Welcome to the latest edition of "e-news"
from Steele & Co Solicitors. In this issue we report on:
* THE EMPLOYMENT BILL - FURTHER DEVELOPMENT
* CRIMINAL RECORDS BUREAU
* EC AGENCY WORKERS DIRECTIVE
* TRAIN DRIVER COULD GET £600,000 FOR BLOWING THE WHISTLE
* HEALTH INSURANCE HAZARD
EMPLOYMENT BILL - FURTHER DEVELOPMENT
The Bill has passed through its third reading in the Commons. Prior to
this, at the report stage, the Government introduced a new clause to the
much debated Bill.
The new clause refers to the circumstances in which an application can be
blocked as a result of an employee's failure to pursue a grievance prior
to lodging a claim with an Employment Tribunal.
The new clause will apply when an employee is under an obligation to use
the statutory grievance procedure. If the employee fails, in such
circumstances to comply with 'step 1' of the procedure (setting out the
grievance in writing and sending it to the employer) they will be barred
from bringing a claim arising from the subject matter to which the
grievance relates. Further, even if the employee has complied with 'step
1', no claim can be lodged with an Employment Tribunal until 28 days after
the date 'step 1' has been completed.
The intention of this clause is to allow the employer more time to deal
with the grievance before a claim is lodged with an Employment Tribunal.
A further part of this new clause is designed to deal with 'special cases'
where an employee has failed to, for example, send the 'step 1' letter to
the employer. In such cases the employee may be given another chance to
comply with the procedure.
We will report further on the Employment Bill as it progresses through
Parliament.
CRIMINAL RECORDS BUREAU
The Criminal Records Bureau ("the Bureau") is expected to be operational
from 1st March 2002.
The Bureau will provide wider access to criminal record information by
enabling employers to ask successful candidates to apply for a check, and
obtain a criminal record certificate on payment of a fee.
The Criminal Records Bureau will run a three level system of checks: Basic
Disclosure, Standard Disclosure and Enhanced Disclosure.
Basic Disclosure shows all convictions held at national level which are
not "spent" for the purposes of the Rehabilitation of Offenders Act 1974.
The "Criminal Conviction Certificate" will be provided only to the
individual to whom the information relates and will not be copied to
employers. This level of disclosure isn't expected to be available until
summer 2002.
Standard Disclosure will reveal details of spent and unspent convictions
as well as cautions. The "Criminal Record Certificate" will only be
available to employers who are in one of the "sensitive occupations" which
are exceptions to the Rehabilitation of Offenders Act, currently:
* Those who deal with children, the sick, the elderly and the
handicapped;
* Those involved in the administration and/or practice of law;
* Those involved in health and pharmacies;
* Senior managers in banking and financial services;
* Those who should be checked in the interests of national security.
Enhanced Disclosure will give details of information obtained from local
police force records, including "non-conviction information" providing it
has been authorised by a senior police officer. The "Enhanced Criminal
Record Certificate" will only be available if the position which the
applicant is intended to fill (regardless of whether this is paid or
voluntary) "involves regularly caring for, training, supervising or being
in sole charge of persons aged under 18".
The standard and enhanced disclosure services will be available to
organisations and employers, who currently have access to criminal record
checks, from 1st March 2002. Both services will be available to employers
who do not currently have such access, from 1st April 2002.
To qualify for standard or enhanced disclosure, employers will have to
satisfy the following conditions:
1. They must register with the Bureau in advance of a check being
carried out and prove that they work in an area that qualifies for this
level of access. Registration commenced May 2001;
2. They must agree to abide by a Code of Practice to prevent misuse of
information and will be required to have written policies on the
recruitment of ex-offenders;
3. They must agree to indemnify the Criminal Records Bureau and the
police against any civil action, which arises from the disclosure of this
information.
Individuals will normally make the application but the employer or
voluntary organisation, to which a copy of the certificate will be copied,
will be required to countersign the application.
This new service will be a useful tool for employers in the process of
vetting job applicants; as always care will need to be taken to ensure
that the Data Protection Act 1998 is complied with.
EC AGENCY WORKERS DIRECTIVE
It has recently been much publicised that the EC is drawing up a new
Directive to grant agency workers, including temporary workers, the same
pay, holidays, health insurance, share schemes and pensions as permanent
workers doing similar jobs.
The draft Directive, due to be published shortly, has met with much
opposition in the UK with business leaders warning that the proposals
could cost British business billions of pounds.
The Directive itself will cover workers employed by agencies, who will not
be covered by legislation on fixed-term employees, which is due this year.
We will no doubt be reporting further on this in e-news in the near
future.
TRAIN DRIVER COULD GET £600,000 FOR BLOWING THE WHISTLE
A train driver, who was forced to leave his position after he informed his
managers of a number of serious health and safety issues, has won his case
for constructive dismissal and is the first person to successfully sue a
train operator under the Public Disclosure Act 1998 ("the Act"). He is now
claiming compensation of up to £600,000 for lost wages, pension and
aggravated damages.
Mr Holden, who was a union health and safety representative working for
Connex, resigned from his job, in January 2000, through stress. Mr Holden
exposed a number of serious dangers to his employers who ignored his
warnings and tried to shut him up, threatening to confiscate his
train-driving licence.
The Act, previously discussed in our "e-news" of 2nd November 2001, was
designed to remove the organisational culture of silence in the workplace.
A number of serious incidents, which could have been avoided, have
occurred because employees have not reported health and safety issues for
fear of reprisal.
The Act gives legal protection to any worker, acting in good faith,
against dismissal or other penalty where he has made a 'protected
disclosure'. This includes information disclosed about crimes, breaches of
a legal obligation, miscarriages of justice, dangers to health and safety
or the environment and to the concealing of evidence relating to any of
these.
There is currently no limit on the compensatory award under this Act where
an employee has been dismissed.
We will no doubt be seeing more and more of these types of claims if
employers fail to address the concerns of employees in a satisfactory
manner.
HEALTH INSURANCE HAZARD
There have been an increasing number of cases where substantial damages
have been awarded against employers, because Permanent Health Insurance
schemes have failed to pay out.
Many employers offer Permanent Health Insurance as a contractual benefit
to employees, with a third party providing the insurance. The problem is
that the employee will normally only have a direct contractual
relationship with the employer, and if the insurer fails to pay out under
the scheme the employees only recourse will be to the employer.
Furthermore, most schemes are subject to a condition that the employee
must remain employed by their employer in order to be eligible to receive
payments. An employer who dismisses an employee on sick leave, in such
circumstances, will deprive the employee of the payments under the scheme
and increase its potential liabilities in the event of an employment
tribunal claim being lodged against them.
Steps can be taken to minimise these risks and employers should ensure
that any clause providing such benefit, contained in the employment
contract, is drafted carefully so that the rules of the scheme can be
amended, and the scheme discontinued if necessary. In the alternative,
employers may not wish to provide this benefit at all.
We will be happy to give a view on your existing Permanent Health
Insurance contractual provisions.
WE CAN HELP YOU:
Please use the links on this page if you:
* Want to receive more information/advice on any of the matters in
this edition (please give details of the matter you require advice on).
* Want advice on any employment matters
* The employment team also conducts practical in-house training and
workshops for companies on a wide range of issues including:-
Managing sickness absence/stress in the workplace
Misconduct and the disciplinary procedure
Poor performance
Handling redundancy situations
Avoiding unlawful discrimination claims
Avoiding unfair dismissals
Employment law update and practical advice for line managers
* Our aim is to offer line managers practical training to ensure that
costly mistakes are avoided. All of the training workshops are tailored
to meet the exact requirements of each individual business.
* If you are interested in finding out more about such training please
do not hesitate to give us a call.
Visit our web site http://www.steeleslaw.co.uk
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