| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Government Confirms New Right to Carer’s Leave
Late last month, the government published its response to the consultation on carer’s leave which it launched back in March 2020. The response confirms that, in line with its 2019 manifesto commitment, the government will introduce a right to 1 week’s unpaid leave a year for employees who are caring for a dependant. So, why is this change happening, what will the new right entail and when will it come into force?
What’s the Purpose of this New Right?
The government is seeking to address the challenges faced by people juggling work and caring responsibilities. It says that there are around 5 million people across the UK providing unpaid care for an elderly or disabled family member or friend. About half of these unpaid carers are also in work. Due to the UK’s ageing population, the number of people who rely on informal care is expected to increase. The government hopes that its planned measures will increase participation by carers in the labour market and reduce the need for employees to take annual leave to fulfil care responsibilities.
The consultation response says there was strong support for the proposals from all types of respondent, including individuals and businesses. Although the proposals will entail some additional burdens and costs for employers, the government says respondents acknowledged that these would be outweighed by the benefits of a more supported and valued workforce.
How Will the New Right Work?
These are the key features of the planned new right:
- Employees will have the right to 5 days’ unpaid leave per year.
- All employees will be eligible for this right from day one of employment.
- The time off can be taken flexibly – for example, as half or full days – or as a 1-week block.
- To take carer’s leave, employees must give notice of twice the length of the leave requested plus 1 day. Employers will be able to postpone the request in limited situations but not refuse it.
- To be eligible, the employee should be caring for a close family member, someone in their household or someone who reasonably relies on them for care. They will also be eligible if they are providing care while the primary carer is taking a break.
- The person receiving the care must have a long-term illness or injury, a disability or issues related to age. Some other situations will also qualify – for example, if the person has a terminal illness.
- The leave should be used for the purpose of ‘providing care or making arrangement for the provision of care’.
- Employees will be able to self-certify their entitlement to carer’s leave, with no requirement to provide evidence. This is to avoid having to ask for sensitive medical information about the person receiving the care.
- Dismissal for reasons connected to taking carer’s leave will be automatically unfair.
- The new right will apply in England, Wales and Scotland.
When Will this Become Law?
The response document merely states that legislation will be introduced ‘when parliamentary time allows’. You therefore don’t need to make any immediate changes but this is something that’s in the pipeline.
| HEALTH & SAFETY
Paul Smith, Joint Editor-in-Chief, Risk Assessment & Compliance, Editorial Board Member, Health & Safety Adviser |
Assessments and Safeguards: Ignore Trespassers at Your Peril, Warns £6.5 Million Fine
In health and safety law, it’s clear that our safety arrangements should protect non-employees who could be at risk from what we do. As a result, contractors, visitors and members of the public rightly feature in most firms’ risk assessments. However, unlawful visitors (trespassers) are often left out. Here we feature a recent case in which a hefty fine was imposed for failing to manage this risk, as well as 7 practical action points for employers and site managers.
The Case
Earlier this year, WH Malcolm Ltd (operators of Daventry International Rail Freight Terminal) were fined £6.5m after being found guilty of negligence over the death of an 11-year-old boy in 2017. As the accident happened on railway premises, the case was brought by the Office of Rail and Road (ORR).
Harrison Ballantyne was electrocuted after he gained access to the depot with his friends to retrieve a football; he was able to climb on top of a stationary freight wagon, where he received a fatal electric shock from the 25,000 volt overhead line. Despite paramedics’ efforts, he was pronounced dead at the scene. Following an ORR investigation and a 3-week trial, a jury found the firm guilty of two offences:
- Contravening their duty, as an employer, to protect people who were not their employees.
- Failing to carry out a ‘suitable and sufficient’ risk assessment.
The investigation also found WH Malcolm failed to implement appropriate measures to prevent unauthorised access to a part of the site where there were both frequent freight movements and live overhead line equipment. The ORR concluded the company had not heeded previous warnings, had failed to learn lessons from previous health and safety enforcement and had ignored concerns raised by employees.
In sentencing WH Malcolm, Judge Lucking QC said they ‘failed to take responsibility for a serious and obvious failing to prevent public access to what is and was a dangerous environment’. She fined them £6.5m and ordered them to pay £241,464 costs.
Employer Duties: Expert Analysis
Employers have duties to trespassers under both civil and criminal law. The Occupier’s Liability Acts deal specifically with civil liability, but the ORR took this criminal case under the Health and Safety at Work (HSW) Act 1974, s.3 (duty to non-employees) and the Management of Health and Safety at Work Regulations 1999 Reg. 3 (duty to formally assess risks). As a general principle of liability law, employers owe a duty of care to all third-parties who could be at risk, but this is even stronger where the third parties are children or young people.
The high fine here will have taken account of factors such as:
- The injury severity.
- The degree of blame as seen by the court.
- The firm’s financial standing.
- Their decision to contest the case. (Under the current sentencing guidelines, firms who plead guilty at the earliest opportunity typically receive a substantial reduction in penalty.)
Action Points
Key actions are:
- Check that trespassers and other third parties are included in the ‘who could be harmed?’ section of your risk assessments.
- Assess how porous your site is to intruders including children: do you use fencing, CCTV and patrols to prevent unauthorised persons coming onto your site?
- Physically check your fencing for damaged areas that could allow access, and for storage nearby (e.g. of spare pallets) that can make it easier for an intruder to gain entry.
- Take steps to minimise the risk from equipment and substances that could harm third parties. (For example, removing ladders from scaffolding can deter climbing and prevent falls from height, while in the Malcolm case, wagons could have been stored in sidings that did not have live overhead lines.)
- Educate managers and supervisors so that they understand the breadth of the firm’s responsibilities, as well as their role in protecting third parties – even those who are there unlawfully.
- Work with local police, schools and colleges to raise awareness of the dangers and to deter child trespassers. This needs to be done in such a way as to avoid making your site sound like a really exciting place to visit!
- Take seriously and act on concerns raised by enforcement agencies, investigations of previous incidents (including ‘near-misses’) and employees.
We urge readers to treat this tragic case as a wake-up call to revisit the issue of third-party safety in general, and the risk to trespassers in particular.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Watch Out for Changes to Tips, Gratuities and Service Charges
The Government is to bring in new legislation in a future Employment Bill to ensure that tips left to workers go to them in full. The intention to legislate was announced in a long-awaited response to a consultation held in 2016 on tips, gratuities, cover and service charges.
Nature of the Consultation
The consultation followed a call for evidence in 2015, which asked for evidence on how employers pass on tips, gratuities, cover and service charges to employee. It set out proposals for further action, which the Government believe to be necessary to ensure that any future discretionary payments meet the following policy objectives:
- Tips should be discretionary; it should be clear to consumers that they are voluntary.
- Tips should be received by workers.
- Tips should be clear and transparent to consumers and workers in terms of how the payments are treated.
The consultation set out various options for change.
Code of Practice
A voluntary code of practice was introduced in 2009 to increase transparency as regards the handling of discretionary payments for service. However, evidence shows that the guidance is not widely used, and consequently is insufficient to ensure that staff receive their fair share of tips and to achieve transparency in how tips are treated.
Customers need to be able to understand the charges on their bill, and also have confidence that payments that they make for service are passed on to workers. Evidence suggests that some unscrupulous workers continue to retain unfairly monies intended for their workers, and it is important that as the country recovers from the Covid-19 pandemic, such employers do not gain a competitive advantage.
Need to Legislate
In 2018, the Government announced their intention to legislate to ensure that workers receive tips left to them in full. The consultation document confirms that legislation will be introduced in a forthcoming Employment Bill.
The legislative measures will include:
- Requirements for employers in all sectors to not make any deductions from tips received by their staff, including admin charges, other than those required by law.
- Requirements for employer to distribute tips in a way that is fair and transparent, with a written policy on tips and a record of how tips have been dealt with. Employers will be able to distribute tips via a tronc, and a tip must be dealt with no later than the end of the month following the month in which it was paid by the customer.
- Provision to allow workers to make a request for information relating to an employer’s tipping record. Employers will have flexibility on how to design and communicate a tipping record, but should respond to a request within 4 weeks.
- Requirements for employers to have regard to a statutory Code of Practice on tipping.
- Where employers fail to comply with these measures, it will be enabled through the employment tribunal.
Timing
There is no definitive guidance as yet as to when these measures will come into effect. The consultation response merely sates that they the ‘Employment Bill will be brought forward when Parliamentary Time allows’. It is expected that the rules will come into effect no earlier than 1 year after the Bill has been passed.