Janet Gaymer advises prevention rather than cure as far as Health & Safety at Work legislation is concerned
Employment law is rather like the film 'Jaws'. Just when you think that it is safe to give advice, another shark of a statute or case appears on the horizon. Risk management is therefore a crucial aspect of the employment lawyer's work.
A recent high profile example of this was the decision by Justice Colman that John Walker, a Northumberland social worker, was entitled to be compensated for the unreasonable levels of stress to which he had been exposed in his workplace.
I imagine many employment lawyers have received calls from concerned clients operating in highly stressed environments, asking what steps should be taken to avoid an avalanche of such claims in the future.
Although Walker's case was a civil claim and concerned a duty in common law to maintain a safe system of working which is not new, there has been an increased emphasis upon risk assessment in health and safety matters.
During the European Year of Safety, Hygiene and Health Protection at Work (March 1992-February 1993) no fewer than six major directives concerning health and safety matters were due for implementation by member states by 1 January 1993, together with a number of others.
All of these directives have been implemented in the UK by regulations made under the Health & Safety at Work Act 1974.
The concept of risk assessment is at the heart of the new approach to health and safety legislation. Regulation 3 of the Management of Health and Safety at Work Regulations 1992 imposes a duty on every employer and every self-employed person to carry out risk assessment to establish what measures must be taken to comply with the employer's duties under relevant health and safety statutory provisions.
Accompanying guidance in relation to the new regime emphasises a series of principles in relation to risk assessment which include the following:
* Avoid risks altogether.
* Combat risks at source.
* Adapt work to the individual wherever it is possible.
* Take advantage of technological and technical progress.
* Ensure risk prevention measures form part of a coherent policy and approach.
* Give priority to those measures which protect the whole workplace.
* Give proper training to employees and ensure there is an active health and safety culture for the entire organisation.
The message in all of these principles is that prevention and protection is the best approach.
Many statutory employment law provisions echo this attitude in relation to other problems in the workplace. For example, where sexual harassment is alleged, industrial tribunals have tended to take a broad view of employer liability in relation to claims of sexual harassment and employers are expected to have taken steps to prevent the harassment.
Claims of sexual harassment can be brought against the harasser and against the employer. Under the Sex Discrimination Act 1975, an employer is liable for the discriminatory acts of employees acting in the course of their employment, whether or not they are done with the employer's knowledge or approval.
Employers are advised, therefore, not only to have a sexual harassment policy in place, but also to have provided training in the operation of such a policy.
As the recent guidelines issued by the Equal Opportunities Commission make clear, employers “have a responsibility to ensure that sexual harassment is prevented”.
In relation to more general employment law issues, codes of practice have, in recent years, become the means of communicating to employers good industrial relations practice. Since the 1970s the Advisory Conciliation and Arbitration Service has issued codes of conduct and, more recently, an advisory handbook on disciplinary practice in employment.
The introduction to the handbook makes it clear that “proper procedures are an aid to good management and should not be viewed primarily as a means of imposing sanctions or as necessarily leading to dismissal”.
However, the fact remains that industrial tribunals do take into account the extent to which employers have complied with the principles set out in such documents when deciding, for example, whether an employer has dismissed an employee 'unfairly' – as statutorily defined by the Employment Protection (Consolidation) Act 1978.
Every lawyer wants to produce the best possible solution to their client's problem. In the field of employment law, risk management for the client is an essential part of lawyering. However, the rapidity with which employment law can change from one day to the next means that the employment lawyer must be constantly alert to developments which may present risks not only for the client but also for the employment lawyer.
Just keeping up with the law is as much part of the risk management process as managing risks for the client.
Janet Gaymer is chair of the Employment Lawyers Association and a partner at Simmons & Simmons.