Unions continue to claim that Christmas songs harm workers’ health!

 And so this is Christmas… Jingle bells, jingle bells, jingle all the way… Frosty the snowman…

Walk into any shop at the moment and a medley of these little Christmas musical chestnuts will most likely be playing. And what could be more wonderful than being reminded of the joy of Christmas whilst elbowing your fellow Christmas shoppers out of the way to look for some suitably dull socks for Uncle Albert?

Well, unfortunately, some workers have written to Santa to request the banning of Christmas songs in their workplace! Now, that’s a bit extreme but let’s back up a little bit here.

For some years now, various worker unions around the world have protested against Christmas songs being played on loop in shops. Why? Well, at their nicest, unions have (pretty fairly you would imagine) described constantly looped Christmas music as ‘annoying’ and potentially ‘frustrating’ to their workers. However, the most forthright unions have gone so far as to say it ‘risks the mental health’ of workers.

So, what’s the truth?  Well, as always, it depends on the circumstances.

The Santa Clause: Employment Law issues in Lapland

Penguin Santa You know who’s having a low media presence this year? Santa Claus! I mean, just look at the Christmas adverts this year! Without naming names, the ‘biggest’ Christmas adverts this year involve a monster, a carrot and a toy factory. The only ‘big’ advert that sees the big, red man is one in which Paddington bear mistakes a burglar for Santa!

So, why the low media presence? Where is Santa?

On that front, I may be able to help. You see, Mr Claus is currently having some Employment Law and HR issues with his workforce and has been busy obtaining legal advice on what to do next. It’s a stressful time of year, particularly with less and less people believing in him (there seems to be a rumour going around that he isn’t real) and certain big rival companies in the logistics business setting up in competition (the main one named after a geographical location considerably far away from Lapland).

Put simply, Christmas needs saving and Santa can’t operate without solving his current employment law issues. With this in mind, let’s go on a Christmas journey and help Santa save Christmas!

whistleblowing protection for concerns about driving in snowy weather

In Norbrook Laboratories (UK) Ltd v Shaw Mrs Justice Slade DBE sitting in the Employment Appeal Tribunal was asked to consider whether a series of emails, taken together, could be treated as a protected disclosure for the purposes of section 43B(1) of the Employment Rights Act 1996 (whistleblowing protection).

Mr Shaw claimed automatic unfair dismissal and being subjected to a detriment, both on the grounds of having made a protected disclosure (he had insufficient qualifying service to claim “ordinary” unfair dismissal). His disclosure was communicated by two emails sent on 30 November 2010 and one on 6 December 2010. Taken in isolation each email did not constitute a protected disclosure.

Mr Shaw commenced employment with Norbrook as part of an on-the-road pharmaceutical sales team. His duties included visiting clients and prospective clients with a view to securing sales. As readers may recall the winter of 2010 was particularly severe with large snowfalls and motorways closed.

On 30 November he sent an email to Norbrook’s health and safety manager, Mr Cuthbertson:

Could you please provide me with some advice on what my Territory Managers should do in terms of driving in the snow. Is there a company policy and has a risk assessment been done.

Taken in isolation this was an enquiry and not a protected disclosure. He was told that there was no applicable policy or risk assessment but he was given advice about driving in the snow. About two hours later he sent a further email to Mr Cuthbertson:

I was hoping for some formal guidance from the company. The team are under a lot of pressure to keep out on the roads at the moment and it is dangerous. Do I log this as the formal guidance?

Following enquiries from territory managers about whether they would be paid if they were snowed in Mr Shaw sent a further email on 6 December, this time to a member of staff in the human resources department. This email included the following:

I am only after a simply [sic] policy statement to increase transparency and help build morale and goodwill within the team. As their manager I also have a duty to care for their health and safety. Having spent most of Monday and Friday driving through snow I know how dangerous it can be. In addition the time spent battling through the snow is unproductive; they can gain more sales by phoning customers. If they are not going to be paid then I have to put in contingencies for diverting calls to those team members still on the road. In the absence of any formal guidance I take full responsibility for the directions given to my team.

The Employment Tribunal concluded that, taking the communications as a whole, they were capable of amounting to a qualifying disclosure with reference to section 43B(1)(d). On appeal it was submitted for Norbrook that this conclusion was perverse or erroneous, that he was merely expressing an opinion and that the disclosure (if that is what it was) could not be spread over a number of documents. Mr Shaw submitted that he made two qualifying disclosures: failure to comply with health and safety requirements and breaches of the Health and Safety at Work Act 1974.

no longer in force

Just a reminder – two repeals effected by the Enterprise and Regulatory Reform Act 2013 came into force at the beginning this month. These are:

– The removal of the provisions of the Equality Act 2010 relating to employers’ liability for third party harassment: and
– Changes to civil liability for employers who breach health and safety law.

In a bit more detail, removal of liability for third party harassment will take the situation back to where it stood prior to the Equality Act, under Pearce v Governing Body of Mayfield School; Macdonald v Advocate General for Scotland [2003] ICR 937 whereby an employer can only be held liable for harassment of one of its employees by a third party (such as a customer, service user or client) if the reason for the failure to prevent harassment was itself discriminatory. The government felt that the mischief addressed by the Equality Act 2010 did not require a cure, but that if that were wrong, employees could use other avenues, such as a general personal injury claim, constructive dismissal or under the Protection from Harassment Act 1997.

health and safety: the return of “common sense”?

On the one hand, the Health and Safety Executive is becoming increasingly sensitive to suggestions that the way in which it enforces health and safety rules is excessively pernickety and can lead to red tape stifling initiative and supplanting common sense. It is currently conducting a high level campaign to bring proportionality into centre stage. Two recent examples are the public spat between the HSE and the tennis authorities and a recent HSE consultation on “proposals for replacement arrangements for adventure activities”.

reporting of accidents etc. at work and elsewhere

In June 2010 the Prime Minister appointed Lord Young of Graffham to review health and safety laws and the growth of the compensation culture. Lord Young’s report “Common Sense Common Safety”, was published in October. One of the recommendations was that the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations should be amended to extend…