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Posted By Frank Bagnall
Can employers insist/ take disiplinary action against an employee who refuses to wear safety shoes? or would it be an infringment of a persons human rights?
could the employer face a charge of wrongful dismissal?
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Posted By Ian Mycroft
I would also like some clarification on the issue of Health and Safety Law conflicting with Human Rights. My personal view is, that if some one does not want to wear their PPE, no matter what it may be, when there is a real risk of serious injury, then that person is careless as to whether they are injured or not. If someone is careless for their own safety then they are in breach of section 7 of the Health and Safety at Work Act and therefore committing a criminal offence, I would consider it reasonable for criminal activity at work to be gross misconduct, take it from there.
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Posted By John Webster
I would have to agree that Section 7 of the Health & Safety at Work Act is the relevant piece of legislation. Furthermore, I can see nothing in the Human Rights legislation which would confer a right not to wear safety footwear. Even if it could somehow be interpreted this way, Section 6 of the Human Rights Act 1998 would require a tribunal to rule on the basis of other Primary Legislation - i.e HSWA.
As a debating point, however, S7 HSWA requires the employee to co-operate with measures imposed by the employer to enable the employer to comply with statutory provisions. If the employee were able to show that wearing of safety footwear was unreasonable and NOT necessary to enable the employer to comply with H&S law, then the employee might just have a case, though most sensible empoyers make compliance with local safety rules a condition of employment, rendering the employee liable to the full disciplinary process under employment law.
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Posted By Ashley Williams
As already stated, it is section 7 that applies in this case, although if the employer were to ignore what was going on as some do, then there is a case for section 2.2c lack of supervision been used against the employer, if they were to take no action. I wonder however why this person is not wearing their PPE foot ware? Is it because they are a poor fit, or uncomfortable PPE should be suitable for the wearer as well as to protect the wearer. A fact some employers fail to realise. More information would be needed however to establish if this is the case.
Ashley
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Posted By Jim Sweetman
I've heard various whipspers about the possibility of a H&S/Human Rights conflict. To date I've heard nothing concrete about it.
However, to the present point, I note that you ask about the possible conflict, Frank, whereas the others appear to have picked up on a specific instance of refusal.
Section 7 HASAWA is applicable here, I would think, but maybe reference to more specific legislation would be more helpful - the Personal Protective Equipment Regs 1992.
The requirement is for all other reasonable controls to be in place first and the need for suitable PPE identified as a part of the risk assessment. I would suggest that this assessment would prove the requirement for PPE.
The suitability of the PPE is another question. As the others point out, if the footwear is the wrong size or is uncomfortable then it is unlikely to be suitable.
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Posted By John Webster
Sorry, Jim. I thought my previous reference to the following provision of the Human Rights Act would answer the question of incompatibility
6. - (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if-
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "public authority" includes-
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature
So does this scotch the worries about incompatibilities - Health & Safety at Work Act Rules OK - or are there deeper considerations for the lawyers to argue over?
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Posted By Robert Woods
If the boots are suitable for the task comfortable [and are not made of leather in the case of vegans] and the employee still won't wear and can't give a valid reason why [not being fashionable is not a good excuse] them then sack them for gross misconduct, and make sure it's mentioned on any referances you give them.
Seriously I have come across this problem umpteen times. Telling the workforce the budget allocated per pair of boots giving them the footwear catalogue and letting them choose suitable boots which they make up any monetary the shortfall to has never failed to solve the problem.
Robert Woods
GMB Safety rep.
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Posted By Raymond Rapp
I will add my penny worth, although I am not sure about this Human Rights business.
I work in a safety critical industry and on a couple of ocassions the shoes supplied by my company (Dr martins not steel caps) has been discussed. First they are not in my opinion strictly PPE, rather they are uniform. Why? Provided a suitable rubber soled alternative are worn they will provide the required protection needed. The company insist that they are black ie uniform.
Sometimes a Doctors note may be required but not normally.
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Posted By David Lennon
Does the answer to this question lay in the principles of a hierachy of law ?
The H&SAW Act places statutory duties on employers and employees. I'm not sure that the Human Rights Act does!
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Posted By Edward H
So far the responses have all addressed the issue from the HSWA duties point of view....
However Frank's original question related to human rights and therefore by implication the Human Rights Act [2000?].
Which particular article under that act do you think the reluctant wearers might invoke to claim the "right" to not wear PPE?
The right of Association [with damaged feet?]
The right to humane treatment?
The right to privacy, is the best I can come up with. That is a qualified right and can be breached if the reason is lawful [compliance with HSWA etc.] and proportionate [the result of a considered risk assessment and suitable for the wearer].
I can see no breach; just enforce your reasonable rules fairly and evenly....
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Posted By John Haywood
The only one I can see is a reference in the HRA to a freedom of expression. I know of one company employee (communications company) who took a case to the EC of HR regarding his 'uniform' and it was judged that the wearing of the uniform gave him no benefit and in 'not' wearing it was not detrimental to the company. He won his case!
As for the topic in hand, I think common sense should prevail. If the wearing of PPE is a requirement of the job and after all other avenues have been exhuasted then the HSWA should prevail - or perhaps the employee would prefer to look for another job as he might start to suffer from work related stress.
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Posted By Philip McAleenan
John,
I would be interested in having more details of the case you referred to, especially the full legal decision, (a link that will take me to the decision will suffice if you don't have the write up)
regards, Philip
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