Just a reminder to those who employ staff that work with children and vulnerable adults that the Vetting and Barring Scheme (known as "VBS" and brought into force by the Safeguarding Vulnerable Groups Act 2006) launched on 12 October 2009.

As this is being phased in over a lengthy period, there may be little immediate impact on your procedures, especially if you are not recruiting currently, but the key points to note are:

• more strictly controlled arrangements that determine who may not work with children and vulnerable adults in England, Wales and Northern Ireland
• from 26 July 2010, new recruits or volunteers undertaking "regulated activities" or "controlled activities" can register with the Independent Safeguarding Authority (ISA). "Regulated activities" include teaching, training, care, supervision, treatment, transportation, fostering, childcare and any activity that involves people in positions of responsibility. "Controlled activities" include support work in general health settings (including cleaners, catering staff, caretakers and receptionists), the NHS and further education; individuals working for specified organisations that have frequent access to sensitive records about children and vulnerable adults and support work in adult social care settings.
• from November 2010, employers must check applicants' ISA status before recruiting them. Employers who fail to check an applicant's ISA registration before recruiting him/her to do a regulated activity will commit an offence; if they knowingly employ someone in a regulated activity who is barred from working with either children or vulnerable adults (as appropriate), they will be liable to imprisonment and a fine of up to £5,000.
• from 2011, existing employees with no CRB check must apply for ISA registration
• employers, social services and professional regulators have a duty to refer any information concerning why they stopped or considered stopping an individual from working with vulnerable groups to the ISA
• the three current previous lists (Protection Of Children Act (POCA), Protection of Vulnerable Adults (PoVA) and List 99 (for teachers)) are replaced by two new barred lists (one for children and one for vulnerable adults) administered by the ISA. Checks of these two lists can be made as part of an enhanced CRB check.

Whilst the initial impact may be low (the requirement to check doesn't come into play until November 2010), it is worth starting to consider how to manage this now and to adapt application forms etc. For those to whom this applies, see: /docs/guides/child.html

It would seem likely that more employers than are strictly necessary will insist on ISA checks in order to minimise their risk and to be able to reassure bodies who contract their services, even for workers with little contact with children or vulnerable adults. The Independent Safeguarding Authority chairman, Sir Roger Singleton, believes that employers may register staff rather than lose work to competitors, even when there is minimal contact with children or vulnerable adults. He also disclosed that information on the database would be kept indefinitely, even after those concerned left the relevant professions.

On a related subject, the Court of Appeal has been looking at police records. Five police authorities challenged guidance from the Information Commissioner and the Information Tribunal which recommended that details of old convictions should be destroyed as they breached the Data Protection Act. The police authorities were successful in their challenge, and may keep the information for "as long as they feel necessary". CRB checks may therefore include details of older convictions - but employers are advised to consider carefully whether information about minor, old convictions is relevant to the appointment in question.

For more details on CRB checks, see /docs/legal/employeesconvictions.html

The UK Border Agency has revised its guidance for employers and education providers who sponsor migrants under the points-based system and has split this into two separate documents - one for employers (Tiers 2 and 5 of the points-based system) and for education providers (Tier 4). The latter can now also use its sponsorship management system to issue confirmations of acceptance for studies (CAS). A voluntary trial period will run until February 2010 - during this time, Tier 4 sponsors may choose whether to issue visa letters or CAS to migrants applying to them from inside the UK.

The guidance can be downloaded from www.ukba.homeoffice.gov.uk/employers/points/sponsoringmigrants/

As from 2 October 2009, employers will no longer need a WRS registration certificate or relevant authorisation document for family workers of those from Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovak Republic, Slovenia, Bulgaria and Romania.

And the shortage occupation list may be amended again. This document, published by the Migration Advisory Committee (MAC), lists jobs for which employers may recruit candidates from outside the EU with minimum restrictions. The MAC is recommending to the government that teachers in special schools, skilled meat boners and trimmers, specialised jobs in the electricity transmission and distribution industry, higher level speciality paediatric trainees and aircraft technicians and fitters be added to the list, but some engineering and construction jobs as well as ship and hovercraft officers be removed. The current shortage occupation list can be found at www.ukba.homeoffice.gov.uk/employers/points/

For further information on the checks you should make for ALL new recruits, see: /docs/legal/righttowork.html For more information on employing foreign workers outside of the EU, see /docs/legal/foreignnationals.html

The Government has announced that it will not implement the EU Temporary Agency Workers' Directive until 1 October 2011. The Regulations that will implement the Directive give temporary staff the same pay and conditions as permanent staff after 12 continuous weeks in the same role with the same hirer. This includes pay, working time, night work, rest breaks and rest periods, and annual leave.

The Government has now published a further, second, consultation paper on the draft regulations - consultation closes on 11 December 2009 and the regulations should be finalised in the first half of 2010.

This second consultation sets out the proposed approach to who should be covered by the Directive, the definition of pay (defined in the draft Regulations as including any fee, bonus, commission, holiday pay or other emolument, including overtime payments and shift allowances but excluding occupational sick pay, pensions, share options, maternity/paternity pay, and bonuses relating to performance appraisal systems), holiday entitlement, duration of working time, the 12 weeks' qualifying period, how the principle of "equal treatment" should be established, liability for compliance with obligations under the Directive, and how disputes will be resolved. For further details see www.berr.gov.uk/consultations/page53060.html

For further information on using agency staff, see: /docs/legal/agency.html

With effect from April 2010, the Information Commissioner (previously known as the Data Protection Commissioner) will be able to issue fines to those who knowingly or recklessly breach the Data Protection Act - although it is not yet known what the size/limit of the fines will be.

Employers could be fined for breach of any of the eight data protection principles. These include the requirement that personal information is fairly and lawfully processed; processed for limited purposes; adequate, relevant and not excessive; accurate and up to date; not kept for longer than is necessary; and kept securely.

If your personnel files don't fully comply with the above, you may like to visit our guidance on document retention - see: /docs/guides/docretention.html and /docs/legal/documents.html. We also offer a data protection policy - worth considering as it's often managers and junior staff who unwittingly breach the DPA by giving out information or by keeping their own private files! See: /docs/pol/data/index.html

Two employment tribunal regions, Cardiff and London East, are planning to trial additional evening hearings between 6-8pm to try to clear their backlog. The evening sessions are expected to concentrate on simpler cases which should be resolved in less than an hour. If the trials are judged a success, then other regions could follow.

151,000 tribunal claims were lodged in 2008/9, with a 15% increase in cases brought by individuals as opposed to groups of employees.

We've all just implemented last month's increase to the National Minimum Wage, and already the Low Pay Commission (LPC) is considering the rates for October 2010-September 2011! The TUC is urging them to recommend raising the adult rate to £6 an hour - an increase of 20p per hour, equivalent to 3.5%.

For more information on the Minimum Wage, see: /docs/legal/minimumwage.html

A few old cases here with which you may be familiar and which went to higher levels:

Discrimination - disability

You may remember the case of Attridge Law v Coleman. Sharon Coleman brought a case of disability discrimination, despite not being disabled herself - she was the primary carer of her disabled son.

This has now been considered by the Employment Appeals Tribunal (EAT) who decided that the DDA could be interpreted so that it covered "associative discrimination" - ie discrimination or harassment of an employee on the grounds of the disability of another person. This brings it into line with other discrimination such as race, religion or belief and sexual orientation where associative discrimination is provided for and well recognised.

Employers should ensure that they do not discriminate against carers or those associated with persons with a disability. However, the duty to make "reasonable adjustments" still only applies to employees who are themselves disabled.

Discrimination - equal pay

And another long-running case, that of Wilson v Health and Safety Executive.

Christine Wilson, an inspector with the Health and Safety Executive, claimed that the HSE's incremental pay structure, which linked pay to length of service for up to 10 years, was unfair.

The European Court of Justice (ECJ) has previously ruled that whilst incremental pay scales related to length of service are indirectly discriminatory against women, they may be justified as a legitimate method of rewarding experience. However, an employer may be required to justify its scheme if a worker raises serious doubts that it is appropriate to a particular job: this is most likely where the job is semi- or unskilled and can be mastered relatively quickly. In this case, Mrs Wilson accepted that performance in her role was likely to improve with experience over the first few years of service; however, she argued that ten years was too long to be justified and that a five year period would be more appropriate.

The Court of Appeal agreed that ten years was too long, and upheld Mrs Wilson's equal pay claim. (It is interesting that this ten year rule could also have been challenged under age discrimination legislation.)

WTR - accrued but untaken holidays

Ms S P Wang was a Chinese medicine professor who worked for a traditional Chinese medicine shop in London from 2001 to 2008. During this time she only took four days' holiday per year - on days when the shop was closed. After her dismissal in January 2008, she brought an unfair dismissal claim and was awarded £14,000 for unfair dismissal, £25,000 in lieu of holiday and meal allowance, plus £769 for two weeks' pay as the employer had failed to give her a statement of terms and conditions of employment - a total of £39,778.

Beijing Ton Ren Tang, the employer, argued that she was only entitled to pay in lieu of holidays for the final year of employment, but the EAT decided that she should be given the full amount of unused holiday - 131.5 days.

Employee status

The Court of Appeal has given more guidance on employee status and "sham" contracts and advised tribunals to focus on the actual legal obligations between the parties.

In Autoclenz v Belcher, valeters working for Autoclenz had contracts which included the right to send a substitute to carry out their work and also a clause suggesting that Autoclenz did not have to provide work to them and they did not have to do any work that was offered. This would normally indicate self-employment.

However, in reality the valeters could not send a substitute and did have to do work that was offered to them. They had been integrated into the company, which exercised a degree of control over them, and were required to notify the company if they were not going to turn up for work. The EAT thought that this was capable of being characterised as 'wholly inconsistent' with their express written term that there was no obligation for them to perform any work, and that the written term did not reflect the true agreement between the parties.

The Court of Appeal agreed and decided that in reality they were in fact employees.

Discipline - don't delay

A warning not to delay if you are contemplating taking disciplinary action!

In Cook v MSHK Ltd and anor, Mr Cook was offered the role of MD with a new record label, and had an argument with his current manager over whether this competed with his duties for MSHK. Following this he was absent from work for more than six weeks with work-related stress. During his absence, correspondence took place between him and MSHK but there was no suggestion of disciplinary action. On his return to work, Mr Cook was summarily dismissed after MSHK alleged that he had breached the implied duty of mutual trust and confidence in respect of agreeing to the work he would be doing in his new role and that he had failed to disclose his "settled intention" to compete with MSHK. His employment contract with MSHK included restrictions on soliciting artists and customers.

The Court of Appeal decided that by not taking any disciplinary action or investigation during a period of six weeks after the alleged breach of contract, and during which time MSHK had made it clear that they considered Mr Cook to be still bound by his employment contract, MSHK had reaffirmed the contract and so lost the right to summarily dismiss him.

So - if someone goes off sick and you are contemplating dismissal or serious disciplinary action, it is worth writing to confirm that you reserve your position in relation to potential disciplinary action in order to reduce the risk of the delay being viewed as an acceptance of the alleged breach.

Dismissal - urinating van driver

We wouldn't normally have covered this one as it's such an unsavoury topic and may upset some spam filters, but in fact we've had a couple of calls to the helpline on this issue recently - hopefully this is not the start of a trend!

Colin Woods, a delivery driver for Home Delivery Network, lost his claim for unfair dismissal. A resident had reported him urinating against the side of his work van, following which he was dismissed. Woods told his managers he had done this in an "emergency" (the full case report goes into further details which you may prefer we don't cover!). The tribunal felt it was "reasonable" to dismiss Woods and said: "Such an action is clearly serious misconduct on the part of an employee as well as probably being a criminal offence. Any reasonable individual must know that he should not urinate in a public place in broad daylight in a built-up area. In the circumstances, the tribunal are satisfied that the company were within the band of reasonable responses in deciding to dismiss Mr Woods."

The Sentencing Guidelines Council has published draft guidance on sentences for corporate manslaughter and health and safety offences. These relate to sentences for organisations, rather than individuals, and for offences which resulted in the death of one or more persons.

The guidance suggests that fines should be calculated in millions of pounds (but with no fixed correlation between the amount of the fine and a company's turnover or profit) and should not usually be below £500,000. Also the new sanction of a "Publicity Order", which forces companies and organisations to make a statement about their conviction and fine, should be imposed in virtually all cases and organisations may be made to put a statement on their websites.

Consultation closes on 5 January 2010 - for further details see www.sentencing-guidelines.gov.uk/

Mental health problems are estimated to cost UK organisations around £26 billion each year, and ACAS considers that the current unemployment rate of 2.47 million may have a further detrimental impact on employees' well-being, resulting in an increase in mental health problems.

ACAS has considered the longer term effects of the recession and is encouraging employers to implement policies and procedures to help cope with mental health issues in the workplace. They recommend raising awareness of stress and mental health, training line managers to spot employees suffering from additional or excessive pressures, and having clear policies and procedures for managing mental health.

For further details, see the ACAS policy discussion paper "From stress to distress: the impact of the economic recession on mental health at work" : www.acas.org.uk/CHttpHandler.ashx?id=2595=0

Recent years have seen a large increase in the number of lone workers, eg those who work away from their organisation's base, at home or during abnormal hours and this can create additional health and safety risks. Many employers issue lone worker devices (LWDs), which are able to transmit location, identity and voice to a monitoring centre to request assistance.

The international standards body BSI has published a Code of Practice, BS 8484, covering the provision of services based on lone worker devices. This suggests that LWDs should be able to be discreetly activated (thus giving no obvious signs of activation to an aggressor), and emphasises the importance of the quality of the audio transmission, essential when assessing the situation, requesting the right response and in preventing false alarms.

For more information on lone workers read our health and safety guide: /docs/hasaw/loneworkers.html We also have a lone workers policy - see /docs/pol/lone/index.html

"A senior colleague would hit me with a ruler when I made mistakes in my work. I did the same job as her, but was paid half as much, and put up with abuse on a daily basis."

A survey by UNISON has revealed that bullying is widespread amongst young women with a third (66%) of the 7151 respondents claiming to have been bullied in the last six months. The survey found that the most common bully is an older woman in a more senior professional position. The most common bullying behaviours include excessive work monitoring and criticism, isolation/exclusion, intimidation, unrealistic targets, public humiliation and insulting jokes, malicious rumours and withholding important information. The effects of the bullying included anger, mental stress, depression, lowered confidence and insomnia.

The "Bully Busters" campaign is calling for the current Dignity in the Workplace Bill to be revised to include an anti-bullying policy, to be enforced by employers.

Sadly, the campaign also found that whilst 73% if the respondents knew that their employers had a bullying policy, 65% said it was not enforced.

If you don't have a policy in place, you may like to customise our template, and then communicate it well to raise awareness of the issue, what behaviours are unacceptable, and what staff should do if they feel they are suffering from bullying - but then a "no tolerance" attitude, rather than a "blind eye" has to be enforced. See: /docs/pol/harassment/index.html

We've added just one new document to the website this month - a guide to managing long-term absence due to ill-health. See: /docs/guides/longtermabsence.html

We'd also be interested in any feedback on the new functionality for premium users which enables them to download and save an html version of any letter or policy or contract they generate on our website. We thought this would be of particular interest to those who have specific company styles, and who needed to reformat documents to meet their own layouts. Comments welcomed!

We may think we've seen the worst of the recession, but the news still mentions numerous large-scale forthcoming redundancies as well as pay cuts or freezes.

• The Office for National Statistics reports that the unemployment rate is now 2.47 million - 7.9%. There were 233,000 redundancies in June to August, down 68,000 on the previous quarter but up 85,000 on the previous year.

• The Chartered Institute of Personnel and Development (CIPD) predicts that up to one in 10 men will be unemployed by 2010. The male unemployment rate currently stands at 9%, but is forecast to rise above 10% by the start of 2010 and peak at around 11% - 1.9 million. During the summer the employment rate of men of working age fell to 75.8% - the lowest since 1994. One in five of those aged 18-24 is now unemployed and almost one in five black men are out of work (more than double the unemployment rate for white British men).

• Personnel Today reported that redundancy predictions made by employers at the start of the year fell well short of the actual number of job cuts made: the predictions were, on average, a third less than the reality. Steps to minimise redundancies had also risen beyond original expectations, such as freezing recruitment (up 20%), redeploying staff (up 19%) and encouraging more flexible working (up 14%).

Back in August, we reported on covert government research investigating whether racial discrimination existed in recruitment procedures. Researchers working for the Department for Work and Pensions sent 2,961 false job applications to employers of varying sizes in the private, public and voluntary sectors.

More details of the findings have been released, and the researchers found that people with African and Asian names (eg Nazia Mahmood, Mariam Namagembehad, Anthony Olukayode) had to apply for 16 jobs before getting an interview, whilst applicants with 'white' names (Alison Taylor and Andrew Clarke) only had to apply for nine jobs before getting an interview. The applicants had similar experience and qualifications and every false applicant had a British education and work history.

Interestingly, the public sector vacancies included in the study, which usually required standard application forms, did not discriminate at the initial stage of recruitment. The DWP suggests that such discrimination might therefore be reduced by the use of standard application forms.

The Government has decided that it will eventually introduce a public holiday that aims to encourage people to do some form of community service on their day off.

A coalition of organisations (the TUC, the National Council for Voluntary Organisations, Community Service Volunteers, Volunteering England and the National Association for Voluntary and Community Action) suggests that 2012 (which includes the Queen's Diamond Jubilee, the London Olympics and Paralympics) would be the perfect time to introduce this new holiday. They also suggest that late October would be best time as it would break the 4-month gap between the August and Christmas public holidays (the longest gap between public holidays).

We currently have eight bank holidays a year, compared with an EU average of 10.9 days. Only Romania has fewer days off.