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Monthly update December 2003

Welcome to BusinessHR's December update!

Well it's now December and we seem to have had a never-ending flow of legislation this year, which is still continuing - this month we see the ban on mobile phones whilst driving, the new laws on discrimination on grounds of sexual orientation and religion or belief (just in time for the seasonal festivities!) and the EOC's Code of Practice on Equal Pay.

This may all be new - but the Christmas season isn't and yet we still get a fair range of seasonally-based helpline enquiries, so this month's hot topic had to be tips on how to manage the festive season and avoid ending up in tribunal!

Seasons greetings from all of us at businesshr.



  • Helpline hours over the Christmas period
  • Employment law update
    • Reminder of December implementations
    • Sexual orientation and religion/belief discrimination
    • Are long service benefits still OK?
    • Agency workers update
    • Working Time Opt Outs
  • Health and Safety update
    • Violence in the workplace
  • This month's hot topic: help your business survive the Christmas period
  • And finally...
    • Pay statistics highlight regional variations
    • The value of your extra unpaid hours
    • What NOT to ask at interview!
    • UK employment levels


Helpline hours over the Christmas period

Hopefully you won't need our services too much over the Christmas period, and most of you will be enjoying a well-earned break, but if you do, then we're around to advise at the following times:

  • Up to December 23 (inclusive): normal helpline hours, ie 8.00am - 6.00pm
  • Christmas Eve: 8.00am- 1.00pm - offices closed after this time
  • Christmas Day/Boxing Day - closed
  • Monday 29, Tuesday 30: 10.00am-4.00pm
  • Wednesday 31: 8.00am - 1.00pm - there will be no helpline cover for the rest of the day
  • Thursday 1st January: closed
  • Friday 2 January: 10.00am - 4.00pm

Thereafter back to normal service!


Employment Law update

Reminder of December implementations

These have been covered in previous newsletters, but just a reminder of the following implementation dates:

  • 1st December - the use of mobile phones whilst driving is banned, including text messaging and accessing any sort of data. The penalty for contravention is a fixed fine of £30 or a fine on conviction of up to £1,000 (£2,500 for drivers of goods vehicles or buses/coaches).

    Note that this ban extends to the used of a phone whilst stopped at traffic lights or during normal road hold ups - the phone may ONLY be used when the engine is switched off.

  • December 1 - The revised EOC Code of Practice on Equal Pay comes into force. The Code explains employers' obligations on equal pay, and gives guidance on how to ensure pay is determined without discriminating on grounds of sex. The revisions to this include more information on equal pay for pregnant women and women on maternity leave, grievance procedures, the equal pay questionnaire, equal pay reviews, the defence of job evaluation and new guidance on the Data Protection implications. Whilst the Code is not legally binding, it must not be ignored, as employment tribunals may take into account any failure to act on its provisions in proceedings brought under the Sex Discrimination Act 1975 or the Equal Pay Act 1970. The Code is in three sections, the first dealing with Equal Pay legislation, the second, good equal pay practice and the third outlines a draft policy. It is available on the EOC website: see See below for more information on a recent claim.

  • December 1 - discrimination on grounds of sexual orientation becomes unlawful

  • December 2 - discrimination on grounds of religion or belief becomes unlawful

  • December 11 - new legislation relating to e-marketing comes into force prohibiting the sending of unsolicited commercial emails ("spam") unless the sender has the prior consent of the recipient via an "active opt-in". Cookies and similar programs will only be allowed if the visitor to a website is told what is happening, and given an opportunity to reject or accept them.


Sexual orientation and religion/belief discrimination

Some of the unions are already challenging the new regulations. They object strongly to two aspects of these:

firstly, the exemption regarding sexual orientation where the job involves working for an organised religion, and the requirement is necessary in order to comply with the doctrines of the religion or to avoid a conflict with the religious convictions of its followers. They claim this will enable employers to unfairly discriminate if they operate within a school, voluntary organisation, charity or private company with a religious ethos.

Secondly, the ability to give benefits to married people only, eg pension scheme benefits. They argue that this is indirect discrimination as gay people are not able to marry their partners.

If their objections are heard quickly, (and they are expected early in the New Year) and the courts find in their favour, it may be that there are changes to these two new pieces of legislation within a very short space of time!


Are long service benefits still OK?

Many employers who traditionally have rewarded long serving employees (either through incremental pay scales, or improved benefits such as increased holiday or longer sick pay) will have breathed a sigh of relief at the outcome of HSE v Cadman. Ms Cadman complained that four male comparators, employed on the same grade as her, received higher pay. The main factor for this was length of service, and Ms Cadman asserted that this had a disproportionate impact between men and women.

The EAT considered whether the discriminatory effect of using length of service as a criterion in determining pay was balanced against the employer's reasonable needs, and decided that the HSE were justified in using length of service and the HSE's appeal succeeded.

Whilst on the subject of long service awards, the government, recognising perhaps that employers often wish to reward long service and loyalty, is considering specifically exempting long service awards and pensions from the forthcoming age discrimination legislation.


Agency workers update

As was predicted in our November newsletter, the Temporary Agency Workers Directive has stalled. This will only return to the agenda of the EU Council of Ministers if broad agreement seems possible, and since the UK is sticking to its arguments that equal pay and rights should not apply until the worker has completed one year's continuous service (which effectively denies any rights to the vast majority of temporary workers - 74% remain in a single placement for a year), it would seem unlikely that this will progress in the near future.

A CBI survey showed that 45% of employers would offer fewer temporary work assignments under the Temporary Workers Directive, and 59% of employers felt that the directive would make temporary workers less affordable, and would have a detrimental effect on the work opportunities for the unemployed, ex-offenders and working mothers.

However, at the same time as the EU directive stalls, other proposals for further regulations regarding temporary workers have been announced. These relate to temporary workers who work with vulnerable groups (children, elderly or infirm people). Agencies who supply tempos working in these areas will be required to obtain copies of relevant qualifications, take up two references and take reasonable steps to confirm the suitability of the worker. These regulations will come into force next April.

In addition, the regulations will also:

  • prevent pay being withheld where the worker is unable to produce an authenticated timesheet
  • require agencies to find out from the hirer about any health and safety risks and steps taken to manage these
  • limit provisions which prevent temporary workers from accepting permanent jobs with the hiring employer unless a placement fee is paid to the agency


Working Time Opt Outs

23 November was the date when the EU was due to review the existing practice within the UK of allowing employees to "opt out" of the average maximum 48 hour-week introduced under the Working Time Regulations and it has been widely predicted that the EC would recommend its abolition.

As we send out this email, the only indication of what may happen is that it looks that the UK may be presented with a range of alternatives to the opt-out. It would seem that there are no plans to amend the directive itself, but what is unclear is whether this range of alternatives will include the current ability to opt out. The government has declared it will fight to keep the opt out (perhaps in response to the 39% of employers who say that its removal would have a serious impact on their business) and the TUC are lobbying hard for its removal and feel that workers are coming under increasing pressure to sign an opt-out clause. Watch this space!



Health and Safety update

Violence in the workplace

They may be paid more (see below) but Londoners are suffering increasing levels of violence at work, ranging from physical assault to intimidation, threats and verbal abuse. 170,000 incidents were reported in the last year (affecting 4.3% of the workforce). Workers in transport, retail and leisure are most at risk, and, as would be expected, people who work alone, or at night, or handle cash are particularly vulnerable.

If your workers are likely to face any violence - either internally or from the public - then do review your risk assessment and ensure that you are taking all reasonably practicable steps to reduce this and to make provision for help, training and security for those concerned.

And whilst on this subject, we've had a few calls to the helpline regarding lone workers recently.

The HSE has just published some new guidance on this topic, aimed at reducing the threat of violence to lone and mobile workers. The guide suggests a number of cost effective ways of tackling violence, including some fairly simple but effective measures. They recommend that employees should be told not to go into a situation if they feel at risk, and if they feel threatened they should make an excuse and leave. Behaving in a non-confrontational manner and being aware of how body language and behaviour impacts on others is also important. The HSE reminds us that risk assessments should cover this aspect of employment, and that training and information should be provided to those involved. Mobile phones, personal panic alarms, doubling up with another colleague, and simple systems which keep track of staff movements may help.


This month's hot topic: help your business survive the Christmas period!

Whilst we have no desire to put a damper on the festive proceedings, we would like to share our experience of the range of issues our clients have called us about in the past.


Some businesses have written policies on accepting gifts from clients and suppliers. These range from the "small gifts of negligible value may be accepted" to "any gift may be accepted but must be declared to your manager" to "no gifts of any kind may be accepted without your manager's prior consent". Make sure you spell out what is acceptable in your business and what your employees are permitted to accept. You may wish to remind them now of any policy that is already in place or send out a memo before they start to be offered gifts.

Gifts from clients of up to £150 are tax free as long as they:

  • are not in cash but must be goods or vouchers that can only be exchanged for goods
  • must not have been required by the employer
  • must not be in recognition of work done or due to be done.

Where gifts are provided to the whole workforce, eg a Christmas hamper, although this may not form a specified part of their contract of employment, if you have done this every year for some time, this could be construed as custom and practice, so you may have difficulty in removing such a benefit. And even if your contract does stipulate that such gifts are entirely discretionary, bear in mind the impact this will have on your employee's motivation if a valued perk is withdrawn and no reason given. Such gifts will usually be taxable - do check with your local tax office, giving them the details of what you are proposing to do, and then consider whether you will foot the tax bill on your employees' behalf.

Don't forget that part-timers and those on fixed term contracts must get the same, pro-rata, as their full-time, permanent comparators.


Have you considered what you will do if everyone wants the same day off? If your business does not close down, do you need a "skeleton staff" and how will you decide who is allowed to take each day of the holiday?

Ensure that your rules are spelt out in advance, and are clear and applied fairly to avoid grievances.

We have already received calls on the helpline regarding people wanting days other than Christmas day for religious observance. Such time off would come out of an individual's holiday entitlement (or may be granted as authorised unpaid leave) but do bear in mind the need to facilitate religious observance where this does not adversely affect the business - you may need to alter your rules slightly to accommodate this.

What if you suspect that someone is planning to take more holiday than you will authorise? Or where they have requested holiday which has been denied? If you have refused holiday, or this has happened in the past, then remind your employees of your rules and warn them that disciplinary action may be taken against those who do not return on time, or who are absent on days where holiday had been requested but refused. (You would still need to investigate and hold a proper hearing before giving a disciplinary penalty, as normal - and check whether there are mitigating circumstances!).


Out of Office messages: There have been reports of organisations sweeping the net for addresses and where they have received out of office messages stating the owner is away on holiday, have traced back their personal details and broken into their homes! Warn your staff that a simple statement that they are out of the office is therefore preferable.

Greetings Traffic

Employees exchanging Seasons Greetings both internally and externally may slow down your network considerably. If this is a problem, think about issuing guidelines, such as only allowing these during certain hours/dates or even banning them altogether (baah humbug!). Or you may wish to stop emails with lengthy video attachments or large files including Christmas quizzes, songs etc!

Race and Religion

Following on from our article last month there are a couple of things that you may wish to consider under this heading.

If many of your employees and customers are not Christian, they may respect a more general greeting in their "Christmas" Cards such as Seasons Greetings, which should not be offensive to any religion.

How about the food served at any functions? Are there alternatives suitable for religious requirements, and vegetarians? In particular, would vegans be offended by the presence of meat? Is your choice of venue acceptable to all? Some employees may be offended by having the party held within the vicinity of a bar if their religion bans alcohol. (And note that Christmas hampers should be carefully chosen so that the contents are acceptable.)

Consider carefully any entertainment offered - someone born in Ireland who gets fed up with the stream of Irish jokes told by the comedian booked for the Christmas party may make a claim under the Race Relations legislation.

Party Time

We touched upon the Christmas Party in our October newsletter and do hope you have not been so overwhelmed by possible pitfalls that you have felt the need to cancel the festive season! Assuming you have not, here are a few reminders of the steps you can take to protect your business and ensure everyone can enter into the true spirit of the traditional Christmas party.

Provision of a Christmas party is not a taxable benefit provided that this is offered to all of your employees and the cost per head is less than £75.00.

Even if the party is held off your premises, you still have a duty of care to your employees: from a health and safety aspect, and in terms of preventing harassment and bullying.

Make clear the dangers of drinking and driving. Consider limiting the availability of alcohol, and ensure that sufficient non-alcoholic drinks are available. According to the CIPD, 12% of businesses suffer disciplinary problems caused by drunkenness over the festive period. Peer pressure can influence would-be drink drivers but the best advice is to encourage employees to arrange lifts home either with non-drinking workmates, colleagues, family, friends, travel by public transport, or to book taxis or mini buses. You may even consider organising coaches or taxis from the event.

Businesses are expected to police their own events and someone such as a senior manager should remain responsible for good behaviour, making clear to all party-goers what is considered unacceptable and intervening if behaviour seems to be bordering on the unprofessional or unacceptable. If rowdiness or drunkenness occurs, for example, the responsible person should take all practicable steps to contain the problem and if necessary subsequently instigate disciplinary action.

In addition, you must take steps to protect your employees from any form of harassment. Normal rules of conduct and behaviour apply, so someone who is fondled at a party or who receives an uninvited and, to that person, indecent proposal may claim sexual harassment. Not to mention the new regulations on sexual orientation? So a gentle reminder of your policy before the event may be timely. There is also no harm in warning employees that those who do cross the line may well find themselves subject to investigation and disciplinary action.

What do you do if the employee is unable to carry out their job following any celebration, assuming they turn up for work, or call in sick when you know they are suffering from a hangover? Hangover related absences were estimated to cost up to £110M last year! Always refer to your specific policies and ensure consistency across the business. Please call our helpline prior to taking any disciplinary action regarding outside conduct, paying particular attention if you think this may be related to alcoholism.

The last working day

Finally, another common problem is the outbreak of informal celebrations during the last working day before the Christmas break. This can cause disruptions to operations and be frustrating for people who are on site but prevented from working and who would themselves prefer to be at home or in the shops preparing for the holiday. You are perfectly entitled to insist that everyone works normally until finishing time and to discipline employees who fail to do so. However, employees are often allowed to leave work or finish work early. It might be useful to insist that work continues without interruption until a stated finishing time at which time employees may go home or spend up to half an hour circulating to dispense seasonal greetings. Alcohol should be banned from the site (or restricted) and nobody should be allowed to return once they have left.

We do of course hope that, with a bit of careful planning and communication in advance, none of the above problems will arise and we look forward to a quiet festive season on the helpdesk this year! All that remains is to wish you all a season of good cheer!


And finally...

Pay statistics highlight regional variations

The GMB union has undertaken research into the differences in average wages between different parts of the country. Unsurprisingly, the City of London has the highest rates of pay with an average annual wage of £50,904! But you may not have correctly guessed the lowest - the Scottish Borders - where the annual average wage is less than half of this - at £18,491. The top 23 areas were all in London and the South East, and the lowest rates of pay were to be found in Scotland, Wales and the North of England. Nothing changes there then!

And whilst wage increases are expected to outpace inflation by around 1.1% next year (resulting in an average award of 3.6%) these are unlikely to narrow any regional differentials.


The value of your extra unpaid hours

The TUC have developed an online calculator which demonstrates the value gained by employers through workers (particularly managers) putting in extra unpaid hours on a regular basis. The average cost, were the additional hours to be paid, would be £4,500 per person, in respect of the average amount of unpaid overtime, 7 hours 24 minutes each week - the equivalent of an extra days work per person! Managers commonly put in lots of unpaid overtime, but it seems that professionals do the most - an average of 9 hours 36 minutes a week - equating to £9000 extra annual salary if this were paid!

If you would like to depress yourself by calculating how much you would have earnt for your extra contribution to your business if you were paid at either your normal hourly rate, or at an enhanced 1.5 rate, then take a look at


What NOT to ask at interview!

Last month we commented on interviewer prejudices, this month it's the interviewees' turn to have their complaints heard!

And it seems there is a fair degree of disquiet about the tasks people are required to undertake at assessment centres. Examples given included being asked to make a horse out of paper, suggest what fish they would most like to be, impersonate an animal, or sing a song.

Interviewees clearly feel justifiably concerned if they perceive tests to be irrelevant, unfair or humiliating.


UK employment levels

28.15 million people currently work in the UK - the highest level since records began in 1984. The unemployment rate is 5%, and the number of people claiming Jobseekers Allowance stands at its lowest level since September 1975 - currently 926,900.

However, despite this upbeat picture, it would seem that more than a quarter of employees believe they could lose their jobs in the next year, due to redundancy. This level of insecurity must have an impact on morale and loyalty to the business - although as we have seen, insecurity often results in a fall in absence rates!

We wish you a happy, profitable and secure 2004!


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