Whistleblowing unfair dismissal case thrown out

A Leicestershire community nurse who alleged she had been unfairly dismissed because of whistleblowing about wages and unpaid holiday pay has had her tribunal case thrown out.

The tribunal heard that the claimant made various complaints against the NHS Trust she had been working for including about how she was treated and sacked from the job from which she was appointed in 2016. She was required to visit clinics and make home visits requiring to be a driver and access to a car. It was only several weeks later that her manager found she had lied and been unable to provide the Trust with relevant MOT and insurance documents for several weeks after she started.

Colleagues also expressed concerns about the claimant’s behaviour and demeanour in front of patient’s. On one occasion she disappeared one afternoon without approval and did not return the following day. It was then that the trust discovered that she had provided them with a false address. She was then dismissed for gross misconduct.

The employment judge “The reality is that the alleged whistleblowing has been little more than a legal peg with which the claimant has used to ventilate her various grievances about the trust. Clearly, her pride was hurt but these proceedings were not the solution.”

The judge ordered her to pay £230 in costs to the trust.

With this case, it shows the importance of checking documents before employment commences particularly where the employee is expected to be able to visit clinics and make house calls whilst using their own vehicle.

 

DBS checks – some changes that came into effect this year (updated Sept 2018)

DBS_Check

I’ve noticed on a couple of discussion threads in a couple of LinkedIn groups several people are getting confused when talking about DBS checks and who and who can’t do them. I did a post previously on DBS checks and Overseas Police Checks,

In September 2017, the DBS started processing basic criminal record check applications for a small number of registered organisations with the intention to process from all organisations at a later date. Individuals were able to request Basic Checks from the 17th January 2018.

The first phase was a transition from the service operated by Disclosure Scotland.  This means that Basic checks are no longer available from Disclosure Scotland to applicants in England & Wales. This came about as the legislation regarding the Rehabilitation of Offenders is different in Scotland than it is to England & Wales. The cost of using the DBS online service is £25 if using a DBS checking company the cost could be around £45.

Because of this change, it is really important to understand the differences between the different checks and who can and can’t apply for them!

  • Basic DBS – available to individuals, some providers can show an online version. Basic checks show any ‘unspent’ criminal records as defined by the Rehabilitation of Offenders Act 1974. Once a conviction or caution is ‘spent’, it no longer shows on a basic check as it is filtered.
  • Standard DBS – A standard check shows unspent convictions, cautions, reprimands and final warnings. Any spent convictions should be filtered.
  • Enhanced DBS – An enhanced check shows the same as a standard check plus any information held by local police that’s considered relevant to the role
  • Enhanced DBS with barred lists. An enhanced check with barred lists shows the same as an enhanced check plus whether the applicant is on the list of people barred from doing the role

The standard and enhanced checks are only available to registered organisations and there are stiff penalties for those that try to abuse the system. There is nothing stopping an employer in asking to see a Basic DBS, however, the company should have a written statement on the Rehabilitation of Offenders Act.

Remember DATA PROTECTION do not under any circumstances make or store any copies of ANY DBS check.

One thing I would caution with all DBS especially those online is sometimes there is an error where spent convictions are disclosed by mistake, for example, cautions. Remember if it is spent then you cannot consider it! Since 2013 DBS checks have been filtering spent convictions & cautions. It is illegal for an employer to consider filtered (spent) convictions and cautions and there are data protection issues and consequences if an employer gets this wrong!

Cautions become spent after 6 years (2 years for persons under 18) and 11 years ( 5½ for persons under 18) for minor convictions. Any conviction of over four years custody will never be spent.

Convictions such as Actual Bodily Harm (ABH) and Grievous Bodily Harm (GBH) will always show up on a DBS check.

I’ve covered Oversea’s Police Checks before, but will briefly cover the main points.

  • DBS checks only cover the individual for the time they have been within the UK, they will not show up any convictions or cautions received in a foreign country
  • There is no mechanism in the UK at present time for Employers being able to apply for Oversea’s Police Checks. The individual has to apply in person at a police station in the country they were residing in. Therefore this will need to be done before they move to the UK.
  • OPC’s will nearly always be written in the language of the country they were issued in, so will need to be translated. The cost of an OPC is normally not that expensive but it can be having them translated where the expense comes in!
  • The OPS and its translation will need to be verified and validated (additional cost).

Update: September 2018

One change that has occurred with regards to Overseas Police Checks is that one umbrella/checking company, Security Watchdog (part of Capita DBS) is now able to process overseas police checks. If you recruit a lot from overseas then this may be a good option to consider, if you recruit infrequently from overseas then it may be worth weighing up the costs of using an umbrella company against processing yourself.

DBS check eligibility tool

NHS Employers have released an online DBS eligibility tool that will help NHS Trusts and contractors determine whether employees need a DBS check. I know from applying for a position with an NHS Trust in the past that you can be given the wrong information, for example, I was told I would need to have a standard DBS check undertaken when it wasn’t the case! The tool can be found at DBS Eligibility Checking Tool

 

Employment Law Update – June 2017

CIPD Employment Law update June 17

Wed 21 June 2017 12:00 – 17:00 Milton Keynes

This is our 2nd Legal Update of the programme year. This event will provide you with an update on the key employment law developments and recent case decisions, and prepare you for those changes that are on the horizon for 2017 and 2018. With case studies to test your knowledge and interactive group challenges to keep you on your toes, you will not want to miss out!
What to expect?

• Case highlights and legislative reforms for 2017: we shall bring you up to date with the crucial cases you need to know and important changes to the law.
• Brexit and beyond: we’ll provide an employment lawyer’s perspective on the subject and how it might impact HR.
• Top immigration issues: we’ll tell you about the main areas of development for the next year.
• Legal case study: be ready to bring the law to life in a case study to test your knowledge and understanding.
• Interesting group challenges and discussions on the latest legal developments, including how to balance competing interests encountered in the workplace.
The event will be interactive and you will have the opportunity to engage with the speakers and other delegates on the key issues.

You will have the opportunity to put questions to our guest team of employment lawyers.
If you have a particular question you would like addressed that would also be of value to other delegates please e-mail Sarah Beeby (sarah.beeby@dentons.com) in advance with your question by the booking deadline.

Sarah and her team at Dentons will do their best to ensure answers to questions of a general nature but cannot provide advice on specific cases.

Even if you don’t work in the area, this event makes an ideal awayday for an HR team.

This event is very popular so book early to ensure your place!

https://www.eventbrite.co.uk/e/cipd-mk-annual-legal-update-cipd-bmk-tickets-32993085206

 

 

 

 

 

 

 

 

 

HR professionals who are CIPD members, a diverse bunch!

“CIPD qualified” is a statement that you occasionally see in job adverts, but what does it mean? It often confuses recruiters and sometimes I am asked exactly what does it mean.

In some ways, it can depend on who you are talking to, as it can be a subjective subject with various opinions. It could be based on someone having a CIPD qualification whether that be at Level 3, 5 or 7 (including accredited university qualifications) and having CIPD membership. Some might think it means being a Chartered member however to gain this you need 3 years practical experience at Management level* which destroys one advert I saw recently for an HR Advisor/HR Officer that insisted that applicants have Chartered CIPD membership! This vacancy was being handled by a third party that obviously didn’t know what it was advertising for but equally the fault rests with the client as they are obviously out of touch to send out such a nonsense brief!

The truth is there is no standard definition and the reason is over time, qualifications and standards change. The CIPD has a heritage that stretches back to over a hundred years but for our purposes, we only have to go back to the 1990’s.

24 years ago there were two professional institutes, the Institute of Personnel Management (IPM) and the Institute of Training & Development (ITD), in 1994 these organisations came together to form the Institute of Personnel & Development (IPD). Members of both institutes were given new designations, for example, Associate members of the ITD became full members of the IPD (MIPD), there has been no requirement for members who qualified under the IPM or ITD to update their qualifications under the IPD’s qualification scheme. It is still possible to come across people who will have ITD or IPM Diplomas.

From 1995 the IPD had two level 3 certificate courses, one for HR and the other training. What was called the “professional level” was a complicated three-year course consisting of taking four exams in general management subjects the first year followed by three electives in the second followed by one elective and a module called Core Personnel & Development in the third year, there would also be an equal number of assignments to complete plus one management report. The exams were notoriously difficult to pass, in one year the pass rate was 50% of all students who undertook the exams, it wasn’t unusual to find students on the exam treadmill for five years taking resits. This course was merely a vehicle for gaining a membership grade as there were no actual qualification certificates at the professional level. If you completed year one successfully you became a Licentiate member of the IPD, Complete the professional scheme then you would become a Graduate member of the IPD, with the opportunity to upgrade to full member (MIPD) when you had gained the required management experience.

In the latter days of the Professional Development Scheme (PDS), course certificates were given to students who had either completed the first year or the whole course (Post Grad Certificate and Licentiate membership or Post Graduate Diploma and Graduate membership respectively).

In 2000 the IPD gained it’s Royal charter and thus became the Chartered Institute of Personnel and Development (CIPD), for the first ten years the membership grades stayed pretty much the same as before, with Licentiate CIPD (Lic CIPD) being recognised as part qualified and Grad CIPD as the full qualification. The Licentiate grade was abolished in 2010 and Graduate CIPD a few years later, the CIPD claimed at the time that employers didn’t understand the designations despite the fact that “part qualified” candidates were being asked for by employers in job adverts!

In 2010 the CIPD decided to scrap the PDS in favour of running courses over three levels. The Certificate in Personnel Practice (CPP) and Certificate in Training Practice (CTP) were replaced by Level 3 qualifications at Award (one completed module), Certificate and Diploma.

A new Level 5 was added to the portfolio, again following the Level 3 with Award, Certificate, and Diploma. The Level 5 is completed via coursework and has no exams

The Level 7 followed the same format of Award, Certificate and Advanced Diploma, the latter is the same as a Postgraduate Diploma). The biggest difference between the L7 Advanced Diploma and the PDS is the number of exams, the Advanced Diploma only requiring two exams, the rest is coursework and a management report.

For the most part, the present qualifications were a sensible format to take the institute forward. My only criticism is that the present scheme is open to abuse by education providers particularly at Level 5, for example, one college each year advertises that it will be running a L5 Diploma but when the course starts it becomes a L5 Certificate, this means that students will not be covering the subject in a broad manner, add to the fact some colleges do this to keep their student contact hours down, this means that not only are HR students being cheated but the HR profession is as well. The only way to stop the abuse would be to only have a Certificate at L3, a Diploma at L5 and Advance Diploma at L7.

Other ways people have qualified included taking accredited university courses including Masters degrees, however once again there is non-level playing field here as over the past years there has been a mixture of courses that haven’t required exams to those that do, the latter is more common today! But It just may be that your MCIPD didn’t actually take any exams all those years ago and there is now no way to check!

We then come to professional assessment which is not a qualification but a vehicle for people with many years experience to gain Chartered membership.

So in conclusion, if you have a room of CIPD qualified professionals, then you will find that they probably have qualifications that are varied and one size doesn’t fit all.

*HR Management experience also includes the following:

HR Business Partner (the real mc coy not a glossed up HR Advisor role)
L&D Business Partner
HR Manager
HR Consultant
OD Consultant
L&D Manager
Reward Specialist
Talent Consultant

Google Hire tries to launch quietly amid a lot of fake news about the product!

Google-Hire-1600x900

You may have seen a lot of talk about Google’s new offering to employers. Some say it is Google’s attempt at launching its own version of LinkedIn, others call it the Google ATS. Contrary to what has been said in the press, employers will not be able to spy on potential candidates browsing history as Google clarified the situation by saying “Only information that a candidate voluntarily provides would be passed to a prospective employer as part of their online application. Private information will not be shared.” When asked specifically if it would be possible for a potential employer to accidentally see a user’s search history, the spokesperson clarified: “Google does not share private information such as search or viewing history. Only the information that applicants input into Google Hire will be shared—for example, first name, last name, email address, resume, cover letter, etc.” The product is currently open for trial evaluation by invitation only.

Perfect storm approaching for Logistics Industry

hold-up

According to the hype, it should be easier to find a job now, so why are there unemployed people who are struggling to find work and why are some employment sectors struggling to recruit.

The Logistics Industry is worth £42 Billion a year and is vital to the UK economy, yet customers keep demanding lower transportation costs (Ever heard of factory gate pricing?) this in turn is forcing haulage firms to reduce their wage bill and although the UK average salary for a lorry driver is around £26K pa the reality is that a lot of drivers are struggling on third party zero hours contracts which are paying £8 an hour. In January 2017 Leicester based Widdowson Logistics collapsed into administration only six months after being rescued from administration.

Many drivers complain of deteriorating working conditions, grotty service stations with poor facilities that charge extortionate prices. It’s worse for LGV1 drivers who may be on the road for a week living in their vehicle cabs in what as known as “tramping”. Drivers also complain as being badly treated when they are at customer premises, with no facilities, being kept hanging around for hours on end to name but a few complaints. We can add in traffic congestion and the general day to day hassle of getting from A to B.

60% of LGV drivers are over the age of 45, and 2% are under the age of 25

Skills for Logistics says: “A fifth of the current LGV workforce will reach retirement age in the next 10 years. That’s approximately 75,000 drivers and this does not include those that will have licences revoked or curtailed or even those that will leave the professions for other job opportunities.

But the number gaining a licence is decreasing year-on-year. The data shows a 45% fall in the number obtaining an LGV licence in a five-year period, and it appears that only 20% are acquiring their initial driver CPC. This, therefore, does not come close to replacing those that are anticipated to leave the profession.”

We now add into this mix our potential new entrants, unfortunately, people (and that means parents and their offspring) have been for years sold into the dream of university education for all, this is present and past governments fault as they devalued essential jobs that are vital to the economy. Of course, this has now been determined as complete folly and the situation must be bad when you have former graduates working in call centres with B.Eng degrees and new graduates resorting to working in MacDonalds as they can’t get a job! Something else that isn’t helping is young people are no longer learning to drive in sufficient quantities because of the actual costs involved, with £2K alone per annum in insurance costs alone! If you can’t drive then it is highly likely that someone will get picked for an LGV training scheme.

The thing is this affects you, yes you reading this! You may be in a job that hasn’t nothing to do with Logistics or at least you think so! If the present situation is allowed to continue then expect to see shortages at supermarkets, fuel stations, all the shops you like to spend money in, go to a restaurant then don’t be surprised to see a reduced menu as they are short on stock as their food service delivery hasn’t been made. There will be many other examples of how this crisis will affect everyone.

Employment Law update

If you are in the Milton Keynes area on the 26 January 2017 you may be interested in attending the ever popular Bedfordshire & Milton Keynes CIPD Branch Employment Law update.

In association with legal practice Freeths, will focus on some of the bigger picture issues such as managing collective consultations, dealing with subject access requests and ensuring your house is in order when it comes to immigrant workers. The event will also bring you up to date on legislative changes affecting HR professionals, with practical insights to help you effectively integrate any requirements for new working practices in your organisation.

Employment Law update ticketscipd-employment-law-update-jan-17

A.I is coming look busy!

AI.jpgThere has been a lot of hype about A.I and automation, some say to much hype. Many of you will have seen my comments elsewhere in the past about Employee Self Service making roles like HR Administrator/Assistant near enough redundant, not exactly A.I but taking processes away from the office to be done elsewhere, in the case of ESS getting employees to update their own records.

In Israel, a company called Intervyo has designed the world’s first automated interview simulation system, that screens candidates for recruiters and accurately predicts their suitability for the job. Not only that they have taken it to market, where it is in use in China and across the world with at least 10 pilot projects involving major companies. The system uses advancements in machine learning, data science, NLP, and developments in behavioural analytics. Whereas the recruiter will spend an average of 150 hours to interview 100 candidates, it would take Intervyo only 30 minutes. This represents a major saving in both time and cost. If companies buy into this type of software then recruiting will have changed forever because although at present it is being marketed as a B2B solution with recruitment companies being viewed as potential buyers, the product or products like it could actually kill off the recruitment industry if their clients adopt it and what is more it will take recruiting out of the hands of recruiters and away from HR for managers to deal with themselves. I’m predicting this is a possibility, maybe in 10 or 15 years but remember this tech is here now!

Technology and automation, are humans really becoming redundant?

How technology is advancing: by 2023 you’ll have the power of one person in a PC. By 2050 all humankind in one! Vivek Wadhwa at HRTechWorld Paris 2016

driverless-car

If there is nothing more that HR pundits like talking about then it is the future of the work! Technological change is the one constant that has been with for longer than we perhaps realise. It’s been a constant since the year dot, apart from when the Romans left Britain and for just over 600 years, everything went backwards or at least seemed to!

case-ih-concept-vehicle-11-1

Take farming, in just short of 150 years the number of people working in agriculture has decreased by over 90% and is continuing to decrease. I grew up in a rural area and my family has been involved with agriculture and the changes I’ve seen in my lifetime are pretty amazing. In this area there were around 20 working farms, now there are just two. One farm manager takes care of a massive operation.

Work smarter not harder

The equipment used in agriculture has benefitted from technological innovation, for example, the Class Jaguar self-propelled forage harvester is not only fitted with GPS that is linked to the base station via radio, it also has autopilot sensors near the rotary cutters that work out the width of the gap between crops, which keep the machine straight. Combine Harvesters are fitted not only with GPS but their own onboard computer, once the operator starts the machine takes over, and the operator can sit back and monitor the operation. The latest development is Case Magnum tractor which has no driver! It is controlled via a PC, radio link, and a GPS and the result will be the use of contractors will be unnecessary.

That was then (2011)

Class Jaguar 980 – 930

This is now!

Case New Holland Magnum

It is affecting a lot of industries

Of course one of the early adopters of manufacturing automation has been the car industry where robots have replaced humans to a degree working on the track.

Even broadcasting has been an early adopter of using technology that has reduced the need for human input. For example back in the 1990’s your local radio station, will have invested in automating the scheduling and playing of songs, adverts and idents. At the time this was welcomed as it gave the presenter/DJ more time to think about what to say to their audience. Technology has moved on so much that now presenters come into the studio and in a process called voice tracking record segments which are added sometimes days in advance before being played on air. This means that the presenter may only have been in the studio for an hour, but the station gets a three-hour show! This means the presenter may be paid less for his time but he is free to do other things.

If you are a listener of certain DAB radio stations, you now have your answer why certain presenters can be heard presenting different shows at the same time!

It’s not just Radio even Television is using the same techniques, the CBeebies channel uses pre-recorded links, some which are reused time and time again (tedious for parents having to watch no doubt!).

Where will it all end?

Imagine you are walking through your town centre at night, you pass an automated street cleaning vehicle that uses the same technology as the tractor above!

Amazon already has robots working in some of its distribution centres.

Remember the typing pool? Even office jobs are not immune and that includes HR! Human Resource Information Systems are becoming smarter and making a greater use of available technology. Many companies are adopting Employee Self Service, this cuts down on the amount of administration because your employees update their information via a secure app on their smartphone, this means you need fewer people working in HR at administrator/assistant level and may in some cases, remove the need altogether.

I’m predicting the HR department or whatever the name that replaces it in ten to fifteen years time, will be a totally different place than what we know, yes, of course, HR has been evolving and will continue to do so. If technology can replace humans in the function without causing employee engagement to suffer, then it will continue apace. The HR Shared Service centre that is just a pseudo call centre staffed by people with a non-HR background will disappear. True Centres of Excellence (CoE) will be a lot smaller and I expect outsourcing to play a bigger part.

“What about supporting line managers, who are going to do that” Again a major change will be that there are no line managers as such, the concept of being promoted beyond one’s ability has been shown not to work for long enough now. Team Leaders will replace the line manager, with a totally different ethos and the technological tools to support day to day operations.

I started this post with a quote from Vivek Wadhwa and one thing to consider is that in 2023 and shortly beyond, our population will be reaching what is called the replacement rate, that means there will be more people available for work. We just need to hope that the jobs that haven’t been invented yet can keep a lot of people gainfully employed!

Vivek’s book The Driver in the Driverless Car How our technological choices affect our future will be available in Spring 2017 and can be ordered via Amazon now.

So you want to work in HR (Part Two)

Stave_Hill_and_Canary_Wharf,_London_-_March_2008.jpg

In this post, I will be looking at interns and volunteering as these two subjects come up time and time again when people with no HR experience are looking for a foot in the door. This does mean getting to grips with some employment law, but hey you want to work in HR, right?

Interns

Internships are an idea that has come over from the United States and have spread around the world, where they are normally undertaken by university graduates who work unpaid, sometimes for a considerable amount of time, normally the intern has the support of rich parents who support them over this period. However, where their use in the United States is common place, they have only started to become known in the UK over the past few years and they haven’t made an easy transition across the pond because of British/EU employment legislation.

So let’s look at the what you can and can’t do!

There is actually no legal definition of an intern, alternative names could be a work placement or work experience and the status of the person is determined in several ways.

They could be classed as a worker if they receive any payment for the work they do or a benefit in kind (this can mean travel and expenses).

Employers can’t decide that an intern is not a worker by saying or stating that it doesn’t apply or making a written agreement saying someone isn’t a worker or that they’re a volunteer.

A really important point to remember is that if an intern is promised a contract of future work, they will be classed as a worker and the employer will be liable for back pay and employers NI and tax obligations.

The definition of a worker is:

A worker is defined in regulation 2 (1) of the Working Time Regulations 1998 as an individual who works under a contract of employment or “any other contract, whether express or implied…whereby the individual undertakes to do or perform personally any work or services for another party to the contract”, provided they are not a client or customer of the individual’s profession or business.

  • The individual will have a contract or other arrangement to do work or provide services personally for reward
  • This contract can be expressed or implied. This means it can either be written down or verbal
  • There is an element of reward, this can either be money or a benefit in kind, this includes the promise of a contract or future work
  • They have to turn up for work even when they don’t want to
  • The employer has to provide work for as long as the contract lasts
  • They are not operating as their own limited company where the employer would be deemed as a customer or client

This then moves into what an employee is and what they are entitled to, so let’s briefly look at the definition:

According to section 230(1) of the Employment Rights Act 1996, an employee is someone who works under a contract of employment. This, however, is not defined by statute so the courts have constructed a number of tests to help them decide whether someone is an employee.

Although each case is decided on its own merits, there are some essential elements that must be satisfied:

  • The individual has to have a contract with the employer
  • The individual has to carry out the work personally
  • There has to be “mutuality of obligation” between the two parties
  • The employer has to have “control” over the work that the employee does

So it would seem that if a company suddenly decided to advertise a vacancy for an intern then they will be paid, however, there are a few exceptions.

Students who are enrolled on a further or higher education course which is based in the UK, are not entitled to the National Minimum Wage/National Living Wage if they take part in an internship that is part of their course, this might mean they take a gap year between studies. Normally students wouldn’t be looking for an internship at the end of their course because many employers run graduate training schemes. The most common advice is to arrange these whilst you are in your second year, many students leave it too late.

Briefly work experience students of compulsory school age, ie under 16, aren’t entitled to the minimum wage.

We will now move onto Voluntary workers

Workers aren’t entitled to the minimum wage if both of the following apply:

  • they’re working for a charity, voluntary organisation, associated fund-raising body or a statutory body
  • they don’t get paid, except for limited benefits (eg reasonable travel or lunch expenses)

So you won’t be able to volunteer for a commercial company.

Finally, we can look at work shadowing

The employer doesn’t have to pay the minimum wage if an internship only involves shadowing an employee, ie no work is carried out by the intern and they are only observing. The moment they start undertaking work then the relationship changes.

A lot of the above came about after it emerged interns were being exploited, for example, companies suddenly stopped using temporary worker via a recruitment agency because they could get an intern to do the work for nothing. In these instances, the intern was never a student!

A lot of companies do operate intern schemes and make sure that they pay their interns correctly.

You can find a useful fact sheet and checklist from the CIPD at:

Internships that work – CIPD factsheet