Directors’ Liabilities – The Buck Stops Here!

Congratulations, you’re a company Director! Once the euphoria has died down it may dawn on you that being a company Director carries a whole burden of new responsibility.

And now the buck might stop with you!

Oh, no need to worry, you say. I’m a Director of a Limited Liability Company so I’m safe. If only it were that simple!

Increasingly Directors are finding themselves at the wrong end of the courtroom as individuals are pursued for their actions or indeed inactivity. Unfortunately, it’s not always possible for the corporate entity to protect the individual. Your personal assets are at risk as company directors are faced with legal bills and compensation awards that they have to fund themselves from their own assets.

So who can claim against a Director? Potentially, anyone! 

Employment related claims against directors are an explosive area of potential liability. The two most common types of claims are brought for wrongful dismissal and discrimination.

Outsiders can also make claims. Competitors, creditors, the regulatory agencies, such as the Health and Safety Executive and any other person affected by corporate conduct can bring claims for a whole raft of issues.

Surprisingly, shareholders can make claims against directors should they be able to demonstrate that the directors’ actions have had a negative impact on their investment.

The good news is that it is possible for the company to buy insurance to cover the Directors or Officers of a business that provides protection for legal defence costs and compensation awards.  This type of policy is relatively inexpensive and if arranged properly can cover all of the issues identified earlier. It’s not even classed as a benefit in kind so there are no additional tax implications. Importantly, it’s vital that all activities are fully disclosed and the correct limits of indemnity are purchased. It’s also important that all the relevant extensions are activated to ensure that you benefit from the widest possible cover.

For more detail about this type of cover, contact ProAktive today who can offer you peace of mind.

By Beverley Brown FCII MBABroking Director

Chartered Insurance Broker

All work and no play could land HGV drivers in trouble

Driving is something that we all take for granted. Without a vehicle, how would we cope? Well, according to RoSPA, driving for work is the most dangerous activity that most employees will undertake at any point in their working day. You are statistically much more likely to be killed behind the wheel than on a building site.

For some time now, operators of HGV vehicles, such as lorries, have been strictly controlled. After all, their vehicles are large, heavy and their impact can be catastrophic. In order to control the risks posed by these larger vehicles, the DVSA have already implemented steps to monitor the competency of drivers by requiring that all HGV drivers hold a Driver Certificate of Professional Competence (CPC) which requires 35 hours of training over a five year period. 

The next focus for the DVSA is adherence to driver hours, and particularly rest breaks. RoSPA estimate that 40% of sleep related accidents are committed in commercial vehicles. This also equates to 1 in 5 of all accidents and up to a quarter of all serious and fatal crashes. Drivers of HGVs, under domestic rules, are typically permitted to be on the road for no more than 10 hours per day, and they can only do that twice a week. The driver must take regular breaks throughout his working days. All of this is recorded on the vehicle’s tachograph.

Currently, the DVSA can only issue commercial vehicle operators with fines for offences committed on the day and those which are ongoing, such as tachograph manipulation. Under newly announced plans the DVSA will give their traffic examiners new powers to issue on the spot fines for up to five previous offences committed in the last 28 days. It doesn’t matter if these rules took place in GB or elsewhere. These fines are likely to be £300 per offence. This means that those that have consistently broken the rules can expect a fine of up to £1500 per stop.

Whilst the dates for tachograph infringements has not been announced, from 1st November, fines are now being given to deter drivers from not resting properly. Lorry, bus and coach drivers must take a 45 hour rest break at least every fortnight. If, for example, a driver takes their full break in the cab of their lorry in a lay-by, or parks their vehicle in places where it causes a problem, then they can also expect a £300 on the spot fine.

According to the DVSA, spending breaks in the cab can contribute to drivers not properly resting, expose drivers to poor living conditions and cause problems for local residents where lorries have been parked illegally or inappropriately. DVSA traffic examiners have been instructed to target lay-bys and residential areas particularly.

Clearly the DVSA are wanting to take more effective action. You should be taking appropriate steps now to ensure that your drivers are adhering to the rules and do not expose themselves, or you, to any enforcement action. Educating drivers is the key. They work for you and so they must work how you want them to. The repetition of having drivers sign non-conformances is not going to be enough to instigate change. You need to communicate the rules, monitor adherence and take disciplinary action as appropriate.

If you need any further advice, or if you’re considering verifying your safety performance by obtaining an accreditation, please give our health and safety consultants a call on 01302 341 344.

By Ian Clayton CMIOSH DGSA – Health and Safety Manager & Chartered Safety and Health Practitioner

Health & Safety Training Courses From ProAktive

As you may already know, we offer a variety of health and safety training courses at ProAktive. We hold them at our Doncaster office and can also arrange the course to be held at your own venue or premises, depending on delegate numbers.

What do we offer?

The IOSH Managing Safely 4 day training course is a widely recognised accredited course for managers and supervisors and is suitable across a broad range of sectors and industries. It is designed to give managers all they need to know to help them handle health and safety in their workplace at a practical level.

The IOSH Managing Safely 1 day refresher course is for delegates who have already completed the full Managing Safely course. Not only will delegates get to refresh their knowledge on the key parts of the full Managing Safely course, there’s also a much greater emphasis on monitoring, auditing and reviewing, developed through two practical case studies.

The IOSH Working Safely 1 day course is for people at any level, in any sector, that need a grounding in health and safety. Ideal for introducing staff to why health and safety is important, Working safely shows how everyone can make a difference to their own well-being and that of others through everyday behaviours. Fun and interactive, the course focuses on best practice rather than legislation.

For more information including costs, dates and times, please click here and you can also contact Ann Granter on 01302 341 344 to speak to us about any of our training courses and to book a place.

 

HSE Fee for Intervention: A Summary

The Fee for Intervention Scheme (FFI) has been running since October 2012 and still shows no sign of letting up when it comes to fining companies.  The scheme means that a fee is payable to the HSE if:

  • A person is contravening or has contravened health and safety laws
  • An inspector is of the opinion that the person is or has done so, and notifies the person in writing of that opinion.

Put simply it means that if an inspector finds a material breach of your business, then you will be required to pay a fee. Currently rates are at £129 per hour, however it isn’t just the time spent on site which you will be billed for. Your fee may include the inspector’s time:

  • at your business or workplace
  • preparing reports
  • getting specialist advice
  • talking to you or your workers after the visit

The fee can vary depending on:

  • the length of the original visit
  • the time the inspector spent helping you put things right
  • the time it took the inspector to investigate your case
  • any time the inspector or HSE spend on taking action against you and your company

Currently the average fines across all sectors are coming out between £650 and £750 however in the extraction, services and water or waste management industries this average rises to between £800 and £970.

How common are they?

Between the years of 2013/2014 the HSE conducted 23,472 pro-active investigations into UK businesses. Of those investigations about 32% led to a material breach being discovered and a further 15.9% of all inspections led to enforcement action. Therefore almost half of all investigations led to fines and further punishment.

Currently businesses in the manufacturing and construction arenas are the most likely to receive a FFI, and in August 2015 alone these industries were dealt with fines totalling £750,000 and £591,000 respectively.

The amounts are likely to be even higher today as in 2016 the fees increased by 4%, way above the national inflation rise.

To talk to our team about managing your health & safety risks in your business, contact us on 01302 341 344.

By Ian Clayton CMIOSH – Health & Safety Manager

 

 

Time for a re-think on terrorism?

Insurers of property, machinery, stock and the like in the UK do not provide cover for damage caused by acts of terrorism. This is perhaps not surprising. Insurers have taken the view that losses from terrorism could be so substantial as to threaten their financial stability.

In many countries losses caused by terrorism may be compensated by the government. This is not so in the UK. The risk is yours and yours alone. The attitude of the UK government stems from the days when IRA terrorism was at its worst. The government of the day took the view that it didn’t really want to give the IRA an incentive to bomb major targets in the knowledge that it would be the government who would foot the bill.

As a result of this attitude, the government and insurers  got together to form ‘Pool Re’. Pool Re is an insurer, funded by insurers, who operate in the UK and ultimately are “reinsured” by the government. Its sole purpose is to provide terrorism cover in the UK and indeed it has done so successfully for many years now. Your business may choose to buy bespoke terrorism cover that can cover liability too.

Many of our clients already buy Pool Re. Certainly those who own key assets in major cities do and banks often insist on cover before lending on a property. But if you don’t have cover, is it time for a re-think?

We used to think of terrorism in terms of IRA bombs. In recent times the threat has evolved from ISIS or ISIS inspired individuals. Whilst acts of terrorism are extremely rare they are on the increase and of course the consequences of an attack can be substantial. Rather than leave your assets exposed perhaps it is time to buy cover? Premiums reflect risk and so locations within major cities and major attractions and events will attract higher premiums than those ‘in the sticks’. Sadly the problem is not a short term issue; David Cameroon spoke recently about the problem being with us for a generation.

Help is at hand. Just ask.

By Ian Laycock – Group CEO

To Suspend or Not To Suspend

Most companies will have a section in their handbook that explains the company’s right to suspend an employee when carrying out an investigation into alleged misconduct. However, the recent case of Agoreyo v London Borough of Lambeth shows why it is important to think carefully before issuing a suspension, whatever the allegation.

Ms Agoreyo, a teacher, was accused of three instances of using unreasonable force towards two children in her class, who were known to exhibit challenging behaviour. The Head Teacher investigated at least two of the allegations and the allegations weren’t upheld. Agoreyo was however, then suspended by the executive head. 

Agoreyo received a letter stating that the suspension was a ‘neutral act’ and not a disciplinary sanction. It also indicated that the purpose of the suspension was to allow an investigation to be conducted fairly.

A claim was brought before the county court for damages for breach of contract, arguing that, in suspending Agoreyo, the council had breached the implied term of mutual trust and confidence. Although the claim was initially unsuccessful, Agoreyo won her case on appeal and the High Court made the following criticisms of the council’s handling of the case:

  • Agoreyo was not asked for her version of events before suspension.
  • The head teacher’s initial investigation, which concluded that unreasonable force wasn’t used, was overlooked.
  • No alternatives to suspension were considered.
  • No explanation was given as to why an investigation could not be carried out fairly without Agoreyo being suspended.

As a result, the High Court held that Agoreyo’s suspension was unnecessary and therefore breached the implied term of mutual trust and confidence. It confirmed the view expressed in previous cases that suspension is not a neutral act and should not be considered a ‘routine response’ to the need to investigate.

What to Learn from this case?

In light of this case, employers should think carefully before suspension, and not use it routinely when it comes to a disciplinary procedure. Employees can mitigate this risk by ensuring the following points are considered in deciding whether or not suspension is necessary:

  • Would the employee’s presence impede an investigation?
  • Is there a risk of the employee interfering with witnesses or evidence?
  • Is there a risk to the safety of other staff, customers, suppliers or service users?
  • Are there suitable alternatives?
  • Is suspension reasonable in the circumstances?

There will still be cases where suspension is necessary however, employers should exercise caution to ensure that it is not the routine, but when used must be a necessary part of that particular disciplinary procedure.

Employers can also minimise risk by ensuring the letter of suspension explains why it is necessary, so it is clear that the decision has been carefully thought through. It is no longer acceptable to state that the suspension implies no criticism of the employee.

To talk to our HR Consultancy Team about your disciplinary procedures or about any other employment issues, please contact us on 01302 341 344.

By Kris Kerins BSc (Hons) PGC (Tech Mgmt) – Risk Services Adviser

E-cigarettes – what rules do you have in place?

In 2007 the smoking ban was implemented across the UK; businesses and the public alike have embraced the changes over the last 10 years.  The e-cigarette was created back in 2003 however their popularity and the trend of ‘vaping’ have seemingly hit a peak in the last couple of years. Whilst it is an alternative to smoking and often used as a method to stop smoking, it is important to recognise that the e-cigarette is not covered by the ban.

There are factors to consider when making the decision whether or not to allow employees to use e-cigarettes on your premises.

  • Will customers’ perceptions of your company be altered if they see your employees using them?
  • Role models – young people who see smoking, including e-cigarettes, can mistakenly believe this to be a normal healthy adult activity and this may influence them to smoke themselves.
  • Will employees be distracted by the e-cigarette and could this be dangerous when driving or operating machinery? 

Ultimately the decision on whether or not to ban e-cigarettes from your premises is up to you. Guidance is available from organisations such as ASH (Action of Smoking and Health) and the HSE, although the HSE does not enforce legislation or standards for e-cigarettes. You need to weigh up the positives of encouraging employees to cut down or stop smoking to benefit their health and the negatives of their use in the workplace.

To speak to us about e-cigarettes or any other Health & Safety queries, contact our team on 01302 341 344. 

By Kris Kerins BSc (Hons) PGC (Tech Mgmt)Risk Services Adviser

Voluntary Overtime and Holiday Implications

Earlier this month the Employment Appeal Tribunal (EAT) heard a case that will affect thousands of employers when it comes to calculating holiday pay.

The case in question was: Dudley Metropolitan Borough Council v Willetts (and others)

56 employees brought a joint claim against the council in respect of voluntary overtime not being included in their holiday pay, which they claimed was against the Working Time Regulations 1988. These employees worked set hours per week which constituted their normal working hours however, once every 4 or 5 weeks they participated in a call-out register and worked voluntary hours. 

Their claim was successful as the tribunal didn’t consider the overtime to be ad hoc or irregular; which is still excluded from holiday pay, but instead would form part of their normal working hours. The EAT specified that overtime that ‘extends for a sufficient period of time on a regular and/or recurring basis’ and has become part of the worker’s normal pay must be included [in holiday pay]. This also means that regular overtime worked at certain times of the year, for example over the festive period should be taken into account for holiday pay.

There isn’t a statutory definition of ‘normal pay’ and what amounts to it, however this case will be binding on employment tribunals. Therefore employers may have to provide a satisfactory argument as to why any overtime undertaken by their employees isn’t considered part of their normal pay, in order to have a tribunal decision awarded in their favour.

If you are concerned whether or not the overtime worked by your employees should be considered as part of their normal pay, or for advice on any other employment matters, please contact the employment team on 01302 341 344.

By Kris Kerins BSc (Hons) PGC (Tech Mgmt) – Risk Services Adviser

Kidnap and Ransom – A dangerous world

Kidnap and Ransom cover is designed to protect individuals and corporations operating in high-risk areas around the world. Locations most often susceptible to Kidnap and Ransom incidents include Mexico, Venezuela, Haiti, Nigeria, Somalia, Brazil, India and Central Asia (Afghanistan and Iraq).

In practice, generally speaking, a crisis management helpline is also provided by the insurer as part of the service. This provides access to specialist response consultants to provide support in the event on an incident.

Typically, the insured would initially pay the ransom and then look to seek reimbursement under the policy.

So, what is covered?

  • Kidnap and Ransom– Seizing an employee with the intent to demand money in return for the employee
  • Extortion – Demanding money with the threat to injure or kill an employee, damage property, divulge trade secrets or spread a computer virus
  • Wrongful detention– Confining an employee under the guise of government
  • Hijacking – Holding an employee for an extended period of time against his/her will on an aircraft, motor vehicle or ship.

You should know…

The existence of Kidnap and Ransom insurance cover is highly confidential; there are clear conditions in the policy that require the insured company to take reasonable steps to restrict knowledge of the insurance as far as possible i.e. only key personnel to be aware of its existence. The employees travelling should not have any knowledge that the cover is in force, as this could result in the individual revealing to potential captors that they are insured.

Facts & figures

There are 15,000-20,000 kidnappings reported globally each year, with many more going unreported. A kidnapping is not only traumatic, but it can lead to significant financial losses from ransom payments, associated costs, business interruption, litigation, adverse publicity and long-term reputation damage.

If you are unsure as to whether the territories you operate in are high risk of Kidnap and Ransom activities, you can check this on the Foreign & Commonwealth Office website: If you require any further information or advice you can contact us on 01302 341 344 or 0114 243 9914.

By Lauren Quincey ACII – Chartered Insurance Broker

 

Supreme Team Scrap Tribunal Fee Dream

In what is being called a dramatic ruling, The Supreme Court have ruled in favour of Unison, against the Government, agreeing that tribunal fees are unlawful and must be scrapped. On the back of this those that have paid to bring a case to tribunal since July 2013 will be refunded.

The Supreme Court judges decided that the fees were preventing access to Justice and indirectly discriminatory towards women, who were more likely to bring serious and costly cases to court and therefore this contravened EU Law. 

Although originally the fees were implemented to deter false claims, reduce costs to taxpayers and prevent a backlog in the system, many groups have fought against the fees claiming it would allow employers to mistreat their employees with less fear of repercussions. This was especially a concern for employers who employed minimum wage and/or part-time employees.

Looking Forward:

Going forward it is likely that the amount of claims brought to tribunal will increase, however some experts believe that employers may now be more inclined to settle these matters during ACAS conciliation or before tribunal.

Estimates place the refunds to be in the region of £27 million and many people believe that the government will look to try and get a parliamentary act through to change the system again rather than use the secondary legislation route which they used originally. BUT based on the current political environment, and with the labour and liberal democratic parties being against the fees, it is unlikely that this would pass through parliament.

As there are fewer barriers for employees to bring a claim against an employer once again, it is vital that employers act fairly and follow the ACAS code of conduct when it comes to the treatment of their employees and the procedures they follow.

To contact us regarding any HR concerns you may have please get in touch on 01302 341344.

By Kris Kerins Cert CII– Risk Services Adviser