Bribery Act (1 July 2011)
The Bribery Act aims to modernise the law and promote anti-bribery practices by making it a corporate offence for failure to prevent bribery by employees or associates acting on behalf of a business. Fines for the company are unlimited and for individuals found guilty of offering, receiving or accepting a bribe, the maximum penalty is 10 years’ imprisonment. Companies need to put in place procedures to prevent bribery. These procedures, if adequate, will form a defence to corporate prosecution.
Agency Workers Regulations (1 October 2011)
The Agency Workers Directive will ensure that agency workers in temporary work assignments receive the same basic employment conditions (pay, holidays, rest breaks, facilities, etc) as comparable permanent employees at the same company, subject to a 12 week qualifying period. The relevant pay rate will be that of a comparable worker or the 'starting rate' if one is in place. Job related bonuses are included, e.g. commission, shift premia, etc., but benefits such as pensions and company profit sharing are excluded. The legislation also incorporates additional maternity entitlements for pregnant temporary workers. For more information, view our articles section or visit AWR
Vetting and Barring Scheme (to be confirmed)
A revised and scaled down vetting and barring scheme for individuals working with vulnerable adults or children will be introduced. Registration with the scheme and monitoring requirements will be abolished although it will still be a ‘barring’ scheme.
Flexible Working (to be confirmed)
The right to request flexible working will be extended to all employees. At present the right only applies to those who have one or more children under the age of 17, or who are carers.
Parental Leave (March 2012)
Statutory parental leave following the birth or adoption of a child will increase from 3 to 4 months. A proportion of this leave is transferrable between the parents. For further details, see Parental Leave at Steeles Law.
Pensions Act (October 2012)
This legislation (The Pensions Act 2008) provides that employers automatically enrol employees into the company’s occupational pension scheme or the new personal accounts scheme under the National Employment Savings Trust pension scheme. Employers are not required to enrol individuals for the first 12 weeks of employment. For further information see the Department for Work and Pensions website.
Q. It has become apparent that our new Accounts Manager has lied on his CV about his experience and qualifications. What can we do?
A. As he has less than 12 months’ service, he could be dismissed for breach of contract, with or without payment in lieu of notice. If the deceit is serious enough to amount to a breach of mutual trust and confidence, summary dismissal could be justified. A more cautious approach would be to follow the statutory disciplinary and dismissal procedure so that the individual has an opportunity to explain himself; however, obtaining financial advantage by deception is a criminal offence. It is important that proof of qualifications and references are obtained to verify important information prior to employment commencing.
Q. One of our Consultants was recently subjected to sexual harassment at a lunch with a Client but is worried about losing the Client if she reports it. She insists on handling it herself. What are our legal responsibilities here?
A. Your legal duties here as an employer are to provide a safe working environment not only in the workplace but also at work-related social events, training courses, lunches, etc. You must ensure your employees are not subjected to unwanted conduct by other employees and by individuals they come into contact with while carrying out their duties. If no action is taken here, you could be held vicariously liable. You need to take steps to eliminate or prevent this situation from occurring again. If the employee is refusing to make a formal complaint, informal steps can be taken, such as re-assigning the Client to a male colleague or ensuring that the employee is accompanied on the next visit.
Q. A member of my Administration Team is visiting a strip club during his lunch break. He is never late back but it is upsetting some other members of the team. Can I stop him?
A. The fact he is visiting this club during his own time is very hard to stop unless you can show that it is having a negative impact on the business or team. If he wears a uniform for example, that could be seen to be bringing the name of the business into disrepute, however, if not, it would probably be best to treat this as a disagreement between staff. If it cannot be resolved informally, the company’s formal grievance procedure may be needed. Ultimately, if the objections from the other employees continue to such an extent that they refuse to work with the employee, and the individual refuses to stop visiting the strip club, you may have grounds to dismiss due to the disruption the issue is causing in the workplace. All efforts should be made to resolve the issue before reaching this stage.
Q. We have just received a quote for renewing our private healthcare policy and several members of the scheme have now reached 65. This increases the overall cost of the policy quite substantially. Can we exclude these workers from the policy?
A. Withdrawing any contractual benefit without the employee’s consent is breach of contract and could result in constructive or unfair dismissal claims. However, employment contracts often state that certain benefits are discretionary and, if the wording permits, can be withdrawn without consent. Withdrawing benefits from staff aged 65 or over is discriminatory under the Employment Equality (Age) Regulations 2006 unless this can be justified as a ‘proportionate means of achieving a legitimate aim’. Cost considerations alone are unlikely to justify discrimination, so other methods of cost saving within the business may need to be investigated rather than withdrawing benefits.
Q. One of our team is about to take maternity leave and they have recently joined our company pension scheme – are we obliged to continue payments for this period?
A. Pension contributions must continue during paid maternity leave and company contributions must be at the same rate as if the employee were still working normally.
Q. The Bank Holiday season is approaching and some of our part-time workers who do not normally work on Mondays are demanding they be given extra time off in lieu. What are our legal obligations?
A. This is quite a controversial issue with many employers taking the ‘normal working day’ approach meaning that a part-timer who does not usually work on a Monday will lose out. Whilst this does seem unfair, an employer is within their rights to refuse additional time off to those who do not normally work a Monday. A suggested course of action for employers is to pro-rata bank holidays for part-time workers in accordance with Department and Trade and Industry guidance.
Q. Our Christmas Party resulted in several incidents of fighting and a member of staff claiming she was harassed. Should we have written rules of work-related social events?
A. Yes, you should provide clear guidance to all employees prior to any social or non-social event about acceptable standards of behaviour and the disciplinary sanctions that could result from breaking these standards. It is unreasonable to expect everyone to stay completely sober but alcohol consumption can be monitored. Avoiding a free bar will reduce excessive alcohol consumption. You are responsible for the acts of employees on or off site, so assigning supervisory roles to managers is a good idea.
Q. I’ve heard that the new Corporate Manslaughter and Corporate Homicide Act (which places responsibility on the company for its employee’s negligent actions), includes driving offences?
A. This is true. The company may be held responsible for any driving offences or convictions committed whilst the employee is driving for business use regardless of whether it is in a company vehicle or not. For example, where an employee is driving to a meeting and takes a mobile call from a colleague causing an accident, it would be argued that the employer has not made policies on driving at work prominent enough and is thereby not compliant with prevailing Health and Safety legislation. Effective communication, monitoring of driving hours and clear and comprehensive driving-at-work policies are essential with this new legislation. Sanctions include unlimited fines, court orders and improvement notices.
Shepherd Stubbs takes all reasonable steps to ensure that legal information is up-to-date and accurate, but makes no representations, warranties, or assurances as to the accuracy, currency or completeness of the information provided. Information on this site is not intended to provide specific legal advice - in this case, clients should refer to their own employment law specialist.
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