Blacklisting report: cause for concern for HR best practice?

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A Government report criticising ‘systematic blacklisting’ in the construction sector is likely to exacerbate concerns among HR professionals about how to uphold best practice in employee recruitment and management.

The interim report from the Scottish Affairs Select Committee strongly criticises 43 construction companies for failing to take responsibility for ‘morally indefensible’ blacklists of union officials, which were being used after they were made illegal in 2010. Firms still using blacklists to hire staff are also likely to be breaching data protection laws and risking fines of up to £500,000.

Since the high profile revelation in 2009 that major construction companies hired a consultancy operating a blacklist of known union members, HR managers have been deeply concerned about both legal and ethical questions arising from the practice. This interim report highlights the often invidious position an HR Manager is put in when it comes to corporate practices around vetting new recruits and existing employees.

The next steps for the committee will see MPs examining evidence in four main areas. They will look at whether blacklisting is still taking place – and across which sectors? The committee will look at compensation and who would qualify e.g. anyone whose name has appeared on a blacklist or anyone who can prove they were adversely affected by blacklisting. MPs will also tackle the issue of who pays for the compensation.

The third area addresses the issue of penalties – not just for firms, but for individuals who engaged in blacklisting. MPs will look at who benefited financially from the process and if it is appropriate to introduce a degree of retrospection. They will consider whether it is appropriate to bar firms involved in blacklisting from tendering for public sector contracts or if they should be allowed to tender only if they pay compensation to people who have been blacklisted.

Finally, MPs will consider whether existing legislation against blacklisting is sufficient if laws are properly enforced, or whether changes to the law are needed to eradicate the blacklisting practice.

Without changes to existing laws or new legislation, HR managers can already find themselves named as individuals in cases brought under blacklisting and discrimination legislation laws.

HR professionals also need to be aware that the creation, supply or use of a blacklist is likely to amount to a breach of the Data Protection Act. When the government decided to legislate on blacklisting, the maximum fine for a data protection offence was just £5,000. In 2010 the Information Commissioner was given new powers to impose fines of up to £500,000 for serious breaches. Fines can be imposed not just on the person or company creating an illegal blacklist, but on any employer or agency using it for employment vetting.

Illegal blacklists, adverse publicity surrounding discrimination cases or breaches of data laws, can all have a negative impact on staff morale. Employees may feel threatened and intimidated if they are working in what seems to them to be a hostile and aggressive environment.

So how do HR managers who believe they have a duty to maintain the highest professional standards and values in their companies ensure that staff morale is maintained and laws are not breached? Back in 2009, before blacklisting became illegal, the HR profession’s own body, the CIPD, acknowledged it takes courage and judgement to challenge established practices you believe are fundamentally wrong.

There are some practical steps HR professionals can and should be taking to ensure that their recruitment and people management practices are legal and ethical.

· Have robust recruitment and people management systems in place – assess them regularly and ensure that all managers involved in the recruitment process follow the same system

· Be prepared to challenge internally if you spot bad practice or breaches in laws – and be a champion of best practice

· Ensure you are up to speed with the law and make sure you brief colleagues on changes and the implications of new legislation

· Work with internal procurement teams to look at improving checks on your suppliers and sub-contractors

What are your views to ensure that HR professionals remain the standard bearers of best recruitment practice?

The article above is published courtesy of HR magazine and was written by Joan Pettingill (pictured), a partner and employment lawyer at hlw Keeble Hawson.

There is a culture of “fear and intimidation” in nursing, RCN warns

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The Royal College of Nursing (RCN) has expressed concern about the “culture of fear and intimidation” in some medical workplaces.

Survey results reveal around a quarter of nurses (24%) say they have been discouraged or warned off raising certain issues.

More than 8,000 RCN members responded to the survey with almost half (44%) saying worries about victimisation or reprisals would make them think twice about whistleblowing.

Health minister Dan Poulter said NHS staff who speak out in the interests of patient safety must be “protected and listened to”.

Peter Carter, RCN chief executive and general secretary, said: “These responses illustrate that despite the recent attention which has been drawn to the importance of whistleblowing, many nurses are still experiencing a culture of fear and intimidation if they try to speak out. This is putting patient safety at risk.

“One of the key lessons from the Francis report was that frontline staff must feel confident they can raise concerns about patient safety without fear of reprisals.”

Just under half (45%) of those respondents who had raised concerns said their employer took no action, while about a third (32%) said they didn’t know whether their organisation had a whistleblowing policy.

Of those respondents whose organisation did have a whistleblowing policy, 37% were not aware that there is legal protection for all employees who raise concerns.

Poulter said: “We want all staff working within the NHS to feel able to speak up and raise concerns, and every NHS organisation to take concerns seriously and act on them.

“That is why we have funded a national helpline for whistleblowers, strengthened the NHS constitution and provided stronger protections for whistleblowers in NHS staff contracts.”

Poulter added: “We are also giving NHS organisations a new duty to be open if things go wrong, to help build a far more open NHS culture.”

Carter said: “Nursing staff want to provide excellent care, but sometimes the systems they work in do not allow this. Staff know what is safe for their patients and what is not.

“However, they cannot raise concerns if they feel unsure about what their employer’s policy is or what the repercussions will be.”

Carter added: “In particular, nurses have told us about occasions when they have been bullied, ostracised or belittled when they have tried to raise concerns on behalf of their patients.

“The stakes are simply too high for this to be allowed to continue. Trusts which don’t encourage an open culture from the very top will only continue to make mistakes, sometimes with devastating consequences.”

Changes to immigration law: what it means for employers

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Salary levels and a relaxed approach to the resident labour market test were among the more significant changes introduced on 6 April 2013, aimed at simplifying the Immigration Rules.

Changes introduced to simplify immigration rules include an update to Codes of Practice. The Codes of Practice, which list the jobs non-EEA workers can be sponsored, have now been updated to incorporate the Standard Occupational Classification codes recently revised by the Office for National Statistics (ONS). Workers sponsored under the old SOC codes will not be affected, but employers will need to apply the new codes going forward.

The Codes of Practice for each and every role are now contained in one simple document. It replaces the large number of guidance notes which previously arranged roles into alphabetical sections by industry sectors. The process of identifying Tier 2 roles, including skill and salary information for any one role, is therefore now far easier.

The Tier 2 category is for foreign nationals who have been offered a skilled job to fill a gap in the workforce that cannot be filled by a settled worker.

Prior to 6 April 2013, Tier 2 General workers were generally required to be paid an annual salary of £20,000 or the sum contained in the Code of Practice – whichever was the highest. This principle continues to apply but the baseline salary has now increased to £20,300 in line with wage inflation. The salary levels for Tier 2 ICT workers, which are slightly different, have similarly increased.

Further, the Codes of Practice now impose two simple salary thresholds – a “new entrant” salary and an “experienced worker” salary. Both are based on a 39-hour week. A new entrant is defined as:

 

  • Overseas graduates currently under Tier 4 of the PBS switching into Tier 2;
  • Graduate recruits where the employer has used a university ‘milkround’;
  • Those sponsored under the Tier 2 ICT Graduate Trainee route; and
  • Anyone aged 25 or under on the date of their initial Tier 2 application.

 

An ‘experienced worker’ is anybody who does not fall within the above definition. It includes previously classed ‘new entrants’ who extend their Tier 2 leave beyond three years in addition to work permit holders switching into Tier 2 or settling in the UK. Some roles in health and education are not subject to this change.

Unless an exemption applies, an employer may need to advertise its vacancy in the Job Centre Plus in addition to one other media before offering a position to a non-EEA candidate under Tier 2. Previously, the Codes of Practice prescribed very limited options as to the media in which a role could be advertised. The criteria have now been relaxed giving the employer far more freedom to choose the most suitable media.

The Shortage Occupation List has also been revised. A role that appears on this list is exempt from the RLMT while from 6 April 2013, non-EEA students completing a course leading to a UK PhD will have 12 months after the completion of their course to find work or work experience with a Tier 2 employer.

So what do these changes mean for employers? In practice, the changes mean that before recruiting an overseas candidate or supporting an existing employee’s Tier 2 leave to remain in the UK, employers should assess whether the ‘new entrant’ or ‘experienced worker’ salary rates apply. This will involve checking the immigration history of the candidate/worker. An employer mistakenly paying the worker an incorrect salary will result in that worker’s application for leave to remain being refused.

The article above is published courtesy of HR magazine and was written by Glyn Lloyd (pictured), an employment lawyer who specialises in immigration law at Morgan Cole.

Call for minimum nursing staff levels to avoid another Mid Staffordshire crisis

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Minimum nursing staff levels in the UK are needed to protect hospital patients and avoid another Mid Staffordshire-style crisis, a report published today by public services union Unison has stated.

In an online poll of 1,500 nurses, midwives and healthcare assistants, respondents said they feared care is so poor a Mid Staffordshire scandal could happen again.

The research found 60% of staff did not have enough time to deliver safe and compassionate care. It also found 45% of respondents were looking after eight or more patients on their shift.

The research asked respondents how confident they were that a similar situation to Mid Staffs could never happen at their NHS trust: 35.7% said they were either very (6.2%) or fairly (29.5%) confident it would not happen. But 29.6% said their trust was at risk of a Mid Staffs-type situation, while 9.9% said that was already happening in the hospital and 9.8% said it was already occurring across the organisation.

Minimum staff-to-patient ratios could dramatically change life on the wards for patients and staff, providing a safer, more caring environment for everyone, Unison claims.

Christina McAnea, Unison head of health, said: “This survey exposes a health service under severe strain. On this typical day many staff worked through their break and stayed after their shift – but this still did not give them enough time to complete all their tasks.

“The hidden voice in the survey must surely be that of the patient who is not getting the level of care they are entitled to expect.

“Government cuts are making matters worse by reducing staff, including nurses, at a time when patient demand is growing.

“Introducing minimum nurse-to-patient ratios would provide a safety net of care, restore public confidence and show nursing staff they are respected and valued.”

However, the NHS Employers organisation has responded to the survey by saying introducing minimum staffing levels would limit how hospitals could plan resources in a way that’s best for their patients.

Sue Covill, director of employment services at the NHS Employers organisation, said: “Getting care right all the time is what we strive for and this means matching the skills of staff to the needs of patients, within a culture of compassion and diligence. The best decisions can only be made by looking at the healthcare team as a whole, which means addressing the balance between nurses, doctors, support staff and many others.

“We are pleased that the Government’s response to the Francis report supports our view that it is local NHS organisations which are best placed to take responsibility for minimum staffing levels and skill mix.

“And we would support the further development of the evidence base for making decisions about safe staffing levels which is being developed by the National Institute for Health and Care Excellence (NICE).”

‘Shares for rights’ scheme reinstated after House of Commons vote

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MPs have backed the Government’s plans to allow businesses to offer shares to their employees in return for reduced employment rights.

The vote to reintroduce the employee shareholder proposal as part of the Growth and Infrastructure Bill passed by a margin of 277 to 239.

The controversial Employee Shareholder clause, 27, was originally announced by chancellor George Osborne in last year’s Autumn Statement, but was defeated last month in a vote in the House of Lords.

Despite continuous lobbying from employee ownership committees and unions, MPs have chosen to reinstate the clause.

Under the proposals, employers will be able to offer to swap some employments rights, including those relating to redundancy, for at least £2,000 of shares.

Business minister Michael Fallon said the scheme would be “wholly voluntary” and unveiled a concession that he said would ensure that anyone on Jobseeker’s Allowance would not be sanctioned for refusing to accept a job offer contingent on participation in the shares-for-rights scheme.

The TUC has said the shares for rights vote “defies logic”. Its general secretary Frances O’Grady, said: “This proposal should have been quietly killed off today. It has no support among employers and was heavily defeated in the House of Lords by a wide coalition including prominent Conservative and Liberal Democrat peers.”

O’Grady added: “Employment rights should not be for sale. Employers do not want to buy them, and employees will not want to sell them. What is worse is that its only real practical use is as a tax dodge.”

Phil Hall, special adviser to ifs ProShare, told HR magazine: “It is deeply regrettable that the Government has again refused to listen to the views of the majority of UK businesses, all of the representative bodies for the share ownership industry and the majority of Peers in the House of Lords.”

Sarah Ozanne, employment partner at law firm CMS Cameron McKenna, said: “It’s curious just why Osborne is so keen to press ahead with this when the consultation showed only lukewarm support for it, even among employers.

“There may be better support among start-ups but why employees would voluntarily surrender really quite fundamental rights is very unclear.”

The Bill will now be returned to the House of Lords on 22 April where peers will one again debate the fate of Clause 27.

Major construction firms caught in illegal blacklisting still avoiding responsibility, Scottish Affairs Committee report finds

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The major construction firms that established and funded a systematic blacklist of construction industry workers are continuing to avoid taking full responsibility for their actions, says the Scottish Affairs Committee (SAC) in an interim report published today.

The SAC says that while the blacklisting was not “initially illegal”, it was always “morally indefensible”, and the companies involved continued to use it after it had become illegal.

The companies involved included some of the biggest names in construction but also many smaller firms.

The Blacklisting in Employment: Interim report, showed that The Consulting Association (TCA), an organisation set up to create, maintain and operate the blacklist, had been largely established by construction and engineering firm, Sir Robert McAlpine, which also provided TCA’s chairmen for eight of its 16 years of operation.

It also found other major subscribers included Skanska and Balfour Beatty: the SAC has so far taken evidence from these three firms and intends to call more of those involved.

The blacklisting of building workers by large construction companies was a structure specifically set up to allow them to submit names and details of workers they deemed to be unsuitable to a central list.

The report states that as a result of this process, workers were denied employment without explanation, financial hardship was caused, lives were disrupted and sometimes ruined.

There was no right of appeal or challenge to the information held or the decisions made, and those affected, though they may have had their suspicions, had no evidence that they were being discriminated against in such a systematic and methodical way.

Ian Davidson MP, chair of the Scottish Affairs Committee said he was “appalled” by what was discovered during the hearings. “The Consulting Association was an organised conspiracy by big construction firms, to discriminate against workers who raised legitimate grievances over health and safety and other industrial issues,” he said.

Davidson added: “This was an exercise run for the financial gain of the companies involved and those who benefited must be held accountable.

“We were neither convinced nor impressed by the attitude of the people involved in funding, operating and using this blacklist. The suggestion that this was somehow not a blacklist at all because people were not automatically refused employment if their name was on the list is ludicrous.”

Unite, Britain’s biggest union, has welcomed the report saying it has begun “to shine a light on the dark side of the construction industry.”

Unite general secretary, Len McCluskey, said: “This is an industry that has ruined lives and discriminated against workers just because they belonged to a trade union or raised concerns about health and safety.

“We welcome the opportunity to give further evidence and recommend action against the blacklisters. Unite firmly believes blacklisting continues and the only way to eradicate this morally indefensible practice is to strengthen legislation against blacklisting to give the law real teeth.

He added: “There also needs to be a clear commitment to freedom of association and the right for unions to organise. Only then can we ensure that construction sites are safe workplaces free from discrimination.”

Balfour Beatty said it had already acknowledged using TCA up until 2009 to carry out reference checks on employees in the construction industry.

In a statement a spokesman said: “We have expressed our genuine regret over this. It should not have happened and we have apologised to the workers and families who may have been adversely affected over the years by this.”

The spokesman said the firm had undertaken steps to “address the shortcomings” revealed in its data protection practices, including a revised ethical code of conduct that was introduced in 2009.

The SAC says the Information Commissioner’s Office, which raided TCA in 2009 and ultimately caused it to be closed down, should do more and work with the trade unions to locate and notify people that were on the blacklist, as they cannot begin to seek redress without this information

It has also appealed for further evidence as it enters the next phase of the inquiry before making recommendations to government.

MPs to vote on controversial ‘shares for rights’ scheme today

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The controversial ‘Employee Shareholder’ clause of the Government’s Growth and Infrastructure Bill is to be put before the House of Commons today.

Last month the House of Lords voted overwhelmingly to remove the clause, which asks workers to forfeit certain employment terms in exchange for a stake in their company.

As part of the scheme, employees would not pay income tax or national insurance contributions on the first £2,000 of shares received, and would not pay capital gains tax on the first £50,000.

Last month, many Conservative and Liberal Democrat Peers voted against their own parties to ensure the clause was removed from the legislation, but despite this the Government will try and reintroduce the policy when the bill is put before the House of Commons today.

Ifs ProShare, the voice of the employee share ownership industry in the UK, has written to all Conservative and Liberal Democrat MPs urging them to vote against their official party line and make sure the policy does not become law.

Phil Hall, special adviser to ifs ProShare, said: “This has been voted against once already, not just by the Labour opposition but by a number of Conservative and Liberal Democrat peers together with the vast majority of crossbenchers in the Lords.

“We very much hope that MPs will act with similar courage and conviction and back the views of the majority of UK businesses – and all of the representative bodies for the share ownership industry – by voting against this ill-conceived and destructive policy.”

Employers starting to “wise-up” to the importance of recording absence, research reveals

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More than four in five employers (82%) actively record, monitor and manage absence, according to research published by Group Risk Development (GRiD) the trade body for the group risk industry.

The research states this figure is an indication of the importance of monitoring and recording absence as part of an overall health and wellness policy.

The Group risk employer research study, which surveyed 500 organisations, finds reporting absence can be highly significant with regards to corporate governance.

The research shows that, in the future, companies may be judged as much on how they manage absence as on their executive remuneration and shareholdings.

The Government has also acknowledged the importance of managing absence effectively in its response to the Sickness Absence Review. This year’s Budget granted tax relief on interventions targeted at minimising absence and speeding an employee’s return to work.

Katharine Moxham, spokesperson for GRiD, said: “It’s great that employers are starting to wise up to the importance of recording absence in the workplace and the benefits this brings to their business – particularly at a time when their positive efforts are mirrored by the Government.

“Even more exciting is that this could mark the start of a more open environment where ensuring the health and wellbeing of the workforce is seen as part and parcel of the employer’s duty of care.”

Moxham added: “If a new culture of openness prevails, positive moves to manage absence such as implementation of a group income protection policy can be communicated to a larger audience – paving the way for more businesses to make genuinely effective steps to minimise the impact of absence.”

Half of British business wants to stay in EU, but re-negotiate employment law

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The first major survey of British business following prime minister David Cameron’s policy speech on Europe in January 2013 has revealed broad support for the re-negotiation of Britain’s relationship with the European Union.

The British Chambers of Commerce’s (BCC) EU Business Barometer, which gathered responses from nearly 4,400 businesses of all sizes and sectors across the UK, tested five scenarios for Britain’s future relationship with the EU.

The number one British business priority for re-negotiation was employment law (54%). This was followed by health and safety law (46%) and regional development policies (33%).

Respondents were asked to give their view on the potential impact of each scenario on Britain’s business and economic prospects.

The survey asked respondents to pick from five options:

  • Full withdrawal from the EU
  • Withdrawal from the EU followed by a trade agreement
  • Remain in the EU with specific powers transferred back from Brussels to Westminster
  • Remain in the EU and integrate further with other EU member states
  • Remain in the EU with no change to current relationship

The survey found “full withdrawal” from the EU received the highest negative impact rating (60%).

Remaining in the EU with no change to current relationship received the lowest positive impact rating (15%).

John Longworth, director general of the BCC said: “We now have confirmation of what we’ve suspected for some time: namely, that employment and health and safety are the areas where companies would like to see legislative competence return to Westminster from Brussels.

“From a business perspective, any re-negotiation of Britain’s relationship with the European Union must therefore focus on these areas which are not integral to the functioning of the Single Market in goods and services.”

Meanwhile, a separate survey of FTSE 100 chairman has found the majority believe an EU departure would damage Britain’s biggest businesses.

The latest Boardroom Pulse survey, conducted by talent management consultancy firm Korn/Ferry Whitehead Mann, found 74% of respondents said that if Britain were to leave the EU, it would have a negative effect on business.

One chairman suggested that “the UK’s loss of its seat at the table would obliterate our ability to help resolve the deep structural flaws in the EU” and another suggested that over the next 25 years “Britain would lose all significant world influence” and “shrinkage in the City of London would become permanent”.

This view is not universal, however, with nearly a quarter (23%) arguing that departure from the EU would have no impact on their business, and a small number (3%) saying it would have a positive impact.

One chairman said that “if trade links are kept open there may be some short-term effects but long-term, not much” and another suggested that while “to be relieved of simply mad European-led regulation would be a bonus”, they would be concerned about “the negative effect on the UK economy of being outside of its largest trading market”.

Dominic Schofield, senior client partner with Korn/Ferry’s Board Practice, said: “A clear majority of the UK’s business leaders believe that their companies would be adversely affected if the UK was to leave the European Union.

“Though they overwhelmingly believe a departure is unlikely, if it were to happen there is a strong feeling that there is a need to ensure the continuation of favourable trading terms with EU countries.

Schofield added:”Given the importance to our economy of ensuring that our best businesses succeed on a global playing field in the coming years, our political leaders will need to work hard to carry business opinion with them in any re-negotiation efforts.”

In the May edition of HR magazine, there will be a full analysis of the impact leaving the EU could have on business and HR.

Dismissal claims rise ahead of employment law change

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Unfair dismissal claims have risen by almost 50% as employees look to “rush” through claims before new restrictions come into place, which will make it easier for employers to fire underperforming staff.

Under the proposals introduced this summer anyone looking to claim for unfair dismissal will have to pay a fee of £250 and a further £950 if the case reaches court.

Commercial law firm EMW says 15,300 claims were made in the second quarter of last year, up from 10,600 in the first quarter: a 44% increase.

Spokesman for EMW, Jon Taylor said: “The Government’s proposals will significantly limit the advantages of pursuing an unfair dismissal claim against an employer. The Government hopes this will reduce spurious claims in future, but the impending deadline has helped prompt a spike in claims.”

He continued: “People have been racing the Enterprise and Regulatory Reform Bill through Parliament, since it was announced last May, to get their claim in under the current claims regime.

“Working through all these extra claims will add to the pressure already on the employment tribunal process. The system is struggling with an ever-growing backlog of cases still to be heard, leaving employers and employees in limbo as they wait for their cases to be resolved.”

The information was obtained by EMW under the Freedom for Information Act.