Occupational health and the law: What’s new?

Professor Diana Klossbarrister

Health and safety law

• Deletion of the Management ACOP July 2013• Lofstedt review• Abolition of the civil action for breach of

statutory duty for health and safety regulations

• Enterprise and Regulatory Reform Act 2013• Substantial amendment of RIDDOR October

2013

• Wembridge v Winter and East Sussex Fire Service (2013)

• Fire service not immune from liability for negligence to employees

Employment tribunals

• Qualifying period for unfair dismissal raised to two years and maximum compensatory award is £74,200 or a year’s pay, whichever is lower

• Compromise agreements renamed settlement agreements, and can be discussed before a dispute has arisen, though ‘sub judice’ provision only applies to unfair dismissal

• Fees are payable to the tribunal from July 2013, both on application and if a claim goes to trial. The tribunal can order that the fee be refunded by the employer if the claimant wins

Employment tribunals

• Compulsory conciliation through ACAS• The tribunal will sift all claims on the papers in order

that a claim or response may be struck out without a hearing where it is either outside the tribunal’s jurisdiction or has no reasonable prospect of success. Such a ruling can be challenged in writing and the judge may then order a hearing

• Lay members in general only sit on discrimination claims• Witness statements are not read out in the tribunal. The

judge can impose time limits on cross-examination and submissions

Unfitness to attend hearing

• In Riley v CPS (2013) the Court of Appeal held that a tribunal judge was right to strike out a claim where the claimant was unfit to attend a hearing and where medical evidence was that doctors could not identify a date at which she would be well enough to attend

• It was wrong to expect tribunals to adjourn cases merely in the hope that the claimant would recover from her depression

• Application to internal disciplinary proceedings?

Disability discrimination

• Obesity may be a disability if it has a substantial adverse effect on normal day to day activities

• Walker v Sita (2013)• Employers should adjust absence management

policies for a disability, if reasonable, but need not exempt a disabled employee completely from the policy

• HMRC v Whitely (2013)• Jennings v Barts and the London NHS Trust (2013)

Whistleblowing

• See Kloss, OH at August/September 2013 30• Enterprise and Regulatory Reform Act 2013• Whistleblower only need to have reasonable grounds, not good

faith (though compensation may be reduced for bad faith)• Complaints about breach of worker’s own contract no longer

included• Employer vicariously liable for discrimination against

whistleblower unless reasonable steps have been taken to prevent it

• NHS Manchester v Fecitt (2011)• Is there a legal or ethical duty to blow the whistle?

Information Commissioner

• Subject access Code August 2013• Section 7 Data Protection Act 1998• Who is the data controller??• A person who (either alone or jointly or in

common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be processed

• See Information Commissioner’s Code, Part 4 (2011)