Obesity in the Workplace: Legislate or Discriminate?

Following comments by Employment Judge Philip Rostant this week there has been a debate surrounding whether legislation is required to prevent discrimination in the workplace against those who are considered to be a 'non normal' size.

Elissa Thursfield was interviewed on BBC Radio Wales this morning to discuss the issue. She noted that whilst proving discrimination is extremely difficult and in reality there will be occasions when it happens, legislating is not the answer.

There is always public controversy when dealing with this issue, partly due to the perception (rightly or wrongly) that the Equality Act should not extend to a person who has a 'lifestyle choice' which puts them at a disadvantage.

Legislating against something isn't necessarily likely to have the desired effect in these circumstances, in fact it is more likely to be counterproductive, feeding resentment within the workforce and produce 'low risk' workforce recruiting practices.

Where should the line be drawn? Waist circumference? BMI? Weight? Whether someone's size affects their health? Common sense dictates it is the latter, which is already covered by disability legislation. Employees should be incentivised to be healthy, legislating on the grounds of a person's size could produce scenarios where people on the cusp of discrimination protection actually gain weight to reap 'reasonable adjustments' such as larger more comfortable working areas, parking spaces, more breaks and other benefits not afforded to employees of a healthy size.

Bullying is wrong. No one should be subjected to any form of detrimental treatment simply because of the way they look. Legislation is not however the answer on this front, employer's attitudes, disciplinary processes and management of employee relations should be utilised to protect employees. A bully is bad for a workplace's productivity, moral and staff retention and that is where the real problem lies.

Panama Papers fall-out will impact every business

Media reporting on the so-called Panama Papers has focused on the tax affairs of wealthy individuals and international organisations, but the hacking of client files at Panamanian law firm Mossack Fonseca has implications for every business.   

The largest leak in history, with some 2.6 terabytes of data involved, the shockwaves of the Panama incident have been felt around the globe, and the hacking is a wake-up call to companies that don’t already treat their cyber-security with the same stringency as their legal, regulatory, financial or operational risks. 

“This was a major world-wide incident, involving many high profile individuals and global organisations, but the lesson is one that any business should relate to, however small they may be,” said commercial expert expert Glyn Morrice Evans of Gamlins Law;

“Protecting company data from attack is not just about keeping client data safe, it’s just as much about protecting your reputation, your employees and your future competitive edge, as well as keeping inside the law.  And it’s not just protection from outside criminals, the risk is just as likely to come from current or previous employees or competitors.” 

Last year a UK manufacturing company had design blueprints stolen and shared with a competitor.  They launched an investigation when the competitor released equipment which was extremely similar to their own, and established that they had been subject to a targeted cyber-attack, and that the stolen blueprints had been sold to Chinese-owned companies.  The infiltration was achieved when hackers targeted a job-seeking chief design engineer, who unwittingly downloaded malware through an email, after responding to a fake online recruitment profile designed specifically to trap him. 

And Morrisons supermarket is being sued under a group litigation order involving more than 5000 of its employees, after personal and financial details were posted online by a disgruntled ex-employee. 

“It’s a really big issue for every business, large or small,” added Glyn.   “Electronic data is a hugely valuable commodity and that value can be encashed when it falls into the wrong hands, so business leaders must make it a top priority.”  

Company directors need to ensure they are meeting the requirements of the Data Protection Act and the Communications Act in the UK, and those will shortly be joined by the EU Data Protection Regulation and EU Cybersecurity Directive. Alongside, directors have a duty to be informed on any issues that are relevant to the proper running of the company under the Companies Act 2006.

A new London-headquartered National Cyber Security Centre is expected to begin operations in October 2016, bringing all the UK's cyber expertise into one place to address current problems with the digital defences of companies and organisations.

 

 

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

 

                                   

Tricky to pull a sickie

Tricky to pull a sickie

 

Sickness absence costs UK businesses billions each year. According to PWC, £29 billion.

 

A recent ruling has confirmed that an employee who is dishonest about their sickness can amount to a fundamental breach of contract which entitled the employer to dismiss.

 

In Metroline West v Ajaj 2015, A had been employed by M as a bus driver. He was off sick after he slipped on water and was injured. M, after becoming concerned about the alleged injuries arranged surveillance of A when he attended an onsite sickness absence meeting.

 

From the footage M were able to see that A’s mobility was inconsistent with his sickness claims. A was disciplined and dismissed, he then sued M for unfair dismissal. A won at tribunal but M appealed and the Employment Appeal Tribunal found in their favour stating that when an employee claims they are too sick to work, yet they are not actually sick or as sick as they claim, this amounts to dishonesty.

 

Employees should be careful that they do not jump to conclusions or dismiss employees on merely suspicion. A reasonable investigation must be carried out and the business must be able to show that the employee had been dishonest about their condition. It doesn’t necessarily mean employees need to be subject to surveillance, but medical evidence, social media activity or evidence given in a back to work interview could be extremely useful.

Employers must gear up for April living wage deadline

The National Living Wage has been catching headlines since Chancellor George Osborne announced it last summer, but the Government’s target of £9 per hour by 2020 has overshadowed the detail, and many businesses remain unaware of the transitional deadlines and new penalties now in place. 

The compulsory National Living Wage (NLW) arrives on 1 April 2016 for eligible workers aged 25 and over, and it’s been set at £7.20 per hour.   But the NLW does not replace the current National Minimum Wage, it sits alongside and is a new premium tier solely for those aged over 25.  For everyone under the age of 25, the National Minimum Wage continues to apply.

The new NLW is different also from the ‘Living Wage’, which is an hourly rate of pay calculated to cover the basic cost of living in the UK.  It’s assessed by the independent action group Living Wage Foundation and most recently has been calculated at £8.25 per hour, or £9.40 per hour in London.

When the NLW arrives on 1^st April 2016 all eligible employees – whether permanent workers, agency workers, casual labourers or agricultural workers – who are aged 25 or over must be paid at £7.20 per hour, a pay rise of 50p per hour, whilst other workers will continue to be entitled to the following rates:    

·         21-25 years old - £6.70 per hour

·         18-20 years old – £5.30 per hour

·         Under 18 years old – £3.87 per hour

·         Apprentices – £3.30 per hour

Said employment law expert Elissa Thursfield of Gamlins Law:  “Implementing the National Living Wage for eligible over 25’s is not something that should be ignored or delayed, as there are stiff penalties in place.   Employers can be fined 200% of the amount owed if arrears are not paid within 14 days and receive fines of up to £20,000 per worker.”

She added:  “It’s important to avoid any age-related practices that set out to reduce the number of employees eligible for the higher rate.  Any dismissals of older employees, even with less than two years service, could see employers facing an employment tribunal for unfair dismissal and age discrimination.  It’s the same for recruitment, employers must avoid demonstrating any preferences for younger workers.”

The National Living Wage is expected to increase each year, with recommendations for future rises being made by the Low Pay Commission, as the Government continues its objective towards ‘higher pay and higher productivity’ in place of ‘low wage, high welfare’.

 

Bosses receive frost alert to manage bad weather risks

Bosses receive frost alert to manage bad weather risks

Employers are on frost alert, following the news that a home care worker has won her claim for damages after slipping on ice and breaking her wrist when visiting a client.

The ruling by the Supreme Court means that employers who expect staff to work outside in icy conditions will have to review risk management processes and consider whether they need to provide special equipment.

Tracey Kennedy was visiting the house of an elderly client in December 2010 when she fell and injured her wrist, after slipping on a path covered with snow and ice.  At the time she was wearing a pair of flat, ridged sole boots, and later sued her employer for damages for breach of duty, claiming they should have provided her with crampon style attachments to provide the necessary extra grip in the icy conditions.

The Supreme Court said that her employers had not carried out suitable and sufficient risk assessments to meet health and safety at work regulations, despite having received previous reports of similar incidents and knowing there were icy conditions at the time, as the freezing weather had persisted for weeks.

Because the anti-slip attachments were relatively low-cost, easily available and had been used effectively by other employers to reduce risk, the judges ruled that the failure to provide the crampons had caused, or materially contributed, to the accident.

Said Ron Davison, employment expert with Gamlins Law :  “This case has been through a number of appeals, finally arriving in the Supreme Court, and some may think the ruling seems overly paternalistic, but the Supreme Court made a distinction between an ordinary member of the public who could choose whether to go out and what route to use, and an employee who had no choice but to go out in bad weather and walk on untreated footpaths as part of their employment."

He added:  “It’s likely that trade unions will be arguing for provision of shoe attachments for use in icy conditions, if employers want to avoid liability claims where employees are injured after falling in ice or snow. 

“And of course, the bigger picture isn’t just about slipping in bad weather, it’s why employers have to provide life jackets where employees are working on water, or safety harnesses if they’re working at heights.  What’s important is making sure that risk assessments are made regularly, with feedback or new knowledge factored in, and any appropriate protective or safety equipment put in place.“

The case hinged on a breach of Regulation 3 of the Management of Health & Safety at Work Regulations 1999, failure to carry out suitable risk assessments, and Regulations 4 and 10 of the Personal Protective Equipment at Work Regulations 1992, requiring employers to provide suitable equipment to their employees to avoid risks to their health and safety, and ensure the equipment is properly used.

Grandparents right: Update to parental leave?

The Conservative Party conference last October included an announcement the right to shared parental leave (“SPL”) and pay would be extended to working grandparents. The government is expected to consult on the matter early this year.

 

The current SPL  allows mothers, fathers, partners and adoptive parents to share a total of 50 weeks of leave and 37 weeks of statutory pay in the first year of a child’s life. The Government’s proposal will extend this regime to include grandparents.

Since 30 June 2014, all employees with sufficient service have the right to request flexible leave, something previously reserved for parents and certain carers. Grandparents could therefore request flexible working to look after grandchildren. This right is limited and there is no entitlement, there is only a right to request. It is also of limited value where a grandparent assistance may only be required for a few months.

“More than half of mothers rely on grandparents for childcare”

More than half of mothers rely on grandparents for childcare. Almost 2 million grandparents have given up work and or reduced their hours to help cut childcare costs.

According to the Chancellor this new right will be “good for the economy”. Involving extended family in childcare arrangements will enable parents to return to work more quickly (if they want to). And with more people working longer, it will also help more grandparents stay in employment and combine this with childcare, rather than just quitting their job or reducing their hours to help out.

It is likely to be helpful for single parent families, or for those whose partners do not meet the criteria for SPL.

There are however potential problems, SPL is still in the teething stages for employers and introducing a new practice will be a headache for companies. There will also be more admin to get to grips with the extended rights and dealing with more requests.

There is also a question over how valuable the right will actually be in practice and whether parents will want to reduce the amount of leave they take in the first year.

Research has shown that grandparents often help after the mother has returned to work and at the end of maternity leave.

It will be interesting to see what rights if any actually emerge. We will be monitoring the consultation and will update as details emerge.

 

 

 

Courts move towards higher tariffs on Health and Safety breaches

Two high profile health and safety court rulings have caught the headlines this month, but the penalties imposed reflect the expected shift towards higher tariffs and businesses need to sit up and take notice say experts.  

First, fashion retailer Hugo Boss UK Limited was fined £1.2 million with costs of nearly £47,000 following a prosecution relating to a fatal incident at one of the brand’s outlets in June 2013, when a small child died after a free-standing mirror fell on him.

Then, Oscar's Wine Bar in South Yorkshire was fined £100,000 and ordered to pay £40,000 in costs after a barman gave a potentially lethal liquid nitrogen cocktail to a teenage girl, resulting in her having her stomach removed. 

Under the existing 2010 sentencing guidelines, concerns have been expressed around the inexperience and inconsistency of magistrates and judges leading to fines being imposed that are too low relative to the harm caused, culpability and means.   As a result, following recent consultation, it’s expected that the Sentencing Council will soon publish guidelines that take account of these factors.  

Courts would first consider harm and culpability factors so as to categorise the seriousness of the offence.  This would be put together with the financial standing of the company, with organisations banded from micro to large, to produce a predicted compensation figure.

Dafydd Roberts, Regulatory Law expert with Gamlins Law: “These are both tragic cases, for which no amount of compensation could replace the loss of life or health, but the level of fine is much higher than generally seen in the past, and it seems that the courts are acting in the spirit and ethos of the expected new guidelines, even though nothing has been published yet.”

He added:  “Businesses need to sit up and take notice.  No one wants to be responsible for such accidents, and the best way to avoid that is by making sure that health and safety systems are not just in place, but properly managed and regularly reviewed.  Employees need to have safety at the forefront of their daily activities, and be aware of how it helps to protect both fellow workers and customers. 

“If the employee manual and employment contracts aren’t clear, then now is the time to review them.  Having really robust health and safety policies, regularly reviewed and properly carried out in practice, will go a long way towards providing a defence against any criminal liability, and may provide a defence or at least mitigation against a negligence claim.”