Welcome Guest! The IOSH forums are a free resource to both members and non-members. Login or register to use them

Postings made by forum users are personal opinions. IOSH is not responsible for the content or accuracy of any of the information contained in forum postings. Please carefully consider any advice you receive.

Notification

Icon
Error

Options
Go to last post Go to first unread
Andrew W Walker  
#1 Posted : 13 February 2018 13:53:50(UTC)
Rank: Super forum user
Andrew W Walker

Hi All.

I'd like someone to put me out of my misery please. 

I think I may have a memory of a court decision that put H&S law above discrimination when deciding on control measures. For example; if we have a 21 year old lad and an 80 year old man we would not have the old fella doing the same amount of physical work as the young lad. The company would not be discriminatory because of his age- it’s to protect his wellbeing.

Or am I going mad?

Thanks

Thanks

Andy

Elfin Davy 09  
#2 Posted : 13 February 2018 14:20:59(UTC)
Rank: Forum user
Elfin Davy 09

Andy

There have been several cases where H&S Law has been proven to trump discrimination laws, but usually the cases are more to do with clothing and/or on religious grounds.  I can’t off the top of my head recall a case which relates specifically to your query. 

However, if it helps in any way, the Equality Act says discrimination can be justified if the person who's discriminating can show that “it’s a proportionate means of achieving a legitimate aim”.  A “legitimate aim” is defined as the reason behind the discrimination and the reason must a) not be discriminatory in itself and b) it must be a genuine or real reason.

The health, safety and welfare of individuals is considered a legitimate aim, so you may have an argument.

Unfortunately however (and as you allude to in your original post), it's only the courts that can usually decide whether or not discrimination can be justified.

antbruce001  
#3 Posted : 13 February 2018 14:33:16(UTC)
Rank: Forum user
antbruce001

You are quite right, you can discriminate on grounds of H&S provided it is not targetted at a individual but covers a whole group.

In fact, if you look at the Management Regs, the regulations themselve discriminate against young persons and new and expectant mothers. We don't perceive it as discrimination, but it is. We are required to treat a whole group of people differently based on age or because a woman is expecting/recently given birth. COSHH allows for gender discrimination with regards to terragens, mutagens and reproductive toxins. In fact, there was a case relating to a female road tanker driver who wasn't employed as she would be required to transport mutagens and was of child bearing capacity. The case found that the potential employer was able to discriminate (not employ her), even if the individual was willing to accept the risk.

However, the justifcation must be sound. It cannot be used just to make your life easier.

Hsquared14  
#4 Posted : 13 February 2018 14:39:02(UTC)
Rank: Super forum user
Hsquared14

Where physical work is in question its all about capability, I know 21 year olds that couldn't break the skin on a rice pudding and 80 year olds who play badminton twice per week.  It isn't discriminatory to only expect people to do what they are capable of.

Andrew W Walker  
#5 Posted : 13 February 2018 14:48:08(UTC)
Rank: Super forum user
Andrew W Walker

Thanks all.

I had in my head that there was a ruling in the High Court or Court of Appeal.

My example of the old fella and the young lad was just an example- not a situation I am dealing with. We had a fitter here in his 70's- he could out work me any day of the week...

The question arose from a conversation with a manager.

Andy

RayRapp  
#6 Posted : 13 February 2018 14:49:45(UTC)
Rank: Super forum user
RayRapp

The DDA did have a caveat to say something to the effect that a person can be 'discriminated' against if it is to protect their health and safety. DDA has now been replaced by the Equality Act of course.

O'Donnell54548  
#7 Posted : 14 February 2018 13:17:06(UTC)
Rank: Forum user
O'Donnell54548

Not 100% sure but I believe that there was a question over the MH Regulations Guidance document which showed that, in general, a male could safely lift more than a female. If my memory serves me correctly this was questioned in court and this was ruled as 'reasonable' and 'non-discriminatory'.     

KieranD  
#8 Posted : 15 February 2018 17:39:50(UTC)
Rank: Super forum user
KieranD

Andrew

Why not simply identify a sample of tasks activities within the area of work of the 80-year-old, including the constraints in which they are done, and ask him to do them.

If he can do them without harmful stress within time limits acceptable to management, he's hardly at risk of harm.

A Kurdziel  
#9 Posted : 16 February 2018 11:50:47(UTC)
Rank: Super forum user
A Kurdziel

The mistake was in the original post- “Health and Safety legislation trumps anti-discrimination law”. There is no such thing as anti-discrimination law. Under the Equality Act there is a requirement to treat people in relation to certain protected characteristics equally, as far as reasonably possible. The act does allow discrimination on the grounds for characteristics which are not protected such as physically capability and even if the characteristic is protected then discrimination is allowed if it can be justified. The onus to prove it is justified lies with the employer.

It’s not really case of one law trumping another.

Elfin Davy 09  
#10 Posted : 16 February 2018 16:20:22(UTC)
Rank: Forum user
Elfin Davy 09

A Kurdziel - Legally speaking, you are of course absolutely correct. 

However, the Equality Act does basically the same thing as what went before in terms of descrimination, just that it's now under a bigger umbrella (ie an Act rather than various laws - see below).  Therefore, the OP raised a valid point because Health and Safety law CAN effectively "trump" the Equality Act in certain circumstances (..as you alluded to yourself), just it's now put another way.

Notwithstanding the above, it's Friday !  :-)

Equality Act Overview (from Gov.uk).

“The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society. It replaced previous anti-discrimination laws with a single Act, making the law easier to understand and strengthening protection in some situations”.

Users browsing this topic
You cannot post new topics in this forum.
You cannot reply to topics in this forum.
You cannot delete your posts in this forum.
You cannot edit your posts in this forum.
You cannot create polls in this forum.
You cannot vote in polls in this forum.