When the Supreme Court reached its landmark decision in July 2017 on the legality of Employment Tribunal fees last summer, the judges reviewed the evidence regarding the effect of fees on claims, and noted there had been “a dramatic and persistent fall in the number of claims” since fees were controversially introduced in 2013. They decided that the fees were wrong in several respects, and the Government immediately revoked them.

At the end of 2017, the number of claims lodged had risen by two-thirds since the Supreme Court’s decision. Recent tribunal data has shown that the number of cases brought by individuals in the UK increased by 118% in the three months to the end of March 2018, compared to the same period last year.

ACAS statistics on early conciliation make interesting reading. An employment law claim cannot move forward until ACAS has been informed, and early conciliation has ended.  Early conciliation can be requested by either the employee or the employer; however, there is no requirement for the other side to have to agree to the early conciliation proposal.  Total notifications have risen by 28%, or by 500 per week since tribunal fees were removed.  The significant rise in the number of claimants after the Supreme Court ruling seems to confirm that the fees were acting as a deterrent.  Removal of the fees has potentially lifted a significant barrier to access to justice in the employment law context, which has to be a good thing.

Much of the growth in cases has come from a return of what might be considered low-value claims, such as unpaid wages and holiday, which have increased by 137%. The returns on such cases might previously have been considered not worth pursuing, as many people who had valid claims could not afford to make them, so this increase is not surprising.  A lot of businesses would gamble on the fact that they would not be taken to court.  Now, many are reverting back to a more risk-averse approach.

A rise in tribunals was perhaps inevitable, given the legacy of cases that employees were reluctant to bring during the period of tribunal fees. This appears to suggest that disgruntled employees are now more inclined to take matters to tribunal, or at least, start the process, thus applying possible pressure on employers to settle.  Fees were undoubtedly a substantial factor; the other reason for the decline in tribunals has been the recovery in the economy and job market.  A lot will depend on the general state of the economy.  In many areas or professions/trades at the moment, if someone loses their job they can probably walk into something better rather than fight a claim.  If there is a continued increase in cases, it is likely to be either being due to a decline in the job market, or a statistical anomaly such as a glut of holiday pay or equal pay claims.

While claims are unlikely to increase to the level they stood at before the introduction of fees, the tribunal offices up and down the UK are very busy, with hearings regularly being cancelled at the last minute, and judgments taking much longer to produce than the four-week period users of the Tribunal system are told to expect. There is some concern regarding how the Employment Tribunal will cope with the number of claims being made, since the tribunals were slimmed down to deal with an average of 40-50,000 claims a quarter. If claims grow to 100,000 in that same time frame, it will increase the time required to dispose of them. Many tribunals have lost some of their part-time judges, and now that claims have been ramped up, the tribunal system lacks the resources to cope.  The Court Service is recruiting, but that process takes a long time to appoint and then train them. They are mostly busy lawyers, so do not have a lot of time to give as part time judges.

Avoiding Claims

Losing a tribunal can have a big impact on a business’s bottom line, costing many thousands of pounds in compensation. This is in addition to the hundreds of hours of preparation and attendance, as well as the sleepless nights beforehand. There is also a substantial risk of bad publicity, and impact on employee morale. All these factors mean employers need to make sure that they have suitable measures in place to avoid a potential claim.

• The best way is to ensure all employment policies and procedures are up-to-date. Also, all employees are given well drafted written particulars of employment. Good procedures should help employers to reduce their chances of all but the most frivolous claims.
• All our clients have such policies and procedures, but in light of the sharp increase in tribunal cases, it would be prudent for employers to place a renewed emphasis on ensuring that all grievances and disciplinary matters carefully follow the procedures to comply with ACAS guidance. One of the most common causes of tribunals is not following a proper process. Make sure all staff; particularly Managers, are aware of the latest Handbook of Employment Policies, and who to ask for guidance if they are unsure on what is required to correct follow them.
• Careful recruitment of suitable people, who have the skills and attitudes for the job, or the potential to acquire them, will minimise the risk of substandard work and potential for time consuming re-training and dismissals.
• At the start of the induction period for both newly recruited employees and existing employees moving to a different job, the accountabilities and measures of performance in the job description should be explained fully. This ensures that employees are aware of what is expected from them, and how their performance will be measured. If an employee has not been properly trained, it is somewhat unwise to criticise substandard work. The employee can rightly argue that without the necessary knowledge and skills, it is not possible to do the job to the required standard.
• There is no legal rule that states probationary periods must be used, but they can be a useful tool for dealing with issues early on. The normal rule is that in order to qualify to bring an ordinary unfair dismissal claim, an employee must have been continuously employed for not less than two years. Employers tend to have probationary periods to assess the new recruit. However, if an employee has fewer than two years’ continuous employment, then they can still dismiss after a probationary period. That does not mean an employer is safe to dismiss them without fear of tribunal claims. There are 26 automatic unfair dismissal reasons that do not require two years’ service – such as dismissal relating to pregnancy, or health and safety reasons. Some of the reasons, such as whistleblowing, carry uncapped compensation. In dealing with employees with fewer than two years’ service, it is still advisable to use the probationary period review, and a basic three step dismissal procedure. If you do not, there is a risk that the employee could claim an automatically unfair dismissal reason, or dismissal for a discriminatory reason.
• Use your employee data to make sure your employees achieve their personal best. If an employee is underperforming, or is regularly absent, this could be a sign of a bigger underlying issue they may need help with. Reviewing employee data on a regular basis makes it easier to spot trends, and have early, informal conversations, rather than taking more heavy handed approaches that could end up at tribunal.
• Managers need to be properly trained so they feel able to make difficult judgement calls. Providing regular training and discussing HR issues with your Managers will help ensure they’re able to handle any problems employees might be having, before they escalate.
• Create and maintain a culture of open communication, as well as fair and honest feedback, so that problems can be nipped in the bud.
• Do not delay meetings, or hope problems will ‘go away’. Managers are often comfortable dealing with issues of misconduct, but can shy away from dealing with performance issues. An employee is more likely to turn their performance around if concerns are highlighted at an early stage rather than if matters are left to fester. Conflict can be difficult, but it rarely goes away of its own accord. Managers can be taught some basic low level mediation skills which should help diffuse conflict before it bubbles up.
• Treat employees equally, as it helps avoid resentment and discrimination cases can arise well before the two years required for unfair dismissal. Take care not to unduly criticise or humiliate a poorly performing employee in front of colleagues. If you do, there is a risk that the employee will resign and claim constructive unfair dismissal for breach of trust and confidence (assuming they have two years service).
• Consult over change, as disputes often arise because of poor communication. In many cases, such as redundancy, or changing contractual terms consultation is a major legal requirement.
• Encourage Managers to keep a clear evidence trail of how they addressed an employment issue, and their decisions about an employee. Audit trails are key to defending a tribunal case; plan ahead and always get everything in writing.
• If offering training and support results in a positive outcome, this is less time consuming and costly than going through a dismissal procedure and recruiting a replacement. Being able to demonstrate that an employee has been given support and the opportunity to improve will greatly improve the employer’s chances of making a fair dismissal if this becomes necessary.
• Ensure you get professional advice and support to avoid making a mistake, and then having to go for resultant damage limitation. Prevention is always better than cure.

Do what you can to follow your internal policies and procedures before something becomes a problem. If you are not feeling that patient or optimistic, then a Settlement Agreement might be the way forward. Performance management can be time consuming, and sometimes disciplinary issues are not clear cut. The alternative is for the employer to explore a settlement. This is not a DIY activity, as the rules around them are complex. Professional handling makes all the difference.

Dealing with a Tribunal Claim

Employment Tribunal claims are still rare but do happen to even the nicest and most cautious employers. It can be unsettling to receive a phone call from ACAS seeking early conciliation, and even more so to get a tribunal claim form through the post. At that point, emotion can get in the way of rational decision -making. All circumstances will be different, and we are more than happy to help employers to prepare for and win at Tribunal.

• Control the amount of legal costs and time that is poured into defending an Employment Tribunal claim. Do not allow a point of principle (for example, the wish to defend an unmeritorious claim) to take precedence over simple economics. Early resolution via ACAS may be the most financially viable approach.
• The other way to avoid a tribunal claim is by a Settlement Agreement, which can still be done after employment has ended, and tends to be more appropriate than an ACAS COT3 form, which do not tend to address complex issues such as Restraint Clauses or Intellectual Property, particularly for senior people.
• Make an informed decision about resourcing or settling the claim, based on the overall size of the claim, as well as being realistic about the chances of success in defending the claim. Bear in mind the amount of compensation that a successful claimant is likely to be awarded, and do the maths (with our help). Going to tribunal can be described as gambling at the casino of justice, so settling limits exposure and brings closure.
• Think through the wider implications of fighting an Employment Tribunal claim. These are the potential for negative publicity, as well as the time and cost of getting ready and attending the tribunal. This is likely to be two days for a simple unfair dismissal claim, and at least a week for a discrimination claim. Being in the witness box can amount to the worst fears of any employer. Even confident, competent Managers can be poor witnesses.
• Be aware that full vindication for either party is rare from an Employment Tribunal. Even if you win, you might still be criticised, or you might win some claims but lose others, e.g. the dismissal was fair but it was discriminatory in some respect.

It is possible that the Government will introduce another fee regime in the future, but that is unlikely to be for quite some time. Employers need to focus now on prevention instead of cure to avoid getting tribunal claims, and possibly discussing a commercial settlement where appropriate.

 

Our Consultants would be pleased to advise on any element of the issues arising from this newsletter.

So, you think how your staff sleep is none of your business? It’s about time we woke up to the importance of having a well-rested workforce. The view that ‘sleep is for wimps’ is a nonsense, and potentially dangerous.

British workers put in more hours than any other European nation, but still have low levels of productivity, and the reason for this may be staring us in the face. We are exhausted. We work long hours, and arrive home late. We don’t give ourselves time to unwind, perpetuating the cycle of poor sleep. British workers not only work longer than their European counterparts – they also have the highest rates of insomnia.

Poorly designed shift patterns, and long working hours that fail to balance work time with rest and recovery, can lead to fatigue, accidents, injuries and ill health. Shortage of sleep affects not just safety and the risk of accidents, health (physical and mental), but also productivity and creativity.

Fatigue

Fatigue is generally defined as a decline in mental and/or physical performance caused by prolonged exertion, sleep loss and/or disruption to the body’s internal clock. It is also linked to workload: workers are more prone to fatigue if their work is machine-paced, complex or monotonous.

Fatigue slows reactions, and reduces the brain’s information processing ability. It causes memory lapses, absent-mindedness, lower awareness and a fall in attention span. Importantly in a work environment, it also leads to risks being underestimated, reduced co-ordination and poor judgment calls. The result can be errors and accidents, ill health and injury. Another victim is productivity. Crucially, fatigue is often a root cause of major accidents, with examples including the sinking of the passenger ship the Herald of Free Enterprise, the Chernobyl nuclear disaster, and the Exxon Valdez environmental catastrophe. The Three Mile Island meltdown in 1979 and the aborted launching of the Challenger space shuttle were also both attributed to tired staff. In statistical terms, fatigue is implicated in 20% of major road accidents; it is calculated to cost the UK between £115 million and £240 million annually in work accidents alone.

Sleep Deprivation

What complicates sleep issues is that they can be interlinked with so many other conditions, all of which can affect our performance at work. If we don’t get enough rest, we build up a harmful ‘sleep debt’.

Obstructive sleep apnoea, which disrupts the breathing of sufferers whilst sleeping, is the most common cause of daytime sleepiness, and is directly linked to being obese. Currently, just over one-third of Britons are overweight, but this problem is predicted to get more severe as workers become increasingly sedentary. Not only is the immediate result of such disturbed sleep tiredness and irritability, it is also associated with heart disease and depression.

There are more than 80 known sleep disorders, from not being able to get to sleep to the inability to stay awake, yet staff can be labelled as being lazy or leading inappropriate lifestyles. All of these conditions can be suitably controlled, given the right treatment.

Bad Practices

Other contributing factors include smoking and excessive alcohol, and failing to exercise is all part of the mix. Poor sleep places you at high risk of many other major illnesses. It affects energy, relationships and overall wellbeing.

In a study of more than five million people, a shortage of sleep was linked to diabetes, high blood pressure, cardiovascular and coronary heart disease, plus obesity. Even depriving people of sleep for a few consistent nights damages the body’s ability to control blood glucose levels. Vaccines are less effective; immune systems are more open to infection. One study concluded that fewer than seven hours of sleep increased the chances of catching a cold by a factor of three.

Studies around the world into the occurrence of diseases come to much the same conclusion. Short sleepers and long sleepers are more likely to suffer from a range of ailments, and have shorter lives. Too little sleep at the wrong time of day is linked to diabetes and obesity. NHS statistics show that shift workers are more likely to have “fair to bad” general health, and “limiting longstanding illness” with the Office for National Statistics figures showing them taking significantly more time off sick. Lack of sleep seems to have a greater effect on non-manual workers in sedentary jobs. Whether a loss of sleep is the symptom of less healthy lifestyle is hard to judge.

There are many reasons why people are unable to sleep, or can’t get the hours of sleep they need. The causes are often outside the workplace, but the effects are felt at work and may impair an employee’s ability to carry out their duties. Work can also cause excessive stress, which may lead to sleep deprivation or poor sleep. In some sectors, this can present a risk to the safety of colleagues or members of the public.

What’s Right?

The received wisdom is still that eight hours’ sleep a night is about right. In general, people who sleep for fewer than six hours a night are termed short sleepers; those getting on for 9 or 10 hours are long sleepers. Poor sleep and poor health feed off each other. Less fit people tend to exercise less and sleep poorly, becoming exhausted and less inclined to exercise in a vicious circle. Chronic sleep deprivation, defined as under-sleeping by an hour or two every night over a consistent period, has been linked to poor health outcomes.

Legal Issues

Employers have a legal duty to manage risks from fatigue and sleep deprivation, irrespective of any of their workers’ willingness to work extra hours, or preference for certain shift patterns. Employers have a duty of care to protect not just the health, safety and welfare of their workers, but any other people who might be affected by their business. The following general principles apply.

• Health and safety law requires employers to consult with their employees on all matters of health, safety and welfare. They can do this either directly or, if there are health and safety representatives, through them. Employees may prefer certain shift patterns that are unhealthy and likely to cause fatigue. The HSE are keen on consultation, but their preferences shouldn’t be granted automatically if they are unhealthy or cause fatigue. A wiser approach is to have limits on working hours, overtime, shift-swapping and on-call working. This must be monitored and enforced, perhaps with a robust hours recording system.
• The Working Time Regulations 1998 (“WTR”) lay down the minimum legal requirements on how to organise working time. Employers are required not just to satisfy the provisions of the WTR, but to proactively consider fatigue a risk factor in their business like any other health and safety risk. Whether the business involves major hazards or not, employers are required to set up appropriate systems to control potential causes of fatigue, such as shift patterns and excessive overtime. Some sectors (such as aviation or HGV driving) have specific regulations to guard against fatigue.
• The legal duty is on employers to manage risks from fatigue, irrespective of any individual’s willingness to work extra hours, or preference for certain shift patterns for social reasons. Employers have a legal duty to manage fatigue risks, even when employees are keen to work overtime, drive for long hours creating a long working day in preference to booking into a hotel or B&B over night, or request specific shift patterns for social reasons.
• Employers who ignore the importance of encouraging staff to get sufficient sleep could land themselves in hot water, under the Corporate Manslaughter and Homicide Act.

Key Principles in fatigue

1. Fatigue needs to be managed, like any other hazard.
2. It is important not to underestimate the risks of fatigue. For example, the incidence of accidents and injuries has been found to be higher on night shifts, after a succession of shifts, when working hours are long and when there are inadequate breaks.
3. Changes to working hours need to be risk assessed. Consider HSE guidance, such as the Fatigue and Risk Index Tool, a risk assessment method for use with rotating shift patterns.
4. There are many different shift work-schedules, and each schedule has different features. This sheer diversity of work and workplaces means that there is no single optimal shift system that suits everyone. However, a planned and systematic approach to assessing and managing the risks of shift work can improve the health and safety of workers.
5. There are a number of key risk factors in shift schedule design, which must be considered when assessing and managing the risks of shift work. These are the workload, the work activity, shift timing and duration, direction of rotation and the number and length of breaks during and between shifts.
6. The WTR require employers to offer night workers health assessments – although they don’t have to accept.
7. Consider people with underlying health conditions that may seriously affect their sleep patterns, including women undergoing a difficult menopause.
   

What can Management do to improve workers’ sleep?

Organisations should protect employees against the worst effects of exhaustion, especially in sectors where staff are required to drive, operate machinery, or expected to deal with considerable amounts of constant pressure.

• Understand the importance of sleep quality and recovery to your employees. Inform employees that you recognise the impact of sleep deprivation.
• Improve working styles – a long-hours culture leads to poorer sleep.
• Be aware that constant tiredness can be a symptom of serious illness.
• Consult employees about their sleep, and discuss any problems they experience, with a view to getting the right amount and quality of sleep.
• Suggest good sleep hygiene practices – see below.
• Ask employees what will help them, and encourage them to take the lead on implementing change.
• Identify the threats to good sleep in the workplace, and the problems your employees face.
• Develop a robust system of recording working hours, overtime, shift-swapping and on-call working.
• Conduct a workplace assessment for good lighting and ventilation.
• Where possible, maximise access to natural light. Research tells us that employees whose offices receive more sunlight sleep better and have higher levels of wellbeing

Responsibility

Employees also have a duty to take reasonable care of their own health and safety, and that of others at work that may be affected by their activities. Explain to them that while work is important, it isn’t everything, and taking time to relax, recharge and taking breaks are crucial.

There is also a difference between sleep and rest, people need to know that their lifestyle is important, and they need balance and enough sleep. Many employees have hectic social lives, and enjoy late nights. Sleeping too little during the week and trying to close the gap at weekends is another cause of feeling sleep deprived. The advent of laptops and mobile phones is making it harder for young people in particular to drift off. Blue light from electronic devices makes us feel less sleepy. Digital socialising also winds the brain up at a time when we should be winding down for a peaceful night’s sleep. The top tip from ‘Why We Sleep’, the bestseller by Prof. Matthew Walker, is to stick to a sleep schedule that involves getting up the same time each day regardless of what time you went to bed.

There have always been early-risers and night-owls; the advent of artificial light makes night-owls even more inclined to stay up comfortably, and alert into the early hours. Some 30% of us are morning people; another 30% are evening people. The remaining 40% are in between. We have limited control of our body clocks. Night-owls and late-risers can try to alter their habits by cutting their exposure to light in the evenings, while increasing their light exposure during the day.

Positive Measures – Provide knowledge

Include information and guidance on sleep and recovery for Managers and employees as part of a health and wellbeing strategy. Monitor how well it is working. Consider fatigue as part of the risk assessment process, particularly for hazardous activities such as driving. Advise drivers not to wait until it’s too late. Head nodding and eyes closing are not early warnings; they are signs they are falling asleep. Encourage everyone to take proper rest breaks.

Signpost Managers and employees to information about better sleep circumstances and recovery. We have drawn heavily on work by Business in the Community and Public Health England Sleep Recovery Toolkit published in February 2018. The HSE document – Good Practice Guidelines and their guidance about shift working is also a good reference guide. To quote Matthew Walker – “Sound sleep is sound business”.

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

ACAS has published new guidance to assist employers in preventing workplace discrimination on the grounds of religion or belief. Many employers are unlikely to see the relevance, believing that they don’t discriminate and religion is not something that does or should arise at work.

The fact is that the guidance covers a substantially wide range of employment situations, or discusses policies and practices that might lead to discrimination, including recruitment, dress codes, religious holidays, working on holy days; prayer during the working day, food, fasting and drinking alcohol is significant. Other employers might say that they do not currently employ any Muslims, but that misses the point that most legal religious cases have been about Christians.

The guidance contains a helpful reminder of the different forms of unlawful discrimination, highlighting the need to ensure that apparently neutral policies do not inadvertently disadvantage those with a certain belief (indirect discrimination). It also reminds employers that discrimination can happen when someone wrongly assumes an employee has a particular faith (discrimination by perception), or when an employee is associated with someone else from a particular religion; for example, through marriage or friendship (discrimination by association).

The guidance makes clear that the Equality Act 2010 also protects those who do not practice a particular religion, or who have no religion, and provides some assistance with the kinds of philosophical beliefs which will be protected. Case law is still unclear about what kind of philosophical beliefs will and will not be protected under the Act. Protected beliefs are those which are genuinely held so are more than an opinion; relate to a weighty and substantial aspect of human life and behaviour; are clear; cogent; serious; important; worthy of respect in a democratic society; compatible with human dignity; and do not conflict with the fundamental rights of others. Humanism, atheism and agnosticism are broadly accepted to qualify as protected beliefs. It is likely that vegetarianism and veganism would also qualify.

The new guidance helps raise awareness of situations where discrimination can arise, (namely recruitment, requests for annual leave, dress codes, and training and development opportunities), regardless of intention, and is helpful in alerting employers to both potential pitfalls and good practice. According to the guidance:-

• Recruitment is a key area to avoid discrimination, particularly when advertising for the role an employer is/are trying to fill. The job advert should be published widely and it is advised not to mention religion in the posting.

• Requests for annual leave during religious festivals or for religious reasons should be considered carefully and sympathetically. There should also be an understanding that employee performance may be affected during fasting.

• Employers should take a flexible approach towards dress codes where possible.

• Finally, opportunities for promotions should remain equal; it would be discriminatory if an employer discouraged an employee from taking a promotion because of their religion. There should also be an understanding around training and development in order to gain a promotion, it should be organised so that an employee with religious commitments does not miss out.

We particularly like their Top Ten Myths, which are:

Myth: I can’t be accused of discriminating against someone with the same religion as me.

Fact: If you treat someone unfairly because of their religion it would be discrimination, whether or not you were the same faith.

Myth: A philosophical belief is simply what I believe in, so my beliefs are protected.

Fact: What qualifies as a philosophical belief is not always clear cut. There are guidelines, but they are only guidelines. And, the final decision whether someone’s beliefs amount to a ‘belief’ in their individual case will rest with an Employment Tribunal or Court.

Myth: Employees are only really protected against religion discrimination when they are devout in their faith, or work in religion.

Fact: No, they are protected against unfair treatment whether they are devout or not. And, for example, because their friend holds a particular religion, or they are thought to follow that religion, even when they don’t.

Myth: Away from work, I can say what I want regarding my religion or belief on social media – it’s my profile and my page.

Fact: An employer has a right to ensure an employee’s personal views are not mistaken for its own. It should have a policy on social media including use away from work.

Myth: As long as a Manager is canny in their questioning in the interview, they can still get away with finding out a job applicant’s religion if they want to.

Fact: Even a question such as ‘Which school did you attend?’ is likely to be seen as discriminatory if fishing for the candidate’s religion and the question is irrelevant.

Myth: A request for leave for a religious festival takes precedence over a request for a family holiday.

Fact: No, religious observance does not necessarily override any other good reason for leave.

Myth: An employer’s dress code must be strictly followed, otherwise there’s no point.

Fact: A strict dress code would have to be for very good business reasons to satisfy an Employment Tribunal. Better to take into consideration that some employees may wish to dress in a certain way because of their religion or belief.

Myth: An employee can refuse to do aspects of their job because of their religion or belief.

Fact: Not if there are good business reasons why they are part of the job, such as being essential duties, and the employer’s decision is proportionate.

Myth: An employee doesn’t have to follow a rule like having a photo ID pass, if having their photo taken is against their religion or belief.

Fact: Employees should understand that their employer has a right to expect certain things to happen for good business reasons, such as having a photo ID pass for security reasons.

Myth: A colleague can’t, in any circumstances, lecture me about their religion or belief.

Fact: They can’t force their views on you when you don’t want to hear them. However, if you bait them, you are less likely to be able to claim harassment.

ACAS encourage employers to make sure their workplaces are ‘inclusive’ so that employees feel:

• they belong;

• are not disadvantaged or under-valued because they hold a certain religious faith or philosophical belief; and

• their beliefs and/or religious observances are respected;

The guidance addresses the issue that Britain is “an integrated and cohesive society with a proud tradition of religious tolerance”. Flexibility in this regard is encouraged and dress codes restricting religious symbols should not be set if there is otherwise no interference with the employee’s work.

Dress Codes

The Government Equalities Office (GEO) has published new guidance on dress codes and sex discrimination for employers, employees and job applicants.

The new guidance Dress Codes and Sex Discrimination – what you need to know, was promised by the Government following a parliamentary inquiry into dress codes, which was conducted as a result of extensive media coverage in 2015 of a receptionist sent home for refusing to wear high heels; what has come to be known as “Heel-gate”. The guidance provides advice for employers on their legal responsibilities when introducing a workplace dress code policy, and advice for employees on what action they can take if they consider their employer’s policy to infringe their rights.

The guidance confirms that dress codes can be legitimately enforced by employers, but any less favourable treatment because of sex could amount to direct sex discrimination. It reminds employers that dress policies for men and women do not have to be identical, but standards imposed should be equivalent. It also warns that requiring any gender-specific items, such as high heels, make up or have manicured nails, is likely to be unlawful.

Employers are recommended to consult with staff prior to introducing or amending a dress code, and should take into account the health and safety implications of any dress requirements. Notably, the guidance advises against gender specific prescriptive requirements, such as a requirement to wear high heels, and prohibiting religious symbols that do not interfere with an employee’s work.

Listing examples, the guidance says that requiring female employees to wear high heels but not having footwear requirements for men is likely to constitute direct discrimination. It can also amount to indirect discrimination against disabled employees, as heels can exacerbate mobility difficulties, or increased risk of falling for those who are visually impaired. However, the code has a lot of common sense advice. Requiring receptionists to dress smartly to portray positive public face and image is quite lawful because it is not gender specific. Requiring all employees to wear smart shoes will also be lawful because it is not gender specific.

The guide does not intend to be specific, as it uses such phrases as “it is best to” or “likely to be”. The law is not clear on all of these issues, so guidance for employers is very important to avoid discrimination claims in the workplace, and can assist in creating a positive working environment for everybody.

The approach of the UK Government is to be commended, albeit the ACAS Guide four years ago, which we commented on in our Client Newsletter No. 85 back in 2014, is arguably more comprehensive. It is right that to require or encourage women to dress provocatively is likely to be unlawful, and the guidance specifically comments that dress codes must not make employees vulnerable to harassment by colleagues or customers.

It is, however, arguable that the more contentious issue is how dress codes impact on religious discrimination. The guidance states that employers should be flexible, and not set dress codes that prohibit religious symbols that do not interfere with an employee’s work. In cases of indirect discrimination, it is open to an employer to potentially justify an act of discrimination if it is a proportionate means of achieving a legitimate aim; for example, staff being asked to wear a uniform to project a polished image to clients. However, if the aim is to appear smart and professional, it is difficult to see how this cannot be achieved by wearing flat shoes, a short-sleeved shirt or a headscarf.

To avoid your dress code being discriminatory:

• The dress code should apply equivalent standards, but this does not mean exactly the same for both sexes, and minor deviations to accommodate religious beliefs are quite common, e.g. letting women wear trousers.
• Make decisions based on the effect on the business, and the impact on the employee’s ability to do their job.
• Consider the impact on any people in the employee’s care (or others).
• Look out for protected groups that might be adversely impacted more than others.
• Consider if exceptions can be applied, e.g. religious jewellery, reasonable adjustments for disabled employees.
• Consult with employees/unions on your dress code requirements.
• Would the employee have to leave their job? Consider whether there is a compromise both parties can accept – e.g., it might be wearing a symbol as a brooch rather than hanging on a chain.
• Consider health, safety and hygiene issues, e.g. will particular shoes make staff more prone to slips and trips, or injuries to the feet?
• Clearly communicate your policy, and make it clear that failure to comply will be a disciplinary matter.
• Be consistent in the application of the policy and any disciplinary action.

If the matter goes as far as an Employment Tribunal, employers should understand that Tribunal/Appeal Courts will consider if there is any direct discrimination, and balance the right to display a religion or belief against the employer’s business reasons in the particular case. A ruling will depend on the facts. While some employers will have explicit dress codes, in other situations such codes may be implied. It is important that there is clarity for employees and applicants regarding an employer’s workplace policies, and that decisions relating to employment matters are objective and justifiable.

You are welcome to raise any queries or questions with our Consultants who would be pleased to advise you on any element of the issues arising from this newsletter.

 

The Size of the Problem within the UK

A TUC report on sexual harassment in the workplace has found it appears to be at endemic levels. According to the survey, 52% of women have experienced some form of sexual harassment at work. It was carried out by YouGov, and is based on the opinion of women who are working, or who have ever had a job, and were happy to be surveyed about this topic, from an overall sample of British adults. If the figures are representative of the UK workforce as a whole, they make grim reading.

Of those who have reported sexual harassment, 12% said that the incident was not even acknowledged by their employer. Most respondents said the incident was acknowledged, but 31% reported no action was taken.

Sexual harassment is hard to spot and deal with. It can happen in private settings with no witnesses, in poor workplace cultures where peers perceive it to be the norm, or in plain sight when the perpetrator relies on the victim not wanting to cause a scene by ‘making a fuss’. It can be difficult to report workplace harassment for fear of job loss, retribution and no consequence for the perpetrator.

Recent high profile developments in business, politics and the entertainment industry indicate the increasing potential for claims. The first claim against Harvey Weinstein has been lodged in the UK, emphasising changing social norms. There is likely to be a knock-on for businesses, with claims frequency set to increase. Sexual harassment will continue to be a high profile issue. The sheer volume of people speaking out about the problem means that a new zero-tolerance attitude is emerging. Insurance companies are bracing themselves for a vast number of historical sexual harassment claims.

The Nature of the Beast

Sexual harassment is just one form of discrimination, and much of this Newsletter will focus on sexual harassment, but it could equally well apply to any other form of discrimination or harassment.

There are a number of ways that complaints and concerns about harassment can come to the attention of an employer. These can include:

• an employee raises the matter quietly and informally with a Manager;
• an employee raises the matter formally as part of the organisation’s grievance or other process;
• a member of staff or Line Manager notices behaviour that concerns them;
• if someone witnesses sexism in a workplace, but does not work there, they can usually raise their concern with Management by making a complaint;

Sexual harassment might be obvious, insidious, persistent or an isolated incident. It can also occur in written communication, by phone or through email, not just face-to-face. It is likely to be manifested in:

• spreading malicious rumours, or insulting someone, unwanted physical contact;
• leering at an employee’s body;
• unwelcome remarks about a person’s age, dress, appearance, or marital status, jokes at personal expense, offensive language, gossip, slander;
• posters, calendars, graffiti, obscene gestures;
• coercion for sexual favours;

The Legal Perspective

It is well established from case law that a single act can fall within the definition of unwanted conduct, under the Equality Act 2010. No Employment Tribunal would have sympathy for a harasser who was dismissed after committing a one-off serious act of sexual misconduct.

The motive of the “harasser” is irrelevant in harassment claims. The key issue will be the effect on the person who is on the receiving end of the behaviour. It is also possible for someone to claim harassment when the offending remark or action is not directed at that person. A person overhearing a sexist remark could claim sex discrimination, even if the perpetrator did not realise that he/she was listening.

Sexual harassment is traditionally thought of as a man’s unwanted actions towards a woman. But there is nothing to stop a man claiming harassment against a woman, or an individual claiming to have been harassed by someone of the same sex.

Implications

Claims are difficult and time consuming to defend. The loss of public reputation can be considerable and the stress of being the ‘accused’ or even just a witness can all detract from ‘normal business.’ Harassment claims present a number of difficulties for organisations. It is a form of discrimination claim that offer claimants a less evidentially onerous route to obtaining compensation. There is no requirement to prove foreseeability of loss and employment tribunals can award damages for ‘injury to feelings’ without proof of psychiatric injury. Employees can claim for injury to feelings and these awards are called Vento Bands.

Since April 2018, the Vento bands are as follows:

• a lower band of £900 to £8,600 (less serious cases);
• a middle band of £8,600 to £25,700 (cases that do not merit an award in the upper band); and
• an upper band of £25,700 to £42,900 (the most serious cases), with the most exceptional cases capable of exceeding £42,900;

Bad cultures will lead to bad employee relations and morale, which may well manifest itself in absence levels and labour turnover.

Positive Actions

In order to meet their responsibilities, and to protect themselves against sexual harassment claims, employers should undertake the following preventative measures:

• The first thing you need is some sort of clearly written and well communicated policies and procedures in place, to ensure fair treatment for all workers. A Dignity at Work Policy goes beyond an Equal Opportunities policy.
• These policies should reflect and acknowledge Senior Management’s commitment to tackling and eradicating sexual harassment. Any culture change needs to be led from the top.
• Educate all employees on the organisation’s harassment policy.
• Develop a culture of respect and gain an understanding of what constitutes acceptable and unacceptable behaviours.
• Ensure that everyone is aware of the consequences of violation.
• Maintain a procedure that allows the victim to file a complaint with a person other than the victim’s Line Manager.
• Make a positive statement that people who report will be supported and protected.
• Train Managers to sensitively and fairly address complaints.
• Managers need to recognise what is, and is not, acceptable, and how to deal with the issues properly. They need to be aware that dealing with sexual harassment complaints will be emotional and personal for the parties involved, so need to be handled non-judgementally.
• Be very clear that some language and phrases can cause offence, even if they have been made unintentionally, or as a joke. Derogatory terms are clearly unacceptable and discriminatory. It is important to keep in mind that the law considers how such words are perceived by those who receive them – and it is usually irrelevant how, or why someone made them in the first place.

According to ACAS, all complaints of sexual harassment should be taken very seriously and handled fairly and sensitively. They recognise that experiencing sexual harassment is often extremely emotional and distressing for the worker involved.

Harassment (and Bullying) Investigations – General Advice

All complaints of harassment, of any kind, along with bullying complaints, should be taken very seriously. Failure to do so can make them much worse. There is no need to require a complainant to provide “proof” prior to conducting an investigation. The purpose of the investigation is to gather information and evidence.

When handling a complaint about sex discrimination, employers should:

• gather data to determine all relevant facts concerning the conduct in question;
• be prompt, thorough and impartial;
• listen to both the alleged harasser, and the complainant’s version of events;
• keep an open mind – discrimination situations are often very individual, and what may, or may not, be felt to be discriminatory can change over time, and from person to person;
• be respectful and empathetic to the employee who raised the complaint, and certainly initially the alleged perpetrator, as there are always two versions of events – cases can be also be particularly upsetting/stressful to experience for all involved, including witnesses;
• investigate the matter thoroughly, and be tactful when looking for evidence that supports or undermines the grievance;
• carefully document when and how the claim first came to the attention of the organisation;
• treat all claims as valid until proven otherwise;
• keep all discussions and information as confidential as possible;
• lead to a time-scale for resolving the problem;

Experiencing harassment is often extremely emotional and distressing for the people involved. This means making reporting such a matter as stress-free as possible. In most cases this involves simple things like making sure there is sufficient time to discuss the matter, and finding a private space to meet.

It is also likely to be very distressing for a worker to be accused of harassment. Whilst a fair and thorough investigation will need to be carried out, accused workers should also be offered support and sensitivity during the investigation process.

Serious allegations of harassment, bullying or any intimidating behaviour should normally be treated as a potential disciplinary offence, which may mean that the alleged harasser may need to be suspended, which in many instances is to protect them from further claims.

Always make a record of complaints and investigations, even if the matter can be resolved informally. These should include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information. All sensitive information should be treated as confidentially as possible.

It is prudent to provide support to both individuals while the investigation, and any subsequent disciplinary action, is conducted. You should consider temporarily changing working arrangements for the duration of the investigation, particularly if it is against the complainant’s Line Manager, or a close colleague. The complainant should be kept informed of the progress of the investigation, and its outcome.

Employees should also receive training on bullying and harassment in the workplace, so they are aware that such behaviour is not acceptable. This should include educating employees that ‘workplace banter’ is often a euphemism for bullying and harassment if it causes offence to others. Tribunals have rejected the notion that such claims can be defended on the basis that sexist remarks were “only banter” or ”just a harmless bit of fun”. Staff can feel humiliated or offended without it being obvious to others and it well may happen in the workplace without an employer’s knowledge. Tribunals recognise that the employee is often in an unequal relationship with the harasser, and that it is a natural reaction to wish to avoid further conflict or ‘publicity’. The lack of action from the victim is usually attributed to a fear of losing employment. They look at the circumstances of the case, and the perception of the individual concerned, before determining whether or not it was reasonable for the conduct to have that effect.

It is the responsibility of all employers to make sure that their Equal Opportunities and Dignity at Work policies are not just sitting on a shelf, or on a server, but are widely understood and followed. To avoid liability for a claim, the employer must also take prompt and effective action that is reasonably calculated to end the harassment. When deciding the case, the Tribunal will analyse the investigation made by the employer, and the effectiveness of the remedial action taken. The Court’s decision on the effectiveness of your response is often based on whether the remedial action ultimately succeeded in eliminating the harassment.

Taking Disciplinary Action

Once the investigation is complete, you must then take appropriate steps to remedy the situation. If the claim is substantiated, you must determine what discipline is appropriate. If the harassment was severe, or occurred over an extended period of time, or the harasser was previously disciplined for such conduct, then dismissing the harasser may be appropriate.

1. Follow the disciplinary policy to the letter and document, document, document.
2. If you are going to discipline an employee, make sure that you get something more than just compliance by that employee. They need to recognise there is a problem, and what exact behaviour they must stop doing.
3. Remember, disciplinary action must be justifiable, evenly applied to all similar situations, and responsive to the severity of the issue.
4. Don’t jump to termination, even if you want to show your commitment; it may set an example that can be damaging to morale.
5. Try to facilitate either an apology and/or mediation between the accuser and the alleged perpetrator, to help rebuild the working relationship, especially if they cannot avoid each other going forward within the work place.

Taking disciplinary action against an employee who is accused of sexually harassing a fellow employee may not be sufficient, and that proactive and reactive steps are necessary to avoid liability. Employers should proactively seek to prevent wrong-doing arising in the first place – but if it does still take place, if employers can demonstrate they took all reasonable steps to prevent the act of harassment from taking place, they may avoid liability. Policies must be up up-to-date and demonstrably routinely followed.

Sexual harassment is serious, but needs to be dealt with based on all the circumstances. Fairness is still important. We are all adults in the work place, and are all still human, subject to sexual impulses and subject to poor judgment on occasion. Because issues of hostile work environments are often cumulative in nature, many people don’t know when they have crossed the line, from occasionally annoying behaviour to sexual harassment, until someone brings it to their attention. We are human, we joke, we laugh; we probably say inappropriate things from time to time. If you impose the ultimate option of termination each time someone makes a small error of judgment, you may not be seen as an employer of choice. Equally, consistently ignoring the problem, with no penalty for people that behave badly, will also mean you will be not be seen as an employer of choice, so the right balance has to be struck.

Informal Action

This is often the easiest and fastest way with which a complaint can be resolved. This type of action will usually be suitable in instances where the behaviour has not been repeated, or isn’t serious in nature.

Informal measures may include:

• The victim approaching the harasser and asking them to stop the behaviour;
• Approaching the alleged harasser with the support of a colleague, trade union rep or Manager;
• Asking a Manager to approach on their behalf.

If informal resolution approaches don’t work, formal procedures should be triggered. They’re needed if the harassment is serious or persists, or if the individual prefers this approach, so this is why it is so important to ask someone who makes a complaint, what it is that they want by way of resolution.

Conclusions

Increasing public awareness has burst the dam of secrecy, resulting in a flood of calls for greater transparency across many organisations. As a consequence, corporate cultures must change to ensure appropriate safeguards are in place to protect the safety of employees, those they come into contact with, and the organisations’ own finances and reputation.

Recent cases, broadening the scope of vicarious liability, will also impose liability in wider circumstances. Once limited to the strict employer-employee relationship, it can now apply to relationships akin to employment, such as sub-contractors, where an individual is carrying out activities on behalf of the organisation, responsibility has been assigned to them and they are controlled by that organisation. Volunteers and gig economy workers present areas of potential liability. All relevant individuals (including sub-contractors and volunteers) should understand the expected workplace standards. Organisations must also ensure that appropriate management and supervision is in place.

The Equality and Human Rights Commission has published a report ‘Turning the tables: ending sexual harassment at work’, which shares evidence about sexual harassment in the workplace, and makes recommendations about how to end sexual harassment at work. The recommendations are very much about going back to old procedures, which the Government is unlikely to implement, but neither are they likely to ignore the issue.

 

You are welcome to raise any queries or questions with our Consultants who would be pleased to advise you on any element of the issues arising from this newsletter.

 

Medical conditions can be a complicated subject for employers. Medical conditions are a very personal subject with details that an employee might not want to willingly or fully disclose, yet the employee’s ability to work could well be impaired, that may lead to changes and adaptations being required.

Employers need to know where they stand to avoid breaking the law, but it is important to be sensitive to the needs of each employee beyond what the law requires. Simply being allowed to ask a certain question does not mean that you definitely should. Tact can go a long way in keeping communication as open and as regular as possible in building up a sufficient degree of trust, that encourages the employee to co-operate.

At a glance – What you can ask?

• Employers can ask questions that help them to determine if they need to make reasonable adjustments. This might include an adapted working environment, or additional flexibility in the job role or working hours.
• An employer can ask about a medical condition if it’s believed that the condition is currently, or might in the future, affect the employee’s ability to do their job.
• An employer can ask a medical professional for an employee’s medical records, or information about their health, with permission from the employee.
• Employers can encourage employees to volunteer information about any health conditions that arise during employment, so they can make reasonable adjustments to support the employee in their work.
• If an employer wants to consider reasonable adjustments for an employee, but is unsure of what the options could be, then they can seek advice from the employee’s GP or an Occupational Health (OH) provider with the employee’s consent.

Recruitment

The ‘recruitment stage’ covers everything up until the point where a job offer is made. After the offer has been made to the applicant, the rules for employees apply.

During recruitment, employers are not allowed to ask any questions regarding health or disability. This is because Section 60 of the Equality Act provides that, in most circumstances, employers must not ask about the health of job applicants before making a job offer. This includes questions about the number of sick days taken at the applicant’s previous place of work.

Exceptions are made for questions that determine the applicant’s ability to take part in any assessments, and to highlight any adjustments that the applicant might require to have a fair shot at the assessment, such as personality tests, manual dexterity tests, or typing assessments etc.

This means that employers should not ask applicants to complete medical questionnaires at an early stage of the recruitment process – and should certainly not be asking OH professionals to get involved in assessing an employee’s health or fitness until a job offer has been made, other than where a specific exception applies.

This “freestanding” legal requirement has a complex interface with discrimination law. Asking prohibited questions will not, in and of itself, amount to discrimination against a job applicant. However, if inappropriate questions are asked, the burden of proof will fall on the employer to show that no discrimination took place as a result, or that the candidate was rejected because of the consequences of a disability rather than because of the disability itself. The former might be justifiable, the latter is not. In addition, the Equality and Human Rights Commission may independently investigate and take enforcement action against employers that are in breach.

There are also exceptions made for questions that determine whether or not an applicant can do a part of the job that is absolutely essential, i.e. intrinsic to the role, e.g. questions that determine whether applicants can climb or do heavy work. The obvious question surrounds the meaning of the words “necessary” and “intrinsic”. When does an important part of a job become intrinsic? And when is it actually necessary to ask questions? Unhelpfully, the legislation does not provide answers to these questions. Employers should consider carefully what functions are intrinsic, or as per the wording in the EHRC guidance, “absolutely fundamental” to the job being recruited for, bearing in mind the job specification. In most office-based jobs, the manual functions that are truly intrinsic to the role are likely to be few and far between. For example, in most office roles applicants would need to have modern computer literacy, so need not involve asking health questions.

The example used by the Equality and Human Rights Commission (EHRC) is that of a candidate for a scaffolder role being asked about their ability to climb scaffolding at height. This is a very unusual example, and we would prefer to use the example of roles that require frequent manual handling, then questions related to the candidates level of physical fitness may be permissible, providing this objective justification has been clearly stated in advance, both in the job description, person specification and preferably risk assessments. There is no guidance at present on more complex scenarios, such as an office role requiring multi-tasking and at times high levels of stress, however if there is clear evidence that a role generates a very high level of regular work pressure, e.g. dealing with customer complaints, then it might be legitimate to state that being able to have the mental resilience to cope with this is not unreasonable.

An employer may consider it necessary to ask a candidate whether they have any condition that would hinder such activity. The focus should not be on the disability, but the task(s). This means focusing on their recent experience of, e.g. heavy lifting or dealing with the full on pressure of customer complaints, rather than by focusing on health issues that may prevent them from doing so. While this seems an over-cautious approach, there is no case law on the approach that tribunals should take. As a rule, questions about current health are much more likely to be considered “necessary” than questions about past health. Employers should avoid asking questions that start with: “Have you ever suffered from….”

Adjustments during the Application Process

Employers are permitted to ask questions about health if it is necessary to do so, in order to ascertain whether or not any potential candidate with a disability may need reasonable adjustments to be made to the recruitment process (not the role) to allow them to participate, e.g. make special access arrangements to attend an interview. If applicants have to carry out any kind of assessment as part of the recruitment process, then allowances or arrangements may have to be made to ensure that a candidate is not put at a disadvantage.

Ideally, information in this regard should not be requested at the initial application stage, and should be sought only once a candidate has been selected to attend for interview. Candidates should be asked if there are any adjustments required, not whether or not they have a disability. Employers must not to let the knowledge of the fact that an applicant needs adjustments influence the recruitment decision.

Monitoring Diversity

Employers can still ask questions about applicants’ disabilities to monitor the diversity of their workforce. Diversity monitoring forms should be kept separate from other recruitment documents, and should ideally not be made available to any decision-makers in the recruitment process. There are a range of data protection issues to also consider when collating such sensitive personal data, which is another example of a special data category.  One final point though, if you decide to monitor such information, then make sure that the data collated is properly used to help improve your diversity to make a real difference.

Conditional Job Offers

The Equality Act restrictions fall away once the employer has offered the candidate the role. As such, an employment offer can be conditional on the individual passing a health assessment.

However, if the information reveals that the candidate is disabled, withdrawing the offer may be discriminatory, unless it can be shown that no reasonable adjustment could be made to enable the candidate to perform the role. To help manage the discrimination risk, where possible, use health questions that are tailored to the particular role, or, if you do use a generic questionnaire, make sure you base any decision on answers to questions which are relevant to the role. If questions or a medical check reveal a condition that will affect an individual’s ability to carry out the role for which they have been recruited, the employer will need to consider reasonable adjustments. This may require co-operation with OH providers, including discussions around how specific adjustments will assist the individual.

If there are no reasonable adjustments that can be made, it is possible for the employer to withdraw the job offer. Withdrawing an offer should always be an absolute last resort, as there is clearly scope for legal claims here, so any adjustments must be very carefully considered. If none are viable, the employer must have an objective business reason to withdraw the role.

Confidentiality of Information

Employers have a duty to maintain medical information about the health of applicants, employees and ex employees. The ICO provide guidance.

They start with general advice, such as keeping paper records under lock and key, and using password protection for computerised ones. Only staff with proper authorisation and the necessary training should have access to employment records.

Where possible, sickness records containing details of a worker’s illness or medical condition should be kept separate from other less sensitive information, for example a simple record of absence. This can be done by keeping the sickness record in a sealed envelope, or in a specially protected computer file. Only allow Managers access to health information where they genuinely need it to carry out their job.

Employers are not responsible for all aspects of their employees’ state of health, but they are charged with a duty of care, ensuring the employee is medically fit for a certain job (for example, driving a bus). They must ensure that the work conditions do not cause adverse health effects on their workforce (such as an occupational illness). If you wish to collect and hold information on your workers’ health, you should be clear about why you are doing so, and satisfied that your action is justified by the benefits that will result.

The law requires openness. Workers should know what information about their health is being collected and why. Gathering information about workers’ health covertly is unlikely ever to be justified.

Once you are clear about the purpose, check that the collection and use of health information is justified by the benefits that will result. In doing so, remember that:

• gathering information about your workers’ health will be intrusive;
• workers can legitimately expect to keep their personal health information private, and expect that employers will respect this privacy;

Be aware that all information relating to a person’s health will be sensitive personal data, (now called special categories) for the purposes of data protection legislation. Appropriate consent will need to be obtained to ensure compliance with the legislation. Employees are permitted to make a data subject access request to access personal data held about them by their employer – this includes health and medical reports.

Medical information voluntarily offered up by a candidate during an interview

The fact that a candidate brings up their health at an interview does not change the position – discussions around a candidate’s health should not normally take place before a job offer is made.

Where this happens (and the information is not given in the context of discussing an intrinsic function of the job), the Manager should explain that they do not need to know about a candidate’s health at this stage in the recruitment process, and should then move on. Managers need to be aware that they should not make any comments during the interview about the potential impact of that condition on the candidate’s ability to perform the role, unless it is intrinsic to the job.

What if an employee subsequently reveals they have an existing medical condition?

It is difficult to rely on inaccurate or misleading answers in this context as the basis for a fair and/or non-discriminatory dismissal. This is because it is not clear whether or not an employee is actually obliged to reveal a medical condition; there is nothing in the Act that requires applicants to disclose their disabilities, and the EHRC Code recognises that people with disabilities may be reluctant to disclose them.

More extreme cases may justify dismissal where no adequate explanation for the inaccuracy is provided. For example, if the individual holds a role where honesty and integrity can genuinely be said to be a fundamental requirement of the role, or where the impact of the medical condition puts their health, safety or welfare, or that of others, at risk. If it turns out that an employee has a medical condition that prevents them from doing their role (and no reasonable adjustments can be made), the fact that they cannot do the role could justify dismissal, but proper consideration should be given to alternatives, such as whether or not there is a suitable alternative vacancy.

Tips for handling Health and Disability Issues in the Recruitment Process

• Train your interviewers so they understand what questions they can and can’t ask candidates about health/disability.
• Regularly review any health-related questions that are asked of successful candidates to ensure they remain relevant to the role.
• If a successful candidate does have a disability and reasonable adjustments need to be considered, make sure those deciding how the role can be adjusted understand what compliance with the duty entails.
• Questions should be restricted to whether there is any specific health reason why the individual cannot perform any of these tasks.
• Questions should go no further than is necessary. Past medical history will probably be irrelevant.
• Questions about a disabled person’s ability to carry out a particular role should be accompanied by a question about their ability to do so with reasonable adjustments in place.
• Consider whether in fact a role specific application form or assessment process is appropriate.
• Remember the provisions will capture not only questions asked of an applicant, but also those asked of a third party, for example, in a request for a reference made to the applicant’s current or previous employer.
• Offers of employment should, therefore, be made subject, as appropriate, to satisfactory health checks; the outcome of which could potentially lead to reasonable adjustments being made or, provided it is justified, the offer of employment being withdrawn.

During Employment

Employees are protected by law when it comes to asking questions about medical conditions. The burden of proof is on the employer, who must be able to show that they had a valid reason for asking a question. If an employee believes that they were asked a question by reason of discrimination, then the employee can take legal action.

The law on access to medical reports is unfortunately not always very clear. The main regulations are the Data Protection Act legislation and the Access to Medical Reports Act 1988 (AMRA), but in addition, common law applies and Doctors must also take into account any guidance from the General Medical Council. The Equality Act is also important, as it protects against discrimination in the workplace.

To obtain a medical report, you must comply with the law which provides employers with a right to access medical reports for employment purposes provided by a medical practitioner who is, or has been responsible for, the individual’s clinical care.

There are many reasons why an employer would like to obtain medical reports, such as:

• to understand when someone on long-term sick leave is likely to return to work;
• to establish whether there is any underlying medical reason behind an employee’s regular short term absence;
• to determine whether an employee is suffering from a condition which would amount to a disability and, what reasonable adjustments need to be made;
• in relation to an employee who is at work, but whose fitness to undertake their role appears to have deteriorated, either following a period of absence or for other reasons;
• to assist an employer’s compliance with its health, safety, and welfare (well-being) responsibilities;

What the Report should cover?

Rather than make general requests about the employee’s health or medical condition, the request should refer to the employee’s ability to do their job. It should ask specific and relevant questions, and be limited to the reason for the obtaining of the report. For example, if you have an employee who is on long-term sick leave and you are considering dismissal, you should ask specifically what their likely date of return to work is, if they have any disabilities, if there are any reasonable adjustments that could be made to accommodate their disability, or if they have any specific recommendations about redeploying the employee into other available roles in your business.

Applying for a Medical Report

There are strict conditions which need to be met if an employer wishes to make an application to see an employee’s medical report. They must:

• inform the employee in writing of their intention to make this application;
• notify the employees of all these rights under AMRA, mentioned above;
• receive the employee’s explicit, written consent;

Employers should send evidence of the employee’s consent to the doctor when making the request.

How can the employee respond?

Employees can do any of the following:

• decline to give their employer their consent;
• consent to the application and agree that the report is sent directly to their employer;
• provide their consent to the application but state they wish to see the report prior to it being sent to the employer;

What if an employee refuses to provide consent?

A provision in the employee’s Contract of Employment may oblige employees to undertake a medical assessment if requested, and allow employers to see medical reports. Depending on the wording of the provision, the employee would be in breach of contract and face disciplinary action if they did not provide their consent. However, the employer will still need to follow the procedure in AMRA, and need to make sure that the request is reasonable and proportionate.

If your contract does not allow this, you cannot force an employee to provide their consent. If they do not consent, you should explore the reasons why. You may be able to allay their fears. For example, if they are worried that everyone in the office is going to know their private business, you can confirm that this information will remain private.

Appendix 4 of ACAS’s guide: Discipline and Grievance at Work makes it clear if an employee does not give their consent, they should be notified in writing that the employer will take a decision based on the evidence they have available to them, and this could lead to dismissal. This may persuade an employee to give their consent. An Employment Tribunal will generally accept that the employer has little option but to make a decision, including a decision to dismiss, based upon the information that it does have.

Who should the employer instruct to undertake the medical report?

The choices of whom to instruct to undertake the report are generally:

• The employee’s GP;
• A specialist doctor, consultant, or other health professional e.g. physiotherapist or counsellor treating the employee;
• An independent health or occupational health practitioner not involved in the employee’s medical care; or
• The employer’s own doctor, or the employer’s regular Occupational Health service;

We would rarely recommend an employee’s GP.

Remember, an Employment Tribunal will consider whether you properly assessed the employee’s condition or illness to find out their likelihood of returning to work or ability to do a job. If medical evidence is sought and decisions are based on that report, an Employment Tribunal is likely to deem consequent action to be fair. If recommendations within a report are not implemented, then it is important that there is justification as to why it was deemed the suggestions could not be reasonably applied, e.g. too expensive or totally impractical.

We would also advise that in matters of employee health, you should seek expert advice very early on.  Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

The latest annual statistics, published by the Health and Safety Executive (HSE), indicate that in 2016/17 almost half of all working days lost due to ill-health were reported as being due to work-related stress, depression or anxiety. This estimate, based on figures from the Labour Force Survey (LFS), is further complemented by the Mental Health at Work Report 2016 produced by Business in the Community (BiC), which was based on the 2016 National Employee Mental Wellbeing Survey findings. They highlight the extent of mental health difficulties at work.

• A majority of employees have been affected by symptoms of poor mental health. 77% of employees covered by the main survey said they had experienced symptoms of poor mental health at some point in their lives.
• 62% of employees attributed their symptoms of poor mental health to work, or said that work was a contributing factor.
• More than 10% of those surveyed described their current state of mental health as poor, or very poor.

There will inevitably be some debate about the accuracy of such statistics, but the key concern is that there is a major disconnect between these figures and those reported by employers, who believe the problem is not so large, and that they are doing all they can to support people.

According to the Society of Occupational Medicine, mental ill-health affects one in six people at work in the UK. The World Health Organisation predicts that if we do not proactively address wellbeing, mental illness will be the leading cause of disability and absence in the workplace by 2030. So, employers need to give mental health the same level of importance and investment (time and resources) that that have placed on safety over the years.

In 2016, the main causes of work-related stress, depression or anxiety were said to be:

• workload pressures, including tight deadlines
• too much responsibility
• a lack of managerial support

Sickness absence is very costly in tangible financial terms, but also it usually means that when someone is off work that the workload burden then falls on others, so this can lead to a spreading negative ripple effect within the organisation.

The most common symptoms of poor mental health, in which work was a factor, were:

• psychological symptoms (e.g. depression, anxiety, panic attacks):
• behavioural symptoms (e.g. changes to appetite, irritability, procrastination, mood swings):
• physical symptoms (e.g. raised blood pressure, muscle tension, sweating, dizziness, headaches or migraines):

The BiC report summarises the main conclusions from the survey as follows:

• Employers need to recognise the scale of poor mental health in work, and take significant steps to reduce the risk of their workplace being a contributor to poor mental health.
• Employers have a duty of care to respond to mental ill-health just as they would to a physical illness, such as cancer, diabetes or back pain.
• Managers need to be equipped with the tools, support and the right organisational culture to do their job well, which includes managing employees with mental health issues.
• Workplaces should be environments in which employees feel comfortable disclosing their current state of mental health. Employees need support at an early stage, and Line Managers should agree and implement a personalised plan that works best for that employee.
• Better signposting to formal support mechanisms is vital. No one is expecting Line Managers to be mental health experts, but they need to know where to refer people for help, and what they can do by way of follow-up.

It makes good business sense to foster a culture of openness that supports employees with a mental health issue to remain working. The mental health charity Mind state: “Mental health is still the elephant in the room in most workplaces – employees are reluctant to raise the subject for fear of discrimination, while Managers often shy away from the subject for fear of making matters worse, or provoking legal consequences. This culture of silence means undetected mental health problems can spiral into a crisis, resulting in sickness absences.” It is certainly our observation that Managers worry far more about this type of sickness absence rather than when a more tangible physical illness is reported, and they usually “freeze” taking no action for a very long time when actually early contact with the employee is vital.

The same report recommends actions on a number of fronts, and at all levels within organisations that employers should do including:

• Seek to embed well-being into organisational culture. You will see that in our 2018 Handbook updates we now talk about physical health and mental well-being in several of our policies.
• Take simple, positive actions to build a culture that promotes good health
• Send a clear message of parity of esteem between mental and physical health to normalise conversations around mental health.
• Appoint a mental health champion from the senior team, with a remit to drive better mental health.
• Ensure skills based learning is made available to Management teams to develop awareness, confidence and capability to deal with mental health.

Additionally employees should:

• Be provided with basic mental health literacy, so they can spot the signs when they or a colleague may need help – see mental health first aid.
• Know where to go for guidance, and be equipped with the confidence to start a conversation about mental health with colleagues they are concerned about.

Introduce a Well-being Framework

So, how can employers embed well-being into the organisation? As always it has to be led by Senior Managers. Ideas include:

1. Train all Managers and employees (just as we train employees on codes of business practice and safety) in enhancing workplace well-being. This will help to:
   1. dispel the myth that depression and other common conditions are weaknesses, instead recognise that these are just other forms of illnesses
   2. aid employees in recognising symptoms in themselves, and in others
   3. provide guidance on how to manage someone in a team who might become ill
   4. demonstrate how to reintegrate someone into work after illness; after all, it is well established that work is good for us, and can be key to the recovery of someone who has been ill
2. How an organisation successfully communicates on matters of mental health is key to the successful implementation of a well-being strategy. Normalising mental illness by encouraging senior and influential people to share stories of their associations with conditions, such as depression and anxiety. This is the most powerful means of breaking the stigma and generating discussion.
3. Introduce mental hygiene techniques your employees can learn. Just as many employees have a personal trainer in the gym, think about encouraging mental hygiene techniques, such as good sleep, food and exercise practices, how to develop resilience and assertiveness to reduce the affects of conflict at work, mindfulness techniques to help reduce stress etc.

Other Practical Steps

View health holistically as a combination of Mental and Physical Health

Employers need to accept that all employees have mental health, in the same way that they have physical health. Mental health can move up or down a spectrum from good to poor, depending on factors in and outside the workplace just as physical health can.

Review how you describe employees with Mental Health Issues

To change adverse perceptions of people with mental health conditions, Managers should describe people with mental health conditions in more positive terms. Rather than labelling them as mentally “disabled”, and focusing negatively on what we assume (wrongfully in many cases) they cannot do, Managers need to have open discussions about how to help to enable them early on, thus avoiding actually disabling them as soon as their mental health condition is found out.

Line Managers, and where possible all employees, should receive training, which should deal with outdated unhelpful definitions of weakness and strength. Mental health problems are very often the curse of the strong, not the weak. For instance, it is usually high achievers that are likely to suffer unexpected and severe mental health burnout.

Swift early access to Medical Intervention

It is also critical that Managers help employees with mental health conditions to access the medical services and the support that they need quickly and swiftly, as early medical intervention will help them return to work sooner. Managers need to be taught that with the right support, mentally ill employees can return to the same or better performance than previously.

Mental Health First Aid Training

Line Managers or employee volunteers who complete the course will have mental health first aider status and will be able to spot mental health problems, take action to prevent them from developing into something more serious and help colleagues to recover more quickly.

Many employees are promoted into management positions because of their technical skills and ability, but without training, they will not necessarily have the right people management and communication skills to be able to deal with mental health issues in an open and supportive manner, so this course really helps.

The two-day course developed by Mental Health First Aid England:

• Trains delegates to recognise the signs and symptoms of mental ill health.
• Educates on what are the good mental health hygiene factors and self care.
• Empowers delegates to provide help and support on a first aid basis though the power of building relationships that encourage people to talk about their problems and health.
• By asking the right questions, it helps them guide people with mental health problems towards the right support services.
• Covers a range of mental health problems, from stress through to more serious conditions such as depression and psychosis.
• Develops understanding of the stigma that exists around mental health.

Open and Supportive Culture of Communication

Employers should promote an open and supportive culture, where Line Managers have regular one to one catch ups with their staff, during which they check in on their mental health well-being (whether they are aware of a mental health condition or not), in the same way that they check in on work-related matters. It is important that employees feel able to be authentic and bring their ‘whole self’ to work, rather than pretending to be someone that they’re not, in order to conform and fit in. The stiff upper lip British attitude is not helpful in encouraging open conversations around mental health.

Address your Working Environment

Create an environment where individuals feel their work is meaningful, purposeful and they are treated with dignity. Creating a sense of purpose beyond profit and growth; encouraging a more respectful environment will go a long way to helping prevent mental illness in the workplace.

Back to Work

The way an employee is treated during their absence, and their initial return, has a major impact on their likelihood of returning to work. Once an employee has been off sick with mental health issues for four weeks or more, the chances of them returning to work are much slimmer, as they lose confidence and begin to feel alienated from the business. Keeping in touch in an appropriate manner is vitally important.

The Society of Occupational Medicine (SOM) has highlighted six key steps to support the return to work process following sickness absence due to mental ill-health.

For employers and employees, six steps have been identified as follows.

1. Dealing with the initial absence.
2. Developing knowledge and skills.
3. Maintaining communication throughout the absence.
4. Preparing for the return to work.
5. The return to work conversation.
6. Keeping healthy and productive at work.

The SOM points out that people often find it difficult to talk about mental ill-health, and sometimes do not recognise it in themselves. In severe cases of mental ill-health, an employee may feel numb and unable to ask questions, or ask for help. The guidance offers helpful tips regarding what to say, and what not to say, to the employee who is suffering from mental ill health.

Key actions for these steps are:

1. If they do not contact you, contact them, focusing on recovery not return to work.
2. Look after the rest of the team, and develop skills to have open constructive conversations with empathy.
3. Not communicating makes things worse, so keep in contact regularly as it increases the chances of a successful return to work.
4. Do not get people back too soon, but talk positively about how they can return, identifying possible adjustments so you can plan properly.
5. Focus on having a good conversation not following procedures, and focussing on the future then prepare a plan.
6. The employee may need long-term support, even if they only experience mental ill-health once. On-going review of the plan will give them the best chance of staying healthy and at work.

Finally,

We recognise that there is a lot of information to absorb on this topic, and it may seem daunting. Even if you just act on a handful of our guidance, you will be making a good start. Our recommendations would be:

1. Get Senior Management commitment to being supportive about mental health issues, and communicate that to all employees.
2. See what you can do to reduce stress and anxiety within your team.
3. Keep in regular contact with people who are off work due to ill-health.
4. Consider training a couple of people in Mental Health First Aid.
5. Educate your Managers in commitment to being supportive, and giving them the skills to put this into practice.

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

Introduction

We occasionally get calls from our clients, stating that they have received a claim for compensation arising from either an accident or injury that the employee (Claimant) is alleging happened at work and is, therefore, the fault of the Employer (Defendant). The caller is often very indignant about the personal injury claim, as they do not believe such an accident or injury happened at work, and is invariably cross with the employee. The first advice we have to give is to park the emotion, as one is entering into dangerous employment law territory if an employee can prove they suffered a detriment arising from submitting a health or safety concern, or in this case, a health & safety legal compensation claim. The second piece of advice we give is to contact the appropriate insurance company, and follow their instructions.

Given the ease of access these days to ‘no-win, no-fee’ solicitors, the increase in personal injury claims has meant that employers’ liability insurance premium has increased for many organisations.

This newsletter will briefly summarise some of the key information regarding the legal principles behind personal injury claims, and what action is required when a claim is received, as well as some good practice that will help to defend these claims.

Employers must comply with:

• The Employers’ Liability (Compulsory Insurance) Act 1969, which makes it compulsory for organisations to have employers’ liability insurance.
• The requirements of the Civil Procedure Rules (as amended by the Woolf reforms).
• The Health and Safety at Work, etc. Act 1974, the Management of Health & Safety at Work Regulations 1999, and indeed, all other health and safety regulations under which claims may also be made, if the regulations state that civil liability may arise.

Duty of Care

The leading case for personal injury claims was established in 1932 with Donoghue v Stevenson (1932), where it was deemed a duty of care is owed to “neighbours”. The case described neighbours as being those who we could “reasonably foresee” could be affected by our “acts and omissions”. Typical neighbour relationships include:

• employer to its employees
• employer to others’ employees
• employer to contractor
• occupier to authorised visitors or even unauthorised visitors, e.g. trespassers
• employer to members of the public

The common law duty of care owed by an employer to its employees was further defined in the case of Wilsons and Clyde Coal Co v English (1938). In particular, this case decided that the employer’s duty of care to its employees was personal to the employer, and could not be delegated to, for instance, a Manager or other employees. Additionally employers must provide:

• a safe place of work and equipment
• safe systems of work
• reasonably competent employees

These two cases are regularly cited in claims for personal injury. Since then, other cases have gone further in defining the true implications regarding the common law duty of care. If the employer knows of a condition in an employee that makes that employee more susceptible to injury, or makes the consequences of injury more severe than usual, extra precautions must be taken, as stated in Paris v Stepney Borough Council (1951). Therefore, employers must take into account any significant “special needs” in an employee, and take extra precautions. Employees with “special needs” could be:

• disabled employees and/or with serious medical conditions
• employees with learning difficulties
• young and inexperienced workers
• pregnant employees

Employers must also consider the mental well-being of their employees, such as work-related stress. The case of Walker v Northumberland County Council (1995) was developed further in Sutherland v Hatton (2002), when the Court of Appeal cited 16 practical propositions related to stress, including that employers should not have to pay compensation for stress-induced illness, unless such illness was reasonably foreseeable. This is not the ‘get out of jail free’ card that it initially sounds to be, as there is a lot within those 16 practical propositions that an employer must still do.

As these claims are bought in the civil courts the law of tort, i.e. ’wrongdoing’, will be used. Two particular torts are usually used, namely the tort of negligence and the tort of breach of statutory duty.

The Tort of Negligence

A claim for compensation based upon the tort of negligence requires that all four general conditions must be proved by the Claimant, as part of a causal chain, these being that:

1. A duty of care must be owed by the Defendant (employer) to the Claimant (employee); and
2. The duty of care must have been breached. (Did the employer do enough to take reasonable care? Often proved if sufficient records exist of good health & safety practices); and
3. The injury or loss suffered by the Claimant must have been due to the breach of duty of care. (Was the injury or loss related to the acts or omission of the employer rather than an activity or incident which occurred out of work in the employee’s personal time?); and
4. The injury or loss to the employee must have been a reasonably foreseeable consequence of the employer’s acts or omissions.

The Tort of Breach of Statutory Duty

An alternative route when making a claim for personal injury is for the Claimant to show that the Defendant was in breach of a relevant statute, and, therefore, liable to pay compensation. This was established in Groves v Lord Wimborne (1898), when a boy had his arm amputated due to an unguarded cogwheel when working at the Defendant’s factory. It was held that the applicable statute required the secure fencing of dangerous parts of machinery, and, therefore, the statute was relevant to the boy’s civil claim.

However, section 69 of the Enterprise and Regulatory Reform Act came into force on 1 October 2013, amending s.47 of the Health and Safety at Work, etc. Act 1974, which, up to that time, meant there was a legal presumption that all health and safety regulations involved civil liability, unless expressly excluded. The 2013 Act reverses this presumption, so now no regulation will impose civil liability unless there is express provision to that effect. There will be no civil enforcement for breach of health and safety regulations. In reality, this means that Claimants have to rely on actions for common law negligence.

Additionally, this means that the burden of proof, instead of being on the employer to show what steps were taken to protect an employee, has now shifted to the employee to prove negligence. Prior to the 2013 Act, employees needed only to show that a machine was inadequate or defective, but now they have to prove that an employer could, and should, have spotted the defect before the incident, and rectified it.

Finally, it is worth remembering that the enforcement of health and safety regulations is in the domain of the Health & Safety Executive (the HSE).

Contributory Negligence

One of the more important defences is that of “contributory negligence”, which permits the amount of compensation to be reduced if the employee was partly to blame for an accident through their own negligence. For example, if a Claimant failed to follow the employer’s procedures or defined working practices, e.g. not following what they were trained to do, or, not wearing the protective clothing or equipment provided for that job then their actions amount to contributory negligence, leading to any damages award being reduced. Where it can be shown that the injury sustained was due to the sole fault of the Claimant, the Defendant may not be deemed liable at all, but 100% contributory negligence rarely happens.

Vicarious Liability

We recently wrote a detailed article on vicarious liability so, a brief recap, is that in some situations an employer could be deemed liable for the negligence of its employees with respect to some other person being injured. The key conditions for vicarious liability to third parties are that:

• the employee must have been negligent
• the employee must have been acting in the course of employment, in other words, acting on behalf of the employer

The Supreme Court has recently given judgment in two landmark cases involving vicarious liability. The first, Mohamud v Morrison Supermarkets plc (2016) concerned an attack on a customer by an employee of Morrisons, where the Supreme Court ruled that the company was vicariously liable because the attack was sufficiently closely connected to the employee’s work. The second case is Cox v Ministry of Justice (2016), where the Catering Manager at a prison was injured when a prisoner dropped a sack of rice onto her. The Supreme Court ruled that the Ministry of Justice (MOJ) was liable to compensate her stating that it was fair, just and reasonable to impose liability on the MOJ.

Timescales Limitations for Claims

Any action for personal injury, or death, must be commenced within three years from the date of the accident, or where the Claimant first became aware of the injury, i.e. the date of diagnosis by a medical practitioner. In the case of a death, the Fatal Accident Act 1976 allows close relatives to make a claim on behalf of the deceased. Courts do have discretionary power to override the three-year period where it is equitable to do so.

Damages

Damages can be considerable under two headings:

• Pecuniary: these involve monetary losses, such as loss of earnings, medical and travel expenses. It is the loss of future earnings up to retirement that can involved the biggest part of a damages claim especially if the Court accepts that the Claimant will not be able to work again.
• Non-pecuniary: these involve compensation for pain and suffering, and loss of amenity, such as changes to lifestyle, e.g. being stuck in a wheelchair.

Claim Procedures

New rules have existed since 1999, following on from Lord Woolf’s enquiry, which introduced a number of “pre-action protocols” to provide for the early exchange of information. Parties who fail to comply with the protocols can be penalised by the Courts. A summary of the intended sequence of events are:

• Letter of claim sent and received
• Defendant must at least acknowledge receipt within 21 days
• Claim investigated
• Admit liability and settle out of court
• Deny liability, either completely or partially
• Relevant documentation disclosed
• A “statement of truth” must be signed by someone from the defendant’s organisation

Letter of Claim

Following the decision to make a claim, the Claimant, or more usually their solicitor, must send two copies of a standard “letter of claim” to the Defendant. The letter contains information relating to the general circumstances of the claim, including the nature of any accident, a description of injuries sustained, and the documents which the Claimant would like to be disclosed. The Defendant must acknowledge the letter of claim within 21 days. If the Defendant does not reply within this timescale, the Claimant will be entitled to begin legal proceedings, and the Court will take into account the fact that the Defendant did not follow the protocol’s rules. This puts an important onus on employers to react quickly to letters of claim.

From 1 August 2013, Claimants in employer personal injury claims of up to £25,000 have had to use a Government claims portal although disease-related claims are excluded. The aim of the portal is to manage personal injury claims efficiently and quickly. It operates by way of a system of notifications and responses, which are input into the portal by the Claimant and the Defendant, or its insurers. A Claimant who is seeking compensation for a personal injury claim must register the claim on the portal by completing and registering a Claim Notification Form, which is like a letter of claim. It must include sufficient information for the Defendant to investigate the claim. If liability is admitted, the claim stays within the portal. If liability is denied, or an allegation of contributory negligence is made, the claim falls out of the portal to be dealt with in the normal way.

A Claimant can remove a claim from the portal if there are complex issues of law, or fact. The intention of the portal is to assist in the settlement of straightforward personal injury claims quickly, and within a framework of low fixed costs.

The Government has recently proposed reforms of the procedure for low value personal injury claims. The main aim of the proposals is specifically to reduce the number of road accident fraudulent whiplash claims, but, if and when the proposals are implemented, they are likely to also impact claims for workplace injuries.

Information that Defendants must disclose

Following the initial acknowledgement by the defendant of the letter of claim, the Defendant has three months to investigate the claim before replying. The protocols set out in some detail specific information that Defendants must disclose. For workplace injury claims, this includes:

• Accident book entry
• Any first aider report
• Any initial management report

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) require that certain accident/injuries must be made to the HSE, so it is important to retain a paper copy of that report as well.

Where specific regulations apply, the protocols require additional documents to be produced. For example, in respect of the Management of Health and Safety at Work Regulations, the following should be disclosed:

• pre-accident risk assessment required by regulation 3
• post-accident risk assessment required by regulation 3
• accident investigation report
• any appropriate health surveillance records required by regulation 6

In cases where the Control of Substances Hazardous to Health Regulations (COSHH) is relevant, a similar disclosure of documentation is required by the protocols. This includes:

• the risk assessment complying with the requirements of regulation 6
• documentation relating to the maintenance of personal protective equipment

For claims involving the Workplace (Health, Safety and Welfare) Regulations, the documents required to be disclosed include:

• repair and maintenance records required by regulation 5
• housekeeping records to comply with regulation 9

You need to be aware that if the employer is unable to produce the relevant documentation, it may make fighting the case much harder, and your insurance company is more likely to want to settle the case. The argument being to have complied with the law, then appropriate records must be able to prove it.

Where the pre-action protocols do not result in agreement or settlement, the case will be allocated to one of three “tracks”:

1. Small claims track jurisdiction, with a financial limit of £5,000.
2. A fast track for relatively straightforward cases up to £15,000, with strictly limited timetables set up by the Court.
3. A multi-track for cases over £15,000, providing hands-on management by the Court.

This should help achieve quick settlements of cases by the Courts.

Tips to help successfully defend a Claim

Having a good paper trail of evidence on all of the above and, indeed, other health & safety matters, e.g. regularly reviewed health & safety policy, annual health & safety actions plans etc., will help to make a difference. Other suggested actions include:

• Make sure that what is said happens in the health & safety policy and associated policies and procedures, do indeed happen in practice, by regularly inspecting and periodically auditing all activities.
• Ensure that health and safety is talked about regularly at either Board/Senior Management level, alongside other key business objectives.
• Make sure that people are encouraged to report accidents, incidents and even near misses, in a spirit of openness and transparency. Clients that tell me that they never have accidents are just kidding themselves, they do, they are just not recorded which is far more concerning.
• After an accident happens, ascertain immediately who did, or did not, see the accident, and get signatures under each heading. Ask witnesses to write down as soon as possible exactly what they did see, before they have a chance to revise or tone down what they saw, in order to minimise getting others into trouble.
• Investigate any accident or injury that becomes RIDDOR reportable, and make sure the report is not focused on blame, but is rather all about better understanding how the accident happened and, as a result, what improvements could take place.
• Make sure that important records, such as risk assessments, safe systems of work, safety action plans, induction checklists are not only kept, but are up-to- date and easily retrievable.
• Make sure additional records, e.g. individual risk assessments or return to work programmes, are kept for those people with “special needs”, such as young persons, the disabled and/or people with serious medical conditions.
• Have robust recruitment and selection procedures, including identifying in job descriptions where there are specific and objectively justifiable criteria, e.g. certain levels of physical fitness or mental robustness.
• Check out whether future Managers understand their health and safety responsibilities, and what have they done to reduce known risks in previous jobs.
• Use the discipline procedure for breaches of health and safety procedures and protocols, e.g. where people won’t wear PPE, or take unsafe shortcuts in working practices.
• Train all staff to make sure that they can do their jobs safely. Train Managers on the additional duty of care responsibilities that they have towards their team(s).
• Write into all Management job descriptions health and safety responsibilities, and include health and safety objectives in any formal performance management reviews.

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

What is it?

Developing resilience appears to be a hot topic in business circles, as it is the further evolution from stress management. Reading media publicity, authors and trainers, the concept is being pushed as a key to unlocking business performance, helping people cope more effectively and efficiently with the stresses and strains within the modern day workplace.

The importance of resilience really begins to emerge when we consider the range of different workplace situations where it is required – for example, dealing with organisational change, threats to job security, feelings of restricted control or autonomy, or a heavy workload. Some people will handle these situations better than others – those who are able to successfully draw upon a combination of their personality and learned behaviours will cope with the problems, and perhaps even turn them to their advantage, with resulting individual and organisational benefits.

Mind (the mental health charity) define it thus: “Resilience is not simply a person’s ability to ‘bounce back’, but their capacity to adapt in the face of challenging circumstances, whilst maintaining a stable mental wellbeing.”

“Emotional resilience” is more hard-hitting than many of the other methods promising to keep us cool, calm and collected. Originally developed to help victims of natural disasters and massacres cope with catastrophe, it is slowly infiltrating workplaces, schools and communities. No matter how you define resilience, most agree there’s less of it around than is actually required, and this could well explain the increasing incidences of poor mental health.

How do we get more of it?

Resilience is not just about survival, it helps us to grow and develop so that we can successfully navigate our careers in the modern world. Contrary to popular belief, resilience is not something that either you have or don’t have; we do not have a ‘fixed level’ of resilience so it can be developed.

Resilience training – which draws on elements of Cognitive Behavioural Therapy (CBT) and positive psychology – seems to have a real impact on peoples’ self-reported ability to cope. Robertson Cooper in their website “A Good Day at Work” state that resilience is derived from four principal factors: confidence, a sense of purpose, social support and adaptability – see diagram below. Many people typically rely on one or two of these but may need help to make the most of the strengths they have, and use those to build and maintain their resilience to find the best way through life’s challenges.

The best way to begin developing resilience is to understand these components, and identify which of them you tend to draw on naturally. From there you can start to adopt alternative and more constructive coping strategies in certain situations, and avoid any possible risks of over-using your strengths.

People with a negative mind-set are far less resilient. For example, negative people may expect to lose their jobs as a result of change. This immediately puts them on the defensive so they perform less well, and consequently their fear ultimately can become a self-fulfilling prophesy. By contrast, more positive people see the opportunities in change and are likely to benefit accordingly. Changing mind-set is not an easy task, but it can be done.

It is also worth remembering that the fundamentals of good diet, plenty of exercise, rest, good quality sleep, minimal alcohol and other drug intake cannot be ignored, as they have a huge effect on how much pressure someone can handle. Resilience helps you to boost your own levels of confidence and emotional well-being, and gives you a brighter outlook on life. Resilient people are less likely to suffer from severe mental health problems, and even if they do, they are better able to manage it using resilience techniques.

Ways to build your emotional resilience

Resilient behaviour can be learned and developed to manage pressure, promote well-being and bolster resilience. The following might be termed self help:

1. See crises as challenges to overcome; not insurmountable problems.
2. Surround yourself with a supportive network of friends and family. Can you ask for support when it is needed?
3. Accept that change is part of life, not a disaster.
4. Take control and be decisive in difficult situations.
5. Nurture a positive view of yourself – don’t talk yourself down or focus on flaws.
6. Look for opportunities to improve yourself; a new challenge, social situation or interest outside work. Set goals and plan ways to reach them.
7. Keep things in perspective: learn from your mistakes and think long-term.
8. Practice optimism and actively seek the good side of a bad situation.
9. Practice emotional awareness: can you identify what you are feeling and why?
10. Look after yourself, through healthy eating, exercise, sleep and relaxation.
11. Developing relationships and a passion for what we do.
12. Take the time to learn, think and build knowledge.

The Resilient Manager

You will know that you are a resilient Manager when you display some of the following key characteristics, and can effectively implement a range of different coping mechanisms:

• You are transparent: you can admit things are difficult and let others know this is how you are feeling.
• You have realistic expectations of yourself: you are not a perfectionist and can give yourself a break.
• You deal with problems effectively: feeling stressed may all be about (a) your perception about the meaning of events, (b) your reactions, and (c) knowing what can and should be changed as opposed to what cannot be.
• You communicate assertively: you have achieved a balance between not bottling up feelings and not over-reacting, but communicating clearly in a way that is respectful of yourself and others, including saying “no” when you need to.
• You have inner buoyancy: the confidence to feel that you will survive and come through hard times, a sense of optimism and engagement with life and work, underpinned by strong personal values.
• You are able to return to a calm state after feeling upset or emotional, and think through possible consequences of actions – the ability to switch off and refresh.
• You have an internal ‘locus of control’- i.e. not feeling like a victim.

Resilient people possess three characteristics — a staunch acceptance of reality; a deep belief often buttressed by strongly held values that life is meaningful; and an uncanny ability to improvise. You can bounce back from hardship with just one or two of these qualities, but you will only be truly resilient with all three. These three characteristics hold true for resilient organisations as well. Resilient people know that a situation, good or bad, has to be accepted before it can be changed. Acceptance is a key component of resilient thinking – don’t fight reality as you won’t win.

Organisational Approaches

Self development and training alone is not enough to change a culture. Training in resilience should not be seen as a sticking plaster covering up organisational weaknesses. Poor job design needs to be addressed. Targets and deadlines need to be realistic. Senior people must not condone a bullying culture which disregards organisational dignity at work policies. Resilience should be seen as part of your organisational well-being approach. As such, part of developing resilience is to encourage good social connections at work, so that people do not feel isolated.

In a Harvard Business Review survey, 75% of Managers said that the biggest drain on their resilience reserves was “managing difficult people or office politics at work.” That was followed closely by stress brought on by overwork, and by having to withstand personal criticism. These are issues which senior management can address.

The following are good organisational resilience strategies:

• Develop your employees’ creative problem solving skills.
• Provide training in handling difficult situations and how to deal with conflict skilfully and when to use mediation.
• Facilitate emotional resilience in the workplace by providing a pleasant physical working environment (e.g. good lighting, ergonomic seating, etc.).
• Promote healthy behaviour in the workplace (e.g. healthy eating, physical activity).
• Provide training for employees and Managers to recognise and take early action to ameliorate conditions that can produce stress.
• Create opportunities for ‘good work’ – i.e. characterised by employment security, task variety, autonomy, fair treatment and reward for effort, strong workplace relationships and effective development and use of skills.
• Support employees with mental health problems (and other health issues).
• Encourage Managers to think creatively about their own well-being and emotional resilience, helping them to identify their own stress triggers, and creating strategies to cope, should this be required.

Resilient people and companies face reality with staunchness, make meaning of hardship instead of crying out in despair, and improvise solutions from thin air. This is the nature of resilience, and we may never completely understand it. It is, however, important because it not only makes people more productive, but helps protects them against the development of mental health problems.

If you are interested in undertaking a free i-resilience report, then follow the link on the Good Day at Work website: http://www.robertsoncooper.com/improve-your-resilience/i-resilience-free-report-preview.

 

 

Our Consultants wouldbe pleased to advise you on any element of the issues arising from this newsletter.