Keep on the right side of the law

An update of changes in employment law and the responsibilities of the OH
practitioner were discussed

Employment law consultant Joan Lewis of ACT Associates returned to the
conference once again to give her popular, if frightening update on recent
changes in employment law. This year these included new maternity leave and pay
rights, other family leave proposals, the prevention of illegal working and
avoidance of race discrimination and dignity at work policies – anti-bullying,
harassment, ageism and so on.

She also looked at the provisions of the Acas arbitration scheme, the
voluntary alternative to employment tribunals for resolving unfair dismissal
claims. Both parties need to agree a written arbitration agreement, hearings
are confidential and there is no right of appeal.

Lewis also examined the health and safety provisions for young workers.
There should be specific risk assessments for young workers, who should now be
working a maximum of an eight-hour day.

Turning to recent case law, sexual bullies in the workplace face the very
real prospect of going to prison, following the case of R v Lancashire and Wakefield,
Lewis announced. She also referred to developments in DDA case law and cases
relating to the occupational health practitioner’s duty of care and gave
guidelines on ethics and standards of service.

She suggested points to remember when trying to ensure that you are giving a
helpful report in a DDA case.

– Don’t make management decisions

– Do give an opinion as to if, when, and how an employee might return to

– Give objective, health-related decisions supported by brief facts.

Lewis laid out the grounds for termination of employment for health-related
reasons. Incapacity by reason of ill-health is a fair reason for dismissal, she
said, but it is vital to follow proper procedures. These include a thorough
investigation, including medical reports, a review of the DDA implications,
proper communication with the employee and finally and most importantly, the
demonstration of sympathy, compassion and understanding in your dealings with
the employee.

Lewis went on to review the case law relating to specialist reports in DDA
causes, concluding that the evidence of a properly-qualified occupational
health specialist was essential. She said in cases where conflicting medical
advice was given that the law allowed the employer to rely on the opinion of
their occupational health professional unless that person had relied on notes
only without making an examination; had failed to make a specific conclusion;
the continued employment of the person posed a genuine risk to the health and
safety of others; or the treating specialist should have been asked for an

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