November 2017

SMOKING BREAKS Should non-smokers get extra hol idays?

TRUMP ' S TWITTER DELETED How to protect your business when an employee is leaving

2 SISTERS HEARING EFRA f ind serious food safety concerns


GIVING EXTRA HOLIDAYS TO COMPENSATE FOR SMOKING BREAKS employees an additional six days of paid holiday a year to compensate them for the extra breaks that employees who smoke are taking. According to the Telegraph, a spokesman for the company said that the policy came about after a message in the company suggestion box said that smoking breaks caused problems. Their head office is located on the 29th floor and smokers have to go down to the basement level for their breaks, meaning that each smoke break lasts about 15 minutes. Emma O’Leary is an employment law consultant for the ELAS Group. She says: “This is a gripe that we hear frequently. Non-smokers often complain that it’s unfair they are not afforded the same breaks as smokers and a Japanese firm has taken these complaints seriously. If there ever was an incentive to give up smoking, surely 6 extra days annual leave per year would be it! “Here in the UK, the Working Time Regulations require an employer to provide a 20 minute rest break for anyone who works more than 6 hours. There is no further entitlement to breaks other than those that might be reasonably required from a Health & Safety perspective. Japanese marketing firm Piala Inc. has introduced a policy giving non-smoking Could this policy be something that we could see being introduced by companies here in the UK?

“There is no legal requirement to provide smoking breaks this is something that is done entirely at the discretion of the company. It is acceptable for a company to prohibit smoking breaks so staff would have to wait for their 20 minute rest break, which generally tends to take the form of a 30 – 60 minute lunch break, in order to have their cigarette. “This is something that we are unlikely to see being widely introduced here in the UK, however, if employers are looking to promote harmony in the work place then it might be reasonable for them to consider tackling the smoke break argument either by reducing the amount of breaks allowed, or also allowing non smokers to have an additional break. “We would recommend having clear guidance and boundaries in place stating what you allow in terms of breaks, including smoking breaks. This could be either an outright ban on smoking breaks or perhaps limiting breaks to 2 x 10 minute breaks a day for all employees, smokers and non-smokers. If staff are found to be abusing any breaks you offer, this should be addressed by action up to and including applying the disciplinary process.”



US President Donald Trump’s Twitter account was deleted last night, apparently by a Twitter employee on their last day at the company. Jacob Demeza-Wilkinson is an employment law consultant for the ELAS Group. He says: “This case raises an interesting and important question for employers - what can I do to protect my business when an employee is leaving? Fortunately there are things that you can do to make sure departing members of staff cause as little damage as possible. “One of the easiest measures after an employee has resigned is to consider putting them on garden leave. This means that they are not required to come in to work during their notice period, you can ask them to return all company property before they begin their leave, and you can remove access to any company databases and email systems that may be in place. This way they are not present and do not have access to do anything damaging. During a period of garden leave, an employee is still bound by the terms of their contract of employment so you still have some control over them, and can contact them during that time if necessary. “The only downside to garden leave is that the employee continues to receive their full salary during this time, so it may not be a completely desirable option as they are in effect doing

nothing and getting full pay. You would need to weigh up the costs of any potential damage against the costs of their salary to see if it is ultimately a viable option. “If, however, the employee is being dismissed then an option would be to simply pay their notice period in lieu so, again, they don’t work during that time. It is best to have a clause in your contracts of employment which allow you to pay notice in lieu as it’s not strictly correct to do so without. “Finally, when looking at employees who have access to sensitive data or the ability to cause significant damage to the business whilst carrying out their role, it may be a good idea to consider strong and robust confidentiality clauses in their contracts of employment, as well as including valid restrictive covenants. It is employment, as there are a number of criteria they need to fulfil to remain enforceable. A well written restrictive covenant clause can offer significant protection for a business when an employee leaves. It should be noted that these should only be used where they are necessary. If you have covenants in place for everyone in the business then their impact is lost, and they may not even be enforceable if or when you need to rely on them.” important to be careful when including restrictive covenants in a contract of


The Environment, Food and Rural Affairs (EFRA) Committee met yesterday to interrogate various regulatory and enforcement authorities over the recent ITV/Guardian investigation findings at the 2 Sisters Site D processing plant in West Bromwich. The committee is looking to identify why the appalling food safety failings that are alleged to have taken place at the plant could have gone unnoticed by regulatory and accreditation bodies when an undercover journalist ‘working’ at the plant was able to identify them in a space of just 12 shifts. EFRA said repeatedly during the hearings that they are seriously lacking confidence in the regulatory inspection, audit and third party accreditation audit schemes that are currently in place. Ranjit Singh Boparan, CEO of 2 Sisters, apologised to the committee for the failings, saying that mistakes happen and they are doing a lot to fix things. However he denied that his factory had low standards of food safety. As the committee pointed out however, one occurrence is a mistake, two is careless to say the least but a third major incident is an indication of a culture of malpractice. This is at least the third time that

 2 Sisters have been caught out. The issues identified by the undercover journalist are the type that requires intention, a guilty mind and a culture that accepts such practices. The ‘individual’ who was shown on the undercover footage and, according to 2 Sisters, is the root cause of the issues has, as predicted by Chris Elliott earlier this week, been sacked. It’s important to note however that Ranjit Singh Boparan testified that he was not sacked as a result of the footage but rather for denying any responsibility. Such a short term reaction is nothing unless the remedial actions that 2 Sisters described to the panel are fully and effectively implemented. "ONE OCCURRENCE IS A MISTAKE, TWO IS CARELESS TO SAY THE LEAST BUT A THIRD MAJOR INCIDENT IS AN INDICATION OF A CULTURE OF MALPRACTICE"


Fundamental concerns were expressed by the committee including a lack of confidence in the safety and quality of the food that is being provided by 2 Sisters, the general announced nature of the Food Safety Agency (FSA) and 3rd party audits such as BRC and Red Tractor, the lack of investigatory powers of the Food Crime Unit as well as the lack of permanent FSA Veterinary Officer presence in cutting plants not directly linked to slaughter houses On a positive note, one clear outcome from this hearing is that EFRA will support the provision of investigatory powers to the Food Crime Unit (FCU), a step that the FSA has been discussing with the Government since the completion of their independent review into the function of the FCU. In some ways, however, this will be small comfort when contemplating the perceived concerns that the panel has regarding the intelligence gathering capabilities and the sharing of audit data between the FSA, various certification bodies and retailers. businesses was a source of strong criticism from the panel, who repeatedly questioned why ITV, the Guardian and other media agencies have been able to identify these practices whilst the FSA and Local Authority Environmental Health Departments have not. The idea of undercover EHO’s is certainly a fascinating one and will be of great interest to see how it will progress. The FSA has a whistle blowing hotline which, they say, receives around 100-130 calls per month yet the panel did not see this as being sufficient. BRC Global Standards and other 3rd party audit standards also have whistle blowing schemes but they are clearly not having the impact that we would have hoped for. Furthermore, the response to whistle blowers can often be overwhelmingly negative, resulting in loss of employment so the incentive for employees to report poor practice is not necessarily high on their agenda. As such there definitely needs to be additional scrutiny and thought paid as to how regulatory bodies can gain accurate intelligence. The ways in which regulatory bodies obtain intelligence regarding poor practice in food

All parties involved in the panel discussion agreed that a good food safety culture helps achieve the highest of food safety standards. Those food businesses who have a very positive food safety culture will invariably have a mechanism of internal reporting where non- conformance can be raised and addressed without the need to report incidents to external enforcement bodies such as the FSA. BRC Global Standards were keen to note that their food safety standard does assess food safety culture. It is a voluntary module for food manufacturers to take up, but the panel were critical of the fact that this leaves open the possibility for managers to simply complete the question sets for all levels of staff and management with the answers that they expect would result in a passing score.



Audit methods and arrangements were highly criticised by the panel. Both FSA and 3rd party audits are largely announced to the manufacturer and, as such, there is the perception that findings such as those uncovered by ITV and the Guardian would not be found by inspectors as they could be hidden prior to the auditor arriving, then simply rolled out again after they have left. This is a significant problem with most audit standards. BRC, who conducted audits at 2 Sisters, admitted to the panel that the company had chosen to have announced audits, rather than the unannounced option which carries higher credence. Until all audits are unannounced there will always be an issue with confidence in their findings. At STS, we have committed to ensuring that all UKAS accredited audits conducted to our STS Code of Practice will be unannounced by 2019. The FSA was keen to advise that its recently published ‘Regulating our Future’ paper, which outlines the future plan for the regulation of food safety here in the UK, incorporates details of ways in which they are hoping to communicate better with Certification Bodies and retailers to ensure that audit findings are shared. On the face of the statement this is by no means clear, nor has any agreement been made. The FSA has held conversations with some standard holders i.e. the BRC, yet there are other standards that are used significantly across the food industry whose owners have not been approached. As such, the FSA’s positioning is flawed and has not been sufficiently expanded upon.

The panel was very critical of regulators, 3rd party audit standard providers and 2 Sisters alike; in several areas the criticism is very valid. Change is clearly needed, especially when it comes to the announced nature of audits. However, there are significant challenges when it comes to information sharing and intelligence gathering as well as the availability of FSA resources to monitor standards to the extent that the panel seem to expect. STS waits with high expectation to speak with the FSA about the UKAS accredited STS Codes of Practice and how they can be incorporated into their monitoring schemes. Development of a strong food safety culture is the key to ensuring that food safety standards are of the highest quality and continue to improve. 2 Sisters have admitted that “a mistake was made” although they deny that their food safety culture is simply not good enough. Mr Boparan said “we want to get better at everything, systems, procedures, training, culture all of it.” Only time will tell if they achieve their stated desire to improve the quality of the business rather than simply expanding the size of the organisation. However, creating and improving food safety culture is not a quick fix that will happen overnight, nor should it be seen as a fashionable trend, rolled out just to impress regulators and auditors. Ultimately it is the public who suffers when food safety is not treated as a high priority and, as such, the guilty minds in this business need to be exposed and real, lasting, positive changes within the culture of the company have to happen.


At the ELAS Group we have numerous ways to help you ensure your workplace is drug free. Options for screening employees include testing their urine, saliva, hair and blood – we always recommend varying the testing method so employees don’t become complacent. Whether you need a pre-placement, post-accident, reasonable suspicion, random or follow up test, we can screen for any substance, including:

Drug and alcohol abuse in the workplace may be a bigger problem than you actually realise.

According to a survey by DrugScope and Alcohol Concern, 60% of employers have experienced problems due to staff drinking alcohol and 27% of employers say drug misuse is a problem. Ignorance of the issue is not considered a valid excuse and the consequences for employers can be severe. Allowing any employee to work whilst still under the effects of drugs or alcohol endangers not only the employee but also their co-workers, your customers and clients and, in some cases i.e. if they drive for work, the general public. For more information on how you can implement drug and alcohol testing call our occupational health team today on: 08450 50 40 60

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When it comes to alcohol testing, options include pre-placement, post-accident, reasonable suspicion, random or follow up testing. A drug or alcohol test can be completed in twenty minutes, 40 minutes if you want us to test for both drugs and alcohol.


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