Monthly update May 2007
Welcome to BusinessHR's May update
- Employment law update
- Broader definition of religion or belief
- Some interesting tribunal cases
- Health and safety news
- A long hot summer ahead of us!
- And a smoke-free one!
- New on the website
- And finally...
- Increase in sickness levels and cost
- Fall in union membership
- More on the recruitment front!
Broader definition of religion or belief
What is a religion or belief?
There was a lot of debate about this when the Employment Equality (Religion or Belief) Regulations 2003 were first introduced in December 2003, and the definition was any "religion, religious belief or similar philosophical belief" - so in order to be within the scope of the regulations, a philosophical belief had to be like a religious belief. We've had very few enquiries on the helpline about this, however, it would seem that there must still have been some ongoing confusion or debate because with effect from 30 April 2007, the definition of what amounts to a religion or belief was amended - with the result that more people can potentially claim protection from discrimination.
The amendment has been introduced under the Equality Act 2006 - the word "similar" is removed, so the definition now covers any philosophical belief. What is the difference between a philosophical belief and a political belief? A member of the BNP party was not allowed to bring a claim in 2005 on the basis that fascism was not a "similar philosophical belief". Could he do so now? The new definition also clarifies that protection is afforded to those who do not have a particular religion or belief.
On 30 April also, both the sexual orientation and religion/belief discrimination regulations were extended to prohibit discrimination on the grounds of both sexual orientation and religion/belief in the provision of goods, facilities and services in education and the execution of public functions, thus bringing them into line with other discrimination legislation.
The first age discrimination claim has gone to tribunal!
Following a £32m overspend, the Royal Cornwall Hospitals NHS Trust last year announced a review of the therapy department and around 30 health workers, all over 65, were given notice in May to expire on 29 September, 1 day before the age discrimination legislation came into force. Ann Southcott (67) brought a tribunal claim: her dismissal prior to 1 October meant that instead of being entitled to 11 months’ pay (one for each year of her service) – she received just 11 weeks' pay instead. In an out of court settlement, the Trust agreed to re-instate Mrs Southcott and the other health workers dismissed on age grounds.
Can you insist on suspending someone?
Suspension on full pay is common where you are investigating a serious disciplinary matter and where the presence of the employee may hinder the investigation, or where you are concerned that the person may reoffend. Since suspension has to be on full pay, it's rare to get situations where employees don't accept this, but the following case is an example!
In Mezey v South West London & St George's Mental Health NHS Trust, Dr Mezey was a consultant psychiatrist. Her employer suspended her on full pay whilst they investigated her clinical management decisions - this was a serious situation as one of her patients, while on release from hospital, had murdered someone. Dr Mezey claimed that the trust's decision to suspend her was a breach of contract, and she sought an interim injunction to enable her to continue to undertake her non-clinical duties.
The High Court agreed to the injunction, and this was upheld by the Court of Appeal. The latter said that suspension is not a neutral act, but "inevitably casts a shadow over the employee's competence". Therefore, both suspension and dismissal are capable of being a breach of contract, depending on the facts.
Such situations are most likely to arise with professionals whose experience and skills can only be fully utilised within their chosen profession, and where their reputation is extremely important. Dr Mezey's case was also slightly different from many commercial situations - firstly, she was suspended, not during the time the internal reports were being conducted by the Trust, but after they had received an independent report. The NHS guidelines say that suspension should only be after all other action has been considered. Dr Mezey had worked for two years after the internal reports, and had agreed to forego clinical work and just do teaching and research - so there was no real reason why suspension was necessary.
Can you monitor your employees' personal communications?
This is a question that regularly crops up on our helpline (usually managers suspecting that their employees are spending their time surfing the net or emailing their friends rather than getting on with their work!)
A new case, Copland v UK C-62617/00, went to the European Court of Human Rights who decided that secretly monitoring an employee's personal communications without their consent violates the right to privacy. In this case, a secretary complained after a senior employee was found to have monitored, collected and stored personal information relating to her telephone, e-mail and internet usage between 1998 and 1999. The monitoring was extensive and lasted for up to eighteen months! There was also no policy informing employees that their communications may be monitored. Generally phone calls from business premises are felt to be covered by the Human Rights Act 1998 - which gives the right to privacy for private life and correspondence. If no warning has been given that communications may be monitored, there is a reasonable expectation of privacy - including email correspondence.
The key point to take on board here seems to be the lack of warning: under DPA guidelines, employers may monitor staff communications, but must make their employees aware of this, through communication of an appropriate policy, and following an impact assessment which shows that the monitoring is justifiable for business reasons and the benefit outweighs the intrusion.
For more information on employee monitoring see: /docs/guides/p3-dataprotact.html
A long hot summer ahead of us!
According to the Met Office predictions, we're in for another long, hot summer! With research showing that 61% of workers said their bosses failed to provide comfortable working conditions in the hot weather, do take a look at our guide to working in hot conditions and consider what simple, cost effective steps you might take to make working in the heat more bearable. Failure to do this may result in lower productivity, tiredness, headaches, insomnia, bad temper and forgetfulness! Don't say we didn't warn you!
The forthcoming ban on smoking has caused controversy and lots of press coverage after NICE, the National Institute for Clinical Excellence, suggested that employees who want to give up smoking should be allowed paid time off work to attend clinics. Some employers have already considered this, and no doubt factored the cost of such time against the statistics showing that smokers, on average, have more sickness absence than non-smokers. NICE even helps them to do this with an online calculator! (See www.nice.org.uk/phi005)
However employers will be spending on new signs (including in-vehicle signs), and possibly removing previous internal smoking areas, erecting external shelters for smoking areas - so funding additional breaks or time off may be too expensive! (And also depending on the general state of the business may not go down well with other non-smoking colleagues.)
Perhaps more helpful than NICE's suggestions, is the ACAS Q&A guide on the employment implications of the smoking ban. Note that employers are under no legal obligation to provide support to employees who want to give up smoking, and similarly have no duty to provide smoking facilities to those who continue to smoke. You may be able to permit flexible time off for employees to attend non-smoking clinics (ie the employee makes the time up). But if you do adopt NICE's suggestion and permit time off, then you may wish to protect yourself by having a signed agreement whereby the employee repays the cost of the time off if he/she continues smoking.
An interesting article we read suggested that more fruit and veg could be the key to helping smokers give up! A new study by the Duke University Medical centre found that some foods affect the way cigarettes taste. Apparently dairy products, decaffeinated drinks like water or orange juice, fruit and vegetables were found to worsen the taste of cigarettes; alcoholic drinks, caffeinated drinks (tea, coffee and cola) and meat improved the taste! The researchers recommend a change of diet to make cigarettes taste unpleasant: used in combination with standard nicotine replacement therapy this may make it easier for people!
We have now practically completed (hurrah!) a complete review of our template policies, documents and forms. If you have generated "word" versions for your own use in the past, please be aware that many of our documents, the letters in particular, are now much more easily customisable and whilst some may only have changed slightly; we would recommend that you review these and consider the updated versions. We try our hardest, when testing these, to put in lots of different circumstances and eventualities but clearly we can't think of everything! If you have any useful feedback on improving our documents, we'd like to hear this!
Increase in sickness levels and cost
The latest CBI/AXA survey reports that in 2006 workers had an average of seven days' absence due to sickness - amounting to 175 million lost working days and costing the economy £13.4 billion. This equates to an annual cost of £537 per employee - 3.3 per cent of working time. This figure is an increase from 2005, when the average employee took 6.6 days off sick and the total number of days lost was 164 million.
Long-term absence, of 20 days or more, accounted for 43% of working time lost, costing £5.8 billion. In the public sector just over half the absence (52%) was long term; in the private sector it was over a third (38%). The great majority of short-term absences are genuine, but employers believed around 12% were suspect - some 21 million days! The lowest levels of absence recorded were 2.7 days per employee; the worst were an average of 12. As usual, absence in the public sector was higher - nine days per employee as compared with 6.3 days in the private sector - so 44% higher.
And also again, as usual, size matters! Employers with fewer than 50 staff had an average of four days' absence per employee; this doubled to eight days in organisations with over 5000 employees. Employers offering rehabilitation programmes and flexible working lost less time to absence.
Looking at these figures, do you have a problem with absence?
See our overview on managing absence, but in summary:
- get the message across that paid sick leave is there for genuine sickness, and not an annual benefit to be utilised, in full, every year.
- ensure that your contracts of employment or your absence policy clearly cover your expectations regarding sick leave - spell out the conditions which need to be met to qualify for payment. If you don't have one, consider negotiating in a clause which allows you to withhold sick pay not just for abuse or misrepresentation, but also where you feel that a level of short-term absence is unacceptably high.
- ensure that return to work interviews are carried out for every absence.
- keep detailed records of short-term absences so that you can identify problems at an early stage, and allow warnings to be issued that will set the scene for disciplinary action later on if necessary.
- ensure that your staff and managers know what you expect in terms of absence rates. If managers are not taking action to manage absence, then train them to do so.
- particularly set out your expectations for new employees. Monitor probationary periods carefully and ensure that those coming from school or college, or returning to work after a long break are aware of your expected standards of attendance.
- do not pay sick pay unless employees produce the requested specific evidence of illness - too often, payment continues in the absence of medical certificates because the chain of communication to payroll breaks down. Ideally, have a clause in your contracts giving you the right to request a medical report.
- If absence is a problem, consider whether your other HR policies support managing this. Consider absence (particularly frequent short-term absences) as a factor in awarding bonuses or in salary reviews. You may wish to publish departmental attendance records - thus acting as a bit of inter-departmental competition. Attendance records may be used in your policies - as selection criteria within your redundancy policy, when awarding career breaks, secondments etc. On a more encouraging note, flexible working arrangements are known to encourage loyalty and reduce unnecessary days off.
- Try and find out the reasons why employees are not turning up for work - is there a problem you need to address? Much absenteeism is due to stress - and this is often caused by the relationship between the employee and the manager.
- keep in touch with employees on long-term sick leave, and offer support and flexible working to help them to return to work earlier.
The aim is to reduce odd days of sickness rather than penalising those who are genuinely ill. Care does need to be taken with disabled employees to ensure there is no discrimination.
See our guide to managing absence: /docs/legal/absence.html
Government figures show unions remain stronger in the public sector, where they have a presence in 86.8% of workplaces - however only one in six private sector workers belong to a union (16.6%). Surprisingly, more women (29.7%) than men (27.2%) belonged to a union. This reverses past figures, where men were more likely to belong - in 1992 the figures were 32% of women and 40% of men.
More more information see www.dti.gov.uk./publications and download "Trade Union membership 2006".
Research undertaken by an Experian company has revealed that two-thirds (66%) of candidates do not believe that employers thoroughly check the details on CVs or job application forms. If they thought they could get away with it, 39% of people would lie on their CV. 42% of those questioned claimed to know peope who had falsified information on either a CV or on an application form. 43% of the men questioned admitted that they would lie if they thought they could get away with it, compared with 36% of women. However, the vast majority (87%) said that if they knew that companies thoroughly checked all details on a CV, this would act as a deterrent.
The most likely types of 'CV fraud' are salary (23%), level of previous experience (14%) and educational qualifications (13%), followed by dates of employment (10%), job title (9%) and age (6%). Some respondents even felt that 'forgetting' their criminal records or actually faking references was worth it, if they could get away with it!
One form of checking which people are increasingly doing however - both candidate and employers - is "google" searching. A growing number of UK employers are judging job applicants on the information they find on the internet. According to research by business social network Viadeo, one in five employers find information about candidates on the web and 59% say it influences their recruitment decision. They found:
- A quarter of HR decision makers reject candidates based on personal information found online.
- Employers gave a variety of reasons for discarding
candidates based on their Internet reputation including:
- 'His MySpace website showed a negative side to him including excessive alcohol abuse and disrespect for his job'
- 'We found that the candidate was on the local police wanted list'
- 'We found that the candidate was personally into some activities which did not fit ethically into my company'
13% of HR decision makers have however been affected positively by information found online about a candidate, and would not have taken the decision to recruit them otherwise. Examples of positive findings included:
- found achievements that I might not have known about otherwise
- showed internet skills through his own website
- found out that the candidate had more to offer than she was revealing with an inadequately designed corporate application form
Following our comments on manners during interviews here are some examples from our own clients - thanks for your feedback - we enjoyed receiving your emails!
- A Chief Officer of a Local Authority would ask his secretary to phone him ten minutes in to the interview and he responded by saying he would phone the caller back in 5 minutes.
- On one occasion, an interviewee took advantage of opening the bottle of fizzy water in front of him which then went all over him as if it had been shaken up beforehand. The interview panel did not pause in their questioning!
- I was on an interview panel of 6 when one of the members fell asleep and started snoring! I was too far away to give him a nudge and the person next to him was too embarrassed to do anything about it!
- A member on the interview panel started folding paper - he said that origami helped him concentrate on what the candidate was saying - trouble was to the rest of us (and presumably the candidate) it looked as though he was bored stiff!
- Despite all of my training, and using every tactic I had, I had a candidate who I could not get more than a one word answer out of, no matter how I phrased or worded the question - I tried every open ended question in the book but he would still only say yes,no or shrug his shoulders.
- The candidate who hadn't brought a hanky, had a stinking cold and sniffed throughout the interview, despite me offering him a box of tissues. Don't think he knew how to use one!!!
- I have been a candidate at an interview where the interview panel poured themselves a cup of tea, knocked over the cups and poured tea into the tray - and didn't even offer me one!
Keep these coming - we enjoyed them!
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