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Dress Codes Update

The Government has issued guidance on workplace attire off the heels, as it where, of the case of Nicola Thorpe - a temporary worker who was sent home unpaid from accountancy firm PwC for refusing to wear high heels, and raised a petition demanding that “women have the option to wear flat formal shoes at work”. Further to our blog in 2016 the following is the latest update.

The Government did not consider that the law needed to be changed, but its guidance highlights the importance of ensuring that employers, employees and job applicants have a clear understanding of the dress code requirements of the workplace, and that they are compliant with the UK’s discrimination legislation.

What does the guidance say?

There is no requirement for dress codes for men and women to be identical – but standards imposed should be equivalent, with similar rules laid down for both men and women. Gender specific requirements, such as a requirement to wear high heels, skirts or make-up, or have manicured nails or certain hairstyles, are likely to be unlawful. Transgender employees should be given a choice as to which gender aspects of a dress code they wish to identify with.

The requirement for employees to ‘dress smartly’ is not unlawful if it applies equally to all employees. For example, all employees can be expected to wear a ‘two piece suit’, with women having the option to wear a skirt. The same dress code can become discriminatory if, for example, female employees are expected to wear short skirts or particular hosiery.

There will be inevitable subtle variations. In the above example, men may be expected to wear ties and be clean shaven as part of a corporate image the employer seeks to promote. This would not amount to less favourable treatment, provided that the standards expected of women are at an equivalent level.

The guidance refers to the employer’s duty to consider the health and safety of staff, providing the example that if an employer requires staff to wear particular shoes (as part of a dress code rather than for personal protective equipment purposes), then they should consider whether this may make staff more prone to slips and trips or injuries to the feet.

Dress codes must not prohibit employees from expressing their faith through their clothing/wearing of religious symbols. Any prohibition by an employer must be based on a
legitimate business aim. For example, an employee wears loose clothing to reflect their faith, the employer may have a legitimate health and safety concern. They may refuse such attire if the employee operates machinery, which loose clothing may get entangled in.

Particular dress codes may be dis-applied for disabled employees if it would place them at a particular disadvantage. This is part of the employer’s on-going duty of reasonable adjustment pursuant to the disability discrimination legislation.

What does this mean for employers?

Employers should review any existing policies on dress to ensure they are in accordance with the guidance. If there is currently no such policy, consideration should be given as to whether a policy should be introduced to meet the needs of the business and provide clarity.

The guidance states that consulting employees and, where they are recognised, trade unions over any proposed dress code or changes to an existing code will help ensure that the code is acceptable to both the organisation and its staff.

What does this mean for employees?

It remains that employees have a right not to be discriminated against unlawfully in relation to the way they are required to dress at work. Reference to the new guidance will help employees to identify whether particular requirements are unlawful or not.

The complete guidance can be accessed here

Changes In Compensation For Road Traffic Accidents

Back in 2017 the government announced proposed reforms in relation to the personal injury sector and, in particular, changes to the small claims court limit from £1,000 to £5,000 in road traffic accident claims and £2,000 in other personal injury claims. The limit is based upon the amount of the damages which are for pain and suffering and loss of amenity; these are referred to as general damages. Losses such as loss of earnings, medical treatment and care are excluded from general damages.

Victims could be unrepresented

I find the proposed reforms very concerning as I have acted for hundreds of victims of personal injury over a long period of time.

The current small claims court limit is £1,000 and is generally used for people who are not legally represented and is usually used to settle disputes about faulty goods or services.

Personal injury claims work very differently, with the victim having to prove not only negligence on the part of the defendant, but also causation which involves the production of medical evidence. Often the claims can be complex and difficult, under the current reforms a claimant would be unrepresented,, they would not have the support of legal assistance as the legal costs of a victim are not recoverable in the small claims track meaning that it may be uneconomic to instruct a solicitor. This would mean claimants would be self-represented, having to negotiate a claims process system and face professionally represented insurers where there could be disputes on liability and value.

I have dealt with many road traffic accident claims where the value has been below £5,000 and all of those cases have required legal skill and knowledge. The current reforms would force an injured victim into the small claims court to pursue their claim without legal knowledge, or potentially using all of their compensation to pay for legal assistance. Many victims may simply feel that they have no choice but to abandon their claim altogether. This is not access to justice and is a restriction to legal rights. Insurers claim savings will be passed to consumers

legal knowledge, or potentially using all of their compensation to pay for legal assistance. Many victims may simply feel that they have no choice but to abandon their claim altogether. This is not access to justice and is a restriction to legal rights.

Insurers claim savings will be passed to consumers

One of the purposes behind the reforms is based upon promises of estimated savings being passed from insurers to consumers, but I do not believe that this will happen. Insurance companies have previously made promises of savings for motorists, after previous legal reforms in 2013, and these have never been passed down to consumers. Also the public will be aware of their existing insurer issuing a renewal premium which isn’t their best price, which you would expect for loyalty. Often an online search of the market shows the same insurer quoting a lower premium, or the insurer will do so when asked to reconsider. Insurers rely on people just accepting the renewal premium. This practice evidences insurers cannot be trusted to pass on claims savings by way of lower premiums to the public.

Suggestions to put the plan on hold

I am pleased to see that MPs are now urging the government to halt the plan to increase the small claims limit, after a Justice Select Committee suggested the plan should be put on hold whilst a full evaluation of the reforms, over the last five years, has been undertaken, when concerns in relation to financial and procedural barriers claimants may face are considered, and ensuring access to justice is not affected.

I cannot understand how the government expects injured persons to deal with such claims themselves. Without proper legal help and support, how does the government expect the claimant to prepare appropriate allegations of negligence to be raised against the defendant, instruct medical and other experts and obtain medical evidence to establish causation and value the claim? In addition claimants will have to deal with funding court fees and the cost of expert reports.

Unfairly balanced

The reality of the situation is that the only people who will win under the new reforms are the insurers, who are providing insurance to negligent drivers, and claimants simply do not claim for their entitlement to compensation for fear of not being able to understand what is involved in making their claim, and not being in a position to seek legal assistance. Even where claimants do feel able to proceed with a claim, the legal scales would be unfairly balanced with an individual acting against an insurer who has an unlimited pot of funding behind them, and an unfair knowledge and experience of what is required in order for the claimant to win their claim.

The actions of a few should not affect the many

It is often my experience that insurers deny liability when a victim has a good case, or offer a sum well below the damages that would be awarded by the court. Insurers are commercial operators whose only interest is to settle a case at the most economic figure, or avoid paying out altogether.

I accept that there will be the odd “rotten apple” trying to pursue a fraudulent claim, but the actions of the odd few should not mean the legal rights of almost half a million people are severely restricted. The government has already put into place a number of measures to detect fraudulent claims and repeat claimants, although it must be stressed that such claimants are in the minority.

New Restrictions on The Use of Epilepsy Drug Epilim in Pregnancy

I wrote a blog last year on 24 October about the harm that Sodium Valproate, a controversial drug used to treat epilepsy, can have on unborn babies if used by mothers during pregnancy.

The drug made headlines in 2017 when it was revealed that drug regulators knew of the drug's problems as far back as the 1970s but did not to include this on patient information leaflets for fear it “could give rise to fruitless anxiety”.

Over the years however there have been numerous attempts to improve the communication of the risks of taking valproate medication during pregnancy to women, and in particular to their unborn child, although recent studies suggest that some women are still unaware of these risks.

Developments over the years

In 2004 The National Institute for Health and Care Excellence (NICE) guidelines on the diagnosis and management of epilepsy were amended. They stated that women and girls of childbearing potential (including young girls likely to need treatment into their childbearing years) and their parents and/or carers if appropriate, should be informed of the risk of anti-epileptic drugs (AED) causing malformations and possible neural developmental impairments in an unborn child, and assess the risk and benefits of treatment with individual drugs.

A study by Bromley et al in 2010 revealed that children exposed to sodium valproate had a statistically significant increased risk of delayed early development, compared to the control group of children. Also in 2010 an article published by Hill et al titled “Teratogenic effects of antiepileptic drugs” noted that foetal malformation linked with sodium valproate was known to be dose related.

In 2012 the NICE guidelines, referred to above, were again updated. Much of the 2004 update remained the same but newly added was that doctors seeking to prescribe sodium valproate should specifically discuss the risk of its continued use to any unborn child, being aware that higher doses of sodium valproate (more than 800 mgs per day) is associated with a greater risk. It also added that doctors needed to be aware of the latest data on the risk to the unborn child associated with AED therapy when prescribing for women and girls of present and future childbearing potential.

In November 2014, the European Medicines Agency’s (EMA) Pharmacovigilance and Risks Assessment Committee (PRAC) conducted a review of the valproate drug and agreed to strengthen warnings and restrictions on the drug’s use in pregnancy, due to the risk of malformations and developmental problems.

After warnings were strengthened in 2014, in 2015 the Medicines and Healthcare Regulatory Agency (MHRA) advised healthcare professionals against prescribing valproate-containing medicines in women and girls of/or nearing childbearing potential unless other treatments were ineffective or not tolerated.

Two years later the MHRA released further resources including a toolkit to help healthcare professionals talk to women with epilepsy about sodium valproate's risks during pregnancy. New safety warnings were also introduced which included written warnings on the drug's packaging.

On April 6 2017, NHS Improvement and the MHRA sent a patient safety alert through the central NHS system to further highlight sodium valproate's risks during pregnancy and published their Drug Safety Update which advised healthcare professionals not to prescribe sodium valproate to females unless other treatments were ineffective or poorly tolerated. Doctors also had to ensure that women and girls taking valproate medications understood the 10% risk of birth defects and the 30–40% risk of neurodevelopmental disorders. It also stated that valproate used in women and girls of childbearing age must be initiated and supervised by specialists in the treatment of epilepsy.

Despite these previous recommendations, women were still not always receiving the right information in a timely manner and my previous blog discussed the public hearing that was held in London on 26 September 2017 by the PRAC as part of a safety review of the drug, where EU citizens spoke of their experiences of Epilim. Nearly eight months on, there have been further developments that have put sodium valproate back in the headlines.

New developments

Sodium valproate must no longer be prescribed to girls and women of childbearing age in the UK unless they have a Pregnancy Prevention Programme (PPP) in place, under new rules brought in by the MHRA. The PPP requires women to complete a signed risk acknowledgement form when their treatment is reviewed by a specialist, which must take place at least annually.

This programme will also be supported by smaller pack sizes to encourage monthly prescribing of the medication, as well as a pictogram/warning image on labelling, similar to the warnings on cigarette packaging.

All women and girls who are currently prescribed valproate are advised to contact their GP and arrange to have their treatment reviewed. Doctors will need to weigh up with their patients the benefits and risks in any change to their epilepsy medication or a reduced dosage. Women should be adequately informed of risks and benefits of available treatment in their circumstances to enable them to be in a position to choose the risk they are willing to accept. They should not stop taking valproate without medical advice.

Spinal Cord Injury Awareness Day - Friday 18 May

“Every eight hours someone is told they will never walk again due to a spinal injury”. Despite this statistic, with the initial amazing care offered by specialist spinal units, the personal dedicated care provided by the nursing team, physiotherapists, occupational therapists and specialist case managers, a positive and fulfilling future can be achievable.