Health, Safety, Discrimination, and Human Rights - Essay Example

An overview on Healthy, Safety, Discrimination and Human Rights under Employment Law 1 Introduction Employment Law is mainly dealt with body of laws regarding administrative rulings, and precedents which addresses the legal rights of and restrictions on working people and their organizations. The labor movements have been instrumental in the enacting laws protecting labor rights in the 19th and 20th centuries. Labor rights have seen integral to the social and economical developments since the industrial revolution. Nowadays most of the organizations mugged with the problem of discrimination, health and safety issues in one or another way. It may be deliberately or may not be. Whatever it is, such activities always constitute the source of protest from the bearers and thereby the hindrance to the progress of the company. There may be number of laws and legislations enacted to protect the interest of the bearers of such issues. But the employer or leader is the sole and prime body to prevent such inactivity right before the outburst of the crisis for the well being of his dependents and also for the benefit of the company. As Henry Kissinger (1) the task of the leader is to get his people from where they are to where they have not been. So for a leader it is import display varied leadership styles according to the demands of the diverse situations. To prevent the problems like discrimination of workforce and safe guard the interest of the employees the leader has to acquire the tactics like vision, strategy, communication, buy-in, motivation, empowerment etc. Besides he has to plan an overall goal to achieve the thriving end and also he must have precise objectives to gain this goal. Now let us see what may be the goal to be formulated by the leader to achieve a better result where the problem of discrimination arises. As the problems in the organizations have been growing up, the importance of human rights has also come front. Nowadays the Human right commission is plays a crucial role in tackling the issues arising in the organizations. It will be relatively unusual ------------------------------------------------------------------------------------------------------------ 1. Henry Kissinger US diplomat & scholar; national security advisor 1969-1975; Secretary of State 1973-1977; Nobel Prize in Peace 1973 2 for a major HRA issue to emerge in the workplace, as most issues which are so important and fundamental that if they arise at all, they are likely to be covered by other laws. Recently a new equality body, the Commission for Equality and Human Rights (CEHR), is expected to begin operations from October 2007. It will be responsible for race, sex, disability, religious, and sexual orientation and age discrimination issues and fulfil the role of a human rights commission. (2) Now we shall explore the issues related to Discrimination, Health and Safety problems in the organizations in detail. Apart from this, we shall analyze the role of human rights activities in extricating such issues and also we shall bear out some legislation related to this field by probing the relationship with these branches of employment law with the human resource management. 1. Legal provisions concerned with discrimination and health and safety in a legal and business context. The law relating to European Union fundamental rights enumerates some provision rthe discrimination, safety, and health problems which is mandatory to be followed by each and every organizations for the well being of the employees. As per Article 1 which states that the equality between men and women must be ensured with regard to work and Employment and social protection, the UK law enshrined both the rights by direct reliance upon the European provisions, as well as the Equal Pay Act 1970 and the Sex Discrimination Act 1975.Article VII of EU fundamental rights give the Right to all the employees for equal Remuneration for Equal Work. The right to safety and Health working conditions for the employees in an organization is dealt with the Article VII. UK has enacted the rights vested in Article XI which says that the every employed woman has the right to maternity leave of at least 14 week before and/or after childbirth ------------------------------------------------------------------------------------------------------------ 2. Charted Institute of Personal and Development, Human Rights, February 2007 Incorporated by Royal Charter, Registered charity no. 1079797, London 3 in 1993 and has further been enhanced by a recent change which provides to all individuals the right to 18 weeks' maternity leave,if their baby is expected on or after the 30th April 2000. (3) Discrimination As said above the discrimination of workforce in the workplace may be like discrimination regarding disability, age, gender, race, religion or belief recto eradicate the discrimination towards the employees there are number of legislations are enacted and some of them are to be come up. Nowadays the cases related to discrimination against the woman invite more attention to the seriousness of this problem. Taking this into consideration, law has enacted some legislation to protect the interest of the woman. Convention on the Elimination of all forms of Discrimination against Women (CEDAW), otherwise known as women's convention was adopted by the UN General Assembly in 1979. As of December 2003, the Convention had been ratified by 175 states including the United Kingdom. CEDAW and the Convention on the Rights of the Child together define, protect and seek to promote the rights of women and girls at the local, national and international level. In particular, they constitute a major framework for the elimination of all forms of discrimination against women and the promotion of equality in public and private life. Other two pieces of legislations in this regard are Sex Discrimination Act 1975 and the Equal Pay Act 1970. They apply equally to women and men. The Sex Discrimination Act 1975 (SDA) offers protection against unlawful discrimination to both men and women. Moreover the Equal Opportunities Commission was established under the Sex Discrimination Act. This statutory, independent body works towards eliminating discrimination and promoting equality of opportunity between the sexes. It also keeps ---------------------------------------------------------------------------------------------------------- 3. EU Fundamental Rights Article I, Equality between Men and Women 4 under review the working of the Sex Discrimination and Equal Pay Acts. It is the main source of gender-related information and advice to the general public and businesses. The Race Relations Act amendments of 2003 introduced new definitions of indirect discrimination and harassment, new burden of proof requirements, and continuing protection after employment ceases. This Act is a derived form of from Race Relations Act of 1976, which prohibited discrimination on racial grounds in employment, education and the provision of goods, facilities, services and premises.(4) The Age Discrimination Regulations are due to come into force on 1 October 2006. These new Regulations cover employment and vocational training and include access to help and guidance, recruitment, promotion, development, termination, perks and pay. The regulations cover people of all ages, both old and young. As per the Act employers can be held responsible for the actions of its employees in all cases. It is therefore imperative that appropriate training of key members of management is introduced as early as possible to ensure employers are not overtly exposed through the vicarious actions of its employees. All employers, providers of vocational training, trade unions, professional associations, employer organizations and trustees, and managers of occupational pension schemes will have new obligations to consider under the Regulations. Under the Regulations all employees will have the 'right to request' to work beyond the default retirement age of 65 or any other retirement age set by the company and all employers will have a 'duty to consider' requests from employees to work beyond 65 (5) ------------------------------------------------------------------------------------------------------------ 4. PersonnelToday.com, Employment Law: Opinion and Analysis 5. UK employment Law www.roydens.co.uk 2005 5 Health and safety issues Sickness absence is increasing in workplaces across the UK. Workers took an average of 9.12 days off sick last year, with stress an increasing cause of absence. Heavy workloads, pressure to meet targets and management style were said to be the main causes of stress-related illnesses. The survey showed that workers in the public sector took 10.7 days off work sick last year compared with 7.8 days in private firms. The survey also revealed concerns about the sick note system with most employers believing that doctors issue them too easily. The cost of sickness absence has increased from 67 per worker per year to 88 during the past year.(6).From this survey it can be seen that the absence of employees by sickness is considerably heaving in almost all the organizations. If the employers concentrate in providing all employees adequate health and safety training as part of their induction period .Ongoing training must also be provided in response to changes such as the identification of additional risks, new or modified equipment or new responsibilities. Monitoring procedures can help highlight when training is required and also continually review the content of the training, eg how much the training relates to the job. Health and Safety at Work etc Act 1974 (HSW Act) laid down some guidelines to employers to carry out some responsibilities toward the employees. As per this Act, the employers should help in their decision-making, which if done without thought for the quality of life, independence and dignity of the student, or without thought for the health and safety of the employee, can ultimately be costly and dangerous. It also places a general duty on employers to conduct their business in such a way as to ensure that others, ie non-employees and members of the public), are not exposed to risks to their health or safety. Under the Management of Health and Safety at Work Regulations 1999, as --------------------------------------------------------------------------------------------------------- 6. The Telegraph, Employment law update, 2004/06/28 6 amended (the Management Regulations), employers need to assess the risks to the health and safety of employees and others who may be affected by their activities. This may require employers taking advice from other professionals on specific risks, eg medical substances. Employers must not give employees tasks that are beyond their capabilities in health and safety terms. For example, an employee should not be expected to manually lift a heavy young person without adequate training or mechanical aids as identified in the risk assessment. They should not administer medicines without suitable and sufficient training from health professionals.(7) The guidance recognizes that a balance has to be achieved between the requirements of the HSW Act and other legislation, such as the Disability Discrimination Act (DDA) or requirements under community care legislation. The DDA requires education employers to consider whether they have taken 'reasonable steps', if necessary by amending their health and safety policies, procedures and practices, to ensure that students with disabilities are not placed at a substantial disadvantage. Under the DDA it has been given that there should not be taken place any unreasonable restrictions on students' rights to autonomy, privacy or dignity. For example, a student cannot be excluded solely on health and safety grounds.(8) ------------------------------------------------------------------------------------------------------------ 7. Management of health and safety at work, The Management of Health and Safety at Work Regulations 1999, Approved Code of Practice and guidance L21 (Second edition) HSE Books 2000 ISBN 0 7176 2488 and Workplace health, safety and welfare. Workplace (Health, Safety and Welfare) Regulations 1992 Approved Code of Practice L24 HSE Books 1992 ISBN 0 7176 0413 6) 8. Health and Safety Executive: www.hse.gov.uk Disability Discrimination Act Part 4. Code of practice for schools Disability Rights Commission: www.drc-gb.org.) 7 Apart from these legislations a new code on obtaining and handling information about workers' health published by the Information Commissioner's Office (ICO) in December 2004 puts strict limits on the health information that can be obtained by employers and says in most instances alcohol, drug and genetic testing are an unwarranted intrusion. The new code warns them to think twice about the health records they hold and the hoops they ask you to leap through, whether this is health screening, medical, drug, alcohol or genetic tests. The code spells insists the employer to identify who within the organization can authorize or carry out the collection of information about workers' health on behalf of the organization and ensure they are aware of their employer's responsibilities under the Act. The employer should ensure anyone involved in health information collection or medical testing is properly trained.(9) Keeping workers, customers and suppliers out of harm's way is concentrating the minds of business leaders this summer. Institutional investors are also concerned that preventable accidents, illnesses and injuries at work are kept to a minimum.(10 Violation of Human rights Violation of human rights can found wherever the discrimination as well as the apprehension of safety and health problems exists. A human rights issue is most likely to arise between an employer and employee if the employer is a public authority or if an existing law is applied in a way that is incompatible with the ECHR. Even though an employee cannot bring an HRA claim against their private employer, courts and employment tribunals are public authorities and are obliged to uphold Convention rights and find remedies for infringement of those rights. ------------------------------------------------------------------------------------------------------------ 9. hazards Magazine, Health Informations,Hazards 89, January-March 2005, 10. Nick Pandya ,The Guardian, Saturday July 23 2005 8 The European Convention on Human Rights (ECHR) is a binding international agreement that the UK helped draft. Whilst it has existed since 1950, the ECHR did not become a full part of UK law until 2 October 2000 when the Human Rights Act 1998 (HRA) came into force. This Act incorporates the rights and freedoms guaranteed by the ECHR directly into UK law, and are the main source of human rights protection in the UK. A new equality body, the Commission for Equality and Human Rights (CEHR), is expected to begin operations from October 2007. It will be responsible for race, sex, disability, religious, sexual orientation and age discrimination issues and fulfil the role of a human rights commission. It will replace the existing Equal Opportunities Commission (EOC), Commission for Racial Equality (CRE) and the Disability Rights Commission (DRC) and promote the importance of equality for all in society, as well as working to combat discrimination affecting specific groups.(10) Employment Law and Human Resource Management Employment law is an increasingly complex area within the HR field. It now impacts on all company policies from pre-contractual, through to contractual and post-contractual activities. Increasingly, line managers need to understand and implement current practices on the use of agency workers, dealing with discrimination and, more recently, adapt to pressure to adopt new family-friendly policies. Human Resource professionals are responsible for ensuring compliance with a myriad of employment-related laws. They are major part by safeguarding the Organization from Claims of discrimination, harassment, and retaliation managing Employee Safety, Health, and Wellness to decrease risks and Increase Productivity and Morale. They have to ensure that all of recruitment strategies are nondiscriminatory as well as effective.They should --------------------------------------------------------------------------------------------------------- 10. ibid 2 9 determine the legality of noncompete and confidentiality agreements HR managers are responsible to conduct reference, credit, and background checks while complying with the Fair Credit Reporting Act.Using pre employment testing, drug and alcohol testing, functional assessments, and medical evaluations without discriminating against protected groups,they should offer a position without entering into a contract. Moreover by reducing the risk of losing "at-will" status, they have to understand the legal issues involved in rescinding a job offer. Altogether we can say whatever may be the laws, whether it is an existing or it is developing law, the human resources department has to play vital role inside the organization with the compliance of the law.(11) Data Protection Legislation in an organization The fourth and final part of the Employment Practices Data Protection Code - 'Information about Workers' Health' - is intended to help employers comply with the Data Protection Act (DPA). ICO says it "addresses the collection and subsequent uses of information about a worker's physical or mental health or condition."(12) As per this, employers holding and processing information about workers' health must first meet one or more "sensitive data conditions." 1. Is the processing necessary to enable the employer to meet its legal obligations, eg. to ensure health and safety at work, or to comply with the requirement not to discriminate on grounds of sex, age, race or disability 2. Is the processing for medical purposes, eg. the provision of care or treatment, and undertaken by a health professional or someone working under an equivalent duty of confidentiality, eg. an occupational health doctor ------------------------------------------------------------------------------------------------------------ 11. Council on Education in Management, Human rights 12. ibid 9 10 3. Is the processing in connection with actual or prospective legal proceedings 4. Has the worker given consent explicitly to the processing of his or her medical information The code says consent must be freely given, with no penalty for refusal. The worker must be clear about the data referred to and how it might be used. The ICO code says: "The collection and use of information about workers' health is against the law unless a sensitive data condition is satisfied." Once a sensitive data condition is satisfied, an employer needs to be clear that either: there is a legal duty to process information about workers' health, for example health surveillance requirements under the COSHH regulations; or the benefits from processing this information justify the privacy intrusion. The ICO code advises that sickness and injury records should be kept separate from absence and accident records. The code adds that no "league tables" of individual records should be published and says employers should "ensure that managers are aware of the sensitive nature of sickness and injury records." The ICO code warns that for medical examinations and testing just obtaining a worker's consent or meeting a sensitive data condition is not enough to satisfy the requirements of the DPA. (The Employment Practices Data Protection Code Part 4: Information about workers health, ICO, 2004.) Regarding rules relating to Safety the ICO code says: "Safety representatives should be provided with anonymous information unless any workers concerned have consented to the provision of information in an identifiable form." The new HSE accident book takes account of this requirement, with a tick box allowing workers to indicate all their information can be revealed to the safety rep.(13) ------------------------------------------------------------------------------------------------------------ 13. the Employment Practices Data Protection Code Part 4: Information about workers health, ICO, 2004. Conclusion The recent news shows that large number of HIV infected persons are suffering from the discriminating attitude inside the organization. Moreover there is a number of news that pregnant employees are still facing the 'deep-seated discrimination'(14) Discrimination, disregard of safety and health problems of employees whatever it is, these are purely violation of human rights. Treating people fairly is central to good people management. Employers should focus on creating a workplace culture in which everyone feels included, valued and respected. To foster personal responsibility and engagement, a balanced approach is needed to address diverse stakeholder and organizational interests and preferences. Creating a climate of mutual respect and dignity will foster improved working relationships and contribute to productivity and business *********************************** ------------------------------------------------------------------------------------------------------------ Press Association, Guardian Unlimited, Tuesday August 10 2004 Bibliography Statutes 1. Charted Institute of Personal and Development, Human Rights, February 2007 Incorporated by Royal Charter, Registered charity no. 1079797, London 2. Management of health and safety at work The Management of Health and Safety at Work Regulations 1999, Approved Code of Practice and guidance L21 (Second edition) HSE Books 2000 ISBN 0 7176 2488 3. Workplace health, safety and welfare Workplace (Health, Safety and Welfare) Regulations 1992 Approved Code of Practice L24 HSE Books 1992 ISBN 0 7176 0413 6) 4. The Employment Practices Data Protection Code Part 4: Information about workers health, ICO, 2004. Publications 5. Hazards Magazine, Health Information's, Hazards 89, January-March 2005, 6. Nick Pandya , Safety is good for your health, The Guardian, Saturday July 23 2005 7. Press Association, Pregnant workers still face 'deep-seated discrimination' Guardian Unlimited, Tuesday August 10 2004 8. The Telegraph, Employment law update, 2004/06/28 Websites 8. www. PersonnelToday.com, Employment Law: Opinion and Analysis 9. www.roydens.co.uk, UK employment law Read More