Employers must not gamble with casino workers’ rights

The UK’s gaming industry hit the headlines recently with the introduction of the Gambling Bill. Introduced to Parliament in November, the Bill is expected to become law in 2006.

It has been forecast that the number of casinos in the UK will double by 2010, with an anticipated 24 per cent increase in the number of employees working in the industry.

For employers in the sector, there are a number of factors to be aware of.

Given the anti-social hours that staff in the gambling industry will be expected to work, many are likely to be classed as night workers for the purposes of the Working Time Regulations 1998 (WTR). Subject to any relevant agreement, such as a collective agreement stating otherwise, a night worker must not work more than an average of eight hours in each 24 hours over a 17-week reference period.

An employer must ensure that a night worker has the opportunity of a free health assessment before commencing employment, and further assessments should be made at regular intervals as necessary. HR professionals will need to consider staff rotas carefully.

The long-hours culture in the gaming industry means that employers must also consider the 48-hour weekly working time limit, and whether they will want the worker(s) to opt out.

Possible future changes to the availability and limit of the opt-out are currently the subject of consultation. Employers should also ensure that a worker receives an uninterrupted period of 20 minutes rest after every six hours of work.

Non-compliance with the WTR, or the dismissal or victimisation of an employee for raising a complaint in respect of non-compliance, may result in a tribunal claim for breach of the regulations, automatically qualifying as unfair dismissal (where there is no qualifying period) or a claim for suffering a detriment.

The health risks of working in the gaming industry were illustrated by a survey in Scotland carried out by the GMB union. This showed that 80 per cent of croupiers suffered from neck and back ache, 55 per cent complained of eye irritation – mainly caused by passive smoking, 90 per cent complained that air temperature was a serious problem at work, and 20 per cent complained of violence at work.

It is also important to consider the Health and Safety Act 1974, which states that an employer has a common law duty of care to provide a safe place of work.

Particular issues for casino operators arise from the nature of the environment and the protection of female workers of childbearing age.

There is a duty to carry out general risk assessments for the purpose of identifying and dealing with particular risks in the workplace. There is also a specific duty to carry out risk assessments in respect of female workers of childbearing age. Failure to do so could lead to sex discrimination claims.

Where particular risks are identified for pregnant women, such as long hours, long periods of standing, a smoky environment and night work, employers must consider altering the pregnant worker’s working hours or conditions, or consider suitable alternative employment for the period of the pregnancy. Where no alternative can be found, the employer should consider suspending the employee on full pay on maternity grounds.

A dangerous cocktail of alcohol, aggressive behaviour and flirting between staff and customers may lead to claims of constructive unfair dismissal for breach of the implied term of trust and confidence between employer and employee, harassment, and discrimination, or claims of work-related stress if the employer does not provide the necessary level of support to the employee as soon as a complaint is raised.

Of particular concern will be the vicarious liability of the employer for the acts of its staff during the course of their employment. An employer must ensure it has taken all reasonable steps to prevent unlawful harassment on the grounds of sex, race, disability, sexual orientation, or religious belief.

To reduce the risks of such claims, it is vital that there are policies and procedures in place that are reviewed frequently, and that all efforts are made to protect the mental and physical well being of employees.

This will be a new and exciting time in the casino industry, but one full of potential pitfalls for the unwary employer.

By Pattie Walsh, partner, Richards Butler

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