1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Risk assessments for breastfeeding mothers

The European Court of Justice (CJEU) has held, in the recent case of Otero Ramos v Servicio Galego de Saude, that failure to conduct an appropriate risk assessment for a breastfeeding employee amounts to sex discrimination.

The employee in this case was an accident and emergency nurse who had made a request for an adjustment to her working pattern on account of her breastfeeding. Her concerns included the complex shift rotation system, exposure to ionising radiation, healthcare-associated infections and stress. She requested an adjusted shift pattern and preventative measures to be implemented. Her employer issued a report stating that her work did not pose any risk to her breastfeeding her child and rejected her request for an adjustment to her working conditions.

The employee filed a claim for sex discrimination against her employer, alleging that the risk assessment carried out by her employer did not comply with the requirements of EU law which provides measures to improve health and safety for pregnant and breastfeeding workers. The CJEU found that the employer had failed to perform an individual assessment of the employee’s circumstances, as required under the legislation, and rather it had conducted an assessment of the employee’s role as an accident and emergency nurse.

Accordingly, the CJEU held that failure to properly assess the risk posed by the work of a breastfeeding worker in accordance with the requirements of EU law must be regarded as less favourable treatment and constitutes direct sex discrimination.

Risk assessments for breastfeeding mothers

Parental bereavement leave bill published by the government

On 13 October 2017, the government published the Parental Bereavement (Pay and Leave) Bill. This will offer two weeks' paid leave to any employed parent who loses a child under the age of 18.
Read more »
Parental bereavement leave bill published by the government

The Repeal Bill – Workers’ Rights

On 7 September 2017 the government published a factsheet on the impact of the Repeal Bill, which was recently passed by a majority of MPs, and the future status of workers' rights following the UK's withdrawal from the EU.
Read more »
The Repeal Bill – Workers’ Rights

People Management article, featuring Michael Bronstein

As you may have seen, People Management recently published an article on some of the big developments in employment law in 2017, particularly Brexit and the Taylor review. The discussion featured Michael Bronstein, a partner here at Dentons. Michael gave some insight on the potential effects of withdrawing from the EU on employment legislation, acknowledging that there is 'a common misconception that all employment rights are created by the EU'. In the lead up to triggering Article 50, the government maintained that there would not be any change to workers' rights following Brexit, so it would be brave to take away key protections, many of which derive from UK law anyway. Other commentators suggested there may be reforms to TUPE, although agreed that it will stay, but perhaps in a slightly amended form. As for a new visa regime for workers, the outcome is unclear. The uncertainty has already caused many workers to leave at a time where we are beginning to see a shortage of labour. This has not been helped by the recent leaked Home Office post-Brexit Immigration Policy which has confirmed the fears of employers with respect to the future of EU workers in the UK.
Read more »
People Management article, featuring Michael Bronstein

Leaked Home Office post-Brexit Immigration Policy

As many of you will have seen, the Home Office's draft Post-Brexit Immigration Policy was leaked this week, and has since become a topic of much interest. The document has caused concern among many employers, as the stricter controls being proposed on EU immigration could lead to a significant shortage of labour in the UK, which could be hugely damaging to the economy. EU nationals currently comprise around 7% of the overall workforce in UK, with certain sectors almost entirely dependant on their contribution.
Read more »
Leaked Home Office post-Brexit Immigration Policy

Safeguarding mental health: essential for your construction workers, good for your business

The UK’s mental health is currently under scrutiny with high profile dignitaries, businessmen and organisations all helping to raise awareness of the problems it can cause in the workplace. Many campaigners come from the construction industry – an industry not renowned for its workers’ empathy and compassion. Like diversity in the construction industry, which we commented on last month, mental health has, traditionally, been one of those topics everyone avoids both on and off site. But this is not a new topic for construction: back in 2014, Building considered why talking about mental health is taboo in construction. Building focused on the hidden health and safety risks that mental health problems pose in the workplace which can be just as serious a threat to workers as physical injuries and fatalities.

Click here for the full article from our Construction team: https://www.dentons.com/en/insights/articles/2017/march/15/safeguarding-mental-health-essential-for-your-construction-workers-good-for-your-business

 

Safeguarding mental health: essential for your construction workers, good for your business

Dealing with personal relationships in the workplace

It has recently been reported in the press that John Neal, the CEO of the Australian headquartered insurance and reinsurance company QBE, had his annual bonus cut by twenty per cent (which equated to AU$550,000 or £340,000) for failing to disclose a personal relationship with his executive assistant. The decision to cut his bonus was taken despite what QBE described as a “commendable year [during which he] delivered a strong full year result”.  It has been reported that Mr Neal’s executive assistant was also executive assistant to the board.  QBE requires executives to disclose workplace relationships under its executive code of conduct.

Workplace relationships are common. Employees necessarily spend significant time together, and in many cases will have common interests.  Some employers view these relationships as a positive.  For example, one of the UK’s largest independent travel agencies is known to have produced well in excess of 100 marriages.  However, workplace relationships can be a distraction, can fuel gossip and can sometimes complicate decision making.  To be clear as to their expectations, employers should consider the circumstances in which workplace relationships may be inappropriate, and may wish to put in place a policy on them.  Any policy should strike a balance between an employee’s right to a private life, and the employer’s right to protect its business interests.  In most cases, this is likely to include a requirement that an employee discloses any workplace relationship that may give rise to a conflict of interest or a breach of confidentiality.  It should also be made clear to employees that they must not allow personal relationships to influence their conduct in the workplace.

Mr Neal’s case is an extreme example.  As CEO, he was clearly obliged under the executive code of conduct to disclose any personal relationship with a colleague.  Mr Neal has himself admitted that he did not do this, and that he could see that it might cause damage to the company’s reputation.  It is important to remember that the issue here was not the relationship itself so much as Mr Neal’s failure to abide by the code of conduct, and disclose it.  Whilst it has been reported that Mr Neal’s executive assistant has decided to leave QBE, it is understood that no action was taken against her, presumably because she was not subject to the code of conduct.  It is unlikely to be appropriate for employers to take steps to reduce bonuses, or take disciplinary action against an employee, simply for having a personal relationship with a colleague.  Such steps may be appropriate though, where an employer has a policy on workplace relationships which an employee deliberately disregards.  As always, when making a decision to reduce a bonus payment in any circumstances, an employer should consider whether the terms of the bonus scheme allow it to do this.  Failure to do so might lead to a claim for unlawful deduction from wages, or breach of contract.  The specific terms of the bonus scheme which applied to Mr Neal are not known.

Dealing with personal relationships in the workplace

Health and safety sentences: update on the sentencing guidelines one year on

Employers have a general duty to ensure the safety of their employees under section 2 of the Health and Safety at Work Act 1974. On 1 February 2016, the new sentencing guidelines for health and safety offences came into force. The guidelines direct the courts to consider the sentencing of offending organisations using a step-by-step approach. This approach comprises nine categories, including the level of culpability, the seriousness of the harm at risk and whether anyone was actually harmed. The guidelines also require an assessment of turnover to set a starting point for a fine that is “intended to bring the message home to the directors and shareholders of offending organisations”.

Merlin Attractions Operations Limited (Alton Towers) was one of the first large organisations to receive a conviction and sentence under the new guidelines. The court fined it £5 million, following an accident which injured 16 people and resulted in life-changing injuries for two girls who needed leg amputations. Alton Towers admitted to breaching the Health and Safety at Work Act 1974 and it will have to pay the £5 million in addition to any individual compensation payments to the victims of the accident. Three other large organisations have received fines of between £1.8 million and £2 million for breaches of their health and safety duty under the new regime.

Last year Wilko Retail Limited (Wilko) received a fine of £200,000 in relation to a workplace fatality. More recently, in January 2017, Wilko received a fine of £2.2 million as a result of an incorrectly loaded roll cage toppling onto a Wilko employee, causing spinal injuries and paralysis. At £1.4 billion, Wilko’s turnover is much higher than the £50 million threshold for “large” companies under the sentencing guidelines. Therefore, the judge proceeded in delivering a sentence that was proportionate to this turnover, and one which would ensure that the fine would have a real impact on the company and act as a warning to other organisations. This recent judgment demonstrates that judges’ discretion to go beyond the guidelines for very large organisations is an important element of the new guidelines. It shows that breaches of health and safety can result in a much higher sentence than would previously have been anticipated, let alone issued.

It is important that executive boards and senior management teams understand the steps they can take in advance of a potential incident to ensure that any harm is avoided. In particular, employers should follow the steps below to ensure they minimise the risk of health and safety breaches, and avoid prosecution for these breaches altogether.

  • Identify and control health and safety risks
  • Ensure that systems are in place to control the risks identified
  • Implement, and adhere to, the systems that have been set up
  • Provide proper training to staff (both health and safety, and for use of specific equipment and machinery used in the workplace)
  • Regularly review risk assessments

Employers should also ensure there are clear health and safety policies in place for all staff to refer to, and a clear reporting line for employees to raise any concerns over health and safety in the workplace. The recent Wilko case acts as a warning to employers that breaches of the general duty to ensure the safety of their employees could have a severe impact, both for the welfare of their employees and financially for the organisation. Employers should also be reminded that the potential effect of any criminal proceedings and/or convictions could result in the imprisonment of individuals at the organisation if the individual’s consent, connivance or neglect has led to a relevant breach of health and safety.

Health and safety sentences: update on the sentencing guidelines one year on

Women returners

Of the thousands of professional women currently on a career break, around 427,000 want to return to work at some point in the future. However, research shows that, upon returning to work, three in five women could end up in lower-skilled jobs and 29,000 women returners would prefer to work more hours but are unable to do so due to the lack of flexible working opportunities (click here for link to PWC’s report on women returners). At the end of January the Women and Work All Party Parliamentary Group (APPG) launched its first annual report on this very topic. The report analyses the barriers that a career break of more than six months can present to women returners and makes recommendations, both to employers and to the government, on how they can better support these women. The report also highlights the economic advantages of increasing the employment numbers of women with dependent children (many of whom take maternity leave and additional time off to care for their children). It states that an increase of five per cent could generate around £750 million in increased tax revenue and decreased benefit spending.

  1. The recommendations made by the APPG include:
    Equalising Statutory Maternity Pay (SMP) and Statutory Shared Parental Leave Pay so that couples are not penalised financially for taking Shared Parental Leave (SPL), which would therefore, hopefully, encourage take up of SPL.
  2. Bringing Maternity Allowance in line with SMP to ensure that self-employed women are not disadvantaged.
  3. That workforces with more than 250 employees should:
    1. have a carers policy detailing organisational support available for those with caring responsibilities;
    2. consider having a return to work policy; and
    3. consider having a returner programme to offer training, guidance and advice to returners.
  4. That employers should promote best practice through a flexible working Kitemark scheme with official accreditation and assessment.
  5. The introduction of penalties for employers who limit flexible working unnecessarily.
  6. That secondary schools and sixth forms should ensure information about self-employment and entrepreneurships is on the curriculum.

At this stage the recommendations are just that – recommendations – and it is unclear whether the government or employers will act on any of them. However, clearly there is an increasing and ongoing dialogue regarding recognising the value of women in the workforce and recognising that career breaks are valuable. As Flick Drummond MP said at the APPG launch, “if we want to be a happier and more successful country, we must appreciate that some people take time out of the workplace for either caring responsibilities or to pursue other interests”.

The full APPG report can be found here.

Women returners

When is an after-party an after-party? Christmas parties and vicarious liability claims

It’s that time of the year again – Christmas parties and work socials galore. That heady mix of festive spirit and copious amounts of free alcohol. Add in work colleagues and things can get a little bit sticky. As some employers have learned the hard way, there is a fine line between the point at which a work event ends and a private social event begins.

Where mishaps do occur, employers could inadvertently find themselves vicariously liable for the actions of their employees.

An employer can be held responsible for the actions of employees “in the course of employment”. The employees actions must be “so closely connected with [the] employment that it would be fair and just to hold the employers vicariously liable”.

Whether something is done “in the course of employment” is highly fact sensitive, which is demonstrated by some of the seemingly conflicting case law in this area of vicarious liability.

Bellman v Northampton Recruitment Ltd [2016]

In this recent case, a manager assaulted a director after a Christmas party, causing him serious brain injury. As is not uncommon, after the Christmas party, a group of employees carried on the night with another drink at a hotel nearby. The relevant assault took place at the hotel at 3am. The High Court held that the employer was not vicariously liable, as the employee’s actions were not sufficiently connected to his employment. The Court considered that the after-party was a private event as it had taken place in a different venue to the work Christmas party, a significant period of time had passed since the party had ended, it was not pre-planned and the employer was not paying for the drinks.

Livesey v. Parker Merchanting Ltd [2004]

By contrast, on a similar set of facts, the employer in this case was found vicariously liable for the actions of its employee who sexually assaulted a colleague after a work Christmas party. The distinguishing fact was that the assault occurred in the car on the way home, immediately after the party. The Court found that the conduct in question was a continuation of sexual harassment by the employee at the work event and, as such, was in the course of employment.

What can employers do to mitigate some of the risks?

The cases demonstrate how difficult it can be to draw boundaries between what is a work event and what is a social event. Employers should have adequate policies in place to set out what behaviours will not be tolerated. Employees should be reminded of these policies before work events and training should be provided where appropriate.

When is an after-party an after-party? Christmas parties and vicarious liability claims