The Insider - August

AUGUST 2017

“The decision of the Supreme Court to strike down the tribunal fees regime has sent a shockwave through the employment law establishment establishment”

A Supreme Court ruling has abolished the government’s right to impose fees for employment tribunals. The ruling marks the end of a three and a half year legal battle by Unison to do away with tribunal fees and enable any employee to bring a tribunal claim, regardless of their financial position. Tribunal fees were introduced in July 2013, meaning anyone who wanted to bring their employer to tribunal would have to pay costs of up to £1,200, which Unison said meant some companies were able to escape punishment because people didn’t have the money to pursue a claim. The government launched a consultation to review tribunal fees earlier this year, looking at whether or not the additional cost had deterred people with genuine claims. The Ministry of Justice is currently considering the feedback from the consultation.

EnriqueGarcia is an employment lawconsultant with the ELAS Group. He says: “The decision of the Supreme Court to strike down the tribunal fees regime has sent a shockwave through the employment law establishment. Tribunal fees were immediately scrapped as soon as the decision was handed down; as the fees were made under secondary legislation, the Supreme Court judgement quashed them immediately. Tribunals are accepting claims forms without fees when the forms are filed in person; I expect that the re-coding of electronic submission forms will shortly follow. “The Government may reintroduce fees at some point in the future but, if this was to happen, they would need to do it in a way that does not restrict access to justice e.g. lower fees and/or sliding scales dependent on the value or complexity of a case etc. The Government could also introduce primary legislation so that the courts would not be able to quash them however this is highly unlikely given the scathing comments given in the judgment regarding access to justice. They are also unlikely to rely on the DUP to

“Strategic approaches will have to change e.g. taking certain approaches relying on tribunal fees as a deterrent to an employee bringing claims – this is now more risky. We would always recommend that employers are careful to treat employees lawfully in order to avoid claims in the first place.”

force this one through Parliament as the DUP are from Northern Ireland, which has no fees for tribunal claims. The Government is also likely to be a bit pre-occupied with other matters to consider primary legislation “I would expect to see a 4-5 fold increase in claims following this ruling. Prior to the introduction of fees in 2013, there were around 5,000 tribunal claims being lodged each month. After the introduction of fees, this fell to around 1,500 claims a month. We can safely expect this to go back up again so employers should be prepared.

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but they will likely find that they are rejecting numerous outstanding candidates as a result of this stance. “On the face of things, it does not seem tomake business sense to restrict your recruitment process to include such subjective criteria. The importance they pin on physical attractiveness in the roles they are recruiting for seems to be well wide of the mark. Most people would rather deal with someone who knows what they are doing, rather than someone who could be considered more attractive but doesn’t. Furthermore, I’m sure many would be put off applying to work for a boss who puts more emphasis on physical attractiveness than business acumen – a flashback to the days of women in the workplace being seen as nothing more than ‘totty’ is never a good thing. “The underlying issue of damage to reputation as a result of a company’s approach to recruitment will always be there. The backlash is likely to be wide ranging and overwhelmingly negative, and it doesn’t seem commercially sensible to pin the success of your business on an outdated ideology such as this. It is always strongly advisable to recruit on merit alone”.

to a discrimination claim. Given the Supreme Court’s recent decision to abolish tribunal fees, a lot of people will now not even think twice before filing a claim. “Finally, as we have seen from the backlash in this case, the damage done to your reputation can be significant. Whilst you may have technically done nothing wrong, reputation is something that every business will rank very highly on the list of important factors and it can be very hard to recover once the damage has been done. “With all of that in mind, whilst not strictly incorrect, it would be highly advisable to avoid adverts containing criteria of this type in order to ensure that you protect your business”. Taking things one step further is Secretary Affairs, a world-wide recruitment company based out of Prague. The company boasts that it recruits “glamorous and qualified assistants who will create the perfect first impression”. Jacob Demeza-Wilkinson says: “This company’s mantra seems to reinforce that it is common practice to use physical attractiveness as a recruitment criteria. As explained, it is not illegal to do so but you are certainly treading on very thin ice by taking this approach. Not only could they fall foul of the Equality Act

A London bar has drawn criticism after posting a job advert for bar staff. The ad, by House of Wax, stated that “physical attractiveness is unfortunately necessary for this role” and, as well as a having a fun, lively attitude, it also specified that female applicants “must be comfortable wearing black heels during their shift”. Predictably, the backlash has been swift with Nicola Thorp, whose petition regarding the requirement to wear high heels was debated in Parliament, leading the way. Jacob Demeza-Wilkinson is an employment law consultant for the ELAS Group. He says: “This is actually a strange one. It is not strictly

unlawful to put a requirement such as this in a job advert however there are considerations that we would advise making before a company took the risk - and it is a risk - of posting an advert such as this. “Firstly, you would need to be aware that if someone with a physical disability applied for the role, you could not automatically reject their application by saying that the disability caused that individual to not be attractive enough. They would have to be considered for the role on merit alone. “Secondly, you would need to ensure that the policy is applied equally to both male and female applicants. Solely asking for attractive female staff would be discriminatory as women would be put at a detriment. Furthermore attractiveness is highly subjective, and having this as a job requirement makes it very difficult to justify your recruitment decisions, which means a company will find it very difficult to justify rejecting someone with a protected characteristic thereby leaving them open

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Don’t forget - as an ELASGroup client you receive 10% off all additional services!

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instead of merely masking it by claiming a headache or sickness bug as happened so often in the past. “All employers should know that some forms of mental illness are a disability and, as an employee, you are heavily protected from any form of discrimination under the Disability Protection Act. Making your employer aware of any mental health conditions/concerns you have means that they can put support measures in place to help. Whether this is making arrangements for flexible working, arranging counselling or just having someone to talk to, support can be individually tailored in the way that is best for both you and the company. In this day and age, nobody should be embarrassed to call in

“If you are unable to work because of illness, whether that’s physical or mental, then the normal rules of sickness absence according to your organisation should kick in. People are more open about mental health in the workplace these days and this encourages others to feel more comfortable about telling the truth behind their reasons for absence, being sympathetic to mental illness” “Gone are the days when HR was accused of not

A recent survey conducted by PwC found that 34% of employees in the UK are facing health and well-being problems. Two in five of those surveyed said they had taken time off because of mental health issues. These days, people spend the majority of their time in work, and the extent to which a job can affect personal wellbeing cannot be understated. A company cannot remain productive and profitable if their employees are mentally exhausted. With the cost of replacing staff lost due to mental health

conditions reported to be £2.4bn per year in the UK alone, employers are taking steps to help their employees combat mental illness and building a culture of acceptance and support within the workplace. Pam Rogerson, HR Director for the ELAS Group , says: “Gone are the days when HR was accused of not being sympathetic to mental illness as it affects so many of us at one time or another during our working lives. HR departments are more in tune than they are given credit for when it comes to mental health. Many have employee assistance programmes to specifically help with situations that can arise from stress within the workplace or factors in an employee’s personal life, encouraging counselling and support from experts where possible.

Don’t forget - as an ELASGroup client you receive 10% off all additional services!

Don’t forget - as an ELASGroup client you receive 10% off all additional services!

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FSA PUBLISHES PLANS FOR FUTURE OF FOOD REGULATION

The Food Standards Agency has published its plans for the future of food regulation in England, Wales and Northern Ireland - plans which will radically change the way food safety and food standards are regulated. The FSA has taken an open consultative approach to the development of these plans, which reach to the point of Brexit and beyond. They have engaged with various stakeholders across the food industry, including STS , and are looking to ensure that a structured approach is developed rather than the current one size fits all model that is currently employed. It’s important to note that the report looks at the ways in which the FSA will deliver regulatory assurance rather than changing the actual regulations themselves. The FSA has finally stated that the current model of enforcement is unsustainable and must be changed. This has been rumoured for some time but perhaps the breadth of change and proposals within were not quite that expected, and it is envisaged that some businesses may be alarmed at the potential impact that this may have. Brexit is a key factor in many aspects of the food industry, many of which have been well documented . However, one of the less publicised points is the fact that the UK will no longer be part of the European Food Safety Authority and, as such, all strategy will therefore be led by the FSA. Furthermore, the FSA has announced that the enforcement of food safety and food standards will now be brought together which will require structural change within the FSA as well as at local authority level.

The fact that businesses will be expected to pay for enforcement will no doubt grab headlines but, to be fair to the FSA, this is actually a government led change. It will potentially follow a similar path to that used by the HSE whereby businesses are not charged for routine inspections but are for any follow up visits. However, the report does not go into detail as to the structure of the charges, merely stating that costs will be ‘no more than they need to be’. Watch this space… One of the cornerstones for the FSA’s new approach is enhanced registration for new businesses. Potentially this could include cross industry co-operation e.g. inclusion of insurers and will ensure that start-up businesses are better informed as to what exactly they need to do with regards to food safety . There is no retrospective approach mentioned for existing businesses, nor is there much detail as to how the data will be captured, protected or kept away from freedom of information requests – something that many multi-site operators will be interested in. Again, watch this space. A key part of the plan is enhancing the Food Hygiene Rating Scheme particularly when it comes to requiring mandatory display in England, although this will probably be post-Brexit which will disappoint those calling for it to be introduced now. How the FHRS ratings are to be determined is also considered, with the potential introduction of private sector auditors having input into the ratings businesses achieve. This may well be contentious, and consultancies will be concerned that there could be a risk to their client relationships should businesses achieve low scores due to their intervention. How the Certified Regulatory Auditors would be regulated and assessed has not been laid out in the plan as yet, with the report identifying the role as ‘potential’.

Again, there will be many interested spectators as this line of approach develops. The FSA believes that by targeting poorer performing businesses and allowing those which perform better to have a reduced burden of regulation is a sound plan. How this will be perceived across the industry is a moot point at the moment. Many multi-site operators have Primary Authority (PA) agreements in place but many others do not. In essence, these are there to ratify company policies and procedures, work with the company to help improve standards, monitor other local authority action and, where necessary, agree courses of action with other environmental health/trading standards/fire departments. On the face of it, the PA principle is very good but the plan identifies that additional work will be needed to help develop inspection strategies. One negative is that PA agreements are often at cost to the operator and, as such, added pressure from the FSA for businesses to adopt a PA agreement will potentially be seen as an additional regulatory cost on top of those already being considered as part of this plan (there is a rather obvious contra argument to this – answers on a postcard please!). Much of the plan makes very clear sense e.g. the first of the five principles states that “businesses are responsible for

producing food that is safe and is what it says it is”. In reality, this should be cataclysmically obvious but the fact that many food business operators end up in court every year belies the obvious nature of this principle. Re-iterating this point on an ongoing basis is fundamental to achieving knowledge growth within the food industry. It’s also notable that the plan points out that the approach will “help keep food safety, authenticity and public health at the front of mind with the leaders of bigger more complex businesses” which feels like a gentle nod towards the sentencing guidelines and even the possibility of corporate manslaughter charges against business operators who fail to abide by the regulations. This plan will undoubtedly raise a number of eyebrows, not just from food business operators but amongst the environmental health profession in general. It does not include the word privatisation but we can pretty confidently predict that this word will be raised in many conversations. Our interpretation is that the plan doesn’t feel like privatisation but rather the recognition that the private sector of the food safety industry has a key role to play in maintaining standards of food safety as we move towards, and beyond, Brexit.

Don’t forget - as an ELASGroup client you receive 10% off all additional services!

Don’t forget - as an ELASGroup client you receive 10% off all additional services!

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Hello! I’m Trainer Trev, head trainer here at the ELAS Group, and I wanted to take this opportunity to introduce myself!

have can have in trying to hold down a job whilst coming to terms with such an awful event, and the stress that it can bring. At the moment, there are no official details with regards to how much leave or what rate of pay will be provided under the new bill, however it is expected that the law is to be implemented in the autumn so employers should expect further details to be released in the coming months. Until then employers should endeavor to be as reasonable as possible when looking to support an employee through these tragic circumstances. For more information call our team today on 0161 785 2000 do for them as their employer? An employee has suffered the loss of a child. Is there anything I am obligated to

My values are simple. I believe that training should be fun, engaging and accessible to all, and that’s what makes the ELAS Group so great.... • We’re flexible. We create training courses to suit your learning requirements • We travel. It doesn’t matter if you are based in John O’Groats, Land’s End or somewhere in between, if your company needs a training course we will be more than happy to hold it at a location to suit you • We’re affordable. Our courses won’t break the bank; we set realistic prices so that they are accessible for all • We’re different. Long gone are the days of slide shows; we provide interactive and enjoyable training courses where you are guaranteed to learn. • We’re friendly. Our training team is one of the best in the business and our trainers like to develop long-standing relationships with their learners. From first aid to employment law, health and safety to fire safety, food safety to HR, we have one of the largest libraries of training and e-learning courses in the UK. For more information on any of our courses or to request a training brochure, please get in touch! You can email me on trainertrev@elas.uk.com , give me a ring on 08450 50 40 60 or visit our website at www.elastraining.co.uk When it comes to training, you know you can trust the ELAS Group.

CONSULTANT CORNER. . . with Liam Grime

The government expects employers to show compassion and be flexible when allowing an employee to have time off, usually unpaid, to come to terms with the devastation of losing a child. Unfortunately, not all employers respond in this way which can potentially make things worse for the employee, and affect their performance. However, the way in which employers respond may be about to change. On the 19th July 2017, the proposed Parental Bereavement (Pay and Leave) Bill was introduced to parliament. Aiming to help deliver the government’s promise that it will improve rights and protection for bereaved parents in the workplace, the new law proposes to provide statutory paid time off so that they may properly grieve away from the workplace. The bill also recognises the difficulty grieving parents

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From a s l i t t l e to a s much suppor t a s you need . . .

Ca l l or ema i l us to d i s cus s your opt i ons

T: 0161 785 2000 E: info@elas.uk.com or visit www.elas.uk.com

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