December 2017

Wishing everyone a very Merry Christmas and a prosperous 2018!

Hello, we would like to share the latest news within Cluer HR as well as keeping you up to date with developments in the world of HR and employment law as they occur.

It’s all part of the service. We hope you find it useful. Your comments and suggestions are always welcome.

Failure To Conduct Risk Assessment for Breastfeeding Mother

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Does this constitute sex discrimination? Yes, held the CJEU in a recent case.  The claimant was a nurse working in a hospital’s A&E unit.  Her employer’s risk assessment for her as a breastfeeding worker had concluded her work was ‘risk-free’ but when she requested for an adjustment to her working pattern, it was declined.

The CJEU held that if a breastfeeding mother can show an assessment was defective or not carried out, it gives rise to a prima facie (“on the face of it”) case of discrimination.

This case strongly highlights the importance of carrying out risk assessment for maternity returners wanting to continue breast feeding in the workplace.  Talk to us if this is something which needs to be carried out for your business.

Company Gives Non-smokers Paid Leave For ‘Lost Cigarette Breaks’

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Some employers may turn a blind eye to those who go outside to smoke a cigarette during working hours, however, it is unlikely to be missed by their non-smoking colleagues who feel they’re receiving less breaks because they choose not to smoke. A Japanese company has taken the extraordinary step of rewarding non-smokers with six extra days holiday a year to make up for the time their smoking colleagues spend on cigarette breaks. They estimate it takes around ten-fifteen minutes for each break but did not want to restrict smoking breaks entirely. The company believes cigarette breaks are a positive use of time as they provide the opportunity for colleagues to get together and talk about work or come up with ideas away from their desks. Instead, they hope the incentive will make people want to quit smoking to receive more holiday leave.

It is up to employers to put in place their rules about smoking at work. If they want to allow staff to take smoking breaks they should consider whether these are in addition to, or part of, employees’ normal break times. If extra breaks are provided, how this effects other non-smoking members of staff should be examined to assess the likelihood of complaints being raised about less favourable treatment. The least risky option would be to provide extra short breaks to all staff, who may or may not use these to smoke. This will also regulate the length and frequency of breaks and limit the amount of time lost during each working day.

The idea of short breaks for all is interesting, but would have to be managed carefully so as not affect service and productivity.

Bus Firm is First Employer Guilty of Failing to Auto-Enrol

A bus operator has become the first employer in the UK to be found guilty of failing to auto-enrol its staff on to a workplace pension scheme – as experts warned that even businesses making minimum contributions could be leaving themselves open to future legal action.

Oldham-based Stotts Tours and its managing director, Alan Stott, admitted deliberately avoiding setting up workplace pension schemes for 36 staff, despite employees meeting auto-enrolment criteria, the Pensions Regulator reported.

Under current auto-enrolment legislation, anyone earning more than £10,000 a year and aged between 22 and the state pension age is entitled to be automatically enrolled on to a workplace pension scheme.

Employers like Stotts Tours with fewer than 50 staff on their largest PAYE schemes have been legally obliged to place staff into suitable workplace pension schemes and begin making pension contributions since between June 2015 and April 2017.

Please make sure you have auto-enrolled your staff and get in contact if you need any help with the process on 01386 751740 or email [email protected]

Deliveroo Tribunal Victory ‘offers firms route out of self-employment quandary’

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A tribunal ruling that riders for a popular food delivery business are in practice self-employed has surprised legal experts – and has offered a potential workaround for gig economy firms looking to protect their current business models.  The Central Arbitration Committee (CAC) ruled on the 14 November 2017 that Deliveroo riders are technically self- employed because they are allowed to substitute other riders to take their place on jobs.

The committee has accepted a recent contractual change from Deliveroo, which allows drivers to substitute other riders if they are unable to make a particular shift. This appears to have helped shift the balance in favour of self- employment, as it gave riders more control over the conditions of their work in the committee’s eyes.

This is a clever move by Deliveroo, but how many of us could actually allow this to get around employee status?!

Colour Blindness Not a Disability

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An employment tribunal has held that a claimant’s red-green colour blindness is not a disability.

In Bessell v Chief Constable of Dorset Police, Mr Bessell has deuteranopia. In other words, he has red-green colour blindness. He has difficulty distinguishing between red and green, the combination of grey and pink also causes him difficulty. Mr Bessell has no other vision problems.  Mr Bessell brought a disability discrimination claim under the Equality Act 2010. He claimed discrimination arising from disability, indirect disability discrimination and failure to make reasonable adjustments. He also brought a claim for indirect sex discrimination.

A preliminary issue before the disability discrimination claim could proceed was whether or not Mr Bessell’s condition constitutes a disability under the Equality Act 2010. The issue turned on whether or not the impairment has a “substantial and long term adverse effect on [his] ability to carry out normal day-to-day activities”.  This first-instance decision is not binding on other courts and tribunals and there would be nothing to stop a more severe form of colour blindness from being considered a disability.

Since colour blindness primarily affects men, by far the bigger risk for employers is a claim for indirect sex discrimination. Recruitment decisions based on colour blindness must be justifiable (for example, on the grounds of health and safety).

Please get in touch if this issue has been raised in your workplace at [email protected] or call 01386 751740.

Receive The Cluer HR Blog Straight To Your Inbox in 2018

It might just solve a few workplace sticky issues. This month we gave some key updates on Flexible Working – Some Home Truths. As it becomes more and more commonplace, guidelines need to adjust with this way of working so make sure your business is keeping up to date. Are you considering offering a workplace bonus? In our blog How To Make Your Bonus Scheme A Real Motivator – we ensure your scheme is fantastic and not a flop. Sign up today or catch up by clicking on the ‘Blog’ page of our website. More to come in 2018!
A preliminary issue before the disability discrimination claim could proceed was whether or not Mr Bessell’s condition constitutes a disability under the Equality Act 2010. The issue turned on whether or not the impairment has a “substantial and long term adverse effect on [his] ability to carry out normal day-to-day activities”.  This first-instance decision is not binding on other courts and tribunals and there would be nothing to stop a more severe form of colour blindness from being considered a disability.

Since colour blindness primarily affects men, by far the bigger risk for employers is a claim for indirect sex discrimination. Recruitment decisions based on colour blindness must be justifiable (for example, on the grounds of health and safety).

Please get in touch if this issue has been raised in your workplace at [email protected] or call 01386 751740.

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