Posted By Ron Hunter
I would be uncomfortable with any policy or procedure suggesting that personal and confidential information was to be divulged via risk assessment. Risk Assessments are not confidential documents.
The issue is more one of confidentiality than discrimination.

Posted By Raymond Rapp
Steve

I would prefer to use the term 'vulnerable' worker, which amongst others include young people and expectant mothers.

Ray

Posted By Merv Newman
"Risk Assessments" are, as said assessments of risks to which workers will be exposed. Such exposure applies equally to all workers, regardless of race, creed, sex etc.

However, precautions to be taken, procedures to be respected MAY differ depending often on sex and, sometimes, on physical abilities.

Example : exposure limits for women of child bearing age can be much lower for some substances than those for people who do not enter into that category. They, and you of course, must be aware of this and institute/respect more severe precautions/procedures.

Example : during pregnancy the risks remain static. however the condition of pregnancy is dynamic. A risk assessment for whatever the work is need not be revisited every week or so. But the procedures/precautions/working methods may have to be.

Physical handicap should not bar any person from undertaking any kind of work. Again, the employer must be aware of the handicap and make due provisions.

So, the "difference" will not be part of the risk assessment. It may however form part of the management of identified risks.

Merv

Posted By OccDoc
Hi. I'm new around here and fascinated by the comments above. I agree with Ron Hunter that there is an issue of confidentiality here; why not refer the vulnerable worker to Occupational Health where a professional opinion on fitness for specific work tasks can be given without disclosure of the underlying health issues?
I agree with those who point out that although Disability legislation is important, where there is a conflict, H&S legislation trumps it.
Merv Newman's post confuses me; does his opening statement confuse hazard and risk or am I missing something? Arguably there is a place (e.g. for COSHH) for a generic risk assessment to identify hazards, quantify risks, plan control measures and set up health surveillance if indicated. But the risk to the individual postholder may be greater in vulnerable workers. Just as the RA should be reviewed with any change in the job description, so it should with changes in the fitness of the worker.
So I agree that a clause can go into the lone worker policy, but I would suggest that individual RA should be carried out in conjunction with the Occ Health team in order to preserve confidentiality but maintain robust objectivity.
Guess what I do for a living!

Posted By Neil R
John,

The statement does not say that medical records etc will be given out to everyone does it?

The statement says that they will assess the hazards and in certain circumstances it may not be suitable for certain people to undetake lone working.


Read the post! The original poster is asking whether his statement breaches any discrimination acts or laws. Which it doesn't!


Why have you gone on about the Data Protection Act etc. Where does the STATEMENT say that we will pass employees medical records out as part of the risk assessment? Where does it say that women cannot lone work because they are not capable?

It doesn't they STATE that they will assess individuals ability to undertake lone working and in some cases it may not be appropriate for certain people to undertake.

No breach of DDA
No Breach of Data Protection

No breach of anything.

Posted By Pete Longworth
My view of this is that there is always scope in any risk assessment to take personal circumstances into consideration, in fact case law (eg Paris v Stepney Borough Council) means that we have a duty to do it. But the assessment must be on the basis of physical capability taking into account of all reasonable adjustments and not on the basis of anything such as gender etc.
From the point of view of lone working I can imagine circumstances where it may not be appropriate for people with a medical condition eg a heart condition or diabetes , epilepsy etc but I can't see how it would not be appropriate for a woman. Women come in all shapes and sizes just like men. They have a wide range of physical abilities just like men, so unless a woman is for instance, in the advanced stages of pregnancy, then I can't see what your point is.

Posted By Neil R
Your post was aimed at what i said which i stand by.

If i choose or the company i represent choose not to put a person in a situation where, medical issues, sex or disabilities creates a hazard that cannot be controlled by normal methods then we are not doing anything wrong. Lone working is a prime example.

I doubt any court would see it any other way either, there is always going to be some cross over between DDA and Safety Law but ultimately the fact that we are not endangering the safety of the individual means we are furfilling our requirements and doing the best for the individual. Health and Safety Law takes precedent.

Your not on anyones side, all your doing is blurring the lines. How many people who have a known health issue or disability would want to work alone?

Answer this question,

A company i used to work for had a call out system, if a part was required or an alarm sounded, an employee would be called to attend the building.

This would be done in pairs. the company took the decision to stop two females attending the building together, it would always be one man one woman or two men. The area were the building was was secluded and several violent crimes had been committed in the region mainly against women.

The stats showed that women were vunerable to attack in the area, company made the decision on these stats and on advice from the local police. Discrimination?

Posted By John Richards
Presumably, by "assaults on women" you mean assaults which are because of the sex of the victim ?
ie: sexual assaults.
So you are stopping female lone-working because women are more likely to be sexually assaulted ?
Of course, the rather irritating fact is that males lag-behind females as victims of sexual assault by not very much. In some areas they lead the females as victims !!
So, you may have to send non-sexed persons....
And you would still lose a sex discrimination case.

Posted By peter gotch 1
Steven,

Firstly with no intention to offend Tony, and as another ex HSE Inspector, I would not necessarily trust HSE to get it right!

There is a long history of duty holders falling foul of discrimination law throughout the English speaking world......

Here's one from April 2008, which as you can see I lifted from the late lamented "Old Forum".....Whilst it mainly deals with race/religion I would expect the courts to apply similar principles to any other issue of discrimination.

When I was asked to expand 2000 postings into a broader article I was rather stymied when my computer at work refused to do Google search for 'sex discrimination health safety' - our organisational policies did not like 'sex' in an internet search! [I always wondered how our HR team were supposed to be capable of doing their job!]

Would need to do some reminder research but I think the Bhinder case referred to below was case against British Steel where the STATUTORY exemption for Sikhs on Construction sites did not apply - employment was in a steel stockholding warehouse.

Regards, Peter.......

Re: Rastafarians
Posted by peter gotch on Wednesday, 30 April 2008 at 10:00
mmm. HSE don't seem to be aware of the case law.

Here's some very dated extracts from the old forum in response to question which originated in Oz. [I don't know whether all the web pages will still work].......

Posted by peter gotch on Monday, 28 August 2000

In Great Britain, the Construction (Head Protection) Regulations 1989 apply.

The basic principle of the Regulations is to require everyone to wear suitable head protection whenever there is a foreseeable risk of injury to the head other than arising from a person falling.

Sections 11 and 12 of the Employment Act 1989 exempt members of the Sikh religion who are wearing turbans from any requirement to wear head protection on a construction site.

A Sikh not wearing a turban is required to comply with these Regulations in all respects.
Sikhs choosing to wear turbans deny themselves use of adequate head protection, and will limit the employer’s liability in the event of a claim, because of this.

The exemption was contraversial!

Posted by peter gotch on Tuesday, 29 August 2000, at 8:38 a.m., in response to Re: ....and now for a "curly" one, posted by Jim on Monday, 28 August 2000, at 7:22 p.m.

Jim,

Exclusion of a turbaned Sikh from a work area may constitute racial discrimination, and therefore not be reasonably practicable. See the following (edited) extract from the UK Commission for Racial Equality Code of Practice on Employment

(Incidentally other Commonwealth countries have come to similar conclusions).......

".........Where employees have cultural and religious needs which conflict with work requirements, it is recommended that employers consider whether it is reasonably practicable to adapt these requirements to enable such needs to be met.

For example, it is recommended that they should not refuse employment to a turbanned Sikh because he could not comply with unjustifiable uniform requirements

S.11 of the Employment Act 1989 exempts turban wearing Sikhs from any requirement to wear helmets on a construction site.

Where a turban wearing Sikh is injured on a construction site liability for injuries is restricted to the injuries that would have been sustained if he had been wearing a helmet
S.12 of the Employment Act provides that if, despite S.11, an employer requires a turban wearing Sikh to wear other protective head gear such as a safety helmet on a construction site, the employer will not be able to argue that this is a justifiable requirement in any proceedings under the Race Relations Act to determine whether or not it constitutes indirect racial discrimination

Although the Act does not specifically cover religious discrimination, work requirements would generally be unlawful if they have a disproportionately adverse effect on particular racial groups and cannot be shown to be justifiable*.

* (footnote) Genuinely necessary safety requirements may not constitute unlawful discrimination......."

Posted by peter on Tuesday, 29 August 2000, at 3:18 p.m., in response to Re: ....and now for a "curly" one, posted by peter gotch on Tuesday, 29 August 2000, at 2:41 p.m.

It's a matter of degree of risk, as to what would constitute a reasonable rule.

See extracts from
http://www.austlii.edu.a...scripts/1996/S194/1.html

Canadian case, Ontario Human Rights v Borough of Etobicoke (1982) 132 DLR (3d) 14. was a case involving firemen over 40 where the borough, largely it seems on the basis of anecdotal material that firefighting is a young man's game, had said that firefighters had to retire at 40.

The Canadian Act used the same sort of language as the American cases; "bona fide occupational qualification".

It must be related in an objective sense to the performance in that it is reasonable necessary to assure the efficient and economical performance of the job -

The same sort of test was applied in Bhinder's Case which is referred to there.

That was a Sikh case involving the question as to whether a safety helmet had to be worn. The argument was that the Sikh employee who will not wear the safety helmet in the yard is creating risks, and so on.

Again, the approach taken was that one looks at the reasonableness. If the situation is that it is only once in a thousand years that you are going to have an accident where the safety helmet is going to protect him, then it is unreasonable to require him to wear it.

If he is in a position where quite regularly heavy objects fall on one's head and there is a serious risk, then it is reasonable to say that a Sikh who will not wear a safety helmet is unable to perform that job.

So it is always a question of degree and looking, on that test, at what is reasonably necessary to assure the economic and efficient performance.

The provisions of this section relating to any discrimination, limitation, specification or preference for a position or employment based on age, sex or marital status do not apply where age, sex or marital status is a bona fide occupational qualification and requirement for the position or employment.

Also UK's leading Trade Union solicitors:
http://www.thompsons.law...uk/ltext/l0100004.htm#12

Is a requirement or condition one with which persons of a racial group 'can comply'? This question commonly arises in racial discrimination cases in respect of Sikh turbans, where there may be an attempt to make it a condition that turbans may not be worn.

The courts have interpreted the phrase as meaning 'can comply' in practice rather than meaning can physically comply. A school which refused admission to a Sikh boy because he wore a turban was held to have indirectly discriminated against the racial group to which he belonged. (But see also Justifiability below.)

Disproportionate Impact

Having established that the employer has applied a requirement or condition to the employee, the employee must establish that that requirement or condition has a disproportionate adverse impact on persons of the same racial group as him or her; that the proportions of the same racial group who can comply with the requirement or condition is considerably smaller than the proportion of persons of another racial group who can comply.

What is or is not a considerably smaller proportion is a matter for the Industrial Tribunal. Considerably smaller are ordinary words in common usage.

Justifiability

The next requirement for indirect discrimination, having shown a discriminatory condition which has a disproportionate impact and which is to the detriment of the person complaining, is that the discriminatory action cannot be justified irrespective of the racial origins of the complainant. The applicant does not have to show that the condition cannot be justified - that is assumed - but the employer may seek to prove that the condition is justified.

Sometimes a condtion, which on the face of it is discriminatory, can be justified by the employer. The wearing of a turban may be incompatible with a safety requirement that the individual should wear a safety helmet. It is for the court to strike a balance between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it (1) though Parliament has now stepped in to allow Sikhs not to wear helmets on building sites.

A rule forbidding beards at work, which is indirectly discriminatory to Sikhs, is justified as a matter of public health in the context of food preparation or manufacture. (2)
(1) Hampson v. Department of Education & Science [1989] IRLR 69 CA.
(2) Singh v Rowntree Mackintosh Ltd [1979] ICR 554, [1979] IRLR 199

Posted By peter gotch 1
...and another response.

Some years ago, one of my clients was allowing their female surveyor into the red light district of a major city [in England] at 8pm in October.

I would have been rather less scathing had the surveyor been male.

I work very close to the red light district in Glasgow. In the early nineties, flowers were too regularly on the lamppost on our street corner. When we got to murder no. 6 or 7, the Police started taking a much more proactive and prostitute supportive stance.

Of course in this "Mean City" the occasional murder of a male in the City Centre still occurs - very occasionally - but I cannot remember any clear recognition that this relates to sexual assault - in direct contrast to the recognition of the risks faced by females.

Where I live in the West End is where many scenes are filmed for Taggart - one December film crew vehicle slid down the hill around the corner - taking out no less than nine cars, all write offs.

Unfortunately last May, Taggart filming in our "street" (technically three streets around communal gardens) was only a week before a real murder in a restaurant about 200m from where I live. Trial of one of two accused set yeasterdy for May this year [the other accused has pleaded guilty to reduced charge - culpable homicide]. Victim female but no suggestion, in the media to date, of sexual assault. Taggart location literally 50m from the scene of the real tragedy.

Regards, Peter

Posted By John Richards
And don't you just hate the inherent discrimination.
"Men are not at risk so they can work alone"

Posted By Neil R
Ok look at it another way. For a sex discrimination case to come up, somebody would have to take legal action because they believed they were being discriminated against.

If a female was told that due to the high number of sexual attacks on women in the area we have decided to not send lone females out on call outs at night. It would take a strange person to then take legal action surely.

Because what you would be saying was i object to you trying to protect my safety in this way, i would rather you paid no attention to my safety and put me at potential risk thanks????