The Bribery Act coming into force on the 1st July 2011

First of all it is important to understand what bribery is so that you can recognise it.  A bribe is any gift, loan, fee or reward or other advantage to persuade someone to do something which is dishonest or illegal while carrying out the company’s business.  This would include sharing of commission (kickbacks) or unofficial payment to prioritise a contract (facilitation payments) and offers of exhange of goods or services (reciprocal arrangements).

The Ministry of Justice has produced guidance for employers outlining their responsibilities.  Although the guidance outlines in broad terms actions required by organisations it does not go into detail about how that should be achieved.
The guidance on the Bribery Act highlights 6 guiding principles for employers to follow.  They will be applied differently depending on the size and nature of the organisation.  What is clear is that even small organisations are not outside the scope of this legislation.  The 6 principles are:

1. Proportionate procedures
2. Top level commitment
3. Risk assessment
4. Due diligence
5. Communication (including training)
6. Monitoring and review

There is a corporate offence of failure to prevent bribery. An organisation will be able to defend a claim if it can show it had “adequate procedures” in place to mitigate the risk.  This will be easier to defend if the 6 principles have been followed.
Although this Act has been introduced to deal with corruption, it has very far reaching implications for all types of public and private organisations. The Act creates specific offences: offering, promising or giving a bribe; requesting, agreeing to receive or accepting a bribe.

 

Although this Act has been introduced to deal with corruption, it has very far reaching implications for all types of public and private organisations. The Act creates specific offences: offering, promising or giving a bribe; requesting, agreeing to receive or accepting a bribe.

If you run a small organisation then your policies and procedures will of course be different to that of large organisations and some procedures may not be applicable.  However this does not mean that no action is required.

Employers will not be able to rely on ignorance of their employees’ and, in some cases consultants and contractors’ actions.  The employer will be liable unless they can demonstrate appropriate steps were taken to protect against such actions.
 

Employers therefore need to:
• Introduce an anti-bribery policy and procedure (which must be communicated and enforced) stating that employees must never engage in bribery, unethical inducements or payments and that such conduct would be dealt with under your disciplinary procedures.
• Add offences under gross misconduct in your contracts and disciplinary policy
• Communicate the change to the work force
• Provide training which is updated from time to time to back up your defence
• Add reporting suspicion of bribery to your whistleblowing procedure
• Review expenses and gifts policies and ensure adequate monitoring or sign off

 

Some organisations also have policies on accepting gifts and hospitality. If your organisation has such a policy it should be reviewed to ensure that:

• There are clear rules around accepting such gifts
• That any gift offered which is intended to influence your decisions or which could lead to a conflict of interest must not be accepted 
• That any hospitality where it is worth more than a token amount should be approved by a senior manager or director
• If your business trades with other countries then be aware that different standards of conduct may apply

 

The Default Retirement Age (DRA)

The ACAS guidance “Working without the default retirement age” was published on the 13th January 2011. The DRA is being phased out over a transitional period running until 30 September 2011. Details will be set out in Regulations coming into force on 6 April 2011.

The last day employees can be compulsorily retired using the DRA is 30 September 2011, so the last day to provide six months’ notice required by the DRA provisions is therefore 30th March 2011. From 1 October 2011 no employee can be compulsorily retired by an employer because they have reached the age of 65 unless that retirement can be objectively justified.

The proposed changes will have far reaching implications for the way most businesses work and employers who fail to make the necessary changes to approaches to employee retirement may face claims of unfair dismissal and discrimination.
The removal of the DRA is an opportunity for you to review your practices and processes for managing employees and their performance.

Having regular conversations with all employees about your expectations of them, their performance and future plans are invaluable. These should not be limited to younger or older employees. Whilst the process of managing performance of staff does not have to be overly bureaucratic, it is advisable to keep a basic record of conversations, objectives and progress.

 

When you have someone approaching or beyond pensionable age, you should ensure that any poor performance is addressed as it would be for other employees.

• Workers will retire when they are ready to, enforced retirement will only be possible if it is objectively justified
• You must avoid discriminating against all workers on the grounds of age
• This legislation will be applicable to all employers and all company sizes and sectors
• These changes do not affect an employee's state pension age and entitlements, which may well be separate from the age at which they retire.

Employer Justified Retirement Age (EJRA) this is where a retirement age can be objectively justified. That justification will be challenged in an employment tribunal. Currently the EJRA is used for retirement ages under 65 for posts such as in the emergency services and air traffic controllers for occupations that require a higher level of physical or mental fitness. The test of objective justification is not an easy one to pass and it will be necessary to provide evidence if challenged; assertions alone will not be enough.

 

If I discuss retirement with an older worker can I leave myself open to a claim of age discrimination?
Not if properly handled. Employers may reasonably want to know about an employee's future aims and aspirations. The important thing is not to single out older workers. If you are going to ask older workers about their plans it is good practice to also ask other, younger workers, about their plans as well, perhaps as part of an annual appraisal meeting.

What can I say to an older employee at a meeting to discuss their future plans?
It is best if you start any discussion in a general way. Perhaps asking the employee what their future plans are or how they see themselves developing in your organisation over the next year or so. Any direct questions such as "are you planning to retire in the near future" or "you seem to have been slowing down of late, have you thought about retirement" are best avoided. Once an employee has indicated that they do wish to retire there is no problem in talking to them about the date for their retirement and any adjustments they may wish to make to their working arrangements or hours in the lead up to retirement.
I would strongly recommend employers read the full guidance to familiarize themselves of their responsibilities.

 

Equality Act October 2010
Implementation of the majority of the Equality Act will begin on 1 October 2010.
The Equality Act brings together nine separate pieces of legislation into one single Act: age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity extending some protections to groups not previously covered, and also strengthens particular aspects of equality law.

Some of the key employment-related measures in the Act include:
• Identifies 9 protected characteristics against discrimination
• Extending positive action
• Allowing tribunals to make wider recommendations in discrimination cases
• Introducing a new definition of direct discrimination to cover both 'associative' and 'perceived' discrimination
• Extending employers' liability for third party harassment
• Harmonising the definition of harassment
• The test for establishing whether a person has a disability will be widened
• Allowing claims for multiple discrimination based on two different types of discrimination
• Prohibit pre-employment questionnaires

 

Discrimination is an expensive area of legislation to defend. Therefore employers need to be prepared and understand their responsibilities under this new piece of legislation which brings together 9 laws and more than 100 regulations.
What do you need to consider as an employer?
1. Audit current practices
2. Make changes to policies and practices in line with the new equality act
3. Prevent unlawful discrimination or harassment by having clear standards and policies
4. Transparent and auditable processes for recruitment
5. Understand what you can and cannot ask about disability and absence before an offer of employment is made

 

Recruiting Hints & Tips - Oct 2010
Employers within reason, are required to make reasonable adjustments for disabled job candidates.   There is a requirement to treat people fairly at all stages of the recruitment process. The Equality Act brings a focus on employers responsibilities.

Advertising - check wording of your advertisement to make sure everyone feels welcome to apply for posts within your organisation.  An employer may use specific wording such as “We value diversity in our workforce “
Application process – Remove any questions related to health or absence.  If you currently ask applicants to complete a health questionnaire prior to interview stop using it. If you are monitoring the diversity of your workforce this information can still be captured but should be separate from the interview process.
Shortlisting - When you are assessing which candidates should get to the next stage of the recruitment process, you should always do so on the basis of objective evidenced criteria. 
Interviewing - You should be flexible about the date and time of the interview so that no one is disadvantaged from attending.  Some questions may be necessary where there are intrinsic requirements essential for the job or where reasonable adjustments are required.  Care needs to be taken in avoiding comments which might suggest you feel there are barriers to a candidates ability to do the job.  Keep your questions focused on their skills, abilities and qualifications.
Selection – Your criteria and process should be recorded and objectively justified.  After offer questions about health, including sickness absence records can be asked. 

 

 Scrapping the default retirement age (DRA) July 2010

The government confirmed at the end of July the DRA would be scrapped. The new plans allow for a six-month transition from the existing regulations.  Between the 6th April and the 1st October, only people who were notified before the 6th April, and whose retirement date is before 1st October can be compulsorily retired.

There will still be a review of the state pension age with that likely to rise to 66 in a few years time.

The biggest fear by an employer is how they can safely have a conversation with an employee and not feel exposed to tribunal claims. Employers should ensure their performance management and absence management policies are robust enough to manage older workers and any capability issues appropriately. 

 

Holiday Pay – July 2010

A new case has ruled where an employee was off sick and unable to take their holiday pay, a payment for an employee's holiday year entitlement meant an unauthorised deductions claim for previous leave years' holiday pay was out of time. 

Employers may now be able to defeat claims for more than one year's holiday pay from sick employees by making a payment covering their most recent leave year the tribunal ruled.

This will be welcome news for employers as queries around holiday entitlement are a common problem.  Although this decision is not binding on other tribunals, it showed this may work for employers.

This is the first decision which appears to be prepared to consider that there may be a way to break the link from one year to another by paying the employee for the most recent leave year.

 

The legal position on how holidays and sick leave interconnect however are still however uncertain.

Standard employment contracts may need to include a clause that deals with sickness during holiday.  Holiday and sickness policies should be reviewed re the issue of sickness whilst employees are overseas on holiday.  Earlier this year two European Court of Justice (ECJ) rulings conflicted with the Working Time Regulations.

• Workers on sick leave continue to accrue annual leave even if they have not worked in that leave year
• It is permissible to allow a worker to take paid annual leave during a period of sick leave
• If employees are prevented from taking paid annual leave before they return they must be able to take it on return, even if that means taking the leave in a     new holiday year
• Payment in lieu on termination must be paid for whole or part of
• the year.

 

Additional Paternity Leave
 
The right to additional parental leave is available as of 3 April 2011.

From July 2010 onwards it will start to affect you as an employer.  If you have been informed recently by a female employee that they are pregnant or a partner who may be contemplating taking additional parental leave (it also applies to adoption) then you will need to be aware of the changes.
 
At present partners are entitled to just two weeks’ paid leave while mothers or the primary adoptive parent can take up to 52 weeks, with 39 of them paid. 

The new regulations will allow for between 2 and 26 weeks (subject to eligibility criteria) to be taken, with some or all of the leave being paid if it falls within the 39 week SMP period.

 

At least eight weeks before the APL begins, employees must give employers:
• notice of their intention to take leave.
• a signed declaration stating their absence is to care for the child;
• a signed declaration from the mother, confirming the father’s information, giving her name and address, her national insurance number and a statement of her intention to return to work.
Employers now need to start planning for the changes, to minimise the impact on the business. 

Your maternity/paternity/adoption policies, procedures & forms will need to be amended to deal with the statutory requirements.

There will be a need to provide training for your staff and managers on the changes as this makes the procedures even more complex.

There may also be a need to contact the employer of the partner to verify some of the required information.

Please speak to The People Business if you would like help and assistance.

 

Equality Bill - October 2010

The aim of the Equality bill is to:

• Bring together all the discrimination strands
• Make it easier to understand
• Strengthen the law

It is anticipated that the bill will receive Royal Assent in Spring 2010 and come into force in October 2010.  Code of practice to be published September 2010.

Protected characteristics:

• Age
• Disability
• Gender reassignement
• Marraige and civil partnership
• Pregnancy & maternity
• Race
• Religion or belief
• Sex
• Sexual Orientation

Discrimination claims will be able to made using two protected characteristics.  Employers would be advised to review and monitor Equl Opportunities Policies.

There are other clauses which will affect:

• Burden of proof changes in pre-employment health situations where applicats are rejected for jobs
• Clauses which seek to prohibit employees discussing pay with colleagues
• Power contained in bill to make regulations requiring employer's with 250 or more employee's to publish pay information on pay differences
• Changes to positive action to help reduce under reresentation, specifically in recruitment and promotion

 

Equal treatment for agency workers 1 October 2011

The regulations were laid before parliament in January. The aim is to ensure appropriate protection for agency workers. 

• Qualifying period of 12 weeks
• Equal treatment in relation to basic working and employment conditions
• Equal treatement in terms of pay for work done

Guidance to accompany regulations awaited shortly.