Proposals
in the Government’s consultation on the Working Time Directive could leave
employers bearing the burden of non-work-related health problems, according to
a legal expert.
The
consultation paper, Working Time, Widening the Debate, suggests that employees
working long hours be offered a health assessment. The initial assessment is
normally a form asking about any health issues. If this identifies problems,
the worker may need a medical examination, which would have to be paid for by
the employer.
Richard
Isham, head of employment
at law firm Wedlake Bell,
said: "There is a huge grey area over whether any health problems
identified are, in fact, a consequence of the hours worked, or the job at all.
"It
would be almost impossible to determine whether the cause of, say, stress or
depression stemmed from an individual’s working patterns or from their personal
life. Staff who complain of
being stressed or depressed may not necessarily have a recognised medical
condition. However, the employer would have no choice but to send them off to
see a doctor or occupational health professional.
"Managers
and HR departments, who are not medically trained, will have to work out what
questions to ask to ensure that they get the right information without
unnecessarily infringing on the individual’s privacy, and whether the responses
merit a medical assessment. Clearly, all this is likely to increase the
financial and administrative burden, particularly for smaller businesses, and
that’s just the start."
Wedlake Bell said employers would
also have to ensure that all relevant personal information was stored
confidentially to comply with Data Protection laws, would probably have to
review health assessments periodically, and, where necessary, make adjustments
to the individual’s working practices.
For
example, changes may have to be made to ensure that shiftworkers work a reduced-hours timetable, or that
the responsibilities of salaried staff, such as managers, are reduced. However,
Isham said, "Such
measures in themselves may not be conducive to a worker’s well-being, if they
feel their finances or career will suffer."
According
to Isham, although workers
should suffer no detriment by refusing to work long hours, they only get unfair
dismissal rights after 12 months’ continuous service.
"Although
health assessments could help to protect employers in the event of a claim,
they are unlikely to provide complete protection," he said.
The
Government’s consultation admits that: "Research has not been able to show
a clear, unequivocal causal link between the length of time people work each
week and ill health."
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
