Employment law in focus at Logistics UK conference

“I’m a transport lawyer, but these days that means I’m more and more an employment lawyer,” said Chris Powell, a partner and transport regulatory solicitor at Weightmans, as he introduced himself to the Logistics UK Trans­port Manager conference in Som­erset.

“The transport manager’s role is not in isolation. It’s not just a technical role but includes health and safety law, employment law and human factors. It’s a peo­ple-focused role.”

He warned transport managers working for large companies that: “You can’t just leave people-man­agement to the HR team. Trans­port managers have far greater understanding of the driver’s job than human resources ever will.”

TMs had to pay attention to recruitment and retention: “It’s a bidding war for drivers at the moment,” but they shouldn’t let that distract them from the impor­tance of compliance. “You don’t want to find yourself in front of the TC or an employment tribunal. Being fair and responsible will pre­serve the business’ reputation.”

Employers were now expected to make ‘reasonable adjustments’ to accommodate health and disa­bility issues in their workers, and that included drivers. The pool of drivers was becoming increasing­ly diverse, and that meant being prepared to make greater adjust­ments, and cope with possible unforeseen consequences.

He gave an example of a female driver who was going through the menopause and struggled with the morning shift for that reason. She had sought medical advice, and was safe to drive, but had requested that she be allocated afternoon shifts only.

“But the afternoon shifts were also regarded as more desirable by other drivers: would it be unfair on the other drivers if she didn’t do ‘her share’ of the morning shifts too?” he asked.

The solicitor then pointed out that if the symptoms of a medi­cal condition were significant and long-term then they could count as a disability under the Employ­ment Act.

“You are obliged to make ‘rea­sonable adjustments’ to accom­modate disabilities, and failing to do so in this case might have opened the employer up to issues of sex and age discrimination also. There is no cap on the payouts for disability discrimination claims: there are cases where they have amounted to millions of pounds for one person,” he warned.

In the case of the female driver, the employer had wisely sought legal advice and then moved her onto permanent afternoon shifts.

But this had led other drivers to make complaints about favour­itism.

“What if the complaints don’t go away?” Mr Powell asked.

He warned that complaints and comments from other drivers could be constituted as unlawful harassment: both by the individ­uals concerned and by the com­pany.

“Your company must have policies in place where first train­ing about appropriate behaviour should take place, followed by action against offenders, if neces­sary.

“For an employment lawyer, there is no more alarming term than ‘banter’,” he said.

“More protections are coming to employment law specifically against sexual harassment.”

He then turned to the man­agement of mental health. Major company restructuring or merg­ers can see drivers facing tighter working conditions. “You may notice drivers starting to struggle: more accidents, tacho infringe­ments, and disputes at custom­ers’ premises,” he warned.

“Then, one day, there’s a bridge strike, and the driver suffers life-changing injuries. It emerges the driver was suffering work-re­lated stress and anxiety. Multiple consequences will follow, extend­ing into employment law, and health and safety legislation.

“The traffic commissioner will be involved. He will ask for reports and ask the driver if new working practices contributed to the acci­dent.”

Mr Powell said that transport managers should remember that health and safety covered ‘health’ as well as ‘safety’ – including em­ployees’ mental health. There had been no cases in the UK, yet, but Australia had seen its own court service prosecuted and fined un­der similar legislation after mental health issues caused an employ­ee to commit suicide. In France, there had been multiple convic­tions after suicides at a company that was restructuring.

Transport managers were often the first to see bad trends emerge, and should remember that a ‘one size fits all’ health and safety pol­icy probably wouldn’t cut it given the multiple bodies involved in transport law enforcement.

Mr Powell went on to explain some of the consequences that a poorly-run internal investigation  into an event could have.

“Transport managers are often in the frontline, and a mismanaged investigation is often the reason for an escalation into an appearance before a transport commissioner or employment tribunal.”

Common reasons included:

1) No effective internal investi­gation policy being in place in ad­vance of the event.

2) A lack of independence. Was the person conducting the inves­tigation too close to the incident? For example, was the transport manager who sent the vehicle out that day really the right person to investigate the reason it struck a bridge?

3) Lack of parity. Was one driv­er sacked for a mistake when an­other had just got a warning after a similar incident?

He suggested that internal in­vestigations should be conducted by a solicitor, so they would be cov­ered by legal privilege.

“Otherwise, police can ask to see all materials and reports that formed part of the investigation, and conclusions hastily put down on paper can have far-reaching consequences,” he warned. “If you get a lawyer involved then while the report itself won’t be covered by privilege, the investiga­tions will be.”

Mr Powell then turned to whis­tleblowers: individuals who go pub­lic to reveal illegal or unacceptable practices within an organisation. “There is very little case law on whistleblowing, and insufficient guidance from government,” he said. “But individuals are entitled to protections where a good faith disclosure leads to detrimental treatment. Protections apply even if the disclosure was incorrect.”

The new Labour government was introducing stricter employ­ment laws, including an end to the two-year qualifying period. He warned that workforces were changing rapidly, becoming younger, more diverse and more aware of their rights.