This week’s legal questions and answers

Q As a large employer, we have seen a significant growth in
stress-related illnesses among our employees. Has there been a recent case
which will make it more difficult for employees to win stress at work claims?

A Yes, the Court of Appeal in Sutherland v Hatton, 2002, IRLR 263,
has laid down new guidelines for determining whether an employer is liable for
an employee’s resulting illness or injury. In particular:

– The signs of stress must be plain enough for any reasonable employer to
realise that something is wrong and that he should do something about it

– The test is the same for all occupations, therefore, particular
occupations should not be regarded as inherently hazardous to mental health

– Unless an employee advises his employer of a particular problem, the
employer is entitled to assume the employee is able to handle the standard
day-to-day pressures that come with the job.

It is worth remembering, however, that this case only dealt with liability
for personal injury claims. An employer still has a duty of care towards his
employees to avert any harm to their health by providing a safe working
environment. If not, he could be liable under the Disability Discrimination Act
1995 or the Health and Safety at Work Regulations. Offering employees a
confidential advice service which can refer individual employees to appropriate
counselling or treatment is certainly a step in the right direction.

Q What is the best way of carrying out pre-employment checks on job
applicants and how can we verify whether they have any criminal convictions?

A Information provided to you by an applicant, relating to
qualifications or employment history, for example, can be verified provided the
applicant is informed you will be carrying out these checks. This will give the
applicant an opportunity to disclose any errors or gaps in their application
form. If you intend using an agency to carry out these checks, then you are
obliged to obtain the applicant’s consent as you will be releasing their
personal data to a third party. Similarly, if you wish to contact an
applicant’s previous employer, who has not been specified by the applicant as a
referee, you should obtain the applicant’s prior permission.

Currently, only employers of those employed in specified positions of trust
can contact the Criminal Records Bureau to check whether applicants have any
criminal convictions. These employers can apply for two types of disclosure. A
‘standard’ disclosure will reveal not only current and spent convictions, but
also details of cautions, reprimands or warnings. An ‘enhanced’ disclosure will
also reveal additional information held locally by police.

Later this summer, when a third type of disclosure, known as ‘basic’
disclosure, is introduced, all employers will be able to check on applicants’
unspent criminal convictions, subject to certain conditions. The applicants
themselves must make the request for basic disclosure and the employers cannot
compel them to reveal the results.

Even if applicants do reveal the results, further safeguards ensure
applicants with past convictions are not unfairly treated. Employers must
comply with the CRB Code of Practice, which can be viewed at www.crb.gov.uk

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