Monthly Briefing
August 2010

Employers, beware! The BBC has reported that a website, www.doctorsnotestore.com, is producing fake new-style sick notes on NHS headed paper, bearing real doctors' names and stamped with an official stamp.

The site contains a disclaimer that says they are for "novelty" purposes only and goes on to say: "We do not condone intentional false absence from an employer or educational institution. We do not condone illegal use of these documents..." However, the site says the certificates will be stamped: "...BY A DOCTOR IN ANY PARTICULAR CITY FACILITY - London, Manchester, Birmingham, Glasgow - or any other area."

The NHS fraud squad said that selling sick notes is not illegal so a person could type one up and sell it without being prosecuted and it only becomes illegal when an employee uses it. Employers would be well advised to ensure that sick notes are genuine where they have any concerns at all. In the first instance they can be compared with previous sick notes received from the employee's surgery and a policy of 'spot-checks' could be introduced whereby doctors' surgeries are contacted to verify authenticity.

The Chancellor, George Osborne, delivered his Budget Report on 22nd June 2010. The key employment-related announcements include:-

• Default Retirement Age: the Budget confirms that a consultation on "whether" to phase out the Default Retirement Age from April 2011 will take place.This is to be contrasted with the commitment in the coalition agreement that the DRA would be phased out.
• Reduction in tax and NICs for the lower-paid: the personal allowance, below which no income tax is payable, will be raised by £1,000 to £7,474 in April 2011. The increase of £570 to the threshold at which employees start to pay National Insurance will take effect from 6 April 2011 to coincide with the increase of 1% in employee contributions (from 11% to 12%) and in employer contributions (from 12.8% to 13.8%). The threshold at which employers start to pay National Insurance will be increased by £21 above the RPI, also from 6 April 2011.

Other significant employment-related measures include:

• from 2011 the majority of benefits - presumably including maternity pay, sick pay, etc - will be up-rated in line with the Consumer Price Index rather than the Retail Price Index, in order to save over £6 billion a year by the end of the Parliament;
• a two-year pay freeze in the public sector. However, public servants who earn less than £21,000 will receive a flat pay rise of £250 in both these years; and
• a review of fairness in public pay to ensure that those at the top of organisations are paid no more than 20 times the salaries of those at the bottom.

In De Belin v Eversheds Legal Services Ltd an employment tribunal held that the employer had discriminated against a male lawyer on grounds of sex when, in a redundancy scoring exercise, it inflated the score of his female colleague to take account of the fact that she was on maternity leave.

The claimant was placed in a redundancy selection pool, together with a female colleague who was on maternity leave. One of the selection criteria was "lock-up" - the time between carrying out a piece of work and receiving fees for it - measured over the course of the previous year. The claimant received a score of 0.5 and his female colleague was awarded a notional score of 2, since she was on maternity leave at the end of the period and no lock-up figure was ascertainable for her.

The claimant's overall score was 27 and the female colleague's was 27.5. Accordingly, it was the claimant who was made redundant.

The tribunal decided that inflating the female colleague's score amounted to less favourable treatment on the grounds of sex, and that the claimant had been discriminated against and unfairly dismissed. The employer could have scored the exercise differently; for example, it could have chosen a different period, when the female employee was working and not absent on maternity leave.

The tribunal also found that the employer could not rely on the "special treatment" qualification in the sex discrimination legislation, which provides that "no account shall be taken of special treatment afforded to women in connection with pregnancy or birth". This qualification could not be interpreted to provide women with blanket special treatment.

Earlier this year, we reported that the Independent Safeguarding Authority ("ISA") would be taking over responsibility for deciding who should be barred from working with children and vulnerable adults, working closely with the Criminal Records Bureau. The idea was that eventually everyone who wishes to work in a "regulated" activity would be required to register with the ISA but this would be phased in over a number of years.

The vetting and barring scheme was much criticised and is now to be "remodelled", with the government announcing an immediate halt to the requirement for individuals working with children or vulnerable adults to register with the ISA. Voluntary registration for those working in a "regulated" activity was due to commence on 26th July 2010 and registration was set to become compulsory from November 2010. This registration has now been stopped.

With full details of how the scheme will change yet to be finalised, Home Secretary Theresa May has indicated that there is a need to scale back the scheme to "common sense and proportionate" levels. In the meantime, various other aspects of the scheme will remain in force: ISA will continue to maintain two lists, one in respect of adults and one in respect of children; the duty of referral will continue to apply; and it will still be a criminal offence to employ barred individuals.

In the recent case of Land Tirol, the European Court of Justice has held that accrued paid leave not yet taken in a leave year cannot be reduced, or paid at a reduced rate, because the worker then reduced his or her working hours from full to part-time.

This applies only if the worker has not been able to exercise his or her right to the accrued leave before going part-time, for example where maternity leave intervenes between accrual of the leave and going part-time.

This decision does cause problems because, under the Working Time Regulations, payment for leave is calculated by reference to a 'week's pay' at the time the leave is taken, not when it was 'accrued', something that will need to be addressed in the future.

The Government has announced that it intends to consult on introducing a limit on the number of migrants from outside Europe coming to work in the UK. An interim limit will be introduced, with effect from 19th July 2010, to avoid a rush of applications before the limit is set.

The interim measures will amend the points-based immigration system, established under Labour, so that the number of highly skilled (Tier 1) migrants is capped at current levels and the number of points needed by non-EU workers who come to do highly skilled jobs increases from 95 to 100. The number of certificates of sponsorship that licensed employers can issue to those who wish to come to fill skilled job vacancies will also be limited.

A Czech tram driver was recently hailed as a hero after he chased an empty tram on a bicycle as it crossed a busy street, travelling for a kilometre without anyone operating it. He borrowed the bicycle from a passerby, managed to board the tram and stop it, but had a heart attack after the stress of the incident. It appears that the tram didn't have its brakes on and that is what led to it breaking through the tram depot gates and setting off on its journey.

A hospital spokesperson said that the tram driver is not in immediate danger, which is just as well given that a rail safety inspection had ruled out defect and says it was most likely the driver's human error that led to the tram's getaway in the first place. Czech law is quite harsh and he now faces the possibility of a three year prison sentence, if convicted of a serious breach of work duties...

Work-related skin problems are very common. They can happen in most workplaces although they happen more in certain high-risk jobs such as catering, hairdressing, dentistry, health services, printing, metalworking, motor vehicle and construction. They can be very costly, not just through the suffering individuals' experience, which can lead to ending their careers, but also because they can be a problem for employers who are left with sickness/absence, recruitment, training and compensation expenses.

Work-related skin problems are caused or made worse by exposure to substances and also through having wet hands for long periods, while at work. Dermatitis, which can also be known as eczema, is by far the most common, but urticaria and skin cancer are also problems. Exposure to the sun can also cause problems.

These problems are common however they are preventable. There are simple, cost-effective steps employers and workers can take to avoid skin problems at work, and to manage them if they do happen.

Keep employees away from substances, products and wet work with unprotected hands for instance:

Follow the Control of Substances Hazardous to Health Regulations 2002 (COSHH) hierarchy of control measures:

• Aim to get rid of the substance/product/wet work altogether.
• Substitute the product/substance for something less harmful.
• Introduce controls, such as tools or equipment, in order to keep a safe working distance between skin and substances/products/wet work.

Protect the skin. It is not always possible to keep away from substances so:

• Provide suitable personal protective equipment such as gloves.
• Provide mild skin cleaning cream that will do the job and washing facilities with hot and cold water.
• Instruct workers to wash their hands before eating and drinking, and before wearing gloves. Ensure there are suitable cleaning systems for mobile workers.
• Remind workers to wash any contamination from their skin as soon as they can.
• Provide soft cotton or disposable paper towels for drying the skin. Inform workers about the importance of thorough drying after washing.
• Protect the skin by moisturising as often as possible and particularly at the end of the day - this replaces the natural oils that help keep the skin's protective barrier working properly.
• Use suitable pre-work creams.

Inspect hands regularly for the first signs of itchy, dry or red skin:

• When skin problems are spotted early, they can be treated, which can stop them from getting too bad.
• Seek advice from a medical practitioner if you suspect that you may have skin problems.

Employees need information and instruction and training about the simple steps to take in order to reduce the chances of skin disease.

The law
Control of Substances Hazardous to Health Regulations 2002 (as amended) (COSHH)

Guidance
HSE Guidance

News following on from an article written in the Ellis Whittam H&S Newsbrief, June 2009:

Five companies responsible for the Buncefield oil depot explosion have been sentenced to pay a total of more than £9 million at St Albans Crown Court.

Total were fined £3,600,000 plus £2,600,000 costs, Hertfordshire Oil Storage Limited £1,450,000 plus £1,000,000 costs, British Pipeline Agency Ltd £300,000 plus £480,000 costs, and Motherwell Control Systems 2003 Ltd and TAV Engineering Ltd were both fined £1,000 and each ordered to pay £500 in costs.

Sentencing the firms, Judge Sir David Calvert-Smith said: "Had the explosion happened during a working day, the loss of life may have been measured in tens or even hundreds." Jurors heard earlier that the environmental damage from the blast was still not known and could last for decades.

The explosion, on Sunday 11 December 2005, is widely thought to be the largest in peacetime Europe. It measured 2.4 on the Richter scale and could be heard 125 miles away.

A plastics manufacturer operating in Rochdale has been fined £140,000 after a Portuguese cleaner was crushed to death by a pallet of bags weighing nearly one and a half tonnes.

The company was prosecuted by the Health and Safety Executive (HSE) following the incident at the Stakehill Industrial Estate in Middleton for failing to ensure the safety of its employees, and not having a worker trained in First Aid on duty. The employee was cleaning up a spillage in the yard on 15 July 2005 when a wooden pallet, containing 55 bags of polypropylene, fell on him. The material, which is used to manufacture washing up bowls, buckets and other plastic products, is dangerous to stack as it can pour out if there is a tear in a bag, making the stack unstable.

One of HSE's Principal Inspectors for Greater Manchester, said, "The employee died because the company didn't treat the health and safety of its workers as a priority. There were labels on the polypropylene bags that made it clear how they should be stored safely but this advice was ignored. The company didn't provide guidance about how to stack the pallets, and no one trained in First Aid was on duty to help try to resuscitate the employee when the pallet fell on him. Since the death, the company has changed how it stores pallets so that it no longer stacks them on top of each other. If this action had been taken previously, the employee may still be alive today."

The company pleaded guilty to breaching Section 2(1) of the Health and Safety at Work etc Act 1974 and Regulation 3(2) of the Health and Safety (First Aid) Regulations 1981. The company was fined at Manchester Crown Court on 7 July 2010 and ordered to an additional £10,588 towards the cost of the prosecution.

There were 32 deaths and 22,407 serious injuries in the manufacturing sector last year.

The law
Section 2(1) of the Health and Safety at Work etc Act 1974 states: "It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees."

Regulation 3(2) of the Health and Safety (First Aid) Regulations 1981 states: "An employer shall provide, or ensure that there is provided, such number of suitable persons as is adequate and appropriate in the circumstances for rendering first-aid to his employees if they are injured or become ill at work."

We will not be running any webinars this month but you can look forward to a new series of monthly webinars commencing in September covering a wide range of employment law, HR and health & safety topics and legislation.

We have recently launched some new additional services to complement our core service fixed fee offerings for employment law and health & safety.

Our new recruitment service is a cost-effective solution to the overall recruitment needs of your organisation based on fixed fees, quality and value for money. Our mediation & investigation services help to manage and reduce conflict in the workplace - and save the cost and time wasted by it.

Our innovative Health & Safety e-Learning system allows your employees to complete essential health & safety training at their convenience providing you with cost-effectiveness and a complete record of modules that each employee has been assigned. In addition, the system can now be completely branded for your organisation and modules are also available in a range of foreign languages for those employees who do not have English as their first language.

Up to 250 credits can be currently purchased at half price by clients with those that buy 250 being entered into a prize draw to win a brand new Apple iPad.

For more information on the system please click e-Learning system or discounted prices for the range of discounted prices.

Mark Ellis recently joined Peter Jones on a Dragons' Den style panel. Entrepreneur Peter Jones, a long standing client of employment law and health & safety support provider Ellis Whittam, is putting up £10,000 in prize money for budding entrepreneurs and start-up businesses.

The Peter Jones Foundation launched the Enterprise Business Challenge to encourage aspiring entrepreneurs and fledgling firms with innovative business ideas to submit a written online proposal or three-minute video pitch outlining their business case.

Entrants had until 2^nd July to submit their business proposal to peterjones.tv. Ten short-listed candidates were then invited to take part in a Dragons' Den-style face-to-face pitch with an investment judging panel comprising Peter Jones, Mark Ellis and 4 others last Thursday. The winner received £10,000 in working capital as well as business support including employment law, HR and health & safety support from Ellis Whittam.

Peter Jones said: 'Now more than ever, we need to encourage and work alongside small and medium enterprises and entrepreneurs to stimulate economic growth from within and make sure that great business opportunities and great British business talent isn't missed.'

Mark Ellis added: "We have worked with Peter and his businesses for several years. I was delighted to be invited to join him on this panel. The Enterprise Business Challenge and Peter's National Enterprise Academy aim to encourage and support both entrepreneurs and business growth. Ultimately this is all about supporting and creating opportunity, jobs and wealth to create a strong British economy. Ellis Whittam is delighted to support that hugely important initiative."