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 | You and Yours - Transcript 91Èȱ¬ Radio 4 |
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| TX: 12.01.04 – WOMAN WINS COMPENSATION UNDER DISABILITY LAW FOR ENDURING SMOKING AT WORK |
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| PRESENTER: WINIFRED ROBINSON ROBINSON The anti-smoking group ASH has joined forces with the UK's leading personal injury and trade union law firm to try to force a ban on smoking in the workplace, including pubs, restaurants and bars. ASH and the legal firm Thompsons have sent a registered letter to 200 hotel and pub chains to warn of the dangers of exposing staff to smoke. They're also planning to try to encourage people who believe that their health has been damaged by smoking in the workplace to claim compensation. They're citing successful cases, like that of Karen Whitehead from Plymouth. She won £17,000 in compensation in an action brought under the Disability Discrimination Act, after she was sacked from her job as an administrator in a community centre. WHITEHEAD I worked there for a while, I suffer from asthma and there was smoking going on in the building constantly. I got ill, I think it was 16 days out of 45 that I worked there. ROBINSON When you say you became ill, you believe that the smoky environment made your asthma worse, is that right? WHITEHEAD Yeah that's right yeah. ROBINSON How do you know that? WHITEHEAD Because I was working in a non-smoking office before then. I'd given up smoking the year before. I know that it made me ill and that's why I gave up. And it was quite difficult to do that but I felt a lot better for giving up and then when I went back into this environment no more than three days after I started working there I began to get ill with my asthma again. ROBINSON What happened when you complained to your boss about the smoky conditions in the centre where you were working? WHITEHEAD First of all he moved my office downstairs to a non-smoking office but they didn't keep to the non-smoking rule and because I was his PA as well I was also expected to do quite a lot of work in his office and him and his wife smoked in the office consistently while I was in there trying to do some work. And I did have an appraisal with him and he smoked two cigarettes while I was having this appraisal. He told me in the appraisal - it must have been about a week before he sacked me - that there was no problem with my absences and he was quite happy for me to continue as I had been. ROBINSON And were you shocked to find that he sacked you then? WHITEHEAD Yeah it came completely out of the blue. ROBINSON The Disability Discrimination Act was used to bring your case - why was that? WHITEHEAD Well I had a word with my solicitor and she said that would be the best way forward. I mean my boss actually sacked me on the grounds, saying that I wasn't capable of doing the job and that I wasn't physically able to, which isn't true. I mean if I had nothing aggravating the asthma then I could get on with the job perfectly. ROBINSON Karen Whitehead. Well Bob Cotton is director of the British Hospitality Association and Tom Jones is from Thompsons solicitors. Tom Jones, Karen Whitehead's case, as we've just heard, was brought under the Disability Discrimination Act, what is it then that you want to tell employers - that there are plenty more like her? JONES Certainly, I mean Karen's case is not untypical, it's just a lack of management thought really that goes on. People exposed to smoky environments, employers ignoring their pleas to sort it out and get them out of those environments and people become ill and when they become ill if they can show the link they're going to win their cases. ROBINSON Bob Cotton how's the hospitality business likely to respond? COTTON Well I think that is one particular case and I wouldn't think that is a general case. What we'd like to do is build on what we've been doing in the last two or three years, which is a voluntary code of good practice in public areas in the hospitality business - in pubs … ROBINSON Except that I suppose if you're an employee - sorry to interrupt - you don't have the choice that perhaps a diner would have to go to the no-smoking bit. COTTON That may not strictly be the case but I mean it's interesting that that particular person almost chose to work in that environment when she knew that there was smoking in that area. But I think the real issue is to have clear definition of smoking and non-smoking areas. ROBINSON Tom Jones, does the scientific evidence exist to support cases like this one, because it's one thing to take a single case against a local community centre to an industrial tribunal, it would be quite a different thing to do what you're threatening to do which would be to bring a whole series of what would be very high profile cases against some very wealthy companies? JONES Well the principles are exactly the same - all cases will turn on their own facts, I accept that, but ultimately if employers are failing to deal with the conditions they're exposing their employees to and the employees are suffering as a result and suffering injury we are going to succeed in the claims we bring. And this isn't - I mean the big risk in this is that it's seen as some kind of sort of crusade to win cases and get money for lawyers, this is just a warning shot across the bows. ROBINSON Well I want to come on to that later, what I'm asking now is does the scientific evidence exist? The woman that we heard from, Karen Whitehead, believes that her asthma was aggravated, what about more serious conditions - there's no really hard scientific evidence, for example, that passive smoking leads to lung cancer, for example, is there? JONES Well I'd be very surprised if the government would be spending the amount of money that it is on advertising at the moment to prevent children exposed to smoke at home … ROBINSON But I'm talking about hard scientific evidence of the kind that would stand up in court. JONES It will stand up in court if we can show that people have developed conditions they otherwise would not have done or the conditions they have have got worse. And in Karen's case it was quite clear, she had asthma and it got worse as a result of the exposure. What you're talking about possibly is whether we can prove lung cancer cases and no, not necessarily, it depends on the facts and we would have to have the medical evidence to back that up. But there is no doubt asthma cases have succeeded many times and for that matterrespiratory disease cases, generally, have succeeded many times. ROBINSON Bob Cotton what have you been advised then about what would be the strength of your defence, if indeed Thompsons and ASH do start to pursue cases like this on a grand scale? COTTON Well what I would ask of ASH and others is why not work with the industry to try and ensure that we have an effective voluntary code. ROBINSON What I'm asking though is what you've been advised. COTTON We have been advised that there isn't yet scientific evidence making the direct link that would stand up in court. ROBINSON Even with asthma? COTTON That is a particular case that I couldn't comment on but we're talking about what we are required to do for all our consumers because we essentially, at the end of the day, do respond to our consumers' needs. ROBINSON So you're not bothered then? COTTON I didn't say we're not bothered. ROBINSON I mean not bothered about the 200 registered letters that have gone out from ASH and Thompsons. COTTON Well have ASH sent me a letter may I ask? And I represent some 60,000 outlets in hotels, restaurants and catering. ROBINSON Perhaps you just haven't received it yet, I think they went out today. COTTON Well I could tell you they haven't written to me in the last few weeks, they haven't contacted me directly at all but we are in direct contact with the government, with the Secretary of State, and we are having discussions next month on how we can toughen the voluntary code to make it much more effective because this is an area for voluntary action not for government legislation. ROBINSON Tom Jones don't you think you're risking losing public support for a smoking ban in pubs and clubs, in the sense that aren't people pretty sick of the idea of lawyers trawling for compensation claims? JONES Well there's an assumption we're trawling for compensation claims, this is preventative and we're not - if it can be avoided let's avoid it. ROBINSON But you are saying that you're going to encourage people to claim. JONES I am saying that if people - we are saying that if people have an injury that has resulted from their exposure to smoke at work and they can prove a case then yes we will pursue it. But there are ways to avoid this, it's very simple, we're helping the BHA - the British Hospitality Association - save themselves, they can avoid this and all they have to do is introduce preventative measures. And we're not out on a limb - Sir Liam Donaldson's asking for legislation - something has to happen here, employees should not be exposed to dangerous environments. ROBINSON Okay, gentlemen we'll have to leave it there many thanks. Back to the You and Yours homepage The 91Èȱ¬ is not responsible for external websites |
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