The Insider - May

HE INSIDE ARE YOU GETTING ENOUGH SLEEP?

DOES HR NEED TO CHANGE RECRUITMENT PROCESSES FOLLOWING EAT RULING?

An employment tribunal ruled last year that there was no other identifiable reason why Brookes had failed the test other than her disability and that, by asking her to take the test as it stood, the GLS had indirectly discriminated against her, treated her unfairly and failed to make reasonable adjustments to take her disability into account. The GLS appealed but the EAT upheld the original ruling and refused permission to appeal the case any further. Emma O’Leary employment law consultant for the ELASGroup says: “This case is important because tests such as those carried out by the Government Legal Services i.e. psychometric testing are prevalent methods of recruitment across all industries. Said to assess a candidates particular skills in certain areas, employers find this scientific method of considering suitability for a role more precise. Although this case is important, it seems quite obvious that certain candidates may be disadvantaged by these tests – such as those with dyslexia and, as in this case, Asperger’s.

An Employment Appeal Tribunal (EAT) has ruled that a woman with Asperger’s syndrome was discriminated against during the notoriously competitive recruitment process for the Government Legal Service (GLS). Terri Brookes, who represented herself, was asked to take a situational judgement test as part of the first stage of her application. She had requested to be allowed to submit short written answers to the questions as the multiple-choice format of the test placed her at a disadvantage. While the GLS did make time allowances they did not allow an alternative test format, arguing that the testing was a proportionate method for determining the best candidates for the position. Brookes took the multiple choice test in July 2015 but scored 12 out of a possible 22, 2 less than the passing mark of 14 and her application failed. Evidence showed that of the small number of applicants who had declared themselves as having ASC or Asperger’s, only one had passed the test.

if you use any form of testing method such as psychometric then you should consider whether an alternative should be deployed in the event that the candidate is unable to complete such tests, or unable to complete them in the exact method you would normally require. This does not necessarily make that candidate unsuitable for the role they are applying for. If you are unable to make reasonable adjustments, your reasons must be justifiable and stand up to the scrutiny given in this recent ruling. Whilst it does not mean the end of psychometric testing by any means, it does mean that employer should ensure disabled candidates are not disadvantaged to the extent that they are unsuccessful in their application purely because their disability did not allow them to perform as well in the tests as a non disabled person.”

“It highlights the importance of considering reasonable adjustments for disabled candidates and if your recruitment process includes testing such as this, or any other method that could be considered a PCP, it is imperative that you can demonstrate that the PCP is a proportionate means of achieving a legitimate aim if it’s capable of putting a particular group at a disadvantage. This case would not have failed if the GLS had allowed the Claimant to answer the questions in a different format than the multiple choice they insisted upon. “It might not be necessary to review recruitment processes overall, however, companies should ensure that on application, a candidate is asked whether they require any reasonable adjustments. If they indicate that they do, then the employer should enquire what is required. It might be as simple as having regular breaks during the interview, however,

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HOW DOES A FOOD BUSINESS COMPLY AND GET A 5 STAR FOOD HYGIENE RATING?

Mike Williams, director at the UK’s leading food safety consultancy STS, explains the three fundamental areas an EHO will look at during an inspection and how getting these areas right means food businesses will have little trouble achieving a 5* food hygiene rating:

1. CONFIDENCE IN MANAGEMENT: As well as operator competency, this gives careful consideration to documented food safety management systems (HACCP), record keeping and the general approach to food safety demonstrated during inspection. A properly documented food safety management system will fully reflect the processes followed in a kitchen, identifying any hazards and the requisite controls in place to ensure the hazard does not affect the food served. Some of these controls will be classed as critical (CCP’s) and are usually the ones which are monitored e.g. fridge storage temperatures or the end cook temperatures of foods. Your EHO will look to see whether you have identified the CCP’s and that you have put in place and are maintaining suitable records to demonstrate daily control. Remember - these records must reflect what’s going on in the kitchen. Your EHO will also look at how well trained your staff are. Food hygiene training is essential

in any food business and the Level 2 Award in Food Safety is the accepted standard. However times are changing and EHO’s are not just looking for certificates; they want to see staff demonstrate their understanding of food safety and, more specifically, the food safety controls detailed in your food safety management system. If you get training right then your food standards will be much better, and your EHO will recognise this. Management record keeping is more than just temperatures and training certificates; due diligence allows a business to demonstrate they are doing all they can to maintain food safety. Proving suitable opening and closing checks are conducted daily is a good way of showing that activities such as stock rotation have taken place, suitable supplies of cleaning chemicals are available and hand wash basins are suitably stocked. If your EHO sees that your activities are backed up by good record keeping then you will invariably score well in this section.

2. STRUCTURAL CONDITION (INCLUDING CLEANING): If you make sure that basic structural surfaces, walls, floors and ceiling are finished to a good standard, all equipment is suitable to the operation and in good condition, then you’re off to a good start! Remember - equipment needs servicing and it’s important to be able to prove you have plans in place for upkeep. Don’t wait for your EHO to ask, if you have processes in place be sure to tell them. Cleaning is a rather obvious aspect of food safety and the easiest for an EHO to identify when businesses get it wrong. Accurate cleaning schedules help improve and maintain your standards; a good schedule will identify all cleaning tasks, frequency and what equipment/ chemicals should be used. It’s really good practice to ensure the person completing each task signs to say they’ve cleaned then a

supervisor should verify. Successful businesses only allow a supervisor to sign off the schedule as completed once they’re happy that cleaning standards are suitable. It’s essential to ensure you have the right tools to clean your kitchen. At the minimum, you should always have detergent, sanitisers, antibacterial soap and heavier cleaning chemicals e.g. a degreaser available. Sanitisers must be made up and ready to use before food preparation starts and it’s important to check that they conform to BS EN 1276 as your EHO’s will look for this. You also need to ensure you have suitable cloths, mops and buckets. Remember - cleaning equipment should be kept clean at all times so rinse out mop heads and buckets after each use and never leave a mop in dirty water.

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ARE YOU GETTING ENOUGH SLEEP?

3. HYGIENE STANDARDS: This takes into account elements including cross-contamination control, personal hygiene standards and temperature control, commonly demonstrated by practical and physical implementation of your food safety management system procedures. Controlling cross-contamination requires some thought. There are some basic areas e.g. ensuring raw meat and fish are always stored below or separately from ready to eat foods, or using colour coded chopping boards, but cross-contamination control also means ensuring you take steps to avoid contaminating foods with any of the 14 known allergens. Remember – allergen advice needs to be available to all your customers and you must never guess at the content of foods! Maintaining temperature control during storage, cooking/reheating, cooling and service is of vital importance. If you can prove that you know your temperature targets, have the right tools e.g. working probe thermometer and antibacterial probe wipes, and keep thorough records of temperatures then you are compliant. EHO’s also look at food cooling with increased detail. It’s essential to ensure you cool food as quickly as possible, although there’s a common misconception that you only have 90 minutes in which to cool food to below 8°C. That is the case with blast chillers but if you’re manually cooling food with ice baths or walk-in fridges, then you actually have up to 4 hours. This doesn’t mean take 4 hours every time; you should take as many steps as possible to ensure

that food is cooled quickly. Cutting food into smaller portions, placing liquids into shallow containers and placing food on ice baths or in cold areas of the kitchen are all good practices to speed up cooling. Check and keep records to demonstrate this, in line with your other temperature records. Personal hygiene is hugely important for maintaining food safety. EHO’s will always be looking to see whether staff wash their hands, and how. Ensuring proper hand washing should be part of any food handler’s induction training but regular checking and refresher training helps. It goes without saying that hand wash basins have running hot and cold water and are stocked with antibacterial soap and paper towels. Finally, it’s critical to ensure that your premises are pest free; the majority of prosecutions carried out by EHO’s are pest related. It’s not difficult to keep your food business free from rodents and insects. A basic control is ensuring that they cannot get in in the first place and keeping your kitchen clean won’t just satisfy your EHO – it will ensure pests have nothing to eat. It’s good practice to appoint a recognised pest controller to monitor conditions in your kitchens and stores; they should visit about 8 times a year and be available for emergency call outs if unwelcome intruders are spotted. Keeping contamination controls in place, looking after personal hygiene standards, keeping your premises pest free and ensuring that all your temperature controls are in place will keep your food safe and your EHO happy.

Researchers from the Rotterdam School of Management say that sleep related disruption can cost billions in lost productivity, with even a single night’s loss of sleep causing a lack of self control. The study found that lack of sleep can cause irritability and other unwanted behaviours , such as rudeness or even increasing the likeliness of workplace theft. Danny Clarke Operations Director for the ELAS Group says: “For years now, research has shown that driving whilst tired can be as dangerous as drink driving. Sleepiness or fatigue has been shown to affect short term memory and is linked to reduced reaction times and poor judgements. Tiredness is also known to affect vision, concentration and focus. “In addition to affecting motivation and performance, tiredness is also known to affect people’s moods and make them more aggressive. It can particularly affect night workers who not only suffer from reduced sleep due to shift patterns but are also at higher risk of diabetes, poor diet and mental health conditions. “If you want to give yourself or your company the best chance to create a new product or service, then get your employees to sleep well! Research shows that high level innovative thinking and improved problem solving abilities are linked to a good night’s sleep and companies that place importance on sleep are likely to reap the benefits.”

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SUPPORTING EMPLOYEES DURING RAMADAN

An employee has asked to work different shifts than normal during Ramadan - do I have to say yes? You are not obliged to allow an employee to work different shifts but you should consider the request in a reasonable manner and accommodate it if you can. Ultimately if it’s not possible for them to change shifts for business reasons then you can say no. If you are unable to grant the request then you should provide reasons for the refusal. If I say no to time off requests for Ramadan will I face a discrimination claim? Not unless you have refused the request unreasonably i.e. you have no genuine reason for refusing the time off and/or have deviated from your usual annual leave rules. You have the right to refuse requests if you have clear business reasons for doing so. Several of my employees are fasting for the month of Ramadan, what can I do to help them and ensure their productivity remains the same? You should ensure that all your employees receive adequate rest breaks. Although there is technically no obligation, you could consider allowing increased breaks for the period of Ramadan. Some employees may wish to use their rest breaks to pray or break their fast; others may request to change break times in order to coincide with daily prayer times. All requests should be considered as fairly as possible. We recommend being as flexible as possible, as long as the request does not interfere with your business requirements.

I run a transport company and some of my employees are fasting. Do I need to do anything differently this month? Speak to your employees to ensure they feel supported during Ramadan. You might want to consider doing a risk assessment if their work is manual or they drive for work as they may be feeling weaker, have less energy or be fatigued due to their fast. Perhaps you could see if amended duties will be necessary and/ or possible during this period. Some of my employees have asked for time off over Eid but are unable to give me exact dates. What should I do? Eid is the festival that marks the end of Ramadan. Because Ramadan is part of a lunar calendar rather than a Gregorian one, the actual day which Eid falls upon is determined by the sighting of the new moon and, therefore, it’s not always possible for employees to be specific about which day/days they would like to take as leave. As an employer you would need to be a bit flexible with this. It might be that employees request two days of annual leave to cover the two possible dates but then only end up taking the one day that Eid actually falls on. Do I have to consider other religions and their festivals? Yes. The key is to apply policies equally and consistently. Whilst each request for time off or special arrangements will turn on its own circumstances andbusiness reasons at that time, the best approach is to ensure a neutral policy. There is no need to be afraid of discrimination claims when you act reasonably, fairly and in line with legitimate business reasons.

of sleep during Ramadan can be a concern. With evening prayers not starting until around 9pm followed by the iftar meal, late nights are a part of Ramadan. Employers should take this into consideration when scheduling early morning meetings. Depending where in the world you are, the length of the daily fast can vary. Here in the UK it is expected to be around 18 hours so it’s important to be mindful and offer support to employees who are observing the fast. A key concern for employers is that their business continues to run smoothly while employees are fasting, or working reduced hours. If it is anticipated that Ramadan will be a busy month, employers should take steps to ensure adequate staff cover and/or make arrangements for flexible working hours. Flexibility, understanding and consideration are the keys to enabling your employees to observe Ramadan whilst maintaining productivity. Are my employees automatically entitled to time off over Ramadan if they request it? There is no automatic entitlement for time off due to Ramadan. Your employees should submit their holiday requests in the normal way and you can authorise them according to your usual rules. It would be reasonable to consider giving an employee unpaid leave, if you can accommodate it operationally.

Ramadan is the holiest month of the Islamic calendar; it is observed by Muslims worldwide as a month of fasting to learn about discipline and self-restraint. This year the Muslim holy month of Ramadan is expected to begin on Saturday 27th May and will last until June 24th; the date varies every year depending on the first sight of the new moon in the sky and is often not known until a day or so before it is expected to happen. The time when Eid starts also depends on when the new moon is seen. In the Arab world, Ramadan brings shortened work hours for most employees but in the UK it’s often business as usual. ELAS employment law consultant Emma O’Leary takes a look at how employers can help support their employees throughout the month. Most Muslims will avoid food and water between sunrise and sundown, meaning employees who are observing Ramadan are likely to have more energy earlier in the day. A fair and reasonable employer might consider offering flexible working as an option for the duration of Ramadan. You could try to organise meetings and conference calls in the morning when employees are likely to be at their most alert, or allow them to work part days in the office combined with remote working later in the day – allowing them to complete work from home after they have broken the fast. However, you should also be mindful that lack

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W : WWW. E L A S . U K . C OM Employers often use a procedure like the one they use when employees request holiday when it comes to obtaining permission to take TOIL, making sure employees keep a record of the time they have taken off in lieu. This can then be reviewed by their employer on a monthly basis. For more information call our team today on 0161 785 2000 workforce aware that abuse of such a scheme could result in a disciplinary offence and, in severe cases, possibly dismissal. Having a policy and procedure in place will help employers to ensure that the rules regarding TOIL are adhered to. A good policy and procedure would stipulate that all TOIL is to be agreed with management before it is taken, and detail the consequences if they fail to obtain authorisation. TOIL in exchange for the extra hours they have worked last week. What are they asking me for? One of my employees has asked for some

Time Off In Lieu (TOIL) is commonly used as a way of compensating employees for working extra hours, where no overtime pay is available. TOIL allows staff to respond flexibly to unexpected service or personal needs and covers the occasional need to vary when services are provided. In addition, if a staff member has an unexpected commitment in their personal life, time off can be agreed and made up at a later date. Employees should not use TOIL as a way to build up time to get extra days off, and the building up of TOIL should rarely happen. It is generally used to ensure that employees can take back the time that they spend when undertaking additional hours of work or activities, such as attending meetings or conferences. It also allows employees to respond to crises in their personal lives. The success of the scheme is based on trust. Employers should make their

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