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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

Insight: UK Employment Law Round-up – December 2016

Employment Round Up THUMBNAIL Welcome to the December edition of our employment law round-up. In this edition, we couldn’t fail to give you an update on the most important piece of constitutional litigation of our time, which has been heard by the Supreme Court on Article 50. Other festive treats include a summary of recent restrictive covenants cases (first published on HR-Inform) and unfair dismissal litigation. We have also given you our take on calculating rest breaks for workers, and the dangers of using employees’ personal data unlawfully.

Read the full newsletter here.

Insight: UK Employment Law Round-up – December 2016

Sleep-deprived or sleeping beauty?

Employers may start taking more of an interest in its employees’ bedtime routines based on the latest research from Rand Europe. Using data from 62,000 people, they discovered that sleep-deprived workers cost the UK economy £40 billion a year, as well as having implications on employees’ health.
The cross-country report found the following:

  • US loses 1.2 million working days a year, costing US $411 billion (£328 billion);
  • Japan loses 600,000 working days a year, costing US $138 billion;
  • Germany loses 200,000 working days a year, costing US $60 billion;
  • Canada loses 80,000 working days a year, costing US $21.4 billion; and
  • the “healthy daily sleep range” is between seven and nine hours per night.

So what can employers do?
Employers could invest and build “nap rooms” or sleep pods so employees can sleep at work when needed. However, the simplest and most beneficial option is to promote the benefit of a healthy working lifestyle for employees.

Of course, employers cannot ensure that employees are getting the required seven to nine hours per night and there will be times when late night working is required (for example, for large deals or international work). However, they can ensure that the need to be available around the clock is reduced, encourage employees to leave the office at reasonable hours and discourage the use of electronic devices when employees have left the office.

Staggeringly, the report suggests that if those currently sleeping six hours a night increase this to between six and seven, it would add £24 billion to the UK’s economy. So, time to put down the Blackberry and call it an early night?

Sleep-deprived or sleeping beauty?

Insight: UK Employment Law Round-up – November 2016

Employment Round Up THUMBNAIL In this issue we look at a recent Court of Appeal decision focusing on sexual orientation protection following a refusal to bake a cake decorated with a gay rights message. We also look at the rights of breastfeeding mothers at work, and Asda’s equal pay claim case, which may lead to further claims against Asda. We consider Tribunal decisions deciding employment status and rest break rights. We review the importance of having clear guidelines on job descriptions, and proposals to provide an entitlement to bereavement leave. Finally, we give an update on changes to the Immigration Rules.

Read the full newsletter here.

Insight: UK Employment Law Round-up – November 2016