Law Express

Whistle Blowing

2011-11-17 13:42:01

Blowing the whistle - Protected Interest Disclosures

Most people are aware of whistle blowing - Neville Thurlbeck, the former News of the World chief reporter has been one of the latest high profile employees to claim he was a whistleblower.
Leaving aside the newspaper headlines, what is whistle blowing and what might it mean for you and your business?

What is whistle blowing?
Whistle blowing is when a worker or employee makes a qualifying disclosure. A qualifying disclosure is a disclosure which raises concerns about how an employer is conducting their business. It can be written or verbal and needs to be made in good faith.

Concerns that are covered include criminal offences, health and safety issues, failures to comply with legal obligations, miscarriages of justice, damage to the environment and information tending to show that any of these things are being concealed.

A qualifying disclosure can cover not only things that have happened, but things that are likely to happen or are currently happening. For example; it could be that a crime has been committed, is likely to be committed or is being committed, or that evidence of a crime is being concealed.

Qualifying disclosures are usually to be made to the employer or an appropriate "prescribed person". A prescribed person can be a regulatory body like the Health and Safety Executive, or a professional body. There is a list of prescribed persons on the public concern at work website http://www.pcaw.co.uk/. Sometimes a disclosure to the media or police will be covered, but the legislation encourages whistleblowers to go to their employer first unless they have a good reason not to do so.

That all sounds very legal. What does it really mean?
It means that if an employee or worker goes to their employer, or to a prescribed person or an appropriate external person/organisation with a qualifying disclosure the law gives them protection.

If their employer treats them badly because they blew the whistle, the employee or worker could have a whistle blowing claim.

What sort of bad treatment are we talking about?
The law talks about "suffering a detriment". A detriment can be anything that disadvantages the whistleblower. Examples of detriment include; not being promoted (or being sidelined in any way – to a distant regional office or to a type of work), being denied unpaid leave or holiday, being excluded from meetings or company social events and of course, being dismissed.

What if the whistle blower is mistaken?
They still get protection. The key element is good faith– if the person believes there is an issue and raises it in good faith, they are usually protected. In some circumstances, such as where someone makes a disclosure outside their organisation (e.g. to the media), additional requirements apply, for example, the disclosure must not be made for personal gain.

How can we keep our company safe?
You should take any concerns raised very seriously. You should investigate them appropriately and take action if necessary, including reporting to appropriate professional and/or regulatory bodies. For example, an accountant discovering professional misconduct might need to report it to their employer, their professional body and, if it is criminal in nature, potentially to the police. In most situations, the worker/employee would tell the employer, who would then take any further steps necessary.

You could also consider having whistle blowing polices and procedures and providing information and/or training for your workers and employees so they know what to do if they have any concerns.

Whistle blowing is a huge and complex subject. We covered the basics in our ezine and we’re going to use this podcast to explore a few areas in more depth.

Disclaimer - The only purpose of this blog is to educate and to inform. This blog is provided on the understanding that it does not constitute legal or other professional advice or services. The information in this blog is believed to be correct as at the date it was first broadcast. It is not a substitute for legal advice and no liability attaches to its use. Specific and personal legal advice should be taken on any individual matter. Law Express assumes no liability for any of your activities in connection with this blog. Advertising which maybe incorporated into, placed in association with, or targeted towards the content of this blog is forbidden. You may not edit, modify, or redistribute this blog unless written authority has been granted by Law Express.

Answers on a Podcast

2011-10-17 11:38:32

Explode the myths - try our
employment law quiz

When it comes to employment law, employers often make the same mistakes. Try our (tongue in cheek) quiz, then listen to our podcast where we give the answers and explode the myths.

What does probation period mean to you?
a) Supervision after someone's been released from prison
b) A Time where a new employee is more closely monitored
b) to ensure he or she is right for the job.
c) The try out period before someone becomes an employee.

You can just get rid of an employee until they have been employed by you for a year.
a) Yes. That's right.
b) No. That's wrong.
c) It's sort of right, but there are some exceptions.

What is a SILON?
a) A robot at war with humanity in Battlestar Galactica.
b) Like a PILON, but the employee only has the right to salary in lieu of notice,
b) not payment including any benefits.
c) No idea. I'll listen to the podcast.

Can you force an employee to work their notice period?
a) No. That's slavery.
b) Yes – they have to work their notice.
c) No, but you might be able to sue them for damages if they refuse.

Myth or Fact? Listen to the podcast for the answers.
See if you got the answers right on our Employment Law quiz.

Agency Workers Regulations

2011-09-19 11:30:25

Are you prepared for the Agency Workers Regulations?

What are the Agency Workers Regulations ("AWRs")?
The AWRs are legislation designed to protect temporary agency workers. After they have reached the qualifying period of 12 weeks on the same job, they will be entitled to the same basic employment rights and working conditions as employees. They will get some rights (entitlement to access the hirer's facilities and to be provided with information on job vacancies) from the first day of an assignment.

When do the AWRs come into force?
1 October 2011. The AWRs are not retrospective, so if you have temporary agency workers working for you, their 12 weeks starts accruing on the 1 October, and you need to provide access to the facilities and information on vacancies from that date.

Who is affected by the AWRs?
The AWRs apply to temporary agency workers and to organisations/individuals involved (directly or indirectly) in the provision of temporary agency workers (temporary work agencies, or TWAs), and to the organisations that use them (hirers).

What is a temporary agency worker ("TAW")?
The key elements that make someone a TAW are:

1. A contract between the worker and a temporary work agency (TWA);

2. That the worker is supplied to an end user (the hirer) by the TWA; and

3. When on assignment the worker is supervised by and/or under the direction of the hirer; and

4. The worker is NOT in business on their own account e.g. they have no direct business relationship with the hirer. The hirer is not a client or a customer of the worker, but rather of the TWA.

This means that in most circumstances someone who is a consultant or hires themselves out through their own company is unlikely to be a TAW. But simply putting a worker's earnings through a limited company will not be enough to remove them from the scope of the Regulations; they have to genuinely be in business on their own account.

What new rights do the AWRs give temporary agency workers?
From the first day of an assignment, TAWs will have the same rights as a comparable employee to access collective facilities and amenities and to have access to information about vacancies. Collective facilities are things like canteens, workplace crèches, staff rooms, car parking, prayer rooms etc. Vacancies can be advertised in the normal way e.g. on notice boards or intra or internet, but TAWs must be told how they can access them.

There is no requirement to treat TAWs better than employees – for example, if there is a waiting list for the crèche then a TAW would have a right to join the waiting list along with everyone else, not a right to immediately be given a crèche place. If you have a really good reason, you may be able to justify not allowing TAWs access to facilities, but it is only in very rare circumstances that any reasons would be good enough. For example, Tribunals are unlikely to consider cost alone to be a good enough reason.

After the qualifying period of 12 weeks in the same job, the TAW is entitled to the same basic terms and conditions of employment as if they had been employed by the hirer directly. These are; key elements of pay, annual leave, rest periods and breaks, limits on working time (e.g. 48 hours a week), and paid time off for ante natal appointments for pregnant TAWs. If there is a qualifying period for the entitlement (e.g. you need to have been employed for 6 months before you get allocated a parking space) then the qualifying period applies to the TAW, just as it would to an employee.

How do we calculate the 12 week qualifying period?
This can be rather complicated. There are anti-avoidance provisions to stop hirers or agencies simply moving TAWs between jobs to prevent them reaching the qualifying period. We discuss calculating the qualifying period and anti- avoidance provisions in our podcast

What do we do now?
Take a look at the helpful government guidance here http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf

You need to check whether those who work with you/for you are covered by the AWRs and how you will be affected by the new legislation.

If the AWRs are going to affect you, check how and where you use TAWs and whether you will have any employed on the key date of 1 October 2011. You can then make sure that you can meet the requirements of the AWRs.

You may need to update your systems and paperwork to reflect the new requirements – for example, you will need to know how long TAWs have been with you, the length of any absences and the reason for absences to know when they reach the 12 week qualifying period.

You should also consider reviewing any contracts you have with your agency providers and seeing whether you want to make changes – for example, asking for an indemnity to cover your business if you run into trouble with the AWRs.

Bribery: Taking the biscuit

2011-07-13 11:52:46

Bribed by a Biscuit?

Hows does the Bribery Act affect you?

What is the Bribery Act?
The Bribery Act 2010 came into force on 1 July 2011. It is intended to update the law on bribery and corruption and to simplify bribery prosecution in the UK.

Bribery can occur in all sorts of situations. In short, bribery is giving someone a financial or other advantage to influence them to perform their functions or activities improperly, or to reward them for having done so. The Act also covers “facilitation payments” which are payments to induce officials to perform functions they are obligated to perform as part of their jobs.

So giving a lavish gift to the person who is deciding whether or not your company wins a tender, to “encourage” them to remember you fondly during the tender process, would probably be a bribe.

The Act introduces several offences including; offering or accepting a bribe, a corporate offence of failure to prevent bribery and as well as a specific offence of bribery of a foreign public official.

Does this mean we can't offer corporate hospitality?
No. The Act isn’t aimed at stopping genuine promotional activities. Provided that your expenditure on these activities is reasonable and proportionate, and intended to build business relationships, not influence business decisions, it is unlikely to be caught by the Act. So you can continue to do things like take clients to dinner, and provide them with coffee and biscuits when they come to your offices!

If the hospitality you provide is disproportionate, or seems to be a cover for a bribe, the authorities will look at what is being offered, how it is provided and the level of influence the person receiving the hospitality has in relation to any decisions affecting your business.

So how does it affect me and my business?
Individuals and commercial organizations are affected by the Act. Any individual offering, promising or giving a bribe, or asking for, receiving or agreeing to receive a bribe could be liable. Your business could be liable if a senior person commits a bribery offence.

Your business could also be liable if someone who is associated with it (e.g. an employee or an agent) bribes someone to gain a business advantage for your organization, or to gain or retain business. Your business may have a defence to this offence if you can show that you had “adequate procedures” in place to prevent bribery. These include things like appropriate policies and training and sensible risk assessment, monitoring and review. “Adequate procedures” will be different depending on the size, complexity and business of your organization, as well as the bribery risks you face. We talk more about adequate procedures in this months podcast.

Individuals convicted of bribery offences can face unlimited fines and/or prison sentences, and disqualification from acting as Company Directors. Organizations convicted of bribery offences can face an unlimited fine and may be barred from tendering for public contracts.

What do we do now?
Firstly, don’t panic! The Government has produced some useful guidance which you can get copies of here http://www.justice.gov.uk/guidance/making-and-reviewing-the-law/bribery.htm

The guidance suggests that a pragmatic approach is going to be taken to prosecutions under the Act. However, you still need to assess how the Act will affect your business, and check that you have adequate procedures in place to protect your organization.

Podcast: Bribery Act and procedures
Listen to our podcast to hear more about the corporate offence of failure to prevent bribery and the steps you can take to protect your organisation.

To equality and beyond…

2010-12-10 10:02:02

For anyone who may have missed
it, the Equality Act finally came
into force on 1st October 2010.

HELPING YOU TO UNDERSTAND
The Act for the most part restates the existing legal position as we know it and is not likely to involve dramatic practical changes in practice for most employers.
The long awaited legislation brings together a number of aspects of the law relating to discrimination issues, extends some existing provisions and creates some new ones. Acas, the conciliation service, have published a helpful booklet on the matter with a very useful chart detailing the existing and new provisions - view the chart.

COMPROMISE AND EQUALITY
It has already been identified that there may be some ambiguity in the drafting of section 147 of the Equality Act which may impact on the enforceability of compromise agreements signed after 1st October 2010.

The Law Society has commented:
“The Law Society is aware that there is some ambiguity in the drafting of section 147 of the Equality Act which is likely to have an effect on the use and effectiveness of compromise agreements made under the Act,” said a statement from the body. “The way this section is currently drafted suggests that a solicitor who was instructed by the employee prior to the production of the final agreement for consideration will be precluded from acting any further.”
An urgent review of the section is currently being undertaken and the outcome will be posted as soon as it is available.

EQUALITY AND THE FUTURE
The organisation largely responsible for the implementation of the Equality Act, the Equality and Human Rights Commission (EHRC) is itself facing a potential reduction in size. As part of the government strategy to reduce overheads and impose tighter budgetary control, there are reports of the need to “substantially streamline” the organisation.

Whilst core functions will be retained there may be a need to for other functions to pass to other departments or the private sector. The final outcome is awaited after a period of consultation.