Monthly Archives: May 2011

Bribery and corruption ….

The Bribery Act comes into force on 1st July 2011.  And, as is typical when a new piece of legislation affecting business is in prospect, your email box starts to fill up.  You get offers for any number of courses that will provide, for “just” a few hundred pounds and a day of your life — an explanation of this “important new legislation”.

Stop!

The Bribery Act does NOT – despite what people are saying – set up anything complicated or difficult that you have to do … provided you have already been running your operation with a modicum of sense, and a reasonable employment contract.  Normal business hospitality is not going to be made illegal!  But ‘facilitation payments’, or completely disproportionate hospitality, will be a problem under the new law in exactly the same way that they were under the old law.

If you have taken no steps at all to protect your operation from corrupt practices, then the nudge that the new Act may give you to sort this out will not go amiss.  But if you have nothing in place, don’t just ‘fix’ the bribery issue — look at how corruption of any form might affect your activities, and how to guard against it.  As always, let your business needs drive what you do … don’t let legal changes distort your business priorities.

The Ministry of Justice has issued straightforward guidance about how the new Act will operate. [But do remember, “guidance” is not the law – so take it with a bit of a pinch of salt – check out our earlier blog.]

In a nutshell:

–       your organisation can be liable for failing to prevent a person from bribing on your behalf

–       solution: consider whether there is actually a risk that this will happen, and where these risks may arise

–       if a bribe is made on your behalf, you will have a defence to a prosecution if you can show you had adequate procedures in place to prevent bribery

–       solution: once you have identified actual risk areas in your operation, consider how you can best put procedures in place to prevent bribery occurring.

–       if you do need to put procedures in place, they should be proportionate to the risk

–       solution: for most businesses, you will not need extensive written policies or special processes.

For many organisations, all that will be needed is a short addition to the employment contract or employee handbook.  For any organisation that already has an effective “ethics” policy in place, it is quite likely that nothing additional will be needed at all.

But the trick is to do the job in the right order.

Start with the risk assessment – which, as always, is best committed to paper so that you can prove later on that you did it.

Then, if (and only if) the risk assessment shows you that it’s necessary, put in place relevant and appropriate new prevention procedures and documentation.

Many companies will need to add precisely nothing to what they already have in place at the moment!

Join us to talk about what you need to do to make your organisation’s gifts and hospitality process compliant (for most people it won’t be a lot).  And take the opportunity to review whether you are getting value for money out of it all anyway.

Christopher Head is a barrister and director of employment law specialists Irenicon Ltd.

Irenicon Limited, Airport House, Purley Way, Croydon, CR0 OXZ
Tel : 08452 303050 Fax  :  08452 303060
Email  :  info@irenicon.co.uk
Website  : www.irenicon.co.uk

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Filed under Bribery and Corruption, contract, employment law

Simplifying the complex – red tape and employment law

Tied up or tied down?

Simplifying the complex – red tape and employment law

In this blog, we look at the dangers of reliance upon simplified guidance published by the Government on new legislation.

People get in a muddle about the effect of explanations and guidance on employment law.

Employers simply do not understand how  they can follow Government guidance and lose in a tribunal.

What’s going on?

Our legal system works on the basis that Parliament makes new law (statutes/Acts of Parliament, and regulations), and the courts and tribunals interpret and apply that law to particular situations.

Some Codes of Practice are ‘statutory codes’ and are taken into account by a court or tribunal hearing a case.  The ACAS Code on discipline and grievance is an example of this.

What about government guidance on how to comply?

In general, the court/tribunal will not apply guidance or explanatory notes on Government websites.

This has the useful effect of preventing our laws from being rewritten by civil servants without the scrutiny of Parliament.

There have been several spectacular incidents of Government guidance being pulped (at a cost of millions) where the explanations have been simply wrong.

Employers have been understandably mystified by how, even though they followed official guidance, they were wrong.

It seems unfair that they are required to comply with laws that no-one in the Government can adequately or accurately explain!

It is not unknown for Government departments to breach  UK employment law (not just the guidance), and it is clear that there is a lot of unnecessary pain and confusion about the status, clarity, relevance and accuracy of guidance notes.

Appeal decisions are the most reliable guidance

Only appeal decisions bind lower courts, so there is an inevitable gap between when Parliament makes new laws and when the appeal courts get to make decisions.   There must be a real case brought about an actual situation and the losing party has to decide to appeal.

So, given the time that cases take to work their way through the system, it can take anything from two years to more than a decade for a particular statutory provision to get the attention of an appeal court and for binding precedent to interpret it.

Fewer appeals mean less guidance

The new system of charging for employment tribunals and employment appeal tribunal claims can only make it take longer for case-law to develop around new laws .

We often have to tell our clients “Nobody knows the answer to this question, but our best guess, given what has gone before is …..”    I have never seen a set of ‘guidance’ that is honest enough to say this.  What would be the reaction if this were published?

Compliance inflation gives certainty  

Employers like certainty and predictability (at least until they want flexibility and choice!).    It’s not easy to live in a world where non-compliance costs time and money, but no-one can say for sure exactly what “compliance” requires. 

This is one reason why we see “best practice inflation” – which is the inaccurate overstatement of what the law requires … ‘just to be on the safe side’. 

It’s not ‘safe’ to load business with excess cost or unnecessary hurdles.

Business is about measured risk taking

Running a business involves risk.  Employment law is just one of many risks in business.  Arguably more businesses are ruined by poor credit giving decisions than by employment law.

There is no real certainty about anything, and we have to hone our decision making and risk assessment skills and bring them to bear on employment law as we do to everything else.

For our earlier blogs in the ‘red tape’ series, click here for our discussion on whether we are over-regulated, and click here for our discussion on how far we can repeal current legislation.

See our previous blog

..to be continued…..

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.

Tel: 08452 303050 Fax: 08452 303060
Website : www.irenicon.co.uk
You can follow Annabel on Twitter

 

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Bonfire of the delusion – do we have the power to repeal employment law?

Delusions about employment law

The government has announced more consultation on employment law, this time on TUPE and collective redundancies.  Both sets of legislation derive from EU directives.

In our last blog, we looked at whether we are in fact over-regulated and over-legislated.

a)            Assumption: in the UK we retain the power to repeal legislation

The thing most politicians don’t seem to grasp is the very limited extent of manoeuvre we have, even where we want to repeal legislation.  A significant amount of UK legislation relating to employment is the implementation of EU Directives.  Short of leaving the EU (which is another discussion) we do not have the power to say “let’s not have any legislation about this”.

We can take out any additional burdens imposed at UK level but we can’t abandon the whole thing.  If we want to live in an unregulated employment environment, we need to leave the EU.  Otherwise, we need to learn to live with a regulated environment.

We can lobby at EU level for changes to laws, even the abolition of laws, but in a large group of countries, our view will not automatically be adopted (even if we have one national view to present).

The only way forward for an individual employer is to live with things as they are and make the best of that.   Lobbying may work in the longer term, but we need to stop deluding ourselves that all this ‘law’ is going to disappear by magic of governmental pen.

I talk to clients quite regularly who say – “this shouldn’t exist”, “this shouldn’t be happening to me”.  A successful business strategy has to be founded on how things are, not on how you think things ought to be.

Employment law is no different to all the other elements that are needed to make a successful business.  Whilst unfettered freedom can seem like a good idea, it is unlikely we will arrive at an unregulated climate for business, and we all have to live and trade within certain legal limits.

See our previous blog

..to be continued…..

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

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Filed under employment law, Equality Bill

Bonfire of the Red Tape Vanities

Are we over regulated and if so, what can we do about it?

There is a lot of ‘media’ and ‘political’ debate about it – but it is all based on the same assumptions that we:

  • are over-regulated and over-legislated
  • retain the power to repeal legislation
  • can simplify legislation that we can’t repeal

Over the next few blogs, we shall be exploring some of the issues.

Are we are over-regulated and over-legislated?

I might want the right to dismiss anyone I want to but do I want my friends and family sacked for no reason?

I might want the freedom to say whatever I want to anyone anywhere I go,  but do I want be abused at work? .

If we start with what rights do we feel we really need to have (as a safety net for ourselves, our children and our loved ones), we don’t always end up in the same place as the people on whom the obligation to respect those rights is imposed.  What if we  look at it from the perspective of an employer?

I have the privilege of being a business owner, self-employed, a boss, a mother of sons who work for other people, and an employment law and HR specialist who hears a lot about what goes wrong in the workplace.

The whole debate about legislation is like trying to fix a difficult marriage by changing the divorce laws.

Would you give up protection from domestic violence to simplifying UK law?

In the workplace there are many problems that people need some way of addressing, and some remedy for.

We work with wonderful organisations who really do try to bring their vision into the world and take their staff along with them, but we still regularly come across people who are abused and damaged at work..

Should animals be better protected than people?

If I were an animal, I would have regulations about:

  • transportation  – you can’t transport sheep in the same conditions many commuters endure
  • food and drink and rest breaks – work an animal to death or fail to let it eat and drink and the RSPCA will be on to you.  Working Time regulation for humans is another thing? 
  • dangerous conditions that injur an animal or cause it stress? – again the RSPCA will be on to you – but Health and Safety (and stress prevention) for humans is red tape?

People baiting?

Years ago our ancestors thought it was OK to organise bear baiting, badger baiting, cock fights and more.  Most people in the UK today would think this was not OK and we have laws against it.

Should I not have the same rights at work as an animal?

Do we want to live in a world where employment is:

  1. Regulated?
  2. Unregulated?

..to be continued……

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.

Tel: 08452 303050 Fax: 08452 303060
Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

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Filed under employment law