The Government has announced that it will halt registration with the Vetting and Barring Scheme (VBS) in response to criticism that the current scheme is disproportionate, overly burdensome, and unduly infringes on civil liberties.

Voluntary registration with the VBS for new employees and job-movers working or volunteering with children and vulnerable adults was due to start on 26 July 2010, with compulsory registration due to follow in November 2010. The Home Office, the Department of Health and the Department for Education are reviewing the Scheme in order to scale registration back to ‘proportionate, common sense levels’.

The proposed vetting database had been set up in response to the murders of two schoolgirls in Soham in 2002. However the database was heavily criticised. Children’s authors and school leaders, in particular, expressed concerns that the plans were an overreaction and that for example an informal child care arrangements between parents would require the parents to register under the scheme.

The Idependent Safeguarding Authority, which was set to run the databse, will continue to make decisions about barring inappropriatre people from jobs and the existing requirements for criminal record checks will still apply.

The World Cup kicks off in South Africa on 11th June and presents employers with potential questions as to how it might affect their business. There is for example likely to be increased pressure from staff members to have time off work so that they can watch certain matches and some staff might even be tempted to “throw a sickie” in order to do so.

The supermarket Asda has announced that they will be operating a “shift swap” for the duration of the tournament so that employees who want time off to watch a match can contact employees who are happy to work during matches. This solution will not be suitable for every business but even so it makes sense to consider and plan ahead for any potential issues that may arise. Here are my top tips:

1. Reiterate your absence policy. There is of course no right to take time off to watch football but staff should be clear that absence requests can be refused according to the needs of the business. Make it clear that any absence requests will be considered on a “first come, first served” basis.

2. Reiterate your alcohol and drugs policy. The increased likelihood of hangover induced absence or alcohol use at work makes it important for businesses to stress their policies on alcohol and the effect this can have on productivity and absence levels. Stress that unauthorised time off without good reason (e.g. a hangover) will lead to disciplinary action.

3. Consider a flexible approach. Asda’s shift swapping is one idea but equally businesses could consider other ways of helping employees to enjoy the matches they want to watch without compromising the needs of the business – for example flexible working hours or unpaid leave.

4. Enjoy it. Rather than dwelling on the problems the World Cup could be used as a way of engaging staff and celebrating the event with them. Screening matches at work or as a social event outside working hours is a good way of bringing employees together and generating goodwill.

Since the coming into force of the Employment Equality (Religion & Belief) Regulations 2003 those of us advising on employment law issues have been grappling with what types of “belief” might be protected from discrimination.
In 2009 the Employment Appeal Tribunal found that a belief in the perils of climate change could amount to a “belief” worthy of protection. According to that case a belief had to be sufficiently serious and “worthy of respect in a civilised society” to fall within the ambit of the Regulations.
Which sets the bar fairly low…. and brings us to Jedi knights. If a recent census is to be believed Jediism is our fourth most popular religion. Chris Jarvis is a Jedi knight from Southend who refused to “dehood” in his local job centre and who has now received an apology from the centre manager for lack of respect to his “religion or beliefs”. According to the Equality & Human Rights Commission jediism is not a religion because it is not sufficiently “heartfelt” – though clearly the ECHR spokesman has never visited a job centre in Southend.
Tesco has clearly studied the ECHR guidance on Jediism – in barring one of its Jedi knight customers from a store for refusing to dehood Tesco commented – “We would ask Jedis to remove hoods. Obi-Wan Kenobi, Yoda and Luke Skywalker all went hoodless without going to the Dark Side”. May the law be with you.

Many employers will have standard clauses in their contracts of employment or employee handbooks allowing changes to be made to terms and conditions. A Tribunal has this week upheld the validity of such clauses, thereby allowing employers to make unilateral changes without the need for the express consent of its employees.

 Asda stores wished to harmonise the terms and conditions of certain of its workforce and sought to introduce a new pay structure. In so doing Asda relied on a clause in its company handbook allowing it to make changes to terms and conditions. The Tribunal decided that this approach was lawful (and that express employee consent was not required) provided such changes are properly implemented and do not destroy trust and confidence between the employer and employee. In practice this will still mean embarking upon a consultation exercise with staff and explaining the business need for any proposed changes.

The government has confirmed that from 6th April 2010 the current system of “sick notes” will be scrapped and replaced by “fit notes”.

The present system simply obliges doctors to give a reason for an employee’s absence from work and the anticipated duration. The “fit notes” will ask the doctor to list common changes which could be made to an employee’s work environment or job role to help the employee back to work. Where a doctor considers other options are more appropriate a box on the form will allow such comments to be made.

If an employer is not able to accomodate any of the doctor’s suggestions a revised statement is not necessary and the existing statement is evidence of the employees inability to work. However the new fit notes will (in the first 6 months of any absence) only be valid for a maximum period of 3 months, rather than the existing 6 months.

The form will also invite the doctor to set out circumstances in which the employee may be fit to work, ie what types of activity the employee could perform.

Concern has been expressed by doctors that they are being asked to “police”  sickness absence arrangements and express opinions without any real knowledge of their patients working environment. The swift introduction of the new style notes has also led to criticism that neither doctors nor employers will have sufficient time to familiarise themselves with the new system. However the government has said that the new procedure will reviewed, with the conclusions being published in 2012/13.

The British Chambers of Commerce (BCC) has published research which concludes that forthcoming employment legislation is likely to cost the British economy £25.6 billion over the next 4 years.

BCC attributes £14bn of this figure to a 1% increase in National Insurance contributions, scheduled for April 2011. In addition BCC estimates the cost of other major pieces of legislation to be as follows:

2010: Equality Bill – £190bn; 2011: Agency Workers Directive – £1.5bn per annum; 2012: Pensions Reform – £4.8bn per annum.

BCC fears that these costs will stifle any economic recovery and will risk job creation. It is calling for the abolition of the proposed increase in NI which it describes as a “tax on jobs”. BCC is also calling for a 3 year moratorium on any new employment-related legislation.

In October 2009 ACAS extended it “pre-claim conciliation service” to cover all disputes that can be heard at an Employment Tribunal.
The Scheme can be accessed by employees or employers who wish to resolve an employment dispute using ACAS. The parties must have at least tried to resolve their differences using the employers internal procedures (eg disciplinary or grievance procedure). In addition the Scheme applies to disputes which have not yet reached Tribnunal stage.
So far 6000 disputes have been referred and 40% have been resolved; most within 2 weeks.
The Scheme represents a free and quick means of settling disputes without the cost and hassle of fighting a Tribunal claim. The Scheme can be accessed via ACAS on 08457 474747.

Hiring the right employees is, of course, of crucial importance for any business. But with recruitment comes risk – how does a business know that its new recruit is honest or has the skills and qualifications that were described at interview? This is of particular importance for senior or executive positions – but it is equally true for most employees. For example in 2007 a survey in the retail trade reported that 1.36% of the value of global retail sales, or £50billion, represented “shrinkage” or waste. Of that figure it was estimated that a third resulted from employee theft.

The importance of employee vetting is clear and a number of organisations offer “vetting services” to check the background and bona fides of candidates for employment. However employers need to beware some of the legal risks involved and be clear about the extent to which employee vetting is either appropriate or lawful.

The Data Protection Act 1998 (DPA) gives individuals the right to know what information is held on them and imposes obligations about how personal information should be obtained and stored. In March 2009, following an investigation into breaches of the DPA, the Information Commissioner’s Office raided the premises of Consulting Association in Droitwich. The company operated a database containing details of over 3,000 “blacklisted” construction workers and charged firms £3,000 to be supplied with details of the individuals. This should serve as an illustration of the limits of vetting and the need to “vet the vetters” when conducting such an exercise.

Social networking sites are also increasingly being used as a relatively cheap and informal means of vetting. Quite often such sites are places where individuals will publicise personal details such as those relating to ethnicity, lifestyle preferences or religious and political beliefs. Employers may perceive an advantage in having access to such information but the Law Society has warned that this could also create legal problems. The DPA only allows vetting of such “personal information” when specific risks are involved in the recruitment. Equally decisions taken on the basis of personal and sensitive information could well form the basis of a claim of unlawful discrimination from an unsuccessful job applicant or disgruntled employee.

The government has opened a consultation on its plans to give fathers additionasl rights to take paid additional paternity leave (APL) following the birth (or adoption) of a child for whom they have parental responsibility.

The proposed new right would allow fathers to take between 2 – 26 weeks leave during the second 6 months of the child’s life. APL will not be able to be taken until the mother has returned to work following maternity leave, but it does noyt have to begin as soon as she returns.

The right will apply not just to biological fathers but to anyone who is married to or is the partner of the child’s mother, provided that person has responsibility for the child’s upbringing. Employees will need to have at least 26 weeks contnuous service to avail themselves of the new right and must remain in employment until the start of the paternity leave period.

APL will be paid at the standard maternity leave rate (presently the lower of £123.06 per week or 90% of average earnings). However father will only be eligible for payment during the 39-week period when the mother is eligible to receive maternity pay or maternity allowance. APL can be taken outside this 39 week period but it will be unpaid.

A father wishing to take APL will, at least 8 weeks before taking leave, need to give his employer notice of intention to take APL, a signed declaration confirming that the absence is for the purposes of child-care and a signed declaration from the mother confirming the father’s information and giving her name, addresss, NI number and stating her intention to return to work.

The new rights are intended to apply to babies born after April 2011. The cost to employers of APL will largely be offset by the corresponding reduction in maternity leave costs. However the rights will be a further set of rules for employers to administer and apply in practice.

The Conservative Party at their annual conference in Manchester have been setting out their stall on how they would approach employment law and HR issues.

The Shadow Business Secretary Alan Duncan pledged to reform the Employment Tribunal System describing it as ‘grotty’. He promised that employees losing Employment Tribunal claims would be forced to pay their employer’s costs, which currently only occurs in a minority of cases.

Duncan also criticised the Agency Workers Directive which will give temporary workers in the UK equal rights to permanent staff after 12 weeks with an employer. The Shadow Minister for Corporate Governance said that the Directive would cost British businesses £40 billion over the next 10 years and put tens of thousands of jobs at risk so the Conservatives would campaign against its early enforcement. Gordon Brown told the TUC Conference last month that the directive could be implemented as early as Autumn 2010 and therefore possibly before any General Election.

The Shadow Business Secretary Kenneth Clarke told the Tory Party conference that he would deregulate businesses with policies that would ‘light the bonfire of red tape’. He promised a net 5% reduction in the regulatory burden on businesses and suggested a ‘one in, one out’ policy on Employment Law whereby legislation would only be passed once an old ruling had been removed.

Theresa May the Shadow Minister for Women also signalled that she would scrap Government plans for mandatory gender pay audits which are proposed as part of the Equality Bill. That Bill, which is still being debated in Parliament, includes a clause allowing the Government to require employers from 2013 to report on differences in pay between men and women in their organisations.

May stated that should the Conservatives form the next Government their proposal would involve mandatory reporting only for those employers found guilty of discrimination at an Employment Tribunal.