumably dismiss Heyday's claim that the retirement provisions in the October 2006 UK age discrimination rules are incompatible with European law.

So it seems likely that employers will continue to be able to require retirement at age 65 - but they will have to be careful to comply with the procedures set out in the new rules.


6. Vulnerable workers
In England and Wales the Safeguarding Vulnerable Groups Act 2006 (in Scotland the Protection of Vulnerable Groups (Scotland) Act 2007) is concerned with ensuring that people with inappropriate records are not involved in work with children or vulnerable adults. New proposals are concerned with extending protections for vulnerable employees.

Shortly before being promoted to Chancellor of the Exchequer, the then Trade and Industry Secretary Alistair Darling outlined plans for a new "Vulnerable Worker Enforcement Forum". The idea is to "bring together experts from unions, business, enforcement and advice bodies, to look at the best way to protect the vulnerable in the workforce". A two year pilot project is already being set up to provide advice and support to cleaners, security guards, caretakers and housekeeping staff working in building services in the City of London and Tower Hamlets and a similar project has been launched in Birmingham.

At the same time the TUC has published a 'Safety and migrant workers' guide for employers and unions. This says that the long hours worked by many migrant workers mean many risk accidents due to overtiredness, are denied sick pay so come into work when they are too ill to do so, and that a lack of fluent English prevents many from grasping basic safety procedures at work.

The problems are generally not so much legal as social and medical. So far as the law is concerned, the difficulties are concerned more with law enforcement than with "the law". The message generally is that employers who seek to cut corners should watch out as the enforcement agencies will be increasingly pro-active. The first step is for employers to make sure they are up to date with relevant rules and regulations - which is where we come in and we hope is one way in which we can help.


7. Common sense re groups of companies
As is well known, an incorporated company is a legal "person". That recently produced a major problem for a financial services group which lost two senior employees who left and set up in competition.

The Beckett Investment Management Group tried to enforce restrictive covenants in the employment contracts of the two men. The covenants prevented them from providing financial advice to Beckett group clients for 12 months. The problem for the Beckett group was that the contracts were with the group holding company but the clients were all clients of subsidiary companies in the group. As a result the High Court held that the covenants were valueless. The company which had the benefit of them was just a holding company which had no clients and no business of its own to protect.

The Beckett group appealed to the Court of Appeal. The Court of Appeal has rejected the High Court's "technically attractive" approach as it would produce a "futile conclusion" - thus commonsense won through in the end and the covenants were held to be enforceable as intended.

There is an important lesson here. Although the Beckett group won in the end, it took the cost and worry of a case going all the way to the Court of Appeal to achieve what could and should have been achieved much more easily, and at far less expense, if the contracts had been properly drawn up in the first place.


8. If you don't resign we'll have to dismiss you ...
Don't do it! However tempting it may be. As a general rule, forced resignations count as dismissal and further, under current rules, will generally be automatically unfair dismissal. Even if the employee concerned agrees to resign, it is quite possible that after a few days away from work, and perhaps after taking advice, he or she will decide to bring a tribunal case - and the law will generally be on their side.

The dangers for employers were emphasised by a recent case in the Court of Appeal. The operations manager in the London office of a Dutch company, Jan De Rijk Transport, was called into a meeting with two directors. He was told he was no longer trusted and it was proposed that his employment should finish a few weeks later. He negotiated terms and signed an acceptance letter. A while later he decided to sue for unfair dismissal.

At the employment tribunal the company argued that there had been a parting of the ways by mutual consent and that there was no question of dismissal, let alone unfair dismissal. The Tribunal agreed and the manager lost his case. He appealed to the EAT and lost again, the EAT agreeing with the original tribunal that there had been no "dismissal". The finding has been overturned by the Court of Appeal, which handed down its decision in May 2007.

The Court of Appeal said that at the critical meeting the manager had merely been "....... doing his best on his own to salvage what he could from the inevitable fact that he was going to be dismissed. This ....... is the very antithesis of free, unpressurised negotiation......".

The Court of Appeal ruled that he had been dismissed, that the dismissal was procedurally unfair and (unusually) went so far as to say that the original tribunal's decision to the contrary was "perverse". The Court of Appeal ended by saying that "If ever a case cried out to be mediated or settled in some other way, this is that case" but ordered that if agreement was not reached it should be remitted back for rehearing for a fresh tribunal to consider the extent to which the manager might have contributed to his dismissal, which would of course affect the compensation he will receive.

The practical lesson is that rather than encourage an employee to resign it is generally safer either to start disciplinary proceedings or encourage him or her to lodge a formal grievance, depending on the situation. Either way dismissal will then not be a foregone conclusion. Of course, the position can be different if the employee has committed a misdeed so heinous that if the employee does not resign instant dismissal is justified - but that itself can involve questions of fine judgment and is to be avoided wherever possible.





CONFIDENTIALITY NOTICE
The information above is from Judicium Limited, 4 City Cloisters, 196 Old Street, London, EC1V 9FR, England. The information contained here is confidential and may be privileged. It is for the exclusive use of the intended recipient. If you are not the intended recipient, please do not distribute, copy or otherwise use this communication or the information in it. If you have received this communication in error, please notify us by e-mail at enquiries@judicium.com and then delete the e-mail and any copies of it.






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Today's Date: 11-07-2007

Activity since: 08-02-2007
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-- Threads with the most views --

Title: "Access to health Records Policy"
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Title: "Smart Card Protocol"
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Title: "Access to health Records Policy"
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Title: "Chaperone policy"
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Title: "Smart Card Protocol"
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Title: "QOF 2006 Protocols"
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Title: "Neuroleptic Medication protocol"
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(Date Posted 20-02-2007 by Jerry Cooke)
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Title: "Health And Safety Protocol"
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(Date Posted 05-02-2007 by sharries)
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Title: "Chronic Kidney Disease"
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(Date Posted 06-07-2006 by Nick Keyte)
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Title: "DES4 : Flu and Pneumococcal"
the DES 4 Guideline from Great Yarmouth PCT / / thanks for sharing - janine
(Date Posted 01-07-2006 by gary)
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o http://www.gpmanagement.co.uk/showthread.php?t=2

Title: "Smoking Cessation protocol"
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(Date Posted 22-12-2006 by gpm_admin)
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o http://www.gpmanagement.co.uk/showthread.php?t=1278

Title: "CS7 : cervical cytology"
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(Date Posted 22-12-2006 by gpm_admin)
o 1 Replies, 120 Views, Last Post: 11:06 AM, 29-01-2007 by hina
o http://www.gpmanagement.co.uk/showthread.php?t=1272
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