NHS England – the abolition of the PCTs
On the 1st April 2013, the primary care trusts were abolished and the commissioning and management of primary care services was transferred to NHS England (formerly known as the NHS Commissioning Board). This in turn has been divided into four areas: the North, the Midlands and the East, London and the South together with 27 local Area Teams (known as ATs). Those ATs are as follows:
In the North:
• Cheshire, Warrington and Wirral
• Cumbria, Northumberland, Tyne and Wear
• Durham, Darlington and Tees
• Greater Manchester
• North Yorkshire and Humber
• South Yorkshire and Bassetlaw
• West Yorkshire
In the Midlands and East:
• Arden, Herefordshire and Worcestershire
• Birmingham, Solihull and the Black Country
• Derbyshire and Nottinghamshire
• East Anglia
• Hertfordshire and the South Midlands
• Leicestershire and Lincolnshire
• Shropshire and Staffordshire
• North East London
• South London
In the South:
• Bath, Gloucestershire, Swindon and Wiltshire
• Bristol, North Somerset, Somerset and South Gloucestershire
• Devon, Cornwall and Isles of Scilly
• Kent and Medway
• Surrey and Sussex
• Thames Valley
The aim of the new structure is for NHS England to act as one single organisation across the country. The ATs have direct commissioning responsibilities for dental services and will be the main port of call for NHS dentists going forward.
For most dentists, they should have now received details of their new AT and confirmation that their NHS Contract has been transferred to NHS England. Each local AT should have 3 local professional networks (known as LPNs); one of which covering dentistry.
In addition to the local ATs, there are 211 Clinical Commissioning Groups (known as CCGs). The CCGs will be responsible for commissioning health services and all GP practices will be registered with their local CCG.
Kate Novakovic is a solicitor in the Dental Team at Ironmonger Curtis LLP in Sheffield. For further information on NHS England and how it might affect your practice, please contact our Sheffield dental lawyers by email at: email@example.com or by telephone on: 0845 225 2635.
Another satisfied dental client!
"On behalf of the new directors at Kimberworth Park Dental Practice, I just wanted to take this opportunity to send our thanks for the excellent service we received from Kate and Jonathan.
As you know this sale has not been without its stressful moments and credit has to go to Kate for all her support. She has been friendly and professional throughout and our queries have been dealt with thoroughly and incredibly promptly.
Once again, sincerest thanks from all of us."
Sickness during annual leave: holiday can be taken at another time irrespective of when incapacity occurs
In Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales and ors, the European Court of Justice held that the EU Working Time Directive (No.2003/88) requires that a worker who is sick during paid annual leave is now entitled to interrupt the annual leave and take it at a later date. This right arises irrespective of whether the sickness arose before or during the annual leave.
This case will inevitably give rise to various complications and concerns, including those surrounding the reporting the illness to the employer when on a foreign holiday, obtaining doctor’s notes when abroad, and whether the sickness should be regarded as sickness absence rather than annual leave. Employers should therefore assess any likely impact of this case and update their employment policies and procedures accordingly.
For further information on how this ruling will affect your business, or any other employment law queries, please contact our Sheffield employment solicitors on 0845 225 2635 or by email at firstname.lastname@example.org.
The UK government has revised the Privacy and Electronic Communications Regulations, which came into force in the UK on 26 May 2011, to address EU requirements. The Regulations make it clear that UK businesses and organisations running websites in the UK must get consent from visitors to their websites in order to store cookies on visitors’ computers.
To facilitate the change in legislation the ICO initiated a lead-in period which will end in May 2012 following which it will move towards the approach set out in its general Data Protection Regulatory Action Policy and it will consider using its enforcement powers to compel website operators to comply with the legislation in appropriate cases.
If you require assistance with your policies regarding your website please contact us on 08452252635 or email us at email@example.com
The effect of CQC on buying and selling a dental practice
A summary of the changes resulting from the requirement to register with the CQC
Since 1 April 2011, all dental professionals have had to be registered with the Care Quality Commission (CQC). The Health Select Committee’s report on the 14 September 2011 has scrutinised the way CQC has performed and as dental lawyers here at Ironmonger Curtis LLP we are watching this area with increased interest.
CQC is an independent regulator of health and social care in England, which includes the provision of dental services, whether that be dentists, dental nurses, hygienists, therapists, dental technicians or orthodontic therapists. Whilst the application to register is a form-filling exercise together with an up to date criminal records bureau check and a self-declaration that the dental practice complies, the recent report by the Health Select Committee details that only 75% of dental professional (and ambulance providers) were registered by the end of June 2011. As a result, the registration of GP Practices has been postponed until April 2013.
Without CQC registration a dental sale can lead to a reduction in the purchase price, the imposition of conditions (or both) or even an aborted sale.
Following the implementation of CQC registration for dental professionals, as dental solicitors we are increasingly becoming aware of its importance to the sale and purchase process and the timing required to ensure that the Practice continues to be CQC registered prior to the sale and after the purchase.
CQC presently say that it can take 8 weeks for an application to be processed. However, our recent experience shows that 8 weeks can sometimes result in 12 or so weeks. The Health Select Committee cite a lack of funding and staffing at CQC as a reason for the delays. But as the application itself can be costly and the burden heavy on dental professionals, we are finding that the majority of dental professionals have little sympathy for CQC.
Consequently, dentists looking to sell their practice and in turn dentists looking to buy a practice therefore need to have a lot more patience as a sale and purchase is no longer a quick process.
This is also an issue for more simple changes to practice ownership and partner changes.
For the buyer (and indeed their lender) they must ensure that on completion of the purchase they are fully compliant and CQC registered, whether that is a new application or an addition of a new location to their current CQC registration. Lenders will hold back the finance for a purchase until CQC registration is finalised. For a seller, they will need to look to either cancel their application or remove that location from their CQC registration. A seller will also need to consider whether they are entitled to a refund. If a seller has paid his or her annual invoice for the CQC fees, and has cancelled his or her registration part way through the year, then as a seller you are entitled to a refund. To obtain that refund, we understand that you need to write separately to CQC. If a seller hasn’t paid any fees yet, then CQC normally send an invoice on cancellation which shall be pro-rated for the year.
We like many other dental lawyers are however perplexed as to what real effect the CQC regulatory framework will have on dental professionals and the sale and purchase of dental practices. Many have argued that the CQC regulation of dental professionals is a waste of cost and time, and will burden dental professionals of all sizes (whether it be a large dental corporation or a small individual practitioner) with an extra layer of administration and financial expense. This argument is supported by BDA who have welcomed the opportunity to work with CQC to ensure that continued compliance is based on reasonable and practical requirements.
At Ironmonger Curtis LLP our dental solicitors can advise on all aspects of selling a dental practice. Our Dental Team recognises that every transaction is different and our experience has shown us that there are several factors including CQC registration which if dealt with correctly from the start, can ensure a stress free transaction.
For further information on the contents of this article or any other dental law queries please contact our dental solicitors on 0845 225 2635.
Celebrity Chef wins Tribunal gagging order
A celebrity chef has won a gagging order in London Central Employment Tribunal preventing the press reporting the claims of two disaffected ex-employees.
The order was granted yesterday at a preliminary hearing before the Employment Tribunal and requires the Chef to be known only as ‘L’, and his business as ‘K Ltd’. Tom Lyndon, the chef's representative, told the hearing he was afraid thatdisclosing evidence to the newspapers' legal departments could see it shared with reporters "by accident". The two employees have issued Tribunal claims for unfair dismissal, age discrimination, a failure to provide a written contract of employment and non-payment of wages. Further details cannot be revealed without breaching the order.
The Order has attracted criticism as it is unclear whether the Order was granted as a ‘Restricted Reporting Order’ or an order under Rule 16 of the Tribunal Rules which provide that, in certain circumstances, hearings (or part of them) can be held in private. These circumstances include where the submission of evidence might damage the business or organisation in which the person giving evidence works.
A "restricted reporting order" may be made by an Employment Tribunal in any case involving an allegation of sexual misconduct and in Disability Discrimination Act cases involving evidence of a personal nature. The order specifies who may not be identified in a report of the case. Deliberate breach of such an order is a criminal offence. In either case, a Tribunal’s decision to grant an order should be supported by reasons, however we understand that no reasons were given in this case.
It is expected that the Chef will apply at a future hearing for the Order to be made permanent, however it is to be challenged by lawyers acting for a number of national newspapers. This Tribunal gagging order and will no doubt fuel the outcry about the restrictions on freedom of speech in the growing number of super-injunctions granted in the courts.
Millions confused by Legal Expenses Insurance reveals new report
A new report from consumer watchdog, Consumer Focus, ‘In Case of Emergency’, reveals that Before the Event Legal Expenses Insurance (BTE LEI) could play a bigger role in widening access to justice, but the current design and promotion of these products leaves them a long way short of the mark.
There are two types of Legal Expenses Insurance. After-the-event (ATE) and before-the-event (BTE). ATE can be taken out following an accident or once a legal dispute arises, usually under a ‘conditional fee arrangement’. BTE can be bought prior to any dispute ever arising. Unlike conventional insurance, LEI does not make a direct payment for a claim. Instead, the insurance covers the legal costs in pursuing or defending the claim.
Legal Expenses Insurance typically costs between £13 and £24 a year and is commonly bought as part of a bundled insurance product, like motor or home insurance. It usually entitles the buyer to free legal advice and representation related to their civil dispute.
Forty-three percent of people surveyed by the watchdog said they knew little or nothing about legal expenses insurance – this is despite the fact that an estimated 25 million UK households currently have this type of cover. Around six in 10 consumers already pay for this insurance in some form and the UK legal expenses insurance market is worth some £447 million.
The watchdog’s report includes consumer research and an analysis of BTE LEI insurance products, including their terms and conditions and how they are sold. However, the ‘In Case of Emergency’ report also raised clear problems with the design and promotion of these products:
It is more likely than not that you already pay for legal expenses insurance in one form or another. In the event that you have a claim that you wish to pursue, please contact us for an initial discussion on the ways in which your legal expenses could be funded, and for an assessment of whether your current insurance arrangements provide cover for the type of claim you may wish to bring. Call Jon Curtis on 0114 272 1903
The Bribery Act 2010 - Are you ready?
The Government announced at the end of March that the Bribery Act will come into force on 1st July 2011, and also published its much anticipated Guidance on the legislation. The main Guidance produced should help commercial organisations adopt procedures (appropriate to their size and business environment) to prevent persons associated with them (eg. their agents at home or abroad) committing acts of bribery and thereby reduce their exposure to prosecution under the Act. There is also a useful Quick Start Guide, aimed specifically at SMEs. The main thrust of the Guidance, however, offers reassurance to businesses that "combating bribery is about common sense, not bureaucracy".
So, what does the Bribery Act mean for you?
In short, the Bribery Act will:
The key points to note from the guidance are as follows:
Corporate Hospitality - The guidance makes clear that reasonable hospitality to meet, network and get to know your clients will not fall foul of the new legislation. #
‘Adequate Procedures’ Defence - The Act recognises a statutory defence of having ‘adequate procedures’ in place, in the event that an offence of ‘failure to prevent a bribe being paid’ is brought. The procedures that need to be put in place in order to rely on the statutory defence need only be proportionate to the size and nature of your business. So, whereas major multi-nationals must exercise greater due diligence and have more detailed compliance procedures in place, verbal communication may suffice for a small company. If there is very little risk of bribery being encountered by members of your company or on its behalf, no specific bribery prevention policies will be required to be put in place.
Associated Person - A company will only be held criminally liable for the acts of an "associated person" where that person actually represents or performs services for it and the bribery committed is intended to benefit that company. It is very unlikely therefore that a company will be liable for the actions of someone who simply provides services to it.
Facilitation Payments - Facilitation payments, which are payments made to induce officials to perform routine functions that they are obliged to perform in any event, remain illegal under the Act.
Prosecution - Cases may be brought only when either the Director of Public Prosecutions or the Director of the Serious Fraud Office is satisfied both that:
An Action Plan - The Ministry of Justice has previously offered guidance to commercial organisations on the steps to take towards ensuring compliance with the legislation. They advise of the need for an action plan:
Ironmonger Curtis is on hand to advise you on the implications of the Bribery Act 2010 for your particular organisation and to assist with the implementation of an ‘action plan’. Please telephone Jon Curtis on 0114 272 1903.
Over half of Yorkshire employees have yet to take advantage of 'free' eye tests
News comes today that over half of people in Yorkshire who work at computers have not had their eyes checked in the last year, even though they may be entitled to have the test paid for by their employer.
The rules and regulations regarding an employer’s duty to pay for eye tests for their employees is dependant upon the type of work they generally do.
It is generally accepted that the deciding factor in whether or not an employee can ask their employer to pay for or contribute to their eye test is dependant on the computer based requirements of their normal job. It is not the case that every worker that uses a computer at work is entitled to a free eye test (paid for by their employers), but there are guidelines to advise if they may be entitled.
The Health and Safety Regulations Act 1992 state that workers who comply with particular circumstances are entitled to have an ‘appropriate test’ paid for by their employers, The circumstances are quite clear and while the term ‘appropriate test’ is not clearly defined, it is taken to mean a standard opticians eye test.
The circumstances are focussed on the computer based requirements of the employee’s job, with the length of time, type of work and regularity, the key defining points. The act mentions issues such as the employee needing to use a visual display unit (VDU) for continuous spells in periods of over one hour, where the transfer of information between the employee and their VDU is key to their job. Although the term VDU is commonly used, it refers to a computer screen.
The act also defines a number of computer husbandry issues that are the responsibility of both the employee and the employer. These include making sure there is no ‘unnecessary’ glare, perhaps by fitting an anti-glare screen, that the VDU and the surrounding area is clean and that the worker is at a suitable height and distance from the computer.
Please do give us a call to discuss the specific circumstances of your workplace, and we can advise further. Call Jon Curtis on 0114 272 1903.
An update on the recent increase in court fees
From Monday 4 April 2011 the civil court fees in England and Wales rose by varying degrees.
The following table sets out the court fees now payable on issuing a county court claim for money.
The fee is based on the amount of money claimed including interest.
For further information on how other court fees have changed please click on the following link:
Should you have any queries regarding commercial litigation please contact Simon Smith.
Transfer of undertakings
Employment law and TUPE issues clarified
TUPE and pre-pack administrations
In a hugely important case impacting on the sale of companies that have gone into admistration - OTG Ltd v Barke and others UKEAT/0320/09 and ors - the Employment Appeals Tribunal (a court senior the an Employment Tribunal) has held that "administrations" (including pre-pack administrations) are NOT capable of constituting "bankruptcy … or … analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor" within the meaning of regulation 8(7) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and article 5.2 of the Acquired Rights Directive.
This means that the key regulations 4 and 7 of TUPE do apply to a sale by an administrator (even in a pre-pack situation) meaning that the employees will transfer to the buyer and have special protection against unfair dismissal.
There has been some recent excitement among company-representing employment lawyers in that there appeared to be a way of avoiding the most tricky TUPE elements if a company went into adminstration and the employees were dismissed prior to sale.
However, the EAT chose not to follow the leading case in this area, Oakland v Wellswood (Yorkshire) Ltd UKEAT/0395/08. Frankly this puts us back to the "normal" position - if an undertaking, or part of an undertaking, is sold, TUPE applies, even if the undertking is sold by an adminstrator!
National minimum wage name and shame policy
BIS may publish names of national minimum wage offenders Be warned! BIS will issue press releases against companies who flout the National Minimum Wage legislation, according to a new policy issued by the Government.
Drivers' working hours relaxed
Backlog eased by Working Time Regulations relaxationThe government has temporarily increased the daily driving limit for HGV and lorry drivers, from nine to 10 hours, until midnight on 7th December 2010. They have also:
•reduced the daily rest requirements from 11 to 9 hours.
•lifted the weekly (56 hours) and fortnightly driving limit (90 hours).
•postponed the weekly rest requirement until 23:59 on 7 December 2010, at which stage a driver has to take a normal weekly rest of 45 hours.
•notwithstanding the postponement of the weekly rest requirement (see preceding bullet point), a driver must take a minimum rest of 24 hoursbeginning no later than the end of the eleventh day since the end of his last weekly rest period.
•confirmed that the requirement to take a 45 minute break after 4½ hours driving remains.
Auto-enrolment and what it means for your business
New pension rules
What is auto-enrolment?
• From October 2012, every business in Great Britain will be required to automatically enrol eligible “jobholders” in a pension scheme. A “jobholder” will include permanent, fixed-term and temporary employees, as well as agency workers.
• Businesses can use their existing occupational or personal pension scheme if it meets statutory quality requirements. Otherwise they will have to enrol jobholders in the National Employment Savings Trust (NEST), a central defined contribution scheme to be set up by the government.
• A defined contribution scheme (also known as a money purchase scheme) is a pension scheme in which an employer and employee pay fixed contributions. The employee receives a pension or annuity at retirement, the size of which depends on the contributions paid and the investment return on those contributions over the member’s working life.
• Employees may opt-out of either scheme, but only once they have been automatically enrolled.
• Businesses must pay a minimum level of pension contributions for each employee.
• The requirement to automatically enrol eligible jobholders will be phased in over a four year staging period from October 2012, with larger businesses required to comply first.
• Businesses will be required to automatically re-enrol eligible jobholders every three years after they first become subject to the statutory employer duties.
No exemption for smaller businesses
Small businesses should not be exempted from the auto-enrolment requirements since this would exclude 1.2 million employees from the reforms and create substantial enforcement problems.
• The annual contribution limit (set at £3,600 in 2005 prices) should be removed once the four-year staging period has been completed.
• The planned ban of transfers into and out of NEST should be reviewed in 2017. NEST should be able to receive and make transfer payments once auto-enrolment is established.
Raising the income threshold at which individuals are auto-enrolled
• Jobholders should only be automatically enrolled once they reach the income tax threshold (which will be £7,475 in 2011). This is higher than the currently planned income threshold for auto-enrolment of £5,035.
• Contributions will be based on earnings in excess of the National Insurance earnings threshold (£5,715 in today’s prices). Employees who have been automatically enrolled will continue to pay contributions until their earnings drop below this level (unless they opt out).
• Any employees with earnings between these thresholds will be able to opt in and receive an employer contribution.
No change to the age limits
The age band for eligibility should remain at age 22 to the state pension age. Retaining the state pension age as the upper age limit will give people access to pension saving during their normal working lives and avoids automatically enrolling people for whom saving is no longer the right option.
Three-month waiting period before an employee is automatically enrolled
A three-month waiting period should be introduced to avoid automatically enrolling employees who leave employment soon after joining (for example, seasonal or temporary workers). This will also allow businesses to align enrolment dates with their own payroll systems.
Introduce a simplified certification process for defined contribution schemes
A defined contribution scheme could be certified as meeting the requirements if it satisfies any one of the following criteria:
• A minimum 9% contribution of pensionable pay (including a 4% employer contribution).
• A minimum 8% contribution of pensionable pay (with a 3% employer contribution) provided pensionable pay constitutes at least 85% of the total pay bill.
• A minimum 7% contribution of pensionable pay (with a 3% employer contribution) provided that the total pay bill is pensionable.
Allow businesses to voluntarily comply as early as July 2012
Businesses that are scheduled to automatically enrol in October and November 2012 should be allowed to automatically enrol ahead of the planned start date of October 2012, and as early as July 2012, if they want to.
“I want a lawyer!” - The right to legal representation in a disciplinary hearing
Employment solicitor looks at legal advice in hearings
He was then reported by the school to the Independent Safeguarding Authority (ISA) to consider whether he should be placed on a list prohibiting him from working with children. This would effectively end his chosen career as a teaching assistant.
Following the principles of the right to be accompanied, the claimant was not allowed to have legal representation at his hearing or appeal hearing.
Pre-Budget Report Checklist
Impacts on small businessPre-Budget Report checklist
This checklist highlights some of the key issues from the Pre-Budget Report that are likely to have an impact on small businesses.
Small companies’ rate of corporation tax
The increase in the small companies' rate of corporation tax will be deferred for a further year. The rate will remain at 21% for 2010-11 and will increase to 22% for 2011-12.
Employers' National Insurance Contributions
Employers' National Insurance Contributions will rise from their current level of 12.8% to 13.8% from April 2011. A 0.5% increase was announced in the 2008 Pre-Budget Report and a further increase of 0.5% was introduced in the 2009 Pre-Budget Report.
Research and development tax relief
The Government has announced that one of the conditions that a small or medium-sized enterprise (SME) had to satisfy in order to claim the enhanced tax relief for research and development will be abolished. A SME company was previously obliged to prove that it owned any intellectual property derived from the research and development to which the expenditure was attributable. If your business is classed as a SME you may claim an enhanced tax relief at the rate of 175% for qualifying expenditure on research and development. The change will have effect for accounting periods ending on or after 9 December 2009.
Electric cars and vans
The Government announced that it will provide greater incentives for businesses to reduce emissions from their company car fleets by introducing a number of measures including:
• Exempting electric cars from company car tax (CCT) for five years from 2010.
• Extending CCT bandings in 2012.
• Exempting electric vans from the van benefit charge for five years and introduce (subject to confirming compatibility with state aid rules) a 100% first-year allowance for business expenditure on new electric vans.
Business rates: empty property relief
For the year 2010/11 empty commercial properties with rateable values of up to £18,000 will be exempt from business rates. The temporary increase in the threshold for empty property relief announced in the 2008 Pre-Budget Report has been extended and the threshold increased to £18,000. This higher threshold reflects the effects of the 2010 business rates revaluation.
Business Payment Support Service
The Business Payment Support Service (BPSS) helps viable businesses facing temporary financial difficulties to spread tax payments over an agreed timetable. It was announced in the 2009 Pre-Budget Report that the time to pay facility will continue for as long as it is needed. HMRC will require businesses seeking time to pay arrangements worth £1 million or more to provide an Independent Business Review in support of their request. It is expected that the new requirement will be implemented from April 2010.
Changes to business rates reliefs from 1 April 2010
Revaluation of business rates takes place every five years and the next revaluation will take effect from 1 April 2010. The Valuation Office Agency has provided details of various resources to help businesses with the revaluation process, including a dedicated website (http://www.voa.gov.uk).
Small Business Rate Relief provides certain business rate payers with a reduction of up to 50% on their bills. It is available where the rateable value of your property falls below the threshold, currently set at £14,999 (or £21,499 for properties in Greater London). The threshold will increase from £17,999 (or £25,499 for properties in Greater London) on 1 April 2010.
VAT rate increase reminder
The standard rate of VAT reverted to 17.5% from 1 January 2010. Shops are allowed to add the extra VAT to prices at the tills for up to 28 days, giving them additional time to complete the re-pricing of stock.
SWINE FLU – PREPARING FOR A PANDEMIC
Cases of swine flu are on the increase and although most cases are mild, there have been a number of related deaths in the UK. As we head towards Autumn, it is likely that the number of cases will increase. Swine flu updates are published weekly by the Health Protection Agency at http://www.hpa.gov.uk.
It is likely that over the coming months, a significant percentage of the workforce will contract swine flu. This could cause major disruption to businesses. If you haven’t already done so, you should start to prepare and plan for this.
At its height, the flu pandemic could see a large proportion of the workforce off sick.
It is also possible that healthy people might be told to stay at home, or that certain businesses, schools, nurseries etc might be ordered to close, to limit the spread of infection.
Even where businesses are not badly hit, their suppliers or customers might be, which may have knock-on effects on its own operations.
Employers who do not plan for this are leaving themselves in a vulnerable position.
The main issues for employers to consider are:
• Coping with high levels of employee absence;
• Reducing the risk of swine flu spreading within the organisation;
• Coping when a major supplier or customer is affected;
Business continuity plans should highlight key business functions and set out the minimum number of employees required to carry out those functions. Key staff should be identified. It may be necessary to consider providing training to certain employees to ensure that these key functions can be administered.
Staff should be informed in advance of any continuity plans so that they are prepared for changes in their work practices, if necessary.
If you lose business as a result of the pandemic, you may be forced to make temporary lay-offs or redundancies. Please note that lay-off is a particularly complex area of employment law and you should not make lay-offs unless you have a contractual right to. Please speak to us before making lay-offs or redundancies, as there are very strict procedural requirements for each, and if you get it wrong you can lay yourself open to expensive claims for unfair dismissal or constructive dismissal.
Employers have a general duty to provide a safe place and system of working for their employees. They also have a statutory duty to ensure the health safety and welfare of employees (section 2 Health and Safety at Work etc Act 1974), which requires that the working environment is – so far as is reasonably practicable – safe and free of risks to health.
During a pandemic, to ensure compliance with these duties, you may need to look at putting specific policies in place to prevent the spread of illness amongst employees to set out what will happen in the event of significant absence. Where there is a recognised trade union or other employee representative body you should, where possible, include them in the planning process.
Examples of measures to consider are:
• Making sure that employees are informed of the symptoms of swine flu and ensuring that it is clear that any staff with symptoms stay at home;
• Keeping employees informed of current Government guidance;
• Carrying out a risk assessment to identify any factors which make you particularly susceptible to infection;
• Putting strict personal hygiene procedures into place, e.g. providing anti-bacterial hand gel dispensers in the workplace and making sure that they are adhered to;
• Making changes to working practices – e.g. allowing employees to work from home, avoiding face to face meetings;
• Avoiding business travel to high risk areas – e.g. Mexico; and
• Whether you have any employees who are at particular risk of infection and how best to deal with them.
• Youshould also consider their obligations to others, e.g. contractors, customers and clients. It is likely that the general and statutory duties in terms of health and safety will apply to contractors if they have some control over their systems of work. If you provide services to vulnerable clients (e.g. those who work with children, pregnant women, the elderly or disabled) should take particular care and carry out appropriate risk assessments.
Where you have implemented such practices, you should make it clear to employees that failure to comply may result in disciplinary action or even dismissal. You may have to consider this, for example, where an employee refuses to stay at home when symptomatic, where an employee refuses to come into work for fear of infection, where you have evidence to show that sickness absence is not genuine, or where employees do not comply with hygiene rules.
Please remember that you must comply with the ACAS Code of Practice when disciplining or dismissing employees. It is highly recommended that you speak with us before taking any disciplinary action against employees.
There is a heightened risk of complications for pregnant women who contract swine flu. Employers have a general duty to carry out risk assessments for pregnant women. However, there are no specific obligations relating to swine flu as yet, although this may change as we head into Autumn.
If you have any pregnant employees and are concerned that their health is at risk from swine flu, you should contact us for further advice.
Underlying Medical Conditions
Most swine flu related deaths in the UK have involved people with underlying medical conditions, which may or may not constitute a disability.
Under the disability discrimination legislation, employers have a duty to make reasonable adjustments to working practices and premises for disabled employees. It may be necessary for employers to consider changing practices, for example, by allowing disabled people to work from home temporarily, in order to comply with this obligation.
Employers would be well advised to consider these types of adjustments even where the medical condition does not constitute a disability.
Remember, HIV is a recognised disability, sufferers will be particularly vulnerable, and the potential effects serious.
You may decide to collect information about individuals’ health to ascertain whether they have any underlying conditions. If so, remember that this will constitute the processing of sensitive personal data under the Data Protection Act 1998, and you must ensure that you comply with your obligations in processing it.
Time off to Care for Dependants
Employees have a statutory right to take ‘reasonable’ time off (unpaid) to care for ‘dependants’ (i.e. a spouse, civil partner, child, parent or other person who lives at the same address save for their employee, tenant or lodger). This includes where there is unexpected disruption to the arrangements for a dependant’s care.
As this is a statutory right, if time off is refused or the employee is dismissed for a reason connected to taking / requesting to take time off, the employee can bring a claim in the employment tribunal.
The right to time off is only to ‘reasonable’ time to deal with the immediate crisis. What is ‘reasonable’ is a difficult question under normal circumstances, so in these circumstances where care arrangements may be hard to come by, employer’s may have to allow more time than they might ordinarily allow.
Your obligations in terms of sick pay should be set out in the employee’s contract of employment. The statutory right to time off for dependants is unpaid, although your employee/s may have a contractual right to be paid for this.
You may decide to use your discretion and allow payment in excess of contractual / statutory entitlements. If you do, it is important that you use discretion in as consistent a way as possible to avoid claims for discrimination.
For more information and guidance relating to business planning, please see the following:
- initiatives to improve the environmental performance of commercial property
With more and more focus on the need to reduce the UK’s carbon footprint initiatives are being taken to improve the environmental performance of commercial property.
Although the first initiatives are to reduce London’s CO2 emissions there is no reason why similar changes cannot be implemented elsewhere.
“Green Lease” clauses
Green Lease clauses could be added to a standard commercial lease to provide for some or all of the following measures aimed at minimising environmental impact:-
• To implement an Environmental Management Plan for the building – arrangements could be made for individual tenant’s to co-operate with the managing agent in sharing data on energy and water consumption to assist the landlord in implementing measures to reduce energy use and water consumption or improve waste management
• To allow the landlord to install sub-metering at its own cost
• To allow the landlord access to carry out works agreed with the tenant and aimed at improving energy efficiency
• To require the landlord to keep plant such as air conditioning and boilers in energy efficient working order
• To require that any alterations proposed by the tenant meet certain standards of energy efficiency (for example, insulation and ventilation).
• Preventing the landlord from requiring the removal of alterations which have improved energy or water efficiency at the end of the lease
• To allow works which have been carried out at the landlord’s cost, and which have increased both energy efficiency and open market rental value, to be taken into account on review.
• To require any assignee or sub-tenant to covenant with the landlord to comply with the landlord’s environmental policy for a building.
• To include an adjustment system for service charge contributions which may penalise tenants who have not met specified energy efficiency targets
Agreements to improve the carbon footprint of a commercial property
Changes may also be implemented during the term of an existing lease if the Landlord and Tenant commit to a Memorandum of Understanding, in keeping with the property, as to how carbon, energy, waste and water can be reduced.
Agreement could be reached on matters such as purchasing energy from renewable sources, recycling facilities, use of energy efficient plant and equipment or provision of bike storage and showering facilities.
The extent of the measures to which the Landlord and Tenant wish to commit and the time scale for implementing the agreed programme would be matters for contractual agreement between the parties . A model Memorandum of Understanding with a ‘checkbox’ Schedule of possible measures is available to assist in agreeing a co-operative framework.
It is hoped that this will provide a solution to those owners and occupiers that want to address environmental issues but may be deterred by the costs and the amount of time it may take to document the arrangement.
If you wish to discuss this article or require any advice or assistance in relation to commercial leases then please do not hesitate to contact Jonathan Senior on 0114 2536543.
myhrtoolkit and Quba join forces
Jon Curtis, employment law partner and MD of myhrtoolkit, has joined forces with Rob Wilmot, of Quba, to develop myhrtoolkit.com, an online HR tool kit designed to help small and medium-sized businesses with day-to-day HR tasks.
The product is widely used in the region by local businesses such as Blundells, Holbrook, and GBeye. For Jon, forming the partnership with Rob and his Internet agency, Quba, is the natural next step in the growth of the business. Jon Curtis said. “I am delighted to get this tie-up with Rob. He was one of the co/founders of the Internet phenomenon, Freeserve, which was sold to a division of France Telecom in 2001 for £1.6 billion. He is a successful serial web entrepreneur and shareholder in Quba, one of Sheffield’s Internet success stories. His expertise and that of his team will really help us take a product designed and developed in Sheffield to a national market.”
Rob believes that the demand for myhrtoolkit is huge. “There is a very real need for this product. It’s the ideal tonic for companies that have reached a certain size where keeping track of the day to day staff administration is starting to become a pain. Managing employees is one of the biggest challenges faced by growing businesses. Myhrtoolkit.com gives value-for-money access to the kind of functionality that until recently was only to be available to the biggest employers.”
Myhrtoolkit is used by businesses with between 5 and 500 employees to track absence, manage holiday requests and tasks, appraisals, and HR document storage. The system also contains employment law advice, with online training modules and standardised forms provided by us. Because myhrtoolkit is web-based, it gives secure control of employee information from any Internet-connected computer, with no software install.
An online demo is available at www.myhrtoolkit.com.
Employment law team expands
Sarah Cruice has joined Ironmonger Curtis LLP as an assistant solicitor to Jon Curtis, the Head of Employment. After training with a regional practice based in Sheffield, Sarah joined Thompsons in Nottingham, but the lure of Sheffield proved too much. Sarah speciliaises in employment law and has a wide epxerience of dealing with both small buisnesses and claimant work. We welcome Sarah to the team!