New York City Commission on Human Rights Clarifies Which Positions are Exempt from Newly Effective Credit Check Law

As we covered in a prior blogpost in May 2015, New York City Mayor Bill de Blasio signed into law an expansion of the New York City Human Rights Law impacting how employers may use credit checks.  The “Stop Credit Discrimination in Employment Act,” which became effective on September 3, 2015 (the “Act”), makes it an unlawful discriminatory practice for employers to request or use consumer credit history for employment purposes or otherwise discriminate against an applicant or employee based on their consumer credit history.  The New York City Commission on Human Rights (the “Commission”) recently released legal enforcement guidance on the Act (the “Guidance”).

The Commission first and foremost clarified its intent of making the Act “the strongest bill of its type in the country prohibiting discriminatory employment credit checks.”  The Act generally aims to prohibit employers from using an applicant or employees’ consumer credit history when making employment decisions, as the Commission contends such practice “has a disproportionately negative effect on unemployed people, low income communities, communities of color, women, domestic violence survivors, families with children, divorced individuals, and those with student loans and/or medical bills.”

The Commission’s Guidance provides a broad definition of “consumer credit history” and clarifies actions that constitute “unlawful discrimination practices,” even if such actions do not lead to a failure to hire or a termination decision:

  • Requesting consumer credit history from job applicants or potential or current employees, either orally or in writing;
  • Requesting or obtaining consumer credit history of a job applicant or potential or current employee from a consumer reporting agency; and
  • Using consumer credit history in an employment decision or when considering an employment action.

Most notably, the Guidance clarifies some of the Act’s nebulous exemptions to the above-listed prohibitions. The employer must prove the exemption is applicable when defending against liability by a preponderance of the evidence.  Among others, the following positions are exempt from the Act: mortgage loan originators; police officers; certain positions subject to a Department of Investigation background investigation; positions legally requiring bonding such as bonded carriers for U.S. Customs, harbor pilots, ticket sellers & resellers, auctioneers, and tow truck drivers; positions legally requiring security clearance; non-clerical positions with access to certain trade secrets; positions responsible for at least $10,000 in funds or assets; and executive-level positions involving digital security systems.

The Commission also cautions employers that exemptions will be narrowly construed.  The employer must inform applicants and employees of any claimed exemption.  Employers should keep a detailed record of their claimed exemptions for five (5) years from the date an exemption is used.  The Commission’s Guidance closes with a warning that it will pursue civil penalties up to $125,000 for violations of the Act, and up to $250,000 for willful, wanton or malicious conduct resulting in Act violations.

In sum, the Guidance specifies which positions are exempt from the Act’s credit check prohibitions and suggests the Commission will aggressively pursue possible violations of the Act. Employers should therefore consider reviewing the Guidance in full before using an applicant or employee’s credit history information, even if for an exempt position.

How a legal compliance audit reduced OSH penalties

A recent decision in the South Australian Industrial Relations Court has shown that an occupational safety and health (OSH) legislative compliance audit can significantly reduce the penalty imposed following an OSH incident by demonstrating a commitment to improve safety.

In Boland v Trading Metals Pty Ltd [2015] SAIRC 30, the respondent was charged with breaching s32 of the Work Health and Safety Act 2012 (SA) after one of its employees lost the top of his right ring finger when it became trapped by a pallet that was being loaded onto a truck by a forklift at his workplace.

Trading Metals entered an early plea of guilty and was found to be co-operative during the investigation and prosecution stage. Further, the court heard that:

  • this was the first offence for Trading Metals;
  • following the incident, Trading Metals took positive steps to address the deficiencies at its worksite; and
  • prior to the incident, Trading Metals had made attempts to address work health and safety issues commencing with a legislative compliance audit”.

Taking into account all these matters, the Industrial Magistrate found that Trading Metals should be penalised ‘in the context of an organisation that had taken steps to work safely’ and imposed a fine of $65,000. This fine was then reduced by a further 40% for the early plea of guilty, resulting in an actual fine of $39,000 (amounting to less than 3% of the maximum penalty of $1.5million).

This case serves as a timely reminder that a company’s decision to undertake an OSH legislative compliance audit will be considered by the court when determining the sum of penalties to be imposed following an OSH incident.

Squire Patton Boggs (AU) has extensive experience in conducting OSH legal compliance audits and preparing gap analysis reports to assist clients in managing their risk.

Why complete an audit?

The main purpose of an OSH legal audit and gap analysis (OSH Audit) is to ensure that your organisation has in place a process to identify and manage workplace health and safety risks and, if required, be able to prove that they have done all things reasonably practicable to provide a safe working environment.  An OSH Audit also enables the ‘officers’ in organisations to demonstrate they have exercised due diligence.

The process of conducting an OSH Audit is a straight forward one and we are able to scope the work and provide a fixed fee for our services.  Upon completion of an OSH Audit, your organisation will have a comprehensive report that will assist you with your risk management program.  We have had a number of clients who have seen the benefit of completing an OSH Audit and we would recommend it as a relatively low cost yet high value return.

UK industry’s response to Government proposals to limit skilled immigration

The Government has commissioned the Migration Advisory Committee to review Tier 2 of the UK’s immigration system “with a view to significantly reducing net migration to the UK”.   On 25 September we submitted our response to the MAC’s call for evidence.  It took into account opinions canvassed from a number of international clients and contacts across a wide variety of industry sectors.  Here is an “executive summary”.

The main measures to restrict both Tier 2 General and Tier 2 ICT visas put forward by the Government for consideration are :-

  • prioritising those Tier 2 migrants of greatest benefit to the UK by reference to their salary level  
  • The general view is that salary levels are far too blunt an instrument by which to determine the issue of “greatest benefit to the UK”. It fails to take into account the range of salaries paid across different sectors and different regions within the UK. It would also favour those businesses which are most able to pay high salaries, not those which are in most need of the specialist skills which a particular migrant might provide. It is of particular concern for clients with international graduate programmes or where the roles require extensive specialist training but are nonetheless not particularly well paid (for example, architecture and engineering).
  • limiting Tier 2 to “genuine skills shortages”, “highly specialist experts” and “high-value roles”  
  • None of these phrases are defined in the MAC’s call for evidence – any use of these terms would require the issuance of clear guidance to employers. It may be argued that the cost, complexity and administrative burdens of the existing Tier 2 procedures are already a significant deterrent to seeking a Tier 2 visa unnecessarily and nowhere in the call for evidence is it suggested that there is a material problem with these visas being applied for gratuitously. The inevitable conclusion must be that employers applying for these visas already consider there to be a genuine skills shortage, that the migrant in question is highly specialist and that the role is of high value to their business. It follows that any significant limitation on the breadth of those phrases would be denying UK industry the ability to hire migrants whom it currently genuinely (and seemingly reasonably) believes that it needs.
  • limiting the length of time for which occupations can be classed as suffering shortages   
  • The consistent opinion of our clients was that an occupation should remain on the Shortage Occupation List until there are no longer any shortages in that occupation. It is fully accepted that roles included on the List should be subject to regular review, but imposing a fixed period appears to be a lazy alternative to carrying out a proper assessment as to whether a skills shortage still exists. Limiting a role’s time on the List to a fixed period would be subordinating the genuine needs of UK businesses to administrative convenience or political expediency and, we contend, a regrettable disconnect between the law and the best interests of the UK economy.
  • limiting the rights to work in the UK of the dependants of Tier 2 migrants 
  • Our clients overwhelmingly indicated that restricting or preventing dependants from working in the UK would deter the main Tier 2 applicant from coming to this country at all. Our estimate is that over 50% of our clients’ employees arriving under Tier 2 bring their dependants with them to the UK. That deterrent effect would therefore be material and could well both exacerbate existing skills shortages and limit employment opportunities for UK nationals.

Overall, the most depressing aspect of these proposals is their obvious inadequacy to achieve their stated objective, or at least not without material damage to UK Limited and UK Plc.  It has to be noted that there were just over 50,000 Tier 2 visas granted in 2014 (excluding dependants) but, of that figure, only around 15,000 were granted under the Tier 2 General category.  Tier 2 General is the only work visa leading to permanent settlement in the UK and therefore the only category of real relevance to net migration (the vast majority of Tier 2 ICT visas allow for a maximum stay of only 5 years and most ICT assignees stay for shorter periods). To put this in context, even if one includes dependants who accompany the main applicant to the UK, Tier 2 General accounted for only around 10% of net migration to the UK in 2014.  If these measures reduce Tier 2 General migrants by, say, 10% therefore, that will have taken just 1% off net migration to the UK.  And even if temporary assignments under Tier 2 ICT are relevant to net migration, the proposals will have a similarly negligible effect. By contrast, according to the Office of National Statistics, the number of non-UK EU nationals employed in April to June 2015 had grown by almost 200,000 over the same period in 2014.

It is sadly impossible to ignore the conclusion that this review is a political sop to UKIP and Daily Mail readers blinded by pictures of dispossessed Syrians and chaos at Calais, and not a serious attempt by the Government to address its overall issues with net migration, a serious case of re-arranging the deckchairs while doing nothing to avoid the iceberg.  The response of our clients is clear – while no one favours the employment of migrants in preference to suitably-qualified local staff, any measure which reduces UK businesses’ access to the best talent, home-grown or foreign, will represent a real threat to our economic prospects.  These measures are not the way forward.

Corporate discrimination claims become a reality in the UK – can this really be what Parliament intended?

Back at the end of July we noted the decision of the Liverpool Employment Tribunal in Gerry Abrams Limited –v- EAD Solicitors LLP that a limited company could claim age discrimination.  That rather surprising conclusion then went off to the Employment Appeal Tribunal which has just found in unassailably clear terms that this is correct – a company can indeed claim to have been discriminated against through the protected characteristic of an individual associated with it

Do have a gander at the link above for more details of the story behind this claim.  In brief, a company supplied the services of an individual to a firm of lawyers.  The firm sought to discontinue that arrangement when the individual reached its normal retiring age.  The company said that this was less favourable treatment arising from the protected characteristic (age) of the individual, and it has now been given a clear green light to proceed with that claim.

The thinking behind this conclusion is very simple.  Section 13(1) Equality Act 2010 says that “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.  We have long accepted without question that person A, often the employer, can be a corporate entity, but it has not really been considered before whether B has to be the same.  The Employment Appeal Tribunal found in the Interpretation Act 1978 a reference to “person” as including “a body of persons corporate or incorporate“.  In addition, since we know that A can be a company, said the Judge, you would expect some clear indication if Parliament had intended that B had to be a natural person.

That was basically it.  Add to that the absence of any required link in section 13 between B and the protected characteristic (it says “a” protected characteristic, not “B’s”) and you can skip direct to companies having protection against discrimination on the grounds of the protected characteristics of any individual.  It appears from the decision that the Judge considered there to be public policy considerations behind this also – if we accept that discrimination on grounds of the Equality Act protected characteristics is bad, why allow it against companies any more than against natural people?

Part of the answer to this may lie in the potential for abuse which this decision creates.  The EAT Judge said that this decision does not give rise to a whole new class of discrimination, but I think with respect that he may under-estimate the problem here.  This particular ruling relates to a personal services company where the individual whose protected characteristic founds the claim is very obvious, but there is nothing in the EAT’s arguments which limits its application to PSCs or prevents its use in the wider commercial world.  The decision opens up to companies essentially the same rights to sue as the law grants to job candidates – if as either a business or a private individual I choose not to do business with your company, that company can sue me, contending that I did not buy from it because I didn’t like what I saw of the age, colour, religion, disability, etc. of its representative.  The EAT refers by way of examples to not using a company because of the perceived race or faith of its workforce, because it had expressed financial support for the Conservatives or an Islamic education body or because its CEO was openly gay.  Actually that is over-simplifying things.  Because of the breadth of section 13, the protected characteristic could easily be that of a sole employee, not a majority of staff  or high-profile figure within the company.

An unscrupulous company could easily become a serial claimant on the same way as those spurious job applicants, firing out allegations of discriminatory failure–to-contract in the knowledge that most companies would sooner pay a few thousand pounds tax free by way of settlement than have to go through the tortured and costly business of baring their whole procurement process in the Employment Tribunal.  It is also not just corporates who may be victims of this – the threat to a private individual barricaded in his house against companies claiming that he would have bought their insurance, dishcloths or double-glazing had the representative not been of an ethnic minority, foreign-accented, female, disabled, etc., is a real one.  Add a “without prejudice” request for £500 to go away and you create a whole new avenue for exploitation of vulnerable people.

This is clearly not what the discrimination legislation was drafted for.  While the EAT’s decision has a certain horrible logic to it, that does not make it right or sensible.  It ought to be possible to conclude that the legislators’ failure to make a specific point is not because it had an express intention to allow or ban it but because the idea that a corporate could be able to claim age or race or pregnancy discrimination had simply been seen as too silly to need explicit provision in law.

Lessons for HR

Unless and until there is some clarification of the scope of this decision in practice, it will be wise to keep the same notes of why you do not continue or contract with a particular company (whether a PSC for an individual or a supplier of HR services such as payroll, recruitment, IT or outplacement) as you would of why you do not recruit or retain a particular employee.  It may also be wise to get Procurement to take the same precautions.

Mind your language – European decision reinforces recruitment best practice

Maybe surprisingly for a country which has traditionally overcome its limited second language capability by slowing its speech and raising its voice, it is not the UK which is in the news for challenging an EU jobs list advertisement requiring candidates to possess certain foreign language skills.

Instead it is Italy and Spain which have taken on a ruling that the list’s requirement for applicants to possess one EU language including a reasonable facility in French, German or English.  The effect of that condition is that if you are Italian or Spanish, you need one of those languages as well to get on the list, but if you have English, French or German, that would be enough by itself.  The EU’s argument in defence is that possession of one of those “key” languages shows that you are most readily employable (a not unreasonable position, one might think, at least based on a 2012 EU survey showing them to be by some margin the most spoken languages in the region), and also that it facilitates correspondence between the candidates and the European Personnel Selection Office responsible for the list (EPSO).

The General Court of the EU was unimpressed.  The requirement was discriminatory against those whose first languages were not English, French or German, it said.  In addition, any correspondent with an official EU body like EPSO has under EU rules a right to communicate and be replied to in the EU language of his choice.  The EPSO language conditions were therefore ruled unlawful.

This is very much a case on its own facts, in particular because of the EU’s own rules about the use of Member State languages in its workings.  It does not mean that all language requests in job adverts are discriminatory.  In particular, it does not in any way prevent employers from specifying bi- or multi-lingual candidates where the need for those skills can be objectively demonstrated.  This might be a product of the geographical location of Head Office, suppliers, actual or intended customer base, etc., or it may be the language of a substantial part of the workforce. In addition, the employer would need to show the requirement for the employee actually to deal with Head Office, suppliers, employees, etc., in that language, to show that the need for those skills is real and not hypothetical or fanciful.  The same applies to any stipulation made as to how good those language skills must be – if you assume that the greater becomes the level of fluency required the more likely you are to exclude natives of other countries, the greater the burden on the employer to  show why it is necessary.

It is not a requirement that the recruiting employer shows that the role in question cannot be performed at all without those language skills.  However, it should be able to show why possession of them would be materially more beneficial to the business than not.  This might include factors such as speed and accuracy of communications, limiting of losses in translation, helping customers and targets feel served by someone who understands them, etc.

Such factors will vary in importance between employers but there is no reason in principle  why possession of a particular language (perhaps even to the exclusion of those who don’t have it) should not be more valued by some businesses than technical competence or satisfaction of other parts of the job specification.  The key to avoiding discrimination claims in those circumstances will be to put a statement of that that importance front and centre as a criterion in the literature around the recruitment.  If is pulled out of nowhere at the last moment to disqualify a person who might otherwise reasonably have seen him/herself as the best candidate, there is obvious scope for the drawing of inferences by an Employment Tribunal that the language requirement is an afterthought only, not a genuine part of the selection decision.

Surprise statistical fact of the day: despite its less than glorious reputation in this area, the UK is not the least competent speaker of other languages in the EU, said that same EU survey.  Gold and silver on that issue go to Hungary and Italy respectively, while the UK shares a lowly bronze with Portugal.

Did You Know?

Last month the Australian Fair Work Commission made its first formal bullying finding since the introduction of new anti-bullying laws at the start of 2014.

The Commission found that two employees of a small real estate business subjected to repeated unreasonable behaviour by a property manager had been bullied at work within the meaning of the Fair Work Act 2009 (Cth). Commissioner Hampton also found there was a real risk that the bullying would continue despite the manager being moved to a related corporation at a different location.

The Commission made orders by consent that the protagonists should not approach each other or attend the other business premises. The employer was also ordered to address the organisation’s culture and “broader conduct within” by establishing and implementing anti-bullying policies, procedure and training.

The Commission’s orders serve as a reminder that when bullying occurs, immediate steps should be taken to address it and to ensure that it does not continue, including undertaking a robust investigation where appropriate. Failing to do so may result in an anti-bullying claim and orders which may negatively impact the employer’s business including its reputation. It can be seen that the Commission’s orders can be both granular and overtly interventionist – while they were by consent on this occasion, that might not be the case next time.

The other clear message from these orders is that addressing instances of bullying in a reactive manner as they arise (here, moving the manager) will not always be enough – a proactive pre-emptive approach to the problem will play much better in front of the Commission and may avoid both the costs and embarrassment of a public injunction to clean up your act.

Independent Contractor or Employee? Good Odds for Australian Wagering Group on Appeal

With the AFL Finals fast approaching, the office tips are bound to get a little heated! However, you may want to think twice before taking too big a punt on whether a worker in Australia is an employee or an independent contractor.

In the recent appeal case of Tattsbet Limited v Morrow, the Full Court of the Federal Court of Australia overturned the Federal Circuit Court’s (FCC) decision, concluding that a woman operating a betting agency in Queensland was in fact an independent contractor despite a number of indicators suggesting that the relationship was that of employer and employee.

What happened?

From 2004, Ms Morrow operated a shopfront betting agency for Tattsbet Limited under four consecutive “Agency Agreements”.  When Tattsbet terminated the last agreement Ms Morrow commenced a claim in the FCC alleging that she had been an employee of Tattsbet.

The FCC identified several factors pointing to Ms Morrow being an independent contractor, especially Ms Morrow’s accounting to the tax authorities, her remuneration by way of invoices, her Australian Business Number, her freedom to employ others, her negotiation of an enterprise agreement with her employees and her payment of GST tax on supplies provided to Tattsbet.

Despite these factors, the FCC found that Ms Morrow was an employee. It was influenced by factors such as the tight control which Tattsbet exercised over the operation of the agency, the provision of plant and equipment by it, the prohibition on Ms Morrow providing services to similar businesses and her contractual inability to make autonomous decisions about the conduct of the agency generally.

Ultimately, however, the FCC’s decision was based on an “entrepreneur test”, the central question being whether the person performs the work of an entrepreneur (i.e. do they own and operate a business?), rather than applying the traditional “multi-factorial” test embraced by the High Court in earlier decisions.

The Full Court bucks the trend

Tattsbet subsequently spun the wheel again and appealed the FCC’s decision to the Full Court.  It successfully obtained an “independent contractor” finding – a welcome outcome after waiting 20 months for the Court’s findings!  The Full Court has still remitted Ms Morrows’ adverse action claim back to the Federal Circuit Court to reconsider on that basis.

In its decision, the Full Court held that the question is not whether the person is an entrepreneur but whether the person is an employee. This involves assessing the totality of the relationship between the parties. The Full Court thought that the relationship between Ms Morrow and Tattsbet involved a number of features that, in combination, compelled the conclusion that Ms Morrow was not an employee. These included:

  • that the last agency agreement was the fourth in a line of similarly-worded agreements each of which clearly stated that Ms Morrow was an independent contractor. Although this was not determinative, it was significant to the extent that it reflected what the parties understood (or at least wanted) the relationship to be;
  • that Ms Morrow was not engaged or paid for her work alone. Rather, she was engaged to operate the agency and was paid by reference to the value of the business transacted there;
  • that Ms Morrow was able to employ others and had reached an enterprise agreement with her employees’ trade union;
  • that her net income was only a third of the gross remuneration she received from operating the agency; and
  • that not only did Ms Morrow collect and forward GST tax to the Australian Tax Office but she also spent significant time and resources meeting GST regulatory requirements.

The lessons learned

Although the Full Court’s decision may provide some comfort to businesses engaging genuine independent contractors, caution should still be exercised. This is because the distinction between an employee and independent contractor is not always clear and will always depend on the specific circumstances. Businesses which engage independent contractors should ensure that agreements are carefully drafted and accurately reflect the actual relationship between the parties on the ground, and not just the label the parties wish to use to describe that relationship.

The Living Wage – Share Your Views

Even before the Chancellor’s announcement of a compulsory “national living wage” in his July Budget, a growing number of organisations had begun to pro-actively consider their own living wage strategy and how best to build it into their longer-term people and investment planning.

For some, this strategy included becoming accredited living wage employers under the Living Wage Foundation’s formal accreditation scheme. For others, concerns about cost and maintaining additional (non-cash) benefits have led to a much more cautious approach.

What effect will the “national living wage” have on all of this?

We Want to Hear From You!

Are you a “living wage” accredited employer? If so, what benefits have you seen from accreditation? If not, what is holding you back? How has the Chancellor’s announcement changed your approach to the living wage?

Attached is a short “tick box” survey addressing these and a handful of other key questions. The survey is quick and easy to complete and should take no more than a few minutes. Responses can be provided anonymously and all answers will be treated in confidence.

We will be hosting a series of sector specific events to discuss the implications of the living wage and how different businesses might need to manage them. The results of our survey will be used to inform those discussions and our wider commentary on this issue.

Your feedback is much appreciated. Thank you.

Take survey now

If you have any questions relating to the new national living wage or would like more information about forthcoming living wage events, please contact Janette Lucas, Labour & Employment partner, on +44 20 7655 1553, or your usual Squire Patton Boggs contact.

Mental health in the City workplace – how are you doing?

No job within the Square Mile is immune from its own stresses or strains.  As the City of London Corporation’s Business Healthy blog notes (, the recent economic climate has exacerbated these through the invariable requirement that businesses reduce their cost base without adversely affecting their profits.  Undoubtedly, this drive to do more with less has caused a rise in the number of mental health issues faced by City employees.  Sadly, the same drive has also made employees fearful of disclosing these issues in case they find themselves in the next round of cuts.

As Poppy Jaman, CEO of Mental Health First Aid England has identified (, hiding a mental health issue does not help the employee, his line manager or the employer: the employee subjects himself to further stress by trying to hide the issue; the line manager has to manage an employee who is unlikely to be fully productive, but who is also reluctant to engage on the reasons; and the employer is left with an employee in whom it has potentially invested a great deal of time, training and resource but who is not repaying that investment.

This scenario is ‘presenteeism’, where an employee turns up to work but fails to carry out his role at 100% because of some physical or mental health condition – one survey estimated the cost of presenteeism to UK businesses as in the region of £15bn per year, so it is a significant issue.  Of course continued presenteeism is unsustainable, with the common end result that the employee becomes absent from work altogether or that the employer commences performance proceedings, neither of which benefits anybody.

It’s clear, therefore, that not talking about their mental health means that employees are less likely to get support – this lack of support then means that they are more vulnerable to worsening mental health, poorer performance, possible absenteeism and potential dismissal – it’s a vicious circle.    So why are employees so reluctant to seek help and speak out?

Despite the best efforts of campaigns such as Time to Change and charities such as MIND and Rethink Mental Illness, the fear of being stigmatised due to mental illness remains a real one.  Although some employers, often due more to ignorance than malice, may well have concerns about employing someone with a mental health issue, the majority of employers that we assist take a more enlightened approach.  The key thing to remember is that for most employers in the City the employees are the key assets of their business – especially when you consider the amount invested in recruiting, training and retaining them.  In the same way that an employer would look to work with an employee with physical issues, employers should (and, for the most part, do) try to find ways to assist and retain employees with mental health issues.   They are both just health issues.

How can employers help?

The first way is to recognise that we all have mental health, whether good or bad.  Using myself as an example, when I come into work basking in the warm glow of a smile from my five-week old daughter as I left the house, it is fair to say that I have good mental health.  Equally, when I arrive tired and irritable after my same daughter has given me another sleepless night, it’s fair to say that my mental health is not in quite such a good place.  Whilst this example might seem to trivialise the far more serious mental health problems suffered in the workplace, it is not intended to do so – it is purely used to demonstrate that our mental health affects us differently every day

Secondly, employers can open a conversation.  Although they may not consciously do it, our managers friends and colleagues inquire after our mental health, simply by asking “How are you?”  The real key, as identified by campaigns such as Time to Change, is whether they listen to the response and how they act on that response.  If employees feel that they are listened to and that their needs are heeded at a more general level by the employer, then this will go a long way to making them comfortable in disclosing any mental health issues that they may have.

Some may view this as a utopian vision of the workplace.  However, that view is formed from hard experience earned litigating discrimination cases for both employers and employees, as well as personal experiences of struggling to help friends with mental health issues.  In nearly every case, both personal and professional, you can identify a point early on where, if someone had just opened the conversation, the situation might have had a happier outcome (and in the professional cases, also avoided costly litigation).  Over the last few years we have run a series of seminars with mental health trainers, occupational health and experienced HR staff in which attendees can share their stories and best practice and are given a practical ‘toolkit’ to engage with employees about their issues.  These have led to better early identification of potential issues by our clients and a concurrent decrease in the number of disability-related cases that we deal with.

Thirdly, mental health is not just an HR issue or an engagement issue – it is a whole-company issue.  The next step for employers is to engage and train not only HR but also line managers and Board members in mental health support, as these are the people who may have the first opportunity to identify an employee’s problems and to open the conversation.  The positive signs are that many employers in the City are taking this step – just as they saw in time that physical health is a key driver of employees’ production, they are now recognising that mental health is the next frontier, be it through mental health training for managers, signing up to the Time to Change or Rethink Mental Illness campaigns or through other, innovative ways of measuring employee’s mental health.  Adding these visible signs of support to employee engagement programmes can only be a good thing.  It is sure to lead to decreases in presenteeism and saved employment costs (in terms of recruitment, training, management time and legal costs).

Considerations for employers when setting up an external whistleblowing hotline

This post is the product of an interview with Grant Stevens, Head of Sales, Expolink Europe Ltd  

What are the main considerations for employers when setting up an externally-managed hotline for the first time?

Like any worthwhile venture, whistleblowing hotlines benefit from forethought and planning. A great deal will depend on the size of your business, the nature of your operations, the countries you operate in and what risks your business and employees are exposed to. We advise clients to consider not only their current risk profile but also what the shape of their business might be within the next five to ten years. International data protection laws vary enormously (and some border on the positively cryptic) so a full analysis of the countries you operate in and intend to operate in, is vital.

A second geographical consideration is the language-related services you require; again taking into account how the profile of your employees and business might change. Where possible, live translation services should be offered as it is not always possible for a caller to make contact at a later point. The service must be as accessible as possible, ideally including 24/7 availability and where country law allows, it should be confidential.

Employers should also seek to identify the goals for their hotline, since this may affect its final form. For most, it is a combination of protecting employees, ensuring good governance, compliance with legislation such as the Bribery Act 2010 or requirements from industry regulators like the FCA, and mitigating risk to their business in general.

If the hotline will complement current internal reporting channels, communication of these processes and employee expectations must be managed well. Some clients opt to have separate lines for HR-related grievances and reports of, say, financial misdemeanour and although nothing terminal usually happens if the two are confused by the employee it is still preferable that guidance is issued as to how to go forwards in any given case.

Employers need to consider the potential barriers to use of the whistleblowing hotline and how these will be overcome. Are there any local laws, customs or cultural considerations that should be considered? Certainly, there are territories, particularly post-communist countries or those that have experienced aggressive regime change where expressing concerns about potentially unlawful colleague behaviour would be a very sensitive matter indeed.  In these scenarios, communication needs to be handled carefully and even terminology may be adjusted, using “Speak-up” rather than “Whistle Blowing” for example.   

How should businesses assign responsibilities for implementing and managing the hotline?

Again, this is very much dependent on the structure and scope of your business. Some organisations have a whole department dealing with internal audit, compliance and ethics-related activity. Others may have only an Ethics Champion or it may fall under the remit of Human Resources.

After roll-out, the success of the hotline very much depends on engagement and communication with the process. We advise employers to enlist support from different centres of the business, whether that is departmental or geographical. All stakeholders must understand the importance of their role in the success of the hotline and be accountable.  The key issue here is substance rather than form – it does not much matter where responsibilities lie so long as the relevant person has both the will and the internal clout to make others act appropriately when the whistle is blown.

How can businesses ensure the hotline is communicated and marketed effectively throughout the business?

Assigning responsibility for the overall communication of the hotline to one of your Ethics Champions is a good idea, as is making awareness of the hotline part of staff inductions. Information given at this stage, however, is likely to be only part of a whole raft of other important resources the new starter is exposed to at the same time so, while this stage is relevant, other tools should be used to ensure awareness remains fresh.

Over the years we have noted success with collateral such as mouse mats and pens with the hotline details inscribed. Posters can be another marketing tool but they should ideally stand out from the rest of the notice board. Wallet cards (about the size of a credit card) are one of the most effective tools as staff can keep these as a handy reminder.

Company intranets are an obvious and effective platform but again, visibility is key, so try not to lose your hotline processes in reams of small print. If you are unsure of awareness levels or concerned that there may be barriers to usage, a simple anonymous survey can help.