Legal Update (December 2018)05 December 2018

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Fostering good mental health
The focus of workplace health and safety has always been on safeguarding employees against risk of physical harm.

However, health and safety regulations also place a duty on the employer to safeguard their employees’ welfare at work. Some organisations are now starting to consider ways of doing just that.

The Health and Safety Executive confirms that employers have a legal duty to protect employees from stress at work and they are therefore required to undertake a risk assessment and act upon it.

Our advice: Below are a few examples that some businesses have tried in order to improve their employees’ wellbeing:

● Have a flexible working policy that allows employees to exercise before work or during lunch break

● Provide healthy eating options in canteens and vending machines

● Arrange staff discounts at local leisure centres and health clubs

● Provide information on walks near work

● Provide support to employees who want to quit smoking

● Ensuring robust policies and procedures are in place to combat bullying and harassment

● Educating employees on self-management tools and techniques such as mindfulness or peer support.

Fine for tyre manufacturer
In September, tyre maker Pirelli was fined over £500,000 after two workers were seriously injured at its Carlisle factory. The men suffered serious injuries to their arms in separate incidents where they were pulled into inadequately-guarded machinery in 2013 and 2015. The firm admitted health and safety breaches at a court hearing. Pirelli was fined £512,000 and ordered to pay a further £5,820 in costs.

Our advice: Seek early legal advice from a specialist regulatory team. Expert involvement at an early stage can greatly reduce the length of an investigation and assist to achieve the best outcome for those facing charges.

Ethnicity pay gap reporting
The government has published a consultation paper on introducing mandatory pay gap reporting on ethnicity grounds. This consultation follows the government’s Race Disparity Audit, which showed significant inequality in terms of access to quality employment, housing and education for those from BAME backgrounds compared to their white counterparts.

This consultation runs until 11 January 2019, with legislation likely to follow later that year and employers given until 2020 to prepare for this change.

How do I know if my employee has a disability?
Many employers struggle with the complex area of reasonable adjustments for employees with disabilities and there are complex questions involved in establishing whether an employee meets the legal definition of disability.

The Equality Act 2010 defines a disability as a physical or mental impairment that has a substantial and long term adverse effect on a person’s ability to carry out normal day-to-day activities.

Top Tips:

● If an employee refers to a disability, whether in a form, correspondence, or a by way of a GP’s note, follow this up with the employee; what is the condition? What has their GP or consultant said? How does it impact their duties? Has it resulted in any, or a pattern of, absences?

● Consider whether an occupational health referral is necessary. If it is, try to ask practical questions. What is the impact on the employee’s ability to carry out normal day-to-day tasks and work duties? Is it long term? What adjustments could be made to mitigate those effects?

● Do not substitute the occupational health view for your own. If the questions asked are not answered adequately, seek further clarification if you are concerned that something may have been overlooked.

● Implement adjustments recommended by occupational health where it is reasonable to do so. If an adjustment can be easily accommodated and implemented, it is probably the safest approach to be proactive and do so.


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