Tughans employment team provide practical answers to unusual, sensitive or complex work-related queries.

This article is aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims for discrimination, constructive dismissal or some other serious difficulty.

 

This month’s problem concerns:

“We have had several complaints from management about an employee wearing headphones in the workplace. The employee said he needs his headphones, as they help him to concentrate and perform his role properly. How do I handle it?”

Whether or not wearing headphones in the workplace is problematic will depend on several factors including your industry, workplace environment and the employee’s job role.

The employee may argue that listening to music, a podcast, or even “concentration noise” makes them more productive or cancels out background noise, which could be an issue if they are working in a busy or open plan environment.

On the other hand, you could conclude that wearing headphones has a wider negative impact on the working environment because it discourages communication and collaboration, giving the impression that the employee is unapproachable.

 

As a starting point, you should consider whether the employee’s headphone use is having a detrimental impact on their performance or the wider team. This will depend on the nature of their role and the feedback you have received from managers. If it has been detrimental, the simple solution would be to ban headphone use outside of permitted breaks. Another alternative would be to permit headphone use but set guidelines for considerate and professional use.

This would be a “reasonable work instruction” which you could expect the employee to follow. If the employee disobeys your instruction, you could consider dealing with this under your disciplinary rules and procedure.

 

As always, one size does not fit all, and it may be the case that an outright ban is not appropriate or desirable in the circumstances. You should make further enquiries with the employee to better understand why and how the headphones help them.

You should specifically enquire about whether the employee has any health-related reasons for wearing headphones. The employee may inform you that they have a condition which causes sound sensitivity issues. This is common with neurodiverse conditions like autism.

Their condition would almost certainly be considered a “disability,” and you will have a duty to make reasonable adjustments for them. In these circumstances, it would be best practice to refer them for an occupational health assessment before you consider restricting their headphone use or taking any disciplinary action. You should carefully consider whether you can implement any suggestions made by occupational health, and if the employee does have sound sensitivity issues, it is likely that permitting headphone use could be a reasonable adjustment for them, even if you implement a general ban.

 

This issue was considered recently by the Industrial Tribunal in Northern Ireland in Doherty v Fortress Diagnostics Limited (2021). The Claimant had Aspergers Syndrome and argued that a noisy workplace made it extremely hard to focus and concentrate due to his sound sensitivity. The Respondent did not permit his use of headphones despite being aware of these difficulties and the Tribunal upheld their claim for failure to make reasonable adjustments.

 

Similarly, in another recent case M Hanif v Department for Work and Pensions (2021) the Employment Tribunal in England found that refusing to allow an employee to wear headphones could amount to disability discrimination. The Claimant had been on sick leave due to stress and anxiety. They were advised by their doctor to use headphones to help manage their symptoms at work, which the Respondent refused to accommodate, and the Claimant was successful in their claim for failure to make reasonable adjustments.

 

Even if the employee does have health related reasons for their headphone use, there are context specific issues to consider. The most important is whether wearing headphones poses any health and safety risk to the employee or their colleagues. You have an overarching duty to provide a safe workplace and a risk assessment may be required. Headphones could cause health and safety risks if the employee works in a factory or warehouse setting, where there is a risk from collision with moving vehicles, if they could fail to hear alarms or warnings, or if they drive or operate machinery. If headphone use does create a health and safety risk, it may not be a “reasonable” adjustment.

Restricting headphone use may also be unavoidable if the employee is in a public or customer facing role, where they could discourage interaction or give an unfavourable impression; for example, in hospitality, retail or customer support-based roles.

 

Overall, while you are entitled to set standards and expectations in the workplace which might involve restricting headphone use, it is important to remember that you may need to make exceptions on a case-by-case basis as reasonable adjustment for disabled employees. In these circumstances you could still consider whether the adjustment is “reasonable” in your circumstances, especially if you need to balance it against health and safety risks.

 

If you have questions about Employment Law, please contact our Employment Team for more information.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.