Corporate Manslaughter Newsletter

PEOPLE BUSINESS NEWSLETTER

WHAT IS CORPORATE MANSLAUGHTER?

The events aboard the Costa Concordia on 13^th January raise questions not just about Captain Schettino’s actions but also about whether the Company itself could face any criminal charges.

Italian law does not mention corporate manslaughter explicitly however in the UK the Corporate Manslaughter and Corporate Homicide Act 2007 creates a means of accountability for deaths caused by very serious management failings.

In February 2011, Cotswold Geotechnical Holdings was the first UK Company to be convicted of corporate manslaughter and fined £385,000.

In the trial, the jury took just one and a half hours to find the Company guilty of failing to ensure the safety of one of its workers who died when a pit collapsed on him.

The conclusion was that the substantial cause of his death was the failure of the company to manage its affairs so as to comply with its legal duty to ensure that his health was not put at risk.

How does this relate to my organisation?

Fatal accidents at work are often associated with certain types of industry such as construction, manufacturing or engineering and of course carry higher risks in many respects. However all organisations, no matter how large or small, have responsibilities for health and safety and there are many hazards within an office environment which businesses need to be aware of.

In addition to obvious hazards such as slippery floors or open file drawers, a modern office may contain serious fire or electrical hazards or risk of dangerous fumes such as carbon monoxide.

Here we take a look at what Corporate Manslaughter Act is, its powers and what health and safety issues organisations need to take into consideration.

What is the Corporate Manslaughter Act?

Following the introduction of the Corporate Manslaugher and Corporate Homicide Act 2007, corporate liability is now based on the ways in which an organisation’s activities are managed and organised, meaning that it is easier for the authorities to prosecute companies and large organisations.

Can directors, board members or other individuals be prosecuted?

The offence is concerned with corporate liability and does not apply to directors or other individuals who have a senior role in the company.

An organisation will be guilty of an offence if the way in which its activities are managed or organised by senior management causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.  

Therefore senior managers really need to look at how their health and safety practices are monitored, carried out and followed up by those responsible in the organisation.

An organisation’s ‘senior management’ is defined as the people who play significant roles either in making decisions about how all or a substantial part of its activities are to be managed or organised or the actual managing/organising of all or part of those activities. So as well as being able to prosecute organisations individuals are still liable.

Existing health and safety offences and gross negligence manslaughter continue to apply to individuals. Prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest to do so.

Health and safety legislation

Under the Act, health and safety legislation means "any statutory provision dealing with health and safety matters" including food safety and workplace safety as enforced by HSE and local authorities.

Juries will be required to consider breaches of health and safety legislation in determining liability of companies and other corporate bodies for corporate manslaughter/homicide.

Juries may also consider whether a company or organisation has taken account of any appropriate health and safety guidance and the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such serious management failure or have produced tolerance of it.

To what extent does your organisation take account of health and safety matters?

·         Have you appointed someone to help manage your health and safety duties with the necessary skills, knowledge and experience?

·         Do you have a Health and Safety policy for your business?

·         What first aid arrangements do you have in the workplace?

·         What health and safety awareness training takes place and how often is this done?

·         Have you thought about what in your business might cause harm to people and whether you are doing enough to prevent that harm?

·         Have you considered everyone who could be harmed?  (for example, new or expectant mothers, people with disabilities, home workers , drivers, contractors)

·         How do you control those risks and put the right measures in place?

·         When was the last time a risk assessment was carried out in your business and who is responsible for making sure this happens?

Organisations need to take their obligations under health and safety law seriously in order not to be in breach of the Act.

It is advisable to review your Company health and safety policy, keep your organisation’s health and safety management systems under review and assess how activities are managed and organised.

By confidently answering the questions above your organisation will be going a long way towards reducing the risks of workplace dangers and providing a safe working environment.

Other points to consider are making sure you have a Health and Safety Law poster on display where your workers can easily read it and protecting yourself from compensation costs with Employers Liability Insurance.

What penalties does a company or organisation face?

Penalties will include unlimited fines, remedial orders and publicity orders.

Remedial orders - will require a company to take steps to remedy any management failure that lead to a death.

Publicity orders - the court can also impose an order requiring the company or organisation to publicise that it has been convicted of an offence, the amount of the fine imposed and the terms of any remedial order made.

If you would any advice or help with the implementation/review of health and safety policies, carrying out risk assessments or would like to make a comment about this newsletter please email us at: julie.ware@peoplebusiness.co.uk or call us on 01932 874944. You can also respond at http://people-insight.blogspot.com/

Is your company prepared for the Olympics?

PEOPLE BUSINESS HR NEWSLETTER

Is your company prepared for the 2012 Olympics?

With less than 200 days to go before the 2012 Olympics, ask yourself this: is your company prepared?

It is a good idea to begin forward planning in order to avoid the commotion that could potentially be caused by staff requesting time off to watch events.

Some employees are bound to want to book time off work.  Some lucky staff members might have tickets to go and watch the events, others will hope to volunteer or participate in locally organised events and some may prefer to watch the events from the comfort of their own living room or on one of the huge screens set to be erected across the country.

Even those who aren’t planning to take time off may expect their companies to air certain, popular events in the office.

And what about those who do not wish to request time off but perhaps feel annoyed at those who do?  Situations like this should be dealt with by pre-planning where possible, in order to avoid any damage to team morale.

ACAS chief executive John Taylor said:

"Employers need to start planning now to avoid problems later on, check policies and procedures and remind staff how these work in practice.

"If you've been lucky enough to get tickets for the Olympics you certainly don't want to miss out because you failed to book the time off work".

There are a number of things you can do to ensure your business runs smoothly during the Olympics, below are a few examples.

Flexible Working

With pay rises scarce and bonus pools down, this is a great way to thank and engage staff.  There is huge goodwill to be gained from accommodating flexible working requests, for example, for popular events, you could offer flexible working so employees can start and finish early.

You could also introduce a ‘buddy up’ system where two employees would organise to cover for each other to watch certain events.  If one of the employees is not interested in the Olympics, they would still have the opportunity to take time off.

Annual Leave

Make sure that the company policy regarding annual leave is clearly communicated, in preparation for a rise in requests. Accommodating people on a first come first served basis may be necessary if you cannot accommodate all annual leave requests.

You may want to think about offering an incentive for people who don't want to see the events and will work. Perhaps you could offer time off in lieu for anyone who does not take time off to watch the events.

On site viewing

Putting television screens up in workplaces, for example in a lunch room area, or allowing online viewing are relatively easy ways to give office based employees access to the events .

If you do show events at work, you will want to ensure that there is cover; you could do this by getting people to draw lots for popular events, so that anyone who wants to will at least be able to watch one game whilst at work. The Olympic timetable is available to download as a PDF document at: http://media.ticketmaster.com/en-gb/img/sys/tournament/london2012/oly-complete-u.pdf

Absence Management

You may want to think about clearly communicating your absence management policy to staff so they’re aware of reporting procedures. You may need to remind people that the rules will be enforced strictly to discourage unnecessary absence. Conducting return to work interviews for those taking time off sick is a good way of ensuring that employees follow the rules.

If, having communicated your absence policy, an employee still takes time off sick when there is a key event and you suspect this isn’t real sickness absence, arrange a return to work discussion as soon as they return.  This discussion would be to establish the reasons for their absence and if you have reasonable grounds to believe their sickness was not genuine, disciplinary action may be appropriate.

Fairness

In addition to careful planning, fairness is critical as not everyone is interested in sports or indeed the Olympics. Those who aren’t might appreciate the opportunity to pick up overtime to cover for colleagues. If employees do wish to cover for others, you could think about offering incentives such as gift cards or time off in lieu.

It may also be worth checking employment contracts, policies and procedures in order to make sure you have the right to refuse time off, should it disrupt the needs of the business.  It is important to make the allocation of leave a fair process, even if it means picking names out of a hat.

Travelling

You may wish to remind your staff that transport may be very busy during the events and that in some circumstances they might even need to plan an alternative route to work.  Mentioning this to employees in advance will give them plenty of time to plan and will reduce people turning up late to work.

Transport Minister Norman Baker, of BT, suggested that employees look into working remotely or even turn to cycling or walking to work in order to avoid congestion at what is bound to be an extremely busy time.

Encourage celebrations
Even if only some of your staff are interested in Sport this is a once in a life time event for the UK and is a good excuse to organise work based parties or events. Decorating the office, having Olympic themed lunches, featuring sporting heroes as part of more general communications are all ways of boosting morale. Why not get a small group to get their thinking hats on to find ways to do this now?

If you would like any advice on amending absence policies or you would like to make a comment about this newsletter please email us at: julie.ware@peoplebusiness.co.uk or call us on 01932 874944. You can also respond at http://people-insight.blogspot.com/

Fun at work

PEOPLE BUSINESS HR NEWSLETTER

Fun preferred to higher pay in Britain’s workplaces!

Fun is not on the agenda in Britain’s workplaces, despite British workers preferring working in a fun environment to having a higher pay recent research results conducted by Adeco reveal.

74% of employees surveyed said that they would prefer a workplace that encouraged a fun atmosphere as opposed to one where they received better pay.  86% said that they think that having fun is important and yet 70% of them also say they have worked in places where their employer has failed to promote fun in the workplace.  67% admitted that they feel less committed and loyal to their job if there isn’t a fun, competitive spirit and this results in them doing the minimum that is required of them.

We spend a lot of time at work and if we can have fun whilst working then ultimately this should improve productivity.

All good news for employers who in the current economic climate can take heart from these indications that there are other steps they can take to improve business that don’t necessarily need to involve more money.

So can you as Employers improve fun at work?

Fun doesn’t need to be about larking around.  Generating loyalty and commitment in current times involves focussing on the wellbeing and happiness of your employees. It is also about improving communication, encouraging self worth and respect and promoting a more relaxed environment.  All which in turn help to improve staff engagement, overall productivity and therefore the bottom line.

What practical steps can you take?

Here are some suggestions:

·         Review your internal communication strategy; are there improvements that you could make?

·         Consider setting up small focus groups to discuss possible improvements to the working environment.

·         Conduct a team building event

·         Introduce a “dress down” day where employees can wear more casual clothes.

·         Introduce employee of the week/month

·         Get senior managers to talk informally to staff (small Companies)

·         Conduct a staff survey (larger Companies)

·         Consider setting up a “Wellbeing Committee” who can be responsible for coming up with ideas and organising social activities.

·         Join “The Workplace Games” an Olympic campaign headed by hurlder Colin Jackson which aims to get workers competing with each other in workplace-based challenges, which are filmed and then posted on Facebook.

·         Introduce a workplace quiz night or lunch

·         Get involved in Macmillan coffee mornings

·         Hold a bring your kids/pets to work day

·         Hold a fun event for charity

·         Hold a Christmas party or evening meal

If you would like advice or further guidance on encouraging employee engagement to improve the working environment we would be happy to assist you with this.

Please email us at julie.ware@peoplebusiness.co.uk or call us on 01932 874944 or respond at http://people-insight.blogspot.com/

For refresher tips on things to consider when holding your Christmas party please see our last years December newsletter http://www.peoplebusiness.co.uk/files/Christmas_Party_Advice_newsletterfinalv2(1).pdf

Agency Workers Regulations

PEOPLE BUSINESS HR NEWSLETTER

Agency Workers Regulations 2010

The Agency Workers Regulations (AWR) 2010 came into force on 1^st October 2011.

The regulations give agency workers the entitlement to the same or no less favourable treatment than comparable permanent employees. This is with respect to basic employment and working conditions after they complete a qualifying period of 12 weeks.

Demand for temporary workers is expected to remain strong (according to recent statistics from the Recruitment and Employment Confederation) therefore a high proportion of employers are likely to be affected.

Is it just agencies that need to comply with the new regulations?

Agencies take a lot of the responsibility but employers that hire agency workers still have obligations under the regulations. If your business hires temps, you need to provide the agencies with information about your own company’s employment conditions.

Who is an agency worker?

The regulations cover agency workers supplied by a temporary work agency to a hirer. This includes most agency workers that people refer to as ‘temps’.

Agency workers supplied via intermediary/umbrella companies who are then supplied to hirers via staffing companies are likely to be agency workers under the AWR.

What rights will agency workers have?

The AWR gives temps, who suspect their rights have been infringed, the right to make a request for information in relation to basic employment terms and conditions of comparable employees and day 1 rights to shared facilities and information about vacancies.

From day one of their employment, an agency worker will be entitled to:

§  Access to shared facilities and amenities or services provided by the hirer. For example, staff restaurant, crèche facilities, transport services (local pick up service, inter-site transport)

§  Information on job vacancies with the hirer

After a 12 week qualifying period, an agency worker will be entitled to the same basic conditions of employment and equal treatment in terms of:

• Pay including bonus linked to performance. It does not include loyalty bonuses, occupational pensions, financial participation schemes, redundancy pay, contractual sick pay and maternity, paternity and adoption pay over and above statutory entitlement
• Holidays
• Night work
• Rest periods/breaks
• Duration of working time

Agency workers will also be entitled to paid time off to attend ante-natal appointments during their working hours. 

The new rules however do not mean that agency workers become permanent employees after the 12 week period.

What is meant by equal treatment in relation to pay?

Pay includes a comparable permanent employee’s salary. So, in practical terms, that comparable employee’s annual salary should be converted to an hourly or daily rate and that information provided by the hirer to the agency.

If a worker is absent or has a break from the assignment, will the 12 week period be re-set?

Certain breaks taken by the worker will only pause the time during which the worker accrues service during the qualification period. Breaks between assignments with the same organisation will pause the clock if they last for six weeks or less. Some other absences, such as sickness, jury service and annual leave will also pause the clock.

For a full list of absences that will pause the qualification period, please refer to:

http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf

Do self employed people have rights under the regulations?

Self employed workers will not be covered by the regulations if the agency or hirer is considered to be a client or customer of the self employed person. If the individual, the hirer and the agency intend for the worker to be considered self employed and not covered by the regulations, there will need to be clear evidence in a written contract and in practice to this effect.

What practical steps does my organisation need to take?

Here are some suggestions:

·         Review current systems for advertising internal permanent vacancies to ensure they are made available to any temporary workers

·         Review any on site facilities that temporary workers are entitled to have access to

·         Audit your current arrangements to consider whether agency workers are likely to be appointed for more than 12 weeks

·         Consider what roles you currently fill with temporary agency workers and determine who the relevant permanent comparators for these roles are

·         Review what the basic working and employment conditions of those comparators are

·         Collate information which will have to be given to the agencies (for example, put together a summary sheet of terms and conditions which can be provided)

·         Determine how and when this information will be passed to the agencies

·         Look at how you will share this information with any agency workers who may request it

·         Agree processes with the providing agencies to include checking when a worker meets the 12 week qualifying period

·         Consider whether you will enter into a confidentiality agreement with agencies before you disclose information to them about your terms of employment

Failure to comply

Falling foul of the AWR could result in a fine of £5,000 at an employment tribunal, which would be multiplied if more than one temporary worker at the organisation is found to have received unequal treatment under the regulations.

ACAS Chief Executive John Taylor advises “businesses really need to make sure that they have a handle on these changes. It is not something to think about down the line and get it wrong as it can be costly to your business. Some employers may try to get round the Regulations by hiring and re-hiring temps on a succession of shorter periods. But they need to be careful of the many provisos within the new law. We would always advise employers to take a fair approach as the basis for any workplace relations.”

Finally the equality given to temps is not as extensive as many thought it might be, therefore should prove not to be an administrative burden or deter your organisation from hiring agency workers in the future.

If you would like advice or further guidance regarding the Agency Workers Regulations we would be happy to assist you with this.

Please email us at julie.ware@peoplebusiness.co.uk or call us on 01932 874944 or respond at http://people-insight.blogspot.com/

Careless comments about ex-employees

PEOPLE BUSINESS HR NEWSLETTER

Beware of careless comments about

ex-employees

Employers need to take care in making any comments or sending communications about an employee, whether they are currently employed or have left the organisation.

This was highlighted earlier this year when the High Court handed down judgement in the case of McKie v Swindon College. The case acts as a reminder to all employers to watch what their employees communicate about ex-employees, even outside of a formal reference.

Mr. McKie was a lecturer at Swindon College for many years and left with a glowing reference saying that he was ‘highly recommended’ and that the college was ‘sorry to be losing him.’

Sometime after leaving Swindon College he joined Bath University where part of his role was to oversee courses at various colleges, one of those being his former employer Swindon College. This meant he would be back on their premises in a different capacity.

A few weeks after Mr. McKie started the new job, the HR Director at Swindon College sent an email to Bath University in the most damaging terms saying that they could not allow Mr. McKie back onto their premises for reasons relating to staff relationship problems and that no formal action had been taken against him because he left their employment before action was instigated.

As a result of these comments, Mr. McKie was called to a meeting with his managers at Bath University and told he could not perform the duties required by the post if Swindon College would not allow him on the premises. For this reason he was dismissed from his job with Bath University.

The High Court found that the contents of the email were largely “fallacious and untrue” and its preparation “sloppy and slapdash.” Although it was not a reference, Swindon College were found liable for losses suffered by Mr. McKie.

Points to note

·         Give careful consideration to any communications entered into in relation to ex-employees, regardless of the purpose of that communication.

·         Think twice about passing even casual comment regarding a former employee where there is a prospect that this may have a detrimental effect on that person’s career prospects.

·         Do not make any negative comments about former employees without good grounds

·         Comments made should be fair, factual and balanced

Providing references

Responding to reference requests can be either straightforward or troublesome for employers. Organisations should balance the potential liability against a broader concern for providing accurate references in hopes that other employers will reciprocate.

Think about establishing your policy, designating certain employees to give references, and confine remarks to objective, truthful information. These steps may reduce the risk of both defamation and negligent reference claims, help good employees obtain new positions, and prevent bad employees from exposing the organisation to losses, legal liability and unnecessary costs.

Telephone or verbal references

Although requests for telephone or verbal references are frequently received, it is advisable to decline such requests other than in exceptional circumstances, since information given in this way may be misinterpreted. If, as an exception, a verbal reference is given, steps should be taken to verify the identity of the enquirer and notes should be kept of the conversation. The person giving the reference should not make any statements that he/she would not be willing to make in writing.

Content of a reference

You might like to think about what you would say in response to a request, for example, for an ex-employee who:

·         Was dismissed from their position for gross misconduct

·         Resigned whilst in the middle of disciplinary proceedings

·         Had a poor sickness absence record

·         Had a grievance brought against them by another employee

The risks of claims have led to many employers simply providing very basic references with name, dates of employment and position held. A less said the better approach may be the safest way in many other situations too.

If you would like advice about establishing a policy regarding references or need help with responding to reference requests we would be happy to discuss this with you.

Please email us at julie.ware@peoplebusiness.co.uk or call us on 01932 874944 or respond at

http://people-insight.blogspot.com/

Bribery Act Newsletter

PEOPLE BUSINESS HR NEWSLETTER

The Bribery Act comes into force – 1^st July 2011

The Bribery Act 2010 aims to promote anti-bribery practices amongst businesses and came into force on 1^st July 2011.

Organisations need to take steps to address the risks of bribery and demonstrate that they have put clear practical prevention policies in place to avoid prosecution.

Failing to prevent bribery

An employer commits an offence if a person “associated” with it bribes another person for that company’s benefit. Associated persons include all those performing a service for or on behalf of your company, not just employees.

Your organisation therefore needs to think about how to prevent bribes being made by contractors, consultants, agents, employees, partners, subsidiaries and any other persons performing services for your company.

Making out a defence

The government has published the final version of its guidance on procedures that organisations can put into place (see link below). The guidance sets out the following six principles employers should consider when seeking to prevent bribery taking place. They are not prescriptive but are intended to allow flexibility.

1          Proportionate procedures – your organisation’s procedures must be proportionate to the risks it faces and the nature, scale and complexity of your organisations’ activities. The guidance notes that small organisations are unlikely to need such extensive procedures as a large multi national organisation.

2          Top level commitment – top level management need to be committed to preventing bribery and foster a culture in which bribery is not acceptable.

3          Risk assessment – your organisation needs to assess the nature and extent of its exposure to risks of bribery on a periodic basis relevant to the size and structure of your organisation. Organisations will not be required to carry out the expensive exercise of putting together lengthy policies where the risk of bribery is very low.

4          Due diligence – this is about having a risk based approach to business relationships, taking into consideration who you deal with and who provides services for you.

5          Communication – your organisation needs to seek to ensure its prevention policies are embedded and understood through communication and training.

6          Monitoring and review – risks to your organisation may change over time therefore you are advised to carry out regular reviews and re-assessments.

Corporate hospitality

The guidance from the government addresses in more detail the issue of corporate hospitality and promotional expenditure (see link below).

The guidance expressly states “Bona fide hospitality and promotional, or other business expenditure which seeks to improve the image of a commercial organisation, better to present products and services, or establish cordial relations, it is recognised as an established part of doing business and it is not the intention of the Act to criminalise such behaviour”

Examples of what may or may not be considered acceptable are included in the guidance.

What steps can your organisation take to prevent bribery taking place?

The main message contained within the guidance is one of proportionality. It is advisable to look at where your risks are and how you respond.

Recommended steps to take:

·         Take a clear anti-bribery stance. A tone should be set throughout your organisation which communicates and enforces anti-bribery.

§  Assess where risks might lie. Compliance measures should be directed towards the operations that might be particularly exposed to bribery such as sales functions.

§  Management responsibility. Senior management should take responsibility for anti-bribery compliance within the business and ensure the tone is appropriate.

§  Have clear policies. Consider whether your business's existing policies (such as expenses) cover anti-bribery and corruption.

§  Spread awareness and record it. Anti-bribery policies and procedures should be communicated to all 'at risk' employees and third parties who conduct business on the organisation's behalf.

§  Due diligence should be conducted on all key employees and business partners who could be "at risk" including acquisition targets, pre and post engagement. Again this is one of proportionality as background checks and references may not be necessary if the risk is low.

§  Monitor and audit. Proportionate measures should be implemented that monitor and audit "at risk" functions, contracts and transactions.

§  Encourage reporting of misconduct. Consider whether your whistle-blowing and other reporting procedures are open and publicised to employees and relevant third parties. Employees should be certain that they do not face retaliation if they use these channels.

§  Consistent and robust disciplinary processes. Ensure that misconduct is dealt with consistently and proportionately and that employees are aware of the consequences of breaching the rules. Termination clauses in contracts should be reconsidered.

What can your organisation do to check whether “bribery” is taking place?

We would suggest some of the following practices:

·         Keep financial records and internal controls in place which evidence the business reasons for making payments to third parties

·         Keep a record of any charitable donations made by the company with details of which organisation the donation was made to, reasons for making the donation, when prior approval was sought and by whom

·         Check a proportion of expenses and ask employees about the purpose of dinners and lunches

·         Introduce a gift register where every item given or received over a certain amount is logged

·         Arrange for certain employees to be trained regarding the Bribery Act so individuals who are unsure can ask them for advice to ensure they do not fall foul of the law

·         Analyse annual spend with suppliers and assess what has been received over the year

·         Review on an annual basis client revenues and consider what marketing, hospitality or gifts have been offered and to which organisations to secure the sales.

Finally……whilst it may be clear what is and is not bribery at either end of the scale, there are still shades of grey in between. Inevitably the guidance does not make everything completely clear so we will have to wait and see how actively the Serious Fraud Office pursue prosecutions under the Act in the current climate, as well as what guidance is produced by the courts in case law.

http://www.justice.gov.uk/guidance/making-and-reviewing-the-law/bribery.htm

If you would like help with putting your own bribery act policy together we would be happy to discuss this with you. If you would simply like to purchase ours at £25 please email us at julie.ware@peoplebusiness.co.uk or call us on 01932 874944 or respond at http://people-insight.blogspot.com/