Bell & Scott Employment Law Update, October 2005

Welcome to the October 2005 issue of Bell & Scott Employment Law Update.

At 6:23pm on Thursday 22 September 2005 the sun moved directly above the equator. The Autumn equinox signals not only the approach of nights which are longer than days but the imminent arrival of the newest batch of changes to employment legislation. The Regulators are, however, being kind to us this year with the introduction of a few small but significant changes to current legislation. Unlike last year, with the introduction of the disciplinary and grievance procedures and the proposed age discrimination legislation which will be upon us all next October, these new provisions, although they cannot be ignored, fortunately do not require the redrafting of contracts or policy documentation.

News

The national minimum wage is on the rise again and these rates must be in place with effect from 1 October 2005. The relevant rate, for those aged 22 or over, will rise to £5.05 per hour. The youth rate, for those aged between 18 and 21 years, will rise to £4.25 per hour. The rate for 16 to 17 year olds will remain the same at £3.00 per hour. The accommodation allowance will increase from £3.75 to £3.90 per day.

It is estimated that the rise will affect 1.3 million workers. Of these workers around 900,000 are expected to be women.

Employment Equality (Sex Discrimination) Regulations 2005

Sexual harassment at work is not specifically dealt with by current UK or EU/EC Legislation. However, on 1 October 2005, specific provisions will be adopted to outlaw sexual harassment. The Employment Equality (Sex Discrimination) Regulations will insert a new S.4A into the Sex Discrimination Act 1975. The new S.4A will provide a free standing right for employees to be protected from sex harassment, whereas under current rules a harassment case would be brought as a sex discrimination claim. The new regulations cover both harassment that is sexual in nature and also harassment on the grounds of gender (which does not have to be sexual in nature).

Harassment, in general terms, is unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability, religion, sexual orientation, nationality or any personal characteristic of the individual, and may be persistent or an isolated incident. The key is that the actions or comments are viewed as demeaning and unacceptable to the recipient.

For the purposes of the new regulations the harassment will be on the grounds of sex, sexual in nature or on the grounds of gender orientation.

The new rules on harassment cover both men and women alike.

Disability Discrimination Act 2005

The main employment related provisions of the Disability Discrimination Act 2005 come into force on 5 December 2005 (the remaining parts of the Act come into force on the 4 December 2006).

Whilst most employment issues are already covered by the Disability Discrimination Act 1995 (“DDA 1995”) and subsequent regulations, this 2005 Act does make significant changes to the meaning of disability. It widens the definition of those deemed disabled to benefit those with HIV/Aids, cancer (save for certain prescribed cancers which are not included) or multiple sclerosis.

One of the main features of the Act is to allow people with mental illness to be protected in the same way as anyone else, by removing the current requirement that their condition be clinically well recognised.

The current provision defines a disabled person as having a “physical or mental impairment which has a substantial and long-term effect on his ability to carry out normal day to day activities” (DDA 1995 S.1). The definition of mental impairment is an impairment resulting from, or consisting of, a mental illness only if the illness is clinically well recognised, that is recognised by a respected body of medical opinion. It doesn’t necessarily mean a mental illness under the Mental Health Act.

The important point is that the Employment Appeals Tribunal has consistently ruled that although stress can result in physical and/or mental illness, stress itself does not fall within the definition of disability because stress itself is not recognised as an illness. This is where the change mentioned above is relevant. If the need for the mental illness to be clinically well recognised is removed, those employees who suffer from stress to the extent envisaged by the DDA 1995 (long-term substantial adverse effect) may be able to claim the protection of the Act without proving an illness beyond the suffering of stress itself.

Given the regularity by which employees are signed of for stress and anxiety, all employers need to be aware that, over time, they may well have to consider their various obligations under the DDA including the obligation to make reasonable adjustments.

Scottish ban on smoking in public places

This legislation is not imminent but, given the subject matter, we thought we should give you a good lead in time to start thinking about what, if anything needs to be done to forewarn your employees of the smoking ban, and in particular the removal of the “smoking room”.

The ban on smoking in public places in Scotland is now just six months away. As reported in the January Employment Law Update, the Smoking, Health and Social Care (Scotland) Act 2005 will come into force on the 26 March 2006.

The ban will affect all enclosed business premises including vehicles used for business purposes, such as light and heavy goods vehicles, and public transport, including trains and ferries. The provision of smoking rooms for employees will be outlawed due to the substantial risk of passive smoking.

There are however, exemptions to the rules. These are:

• residential accommodation
• designated rooms in adult care homes
• designated rooms in psychiatric hospitals and units
• designated hotel bedrooms
• designated detention or interview rooms
• designated rooms in offender accommodation premises
• offshore installations
• private vehicles

It should however be noted that the employer or manager of the exempt premises does not have to make provision for smoking areas or permit smoking, this is entirely at their discretion.

Employers are under an obligation to take reasonable measures to ensure that staff, customers and visitors are aware of the new law, and do not smoke on the premises. This will entail the display of no-smoking notices, to be clearly visible to anyone in the premises, for example, at every entrance, staff room and toilet facility etc. The ban will be enforced by Environmental Health and they will have the power to issue a fixed penalty notice to businesses who are allowing smoking in their buildings or vehicles or who cannot show that they have taken all reasonable efforts to prevent smoking in these areas.

More detailed guidance on the role of the employer will be published by the Scottish Executive towards the end of the year.