December 2017

2018 What you need to watch out for in the year ahead

CHRISTMAS PARTY SEXUAL HARRASSMENT Is there a balance between being a Christmas ki l l joy and al lowing a free for al l?


FESTIVE CATERING FOR LARGE GROUPS How to stay food safe this Christmas



Brexit While it is still too early to tell how the employment law landscape will change following Britain’s exit from the EU, it’s important for companies to stay up to speed during the transitional period. For now it is business as usual. At least until March 2019 all current laws and regulations remain in place and businesses should continue to comply with all current legislation. It is undeniable that the UK landscape will alter and everyone will be affected by the change once we do leave the EU but it’s very unlikely that the UK will simply repeal all EU related law. Both the government and businesses want to avoid the legal and commercial chaos that would ensue where that to happen; instead we can expect a gradual repealing and restructuring of any laws which are less favourable to the UK. 2018 is going to be a transitional year requiring enormous negotiation and, while there are uncertain times ahead, there is no need to panic. We can expect things to be business as usual at least until March 2019 when the 2 year process of withdrawing from the EU ends.

2017 was an interesting year for employment law with Brexit, the gender pay gap, sexual harassment and the gig economy dominating the headlines and we can expect 2018 to continue in the same vein. ELAS employment law consultant Enrique Garcia takes a look at the areas to watch in the year ahead. The Gig Economy The future of the gig economy remains in the air as we await further clarification from the Supreme Court. EAT decisions against Uber and Pimlico Plumbers have been appealed to the Supreme Court and the eagerly anticipated rulings will have far reaching implications. Other cases against Deliveroo and City Sprint, among others, are still making their way through the tribunals and this could yet be the tip of the iceberg. Employment status has long been the greyest area of employment law – is someone self- employed or are they really an employee or a worker? The Central Arbitration Committee (CAC)’s recent ruling that Deliveroo riders are self-employed has thrown more confusion into the arena, although it’s worth noting that this is not a binding authority. We await with interest the Tribunal ruling in the claim brought by 45 Deliveroo couriers to see how it compares to the CAC decision.


Gender Pay Gap Reporting The first gender pay gap reports are due to be published in April 2018 for the payroll period including the snapshot date of 6 April 2017. Information on any bonuses paid also needs to be published at the same time for the 12 month period ending April 2017. All companies which employ 250 or more are required to publish this information. There is no obligation for companies to explain the gender pay gap, nor any duty to address it if a company is complying with the Equality Act however, as we saw when the BBC published the salaries of its top earners, there can be huge fallout and potential reputational damage where a large gap is shown with no explanation. Furthermore, the best candidates may not be attracted to working for companies with a big gender pay gap if they feel that their gender will adversely impact their career prospects. The difference between the mean hourly rate of pay for male full-pay relevant employees and that of female full-pay relevant employees The difference between the median hourly rate of pay for male full-pay relevant employees and that of female full-pay relevant employees The difference between the mean bonus pay paid to male relevant employees and that paid to female relevant employees The difference between the median bonus pay paid to male relevant employees and that paid to female relevant employees The proportions of male and female relevant employees who were paid bonus pay The proportions of male and female full-pay relevant employees in the lower, lower middle, upper middle and upper quartile pay bands All companies with more than 250 employees are obliged to publish:

National Minimum Wage/National Living Wage These are two areas which will continue to increase in 2018, with the next raise coming on 1st April taking the National Living Wage up to £7.83 per hour for those over the age of 25. Companies who fail to pay the National Minimum Wage have nowhere to hide – twice a year the government publishes its ‘name and shame’ list, so it’s important to make sure that you are fully compliant.

The current National Minimum age is:

National Living Wage (25 years and over) = £7.50 per hour

21-24 year olds = £7.05 per hour 18-20 year olds = £5.60 per hour 16-17 year olds = £4.05 per hour Apprentice rate = £3.50 per hour

**applicable to apprentices aged 16-18 and those aged 19 years and over who are in their first year of apprenticeship. All other apprentices are entitled to the NMW for their age

On 1 April 2018 the rates will rise to: National Living Wage (25 years and over) = £7.83 per hour

21-24 year olds = £7.38 per hour 18-20 year olds = £5.90 per hour 16-17 year olds = £4.20 per hour Apprentice rate = £3.70 per hour **as above


Settlement Agreements Changes to the taxation of termination payments are expected to take place from April

Grandparental Leave It is anticipated that grandparents will be able to use the Shared Parental Leave system in order to help with childcare.  No final details have been published but the proposed legislation could mean that a grandparent could use any untaken Maternity Leave/Shared Parental Leave that has not been used by the parents. They could also be entitled to any Maternity Pay/Shared Parental Pay that has not been used by the parents of the child.  This is still at the proposal stage so we need to keep an eye on it to see if the Government decides to pursue the proposed policy or not. At this stage, few people have used Shared Parental Leave since it was introduced so it’s unclear whether or not grandparents would actually use it, should it happen. Flexible working requests are likely to be a more popular choice Parental Bereavement Bill The Parental Bereavement Bill is currently progressing through Parliament. It is currently at Committee Stage which is the most detailed part of the process, and will then need a 3rd reading in the House of Commons before going to the Lords. This Bill will entitle employees who lose a child under the age of 18 to take two week’ leave which will be paid at the statutory rate, if they have 26 weeks’ service. Currently, employed parents only have a day-one right to take a reasonable amount of unpaid time off in order to deal with an emergency involving a dependent, including death of a dependent. The Government confirmed its backing for the Parental Bereavement (Leave and Pay) Bill in October 2017 but it’s unlikely to take effect in 2018, more likely 2019 or even 2020. Once it has passed all the parliamentary stages it will then require regulations to be made to define who gets the leave beyond just the mother and father in order to become law.

2018. Employer National Insurance Contributions (NICs) will apply for all

settlements above £30,000 whereas previously they were only subject to tax. All Payments in Lieu of Notice (PILON) will be taxable under the settlement agreement, even if there is no specific PILON clause in the contract.  Previously, tax only applied if there was a PILON clause – now it’s whether or not there is such a clause. Employment Allowance From April 2018, employers will not be able to claim the Employment Allowance for one year if they have hired an illegal worker, been penalised by the Home Office or exhausted all appeal rights against that penalty. From an employment law stance, this reinforces the importance of always protecting your company by ensuring that you do right to work checks at the start of each employment. On the very first day of employment the first thing an employer should do is to introduce themselves and then take a copy of their passport, visa or other document that gives them the right to work. If an employee has a visa with an expiry date, a clear diary note should be made to seek an update when the visa is coming to an end. It is no longer good enough to say that you didn’t realise a visa had expired.



It’s the time of year when we usually focus on the dos and don’ts of the work Christmas party. However this year, with new sexual harassment allegations hitting the headlines almost daily, companies seem to be feeling more anxious about exposing themselves to the possibility of such a claim stemming from festive work gatherings. Emma O’Leary is an employment law consultant for the ELAS Group. She says: “It’s always advisable to issue a communication to staff to remind them that the Christmas party is an extension of the work place and their conduct should reflect that.  Pairing this with your policies on bullying and harassment, equality and diversity is also essential to ensuring employees are aware of their boundaries.  The introduction of alcohol does change the perspective of employees who might behave impeccably whilst sober and at work but has a serious effect on their judgement at a party when boundaries appeared blurred.   “We’ve heard from several clients who have all expressed concerns about holding a party this year in light of the Harvey Weinstein sexual harassment case and all the others that are still continuing to come to light. Whilst you can prepare and train staff as much as is reasonably possible, it’s difficult to control behaviour at the party itself.  Other than banning alcohol, which is likely to stop half of your employees from attending, it can be difficult to manage on the night.  

“It might be advisable for a manager or senior member of staff to stay sober and keep an eye on things. While it may appear, initially, as if they’re drawing the short straw, being able to remain vigilant to everyone’s actions will pay dividends in the long run. It’s important to ensure that everyone is comfortable and does not appear to be in an awkward or unwanted situation. If such a situation should arise you should take action immediately, reminding both parties what is and isn’t acceptable behaviour in a workplace environment. A quick word in the ear can often be all it takes to prevent a situation from crossing the line into something more serious although it may still be wise to follow that up in office hours to ensure that there are no concerns arising from the situation.   “Removing mistletoe so there is no temptation for lecherous lunging at an office crush is another suggestion. “There is always a balance between being a Christmas kill joy and allowing a free for all but it’s still possible to have fun as long as staff are prepared and trained. At the end of the day, employees are adults and should be expected to behave as such, respecting each others’ boundaries whilst still enjoying the spirit of the season.......”


East of England Co-op has announced that it will sell dried foods and tinned products that are beyond their best before dates for just 10p in a bid to reduce food waste. Wrap, the waste and recycling advisory body, estimates that £13bn worth of food is needlessly thrown away every year and says that Co-op’s move complies with food safety standards. Mike Williams, Director of leading UK food safety consultancy STS, says: “The fact that Co-op have taken this step of selling food after the best before date is a brilliant move by a major retailer. Retailers have run down the line of selling high quality, uniform food for quite some time and, whilst consumers are largely happy with this approach, it has increased food wastage significantly. “As most people are aware there are two types of dates on food products. Firstly, use by dates which are the dates after which food may be unsafe to eat and, secondly, best before dates which mean that food will be safe to eat after these dates but may not be of the highest quality. To be clear, Co-op is not suggesting that they will sell food which is past its use by date - not only is this unsafe, it is illegal too. “Selling food beyond a best before date is not illegal, these are just recommended dates after which food may not look, taste, smell or feel as good as they did when they were initially packaged.

"Co-op is therefore doing nothing wrong, so long as they advise their customers that the product is beyond its best before date and make sure that the food is still of a reasonable standard or quality. They are not presenting any food safety risk to their customers and, in many ways, are taking a significant moral stand which should be completely applauded. “Food is wasted for a variety of reasons in the UK. The Food Standards Agency states that 7 million tonnes of food and drink is thrown away from our homes every year at a cost of £470 per average household (total £13bn). The most commonly discarded foods are bread, fruit and vegetables. Apart from being the wrong shape, colour or size, perfectly good food is discarded purely because it is perhaps not at its highest quality after a few days on display. manufacturers can also assist in reducing food waste in conjunction with retailers. One simple step would be to consider the removal of best before dates from a variety of foods e.g. bread and unprepared vegetables. This is an area which is, in many ways, a moving feast but can only be improved upon by good and strong collaboration between manufacturers, the FSA, retailers and consumer groups.” “Co-op is only the first retailer to take this step and more will likely follow, however, food


The party season is fast approaching and caterers nationwide are planning for one of their busiest times of the year.

1. Staphylococcus – The Party Bug Staphylococcus aureaus is the bacteria most commonly linked to party foods, such as canapés and sandwiches. This is a naturally occurring food poisoning bacteria that is present in approximately 40% of food handlers’ noses, mouths and throats and on 15% of the populations’ skin. Any septic cuts and spots will also be teeming with the bug.   Food that is handled closely during preparation, such as salads, sandwiches and canapés, can easily become contaminated if you have a food handler with sloppy personal hygiene i.e. unwashed hands, coughing and sneezing while preparing food, or uncovered cuts. Fortunately Staphylococcus aureus contamination alone is unlikely to cause illness – it’s when high risk food that has been contaminated through poor personal habits is then left in the danger zone for too long, that problems arise. As the bacteria multiply in the food they produce a toxin, or poison, which can cause vomiting within 1-7 hours of eating the food. Recovery is fairly fast – generally 6-24 hours – but still, it’s not a pleasant way to kick off Christmas!

Christmas is one of the key periods when we see a peak in food poisoning cases and, although this

can in some part be attributed to cross contamination and temperature control

blunders at home with the Christmas turkey, it can also go hand in hand with caterers operating at full stretch often outside the scope of their usual day to day operations.  This brings challenges and although of course large parties can be catered for safely and soundly, food poisoning outbreaks can and do happen. Fiona Sinclair, Director of leading UK food safety consultancy STS, looks at the key food safety challenges during the party season and gives her tips on how to prevent parties going pear shaped...


The key to avoiding contamination is good personal hygiene alongside safe temperature / time control to limit the production of toxins: Catering for larger than usual volumes of party buffets will require sufficient capacity for chilled storage space, as foods such as these can’t just be left at room temperature before service

We hear from some of our clients that suppliers can often be slow at providing allergen information so make sure you get started early. Another thing to consider is making sure that you encourage your guests and customers who have allergies to communicate with you. If you can capture their allergy information during the booking process – whether that’s on booking forms for functions, website bookings or verbally over the phone – then you can prepare all necessary precautions ahead of their visit.    3. Casual Staff – Avoiding ‘Loose Cannons’ At peak times of the year, especially during the festive season, caterers will often bring in temporary or casual staff.  Even when they are hired as so-called low risk food handlers i.e. waiters, waitresses or bar staff, the law for suitable food safety instruction, training and supervision still applies whether or not they are directly handling food. All it takes is for one person to come to work with norovirus, or to not follow the correct procedures when serving a guest with a food allergy and you could see your event end in disaster.   relevant instructions to casual food handlers on all the essential hygiene rules that they need to follow. Take into consideration any language barriers and focus on what they really need to know – a good example is to ensure that they report to management if they are suffering from diarrhoea and vomiting. Retain written confirmation that each person has received this instruction for due diligence purposes.   Effective supervision is essential - whist some temporary staff will have an excellent approach to hygiene and be highly experienced, others may be new to the catering sector and/or have a less diligent approach or be less able to work autonomously. At STS our advice is to make sure that you clearly set the standards and give straightforward,

Create additional space using extra shelves, trolleys in walk-in fridges or even hired units

Once food is on display or out for service, the law states that it can only be kept out of chilled temperature control one time, for a maximum of 4 hours. STS strongly advises reducing this time as, not only has the food been in the temperature danger zone, it could also have been exposed to the risk of bugs such as norovirus from guests’ hands. STS recognises that it is sometimes difficult to manage the 4 hour rule as guests can sometimes squirrel away their leftovers in handbags, desk drawers or doggy bags.  It is human instinct not to waste food but, if this food causes illness then the blame is likely to lay with the caterers if they have not put common sense precautions in place to avoid this.   It’s not just chilled storage that needs your attention; you should also ensure that there is adequate capacity for other temperature control i.e. hot holding etc.  Now may be the time to get that blast chiller fixed! 2. Proactive Allergen Management Caterers have come a long way since the allergen laws were first introduced back in December 2014, however we do sometimes find that collating allergen information for new/seasonal menus can be more of a reactive process rather than a proactive one. Information on which of the 14 allergens are present in dishes, including Christmas specials or new party menus, must be collated in time for the launch of the new menus or specials. 


4. The Law for Temporary Premises/Equipment Party catering may involve temporary kitchens in marquees, mobile stands, pop ups or Christmas market stalls. You may or may not be aware that food safety laws do actually make provisions and allowances for catering from domestic, moveable and/or temporary premises.  Considerations include setting up away from sources of contamination such as animals and pests, and designing temporary premises to ensure that food is protected from contamination. Arrangements such as removal of waste and effective temperature control will need to be considered, as will the supply of hot water - at STS we often find that there is a common misunderstanding around the provision of hand washing facilities in temporary kitchens. Where high risk, open food is handled, merely using hand-sanitizer is not an adequate substitute for correct hand washing facilities i.e. soap, hand drying, hot/suitably mixed water – even if the source is the hot water urn. If only low risk foods are for sale and unwrapped items are always handled using clean utensils or disposable gloves then antiseptic hand sanitizer may be acceptable. The Industry Guide to Good Hygiene Practice – the Catering Guide, provides some good practical advice. 5. Campylobacter - The Christmas Bug! We couldn’t possibly write an article about Christmas catering without mentioning the traditional turkey.  Research shows that approximately 70% of all chickens are contaminated with Campylobacter; turkey is another example of poultry that may be naturally contaminated with the so-called Christmas bug.  

handling raw poultry and ensuring thorough 2- stage cleaning and disinfection after preparing raw food.  It just takes as few as 500 Campylobacter bacteria to be transferred from raw poultry onto ready to eat food in order to cause stomach cramps and diarrhoea lasting for 2-7 days – not nice! The other common threat is that of undercooking. Perhaps a large bird has not defrosted in time as sufficient thawing time has not been allowed, increasing the risk of the centre not being cooked through. Perhaps poultry has simply not been cooked for long enough, or allowances not made for stuffing when considering cooking times. It’s important to allow plenty of time for defrosting and cooking, or better still buy fresh and ensure you calculate cooking times appropriately. We know that poor temperature control is a major cause of food poisoning. The Railway Arms pub is a strong reminder to make sure you get this right - they had 33 cases of Clostridium perfringens food poisoning and one customer die as a result of incorrect cooking, cooling and reheating of turkey for their Christmas dinner. The chef and manager were subsequently jailed. To summarise, festive food safety is all about the planning. Don’t just leave food safety to chance or you may end up giving the gift that nobody wants – that of food poisoning. Keep the spirit of the festive season alive and well by reviewing your food safety management systems and putting suitable controls and monitoring in place...leaving you free to enjoy the party with complete peace of mind.

There are two main threats from Campylobacter:

The first threat is cross contamination.  The Food Standard Agency (FSA)’s guidance on E.coli 0157 provides detailed information including the use of separate areas and equipment for


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