We are looking for a new member of staff on our maintenance team. I recently interviewed an ideal candidate, who would be a great fit for the role. However, a background check has revealed that, five years ago, he was banned from driving for 18 months following a string of drink-driving incidents. He’ll need to be on the road a lot for the job, and naturally we are concerned that old habits die hard, and that he may be prone to breaking traffic laws again. Is this suitable grounds for refusing him the role?
Given the time that has elapsed since the ban was imposed and assuming that there were no further convictions in the interim period, it is possible that the previous conviction is now “spent”. If so and if the candidate is otherwise ideal for the role, it would be unlawful to refuse to employ the individual on this basis alone.
If is it decided to employ the individual, it would be advisable to give them a warning on appointment that any drink-driving incidents could lead to disciplinary action or even dismissal. Further, it is common where driving is essential for the performance of a role to have a clause in the employment contract giving the employer the right to dismiss the employee summarily for loss of their driving licence. Again, this would be advisable.
If the individual is employed and information is subsequently discovered that the individual has an ongoing problem with alcohol, it is important to act swiftly. If the company knowingly allows an employee under the influence of excess alcohol to continue working and this places the employee or others at risk, the company could be prosecuted.
Alcohol addiction issues should be dealt with sensitively. Whilst alcohol addiction does not amount to a disability for the purpose of the disability discrimination legislation, physical or mental impairments caused by the alcohol addiction could. Further, the individual should be given the same opportunity for support and be granted the same rights to confidentiality as they would if they had any other medical or psychological condition.
Our company has just hired a Sikh man, who wears a turban, in a role that requires him to wear a hard hat. Our health and safety manager is having kittens over it, and has asked why we hired him in the first place. He’s pressuring our operations director to take the man off the shop floor and either sack him or put him onto more admin-based tasks. What can we do?
Sikhs have been given special exemption to wearing safety helmets if they normally wear turbans. The law on this point was originally restricted to building sites and came into force in 1989. This exemption was extended in 2015 to apply to all workplaces. As such if you dismiss a turban wearing Sikh employee for refusing to wear a safety helmet then this will amount to indirect race discrimination. It is also likely to amount to religious discrimination.
The employers' liability for injury, loss or damage is in return limited where an injury is sustained by the turban-wearing Sikh which would not have occurred if he had been wearing a safety helmet in compliance with health and safety requirements.
The exemption does not relieve employers of their duty to carry out risk assessments or provide protective equipment where necessary in accordance with health and safety requirements.
Our advice is to speak to the employee in question and have a discussion to confirm to him that he has the right to be exempted from wearing a safety helmet, however, by doing so if he is injured in a situation which would not have arisen had he been wearing a safety helmet, then the employer will not be liable. I also suggest that you ask the employee to acknowledge his understanding of this issue by signing a returning a short acknowledgement form.
60 Second guide to… Gender discrimination
The Equality Act 2010 (EqA) protects against discrimination, victimisation and harassment, not only on the basis of an individual’s sex, but also on the basis of gender reassignment. The legislation protects workers during all stages of the employment relationship, including recruitment, training, terms and conditions, promotions, transfers and dismissal.
It is unlawful to treat someone less favourably than others because of their sex or (proposed or actual) gender reassignment. Such ‘direct discrimination’ cannot be justified unless one of the very narrow exceptions apply. This includes discrimination on the basis of an individual’s perceived sex or where it is perceived that the individual is proposing to undergo, is undergoing or has undergone gender reassignment. Further, less favourable treatment because of association with someone of a particular sex or because they associate with someone proposing to undergo, who is undergoing or who has undergone gender reassignment, is also unlawful.
Aside from ‘direct discrimination’, discrimination can also take the form of ‘indirect discrimination’, ‘harassment’ or ‘victimisation’. Indirect discrimination can occur where a workplace rule, practice or procedure is applied to all employees, but disadvantages transsexual job applicants/workers or those of a particular sex, without justification.
Unlawful harassment can take many forms and can include both verbal and non-verbal conduct that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. In the context of gender-based harassment, this can include, for example, unwelcome sexual advances or suggestive behaviour, outing or threatening to out someone as having undergone gender reassignment or sexually offensive e-mails, text messages or social media content.
Finally, gender-based victimisation will occur when an employee who has made or supported a complaint about sex or gender reassignment discrimination suffers a detriment as a result of that complaint.
If a job applicant or employee is successful with a discrimination claim, an employment tribunal will generally make an award of compensation, a declaration as to the parties' rights and/or make a recommendation.
