Burning questions

Summer has finally arrived – and it has been quickly followed by a Cancer Research UK warning that sunburn can double the risk of skin cancer. The Health and Safety Executive has also issued advice on the hazards of sun exposure for people working outdoors.

Employers are naturally concerned. Many have sought our advice on their obligations and whether they would be liable if one of their staff were to contract skin cancer at work.

In 2005, the European Union optical radiation directive was intended to set out minimum health and safety requirements for the exposure of workers to risks arising from optical radiation, which includes infrared radiation, visible light, lasers and ultraviolet radiation.

The controversial issue was exposure to the last of these. The difficulty arose in interpreting the directive’s suggestion that an assessment of exposure would need to be specific to each employee and each location where they were working.

There are about 1 million outdoor workers in the UK. The construction industry raised concerns that this would mean an assessment for each employee, every time they arrived at a different site. Further, each assessment would have to be employee-specific depending on the colour of the skin and the individual’s sensitivity to sunlight and sunscreen.

As a result, the EU limited the scope of the directive and it has now been amended to exclude radiation from natural sources (that is, sunlight). The directive was adopted in February 2006.

But does that absolve employers of responsibility for their workers’ sunburn? No – they still have a general duty under statute and in common law to provide a safe place of work, and to assess and control risks.

If bosses provide sun protection this could lead to further problems, such as whether it is the right type of cream

The HSE says there is no specific legal obligation on an employer to provide sun cream or sunglasses. General guidance provided by the HSE in relation to sun creams suggests that employers should educate their staff and provide awareness training, in the form of common sense advice over sun exposure.

If employers provide sun creams, sun block or other protection, this could lead to further problems, such as whether it is the right type of cream, whether it is applied correctly and whether it is still effective if combined with other products used at home.

While creams do fulfil a function, they are less effective than properly selected clothing. They rely on the user applying cream correctly and applying the best cream for them. Further consideration may be required on how effective sun cream is and to what extent it can be considered to be of cosmetic benefit only. In short, as you may have already guessed, sun cream is not really the answer.

If a claim for skin cancer were to arise from exposure to sunlight at work, various evidential issues would arise, the main one being how to determine whether the cause was work exposure or social exposure, which all employees are likely to have had at some point. It would also be difficult to establish how the cream was applied and whether the cream caused a problem or protected the skin.

As well as employers’ heath and safety duties, they also owe a legal duty to maintain the trust and confidence of their employees. This duty is implied in every employment contract.

It could be used by a disgruntled employee to walk out and claim compensation for constructive dismissal. This could indicate an employee who does not consider their employer has taken proper steps to protect them from the harmful effects of the sun.

The risk of such claims can be minimised by taking the steps listed. The key is not to ignore an employee’s reasonable concerns but to address them.