Managing incapacity: health and safety of staff

The employer's duty to take reasonable care means you must protect employees from risk of foreseeable injury, so you are liable only for consequences you can reasonably foresee. In practice, this means that if you actually know, or ought to have known, of a health or safety risk to the workforce, in the light of the current state of market knowledge, you will be liable for death, injury and disease if you failed to take reasonable care. So you must keep up to date on all developments in the law on health and safety. This obligation was set out clearly and succinctly in the Stokes v Guest Keen & Nettlefold (Bolts & Nuts Ltd) [1968] 1 WLR 1776.

Under the Stokes guidelines an employer must:

Under the guidelines an employee, in order to claim damages for negligence, must prove that:

An employee has three years to bring a claim of personal injury in negligence from the date the cause of action occurred or the date of his knowledge of the injury, if later.

What about negligent acts by staff?

You are liable for not only your own acts but those of your employees committed in the course of their employment (otherwise known as vicarious liability). Vicarious liability makes ever more pressing your obligation to have competent employees who co-operate and work well with one another, and to control all behavioural aspects of the workplace. Remember that the employment documentation you are required to provide to employees gives you every chance to tell employees what sort of behaviour is considered unacceptable and may result in dismissal.

THE HEALTH AND SAFETY AT WORK ACT

On top of your common law duties, you must also comply with the general duties on health and safety laid down in The Health and Safety at Work (etc) Act 1974 (HSWA). The HSWA imposes criminal liability. Companies, their managers and directors who are in breach of their duties are liable to criminal prosecution and may incur substantial fines. In addition, a successful criminal prosecution can have a significant effect on any company's corporate image and so seriously affect business opportunities.

Codes of practice

The HSWA is supported by Codes of Practice issued by the Health and Safety Commission (whose function is to propose new law) and Guidance Notes from the Health and Safety Executive (whose function it is to enforce existing law). Guidance Notes tend to explain what, from the point of view of an employer, it is currently best practice. They are not legally binding but they do carry weight when given in evidence. A Code of Practice explains, rather than stipulates, what, in the view of the Health and Safety Executive, is 'reasonably practicable'. If you fail to comply with a Code of Practice, a court or tribunal may presume that you were in breach of it, so you need to be able to satisfy the court that you could and did comply with the statutory obligation in some other way.

Duty to take reasonable care

Section 2 of HSWA states that an employer's duty is to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. It, therefore, mirrors the obligation in negligence.

Section 3 of HSWA places a duty on an employer (and the self-employed) to conduct their business so as to avoid exposing third parties not in their employment to risks to their health and safety.

In practice, this covers:

The phrase 'so far as is reasonably practicable' does not make the employer's duty absolute - you must first establish the size of the risk associated with that particular hazard and compare it with the time, cost and effort needed to avert the risk. Clearly, if the cost is considered to be out of all proportion to the risk, then you will probably have discharged your duty. You can delegate the performance of the safety duties to managers, officers, supervisors and other employees but this does not mean you have no ultimate liability for any injury arising in connection with this delegation.

You will therefore appreciate that the criminal law also obliges you to keep up to date with current relevant technical publications and developments potentially affecting your products and services.

Employees duties

HSWA requires all employees while at work, to:

You can make use of this obligation to emphasise to employees their obligation to comply with your lawful and reasonable orders.

Health and Safety Regulations

Regulations are, from time to time, made under HSWA. The most significant regulations were made on 1 January 1993 when the 'Six-Pack Regulations' came into effect. They expand on the duties in HSWA to help companies and their officers and employees understand risks and thereby encourage the setting up of compliance systems. They represent a watershed in the enforcement of health and safety law in this country. The six sets of regulations are:

The emphasis on systems and organisations has led to closer scrutiny of management behaviour. As a consequence, the scope for personal liability of directors and managers has increased considerably.

CARRYING OUT RISK ASSESSMENTS

The most significant requirement of the Management of Health and Safety at Work Regulations is that which obliges employers (and self-employed persons) to assess risks. This means: 'formally to identify the hazards present in any undertaking and to estimate the extent of risks involved, taking into account those precautions which are already in place, to the health and safety of employees and others who may be affected, in order to identify measures needed to comply with relevant health and safety legislation.'

So, in addition to day-to-day routine checks, you are required to conduct a systematic general examination of work activity and record significant findings. There are various model risk assessments prepared by trade associations and frequently the assessment will be performed by your health and safety officer.

Those affected will include:

An assessment should be carried out as soon as the Regulations come into force, and whenever the assessment is no longer valid due to new or changed circumstances, for example, a pregnant employee.

Any business moving into new premises (or modifying existing ones) must check that they meet the required standards.

You must record the findings of their assessment and note any group of employees identified as being especially at risk.

CASE STUDY 1

Kirsty Dingle, one of the general office workers who delivers the post every day is four months' pregnant. She has had spells of absence from work due to her bad back (even before she was pregnant) and she is demanding a risk assessment of her working conditions.

Her job involves pushing the post trolley around the office and picking up and delivering various items. She has already stated that she feels her job involves tasks which she thinks may be damaging to the health of her baby. Dingle has been to her GP and he agrees that there could be a risk involved. She has shown Smith the letter from her GP and is demanding to be suspended on full pay.

MODEL ANSWER

Key Issues

There are a number of potential issues here for Law Co.

Under the Health & Safety legislation Law Co is obliged to carry out a risk assessment of the processes and working conditions which could jeopardise Dingle's health or safety and/or that of her child while she is pregnant. Additionally, failure to carry out the risk assessment may amount to sex discrimination as was highlighted in a recent case of Hardman v Mallon, EAT [2002 IRLR 516].

Risk Assessment

Pushing the post trolley and carrying heavy packets are working conditions which may jeopardise or appear to be jeopardising Dingle's health because she is pregnant and already off work with a bad back. Clearly, the assessment will reveal this risk and Law Co will need to do all that is reasonable to remove it and/or prevent Dingle's exposure to the risk. Taking account of the letter from the GP, Law Co can see that there may well be a risk. Law Co therefore needs to consider whether the risk can be avoided.

Options

There are a number of options open to Law Co. As always, the best option is to sit down with Dingle and explore them. Before reaching any agreement regarding possible suspension on full pay, there are other potential options which should be discussed.

Option one - purchasing an electronic trolley

Option two - alternative work

Option three - suspension on full pay.

Option one

While this is something Law Co should consider, it should also bear in mind that this will not necessarily remove the requirement to sometimes lift heavy items. This may therefore not be the best option for Dingle.

Option Two

Law Co should think creatively about alternative forms of work for Dingle. For example, there may be a vacancy in the postroom sorting the mail or a position that involves more sedentary work. It may even be possible to 'swap' Dingle's role with that of another employee (by agreement with the employees) for a temporary period.

It should be remembered that the new job will need to be on terms which are not substantially less favourable than those Dingle currently enjoys. This means that Law Co may be able to reduce or pro-rate her pay if, for example, the work was conducted on a part-time basis, provided that such adjustment is intended to be only temporary.

Law Co should also bear in mind Dingle's right on return is to do the job she was doing immediately before maternity leave. With this in mind, Dingle herself may wish to agree that on return she has a right to go back to her old job.

Even if an alternative position is found, Law Co must not forget to review the alternative position as well to ensure that that does not itself reveal any health risks which have not already been considered.

Option Three

Employees often demand suspension on full pay when an issue like Dingle's arises, but this should not be offered or agreed to by Law Co until it has considered every other option. If there are no alternative positions for which Dingle could be considered and no other options, then Law Co may ultimately end up taking this route.

CASE STUDY 2

It transpires that Nurse is not taking her break or leaving her workstation, instead of which she is leaving the office at 5.30am. She should normally take her break between the hours of 1.00am and 2.00am. For the past three months she has had sporadic days off sick and her self-certification states that this is due to irritable bowel syndrome ('IBS').

Nurse had agreed with Simms on an informal basis that she could work through her break and leave early to get her son ready for school when her husband was working an early shift. Although she does not do this all the time, she does do it three out of the four nights each week. Simms has now raised the issue with Smith as he is concerned about Nurse's absence levels due to IBS. He is also concerned because now Nurse is demanding to leave work early on most days.

MODEL ANSWER

Key Issues

Nurse, as a night worker is protected by Working Time Regulations 1998 and care must be taken by Law Co not to do anything which could amount to a possible breach of these Regulations.

Rest break

Night workers are meant to take a rest break of not less than 20 minutes where their daily working time is not less than six hours. Such rest breaks must not be taken at the start or end of the day. Accordingly, to allow Nurse to continue with the current pattern of hours and the failure by her to take any breaks means that Law Co is running the risk of a breach of the Working Time Regulations which could have serious consequences.

Managing the situation

While Simms is likely to be concerned that Nurse could raise the argument that her terms and conditions have been changed by custom and practice, it is unlikely on this occasion that such an argument would be successful because the change is in breach of the Working Time Regulations and steps must immediately be taken to rectify the situation.

Law Co should be mindful of the fact that even a one-off occasion of allowing Nurse not to take her break is unacceptable under the Regulations. If it is strictly necessary that Nurse leaves work early, then she must ensure that she takes the break. A form of compromise would therefore be to allow her to leave early anyway and it would be up to Law Co in these circumstances to consider whether or not to make an appropriate deduction in respect of her pay.

Irritable Bowel Syndrome

As a night worker, Nurse would have been entitled to a free health assessment before she first undertook the night shift. Such assessments normally take the form of a screening questionnaire, compiled in consultation with healthcare professionals such as doctors or nurses familiar with the nature of Law Co's business and the issues associated with working at night.

Guidance to the Working Time Regulations suggests that certain stomach or intestinal disorders may be made worse by night work in some cases. Bearing this in mind, Smith should require Nurse to see the company doctor to find out whether or not night work is aggravating her condition.

One of the things which should be explored with the company doctor, is whether or not Law Co can make any reasonable adjustments to Nurse's working conditions to alleviate her problems. Although Law Co does not know at this stage whether Nurse's particular circumstances with IBS is something which may fall within the protection of the DDA, it should still take the opportunity to consider what, if any, reasonable adjustments it may be able to make to improve Nurse's attendance levels.

Transfer to day work

Another option to explore with the company doctor would be whether or not a transfer to day work is a possibility. The work does need to be suitable in which case the personal circumstances of Nurse will need to be taken into account. This will include, any childcare arrangements.

If suitable work could not be found then this would be likely to amount to a potentially fair reason for dismissal, ie, on the grounds of some other substantial reason of a kind such as to justify dismissal. Obviously the factors relevant to the fairness of such a dismissal would be likely to include whether, and to what extent, Law Co consulted with Nurse and obtained medical advice before taking the decision to dismiss.

What about pay?

Assuming that, in consultation with Nurse, an alternative transfer to day work is explored. It is likely that night work will attract a higher rate of pay than day work and the question therefore arises whether or not, in the absence of an express provision in the employment contract, the worker may be required to take a pay cut.

If, for example, Nurse insisted on the right to be transferred to day work, it could be argued that any pay cut arising from the transfer would amount to a detriment under the Employment Rights Act. However, it is difficult to describe an employee as having suffered a detriment when pay is reduced to reflect the fact that they ceased to work anti-social hours.

It could also be argued that, in these circumstances, the pay cut arises not from the worker's insistence on the right to be transferred but from the transfer itself.

CASE STUDY 3

The associate lawyer supervising him, Sarah Sykes, has had a friendly informal chat with him about his smelly trainers, but there has been no improvement generally. Sykes is having to leave the windows open in the office even in adverse weather conditions and is now finding the situation unbearable. She has now contacted HR to see if there is something that can be done.

MODEL ANSWER

Key Issues

Law Co needs to rule out the possibility of any discrimination issues. It also needs to take account of its obligations to ensure the health and safety of its employees.

Discrimination

Personal hygiene is a difficult and sensitive area and there may be cultural or racial reason for certain odours. If this is the case, an employer must take care not to discriminate for these reasons. However, in Collar's case it appears that there is a genuine personal hygiene problem so discrimination should not be an issue.

Health & Safety

It is arguable that the principle established in the case of Waltons & Morse v Dorrington, EAT [1997 IRLR 488] could be extended to apply to this situation. The case established that there is an implied term to provide and monitor a working environment which is reasonably suitable for the performance of an employee's contractual duties.

Managing Collar

It is incumbent on human resources - now that Sykes has made the complaint - to take action. Obviously if, after consulting with Collar, there is no improvement in his personal hygiene then it would be possible for Law Co to proceed down the disciplinary route after a series of appropriate warnings.