6. The law

Health and safety law

Employers have a general legal obligation to provide a safe place of work for their employees, meaning they have an overall obligation to protect their physical and mental health. They also have specific legal duties under health and safety legislation. These include:

• a general duty to ensure the safety, health and welfare at work of their employees under the Health and Safety at Work etc Act 1974 (HSWA). The Act covers: activities; premises, plant and machinery; the prevention of harmful emissions; and the safety of substances supplied for work. The Act’s requirements include a written health and safety policy, consultation with safety representatives of recognised trade unions, and the operation of safety committees. It is an enabling act under which more detailed health and safety regulations are made, some of which are listed below;

• a duty to carry out risk assessments as set out in the Management of Health and Safety at Work Regulations 1992;

• responsibility for ensuring minimum standards for the workplace as laid down in the Workplace (Health, Safety and Welfare) Regulations 1992, covering working environment and welfare facilities (maintenance, ventilation, temperature, lighting, cleanliness, space, workstations and seating, floors, sanitary facilities, clothing and changing, resting and eating facilities, and smoking at work);

• the control of hazardous substances under the Control of Substances Hazardous to Health Regulations 1999 (COSHH) and the Chemicals (Hazard Information and Packaging for Supply) Regulations 1994 (CHIP);

• responsibility for equipment at work under legislation including the Health and Safety (Display Screen Equipment) Regulations 1992, which provide for “screen breaks”, the Provision and Use of Work Equipment Regulations 1998 (PUWER), and other more specific regulations relating to mobile work equipment, lifting operations and equipment, and personal protective equipment;

• responsibility in relation to manual handling and noise in the workplace, as regulated by the Manual Handling Operations Regulations 1992 and the Noise at Work Regulations 1989;

• keeping a record of reported accidents as set out in the Reporting of Injuries, Disease and Dangerous Occurrences Regulations 1995 (RIDDOR), which also cover people diagnosed as suffering from certain specified diseases; and

• working time arrangements under the Working Time Regulations 1998, which set a maximum working week (generally 48 hours), place restrictions on the length of night work and set requirements for minimum daily and weekly rest periods and paid annual leave.

The Management Standards for workplace stress can be found at www.hse.gov.uk/stress/standards/. The Standards do not have the status of law, but they represent a voluntary framework of good practice, using a step-by-step risk assessment-based approach to health and safety, adapted for use in relation to psychological safety. There are six standards. They are:

• Demands: including workload, work patterns, the work environment.

• Control: how much say a worker has over how they do their work.

• Support: including the resources and encouragement provided by the organisation, managers and co-workers.

• Relationships: good relationships with colleagues, avoidance of conflict and dealing with unacceptable behaviour.

• Role: ensuring that workers understand their role and are not given conflicting roles.

• Change: the way in which organisational change is managed and communicated across the organisation.

Equality legislation

Equality legislation enables workers to take action through Employment Tribunals if they have been denied equal access to sick pay provisions, or have been discriminated against in respect of sick pay or sickness procedures, or dismissed on grounds of ill-health in circumstances amounting to disability discrimination. With effect from 1 October 2010, the majority of equality laws have been consolidated into one single Act, known as the Equality Act 2010. However, with the exception of the law governing disability, the underlying content of equality legislation insofar as it relates to sickness absence remains largely unchanged. Particular relevant changes have been highlighted in Chapter 2. The Equality Act identifies nine categories described in the legislation as “protected characteristics” that are covered by anti-discrimination laws. These are:

• age;

• disability;

• gender reassignment;

• marriage and civil partnership;

• pregnancy and maternity;

• race;

• religion or belief;

• sex (including equal pay); and

• sexual orientation.

The Equality Act has replaced a large body of legislation including the Equal Pay Act 1970, the Sex Discrimination Act 1975; the Race Relations Act 1976; the Disability Discrimination Act 1995; the Employment Equality (Religion or Belief) Regulations 2003; the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Age) Regulations 2006.

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which prevent employers treating part-time workers less favourably than their full time equivalents, remain in force.

The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, which protect directly employed temporary employees against less favourable treatment than their permanent counterparts, remain in force. Agency workers are specifically excluded from this legislation.

Relevant legislation to protect agency workers

At the time of writing, the Agency Workers Regulations are not yet in force. The scheduled implementation date is 1 October 2011. The effect of the Agency Workers Regulations, if implemented, will be to enhance the rights of qualifying agency workers so as to provide them, broadly speaking, with a right to equal treatment in respect of a variety of terms and conditions, including pay, the duration of working time, night work, rest periods, breaks and annual leave, with their directly recruited counterparts once they have completed a 12 week qualifying period. However, the definition of “pay” is subject to a number of important restrictions and in particular, the right to contractual sick pay is excluded.

Contractual rights

Occupational or company sick pay is part of an employee’s contract of employment, which means that an employer who fails to pay it will be in breach of contract. Sickness absence procedures may form part of the contract, in which case an employer — or an employee — who fails to act in accordance with the procedures may be in breach of contract. However, it is not uncommon for sickness policies to be seen as best practice or guidance only, in which case they would have no legal standing, although a material failure to follow a sickness policy is likely to contribute to a finding of unfair dismissal.

Medical reports

The Access to Medical Reports Act 1988 gives employees (and prospective employees) the right to see medical reports prepared by their own GP, or any other medical practitioner responsible for their care, in connection with their employment. Under this Act, an employer must obtain the employee’s consent before seeking a report from their doctor and must inform the employee of their rights under the Act.

The individual has the legal right to have a copy of the report before it is forwarded to the employer and is entitled to query items in it and ask the doctor to amend it. If the doctor refuses to accept changes to the report, the employee can attach a statement to it stating their objection.

The Access to Health Records Act 1990 gives individuals the right to apply for access to records relating to them that are held by a health professional. Unlike the 1988 Act, the definition of “health professional” in the 1990 Act would cover a company doctor who is not responsible for the employee’s care.

Information about health and sickness

Information about employees’ health and sickness absence is protected by the Data Protection Act 1988 (DPA). It is classed as “sensitive personal data” under the Act which means that it is subject to greater controls. Employees have the right to see information that is held about them either on computer or in a manual filing system. In a particular case, this could extend to internal emails or memos about a particular individual’s fitness to work, passing between, for example, the human resources department, occupational health and the line manager. This area of law is largely untested.

The DPA must be interpreted in a way that is consistent with the Human Rights Act 1998 (HRA), under which individuals have the right to a private life, home and correspondence. The HRA itself can generally be enforced directly against public authorities but not against private employers. Rights under the HRA are not absolute in that, as illustrated by the cases on covert surveillance in Chapter 5, the rights of the individual will be balanced by the court against the rights of the employer.

Unfair dismissal and statutory sick pay

The fairness of a dismissal on grounds of sickness absence is governed by the Employment Rights Act 1996. This is covered in Chapter 5. There is a legal right to minimum statutory sick pay for those employees and workers who meet the qualifying conditions (this is explained in Chapter 3).

Protection from Harassment Act (PHA) 1997

The PHA was not designed for use in an employment setting, but a series of recent cases involving allegations of very serious harassment and bullying have established that it can be used by employees, although the Courts have yet to decide firmly on the precise scope of the legislation. As such it is an area of law that should be regarded as uncertain and developing.

A PHA claim is brought in the County Court or High Court as opposed to the Employment Tribunal. A worker bringing a PHA claim is entitled to claim damages for financial loss and anxiety and, in appropriate cases, can apply for an injunction. The PHA is only suitable for cases involving exceptionally serious levels of unacceptable behaviour.

Note that unlike a claim before the Employment Tribunal, a PHA claim carries a serious costs risk because the losing party pays the winner’s costs as well as their own, making this type of claim a very high risk strategy for an individual claimant.