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Duty of Care

Introduction
We are all well aware that Employers have a 'duty of care' to take reasonable steps to ensure the health, safety and welfare of their employees. Health and safety is also relevant in improving attendance levels and employee wellbeing. The benefits to all employers are obvious, most notably the recognition that this minimises wastage and maintains keener costs.

Despite the fact that many employers feel that a lot of today's work regulations have seemingly moved us ever closer to becoming a 'Nanny State', they have realised that these same regulations can be in the best interests of the balance sheet as well as satisfying the criteria of protecting the workforce. Whereas the initial management reaction to additional regulations is one of 'having ones hands tied' still further, the relatively small investment in its introduction can offer long term benefits to the company as a whole if implemented quickly, efficiently and in a well thought out manner.

Companies looking at areas such as smoking, alcohol and stress alongside traditional occupational health issues such as noise, dust and chemical hazards, are now finding the investment of providing support is now having 'pay back', with less time taken from the workplace due to sickness, as well as a workforce that is more productive.

On a final note here, it must be remembered that employees have a responsibility to take care of their own health and safety and that of others - it is not simply an employer's responsibility.

Insurance and Workplace Health & Safety
Employers must take out Employers' Liability Insurance and display the certificate in a prominent position. Employees' health, safety and welfare at work are protected by law, with the employer having a duty to take reasonable steps to protect employees and keep them informed about health and safety. However, as mentioned earlier, employees also have a responsibility to look after themselves and others.

In particular, an employer must:

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Other safety/welfare issues
Other safety issues - such as working very long hours and not taking sufficient rest breaks - are covered by legislation. The Road Transport Working Time Regulations 2005 & EC Drivers Hours Rules EC561/06 and 1998 Horizontal WTD limit weekly working hours, provide minimum periods of rest and a minimum level of paid annual leave. It is crucial that employers in the transport sector comply fully with these statutory provisions.
Even those employees who do not undertake driving work are covered by the Working Time Regulations in terms of their working hours, rest breaks and annual leave.

There is no guaranteed way of ensuring the job satisfaction of your employees. However, the best way of keeping in touch with the way your employees feel about their workplace is to consult them. That way you can work with employees and their representatives to ensure that:

Let's not forget the one fundamental reason why we go to work - we all need to earn a level of income to enable each of us to survive, and as comfortably as each of us can make that possible. However - salary aside - the ethos of teamwork will undoubtedly prove beneficial to getting the best from your employees as will the fact that jobs are designed so that they provide motivation and job satisfaction. Jobs/work (in general) should - where possible - provide some or all of the following:

Many of these issues are critical to developing an effective and committed workplace. However, the right policies and procedures won't work unless they are introduced and used in the right way by managers who are trained and confident to do so.

It is wise to recognise openly that individuals have reasonable and legitimate reasons for needing to be absent from work - for example, they may have caring responsibility for an elderly relative. Also, there is increasing focus on the benefits of encouraging a good 'work-life balance'. Parents of young and disabled children have the right to request a flexible working arrangement and have it seriously considered by their employer (if you cannot objectively justify why you have refused a request, there may be circumstances where it could lead to a discrimination claim). Management should consider:

As a manager your aim is to achieve the highest level of productivity possible. There is a clear link between attendance and levels of productivity and customer care. Try to minimise disruption to work caused by absence and treat all workers fairly and compassionately.

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Managing Sickness, Absence & Return to Work
It is accepted that at some point in anyone's working life they will take time off work due to sickness. In the majority of cases, this is usually confined to just a few days (for whatever reason). However, there are times when sickness becomes long term and in situations such as this, the impact upon a department (or business) can be significant, as well as having serious implications to the employee in question.

Situations where a worker is off long term - especially if that individual is a key worker - can have dramatic implications where he/she works for a small business. Where you have a member of a department off work on long term sickness, management can sometimes be left with difficult decisions to make. The costs of losing any member of a department must also be considered, especially if having to utilise the services of other personnel to replace the individual for a long period.

From 6 April 2010, instead of the traditional 'sick note', for absences of 7 days or more doctors are required to complete a form stating either that an employee is unfit for work, or that they 'may be fit for work taking into account the following advice'. The form goes on to give examples which the doctor considers may be of benefit: a phased return to work, amended duties, altered hours, or workplace adaptations. However, the list is not exhaustive, and there is space for the doctor to give other suggested options.

At the time of writing, the so called 'fit notes' are still in the early stages. It is estimated that less than 3% of GPs have been trained on the new regime, and some doctors have apparently refused to issue the new notes. As with any new procedure, there are inevitably going to be teething problems, and from an employer's perspective there is a risk that disputes will arise while all parties get used to the new rules. In the meantime, it is worth remembering that while a GP's recommendations need to be taken seriously, they are not legally binding, and the burden remains on employers to manage their employees' absence.
Whether the absence is short or long term, it could be that it relates to a condition which falls within the Disability Discrimination Act. If so, the employee will be protected from discrimination regardless of their length of service and you will be under a duty to make reasonable adjustments, which may include the recommendations in the 'fit note'. It is important that you take the DDA into account before you take any action to deal with the employee’s absence.
Inevitably, a GP's view of their patient and their ability to work will be reliant on the patient's description (as well as medical information). In some situations it may be best to obtain a medical report from a doctor specialising in occupational health, in which case you must first seek the employee's consent. When requesting the report it is important that you provide a clear brief specifying the nature of the employee’s role and the questions that you want the report to answer, to give you the best possible information.

Some of the questions that will have to be considered if the illness is seriously long term are:

In all cases it is important that a fair procedure is adopted to reduce the risk of potentially expensive claims. In particular, any employee who is dismissed should be given a right of appeal against their dismissal.

In all cases of sickness it is advisable to conduct a return to work interview. By doing this, you are implementing an audit trail of an individual's attendance/sickness record, which can identify patterns and differentiate between those individuals who are genuinely ill and those who are not, but likely have other issues that can be identified and addressed with assistance from the company. Many employers find that simply conducting return to work interviews acts as a deterrent for employees taking short term absences.

By managing sickness, absenteeism and implementing a return to work procedural practice, Employers will benefit by:

If sickness and absenteeism is managed properly following sensible laid out procedural practices, your workers should benefit by:

Further Reading
The following website links to the HSE and ACAS should provide more in depth information and assistance on Duty of Care.

Workplace Health Connect - HSE
Looking after your employees - ACAS

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