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E-cigarettes – What practical steps can employers take?
Friday 6th June 2014

Employers have the final say and the impression we have received is that employers are generally reluctant to allow e-cigarettes into the workplace.

As with all employment rules and policies, clarity is key.

If you want to prohibit the use of e-cigarettes but do not have a no-smoking policy, then consider introducing one straight away. The policy should explain that e-cigarettes are treated no differently than more traditional forms of smoking.

If you already have a no-smoking policy, then amend it to deal with e-cigarettes. This could include, adding a provision expressly banning the use of e-cigarettes in the workplace, in company vehicles and where employees are supplied out to client sites. Alternatively, if you are going to tolerate e-cigarettes say at break times and in certain designated areas then make sure that the rules are clear.

Also, explain the consequences of failing to adhere to the policy; for example, that it may result in disciplinary action.
Whatever stance you take on e-cigarettes, inform yourself as best you can and consider how you might provide support and guidance to employees struggling with addictions, including addiction to nicotine.

Click the links to read Joseph's previous blogs "E-cigarettes – What do employers need to know?" and "What are the issues in the workplace?"


E-cigarettes – What are the issues in the workplace?
Wednesday 4th June 2014

Employers have a statutory and common law duty to protect the health and safety of their employees and have to approach the issue of e-cigarettes with caution.

If e-cigarettes are allowed into the workplace, employers run the risk that colleagues may become upset especially those who are pregnant or have respiratory conditions or those who may be trying to give up all forms of smoking themselves.

At the same time, employees who use e-cigarettes are starting to raise issues. If they are not going to be allowed to use them inside then surely (they say) they should not be made to use the smoking shelter exposing them to “real” cigarette smoke – particularly if they are using e-cigarettes as a means of giving up.

Added to this is the question of how e-cigarettes are perceived. E-cigarettes are designed to “renormalise” the concept of smoking, at a time when smoking in the workplace is not allowed. They are new and innovative in design but are they acceptable in a professional working context or at a client meeting?

So, what practical steps can employers take? You can find out in Joseph’s next blog on Friday 6 June.


E-cigarettes – What do employers need to know?
Monday 2nd June 2014

E-cigarettes have become a very common sight on the streets, in and outside pubs and now, increasingly, in and outside the workplaces of the UK.

These battery-powered devices simulate tobacco smoking by turning nicotine and other chemicals into a vapour that is inhaled by the user and resembles smoke. It is estimated that more than 2 million people currently use e-cigarettes in the UK; two-thirds of users being smokers and the other third, ex-smokers.

The latest generation of e-cigarettes bear little resemblance visually to normal cigarettes and are marketed as a safer alternative to smoking. Concerns have been raised in some quarters about the properties of e-cigarettes but there remains a lack of awareness as to whether or not being exposed to the vapours comes with a genuine health risk.

An employee who pulls out their e-cigarette at an internal meeting may say, so what – it’s not illegal? Some employers have been left flummoxed and there is little common ground out there as to how businesses should respond.

Whilst smoking in enclosed or substantially enclosed public places, including workplaces, has been prohibited since July 2007, e-cigarettes are not covered by the smoking ban, nor are they regulated as a tobacco product or as a medicine in the UK.

With this in mind, The British Medical Association (BMA) has campaigned for stronger control on where e-cigarettes can be used and have suggested that current smoke free legislation be extended to include e-cigarettes.

As a result of concerns about the lack of regulation, the Medicines and Healthcare Products Regulatory Agency (MHRA) are to regulate e-cigarettes as medicines from 2016. It is hoped that regulation will bring greater clarity about the products and their safety.

Want to know more? Joseph will be covering the issues e-cigarettes can cause in the workplace in his next blog on Wednesday 4 June.


Stop Press: Government to review level of employment tribunal fees
Friday 4th April 2014

Jenny Willott MP (minister for employment relations and consumer affairs) reported on Wednesday that the government will consider lowering employment tribunal fees as part of a review of the regime and a number of aspects of the system will be under review.

Payment of fees in the employment tribunals was introduced on 29th July 2013. Under the current system Type A claims such as unpaid wages and redundancy payments and payments in lieu of notice attract an issue fee of £160 and a hearing fee of £230, while for Type B claims such as unfair dismissal, discrimination and whistleblowing claims the issue fee is £250 and the hearing fee £950.

On 7 February 2014, the High Court dismissed Unison's challenge to the introduction of fees by way of judicial review. The union had argued that the introduction of fees breached the EU principle of effectiveness because it made it "virtually impossible or excessively difficult" to exercise individual rights conferred by EU law. It also argued that the introduction of fees breached the public sector equality duty and the EU principle of equivalence (by making domestic rules of procedure for the exercise of EU-derived rights less favourable than those governing similar domestic actions), and that it was indirectly discriminatory (since the higher fees in Type B claims disproportionately affected women on "average incomes" who are not entitled to fee remissions, as well as other individuals with protected characteristics).

Unison has until 14th April to apply directly to the Court of Appeal for an appeal and will rely on government statistics showing that the number of claims fell 79% in the final quarter of 2013 compared with the final quarter of 2012.

Employers should be aware that a reduction in the level of employment tribunal fees is likely to lead to a corresponding increase in the number of claims. If you receive a claim or a threat of one, it is important that you seek professional advice in good time before responding.  Please contact us for assistance at your earliest opportunity.


Employers cannot “rubber stamp” opinion of Occupational Health
Wednesday 5th February 2014

Under the Equality Act 2010 employers are under a duty to make reasonable adjustments for employees who are "disabled" within the meaning of the Act.  However, an employer will not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability.  How are employers to judge this?

Often an employer will use occupational health advisors to provide a report. That is what happened in the recent case of Gallup v Newport City Council.  Mr Gallop worked for Newport City Council. He told Newport that he was suffering from stress, with symptoms including lack of sleep and appetite, headaches and nausea. Newport referred Mr Gallop to be assessed by occupational health advisers. They wrote to Newport, saying that Mr Gallop had "stress-related symptoms" but there were no signs of clinical depression. On further occasions, they told Newport that they did not believe that Mr Gallop was "covered" as disabled under the Act. No explanation was given for this opinion.

Mr Gallop brought claims to an Employment Tribunal including a claim of a failure to make reasonable adjustments.

Newport argued that, although they had been advised that Mr Gallop suffered from work-related stress, he had not been diagnosed with a mental impairment sufficient to satisfy the definition of disability. It therefore denied that it had failed in its duty to make reasonable adjustments as it was not aware of any disability.  They argued that they were entitled to rely on the clear advice of Occupational health as to whether Mr Gallop was or was not "disabled”.

The Court disagreed holding that an employer could not deny knowledge of any disability by simply unquestioningly adopting the statement in the occupational health report that their employee was not disabled.  Responsible employers have to make their own judgements as to whether an employee is disabled.  An employer will usually want assistance from occupational health or other medical advisers. If such medical guidance advises that the employee is disabled, the employer will ordinarily respect that judgement, unless there is a good reason to disagree. However, where the guidance advises that the employee is not disabled, the employer must remember that it, and not the medical advisers, is responsible for making the final factual judgement. An employer cannot simply "rubber stamp" a medical adviser's opinion that an employee is not disabled. Further, Occupational health reports should focus on the elements of the test for establishing a disability, namely:

• Whether Mr Gallop had a physical or mental impairment.
• Whether that impairment has a substantial and long-term adverse effect.
• Whether the impairment affects his ability to carry out normal day-to-day duties.

Reports should not simply state whether an employee is disabled.


When is an agency worker not an agency worker?
Monday 6th January 2014

A worker engaged through an employment business and supplied to a third party will not be an agency worker for the purposes of the Agency Workers Regulations 2010 (the AWR), if they are not working on a "temporary" basis. This was the judgment handed down by the Employment Appeal Tribunal in the recent case of Moran v (1) Ideal Cleaning Services Ltd (Ideal); (2) Celanese Acetate Ltd (Celanese).

The facts of this case are simple. The Claimants were employed by Ideal and placed with Celanese to work as cleaners. The placements lasted between 6 and 25 years. As the Claimants had surpassed the 12 week qualifying period provided for under the AWR, they sought to argue that they were entitled to the protections of the AWR and were entitled to be treated in the same way as those employees engaged directly by Celanese. In the alternative, they also sought to argue that all agency workers were entitled to the protections of the AWR after the 12 week qualifying period, regardless of whether their work was temporary or not.

The lines of argument were rejected for the following reasons: 

  1. Under Regulation 3 of the AWR, part of the test on whether an individual is an "agency worker" is whether he is "supplied... to work temporarily for and under the supervision and direction of a Hirer." The main point of contention was what exactly could be described as temporary work. It was found that temporary work was that which was not permanent, i.e. of an indefinite duration. Admittedly, all contracts of employment are of an indefinite duration as they can be terminated by either party giving the appropriate notice; however, a truly temporary contract is one that will expire on completion of a certain event or condition. In this case, the Claimants' contracts were not for a fixed-period; nor were they going to expire after the completion of any specific work.
  2. It was further held that interpreting the AWR to cover all agency workers, regardless of their temporary or permanent status was not necessary to give effect to the purpose of the European Legislation behind the AWR. When considering the passage of the law through the relevant bodies, including the European Parliament, it can be seen that amendments were made to the original drafting to include the word "temporary." This suggests that there was a deliberate intention by EU legislators to exclude "permanent" agency workers from the scope of the legislation. Yes, this leaves a lacuna in the law, but it is, nevertheless, a deliberate one.

Key points to take away

  • Under Regulation 3 of the AWR, "temporary" means not permanent. It does not necessarily require an engagement of a short-term duration.
  • Agency workers supplied through employment businesses to third parties indefinitely do not fall within the scope of the AWR.
  • Employment businesses may have to think about ensuring that assignments are always limited in time or terminable on the occurrence of a certain event. It is possible that long-term assignments could be broken up and treated as a succession of shorter assignments. However, whether the courts would accept a series of shorter assignment as an engagement of a true "temporary" nature remains to be seen.


New employer held liable for misuse of confidential information
Tuesday 17th September 2013

The Patents County Court has held that an ex-employee and his new employer company were liable for misuse of confidential information belonging to their former employer.

In the case of Pintorex Ltd v Keyvanfar and others [2013] EWPCC 36, Pintorax brought claims against a former employee and his new employer, Parax Office Ltd, for breach of confidence, alleging that the employee had, on his departure, taken a copy of the entire accounting database containing a comprehensive picture of all the business done over several years. Pintorex alleged that the employee had misused confidential information by contacting its customers while still employed by it, with a view to soliciting their business.

The court found that the employee had been authorised by Parax to act on its behalf before he left Pintorex and had acted as Parax’s agent. It also found that Parax had the necessary state of mind to establish vicarious liability

The case highlights the need for employers to recognise the risks of allowing employees who used to work for a competitor to use confidential information from their old employment. They cannot simply turn a blind eye when offered what appears to be commercially sensitive information by a new employee and should make it clear to prospective employees that any such information should not be used by them before or after they start.

See for the full judgment in this case.