Post-Brexit bullying: an employer’s guide Page 3 Q&A - Neil Cowburn, group risk manager, Arla Foods Page 4 Norovirus: avoiding the upset Page 6 hilldickinson.com winter 2017 food for thought Welcome to the fi rst edition of our newsletter ‘food for thought’. 2 Welcome Welcome to the first edition of our newsletter ‘food for thought’. We introduce you to our sector team; John, Vickie, Claire and Claire and will also be welcoming Ivor Long to the team at the beginning of March. Each member of the team has a passion for and experience in the food and beverage sector and will be happy to discuss our services with you - just get in touch! We speak to Neil Cowburn, group risk manager at Arla Foods, who shares some insight into his career and claims experience. David Parry looks at bullying and harassment in the workplace following the vote to leave the EU and what employers should do to limit the risk to their employees and themselves. Vickie Gates also takes a look at the risks of a norovirus outbreak to your business and considers how you can mitigate those risks. We finish with some light-hearted news from across the sector and a chance for you to win a red letter day voucher in our competition! We hope that you enjoy the newsletter, and we look forward to seeing you at one of our events, or along the way soon. In the meantime, you can stay up to date with our articles, news and events by following us on Twitter @HillDickinson. Best wishes, John McKie Senior Associate [email protected] John McKie John joined Hill Dickinson in 2007 as a trainee claims handler. Having progressed through the ranks, John is now a senior associate within the insurance business group and manages service for both corporate and insurer clients. John will lead strategic direction for the sector and ensure we deliver in both client service excellence and thought leadership. Vickie Gates Vickie joined Hill Dickinson as a paralegal in 2011. Prior to this, Vickie worked in-house for six years, dealing with overseas personal injury and illness claims, contractual breach and group actions. She now works as a technical lead, dealing with high value employers’ and public liability claims, and large illness group actions. Claire Rowlands Claire joined Hill Dickinson in 2011 with 15 years’ claims experience. Claire has a background in liability adjusting and has investigated and handled claims arising from the food and drink manufacturing, retail and leisure sectors. Claire Parkin Claire joined Hill Dickinson in 2012 bringing over 20 years’ experience handling employers’ and public liability disease claims of all types, with particular specialism in asbestos. Claire Rowlands and Claire Parkin will be responsible for implementation, performance management and delivery of projects, key performance indicators and service level agreements. 3 food for thought winter 2017 What constitutes harassment? Employment-related harassment is unlawful under the Equality Act 2010 (EqA). It occurs where one employee engages in unwanted conduct towards a colleague in relation to a protected characteristic (such as race) and which has the purpose or eff ect of violating the colleague’s dignity or creating a hostile working environment. For example, an employee asking a migrant worker when he or she ‘intends to go back home’ in consequence of the Brexit result could potentially amount to harassment under the EqA. An employee can also be subject to harassment based on ‘association and perception’, such as an employee who is harassed because of their spouse’s nationality, or a person who is harassed because they are wrongly perceived to be of a particular nationality. Philosophical belief Employers should also bear in mind that the EqA covers discrimination on the grounds of a ‘philosophical belief’. Therefore, it is possible that pro-Brexit employees might try and claim that they have been subjected to discrimination by colleagues on the grounds of their philosophical beliefs (namely, their pro-Brexit views). Broadly, to be a philosophical belief under the EqA, the belief must: • be genuinely held; • relate to a weighty and substantial aspect of human life and behaviour; • attain a certain level of cogency, seriousness, cohesion and importance; • have a similar status or cogency to a religious belief; and be worthy of respect in a democratic society; • not be incompatible with human dignity; and • not confl ict with the fundamental rights of others. Whilst beliefs in environmentalism/ climate change and anti-foxhunting have (some may think, surprisingly) been found to be capable of amounting to philosophical beliefs for the purposes of the EqA, proving that a strongly held pro-Brexit view is a philosophical belief may be diffi cult to establish. Nevertheless, there is a risk of such a claim being raised by employees if they feel that they are being discriminated against because of their political standpoint. Practical steps It is important to remember that employers themselves can be liable for their employees’ unlawful harassment because, for the purposes of the EqA, anything done by an employee in the course of their employment is treated as having also been done by the employer. However, there is a defence available to an employer if it can show that it took all reasonable steps to prevent the employee from engaging in the discriminatory act in question. To succeed with a ‘reasonable steps’ defence, the employer must have taken such steps before the act of discrimination or harassment occurred. Acting reasonably in response to a complaint of discrimination or harassment is not enough. Further, the mere existence of an equal opportunities policy and an anti-harassment and bullying policy is not, by itself, suffi cient. In order to successfully establish the reasonable steps defence, an employer would usually need to: • have (and actually implement) up-todate policies on equal opportunities, anti-harassment and bullying and social media, and keep those policies under review; • make all employees aware of the policies and their implications; • train managers and supervisors on equal opportunities and harassment issues; and • take steps to deal eff ectively with complaints, including taking appropriate disciplinary action where necessary. Accordingly, in order to minimise the risk of Brexit-related discrimination occurring within the workplace, proactive employers may feel that now is a sensible time to review their policies and update their training programmes so that staff are in no doubt as to the standards of behaviour expected in the post-Brexit world. Such steps should mean that members of staff are more likely to treat each other with respect and dignity. David Parry [email protected] The EU referendum and subsequent decision to leave the EU has been controversial, with strong feelings on each side. With the country looking to how and when Brexit should take eff ect, an immediate concern to employers is the reported increase in bullying of EU workers following the Brexit vote. David Parry takes a look at what employers can do to protect their employees, and themselves, from harassment, and potentially expensive reputation-damaging litigation. Post-Brexit bullying: an employer’s guide Q What is your role at Arla? A I am the group risk manager so I deal with insurance risk and property. I have been with Arla for 27 years. I started on a youth training scheme - for those old enough to remember them! I started training in fi nance, but took an opportunity to work in the secretarial department, which involved spending time in every department. I started work in insurance in 1993 and have never looked back. Q What has been your biggest professional challenge? A Arla is a co-operative owned by farmers and it is sometimes diffi cult to help the consumer understand the impact of food prices on the co-operative, especially with the demands on retailers to hold their own market share. We aim to be fair and transparent in everything we do which can also be a challenge! Q What is your biggest claims challenge? A Disease is diffi cult to manage and, as a legacy issue, the historical position is not always known. As an organisation, we have a hugely complex risk profi le borne out of a signifi cant number of mergers. We work with Hill Dickinson to defend the company and reduce the risk exposure. Q What is your favourite Arla product? A Without hesitation, it is Lurpak spreadable. The family fridge has Cravendale and Lurpak in constant supply with the occasional B.O.B and Arla Skyr thrown in! Q Have you had any unusual personal injury claims? A We had a claim from an employee who fell off a chair in the canteen and sustained a leg injury. There was no suggestion the chair was defective - they had just fallen off ! Q How long have you worked with Hill Dickinson? A We have worked with Hill Dickinson for over 10 years, predominantly for disease issues but more recently for employer’s liability. The disease advice has proved invaluable in many cases, particularly around the issues of insurance and company liability. Q What advice would you give to someone just starting out in their career? A I was given this advice some years ago; if you get up in the morning and don’t want to go to work then get a new job. If you are at work in the evening and don’t want to go home, then get a new partner! Q What are your hobbies? A With a wife and two young children, free time is in short supply, but I love to go to Elland Road to watch Leeds United. I am also an avid horseracing fan, particularly over the jumps. Q If you had picked an alternative career, what would you have chosen? A In an ideal world, I would have been a professional snooker player. I played a lot in my teens and had one particularly diffi cult match against a professional player in a pro-am match. He played as if it was the world championship even though I was only 12! If not snooker, I would have liked to be involved in property in some way. My job over the years has involved a lot of buying and selling of buildings and land and it is something I have become very interested in. Q What do you like to eat and drink? A My favourite meal is ribeye steak washed down with a cold Peroni. 4 supply, but I love to go to Elland Road to watch Leeds United. I am also an avid horseracing fan, If you had picked an alternative career, what would you have In an ideal world, I would have player. I played a lot in my teens and had one particularly diffi cult match against a professional player in a pro-am match. He championship even though I was If not snooker, I would have liked some way. My job over the years has involved a lot of buying and selling of buildings and land and it is something I have become My favourite meal is ribeye steak washed down with a cold Peroni. Claire Parkin talks to Neil Cowburn, group risk manager at Arla Foods Limited about his career, his most unusual claim and, of course, his favourite food! From Claire: I would just like to thank Neil for sharing his insights with us. food for thought winter 2017 5 The team has had a busy few months attending events and meeting people across the sector. Here is a run-down of what we have been up to... 13 July 2016, London An Introduction to the Food and Drink Industry Food and Drink Federation John attended this event which focused upon supply chains, the forces of change (including Brexit) and the future of the industry. 4 October 2016, London Food Safety and Authenticity Convention Food and Drink Federation Vickie attended this event. Of particular interest was a session on how public health risks, including viruses, are being tracked and assessed, and an interactive session on allergens management and labelling. 11 October 2016, London UK Food and Drink industry’s post-Brexit Briefi ng Day Food and Drink Innovation Network Claire Rowlands attended this event, which considered how Brexit will aff ect food industry jobs, innovations and the food and drink industry as a whole across the UK and EU. 13 October 2016, London Essentials of Food and Drink Legislation Food and Drink Federation Claire Parkin attended this event; focussing on how the laws relating to food have evolved to prioritise food safety (particularly since the early 1990s food scandals) rather than being about trade and the free movement of goods as they were historically. 13 October 2016, Haydock Merseyside and Manchester Broker Knowledge Day British Insurance Brokers Association (BIBA) Vickie and John attended this event. John delivered an insightful presentation on portal claims, focussing on how the portal has aff ected the claims industry, what the future looks like and useful tactics we’ve identifi ed along the way. 9 November 2016, London Food and Beverage, Law and Intellectual Property Event IPR Events John attended this event, which focused on developing a successful strategy for intellectual property, trademark, patents and brand protection. A visit to Stourton Dairy Last October we visited the Arla head offi ce and Stourton Dairy in Leeds. We met with Jen Baker, environmental health and safety coordinator, who kindly showed us round. We were very impressed with Arla’s commitment to health and safety. Jen talked us through their key initiatives which not only aim to tackle the risks involved in their processes, but also, increasingly, those around behavioural safety. Employees are encouraged to challenge their colleagues about safety behaviour, regardless of rank or seniority within the company. By involving all employees, Arla aims to increase awareness and, of course, make the site safer for all. We were given a tour of the vast site which works on a range of Arla products from milk bottling and packing areas, to rooms that produce specialist milk like Cravendale, and various fl avoured milks. One of the recent additions to the site is the annex that produces the ice cream for McDonalds’ sundaes, but sadly, there was none available to taste test on our visit! We fi nished off our morning with a very interesting chat with Neil Cowburn, group risk manager. A big thank you to Jen, Neil and everyone at the Arla plant for such an interesting morning! Claire Parkin [email protected] Norovirus: avoiding the upset What is norovirus? Norovirus, more commonly known as the ‘winter vomiting bug’ is the main cause of viral gastroenteritis and is highly contagious. Symptoms include nausea, vomiting, diarrhoea and abdominal pain and usually develop 12-48 hours after exposure. Symptoms typically last 24-48 hours, although in rare cases can last up to a week. Severe illness is uncommon although, as with other gastrointestinal infections, irritable bowel syndrome may develop. Claims risk Norovirus is spread through contaminated food and water, contact with infected people or contaminated surfaces. Restaurants, hotels, cruise ships and schools are susceptible to outbreaks. If a person contracts norovirus as a result of contact with your business then they may have a personal injury claim. Claims of this type are relatively low value, attracting £1000-£2000 in general damages. However, more often than not these claims are brought as group litigation. As norovirus is highly contagious this usually means a large group of people are aff ected. Along with special damages claims and costs, an outbreak could cost hundreds of thousands of pounds. Have a plan! An outbreak and control plan will help you defend claims in the event of an outbreak. A good plan should include: • A system for illness reporting and tracking A system of illness reporting will help to identify an outbreak so that it can be dealt with quickly in a controlled manner. This is probably the most important part of any plan, and likely to be the most challenging. In most cases there will be allegations of under-reporting. Guests or customers may choose not to report their illness for a number of reasons such as departing the venue or embarrassment. It is important to have a low trigger level for reporting so that actions can be implemented as early as possible. • Training Employees of all levels should be made aware of good food and personal hygiene practice and each area of your business should know what is required in the event of a norovirus outbreak. Similarly, you should implement and enforce a strict work exclusion policy so that infected employees do not spread the illness. You could also remind your customers about good hygiene with signs in the toilets for hand washing and hand sanitiser stations, which help get the message across. • Communication Early communication with employees is crucial. Employees should be made aware of any outbreak so that they can take steps to mitigate contamination. You should also notify and involve the local authority as soon as possible. • Records Keep a record of the plan and all steps taken to reduce contamination such as food temperature checks, toilet and cleaning checks and any sickness or vomiting incidents. If an outbreak does occur, make sure you keep a record of the plan being implemented. Vickie Gates [email protected] Norovirus has been making headlines, with outbreaks closing down restaurants and hospital wards and aff ecting cruise liners and holiday resorts. With increasing publicity comes a rising number of claims. An outbreak of norovirus is not only extremely unpleasant for those aff ected, but can also cause fi nancial and reputational damage to the businesses involved. Vickie Gates takes a look at how you can protect your business. 6 avoiding the upset Norovirus has been making headlines, with outbreaks closing down restaurants and hospital wards and aff ecting cruise liners and holiday resorts. With increasing publicity comes a rising number of claims. An outbreak of norovirus is not only extremely unpleasant for those aff ected, but can also takes a look at Case success We successfully defended our client, Bourne Leisure, in a 219-claimant action involving a norovirus outbreak which occurred at a Butlin’s site in 2011. Over 4,000 guests and an additional 1,200 team members were onsite at the time of the outbreak and around 400 people reported illness. Our client denied liability throughout on the basis that its policies and procedures for dealing with a norovirus outbreak were suffi ciently robust and had been appropriately followed. The claimants’ solicitor issued court proceedings in 2014. Despite expert evidence, provided by a microbiologist, gastroenterologist and environmental health offi cer, which supported Bourne Leisure’s defence, the claimants’ solicitors continued on to trial and maintained that it would only settle for damages and costs, an off er which was refused by the client. A 15-day trial of the claim was set to commence on 28 November at London’s High Court. However, the claimants’ case subsequently disintegrated upon receipt of a joint report from the parties’ microbiology experts, which agreed that it was improbable that the point source of the causative norovirus outbreak was food prepared at Butlin’s. We evidenced how our client had done nothing to either cause or exacerbate the outbreak and in addition, was able to rebut the claimant’s quality complaints with records retained at the resort. We pressed for the claimants to discontinue, which they did just 10 days before trial, paying our client’s costs of £400,000. The claimants’ representatives had put forward an off er to settle for damages in the sum of £120,000 (approximately £500 per claimant). Their costs schedule, if they had been successful, inclusive of the 100% success fee uplift, would have been in the region of £6 million. David Waterfi eld, general counsel for Bourne Leisure, said: ‘The Hill Dickinson team provided us with fantastic support for the duration of this case. We were very grateful for their resilience, tenacity and above all helpfulness throughout. We were delighted that we had them in our corner.’ 7 Case success food for thought winter 2017 food for thought winter 2017 The information and any commentary contained in this newsletter are for general purposes only and do not constitute legal or any other type of professional advice. We do not accept and, to the extent permitted by law, exclude liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this newsletter. Whilst every effort has been made when producing this newsletter, no liability is accepted for any error or omission. If you have a particular query or issue, we would strongly advise you to contact a member of the food and beverage team, who will be happy to provide specific advice, rather than relying on the information or comments in this newsletter. Liverpool Manchester London Sheffield Piraeus Singapore Monaco Hong Kong hilldickinson.com About Hill Dickinson The Hill Dickinson Group offers a comprehensive range of legal services from offices in Liverpool, Manchester, London, Sheffield, Piraeus, Singapore, Monaco and Hong Kong. Collectively the firms have more than 1150 people including 190 partners and legal directors. For further information about our services, please contact any member of our dedicated food and beverage team: John McKie +44 (0)151 237 3056 [email protected] Vickie Gates +44 (0)151 600 8595 [email protected] Claire Rowlands +44 (0)151 237 3058 [email protected] Claire Parkin +44 (0)151 600 8309 [email protected] To celebrate the launch of our food and beverage newsletter ‘food for thought’ we are giving away a £100 voucher for a red letter day experience for the most interesting food and beverage-related news or fact. Please send your contribution to [email protected] by 4pm 24 March 2017 and we will announce the winner in our next edition! Pantastic According to Guinness World Records, the largest pancake ever made was in Rochdale, Manchester in 1994. It measured 15.01 m (49 ft 3 in) in diameter, was 2.5 cm (1 in) thick, and weighed 3 tonnes (6,614 lb), The fastest fl ipper is thought to be Australian celebrity chef Brad Jolly, who holds the record for 140 fl ips in 60 seconds in 2012. An eggstravaganza Easter is synonymous with chocolate and Easter egg hunts and in 2016 every child in the UK reportedly received an average of 8.8 Easter eggs, with households spending an average of £75 on Easter treats each year. Sales at Easter are said to make up 10% of UK chocolate spending for the whole year. Now that is eggspensive The most expensive entirely edible Easter eggs of all time are Fabergé- style chocolate eggs sold by Choccywoccydoodah in London. A set of three eggs, weighing about 100kg each, costs £25,000 and takes three weeks to make. How much?! It has been reported that the world’s most expensive bottle of water is the Acqua Di Cristallo Tributo a Modigliani, priced at £41,335. The water comes in a handmade 24 carat gold bottle inspired by Italian artist Amedeo Clemente Modigliani. What a waste The waste and recycling advisory body WRAP has reported that the amount of food wasted by UK households has increased from 7 million tonnes in 2012 to 7.3 million tonnes, or £13 billion worth, in 2015. 4.4 million tonnes was deemed to be avoidable and could have been eaten. Trending A report by New Nutrition Business has set out the top 10 growth opportunities for food and drink manufacturers in 2017. These include personalisation to enable consumers to create their own healthy eating patterns, anti-infl ammatory foods and digestive wellness. Squid and chips Apparently the nation’s favourite fi sh and chip supper could be replaced by squid as the waters around the UK’s shores grow warmer. According to the Centre for Environment, Fisheries and Aquaculture Science (Cefas) the warmer water is bringing an increasing number of squid, sardines and anchovies to the North Sea, while the traditional cod are heading north. A wee dram The Scottish Whisky Association has reported that whisky adds £5 billion a year to the UK economy with more people taking the opportunity to celebrate Burns Night on 25 January. Whisky exports are said to have grown by 1.5% to £2.8 billion between January and September 2016. News bite Here we bring you some recent and topical news from the food and beverage sector.