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Ask the Expert: What legal issues do well-being initiatives generate?


The question 

I have been asked to introduce some health and well-being initiatives into our workplace. Where should I start and are there any particular legal issues/pitfalls that I need to be aware of?
The legal verdict
Esther Smith, a partner at Thomas Eggar
Where to start indeed! There is pretty much an endless list of things that you could think about when considering health and well-being initiatives but, to a certain extent, what is appropriate and proportionate depends on the nature of your business, your workforce and your resources.
Simply having a good appraisal system and clear objectives in place can be a good starting point as it gives employees clear avenues in which to raise concerns and express any reasons for stress, while understanding exactly what is expected of them job-wise.
Risk assessments of workplaces and work environments are also key and should, in any event, be carried out routinely, but they may require an update. Health-screening for employees may likewise be seen as a useful benefit, particularly if you have issues with sickness absence.
But some commonplace softer options also include subsidised gym membership (or, if you have the space, making arrangements for a fitness trainer to carry out sessions at lunchtime); supplying fresh fruit once a week or providing access to an employee assistance helpline.
If you really have no idea where to start, a good idea might be to ask employees themselves what they would like and what they feel would benefit them. 
You might not be able to afford the additional two weeks’ holiday that they are all bound to request, but you are more likely to see what you provide being taken up if you involve people from the outset.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Adam Partington, a solicitor at Speechly Bircham
From a legal perspective, I would consider whether you want to make the initiatives contractual or offer them as discretionary employment benefits.
A contractual entitlement would make it more difficult for you to change the benefit if the need arose in future. Any changes to (or indeed withdrawal of) such benefits would also need to be agreed with the employees concerned.
Making the provision of benefits discretionary, however, would make it easier to vary them should the need arise. This option is, therefore, generally preferable to employers.
But whatever tack you decide to take, it is important to ensure that any relevant documentation correctly reflects whether you have made the benefits contractual or non-contractual.
From a practical perspective, another thing to think about is whether you plan to take on health and well-being service providers as it will be necessary to think about budgets and how much such services are likely to cost.
Safe and non-discriminatory
Broadly-speaking, however, the legal issues or pitfalls will depend on the specific health and well-being initiatives that you are seeking to provide. From a general perspective, you should try to ensure that they are non-discriminatory and offered in such a way that provides all employees with reasonable access to them.
For example, an initiative to try and get staff fitter by providing specific sports activities could potentially discriminate against employees with disabilities that would not be able to participate. In this instance, you should try and ensure that such activities could be made available to all personnel.
In addition, employers are also under a duty to provide their employees with a safe place of work that has adequate facilities in place.
Therefore, if any of your proposed initiatives require specific facilities or the use of certain equipment, you should ensure that the aforementioned facilities are up to the job and that the equipment is both safe, and used in safe way.
It is also worth considering the possibility that accidents may occur as a result of a given initiative and so make adequate first-aid provision as well as taking out insurance.
Indeed, it would be sensible to check with insurers that your proposed initiatives comply with your policy. You may also need to carry out health and safety risk assessments.
Adam Partington is a solicitor at Speechly Bircham LLP.

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