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Fri 19th Feb 2016 - Friday Opinion
Subjects: The scream test, the policing and crime bill, and why employers need to know what’s up with WhatsApp
Authors: Paul Chase, Michelle Hazlewood, and Robert Liddiard

The scream test by Paul Chase

“I sense a huge disturbance in the Force”, said Obi-Wan Kenobe – immediately after the Empire had used the Death Star to destroy an entire planet. From the wailing and gnashing of teeth amongst health lobby cranks over the past couple of weeks you could be forgiven for thinking that something of similar consequence had happened. What could it be? Well, two things have really upset them: firstly the enactment, after a trial, of an anti-sock puppet regulation prohibiting charities from using taxpayers’ money, received from government, to lobby government; and secondly, the announcement the government will not, after all, introduce a sugar tax.

Forgive me if I sound just a little smug, but the health racket has always applied something called the “scream test” to policies directed at our industry: if the policy makes Big Alcohol or Big Food scream, then it must be bad for “them” and good for “us”. There’s nothing like getting a dose of your own medicine boys!

So what has been the response to these measures? According to the Daily Telegraph, campaigners have reacted with fury to reports the government has rejected the proposal for a sugar tax of up to 20%, preferring instead to agree “voluntary measures” with industry to reduce sugar content of foods, but with the threat of a sugar tax if they don’t. Tam Fry, spokesman for the National Obesity Forum, said: “The decision must be reversed or it will be more proof that the government is in the thrall of the food industry and the sugar barons will have won yet again.” And he continued: “NHS chiefs know full well that the combination of child and adult obesity could topple the UK’s most cherished institution.”

No it won’t Fry! Actually both adult and child obesity rates have stabilised recently and the whole moral panic over obesity is being kept going by projections about future obesity rates, which are as unlikely to materialise as the previous ones. “This could be the end for the NHS” is the perennial cry of those who want to frighten us into state control of diet, or else the national religion will fall over. 

And then there is the response of Graham MacGregor, chairman and founder of Action on Sugar. He’s so miffed he’s threatening to take his ball back and go and play for another country: “We won’t stop and if the UK don’t want to stop doing it (sic), we will go to another country like Argentina or Chile, which are much better organised in terms of public health and nutrition.” Really MacGregor, really? General Galtieri and General Pinochet must be turning in their graves!

And what of nanny in residence Sarah Wollaston MP, chair of the Commons health select committee? Well, she’s not happy either. She’s been locked in a battle with Jeremy Hunt, the health secretary over the sugar tax and she’s even less pleased about government ending taxpayer funding of faux charities. She fears this will tip the balance even more in favour of Big Food and away from public health. Well, Wollaston, quite a lot of people feel the imbalance has been in the direction of so-called “public health” for far too long and this is a much-needed correction. And much of the credit for this goes to the Institute of Economic Affairs, and its director of lifestyle economics Chris Snowdon, for researching and campaigning on this issue. 

The actual phrase that will be inserted into all new and renewed grant agreements reads: “The following costs are not eligible expenditure: payments that support activity intended to influence or attempt to influence Parliament, government or political parties, or attempting to influence the awarding or renewal of contracts and grants, or attempting to influence legislative or regulatory action.” Alcohol Concern please take note! No doubt it will go scurrying off to Big Pharma for some more funding, but it didn’t take long for Jackie Ballard its chief executive, who’s only been in post for two years, to hand in her notice now the ship may be sinking. So there’s a vacancy. I think I might apply – no, only kidding!

Of course, “public health” can always point to the chief medical officer’s revised drinking guidelines as a triumph can’t it? Well, no – these have been met with almost universal derision and a storm of criticism. Reportedly the Department of Health is distinctly rattled over the response to the new “low-risk” guidelines and public support from ministers for Dame Sally Davies’ piece of science-denial has been conspicuous by its absence. And the “there is no safe level of drinking” mantra has quickly been followed by “there is no safe level of sun bathing” – in sunny February! And Dame Sally’s two pieces of advice: “When reaching for a glass of wine, do what I do and ask do I want this glass of wine or do I want to increase my risk of cancer?” and “Use six teaspoons of sun cream” before going out into the sunshine. Oh dear!

All we need now is formal confirmation from the Scottish courts in a few weeks’ time minimum pricing is dead and I shall throw a party!
Paul Chase is a director of CPL Training and a leading commentator on health and alcohol policy

The policing and crime bill by Michelle Hazlewood

The policing and crime bill was subject to its first reading in the House of Commons on 10 February 2016 and seeks to cure a number of problems and anomalies within the current licensing legislation. Perhaps the most well-known of these is the issue of interim steps (which ought to be welcomed by licensing practitioners and operators alike) and licensing authorities will obtain the ability to review personal licences. However, in the past licensing cures have not always had the intended result and having reviewed the bill we have some concerns.
 
The bill looks to amend the legislation in relation to interim steps arising from a summary review of a premises licence. The concept of interim steps was introduced so as to allow rapid assessment of the impact of a premises on the licensing objectives where it was associated with serious crime and/or disorder, often the outcome being the suspension of the premises licence pending a full review hearing. Unfortunately, S.53A Licensing Act 2003 did not clearly stipulate whether the interim steps should: 
– remain in place after a review hearing; before the review decision takes effect (21 days)
– until any appeal hearing
– if the interim steps can be amended
– and/or withdrawn by the licensing authority.
This is an issue that has split practitioners, authorities and courts and clarification from the government has so far been elusive.
 
The impact assessment issued by the Home Office states: “We would also like to ensure that businesses subject to summary reviews are treated fairly and any interim steps that remain in place after a review hearing are proportionate, including when they remain in place for extended periods when an appeal is lodged by either side.” 
 
Three different options are proposed. The first to do nothing, which we would hope is not adopted as it leaves everyone in the same predicament. The second is for the interim steps to automatically cease after the review hearing. The review decision would then take effect 21 days thereafter once the period for lodging an appeal has expired (as per a standard review application). However, also built into this option is the right for the licensing authority to decide at the review hearing the determination should have immediate effect (removing the 21 day grace period). However, a right to an expedited appeal to the magistrates’ court, which would be open to all parties that had taken part in the review proceedings would also be available. Even on an overview, this is complex!
 
The third option (and the one noted as preferred by the Home Office) requires the licensing authority to review the interim steps at the hearing and decide which if any, of the steps imposed should remain in place until the 21 day appeal period has expired or any appeal is determined. In this instance, after a review hearing, the police and licence holder would have a right to an expedited appeal to the magistrates’ court in relation to the interim steps. There is an indication the expedited appeal should be heard within 28 days. Having reviewed the flow chart helpfully provided by the Home Office, option three in reality appears as complex as option two. The unintended consequence of the ability to immediately appeal is where there is a suspended licence you would likely have two appeals. The first immediately after the review hearing against the interim steps and then potentially a second appeal within the standard 21 day period against any other elements of the decision, such as removal of the designated premises supervisor. 

This will escalate the costs borne by all parties and questions must be asked as to which appeal decision will take precedence and there must be a danger of magistrates and district judges taking a pragmatic view that both appeals should be listed together and the expedited element thereby being lost. The best result for the operator would have been for interim steps to automatically cease at the review hearing and then for any decision made at that hearing not to take effect for 21 days or after any appeal is determined ie mimicking the standard review procedure. Disappointingly, this was not even an option for consideration and the bill itself as drafted will bring into effect the third option.
 
The bill also proposes to allow licensing authorities to suspend or revoke a personal licence. Currently, if a personal licence holder commits a relevant offence, the sentencing court can suspend or revoke their personal licence but in reality this rarely occurs. Unlike Scotland, the English and Welsh licensing authorities have no power to commence a review of a personal licence.
 
Under clause 132A, the bill proposes to provide this power on conviction for any relevant or foreign offence or a requirement to pay an immigration penalty. The process is commenced by the licensing authority giving notice to the licence holder and inviting them to make representations regarding the situation. At this point, we would expect to see a mechanism setting out a process of a review hearing, which might include the allegation of the licensing authority, an opportunity for the licence holder to respond and input from the police with a caveat the evidence should relate to the licensing objective of preventing crime and disorder only. In fact, the bill provides no opportunity for a hearing, which must be contrary to natural justice and potentially human rights’ legislation as the net result could be the removal of someone’s livelihood. Further, there does not appear to be within the clauses, any back reference to the test for securing the personal licence in the first place and very worryingly references are made to the licensing authority taking into account “any other information which the authority considers as relevant”.
 
One wonders if an unintended consequence of this section is for the reintroduction of the fit and proper person test! The proposed provision lacks the clarity found in the Licensing (Scotland) Act 2005, which provides a clear process for review of a personal licence and also defines the roles of authority that issues the licence and the authority where the licence holder now lives and/or works. Everyone within the hospitality industry is interested in light bureaucracy but not so as to create a disadvantage to the individual who may lose their livelihood.
 
The policing and crime bill provides an excellent opportunity to cure the matters discussed above and also look at what constitutes a relevant offence, amend the definition of alcohol to include powdered and vaporised alcohol and to remove the requirement for guidance to be laid before Parliament when it is updated. Our hope is that those drafting the legislation take time to secure the clarity desired by the Industry and licensing practitioners and consider the potential consequences, which will flow from the proposed clauses within the bill.
Michelle Hazlewood is a partner at licensing solicitors John Gaunt 
 

Why employers need to know what’s up with WhatsApp by Robert Liddiard

Facebook and WhatsApp have been widely embraced by frontline staff across the UK. Both social platforms are free to join, intuitive to use, and work really well on mobile. Without the need for funding or permission from head office, workers can socialise and solve local problems (such as swapping shifts). However, the European Court of Human Rights has now ruled use of private messages for business purposes can give employers the right to “snoop” in some circumstances.
 
The Bărbulescu case highlights the issue. An employee set up a free e-messaging account for use at work. He also used that account for personal conversations with his wife during work hours. He was aware his employer’s policies prohibited this. The employer produced a transcript of the messages in a disciplinary meeting. Some of those messages involved private matters of sex and health. The courts ruled the employer’s investigation was acceptable. The case attracted an enormous amount of negative press, with European journalists questioning the ethical ramifications of the decision.
 
Now imagine the following scenario in your own business: inappropriate messages are sent via a private chat platform. The incident involves two of your employees. One of your managers created the group, which digitally linked the parties. The victim comes to your HR team demanding disciplinary action.
 
Traditionally, if the above incident happened in the workplace the process of collecting evidence would be straightforward. In a digital world, this is no longer the case, and employers must tread a careful balance between necessary access and publically-frowned upon snooping.

Seasoned HR leaders who think they’ve seen this all before, and are adequately covered by policies and contracts, must take note. Managers, often equipped with company-monitored devices, are already subject to strict information security policies and generally also a wider obligation not to bring the company into disrepute. But the water gets murkier for lower-level managers and frontline staff who are more likely to use their personal devices and regularly mix business and personal social media. It gets murkier still when companies encourage mixed use and unacceptable behaviour then occurs. Very few employers are well prepared to deal with “e-misconduct” between lower-level staff on private networks.
 
Now is the time to limit business risk, whilst also embracing the benefits of effective online communication with and between frontline staff. Employers need to create legitimate “safe spaces” for work communications, which are fun and easy, but where everyone understands their rights and responsibilities. In the fast-moving food and beverage sector, it makes sense this is via the employee’s mobile device. Within employer-owned chat apps, social features can be combined with features designed specifically to deliver operational excellence. 
 
We’re currently piloting such an app with one of London’s fastest growing casual dining chains, exploring financial and service benefits that can be generated via employee engagement. Improving the efficiency of shift swapping, menu training and circulating pre-shift notes, creates significant enterprise value. Culture and customer service improves when newbies are given access to the all-staff mobile directory. Many web-based technologies have targeted these gains before, but failed to deliver due to an inability to engage and mobilise people working in deskless roles.
 
We spent a few months working the floors of our client’s sites and the experience was eye opening. It has a superb customer brand and culture, experienced, professional management and it invests significantly in training and systems. But day-to-day a vast and varied network of private communications (such as Facebook and WhatsApp) were being used by team members working in frontline roles. We quickly realised there was a huge opportunity to make it easier for team members to connect in a fun way, at the same time as reducing HR risks and operational inefficiency. Our data leads us to think the opportunity exists to add up to 10% to group turnover, producing not only a stronger culture, but a stronger balance sheet.
 
Food and beverage is a very exciting, fast-moving sector, full of enterprising people who are quick to take initiative with new approaches and new technologies. It’s time for leaders to ask employees “WhatsApp?” – and strike a fair balance between innovation, collaboration and privacy.
Robert Liddiard is a former corporate lawyer and co-founder of Yapster, a mobile chat platform designed to empower frontline workers and protect the brands they represent. Multi-site operators interested in giving feedback on Yapster (in return for favourable terms) before its public release later this year can email rob@employeerepublic.com

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