Delivering safer, healthier workplaces - Mentor

• Removing the barriers for disabled employees • Delivering safer, healthier workplaces • The changing face of Health and Safety • Don’t drive distracted

Brexit and employment law: what does the future hold? Page 2

• ESOS deadlines missed by 1,700 • Fire prevention guidance sparks interest • Waste crime fines get tough • Charity donations in the bag

Health & Safety

• Brexit and employment law: what does the future hold? • Brexit and employment law: Q&A • Living Wage to go up? • Pay boost for young people • New rules aim to close gender pay gap • Statutory Payment Rates • Left to their own devices • Give vapers a break • Crackdown on illegal workers

Environmental Management

Mentor Legal update

Employment Law & HR

October 2016

“No major changes”…? David Davis, the Secretary of State for Exiting the European Union, said that he doesn’t expect there to be major changes. Discussing the likely impact of Brexit on business regulation, Davis commented: “All the studies show that it is not employment regulation that stultifies economic growth…Britain has a relatively flexible workforce, and so long as the employment law environment stays relatively stable it should not be a problem for business.” Davis went on to say: “The great British industrial working classes voted overwhelmingly for Brexit. I am not at all attracted by the idea of rewarding them by cutting their rights.” ...or “sweeping changes”? Others have warned of the potential for sweeping changes to employment regulation once the UK is outside the EU. European rights that are currently in place include paid holiday and Transfers of Undertakings (TUPE), which protects employees whose business is being transferred to another business. With so much that remains uncertain, here are three things that we do know following the referendum result:

1. Nothing changes straightaway It’s important to understand that whatever the medium and long-term implications of Brexit may be, employment regulation has not changed and will not change until a Brexit deal has been negotiated. EU rules anticipate a negotiation period of at least two years, during which EU regulations will continue to apply. 2. EU nationals retain the right to work in the UK Until a Brexit deal is reached, the UK continues to adhere to the freedom of movement rule, which means citizens of all 28 EU nations (except Croatian citizens as they have transitional arrangements), have the right to work in the UK. And these rights are supported by equality laws which make it unlawful to discriminate against workers and job applicants due to their nationality or national origins. Furthermore, when recruiting, employers cannot assume that workers from EU nations outside the UK will not be permitted to remain in the UK. 3. Bullying and harassment by reason of nationality or national origins is unlawful Discrimination in the workplace, including bullying and harassment, remains unlawful under the Equality Act. It’s worth reminding all workers of this, ensuring managers know how to identify and deal with instances of bullying and harassment, and workers are aware of grievance procedures.

Employment regulation has not changed and will not change until a Brexit deal has been negotiated

Health & Safety

After June’s decision for the UK to leave the EU, what’s the outlook for employment regulation?


Brexit and employment law: what does the future hold?

Employment Law & HR

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What does the EU referendum result mean for workers from other EU countries? The referendum result changes nothing straight away and workers from other EU countries have the same rights as they had before the referendum. In the longer term, the status of workers from the EU depends on the Brexit deal negotiated by the government.

Are there any additional formalities to follow? No. All workers must still provide identity checks and employers face civil and criminal penalties if they employ workers who don’t have the right to work in the UK.

Can I continue to employ workers from the EU? Yes. In fact, it’s unlawful to treat EU workers and job applicants any differently from UK-born workers.

How do I deal with workplace tensions between different nationalities? It’s essential that racist and bullying behaviour is not tolerated in the workplace.

My business employs workers from the EU - what should I tell them? Britain remains in the EU until any formal exit deal has been concluded. Workers continue to have full employment rights until a deal has been done, and this may be two years away or more. Any formal Brexit deal will include detailed provisions about the future status of workers from the EU. Can I still recruit workers who are from the EU? Yes. It remains unlawful to discriminate against workers from other EU member states (or to discriminate in favour of them). Job applicants who believe they’ve been unfairly turned down for a job due to their nationality or national origin can make a claim under equality laws.

Employers should make certain that all their workers are aware that bullying, harassment and abuse won’t be tolerated. Managers should ensure that all incidents are properly dealt with, including responding properly to complaints and grievances, and taking disciplinary action when necessary. Have more questions about the status of migrant workers following the EU referendum? Call us on 0800 970 9814 Minicom 0800 634 7008


Workers from countries in the European Economic Area and Switzerland also enjoy these rights. Please note that workers from Croatia are subject to special transitional rules, which means they must have a Worker Authorisation Document to work in the UK.

Health & Safety

Brexit and employment law: Q&A

Employment Law & HR

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Living Wage to go up? Rate may rise in April; more rises expected

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Why is the National Living Wage increasing? Unlike the National Minimum Wage (NMW), where increases are linked to affordability, the government wants the NLW to increase to 60% of average (median) earnings by 2020 - and consequently the LPC has to plan for it to reach that level.

Health & Safety

The National Living Wage, the new statutory minimum wage rate introduced on 1 April, could rise by a further 44p from April 2017, according to plans published by the Low Pay Commission (LPC). The LPC is the body responsible for recommending rates for both the National Minimum Wage and National Living Wage (NLW).

Has the Low Pay Commission made any more predictions? Yes. The LPC has published indicative figures that show how the NLW will rise each April until 2020. These show increases of 44p in April 2017, 48p in April 2018, 50p in April 2019 and 54p in April 2020. However, these figures depend on actual wage growth in the economy as a whole and are subject to review each year.


Will the National Living Wage rise faster than average earnings? Yes. To get the NLW to 60% of average earnings by 2020 from just over 55% now, the rate will have to increase faster than average earnings each year.

Pay boost for young people Workers aged under 25 will benefit from increases to the NMW from 1 October. The increases, which follow recommendations made by the LPC, are the biggest in eight years: • 21 to 24-year-olds will see a rise of 3.7% • 18 to 20-year-olds will see a rise of 4.7% • 16 to 17-year-olds will see a rise of apprentices will see a rise of 3%

Need support with your Payroll system? Call us on 0800 970 9814 Minicom 0800 634 7008 Click natwestmentor.co.uk/payroll

Employment Law & HR

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Health & Safety

The rate of the NLW for workers aged 25 and over remains the same but will increase in April 2017. The new rates are set out below: NMW rate from 1 October 2016 £7.20

£6.95 £6.00 per day £5.55

£3.40

Age 25+

Age 21-24

Age 18-20

Age 16-17

Apprentices

Accommodation offset


£4.00

Q&A What’s being proposed? • Employers will need to publish details of gender pay on their website in a way that’s accessible to both their staff and the public • The data must be signed off by a director as being accurate • The information must remain available for three years so that a picture can be built up over time • The same information must also be uploaded to a government website. The government proposes to publicly display tables - by sector - of employers’ reported pay gaps Why should the information be published in this way? The aim is that publishing information in an accessible format that’s easily searchable on the internet will put pressure on employers to improve equality in their pay structures. What do I need to do? If you employ 250 or more workers, your business needs to put in place mechanisms for gathering pay data from 30 April 2017, including:

• Gross hourly rates of pay for employees to show gender differences in mean and median pay • Payments made in respect of performance or productivity incentives for employees to determine gender differences in mean bonuses in the last 12 months • The percentages of men and women who received a bonus in the last 12 months • The number of men and women in each quartile pay band Your business then has 12 months to analyse and publish the information by 30 April 2018 and annually thereafter. What if the data shows that there’s a gender pay gap? The data will highlight potential problem areas which the business will need to take steps to address. You can publish details of the steps you’re taking, and the aim is that year-on-year the actions you take will reduce the gender pay gap within your organisation. Consider things such as: • Recruitment • Benefits packages • Promotion criteria • How women taking time off for maternity and parental leave are treated • Specific measures to ensure women are able to take advantage of career opportunities Our consultants can help your business or organisation address any gender pay gap issues. Call us on 0800 970 9814 Minicom 0800 634 7008


New regulations are set to come in to force in April 2017 which will require employers with 250 or more employees to publish details of how much different genders are paid in their organisation. The reason is that, in spite of 40 years of equal pay laws, data shows that women continue to be paid up to 19% less than men for doing the same work.

Health & Safety

New rules aim to close gender pay gap

Employment Law & HR

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Rate from 6 April 2016

Limit on one week’s pay for calculating redundancy pay

£479.00

Maximum statutory redundancy payment

£14,370

Maximum compensatory award for unfair dismissal

£78,962 or one year’s pay if lower

Daily rate for guarantee payments

£26.00

SSP, maternity, paternity and adoption pay rates Rate from 6 April 2016

Statutory Sick Pay (SSP)

£88.45

Statutory Maternity, Paternity and Adoption Pay (prescribed rate)

£139.58

National Insurance Lower Earnings Limit

£112.00

Health & Safety

Redundancy, unfair dismissal and other penalties


Statutory Payment Rates

Employment Law & HR

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Left to their own devices

Q&A I allow workers to use their own devices for business purposes - should I be concerned? If you’re one of the growing number of businesses that allows or requires its workers to use their own devices for work purposes, then yes, you should be concerned. Your business risks losing control of data, either accidentally or deliberately, which may be confidential or business-critical. Court proceedings are an expensive last resort, so it’s best to plan ahead. What can I do to protect my business? • Put clear rules and procedures in place about what workers can and cannot do on their own devices • These rules should clearly outline who owns the data and applications, and what the workers should do to maintain system security and freedom from malware

If you need more help, speak to your employment law consultant. Call us on 0800 970 9814 Minicom 0800 634 7008 Health & Safety

The ruling follows concerns about the possible theft and misuse of confidential business data by workers who use their own electronic devices – such as smartphones and tablets – for work purposes.

• Ensure procedures are in place for when workers leave employment • Consider installing software which allows data on the devices to be backed up and remotely wiped


In a landmark ruling, the High Court has ordered a worker to hand over his personal electronic devices so that the data on them can be inspected and any confidential data belonging to the worker’s previous employer can be destroyed.

Employment Law & HR

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Give vapers a break Employers should give workers who use electronic cigarettes, also known as ‘vapers’, their own facilities and more breaks to vape, according to health watchdog Public Health England.

Employment Law & HR

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What’s the significance of these recommendations? The recommendations have no legal effect, but show how quickly e-cigarettes have taken off as an alternative to tobacco smoking without a lot of the potential harmful effects. By providing this advice, Public Health England may be starting a move towards more general acceptance of vaping in enclosed public places. But employers should also consider the requirements of workers who don’t smoke or vape; providing extra breaks to those requiring nicotine might prove controversial. There is also an opposing, though unproven, view that vaping leads to smoking, and so employers shouldn’t encourage it.


Public Health England also advises that vapers should get additional vaping breaks because e-cigarettes deliver a smaller dose of nicotine compared to cigarettes. The watchdog said: “Vaping provides a generally lower blood nicotine level and takes longer to reach a desired level, requiring frequent top ups”.

Health & Safety

The watchdog recommends that employers should give vapers indoor facilities to encourage vaping over smoking. Smoking indoors is illegal, and though vaping isn’t, most businesses and public organisations treat vaping the same as smoking.

Crackdown on illegal workers Employers who fail to carry out the necessary checks and employ illegal migrants face tougher penalties after the Immigration Act 2016 came into force in July.

Employment Law & HR

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• Fines can be imposed where an employer ‘has reasonable cause to believe’ a person is an illegal worker and employs them regardless – a change from the previous test which required an employer to act ‘knowingly’ • The maximum custodial sentence has increased from two years to five years Employers also risk their business being forcibly closed for up to 48 hours if they are found employing illegal workers. Businesses can then be placed under special compliance requirements.

Health & Safety

The changes impose tougher penalties on employers hiring illegal workers:

For more information on the latest changes to Employment Law contact.

Call us on 0800 970 9814 Minicom 0800 634 7008 Click natwestmentor.co.uk/EmploymentLaw_HR

Please note that Mentor’s services incur a cost.


For workers, there is a new offence of ‘illegal working’ with a maximum prison sentence of six months, a possible fine and the seizure of all wages as ‘proceeds of crime’.

Although employees may be classed as disabled, they may not automatically suffer the disadvantages that trigger employer obligations. As an employer, you should encourage an open communication culture to identify where disabled workers might be struggling. Once it becomes clear that a disabled employee faces difficulties, you’re then obliged to make reasonable adjustments to alleviate those problems. The adjustments to be made should always be assessed on a case-bycase basis. In practical terms, adjustments could include extending contractual sick pay for an employee with higher absence levels due to a disability, if this would help reduce those absences overall and improve the individual’s prospects of recovery. Or it could be that a car parking policy entitling senior staff to designated spaces right outside the workplace could be extended to accommodate a more junior employee with impaired mobility.

Reasonable adjustments can be quite straightforward and relatively inexpensive where disabilities are caused by physical impairments, although the position can become more complex where workplace disadvantages are linked to a mental health disability. But in all cases, employers should obtain employees’ input (ideally through a face-to-face consultation) to identify any disadvantages they feel they are suffering, and any reasonable adjustments they think would help them specifically. External occupational health and medical practitioner advice is highly recommended too, and will often assist the decision-making process. Jerry Hill, Mentor’s Head of Safety, Health and Environment Consultancy Support commented: “Engaging with disabled employees, and being flexible from the outset, will undoubtedly boost morale and will always end up less burdensome than a costly and timeintensive discrimination claim. It will also lead to a more productive workforce.” Find out more by contacting our consultants. Call us on 0800 970 9814 Minicom 0800 634 7008


It is often argued that a lot needs to be done to alter common workplace arrangements that act as barriers for the long-term sick and disabled. Equality laws require employers to take reasonable steps to remove such barriers, but do employers understand what their obligations actually are?

Health & Safety

Removing the barriers for disabled employees

Employment Law & HR

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We’ve led the way in risk-based regulation, underpinned by the fundamental principle of health and safety law, that those that create risks are best placed to control them. And the Health and Safety Executive (HSE), which is responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare, is continuing to lead the way. It’s published a plan for 2016 / 2017 to do the following: • Lead and engage those who undertake or influence health and safety. Through guidance, raising awareness and leadership, the HSE will seek to change behaviour • Ensure the regulatory framework remains effective and that its delivering the government’s regulatory reform agenda and Business Improvement Target • Secure effective risk management and control through a variety of interventions with businesses. This includes permission and licensing activities, inspections, investigations of incidents and concerns raised by workers and others. It also means holding to account those who fail to meet their obligations to protect people from harm • Reducing the likelihood of low-frequency, high-impact catastrophic incidents and the potential for extensive harm to workers and the public. In delivering this plan, the HSE is committed to ensuring value for money for the taxpayer by reducing its reliance on government funding while continuing to improve efficiency and effectiveness.

Britain has an enviable health and safety record, making us one of the safest countries in the world to work in

Health & Safety

Britain has an enviable health and safety record, making us one of the safest countries in the world to work in. And while we can all be justifiably proud of that, it hasn’t happened just by chance.


Delivering safer, healthier workplaces

Employment Law & HR

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There were 651 fatal injuries to employees in 1974. When an adjustment is made to the latest data (to mirror the same reporting as 1974), this shows 92 fatal injuries to employees in the provisional year 2014/15, which is a staggering decrease of 86%. With the same adjustment made to today’s employment levels, the rate of fatal injury has decreased by 83% over this period, from 2.9 per 100,000 employees in 1974 to 0.48 in 2014/15.

How else has health and safety in the workplace changed? • There has been a fall in reported non-fatal injuries of 77% (compared to 2011/12) • Self-reported non-fatal injuries have fallen (since 2000/01) • Deaths from asbestos-related diseases have increased almost constantly year-on-year, with about 10 times as many deaths in 2012 than in 1974 (mainly due to exposure to asbestos prior to 1980) • The rate of total cases of self-reported work-related illness, and specifically musculoskeletal disorders, has fallen (since 1990) • The rate of total cases of stress and related conditions increased during the 1990s, most likely due to awareness and changing attitudes affecting reporting levels. Jerry Hill, Mentor’s Head of Safety, Health and Environment Consultancy Support commented: “For the eighth year in a row, Britain has the lowest rate of fatal injuries to workers among the five leading industrial nations in Europe – Germany, France, Spain and Italy.”

Rate of fatal injury decreased by

83%

Health & Safety

When the Health and Safety at Work Act 1974 was launched, reporting legislation covered accidents to employees only (not the self-employed), and those mainly working in factories, construction, manufacturing, agriculture and docks. They excluded ‘office-based’ and service activities such as public administration, education, and health and social work. This makes it difficult to compare figures from then with more recent statistics, but it’s not impossible.


The changing face of Health and Safety

Employment Law & HR

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Don’t drive distracted

• Visual – looking away from the road at some visual stimulus (eg. rubber-necking) or altering the radio or sat-nav • Cognitive – thinking of something such as a dream holiday, or dream job, rather than concentrating on the situation of the road ahead of you • Auditory – responding to a ringing phone which could make you jump or even drown out the sirens on an emergency services vehicle • Physical – holding a mobile phone rather than having both hands on the steering wheel. Or perhaps holding food in one hand and the steering wheel in the other While any of these distractions can endanger the driver and others, texting and catching up with social media are especially dangerous as they combine three separate types of distraction; visual, cognitive and physical.

For more information on keeping you and your employees safe, contact us: Call us on 0800 970 9814 Minicom 0800 634 7008 Click natwestmentor.co.uk/Health_Safety

Health & Safety

Distractions come in many guises, but the main four can be described as:

Jerry Hill, Mentor’s Head of Safety, Health and Environment Consultancy Support said: “If you know your loved one or a colleague is driving, just don’t pick up the phone to them. This advice is also supported by RoSPA as it supports the National Police Chiefs’ Council. And drivers - record a message to your voicemail letting callers know you are driving and that you’ll call them back as soon as you stop for a break.”



Every day in the UK, people are killed and injured in vehicle accidents that involve a distracted driver. And while all age groups are affected, the young (those between 15 and 29) lead the statistics around the world.

Employment Law & HR

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ESOS deadlines missed by 1,700 Following the passing of all Energy Savings Opportunities Scheme (ESOS) deadlines, the scheme regulators are currently investigating 1,700 companies which they believe should have complied but are yet to make any submissions.

Employment Law & HR

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The Environment Agency is currently also working with external contractors to carry out compliance audits on ESOS submissions and will be doing this until March 2017.

Health & Safety

The Environment Agency has issued a statement saying that it intends to use enforcement notices to bring organisations into compliance, serving civil penalties only in the most serious of cases.

Existing sites don’t yet have a deadline to meet the guidance conditions but new site applications are being rejected if they don’t have an attached FPP. More details and the full guidance can be found here. Thomas Ridgley, Senior Environmental Consultant at Mentor said: “Fires at waste sites have become an increasingly common sight - the Environment Agency are trying to address this issue with the revised FPP guidance, however many are claiming the proposals are unworkable and severely limit the handling capacity at many sites, in some cases potentially putting the viability of the underlying business at risk. Time will tell how the industry reacts to the guidance.”

Health & Safety

Updated guidance for Fire Prevention Plans (FPPs) has recently been released by the Environment Agency. It must be followed under the conditions of a waste site’s environmental permit and specifies details such as maximum pile sizes, storage time limits and separation distances.


Fire prevention guidance sparks interest

Employment Law & HR

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Thomas Ridgley, Senior Environmental Consultant at Mentor said: “The sentencing guidelines changed in late 2014 and since then the size and frequency of environmental fines has been steadily increasing. Although Powerday is a fairly large organisation, its fine should act as a warning to all businesses.”

Health & Safety

The last few months have seen a series of high profile environmental prosecutions and fines, thanks in part to new environmental sentencing guidelines. An example comes from waste company Powerday, which was ordered to pay more then £1.2m following two cases involving more than 17,000 tonnes of illegally stored and deposited waste.


Waste crimes fines get tough

Employment Law & HR

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Charity donations in the bag

• Tesco had net proceeds of £13.3m and donated £11.2m to environmental organisation Groundwork • Morrisons donated the full net amount of £4m to its charitable foundation • Waitrose donated its entire net amount of £1.3m to health, which its website states is for research into Alzheimer’s • Aldi had net proceeds of £1.1m and donated half the amount to good causes • WHSmith raised £354,000 net and used £76,000 for staff communication, £30,000 for changing the till systems, £10,000 for other costs and then donated £236,000 to charities and good causes. The full report can be found here.


Call us on 0800 970 9814 Minicom 0800 634 7008 Click natwestmentor.co.uk/Environment

At least

£29.2m

was donated to good causes Health & Safety

For more information on managing your environmental responsibilities.


The Department for Environment, Food and Rural Affairs (Defra) has published data for the first six months of the carrier bag charge in England, which came into force on 1 October 2015 and applies to all large retailers. In total, 283 organisations reported sales of one billion bags, with at least £29.2m donated to good causes. Below is a brief breakdown of what some of them did with the proceeds:

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