<<

. 64
( 131 .)



>>

Such findings in the US comparison are clearly relevant to concerns in
Europe. The question has been raised why complaints over age discrimination
have increased. The answer may lie partly in the fact that as a society,
Americans simply do not view age discrimination in the same light as they do
race and gender discrimination. Age discrimination is not considered as wrong
or unacceptable and is viewed more as an economics issue than as a civil rights
issue. In other words, in the United States when it comes to age discrimination,
experts have commented that people ˜talk the talk™ but don™t ˜walk the walk™.
Part C “ Overview of the Social Aspects of Business Risks
334



Commentators have indicated that if the United States and Europe hope to
address the demographic challenges facing their workforces, both must take
more effective action to allow those older workers who want to continue to
work to do so.
With that in mind, one interesting issue is how far the European Directive
compares with the United States™ law. With the exception that the European
Directive states that both direct and indirect age discrimination (the equivalent
of the US disparate treatment and disparate impact) is prohibited, it has been
mentioned by experts that the Directive is not nearly as forceful as the
American ADEA in condemning age discrimination. Most significantly, while
the Directive permits the member states to continue to enforce mandatory
retirement in the United States mandatory retirement has been abolished
except for a few very narrow exceptions. In addition, the Directive contains a
provision that reads as follows:

Member States may provide that differences of treatment on grounds of age shall not con-
stitute discrimination, if ¦ they are objectively and reasonably justified by a legitimate
aim ¦ and if the means of achieving that aim are appropriate and necessary.

This provision can be interpreted to provide the member states with almost
unfettered discretion to carve out large exceptions to the prohibition on age dis-
crimination.


Disability discrimination
In the UK the Disability Discrimination Act now has new provisions which will
also extend the Disability Discrimination Act™s (DDA) protection to people with
HIV, multiple sclerosis and all types of cancers, effectively from the point of
diagnosis. A recent example is that a cancer patient who lost her job after
taking time off for treatment has been awarded more than £17 000 for unfair
dismissal.
The penalties can be more than just financial as three senior managers at a
UK train company, Virgin Cross Country Trains, found out. They were ordered
by an employment tribunal to attend training in disability rights law as the com-
pany had already been found to be in breach of the Disability Discrimination Act
(DDA) for failing to make reasonable adjustments to enable a train driver to
return to light duties after an operation on his knee, the employee was also
awarded £41 000 (Risks, issue number 212).


Genetic discrimination
The US Congress has debated a proposed privacy bill that would bar health
insurers and employers from discriminating against people with a genetic pre-
disposition to disease. This is an emerging risk issue which we will review as
more developments become apparent.
Chapter 14 “ Human resources risk (human rights inside the workplace) 335




Case study “ the UK Disability Discrimination Act and small business
concerns

Managing the Disability Discrimination Regulations
In 2003 the Disability Rights Commission (the DRC) put out to consulta-
tion (until 30 November 2003) two new Codes of Practice to reflect
changes to the Disability Discrimination Act 1995 which applied last year.
The Disability Discrimination Act Regulations 2003 (the Regulations)
came into force on 1 October 2004, requiring small businesses to make
alterations to premises in order to overcome barriers to disabled access. As
regards access to all areas and compliance with the recent rules it is there-
fore important to have asked the question: Are your premises ready?
According to practitioners the Regulations have far reaching implica-
tions for property occupiers who are service providers. Since 1 October
2004 employers with fewer than 15 employees were brought under the
scope of the Disability Discrimination Act for the first time. This meant
that discrimination against workers on the basis of disability became ille-
gal and firms are required to make reasonable adjustments to the work-
place to enable access for the disabled. The discussion below outlines the
key points of the new rules and the impact on small businesses.
Practical impacts: retailers, etc.
The Disability Discrimination Act 1995 provides that where a physical
feature makes it difficult for disabled people to use the service provided, it
is the duty of the service provider to make reasonable adjustments:
* Either to remove, alter or provide a reasonable means of avoiding the
feature; and
* Or to provide an alternative method of making the service available to
the disabled person.
As a result of the amendments retailers are required to make premises
more user friendly since the Disability Discrimination Act required this by
the end of October 2004. However, evidently many retailers have found
the law to be confusing. A service provider is anyone who provides a serv-
ice or supplies goods to the public, such as shops, leisure facilities and the
offices of accountants and lawyers. Not only did small businesses come
under the Disability Discrimination Act for the first time but shops, restau-
rants, bars, local authorities and other providers of services must make
every effort to ensure disabled people can use their services.
It is important to note that the responsibility to make premises compli-
ant rests on the service provider, not the property owner. Whether you are
a tenant or the owner of the building, if you are providing a service on your
premises then you are responsible for making the alterations. It is under-
stood that if you are a tenant and in order to comply you need to make alter-
ations which are prohibited under the terms of your lease, the Act provides
Part C “ Overview of the Social Aspects of Business Risks
336




that you can make alterations with your landlord™s consent. Consent may
not be unreasonably withheld, although your landlord can impose reason-
able conditions. Moreover, depending on the extent of the works you may
also require planning permission and/or other statutory consents.
Business risks
The spiralling costs of complying, and fines for non-compliance, with
additional regulation is one of the loudest complaints that has been heard
from business. It™s a constant challenge staying up to date with business
regulations and the penalties for failure to comply can be punitive. Of
course ignorance is no defence and business representative groups have
now taken a look at the emerging legislative changes and are trying to raise
awareness in the business community in general to changes that will
impact upon their business.
An example of this is that a UK business pressure group says a guide
produced by the Disability Rights Commission (DRC) aimed at helping
small businesses comply with changes to disability legislation is ambigu-
ous and long winded. It has been understood that the rules require busi-
nesses and service providers to make reasonable changes to ensure that
people in wheelchairs, the blind, the deaf and those with other disabilities
can access premises. However, the UK Forum of Private Business (FPB)
has said that many small businesses have been confused as to how to com-
ply after reading the DRC™s compliance guide.
FPB chief executive Nick Goulding said that small firms are not being
helped by disability rights groups publicising their intention to launch
legal challenges against businesses. The FPB believes that going straight
into legal action is ill-advised and unhelpful. Small businesses want to
comply with this legislation and understand that there are sound eco-
nomic and social reasons for doing so.
Some risk management recommendations are that:

* Instead of weighing in with a sledgehammer, that companies and dis-
ability rights groups should be working with small businesses to pro-
duce practical solutions to any problems;
* The FPB also advises businesses to consult with disabled customers
and define what reasonable steps can be taken to improve disabled
access on a case by case basis; and
* Read more concise comprehensive, affordable and user friendly publica-
tions on the subject, quite often not the official government publications.



Privacy of employees
This is a newer risk management area which has grown in occurrence and com-
plexity as the ability to establish surveillance systems on staff has increased.
The US Congress has started to debate this issue and has looked at a proposed
Chapter 14 “ Human resources risk (human rights inside the workplace) 337



privacy bill that would bar health insurers and employers from discriminating
against people with a genetic predisposition to disease.
There have been recent cases and fines for companies that have engaged in
˜excessive™ invasion of privacy, in one case a security technology firm installed
its own cameras in its head office, in order to prevent thefts, they claimed. The
problem with this was that the court deemed that although this is a normally
valid reason, this was not reason enough to install them in the female shower
and changing rooms!
An example of best practice in this field is that of IBM, the world™s largest
computer maker, who has pledged not to use genetic data to screen employees
and applicants in what it said was the first such move by a major corporation.
IBM CEO Sam Palmisano sent a memo to employees announcing the company
was revising its policies to prevent the use of genetic information in making
personnel decisions. ˜Genetic information comes pretty close to the essence of
who you are, it™s something you can™t change™, said IBM™s chief privacy officer,
Harriet Pearson. ˜It has nothing to do with your employment, how good your
contributions are, how good of a team member you are, so making a policy
statement in this case is the right thing to do™ (˜IBM rejects genetic screening at
work™, Risks, issue number 228 “ 15 October 2005).
In part the right to privacy is covered for employees while they are not at
work, as Article 12 of the UN Universal Declaration of Human Rights says that
there should be freedom from arbitrary interference with privacy, family, home
life or correspondence.


Traditional human resource issues
There is a wide range of employee-related risk issues. In this chapter we only
seek to review some of the newly emerging ones that can impact upon your
organisation. More ˜traditional™ ones that are vital to the success of any business
or other legal form of organisation are:
Effective recruitment and staff selection programmes that seek to attract and
promote staff that have the long-term welfare of the organisation at heart, and
have the skills to assist the organisation achieve its aims and objectives;
Having a skilled and well-trained workforce with established training pro-
grammes to continue investment in your key resource, your staff;
Unfair dismissal procedures are designed to protect both the employer and
employee and if undertaken correctly can save the organisations from expen-
sive legal action;
Management training programmes should include sustainability and sustain-
able risk management training to ensure that there is an understanding of the
long-term objectives of the organisation. This will assist with the manage-
ment of internal processes and external relationships, as well as ensuring
that their subordinate staff are also well trained and motivated; and
Staff and management training on these risk management issues should also
form part of a larger commitment to organisational learning and knowledge
Part C “ Overview of the Social Aspects of Business Risks
338



management. This could take the form of online training modules or addi-
tional information and resources for staff that wish to progress their knowl-
edge in specific areas of sustainability-related issues. This may include the
establishment of programmes that encourage employee participation in the
wider community to find out if their organisation benefits or impacts upon
local communities and other stakeholder groups.


Recruitment and staff selection
As part of an employee risk management system effective staff screening, inter-
viewing and recruitment processes need to be in place. A cost-effective tech-
nique at risk managing staff selection is to increase the thoroughness of
background checks as it is estimated that a high proportion of all r©sum©s have
some form of inaccuracy or false claim within them; about a third are said to
have false qualification claims. This should involve:
Authenticating qualifications;
Personal data, such as identity and work records;
Checking for business, political or interests in other organisations which may
raise concerns;
Verifying employment records and personal, professional and financial
references; and
Doing legal background searches to check for financial irregularities, like
bankruptcy or insolvency, and evidence of criminal activity or convictions.


Unfair dismissal
As part of an employee risk management system it is also a requirement to dis-
miss staff and this should always be conducted in accordance with the griev-
ance and dismissal procedures and the relevant legislation of the country in
question. The conditions and grounds for a fair dismissal are still changing and
a number of organisations in the UK have been caught out by new age and dis-
ability discrimination legislation (defined in the above sections). In one case a
cancer patient was dismissed for taking time off for treatment and in a more
public example an unfair dismissal dispute cost an airline a lot of lost revenue.
British Airways shares fell 2% on 17 August 2005 when a dispute with their
staff raged on which was caused by the sacking of workers employed by a
caterer contractor (Financial Times, 18 August 2005). British Airways demon-
strated robust systems and there was a share rebound when their risk manage-
ment and mediation activities caught up and helped to resolve the situation.
The end result was that British Airways gained 3.2% after the airline settled the
industrial dispute which had threatened to disrupt travel over an important
trading period (Financial Times, 24 August 2004). The dispute is said to have
cost £20 million as a result of over 700 flights being cancelled and 110 000 pas-
sengers being stranded around the world.
Chapter 14 “ Human resources risk (human rights inside the workplace) 339



Protection of whistleblowers
The trend in most places is that a worker who is concerned about wrongdoing
in the workplace regardless of sector or jurisdiction can usually be quite confi-
dent about legal protection if he or she discloses the information to the
employer or to an official body provided the disclosure is made ˜in good faith™.
This is viewed as the human rights element of this issue, in that it should be a
right to report wrong doing and illegal activity.
However, it would seem that any worker who plans to send a story to the
press while hoping to keep his or her job would be well advised to take legal or
trade union advice before resorting to the whistle. In the UK, for example, if the
disclosure does not meet all of the requirements of a protected disclosure men-

<<

. 64
( 131 .)



>>