Employment Law and Occupational Health

A Practical Handbook

Joan Lewis, Greta Thornbory

• Publisher: Wiley-Blackwell
• Year: 2012
• Print ISBN: 9781405197830
• eBook ISBN: 9781118291009
• Edition: 2
• Topic: Medicine
• Subtopic: Biostatistics

'Employment Law and Occupational Health: A Practical Handbook' provides an essential guide to best practice for all occupational health practitioners.

This readable guide to the law will help to ensure both business success and respect for individual employment rights. The cost of sickness absence can present major costs and business management problems. Safeguarding health is therefore vital to both individuals and employers.

'Employment Law and Occupational Health' explores key issues in occupational health practice from pre-employment, through health surveillance and occupational health services, to termination of employment. Topics explored include ethical and confidentiality issues, discrimination, data protection, working abroad, pregnancy and maternity leave, workplace policies, drugs and alcohol testing, stress, counselling, health surveillance and professional conduct rules.

This second edition has been fully revised and updated to include a number of significant changes to employment law as well as new case law decisions that have occurred since the 1st Edition was published. Essential new material has also been included around age discrimination, disability discrimination, work related stress, corporate manslaughter and work-place bullying.

• An accessible, practical guide to applying health law in everyday practice.
• For occupational health nurses and other occupational health practitioners.
• Addresses key employment issues from pre-employment to termination of employment.
• Includes case studies, procedural checklists, and template letters and forms.

Chapter 1

Recruitment and Pre-employment Health Assessment

All employers, whether they employ one or many staff, have to know the fundamentals of employment rights today. Failing to do so can be costly financially and can risk damage to the organisation’s reputation and its employment relations.

There is a myriad of regulations covering all forms of discrimination in employment. Going some way towards streamlining matters, a single Equality and Human Rights Commission was established in October 2007, under the Equality Act 2006, which replaced the former Equal Opportunities Commission and the Disability Rights Commission. The Equality Bill is to come into law in April 2010. Its purpose is to consolidate the various discrimination statutes and offshoot regulations. Within the new regulations will be a simplified approach to indirect discrimination, achieved by creating a test of whether a particular disadvantage has arisen where a ‘provision, criterion or practice’ has been applied. Employers may be able to justify indirect discrimination if they satisfy the test of reliance on a ‘proportionate means of achieving a legitimate aim’. Although the ‘genuine occupational requirement’ defence will be available in all discrimination claims except disability, it will remain arguable that there were no reasonable adjustments that could be carried out to accommodate a disability. However, on a cautionary note, the scope of such defence is narrow and employers need to have given genuine consideration to the law at the time they made their decisions, and not when preparing a defence to an employment tribunal claim.

The starting point for understanding and adhering to the required standards begins when recruitment is contemplated. It is too late if thought is given to non-discriminatory practices after the recruitment process has begun. In 2008, two high profile cases showed the high price employers can pay for their alleged mishandling of recruitment. We will cover the cases of Channel 5 and Selina Scott in which age discrimination was alleged, and the case of the hair stylist who covered her hair with a scarf, was not offered a job and then alleged discrimination on religious grounds. Our case law examples in this chapter will demonstrate that those who are responsible for making offers of employment require a basic knowledge about employment rights, and health and safety obligations.

In some organisations recruitment is a responsibility vested in one person. In larger organisations there may be a multi-disciplinary team of people involved, for example human resources and/or external recruitment agencies, working with any occupational health services. Occupational health may be asked to provide an assessment of the applicant’s suitability in relation to their health, for the post for which they have applied, based on the information provided by the candidate and prospective employer. There is much more that needs to be considered, particularly from the legal perspective, not only to comply with existing legislation but also in order to avoid future problems both for the employer and the health of the worker. This chapter will address the key legal issues of recruitment and pre-employment, highlighting the important role management and occupational health services can play in preventing potential problems and promoting a healthy workforce.

Employment law perspectives

The recruitment process begins to have legal implications from its very outset. Following good practice, in a pre-considered and standard format, each time appointments are planned can avoid many pitfalls and potential legal costs that might otherwise arise.

Timing of general considerations, including when to involve occupational health, is better done sooner than later. All too often problems occur when the employing organisation considers that the legal aspects of recruitment only become relevant when an offer of employment is to be made. In fact the wording of the job advertisement, any job description details provided, the title of the job, the person specification skills and experience quoted, all have legal implications that need to be considered by employers long before offers of employment or contracts are issued.

Once the employee joins the organisation, the recruitment process is still not quite completed; the written contract of employment must be issued, together with key policy documents, such as the health and safety policy, staff handbook, internal discipline, grievance and appeals procedures, equal opportunities and anti-discrimination polices, etc. Today these policies can often be found on the company intranet and so are readily available to most workers. But training and induction are vital requirements to be carried out as soon as possible so as to complete the recruitment process.

Fire and emergency procedures training are very important requirements in induction training, along with other training on policies and procedures, use of equipment generally and any particular risks and hazards. Chapter 3 covers further details of health and safety at work matters.

Records of induction training should be kept as evidence that it has taken place. The recruitment plan should also include a clear protocol as to the keeping of records of all applications, in line with the requirements of data protection law and related best practice guidance.

It is worth remembering that internal transfers or internally promoted employees may require health assessment for the new post as well as induction training for their new role. There are also certain situations that require special attention, such as the employment of young people, those returning to work after sickness absence or sabbaticals, people who have special health considerations to be taken into account and people who have workplace adjustments which may need to be checked and reviewed for appropriate compliance.

Preparing to recruit

There is no legal obligation on employers to advertise vacant posts to which they hope to appoint. But it can be difficult for employers to show that they are following good practice in promoting equal opportunities at work if they do not advertise appropriately. For example, if a particular element of the local or national population is under-represented within the workplace currently, then efforts should be made to give such people the chance to be considered for appointment. It may also be that the workforce overall appears at one level to match the local demography, whereas closer examination of the data could reveal that particular groups of people are under-represented at more senior levels.

Generally the minimum requirement for good practice is for posts to be advertised internally. But employers must bear in mind the need to ensure, as previously mentioned, that the spread of people is fairly represented at each level within the organisation. A company policy that has an adverse effect on one group of people, who are protected from discriminatory practices by law, can be held to be indirect discrimination. So internal advertising, while justifiable in many cases, can carry with it an inherent risk of recruiting externally at lower levels only and so could lead to claims of indirect discrimination. The internal/external advertising question should be a considered choice in each case rather than a norm.

The obligations on employers to comply with anti-discrimination and equal opportunities legislation begin at the point of advertisement planning. The wording of the advertisement is important. Careless wording about the job, the person specification criteria given, and even the method of application can lead to major problems. Web advertisements or internal notices about employment opportunities require the same standards of non-discrimination as any other form of published advertising. There has been a particular focus on the careful wording of job advertisements since the introduction in October 2006 of the regulations prohibiting age discrimination.

The good news is that pre-planning in recruitment will really help to avoid potentially costly and much more time consuming problems that might otherwise confront an employer. Key anti-discrimination legislation to be taken into account in the preparation of and throughout the recruitment and appointment process include:

• the Equal Pay Act 1970
• the Sex Discrimination Acts 1975 and 1986
• the Race Relations Act 1976 and 2000
• the Disability Discrimination Act 1995
• the Disability Discrimination Act 1995 (Amendment) Regulations 2003 SI 2003 No. 1673
• the Employment Equality (Religion or Belief) Regulations 2003 SI No. 1660
• the Employment Equality (Sexual Orientation) Regulations 2003 SI No. 1661
• the Employment Equality (Age) Regulations 2006 SI No. 1031
• Equality Act 2006 (Dissolution of Commissions and Consequential and Transitional Provisions) Order 2007, SI 2007/2602

Case law: discrimination alleged during recruitment

Rainbow v. Milton Keynes Council, EAT, 1200104/2007

Advertising for applicants with less than five years’ experience was age discrimination.

Rainbow was a 61-year-old teacher with 34 years’ experience. Her school sought applicants for a new post which would ‘suit candidates in the first five years of their career’. R applied nonetheless but was not successful. Her claim of indirect discrimination was upheld: the employer had focused on candidates with less than five years’ experience in order to lower staff costs. Cost factors alone were not held to justify the ensuing result of age discrimination.

Selina Scott v. Channel 5, Reports from CIPD Member Resources September 2008 and Daily Mail, 6 December 2008

One of the most high profile age discrimination cases did not reach a public hearing. Broadcaster Selina Scott brought tribunal proceedings in which it was alleged that she was not appointed as maternity leave cover for Natasha Kaplinsky on Channel Five News because at 57 she was considered to be too old. Isla Traquair, 28, and Matt Barbet, 32, were offered the role instead. According to press reports, Ms Scott and Channel 5 have settled their claim for a six figure sum estimated to be around £250,000.

Bushra Noah v. Sarah Desrosiers trading as Wedge, ET 2201867/2007

In a widely reported religious discrimination case, N’s application for a hairstylist job was rejected because she covered her hair with a headscarf. She brought employment tribunal claims for direct and indirect religious belief discrimination. She was awarded £4000 for injury to feelings. In fact, her claim for direct discrimination actually failed because the tribunal found that Wedge would also have turned down non-Muslim applicants who wore headscarves at work. But the claim for indirect discrimination succeeded because Wedge could not justify their requirement that stylists display their hair while at work.

Job descriptions

A key part of recruitment is the preparation of the job description. This should summarise the main duties and responsibilities of the post, give details of accountability and make mention of the need for change and flexibility. A future change provision stating words along the following lines might be a sensible standard clause:

This is an outline summary of the key duties of the post/job as currently required. The nature of the business requires flexibility and change to skills and duties over time. From time to time job descriptions will need to be reviewed and revised in consultation with the postholder to ensure they relate to the job actually being performed, or to review and incorporate changes expected.

If the job is likely to require particular skills, such as driving, then this should be specified and include the type of licence required. If the nature of the post is such th...

Table of contents

• Cover
• Contents
• Title
• Copyright
• Preface
• Acknowledgements
• Abbreviations
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Other Legal References
• Foreword
• Introduction
• Chapter 1: Recruitment and Pre-employment Health Assessment
• Chapter 2: Records and Reports
• Chapter 3: Health and Safety at Work
• Chapter 4: Occupational Health Services
• Chapter 5: Managing Absence and Rehabilitation
• Chapter 6: Termination of Employment
• Appendix 1: Occupational Health Service Confidentiality Policy
• Appendix 2: COSHH Health Surveillance Registration Form
• Appendix 3: Management Referral Letter/Form
• Appendix 4: Letter to Employee Requesting Attendance at Occupational Health
• Appendix 5: Letter from Occupational Health to GP or Specialist
• Appendix 6: Employee Consent to Disclosure
• Appendix 7: Occupational Health Report Form to Management
• Appendix 8: Medical Report Consent Form
• Appendix 9: Risk Assessment Example Template: for Guidance on Evaluating Level of Risk
• Appendix 10: Sample Protocol Outline: Data Protection
• Glossary
• Index