Expensive Slips after Risk Assessments Fell Down   How a simple risk assessment could have saved serious injuries.

Retirement Procedure   Impact of Age Discrimination

New Rights for Carers   The right to make a request for flexible working

Expensive Slips after Risk Assessments Fell Down

People often think that risk assessments are difficult. In most cases they are not, and the HSE recently highlighted two incidents where a simple risk assessment could have saved serious injuries and a lot of money.

Both occurred in food preparation areas.

In the first incident a lady slipped on a tiled floor and fractured her skull in the fall. When HSE inspected the premises they found that the floor was very slippery with only small amounts of water on it. They reported that “kitchen staff could be seen walking with a very peculiar gait to avoid slipping”.

When the case came to court the judge said it was an entirely preventable accident. The Company had to pay over £36,000 including prosecution costs. The real tragedy is that the injured lady is unlikely to work again.

In the second incident a sixteen year old girl was working in a fast food restaurant. She slipped on water leaking from an ice-making machine and put her hand out to save herself. Unfortunately her hand went into the deep fat frier and she suffered severe burns.
An investigation by the safety inspector revealed that it was common practice to leave spillages at busy times and cover them with a sheet of cardboard, which itself can create a tripping hazard.

The ice-making machine had been leaking for several days and various attempts had been made to cure it. The outlet was short staffed on the day of accident and the Team Leader was working on the tills.

The Company was fined £15,000.

In both of these cases the risks were obvious to anyone who cared to look for them. This is what risk assessment is really about. Not filling in paperwork or remembering obscure regulations. Just opening your eyes, seeing an “accident waiting to happen”, and then doing something to prevent it.

Retirement Procedure

In the past we could always assume that an employee would retire on reaching their 65th birthday. There was no need to do anything apart from remember to buy a card and arrange the leaving party.

Well, the Age Discrimination Regulations have changed all of that.

The onus for retiring someone is now fairly and squarely on the employer. To put it simply, if the employer doesn’t do anything, the retirement may not happen and the employee will have the right to continue working.

What the employer must do now is to think at least six months ahead of any retirement, and put in place a retirement procedure.

The retirement procedure isn’t particularly complicated, but it is important to get it right. That’s because one of the main changes under the new Regulations is that employees over the age of 65 now have the right to go to a tribunal with a complaint of unfair dismissal and receive compensation if they win their case.

The retirement procedure follows the usual type of 1-2-3 pattern.

1. Send a letter about the forthcoming retirement and inform the employee that they have the right to make a request to continue working.
2. If the employee makes a request to continue working, invite them to a meeting to discuss it.
3. After the meeting, write to the employee with your decision, giving the opportunity for an appeal if you refused their request.

The Regulations don’t require you to give reasons for a refusal, so as long as you follow the procedure you will still be able to retire an employee even if they don’t want to go. We suggest Picasso HR clients contact us shortly after your employee’s 64th birthday, so we can make sure you follow all the correct steps.

New Rights for Carers

As from 1st April 2007, carers will have the right to make a request for flexible working.

And what do we mean by a carer? Although the regulations haven’t been finalised, we know that it will mean someone who is caring for a person over 18 who is either married to them (in the broadest sense of course), or a relative, or someone who lives with them.

This right is a “right to make a request” and sounds similar to the procedure for asking to stay on after the age of 65. But don’t be fooled by the fact that they sound similar. Unlike the “retirement-postponement” request you will not be able to refuse requests for flexible working with impunity.

That’s because the right to request flexible working is the same right that has previously applied to parents of young children, (or disabled children up to the age of 18).

And we know that in these cases, employers are required to give their reasons for refusing a request and tribunals have taken a tough line in questioning these reasons.

The maximum penalty for unfairly refusing a request for flexible working is eight weeks pay (at up to £290 per week). However, claimants have often been successful in pursuing additional claims for sex discrimination with the possibility of much steeper damages.

For example in Hardys and Hansons plc v Lax, Ms Lax asked to job-share when she returned from maternity leave. The Company refused and the tribunal found that this amounted to indirect sex discrimination. This was because their practice was more disadvantageous to women than to men.

Now indirect sex discrimination can be lawful if it is justified but the onus is firmly on the Company to show this. The legal phrase is that it must be a “proportionate means of achieving a legitimate aim”.

It is the tribunal’s job to make its own judgement “upon a fair and detailed analysis of the working practices and business considerations involved”. In other words the tribunal has the power to “second-guess” whether your decision is reasonable.

The lesson here is that if a request is made, whether by a carer (after April 2007), or by the mother of a young child, the request must be treated with great care.

Only written requests qualify for these rights, so Picasso HR clients just need to notify us if a request is received and we will help you to deal with them properly.

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.

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