Case studies and reports
Workplace Stress and the Law
Employers can apply sick pay policy to disabled employees
Staff absence cost UK £13bn in 2005
Sickness Absence costs employers £12.2 billion in 2004
The draft Smoke-Free (General Provisions) Regulations have been published for consultation by the Department of Health.
In summary, the draft Regulations provide that:
1. All work premises are to be 'smoke-free' if enclosed or substantially enclosed, meaning premises with a ceiling (unless more than 50% of the 'wall' area is open to the outside).
2. All occupiers of the premises must display a 'No Smoking' sign of at least A5 size and containing the 'No Smoking' logo together with the words: "No Smoking. It is against the law to smoke in these premises except in a designated room." An employer who fails to display the sign is subject to a fixed penalty of £200. If unpaid, or the fixed penalty is challenged, a fine of up to £1,000 (and a criminal record) may be levied.
3. Company cars are deemed to be entirely non-smoking, if they might be used by more than one person.
4. An employee (or visitor) who is caught smoking is subject to a fixed penalty of £50. If unpaid, or the fixed penalty notice is challenged, a fine of up to £200 (and a criminal record) may be levied.
5. An employer who fails to take reasonable steps to prevent smoking (and displaying the 'No Smoking' sign is not likely to be enough) is liable to a fine of up to £2,500
This article is only intended as a general statement and no action should be taken in reliance on it without specific legal advice. Specific Questions relating to this article should be addressed directly to the author.
Review of UK case law on the use of Health and Safety requirements as a false excuse for not employing sick or disabled persons
In 2002, the Health and Safety Executive (HSE) and the Disability Rights Commission commissioned a research project to establish the nature and extent of the use of health and safety requirements as a 'false excuse' for not employing or continuing to employ disabled people or people with an injury or ill-health condition.
One element of that study was a case review, carried out by Jackie Davies of Cardiff Law School. This examined employment tribunal decisions, as well as those taken at appellate level in the Employment Appeal Tribunal (EAT) and Court of Appeal. Cases selected for review were those in which employers had cited health and safety concerns as reasons for not recruiting or retaining disabled persons, or for subjecting them to some other employment detriment.
For the purposes of this review, the core definition given to false excuse is unlawful. The term unlawful is used to encompass those cases in which employers have failed to show that their health and safety reasons justify discriminatory action against disabled persons.
The cases selected illustrate the general point that satisfaction of the justification defence does not guarantee that unnecessary (though lawful) discrimination is prevented.
The review found that the decision in Jones v the Post Office has important implications for cases in which health and safety concerns are pleaded as justification for not employing disabled persons. Risks present across a spectrum, ranging from relatively minor and remote risks to serious and immediate ones. An overly cautious employer may decide that risks at the lower end of the spectrum justify not employing a disabled individual, even though a more accommodating employer would not. Although a tribunal might not agree with the overly cautious employer's decision, it is nevertheless probable that it will find that it falls within a range of responses open to a reasonable employer.
Where a disabled employee chooses to work, but is refused permission to do so because of liability concerns, the employer may be placing unnecessary obstacles in that employee's path. Following Coxall v Goodyear Great Britain Ltd, employers must assess the nature and extent of risks, discuss them with individual employees, and allow employees to accept them unless they are of considerable magnitude. Just as an employer has no duty to prevent employees from working simply because of an associated risk of lower magnitude, so too an employee who accepts that risk is precluded from succeeding in an action for damages should the risk transpire.
The review concludes that stereotyped views, wrong decisions and excessively cautious risk assessments may all act as unnecessary, lawful, barriers so long as they do not give rise to decisions so perverse as to fall outside the range of responses open to a reasonable employer.
More case studies can be found at http://www.hse.gov.uk/costs/case_studies/case_studies.asp