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JUNE 2009

Discipline and Grievance procedures changed April 2009 New Acas Code of Practice introduced. The way discipline and grievance is handled in the work-place changed on 6 April 2009. The emphasis is now on solving problems early on with a minimum of cost and formality. The good practice advice set out in the new Acas Code of Practice should always be followed to ensure fairness and where an employer unreasonably fails to follow this, any compensation awarded by the tribunal could be increased by up to 25 per cent.

It is important that employees, managers and HR professionals understand the rules and procedures for dealing with discipline and grievance matters in the workplace. The good practice advice set out in the new Acas Code of Practice should always be followed to ensure fairness and where an employer unreasonably fails to follow this, any compensation awarded by the tribunal could be increased by up to 25 per cent.

IN THIS ISSUE... Contents HSE warns of working at height


HSE campaign to halt vehicle falls


Banksman crushed against wall


Costlier redundancy & unfair dismissal


HR and Employment law


HSE urges safe working practices


HSE warns of asbestos fines


Company guilty of manslaughter


It is important that employees, managers and HR professionals understand the rules and procedures for dealing with discipline and grievance matters in the workplace.

Construction SME survey finds late payment to be biggest worry A survey has found that 52% of construction SMEs are worried about late payment issues. The 60 SMEs (Small and Medium Enterprises) in the survey had turnovers of less than £15m. The questions were collected and analysed independently by Ciao Surveys for Lloyds TSB. Other construction sector worries were: n

rising cost of raw materials – 47%


retaining current customers – 43%


risk of suppliers failing – 30%

The verdict from 59% of construction bosses who replied was that they would like guidance on planning for a prolonged downturn and ensuring funding throughout the cycle… the latter comes as little surprise given then way that banks have

distanced themselves from the construction sector over the past nine months. That said, Lloyds TSB Commercial has launched an online guidance service, firmed up its face-to-face expert advice and has launched a series of 120 nationwide advice seminars. Actions taken by the construction firms in the survey to combat concerns and reduce their exposure to the downturn include:

Other details to emerge show that: n

32% plan to implement a pay freeze over the next 12 months


23% intend to cut the price of services.

Lloyds TSB introduced a small business charter last year and the main promises that the bank makes are: n

to pass on future base rate cuts in 2009


not to switch to charging LIBOR (the London inter-bank overnight borrowing rate)


40% have reduced staff numbers or have cut their hours


35% have increased advertising activity



33% have cut the price of services and/or goods

agreeing to “any reasonable request” for short-term finance


not changing the price or availability of overdrafts during the period of a customer’s agreement, typically 12 months as long as their accounts are maintained within agreed limits.


22% have extended the time they’ve taken to pay suppliers



The Forum of Private Businesses (FPB) is calling for Government action over late payments to small businesses The Forum of Private Businesses (FPB) is calling for action from the Government and from bigger businesses to prevent the damage caused to smaller businesses by late payments. The Forum is urging bigger businesses to sign up to the Government’s Prompt Payment Code and calling for the Government to do more to target the UK’s biggest firms. Additionally, the FPB is urging the UK’s small businesses to report supplier abuse anonymously to them. Under the Late Payment of Commercial Debts Act 1998, small businesses have a

Statutory Right to Interest (SRI), meaning they can in theory charge interest on late payments. However, the FPB says that few take advantage of this or are prepared to speak out publicly for fear that large companies will simply take their business elsewhere. The FPB asserts that many larger companies take advantage of this ‘culture of silence’ by imposing unilateral changes on their smaller suppliers’ terms and conditions, often mid-contract and with little warning, effectively sidestepping the redress provided by the late payment legislation.

The FPB’s Chief Executive, Phil Orford, said: “For too long, smaller firms have been squeezed so their bigger customers can create lines of credit. During the current economic climate, the damage being caused by late payment and enforced changes to terms and conditions is huge and many small businesses are facing closure as a result. “This is not about the FTSE 100 companies having to pay early; it is about giving certainty and therefore creating stability throughout the supply chain by committing to a Prompt Payment Code. This commitment would help to develop much-needed confidence.”

‘Social engineering’ increasing as one of the most effective routes to stealing confidential data ‘Social engineering’ is increasingly one of the most effective routes to stealing confidential data from organisations, warns new research from Siemens Enterprise Communications. The professional services arm of Siemens Enterprise Communications recently ran a ‘social engineering’ exercise at a FTSE-listed financial services firm. A Siemens security consultant targeted the client company for a week to see what level of access to information he could achieve using social engineering tactics. Without the aid of any special equipment, the Siemens consultant was able to: n

enter the company’s office without being challenged by security staff;


base himself in a third floor meeting room, where he worked for several days;


freely access different floors, store rooms (containing large amounts of confidential information), filing cabinets and confidential data left on desks;




access the company’s data room, IT, and telecoms network;


use the internal telephone system to call employees, claiming to be from the IT department (backed up by the caller ID), and request information. Of 20 users targeted, 17 supplied their usernames and passwords, giving him easy access to confidential electronic data; and


establish that CCTV domes fitted on the ceilings were non-operational.

“Social engineering is principally concerned with manipulating people into performing actions or divulging confidential information in order to access electronic or physical data,” says Colin Greenlees, a security and counter-fraud consultant for Siemens Enterprise Communications. “Hi-tech protection systems are completely ineffectual against such attacks, and most employees are utterly unaware that they are being manipulated. Worryingly, many staff positively assisted with information being compromised. “The scary thing is that it’s all simple stuff. It’s just confidence, looking the part and basic

trickery such as ‘tailgating’ people through swipe card operated doors or, if you’re really going for it, carrying two cups of coffee and waiting for people to hold doors open for you.” During the week of the FTSE exercise, the Siemens consultant befriended a number of employees at the target company and was even on first name terms with the foyer security guard. On two separate occasions, he was even able to escort a second Siemens consultant into the building who was able to perform further analysis of the company’s IT network. “Most security experts agree that dishonest employees are the greatest risk to company data leaking outside an organisation, many of whom are working with a criminal gang before they even enter employment,” says Greenlees. “However, social engineering that tricks genuine employees into providing access to confidential data is a fast growing issue. It’s important that senior executives understand how easy this is, but also how they can effectively counter the threat by actually practicing what they preach.”

Major contractors commit to halving waste to landfill by 2012 Members of the UK Contractors Group have agreed to sign up to the WRAP Halving Waste to Landfill Commitment.

achievement of the overarching target of halving waste to landfill by 2012 set by the joint government and industry Strategy for Sustainable Construction.”

The group, which represents 25 major contractors, will individually report progress in achieving their own waste targets through the use of the WRAP Waste to Landfill Reporting Portal. The portal allows monitoring of individual company performance improvement and permits comparison against industry standards.

Marcus Gover, Director of Market Development at WRAP said “By encouraging all its members to set targets to improve their resource efficiency and reduce their waste to landfill, and - most importantly measure and report their performance using a robust and consistent approach, the UKCG is leading the way in helping the sector reduce costs and combat climate change.”

Rob Lambe, chairman of the UKCG Environmental Group and managing director of Willmott Dixon’s Dartford Office, said “By signing up to this Commitment the UKCG is demonstrating the contribution it is making towards the

* UKCG has recruited its first three affiliate members: public affairs company Cogitamus; PR firm Madano; and lawyers Pinsent Masons. Affiliate membership is open to organisations that provide services to the construction industry.

Your chance to WIN £100 For your chance to win simply Introduce a new company to Constructive Business Support and if they subscribe to our services we will send you a cheque for £100.00

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Agency workers consultation launched European proposals would ensure equal treatment for contract and agency staff after 12 weeks says Lucy Phillips The government has launched a consultation today that could result in agency workers being given the same pay and conditions as permanent workers after 12 weeks in a job. The proposals to implement the European agency workers directive are based on an agreement made with the CBI and TUC last year and could give equal treatment in the workplace to more than one million contract and agency workers in the UK. The 12-week consultation with business groups, unions and other stakeholders will run until the end of July. European Union member states have until December 2011 to implement the rules. John Cridland, deputy director-general of the CBI, said that while the directive had been agreed in Brussels “there are still lots of questions that remain about how it will be implemented in the UK”.

“Agency working is important for the UK economy and we mustn’t undermine it with clumsy regulation,” he said.

implementation until October 2011, the latest possible time, because of the recession.

TUC general secretary Brendan Barber added: “Agency workers are often treated unfairly at work. The new laws must provide real protection for temps, and any legal loopholes which would allow unscrupulous employers to avoid the law and to undercut reputable firms must be closed.”

A spokesman from the Department for Business, Enterprise & Regulatory Reform said its main objective was “to ensure appropriate protection for temporary agency workers whilst maintaining a flexible labour market”.

Kevin Green, chief executive of the Recruitment & Employment Confederation (REC), said the stakes were extremely high for the UK labour market. “A poorly drafted and unhelpful implementation of the EU directive could unleash a regulatory wrecking-ball through the UK’s jobs market,” he warned. Green urged the government to take up the REC’s Agency Work Commission recommendations, which included delaying

Matthew Clayton, partner at Rickerbys law firm, commented: “Although any move which gives greater rights to disadvantaged workers is to be welcomed, we must at the same time be careful about how this is implemented in the UK. These proposals will undoubtedly result in greater cost for employers, and a corresponding loss of flexibility in the workforce. Retaining a flexible labour market is one of the strongest tools the UK has to pull itself out of recession, and the government needs to bear that in mind.”



Shell fined largest amount yet for serious fire regulation breaches Shell fined largest amount yet after pleading guilty to serious breaches of the Regulatory Reform (Fire Safety) Order 2005 (the RRO). This fine is the largest imposed under the RRO. The London Fire Brigade prosecuted Shell following two small fires in the space of three weeks at the Shell Centre on York Road, London. These fires resulted in an inspection being carried out on 12 January 2007. The Inspecting Officers found extensive breaches, including blocked escape routes and fire exits, defective fire doors and excessive fire loading. The fire loading in the Shell Tower had been dramatically increased because of refurbishments taking place in the upper floors. The deficiencies were so severe the London Fire Brigade served a prohibition notice on Shell, which restricted the use of the Shell

Tower and basement levels. Under the prohibition notice, only people working to remedy the fire safety deficiencies were allowed to enter those parts of the building. All employees and members of the public were prevented access until the affected areas were considered to be safe enough to occupy. A further inspection was carried out on 15 January 2007 – all the fire safety failings were remedied and the prohibition notice was lifted. It was also discovered that Shell’s own fire risk assessment had not been reviewed or updated since March 2003. The 2003 fire risk assessment had identified some of the same failings that were observed during the 2007 inspection. For over three years, the condition of the general fire precautions within the Tower deteriorated with the matters identified by the 2003 fire risk assessment getting worse. On average a new risk assessment should be updated every year.

Assistant Commissioner, Steve Turek, said: “Shell failed to respond properly to their risk assessment for three-and-a-half years and had it not been for the fires which led to the inspection, it could have been considerably longer. Had Shell acted upon the findings of the 2003 risk assessment at the time, they would have avoided putting their staff at risk.” London Fire Commissioner, Ron Dobson, added: “This conviction shows that major companies are not exempt from prosecution and must take their responsibilities under the RRO seriously. Failure to do so can, as this case has shown, result in a substantial fine.” Sentencing of Shell International Limited took place at Inner London Crown Court on 2 June 2009 after they pleaded guilty to three breaches of the RRO.

Results of Construction Division intensive inspection initiative – March 2009 HSE Campaign from March 19-05-2009 Doesn’t make good reading What did we do in March 2009? n

1759 sites and 2145 contractors were inspected


265 Prohibition Notices (PN) on work at height issued


17 Improvement Notices (IN) on work at height issued


11 Prohibition Notices on good order were issued


12 Improvement Notices on good order issued


20 Prohibition Notices in relation to asbestos removal issued


16 Improvement Notices in relation to asbestos removal issued


150 Notices issued on other serious areas of concern


In 11 cases, inspectors believed the situation on site to be so poor that prosecution is being considered

What did we find? n

During this initiative we found that 1 in 5 sites and 1 in 5 contractors inspected were found to be working below the acceptable standard.

Although encouraging signs of improvement were found on previous initiatives in 2007/08, HSE inspections again identified significant amounts of poor practice across Great Britain. This time one in five sites, and one in five contractors, were considered to be working so far below the acceptable standard that HSE inspectors felt it necessary to use their powers to serve enforcement notices to immediately stop the work or activity on site (PN), or to require improvements to be made within a specified timescale (IN). n

During this initiative we found that approximately 1 in 6 sites were failing to address work at height risks on site.

Working at height remains the biggest single cause of serious and fatal injuries on construction sites, yet despite this, on average, approximately one in six of the sites inspected demonstrated significant failings in this area requiring service of an immediate PN. Working safely at height is a matter of following simple precautions. The basic principles are: n

Take time to plan the work


Select the right equipment and use it properly

Slips and trips, along with falls from height,

are the biggest cause of major injuries in construction. Tripping hazards on site are no joke and should be taken seriously as our inspectors proved once again, serving over 20 enforcement notices in relation to good order issues during this initiative. Good order on site makes good common sense and is good business practice. A tidy and organised site tends to be a more productive one, where people are able to spend their time doing the work they’ve been paid to do rather than clearing waste out of the way before they can start or climbing over mountains of rubbish to get to their place of work. Asbestos is the greatest single cause of work-related deaths in the UK. It is a serious health issue and construction workers carrying out work on buildings built or refurbished before the year 2000 could be exposed to asbestos without even knowing it. Despite the very real and grave dangers, our inspectors served nearly 40 enforcement notices in relation to asbestos removal. It is essential to find out whether refurbishment work is likely to disturb asbestos either from checking existing records (such as the client’s survey, asbestos plan or register) or commissioning a suitable survey before any construction work starts. It is good practice to include the need to survey asbestos and protect or remove it in the initial project cost and programme.

Corporate Manslaughter & Corporate Homicide 2007 Because previous legislation surrounding Corporate Manslaughter was too difficult to enforce, on the 6 April 2008, the Corporate Manslaughter and Corporate Homicide Act 2007 (CMA) came into force throughout the UK. This means that an employer risks prosecution under the Act if it breaches its statutory Health and Safety duties and an employee dies as a result. If a jury decides the breach was sufficiently serious and posed a sufficient risk of death, the organisation will be convicted.

Are you confident that your Health and Safety Management systems are both up to date and safe working practices are being followed by your employees? Corporate manslaughter... How does it affect me? It is now of paramount importance that in the event of a fatality, (to either a member of staff or the general public) that you have implemented safe working practices and procedures and that you can prove that you have communicated these to your staff and have the appropriate evidence to support this.

Business Defence Striving to offer the most proactive service of this kind within the marketplace, mhl support has its own team of Criminal Health and Safety defence lawyers who will be on-site with you in the event of a serious accident or fatality. This is an exceptionally traumatic time for any senior management, but by having our specialist lawyer’s on-site to help you strategically manage the investigation, you know that you have the very best possible legal advice available.

Taking the first steps in a disciplinary under the new Acas code Will employers have to change the way they handle potential disciplinary situations now the revised Acas code of practice on disciplinary and grievance procedures is in force? We consider a typical employment situation. Scenario You come into work one day to find an anonymous note, alleging that a senior manager is fiddling her expenses. The tip-off contains details of a number of claims that are said to have been “padded” with unauthorised personal expenditure. You decide this has to be investigated and invite the manager concerned to an investigatory meeting, but she refuses to answer any questions unless she is accompanied by a colleague. How do you respond? The Law – The new Acas code says employers should carry out necessary investigations “without unreasonable delay” to establish the facts. The code makes it clear that, in some cases, a proper investigation will require an investigatory meeting with an employee who may face disciplinary action. The guidance says employers should deal with the employee in a “fair and reasonable manner” and look for evidence that supports the employee’s case. Strategy – Here, the allegation would amount to gross misconduct if it turned out to be true, so it’s right to treat it seriously and promptly even though it is anonymous. In most misconduct situations, the employer will need to investigate to decide

whether disciplinary action is warranted. In this scenario, it is likely to be impossible to take a decision about further action without speaking to the employee. But employers must judge each case individually and decide whether to get the employee’s side of the story immediately or whether to investigate to see if there was any merit in the allegation. Going back to this scenario, you could check whether the manager’s expenses were out of line with what other managers at her level were claiming. Given the seriousness of the allegation, speaking to her before doing anything else is likely to be seen by a tribunal as treating the manager in a “fair and reasonable manner” in accordance with the guidance and consistent with finding evidence to support her case. Depending on who else was involved in the investigation, the manager would probably feel aggrieved if her expenses had been thoroughly reviewed before she was even made aware that there was a potential problem, particularly as the tip-off was anonymous and may not have been made in good faith. Having decided to hold an investigatory meeting with the manager, how do you go about arranging it? The Law – The guidance says the employer should give the employee advance warning of any investigatory meeting and time to prepare for it. It does not suggest how much notice an employer should give the employee to allow the individual to prepare. Strategy – You need to decide how much notice of the meeting it is appropriate to

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give the employee. Many employers will be concerned that if they were to give employees too much notice of the meeting and its content, they would have an opportunity to interfere with evidence. An hour or two’s notice of an investigatory meeting is probably appropriate in most cases. This should balance the employer’s legitimate concern to progress the investigation without delay with the need to treat the employee in a fair and reasonable manner. How will you deal with the employee’s demand to be accompanied? The Law – There is no right to be accompanied to an investigatory meeting under existing law or the revised Acas code, but the code makes it clear that the right may be allowed under an employer’s own procedure. Strategy – Consider whether the employee has a right to be accompanied under your internal disciplinary procedures. If she does not, you should be able to refuse her request. The employee’s responses (or lack of them) can be taken into account in deciding whether there is a need for further disciplinary action. Some employers are considering amending disciplinary procedures to allow employees to be accompanied at the investigatory stage. This may be desirable if, for example, allowing such a right would fit with the organisation’s culture and ethos. But employers should also think about whether introducing this right could cause delay, particularly if the chosen companion was not available at short notice.



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