No, not because of that yoghurt you swiped from the office fridge. But you and your employer may be accidentally committing crimes that could land you in jail. Kate Freeman looks at some easy ways to fall foul of the law and how to avoid them.
The charge
Trying to evict an antisocial disabled tenantWhy?
The case of Manchester CC v Romano and Samari (HT 9 July, page 10) found that if a tenant’s antisocial behaviour is caused by a disability, to evict them because of this behaviour would be unlawful discrimination. That is, unless the landlord can prove it was acting to protect the health and safety of the antisocial person’s neighbours.
Law to watch out for
1995 Disability Discrimination Act
What’s the worst that could happen?
You could lose your possession case and, if the tenant takes action for disability discrimination, you could face a large claim for damages.
How to avoid trouble
“It’s obviously possible that you might not know somebody had a disability, and this could be used later in your defence if they make an allegation – but it won’t necessarily work,” says Emma Tarran, social housing lawyer at Winckworth Sherwood. You should try to stop things getting that far by talking to a problem tenant early on to find out whether they have problems likely to affect their behaviour.
And Joanne Easterbrook, partner at solicitor Trowers & Hamlins, adds that you need good evidence that other tenants’ health and safety is being affected. “You have to balance the disabled tenant’s interests with those of the other tenants because of their behaviour,” she says.
The charge
Having an office partyWhy?
Most offices wouldn’t be the same without the occasional staff bash, but these can be the undoing of many a good equality policy. As a series of recent high-profile sex discrimination cases involving female City workers has shown, it only takes one ill-judged comment to drag an organisation into disrepute.
Emma Burrows, a partner at Trowers & Hamlins, says the housing sector is far from immune: “We do three or four cases a year when the Christmas party results in some sort of hysteria.” This usually takes the form of sexist comments or groping, she says.
Even after hours, the company is still liable for its employees’ actions. “The interpretation of the law is a bit vague but, ultimately, if it’s a work function and employees are encouraged to go and the employer’s paying for the drinks, the employer will probably still be liable,” warns Burrows.
Law to watch out for
1975 Sex Discrimination Act (amended 2003)
What’s the worst that could happen?
A tribunal for sexual discrimination can result in the award of damages for loss of earnings and compensation for injury to feeling. The offending person could face disciplinary action, dismissal and a separate case for damages payable out of their own pocket.
How to avoid trouble
Staff must be aware of the company’s sexual harassment policy and the consequences if they mess up. “We recommend that you issue a warning before a party,” Burrows says. “Remind people that normal office behaviour should apply. It’s not the sort of thing people want to hear before a party but, if you don’t, you definitely can’t argue that you’ve told people how to behave.”
The charge
Housing drug addictsWhy?
In 1999 the manager and director of the Wintercomfort Project for the homeless in Cambridge were imprisoned for permitting their premises to be used for supplying class-A controlled drugs – they later became known as the Cambridge Two.
In fact, the law obliges housing staff to prevent any illegal use of controlled drugs on their premises, which can be a difficult task for hostels and organisations providing accommodation for vulnerable groups.
Law to watch out for
1971 Misuse of Drugs Act (section 8)
What’s the worst that could happen?
Managers who tolerate drug taking on housing premises could be sent to prison.
How to avoid trouble
Easterbrook advises a zero-tolerance approach to be on the safe side, as the law has not softened with regard to hostels.
“The law is the law,” she says. “If you know about drug-taking on your premises, you can’t allow it.”
The charge
Carelessness about racial equalityWhy?
All organisations have a racial equality policy but is it followed at all levels? Andy Ballard, a partner in law firm Cobbetts, says a common mistake is for job ads to specify good written and spoken English when this isn’t actually needed for the job – for example, for a gardener or catering assistant.
“Are you really saying ‘I don’t want somebody from a black or minority-ethnic background?’” he asks. Another example is only placing a job advert in a job centre in a suburban, mainly white, area.
And although discrimination may be caused, inadvertently or otherwise, by an individual employee, the organisation that employs that person can still be held liable.
Law to watch out for
1976 Race Relations Act (amended 2003)
What’s the worst that could happen?
The employee who was discriminated against could be awarded unlimited damages in a tribunal based on loss of earnings, plus as much as £25,000 for hurt feelings.
How to avoid trouble
Ballard says a job description should only include things that will make a difference to how the role is performed. If you do specify race-related characteristics, make sure they are “genuine occupational qualifications”, such as speaking Urdu in a role that involves working closely with Pakistani families.
Check out the Commission For Racial Equality’s website, www.cre.gov.uk, for guidance on improving your racial equality practices. Some organisations have a policy officer to keep up with requirements of equality legislation and train staff in their responsibilities.
Training is vital, says Burrows: “If you don’t explain what people should and shouldn’t be doing, it’s impossible to defend an employment tribunal case for race.”
The charge
Injuring trespassers on your building sitesWhy?
If you have a flagship development project, watch out for inquisitive teenagers. You have a duty of care towards people – especially children – who get onto your building sites, even if they have broken in. So if kids get in through a broken fence and one falls off some scaffolding, you’ll need to prove that you tried to prevent it.
Laws to watch out for
1974 Health & Safety at Work Act; personal injury law; negligence law
What’s the worst that could happen?
If a trespasser suffers serious injury, the Health & Safety Executive could launch a claim for damages running into millions of pounds.
How to avoid trouble
Get an expert to do a full risk assessment and follow their advice. Easterbrook says: “You have to work with your contractors and make sure they know what sort of estate they’re dealing with.”
If the development is near an estate with lots of teenagers, increase site security.
Also make sure you have full, up-to-date insurance cover.
The charge
Getting snap-happy with the CCTVWhy?
No matter how antisocial someone’s behaviour, it’s difficult to justify filming what they get up to in their own homes. But that’s the danger if a camera is too close to someone’s window – or if you lend tenants cameras to film nuisance in action.
They may think someone being violent in their own home or receiving visitors late at night is useful evidence, but the Information Commissioner (the body whose job it is to oversee and enforce compliance with the law on protection of information) will see it as an invasion of privacy.
Law to watch out for
1998 Data Protection Act; 2000 Regulation of Investigatory Powers Act; duty of confidence
What’s the worst that could happen?
The compensation for damage and distress is likely to be fairly low, but the bad publicity could be enormous. If a complaint is made to the Information Commissioner, you could also face a fine of up to £5000.
How to avoid trouble
Don’t hand control of cameras over to tenants. If you’re worried about what goes on behind closed doors, go to the police or social services.
Easterbrook recommends you have a data protection officer who understands your obligations in detail and makes all staff aware of your policy.
The Information Commissioner’s website, www.informationcommissioner.gov.uk, provides useful guidance on the use of CCTV and data protection.
The charge
Letting slip a secretWhy?
Loose lips, it is said, sink ships, and emails and phonecalls could get you in hot water if confidential facts are disclosed, says Caroline Hayward, a solicitor specialising in IT law at Trowers & Hamlins.
For instance, if a housing officer lets slip to an outside organisation that a tenant is in arrears, the company could be sued for breach of confidence.
Laws to watch out for
1998 Data Protection Act; duty of confidence
What’s the worst that could happen?
A civil action for breach of confidence is unlikely to lead to damages of more than several thousand pounds, depending on what the individual has lost – a tenancy or a place at a school, for example.
How to avoid trouble
If a tenant consents to sharing information, it’s fine to pass it on, so Easterbrook suggests a consent form is signed at the same time as a tenancy agreement allowing chasing of information with “appropriate authorities”.
If there are people you’re allowed to share information with under section 115 of the Crime and Disorder Act 1998 – such as police, health or social services – get to know them in person and be sure of who you’re speaking to before saying anything over the phone.
A disclaimer at the end of an email is not enough. Hayward says: “A disclaimer cannot be relied on to be watertight in all circumstances. It’s better to have good practices in place.”
Source
Housing Today
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