Did you know ?   

  Harassment at the Xmas Party

Fat is an employment issue   Are employers likely to face discrimination claims?

No smoke without fire……   Employers have always faced difficulties with the 'cigarette break'.

Who killed the cleaner ?   Why not come to our seminar.........

Did you know ?

Air traffic controllers at a busy airport skipped work to play football. The 61 staff allegedly got their colleagues to cover for them while they competed in a mini league against fellow workers. Officials deny that the 45 near misses that were reported during the 6 months had any connection to this situation.

nbsp;

According to a mystery shopper survey, supermarkets in the South of England give worse customer service than in the North of the country. 600 Supermarkets were visited and the survey measured whether staff greeted customers with a smile, said please and thank you, stated the cost of purchases and said goodbye - The three highest scorers where located on the English and Scottish borders, East Anglia and the highlands of Scotland.

 >

A stress-busting workout will help your employees perform better in the workplace. A recent poll revealed that providing exercise facilities at work or helping towards gym costs could boost productivity and morale.

December is the time for partying and getting into the Christmas 'spirit'. But, what responsibilities does the employer have at the Company's Christmas party? Our advice is to think twice before making alcohol freely available at the Company's expense.

Imagine that a female employee complains of sexual harassment after the Company's Christmas party. Whether the complaint is against a director, manager or any other employee the employer must take such a claim seriously.

All employers, especially during the festive period, need to be aware of the potential consequences of their employee�s acts during working hours and any events out of work specifically organised by the Company. If the employer was to do nothing or trivialise such complaints then the employer is likely to be primarily (or vicariously) liable for the acts of the employee. Just one single event or gesture can give grounds for a claim.

If an employee commits an act of discrimination or harassement, the employer is liable for any compensation that is awarded. This is known as vicarious liability. However, if the employer can show they have taken reasonable steps to prevent discrimination or harassement, then the individual employee may be held personally liable.

It is, therefore, vital that employers draw up an appropriate harassment policy including not just sexual but also racial harassment. It should ideally also mention the Company's attitude to bullying and any conduct that has a negative affect on the dignity of a person. Prudent employers take harassment extremely seriously and will not tolerate it.

All complaints must be taken seriously and investigated immediately. Depending on the findings a fair and effective disciplinary procedure followed. If the situation demands it, the alleged offender should be suspended with pay whilst the investigation is conducted regardless of their position in the Company.

For a draft Harassment Policy please contact us. 

Fat is an employment issue

The number of seriously overweight people is rising throughout the developed world, making obesity one of the fastest developing public health problems. The World Health Organisation has described obesity as a 'worldwide epidemic' and estimates that around 250 million people worldwide are obese.

Studies in the UK revealed a steady increase in obesity over the last 50 years, in a pattern similar to that in the US. Three-quarters of adults in the UK weigh more than is ideal for optimum health. The potential problem in employment terms alone is frightening. It begs the question “How long will it be before obesity is classed as a physical or a mental impairment under the Disability Discrimination Act”?

A possible scenario

You are interviewing for a Personal Assistant to your Director of Logistics. The interviewee is to work on the third floor and will have much contact with your customers at meetings and seminars. The building is old with narrow spiral stairs and no lifts. You select two candidates, both with equal experience and qualifications. The first candidate seems ideal for the job, but your second candidate, whilst similarly suitable in every other way, is noticeably overweight. You notice that he/she is suffering from shortness of breath. When you conduct him/her around the building you notice that the candidate is noticeably struggling with the stairs. You are concerned firstly that he/she may not be physically fit enough for the role but also that he/she may be unable to escape from the narrow window on the third floor in the event of a fire.

Possible issues might be:

1. Does the health & safety of the candidate make your decision for you?
2. To what extent are you going to be prejudiced by your personal views on overweight people?
3. If there is statistical evidence suggesting that there are more obese people of a particular gender or race, then are you laying yourself open to a potential discrimination case?
4. If the candidate is perfect in terms of their experience and qualifications would you be willing to make an adjustment to accommodate them?

As things stand, if you decided as an employer that you were not prepared to make a reasonable adjustment, as you might in a disability case, you would not be breaching any legislation.

To protect themselves employers would be well advised to conduct pre-employment health screening in all cases and a risk assessment. The employer should then be able to make an informed decision on the person's fitness to do the job. Care must still be taken however, when making such decisions so as not to fall foul of any existing discrimination laws.

As the law stands

The Disability Discrimination Act 1995 says 'a person has a disability if he has physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities'. It would be reasonable to assume that obesity should fall into the 'physical impairment' category.

According to the Act, 'a physical impairment' need not be a clinically well recognised illness, whereas a 'mental impairment' has to be clinically recognised.  However, recent research has linked obesity to certain medical conditions such as diabetes, which is considered a disability under the Act.

In general terms, discriminating against a person because of their size, shape or weight is not illegal in the UK.  The legal system in the USA however, although reluctant to qualify obesity as a disability, is taking this issue very seriously as US courts see more and more claims via the Americans with Disabilities Act (ADA). On its own 'Simple Obesity' is unlikely to qualify as a disability whereas 'Morbid Obesity' – defined as being caused by a physiological disorder - has seen plaintiffs claiming entitlement to ADA protection. This link could equally apply in the UK in time, as a 'physical impairment' materialising as a direct result of a 'mental impairment'. 

Until the first cases of discrimination reach the UK courts, it is difficult to predict what might be a likely outcome. Case law is most likely to provide the answers, unless the Government takes a strong lead. 

No smoke without fire……

Findings in a recent report ‘The Smoking Epidemic in England’, revealed that smoking kills over 86 thousand people a year, the equivalent of 230 people a day consequently fueling the argument of banning smoking in the workplace.

Banning smoking completely is a step that has already been taken in Ireland and is currently being considered in the Scottish Parliament, a decision is likely to be made before Christmas. As for England, progress is being made and as this issue moves up the legislative agenda, employers are faced with having to make difficult decisions not only to adapt to the possible effects of a total ban but also the opinions of their non smoking and smoking employees.

Due to the health risks associated with active and passive smoking there has been a growing trend for employers to ban staff from smoking at work. Some have gone as far as refusing to recruit people who smoke regardless of whether this is at home or at work; could this action amount to an act of discrimination?

Current UK law outlaws discrimination against employees and job applications on the basis of sex, race, disability, sexual orientation and religious belief, it does not however discuss the issue of discrimination against smokers. For the smoker this is unfortunate as the disability discrimination act does not count addiction to nicotine as a ‘disability’ as the addiction itself is classed as ‘self-inflicted’. Therefore on the surface, nothing in law prevents an employer from refusing to employ a smoker. Unless, for example the smoker has other associated medical health problems as a result of smoking such as lung or heart disease and was rejected, it is then possible to make a claim.

Most employers ensure that provisions are inplace in the form of no-smoking policies, although some may argue that under the Human Rights Act 1998 a no smoking policy is a breach of their right to private and family life. However in a recent case, it was held that conditions held within a similar policy were justified because it was for the 'protection of health and the rights of freedoms of others'. This, in the same way is what a no-smoking policy is doing by protecting the health of other employees, subsequently claims under the Human Rights Act can be side stepped. Furthermore, under the Health and Safety at Work Act 1974, employers are required to 'provide and maintain a safe working environment which is, so far as reasonably practicable, safe without risks to health and adequate as regards facilities and arrangements for their welfare at work'.

Employers have always faced difficulties with the 'cigarette break' and although you must ensure you act reasonably towards your smoking employees, respecting their right to smoke outside of the premises, you can police the number and duration of breaks taking any appropriate action to discipline those that abuse this right.

Who killed the cleaner ?

If only …

“She deserved to be sacked. You could never be sure she’d come to work. And sometimes, you could tell she’d been drinking. So I sacked her.
“Trouble is, she took us to a tribunal. It cost us a huge amount on legal fees and now we’re not sure what the outcome will be.
“If only I had acted differently …”

Don’t end up regretting your actions. You may be right but, if you don’t do follow the right procedures, you can easily end up at an industrial tribunal.

To be sure you understand the rights and wrongs of employment law, why not come to our “Who killed the cleaner?” seminar, a joint venture between Picasso HR/Gipping Occupational Health and Suffolk Chamber of Commerce.

Based around dinner and a short play, we’ll explore the ins and outs of employment law in a way that’s fun and easy to understand.

Hopefully, you won’t need to sack anyone, but if you do... 

February 10th, 7.00 pm at Swallow Belstead Brook Hotel.
Tickets cost £30.00 plus VAT including three course dinner and glass of wine
Call for more details.

The information in this newsletter is of a general nature and is not a substitute for professional advice. You are recommended to obtain specific professional advice before you take any action.

For further information, advice or assistance on any of the matters raised in this newsletter please contact Picasso HR on 01473 890037.

Copyright Picasso HR Ltd 2002-2010. Registered in England No 4173777

Email Martin to unsubscribe from this newsletter      Privacy policy.