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May 2007
The Fat Issue....
How long will it be before obesity is classed as a physical or a mental impairment under the Disability Discrimination Act?
Drugs and Drug Testing in the Workplace
Acceptable or not?
Fixed Term Contracts
Nowadays fixed-term employees have a lot more rights
It’s broke but we don’t know how to fix it.
Tribunals are costing the country a fortune
How long will it be before obesity is classed as a physical or a mental impairment under the Disability Discrimination Act? The number of obese people is rising throughout the world making it one of the fastest developing public health problems. Described by the 'World Health Organisation' as a 'worldwide epidemic' it is estimated that there are over 250 million people are obese. Studies in the UK revealed that the UK has seen a steady increase in obesity over the last 50 years with similar rates of change to that of the USA which makes a frightening illustration of the potential of the problem. Three-quarters of adults in the UK are overweight. We have seen the government turn its attention to fast food manufacturers in an attempt to supply a more healthy option to their customers and raise the profile of the healthy eating campaign in general. Obesity is becoming a major topic of discussion for UK employers in areas that include health and safety and discrimination and begs the question 'is it unlawful to discriminate against a worker on the grounds of weight?' Currently it is not unlawful to discriminate on the grounds of weight alone. To protect themselves employers would be well advised to conduct pre-employment health screening in all cases with thorough health checks.. The employer should then be able to make an informed decision on the person's fitness to do the job. Care must still be taken when making such decisions so as not to fall foul of any discrimination laws. For some questions to ask yourself when recruiting please see the full article.
Imagine this scenario:
You are interviewing for a Personal Assistant to your Director of Logistics, the interviewee is to work on the 3rd floor and will have much contact with your customers at meetings and seminars. The building is old with narrow spiral stairs and no lifts.
You select 2 candidates both with equal experience and qualifications and after completing the 1st interview your second candidate arrives who is noticeably overweight. You notice throughout the interview that the applicant is suffering from shortness of breath, it is usual for you to take applicants on a tour of the building as part of your interview. You notice that the candidate is noticeably struggling with the stairs and the tour. You are concerned that they may not be physically fit enough for the role but also that they may be unable to escape from the narrow window on the third floor in case of a fire.
Here are a few questions you might like to ask yourself before making a decision;
- Does the health & safety of the candidate make your decision for you?
- To what extent are you going to be prejudiced by your views on overweight people at the cost of losing an otherwise excellent candidate?
- Should there be statistical evidence that suggests that there are more obese people of a particular gender or race, then is there the possibility of a potential discrimination case slipping in from the back door?
- If the candidate is perfect in terms of their experience and qualifications would you be willing to make an adjustment to accommodate them?
However, if you decided not to make a reasonable adjustment, as you might in a disability case, you would not as the law stands now be in breach of the Disability Discrimination Act.
The Disability Discrimination Act 1995 in their definition of a disability explain that 'a person has a disability if he has physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities' (s1(1) DDA 1995) – it would be reasonable to assume that obesity should fall into the 'physical impairment' category, However, a physical impairment may exist as a direct consequence of a mental impairment. Recent research has linked obesity to certain medical conditions such as diabetes, which is considered a disability under the Act.
The fact remains that currently discriminating against a person because of their size, shape or weight is not illegal in the UK. In comparison the legal system in the USA, although reluctant to qualify obesity as a disability, are taking this issue more seriously, courts are being presented with more and more claims via the Americans with Disabilities Act (ADA). On its own 'Simple Obesity' would probably not qualify as a disability whereas 'Morbid Obesity' caused by a physiological disorder has seen plaintiffs entitled to ADA protection, a link not unlike our own definition of a 'physical impairment' materialising as a direct result of a 'mental impairment'.
Ultimately, we are left with more questions than answers and it is case law that is going to provide guidance unless the government decides to do it for us.
An article provided by Dr. Beatriz Acevedo for publication in our newsletter
Researcher at the University of Bedfordshire During the last few years an increasing proportion of organisations have manifested their concern about the consumption of certain drugs (legal and illegal) amongst employees. The evidence on the links between drug use and accidents, although elusive, has served to implement a number of strategies against drugs use, being drug testing one of the most favoured of these strategies. It is acknowledged that the use of certain drugs may interfere with the proper performance of employees, particularly in jobs related to transport. Indeed, organisations such as British Airways and Transport of London have implemented drugs testing amongst their employees for security reasons. Other explanation for drug testing has been argued by companies in relation to absenteeism, low productivity and low performance. Nevertheless, the relation between these aspects and drug taking is not very clear and the evidence has been inconclusive. The publication in 2004 of the Independent Inquiry into Drug Testing at Work (IIDTW) suggests that despite the increasing investment in drug testing strategies, the problem on drugs use is just one of the symptoms of deeper organisational problems. The investigation reveals that other factors may have greater impact on safety, productivity and performance, including bad working conditions, sleeping and health problems, excessive workloads and work-related stress. On the other hand, although great emphasis is done in testing the use of illicit drugs, major problems are produced by the use of alcohol, labelled as a legal drug.
In fact, the use of alcohol in certain organisations is regarded as part of the ‘social activities’ in which many employees need to be involved in. A similar discussion can be made in relation to performance enhancing drugs, such as amphetamines and cocaine, regarded as aids for long hours work, dynamic and stressful jobs, and linked to certain professions, such as bankers and top-models.
Although organisations may be attracted to apply drug testing as a deterrent for drug use, the cost/benefit effects of these measures are still a matter of controversy. The IIDTW has highlighted the costs of drug testing at work, including not only financial costs but also the probability that these measures can be a diversion from the root of other problems. However, employers may have a legitimate interest in drug and alcohol use amongst their employees in a restricted set of circumstances, including public risks, security hazards, illegality, or sometimes, when these practices compromise the values and morality of the organisation.
Without attempting to judge the motivation for employers to use drug testing amongst their employees, it is important to consider that these strategies may appear as an intrusion in the private life of employees and they may affect the confidence and trust between employee and employer. In all cases and as the report states: ‘there is a wealth of evidence that good and open management is the most effective method of improving workplace performance and tackling drug and alcohol problems amongst staff’ (IIDT, 2004: 3). Indeed, human resources managers and employers should find more creative and effective ways of dealing with the symptoms of maybe deeper problems of employees, who eventually find in drugs an answer to their stressful jobs.
References:
Independent Inquiry into Drug Testing at Work. Published by Rowntree Foundation, York. UK (2004)
Legally a fixed-term contract is a special type of contract which is due to end “when a specified date is reached, a specified event occurs or a specified task has been completed”. It used to be common to employ people on successive fixed term contracts. One contract would end and then another would start. Of course these people didn’t build up continuous service and accrue employment rights such as redundancy or unfair dismissal, because every time a contract ended they had to start their service again from scratch. Nowadays fixed-term employees have a lot more rights. Firstly their terms and conditions have to be as good as a comparative full-time person’s. Secondly, when a fixed-term contract ends, this is legally a dismissal, so the statutory (3-step) dismissal procedure will have to be followed. This is particularly important where a fixed-term contract has lasted over 12 months, because of the right not to be unfairly dismissed. Nowadays if we take someone on to cover maternity-leave we can expect their employment to last for at least 12 months, so it will be important to follow the statutory dismissal procedure at the end of it. The advantage of a fixed-term contract in these circumstances is that it provides a substantial reason for the dismissal. Any employee who has been employed on two or more successive fixed-term contracts for four years or more will normally be regarded as a permanent employee. It will still be possible to have fixed-term contracts for over four years but only in special circumstances which can be justified on objective grounds. Finally, what if there is a gap between one fixed-term contract and the next? For the employment to become permanent, the fixed-term contracts must be successive. The same rules apply here as to the continuity of other contracts of employment. This means that a gap of less than a week will not break continuity, nor will any break due to a temporary cessation of work or “an arrangement or custom”.
We’ve got a problem. Employment tribunals are costing the country a fortune. When I say a fortune, I mean around £120m a year. About the same as a couple of Eurofighters. Why so expensive (the tribunals that is, not the Eurofighters)? Because of all the employment law. People have all these rights now and they’re not afraid to use them. We get more laws every year. Take discrimination for instance. At first it was just for women and coloured people. Now you can’t move without discriminating against someone. Old people, Young people, Religious people, Gays, Transsexuals, Sick, Lame and Mental, to name just a few. And don’t forget that there are four types of discrimination now that harassment has been added to the list. They reckon the average cost of defending one of these claims is £9,000. Well back in 2004 the government decided there were too many cases going to tribunals. They reckoned they had the answer. Guess what they did? They introduced more laws called the statutory dismissal and grievance procedures. They said that these laws would reduce the number of cases going to tribunals. They estimated there would be 34,000 – 37,000 fewer cases each year and this would save the public purse £31m – £34m. So did the new laws work? How close did they get to their estimates? Of course they didn’t work. They made matters worse. More laws to comply with means more work for the lawyers. Tribunal numbers went up not down. So what happens now? Well the government would like to get rid of the statutory dismissal and grievance procedures but they don’t know what to replace them with. They asked Michael Gibbons to write a report about it and make recommendations. Who is Michael Gibbons? What does he do? He runs a mediation service for families involved in divorce. What’s a mediation service? It’s a way of resolving problems without lawyers. Mediators try to help the two parties come to an agreement, rather than fight over everything. It’s a good thing for divorces where kids are involved because the parents’ relationship doesn’t break down so much. And what did Michael Gibbons recommend? Is it mediation? Well funny you should say that. Actually he does recommend more mediation. But it’s not as simple as that. He makes 17 recommendations aimed at making the system simpler and less prescriptive, including telephone helplines. So what happens now? The government has started a period of consultation on the recommendations. After that they will decide what to do. Didn’t they consult over the last ones? Yes of course they did. They always consult. And will things really improve? Who knows. Can you really imagine employment law getting simpler. For instance did you know that all our discrimination laws will have to be amended again because the definition of direct discrimination doesn’t comply with the European Directive? I’ll take that as a no. Good thing we’ve got Picasso HR to keep us out of trouble.
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