Employment

2 April 2007

NEWS

Women Experience More Anxiety in the Workplace

A report commissioned by the Chartered Institute of Personnel and Development has found that women are much less likely to feel calm and relaxed in the workplace. Read more

Working Environments "Gloomy" for Almost Half of Full-Time UK Workers

A survey by Ambius has revealed that 46 per cent of full-time UK workers described their working environments as "gloomy" or "depressing" and 84 per cent say their surroundings have a significant impact on their happiness and motivation. Read more

Acas Will Need More Funding if Dispute Resolution Reforms to Work

Employment experts have warned that Acas will need more funding if the government's proposals for greater use of mediation in resolving workplace disputes are to work. Read more

Employees Prepared to Share Confidential Information with Rival Companies

According to a survey by content security company Websense, one in twelve employees would happily share sensitive information with friends at rival companies. Read more

Employers Search Internet for Information on Job Applicants

Potential employers are choosing to search the internet for information on job candidates according to a survey by Viadeo, an online information exchange and forum for business. Read more

Survey Reveals Mums Think Employers Lack Knowledge of Pregnancy Rights

An online survey released by Netmums and the Equal Opportunities Commission (EOC) has revealed that less than half of working mothers (40 per cent) think their employers fully understand how to manage pregnant staff. Read more

Government Publishes Green Paper on Mandatory Education or Training Until The Age of 18

The government has detailed proposals for young people to remain in education or workplace training until the age of 18 in the Green Paper "Raising Expectations: staying in education and training post‑16".

LEGISLATION

Legislative Changes Taking Effect in April 2007

Flexible Working Bill

A Flexible Working Bill was introduced in the House of Commons on 27 March 2007 and is due to have its second reading on 19 October 2007. Read more

Smoke-free (Signs) Regulations 2007

Further regulations have been published in connection with the smoke-free provisions of the Health Act 2006 banning smoking in enclosed public places. The Smoke-free (Signs) Regulations apply in England and will come in to force on 1 July 2007. Read more

CASES

Statutory Grievance Procedure Does Not Apply Where Complaint is About Discriminatory Dismissal

The EAT has confirmed that where an employee claims that their dismissal was discriminatory, the Statutory Grievance Procedure (SGP) does not apply. Read more

New Evidence Leading Employer to Increase Disciplinary Sanction Meant Employer had to Restart the Statutory Dismissal Procedure

The Claimant claimed, among other things, automatic unfair dismissal on the basis that her former employer had failed to follow the statutory disciplinary and dismissal procedure (SDP). Read more

High Court Upholds Six Month Non-Compete Provision

The High Court has upheld a six month non-compete provision in the contract of a Head of Training and Personnel Development. Read more

NEXT HR NETWORK EVENT

Our next HR Network Event will be our Workshops on New TUPE: one year on which are taking place in April followed by our Training Course on Managing stress, Disability and Absence effectively. A full list of HR Network workshops and seminars is available here.

FEEDBACK

Please let us know what topics are of interest to you by emailing HRnetwork@pinsentmasons.com. This will help us to shape future editions of this Briefing and HR Network events.

NEWS

Women Experience More Anxiety in the Workplace

A report commissioned by the Chartered Institute of Personnel and Development has found that women are much less likely to feel calm and relaxed in the workplace.

The report by Kingston University's School of HR Management "Working Life: Employee Attitudes and Engagement Report" involved a survey of 2,000 workers. Though it found that women were more anxious in the workplace, it also revealed that women tended to be more satisfied with their job.

Dr Emma Sloane, who worked with Ipsos MORI to conduct the survey, said the findings suggested women were more emotionally attached to their jobs. She said: "This greater level of involvement would explain why some women experience anxiety at work, but also feel positive about their role. Women are more likely than men to be caring for children or other family members, and the pressure of juggling multiple roles could be the reason why they worry more in the workplace."

The survey also revealed that women were more likely to encounter some form of bullying or harassment (of those surveyed, 29 per cent had experienced harassment at work compared to just 19 per cent of the men surveyed), and that women have more confidence in their senior managers than men (41 per cent of women compared to 34 per cent of men). (Personnel Today, 28 March 2007) Back

Working Environments "Gloomy" for Almost Half of Full-Time UK Workers

The workers who are unhappy with their "depressing" working environment take on average 14 days sick leave each year, compared to the average of eight days, costing firms almost £4.5billion a year.

The cost of "gloomy" workplaces extends beyond extra sick days and hits workplace productivity – 65 per cent of those surveyed claim that better surroundings would make them 20 per cent more productive at work, which is equivalent to gaining an additional working day each week.

The aspects of the workplace workers found most irritating were workplaces that are too small (35 per cent), workplaces where no greenery could be seen (34 per cent) and workplaces which have no natural ventilation (31 per cent). A massive 88 per cent of workers believe employers should do more to improve working conditions. (Sky News, 26 March 2007) Back

Acas Will Need More Funding if Dispute Resolution Reforms to Work

Employment experts have warned that Acas will need more funding if the government's proposals for greater use of mediation in resolving workplace disputes are to work.

As reported in last week's Briefing, a review of the Statutory Dispute Resolution Procedures conducted by Michael Gibbons has recommended a "greatly increased role" for mediation and an abolition of the current fixed conciliation periods for Acas conciliation. Mr Gibbons said that the current Acas service was "effective and well regarded" but acknowledged that recent reductions in funding had "adversely affected" Acas' level of involvement. The reductions include the loss of hundreds of staff over the last two years and the government announcement of a cut in Acas' budget of 16 per cent over three years.

Peter Schofield, the director of employment and legal affairs at the manufacturers' organisation EEF and a member of the Gibbons review panel, said: "Acas obviously needs more resources as it has already had to tailor the way it delivers its services because of reduced income and personnel."

Agreeing with the concern over the level of resources, Acas chairwoman, Rita Donaghy, said: "There is no doubt that if you reduce an organisation by almost 20 per cent you will not be able to do everything you did before. If more is asked of us, we'll need more resources". (Personnel Today, 27 March 2007)

To see last week's Briefing on the Gibbons recommendations click here. Back

Employees Prepared to Share Confidential Information with Rival Companies

According to a survey by content security company Websense, one in twelve employees would happily share sensitive information with friends at rival companies.

The survey also found that over half of employees believed their employer would be unable to discover if they took or accidentally sent sensitive information outside the company. The blatant breaches of confidentiality by employees uncovered by the research included:

31 per cent of employees had actively tried to guess the administrator's password for their PC;
21 per cent had tried to access protected files, including finance and HR data; and
52 per cent had tried to access a colleague's email account.

Frank Coggrave, Regional Director for Western Europe at Websense, emphasised the need for employers to take the results as a warning to protect their business information. He said: "It is a real eye opener to realise that so many UK employees are willing to put aside confidentiality agreements for friends. When you see that over half of the people surveyed had tried to hack into a colleague's email account, this should start alarm bells ringing for many companies. Even if these actions are completely innocent, the implications are huge for companies leaving their data security to chance. There are so many potential holes in security that can expose an organisation. Not taking proactive steps to secure confidential data can lead to extremely costly information leaks."

This study backs the findings of recent research carried out by Prefix IT. As reported in our earlier Briefing, Prefix IT found that a relaxed attitude towards internal security has allowed a data theft culture to develop in the workforce resulting in 60 per cent of workers admitting to theft of confidential documents, customer databases, business contacts and sales leads.

The research by Websense highlighted that a lot of disclosure of confidential information can occur innocently. For example, the results indicated that 46 per cent of employees admitted to allowing friends and family to use their work laptop containing sensitive company information while 65 per cent have sent potentially confidential information to insecure personal web mail accounts like Yahoo and Hotmail to work from home. Employers need to strengthen their confidentiality and IT policies and ensure that these policies are disseminated to and understood by the workforce. (Workplace Law, 27 March 2007)

To view our earlier Briefing covering the research by Prefix IT click here. Back

Employers Search Internet for Information on Job Applicants

Potential employers are choosing to search the internet for information on job candidates according to a survey by Viadeo, an online information exchange and forum for business.

The survey of more than 600 employers discovered that 20 per cent of managers looked for "personal information about job candidates on the web" and 25 per cent of those employers had "actually rejected applicants, based on dubious personal information".

When asked why employers had discounted candidates for vacancies based on their internet search the reasons included discovering a candidate's "alcohol abuse and disrespect for his job" and the discovery that a job applicant was "on the local police wanted list".

Sarah Hayman, at the recruitment company Indigo Red, said that one of their clients looked at the MySpace page of a job applicant and "was instantly put off by her profile, which claimed that she only ever read celebrity magazines".

The website "MySpace" was also found to be a key source of incriminating information by Jacqueline Thomson, from the public relations company Brands2Life. She said that her company had decided not to recruit a candidate based on their findings on MySpace and the site "Facebook". The individual had used the sites to "criticise previous employers and discuss company information."

The findings by Viadeo are a warning to potential candidates about their use of the internet for recording personal information. Peter Cunningham, manager for Viadeo in the UK, said: "Millions of people are inadvertently contributing to their NetRep [internet reputation] every day by leaving personal information online much of which is cached and remains available via search engines even after the author has removed the webpage. The rise of search engines such as Google means that potential employers are never more than a few clicks away from information about you." (Financial Times, 27 March 2007) Back

Survey Reveals Mums Think Employers Lack Knowledge of Pregnancy Rights

The survey of 2,080 mums revealed that smaller businesses often face problems due to a lack of experience of handling pregnancies in the workplace – on average they handle only one pregnancy every ten years. Employers with less than 10 members of staff often suffered financially when handling workplace pregnancies.

The survey revealed:

Only half of mums felt they were fully aware of their own rights and responsibilities at work, as a pregnant woman or new mother;
1 in 6 women said they were not treated well by their employer or manager while pregnant; and
1 in 4 felt they were not treated well on their return after maternity leave.

In response to the knowledge gap the EOC has produced a toolkit, offering practical advice and business solutions, to help individuals and employers get information on their rights and responsibilities. The toolkit will support the government's "Pregnancy at Work" leaflet on employees' and employers' mutual rights and responsibilities.

Click here to access the toolkit.

(Equal Opportunities Commission Press Release, 29 March 2007) Back

Government Publishes Green Paper on Mandatory Education or Training Until The Age of 18

The publication of the Green Paper follows a CBI warning on the need for a cautious approach in the

implementation of the proposals, as reported in our Briefing last week.

The Green Paper sets the proposals to be consulted on. They include:

All young people should participate in education or training until their 18th birthday;
There will be an initial requirement to participate until age 17 from 2013 – affecting those who enter secondary school in September 2008;
Participation in education or training will require young people to work towards accredited qualifications at school, college, in "on the job" training or day release;
Participation should be full time for young people not in employment for a significant part of the week, and part time for those working more than 20 hours a week;
An expansion of the number of Apprenticeships available; and
A requirement for employers to release young people from work to undertake training where the employer does not want to provide or arrange training themselves.

Alan Johnson, the Secretary of State for Education and Skills, said: "It's not good for the economy or for young people if they leave school at 16 without the skills they need to succeed in the world of work. With fewer low skilled jobs we need more high skilled young people and this means spending more time in training or education. As a nation we've toyed with the idea for almost a hundred years, now is the time to make it a reality for all."

To view a copy of the Green Paper click here.

To see our reporting of the CBI's concerns in last week's Briefing click here.

(DfES Press Release, 22 March 2007) Back

LEGISLATION

Legislative Changes Taking Effect in April 2007:

SMP/SSP - increase in the rates of statutory maternity pay and statutory sick pay will take effect in April. On 1 April 2007 the basic rate for statutory maternity pay will increase to £112.75 a week. On 6 April 2007 the rate of statutory sick pay will increase to £72.55.
The Health Act 2006 will ban smoking in enclosed public space in Wales from 2 April 2007.
The Smoking (Northern Ireland) Order 2006 will ban smoking in enclosed public spaces in Northern Ireland from 30 April 2007.
From 6 April 2007 the Equality Act 2006 will

amend the Sex Discrimination Act 1975 to place a statutory duty on all public authorities to eliminate unlawful discrimination and harassment and promote equality of opportunity between men and women. The Equal Opportunities Commission gender equality duty code of practice will also come in to force; and
amend the Employment Equality (Religion and Belief) Regulations 2003 by changing the definition of "any religion, religious belief or similar philosophical belief" by removing the word "similar". This means that being of no religion or belief will be covered and the scope of what might be regarded as a philosophical belief is widened.

The Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order 2006 comes into force on 6 April 2007 and requires certain listed bodies to put a gender equality scheme into place by 30 April 2007, as part of the public sector equality duty.
From 6 April 2007 the Employment Equality (Age) (Consequential Amendments) Regulations 2007 will make a number of changes to the Employment Equality (Age) Regulations 2006. A dismissal will be automatically unfair if the reason for dismissal is the employee exercising, or seeking to exercise, his or her right to be accompanied, or to accompany another, at a meeting to request working beyond the intended date of retirement. A further change will provide that claims of age discrimination are exempted from the requirement for a fixed conciliation period in the same way as complaints under other discrimination legislation. This corrects an earlier omission and reflects Acas's practice in this regard.
From 6 April 2007 there will be an extension of the Information and Consultation of Employees Regulations 2004 and the Consultation Regulations covering Occupational Pension Schemes so that undertakings with 100 or more employees are covered.
The Employment Act 2002 will be amended from 6 April 2007 to include three new jurisdictions where a tribunal must consider whether the parties have followed one of the statutory dispute resolution procedures. The new jurisdictions are detriment relating to: employees of European Public Limited-Liability Companies; Information and Consultation representatives and employees; and Occupational and Personal Pension Schemes Representatives.
The Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006 will extend the right to request flexible working to carers of adults from 6 April 2007.
Work and Families – the changes to maternity rights which came into force in October 2006 and which apply to women whose expected week of childbirth is on or after 6 April 2007 begin to have effect. These include the extension of paid maternity leave to 39 weeks, the introduction of keeping in touch days and an increase (to eight weeks) in the length of notice an employee must give if they wish to return early from additional maternity leave. Back

Flexible Working Bill

A Flexible Working Bill was introduced in the House of Commons on 27 March 2007 and is due to have its second reading on 19 October 2007. The Bill, which is a Private Members' Bill, would extend the right to request flexible working to parents of children up to the age of 18 and encourage employers to offer flexible working arrangements. Back

Smoke-free (Signs) Regulations 2007

The regulations will require the display of no-smoking signs at all smoke-free premises and in all smoke-free vehicles. All smoke-free signs in premises will have to be displayed in a prominent position at the entrance to the premises and comply with the format requirements in the regulations. The smoke-free signs in vehicles will have to be displayed in each "compartment" as outlined in the regulations and must display the "no-smoking sign". Back

CASES

Statutory Grievance Procedure Does Not Apply Where Complaint is About Discriminatory Dismissal

The EAT has confirmed that where an employee claims that their dismissal was discriminatory, the Statutory Grievance Procedure (SGP) does not apply.

The Claimant was dismissed. He claimed wrongful and unfair dismissal and also that his employer discriminated against him on disability-related grounds when it dismissed him.

He did not raise a grievance prior to lodging his claim with the Employment Tribunal. Generally, an employee wishing to make a discrimination complaint to the tribunal must first set out their grievance in writing in accordance with Step One of the SGP. The Tribunal may be precluded from hearing the complaint unless the employee has done so. However, Regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides that the SGP does not apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee. In such cases, the Statutory Dismissal Procedure (SDP) applies. The EAT confirmed that Regulation 6(5) does cover complaints about discriminatory dismissals in the same way as any other dismissal complaint. There was no obligation on the employee to raise a grievance that the dismissal was discriminatory before being able to bring a tribunal complaint. Such issues would be aired and considered as part of the SDP.

There has been some confusion over the effect of Regulation 6(5) and whether the SDP or the SGP applies where the complaint is about a discriminatory dismissal. This case confirms what was thought to be the correct position and is welcome clarification. Employees complaining about discriminatory dismissals do not have to raise a grievance – it is the statutory dismissal procedure that applies in such cases. However, where a claimant is also complaining about acts of discrimination preceding the dismissal the Statutory Grievance Procedure will apply and a grievance should be raised in relation to those complaints before a tribunal complaint is made.

Lawrence v HM Prison Service Back

New Evidence Leading Employer to Increase Disciplinary Sanction Meant Employer had to Restart the Statutory Dismissal Procedure

The Claimant claimed, among other things, automatic unfair dismissal on the basis that her former employer had failed to follow the statutory disciplinary and dismissal procedure (SDP).

The employer's disciplinary policy provided that the employer was entitled to increase or reduce any disciplinary sanctions imposed in the event of an appeal.

The Claimant was involved along with several other employees in an incident at work which involved a prank at the expense of another employee. Disciplinary proceedings were started which comprised several meetings. An investigatory meeting was followed by a disciplinary hearing which resulted in a final written warning being issued to all the employees involved in the incident (including the Claimant).

All the employees appealed against the final written warning. In accordance with the Company's disciplinary policy all the employees were warned that the appeal process would be a complete re-hearing and that sanctions might be increased as well as reduced.

One of the Claimant's colleagues involved in the incident changed his evidence in his appeal hearing and alleged that the Claimant had been the perpetrator of the prank. Following the Claimant's appeal hearing at which this new evidence was mentioned to the Claimant, she was suspended on full pay and then subsequently dismissed.

The Employment Tribunal held that the dismissal was automatically unfair. The employer had not complied with Steps One and Two of the SDP in relation to the dismissal. Once new evidence came to light following the Claimant's appeal which led the employer to consider disciplinary action other than the final written warning already issued it should have restarted the SDP from the beginning. The EAT upheld the Tribunal's decision.

This case demonstrates once again how easy it is for employers to fall foul of the statutory procedures. It rejected the employer's argument that there was never a time when it had not contemplated dismissal and that the whole disciplinary process should be viewed as continuous. The ability to increase the disciplinary sanction is an unusual feature of a disciplinary procedure. The EAT's decision hinged upon the introduction of new evidence part of the way through the disciplinary proceedings which led the employer to consider imposing a greater sanction on the employee than it had imposed before. It pointed out that had the employee not appealed against the final written warning and subsequently further evidence had come to light which led the employer to consider dismissal, the employer would have been obliged to start the SDP again. The fact the employee appealed and the disciplinary procedure allowed for an increased sanction does not alter that position.

Premier Foods PLC v Garner Back

High Court Upholds Six Month Non-Compete Provision

The High Court has upheld a six month non-compete provision in the contract of a Head of Training and Personnel Development.

Mr Steer worked as Head of Training and Personnel Development for Intercall - a company which provides conference calling, audio, video, web and event conferencing to customers in the UK and Europe. In that role he was responsible for the induction and training of the sales force which meant he had to be completely "au fait" with the company's sales methodology. He also acted as stand-in for the Head of Direct Sales (HDS) when the person holding that role went sick.

His contract contained a non-compete provision prohibiting him from working for named competitors, including Premiere, for a period of six months after termination of employment. The covenant had no geographical restriction.

Mr Steer resigned and later advised Intercall that he was joining Premiere. Intercall applied for an injunction to restrain him from working for Premiere.

Mr Steer argued that that he did not possess and had not used or disclosed any confidential information. In addition, he was taking up a training role and not a sales role with Premiere and therefore he would not be competing with Intercall. He claimed that Intercall's application was not seeking to protect a legitimate business interest and that the restriction was too wide and vague to be enforceable.

The High Court disagreed and granted Intercall's application. The Court accepted that the information which Mr Steer came into contact with, both in his training capacity and his HDS capacity, was of a confidential nature. He was one of a limited number of people with access to a database containing customer and sales information – including contact details and billing information for customers, details of whether an approach had been made and what the response had been and details of deals offered to potential new customers. He also had knowledge of the sales team's salaries, bonuses and commission structure which were clearly confidential and relevant to the poaching of staff.

Despite the lack of an area limitation, the restriction was not too wide to be enforceable, given the length of the restriction, the European nature of Intercall's business and the fact that the restriction applied only to specific companies in competition with Intercall. In addition, the fact that it prevented him working in any capacity was not decisive since, if he was in possession of confidential information that required protection, there was a risk that confidentiality could be breached no matter what role he performed for the new employer.

This case is the second case recently reported where a non-compete provision has been upheld. In the other case (Thomas v Farr PLC) a twelve month non-compete provision in the contract of the Managing Director of an insurance brokers was held to be enforceable. These cases demonstrate that courts are prepared to enforce non-compete provisions where the information the employer is seeking to protect is sufficiently confidential and that information cannot be adequately protected through confidentiality provisions or through non-solicitation and non-dealing provisions contained in the contract.

Intercall Conferencing Services Limited v Steer Back

This bulletin is not intended to be a definitive analysis of legislative or other changes and professional advice should be taken before any course of action is pursued.

Should you have any questions please contact your usual Pinsent Masons advisor, your local office (see below) or hrnetwork@pinsentmasons.com

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