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Employment & HR

This month’s Employment update covers:

1.Too hot to work?
2.Sickness absence at lowest rate since records began
3.Do Employees ever get to switch off?
4.Sexual harassment in the workplace

As the British summertime has been more than kind to us this year it is important to remember that The Workplace (Health, Safety and Welfare) Regulations 1992  (SI 1992/3004) state that the temperature in all workplaces inside buildings should be “reasonable”.

The Regulations however, do not state a maximum or minimum workplace temperature.  The Health and Safety Executive provide some clarity in defining an acceptable zone of thermal comfort as “roughly between 13°C (56°F) and  30°C (86°F), with acceptable temperatures for more strenuous work activities concentrated towards the bottom end of the range, and for more sedentary activities towards the higher end”.  What is reasonable will depend on the nature of the workplace and the activities undertaken.

Thermal comfort is used to describe the environmental factors that can contribute to when someone is feeling too hot or cold.  These can include; humidity, sources of heat in a workplace, personal factors (e.g. clothing, age & weight of a person) and the physical demands of the work being carried out.  This emphasises how air temperature alone is not an accurate measurement of the temperature and it is important to consider other factors.

Note for Employers: Whilst there is no law in the UK that determines when it is too hot to work the onus is on employers to ensure the temperature is “reasonable”.  It may be sensible to adopt a more casual approach to dress during warm weather with any restrictions (e.g. no swimsuits or flip flops) clearly set out in the Employer’s policies as well as bringing in extra fans, postponing particularly physical tasks (if possible) and encouraging all staff to drink plenty of water.

The latest figures from the Office for National Statistics show a significant fall in the number of days employees are taking off work due to sickness. The figures reveal employees who have taken an average of 4.1 days off in 2017, compared to 7.1 in 1993, the year records began. According to the data, the sickness absence rate started gradually decreasing in 1999, and continued to fall following the 2008 economic downturn. The overall decrease could be attributed to an increase in healthy life expectancy. However, there have also been suggestions that a rise in presenteeism, whereby people still come into work when they are ill, could also be a contributing factor.

Source: > Click here

With the rise of Employers introducing bring-your-own-device (BYOD) policies and the rise of Employees being able to access work emails on their smartphones, we have to ask if Employees ever get time to switch off?

There has been a rise in cases in which Employees have exceeded their maximum working hours because of the ease, obligation and temptation to respond to work emails out of hours.

In France, under the “right to disconnect law” known as the El Khomri law (named after a former labour minister) Rentokil was ordered to pay a former employee €60,000 for not respecting his right to “switch off” from his phone and work computer.

Meanwhile closer to home, in Ireland, €7,500 was awarded to a business executive who was required to deal with out-of-hours emails, some of which were received after midnight.

Before long such cases are likely to come before UK Courts in response to the “always-on” work culture.  This could open a floodgate of claims from Employees who regularly work additional hours outside their normal working day.

Of course, there will always be times when there is a need to check, send or reply to an email out-of-hours and this only becomes an issue when the occasional turns into a constant.

Note to Employers: Employers should consider implementing a system to monitor out-of-hours work and also consider implementing a policy on when employees should not send or respond to emails.

It is important to find the suitable balance on what is appropriate for the particular employer.  In extreme cases, such as Volkswagen Germany, emails to work phones are turned off outside of working hours!  It is important to remember that working   out-of-hours constantly should be discouraged as employers do not want a workforce off with stress.

Further to the study undertaken by Prospect and reported in our June employment update The Women and Equalities Commission (a parliamentary committee) has produced its report on Sexual Harassment in the Workplace.

The report acknowledges that employers and regulators have failed to tackle sexual harassment adequately and calls for it to be put at the top of the agenda.  It highlights that many employers only practise (paper-based compliance” and do not have a concrete and rigorous approach to the issue.  Incentives and deterrents are not strong enough for employers to take firm action in this area.

There should be mandatory requirements, sanctions for breaches and proactive enforcement such as exist in the realms of data protection and money laundering.  Protecting the dignity and safety of workers should be as important as other areas of corporate social responsibility.  Its recommendations are:

  • a mandatory duty on employers to protect employees from sexual harassment in the workplace, enforceable by the EHRC and punishable by fines
  • a duty for public sector employers to conduct risk assessment for sexual harassment, and take steps to mitigate any risks
  • reintroducing third party harassment, so that employers are liable if they have failed to take reasonable steps to prevent others harassing their staff
  • extending sexual harassment protection interns and volunteers
  • extension of the time limit for bringing a claim to six months, with the clock paused while any internal grievance process is going on
  • enabling tribunals to award punitive damages in sexual harassment cases creating a presumption of costs, so that employers will ordinarily have to pay the employee’s legal costs if it loses a sexual harassment case
  • limiting the ability to use confidentiality clauses in settlement agreements to ‘government approved’ standard clauses
  • making it a professional disciplinary offence for lawyers (and, in certain circumstances, also a criminal offence for the employer and the lawyer) to propose the use of a non-approved confidentiality clause

The full report can be found here: Sexual Harassment in the Workplace

If you would like further information on any of the above or advice on how they apply to your business then please contact Tom Evans, Associate, Employment & HR Team.
Tom Evans Associate




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