UK: Health and Safety Update – August 2010

COSHH

The HSE expects to issue a consultation document before September on minor revisions to the Approved Code of Practice (ACoP) and guidance on the COSHH Regulations 2002. The new ACoP will come into force on 6 April 2011.

CONSTRUCTION

The HSE construction website has been re-branded to make it easier to navigate with new material added. http://www.hse.gov.uk/construction/index.htm?ebul=hsegen/01-jun-2010&cr=2

DIRECTORS' RESPONSIBILITIES AND CORPORATE MANSLAUGHTER

Directors Duties

  • The steering group which has been advising the HSE executive board in its decision on whether to recommend a legal duty on company directors to protect workers delivered its final report in June. This paves the way for the board to decide whether to recommend a new duty to ministers. Watch this space! http://www.hse.gov.uk/leadership/steering-group-report.pdf
  • Nearly two thirds of in-house lawyers asked in a recent survey whether further duties needed to be placed on directors in order to focus on health and safety considered these are necessary to ensure directors take health and safety law seriously and are needed to protect workers.

ELECTRICITY

No specific update

ENVIRONMENTAL

No specific update

FIRE SAFETY

No specific update

FOOD HYGIENE/SAFETY

No specific update

GAS SAFETY

No specific update

ILL HEALTH/STRESS/DISABILITY

  • Absence or Presence?

    The Chartered Society of Physiotherapy has found that one in four employees work all day without taking a break leading to potentially enormous costs for employers. This increases the risk of chronic musculoskeletal disorders, obesity, cancer, depression, heart disease and stroke through poor working conditions. Although sickness absence already costs businesses an estimated Ł16bn per year, this does not take into account the problems and potential costs caused by presenteeism. Similarly a survey by the Institute of Leadership & Management found that technology (particularly blackberries and smartphones) is making it more difficult for employees to switch off during their summer break with one in four returning more stressed than when they left. Three surveys in June and July showed different pictures in relation to absence and presence. The annual poll from Unum and EER showed that this year employers gained an average of one extra day of work per employee as a result of lower absence. It considered the introduction of the fit note also reduced absence levels. The annual absence survey by the CBI and Pfizer also found absence was at an all time low. Research by Bupa found that nearly half of workers who were absent continued work in some form including work-related phone calls, working on-line and hosting meetings. In contrast, a European survey found that there had been a rise in sick days during the recession taken for personal reasons rather than illness showing less commitment by employees.
  • Fit or Fake?

    Employers should be aware that a website is selling fake versions of the new fit note, which came into force in April this year, which it claims can be stamped by doctors from medical centres in any UK city. If employers are suspicious, they should refer the employee for an independent medical check or telephone the doctor's surgery to check the note's authenticity. It should also be made clear to employees that using these notes will result in disciplinary action.
  • Drugs Testing

    The TUC has called for clear guidance on drug testing at work to clear up what it says is confusion about legality of random or routine testing in non safety-critical jobs. It calls for employers to tackle the problem of drugs in the workplace by having proper policies and procedures in place rather than relying on drugs tests of "dubious legality".
    http://www.tuc.org.uk/h_and_s/tuc-18001-f0.pdf
  • Stress
    • The HSE has added some work-related stress exercises to help health and safety representatives understand their role in tackling stress at work.
      http://records.hse.gov.uk/connect.ti/tustress/answerQuestionnaire?qid=90883
    • Employers should offer specialist support to help employees with depression and anxiety return to work including psychological therapy according to a review by Sainsbury Centre for Mental Health and the British Occupational Health Research Foundation.
  • Disability
    • According to the HSE only 17% of disabled people are born with the disability whereas the majority acquire the disability during their working life. The HSE states that "health and safety" is sometimes used as a false excuse for not employing people with a disability. However it sets out quick facts that show the advantages of employing those with disabilities. These include the fact that disabled employees have less time off sick; stay longer in their jobs and have fewer work accidents.
      http://www.hse.gov.uk/diversity/didyouknow/disability.html
    • Equality Act – Pre-Employment Health Questionnaires

      Employers are reminded that the new provisions under the Equality Act 2010 which outlaws pre-employment health enquiries unless they are made for prescribed reasons are due to come into force in October 2010.
    • EHRC: Guide on UN Convention on Disability Rights

      The EHRC has published a new guide to the UN Convention on the Rights of Disabled Persons. The guide is intended to help disabled people understand their rights and help organisations understand their responsibilities. http://www.equalityhumanrights.com/uploaded_files/publications/uncrpdguide.pdf
    • No Plans to Introduce Flexible Working for Disabled Employees

      The Government has confirmed that it has no plans to specifically extend the right to request flexible working to disabled employees. According to the Secretary of State for Work and Pensions this is because there is already a duty to make reasonable adjustments and in addition there are plans to extend the right to request flexible working to all employees.
    • Medical Evidence in Cases of Depression

      "Depression" is always a difficult issue for employers. Stress, anxiety and depression can often seem to be used interchangeably by employees and GPs. In J v DLA Piper UK LLP the EAT gave some guidance on how the issue of whether someone has a disability in this context should be approached. Rather than get stuck in detailed medical issues, the Tribunal should look at the effect of the condition on the individual. If it finds that the condition has a substantial adverse affect, then it will, in most cases follow that the claimant is suffering from a condition that has caused that effect. It will then be unnecessary for the tribunal to resolve the precise medical issues giving rise to that effect.
    • Comparators Following the House of Lords Decision in Malcolm

      The Court of Appeal has confirmed in Aylott v Stockton-on-Tees Borough Council that the comparator test laid down in the House of Lords in London Borough of Lewisham v Malcolm, a housing case, does apply to disability-related discrimination in the employment field until the Equality Act rectifies the position.

LEGISLATION

  • Vetting and Barring

    The Government has announced an immediate halt to the proposed vetting and barring scheme aimed at protecting children and vulnerable adults, which is to be remodelled, although in what form is not yet clear.
  • Review of Health and Safety Laws

    The Government is reviewing the operation of the health and safety legislation to ensure that businesses are not overwhelmed by red tape. Lord Young has been asked to investigate concerns over the application of and perceptions of health and safety laws and to tackle the "compensation culture" that has grown in Britain in the past ten years. Judith Hackitt, Chair of the HSE, has welcomed the review and offered to help gather evidence. However, the TUC has expressed concern about the remit of the review which it considers should focus on protecting workers including introducing a legal duty on directors to protect their workers rather than focusing on the needs of business.

    Lord Young is due to report back over the summer.

MANUAL HANDLING

No specific update

MATERNITY/PATERNITY/PARENTAL LEAVE

  • Inflating Redundancy Score of Employee on Maternity Leave Constituted Sex Discrimination Against Male Colleague

    In De Belin v Eversheds Legal Services Ltd a male lawyer was found to have been unfairly dismissed and discriminated against on the grounds of sex when a female lawyer on maternity leave had her score in a redundancy exercise artificially inflated in order to avoid a potential claim by her. The tribunal considered whether "special treatment" under s2(2) SDA enabled employers to give women blanket special treatment whenever pregnancy and childbirth were involved and held that it did not. This case is being appealed so it is hoped that the EAT will give further guidance on what constitutes "special treatment" and how this impacts on the right of men and women to equal treatment.

    The tribunal also found that Eversheds could have carried out the scoring on the relevant criterion in other ways which would not have required giving a notional score for the female lawyer. This case serves as a warning that favouring an employee on maternity leave is not always the safest option and that where possible employers should consider other ways of mitigating the unfairness of a maternity absence.
  • ECJ Rules on Pay for Pregnant Women Suspended or Doing Alternative Work on Health Grounds

    In the combined cases of Gassmyr v Bundesminister fur Wissenschaft und Forschung and Parviainen v Finnair Oyj the ECJ considered whether pregnant workers who are moved to alternative duties or suspended on health and safety grounds are entitled to be paid supplementary payments or allowances on top of their basic pay. The Court held that in both circumstances the Pregnant Workers Directive (PWD) does not require pregnant workers to be paid supplementary allowances which compensate for the disadvantages of performing specific functions.

    The impact of these decisions in the UK is likely to be fairly minimal and the protection in place under the Employment Rights Act in some instances goes further than the PWD in preserving employees' pay.

RADIATION

No specific update

SMOKING

The Minister for Public Health, Anne Milton, has announced that the Government will not proceed with a review of the smoke-free legislation which was proposed by the last Government and reported in our March Newsletter. The review was to include a proposed ban on smoking at building entrances, bus shelters and beer gardens. However, the Department of Health confirmed that other proposals, such as banning vending machines and introducing plain packaging would be considered for inclusion in a health White Paper later in the year.

It has also been reported in the BMJ that there has been a 2.4% reduction in heart attack admissions in the 12 months since the smoking ban was introduced.

WHISTLEBLOWING

  • A survey by Grant Thornton UK LLP has found that over half of UK businesses are now equipped with measures enabling whistleblowers to report suspect activity in their workplace.
  • The Government has announced that the implementation of the Bribery Act 2010 has been delayed and is now due to come into force in April 2011. The Act sets out offences of both bribing another person and being bribed. It also introduces a new corporate offence where a person associated with the organisation bribes another person intending to obtain a business advantage. There will be a defence for the organisation if it has "adequate procedures" in place to prevent bribery, but there is currently no guidance on what these are. The delay is to allow full consultation on this defence.

WORKING AT HEIGHT

No specific update

WORKING TIME ISSUES

  • Holiday and Sick Leave

    The issue of holiday entitlement for those on long-term sick leave has been a major headache for employers since the Stringer ruling last year. However, the recent tribunal decision in Khan v Martin McColl suggests that employers may be able to prevent a successful claim for unlawful deductions from wages in respect of accrued untaken holiday for previous holiday years, where they have made a payment for holiday in the current holiday year – in this case on termination. The tribunal found that this payment broke the series of deductions and Mr Khan's claim was out of time. The tribunal also found that as Mr Khan had not requested holiday he had not been "denied" it. Although this is only a tribunal decision and therefore not binding it is nevertheless a very useful ruling for employers.
  • ACAS Guidance

    ACAS has issued new guidance on holiday rights available at
    http://www.acas.org.uk/index.aspx?articleid=3040
  • Working Hours Increasing

    A study by CIPD of official UK and EU statistics has found that the number of people working long hours has increased again after a low point in working time during the summer of 2009. The recession resulted in a fall in total employment and a move from full-time to part-time employment. This resulted in a combined fall of 3.5% in the number of hours worked each week in the UK.

MISCELLANEOUS

  • Annual Report and Accounts
    • The HSE has released its annual report and accounts for 2009/2010.
      http://www.hse.gov.uk/aboutus/reports/0910/ar0910.pdf
    • The European Agency for Health and Safety published its annual report in June which acknowledges that it has been a difficult year throughout Europe. The Director has emphasised that spending on health and safety should be seen as an investment rather than a cost and that organisations should not abandon long term benefits for short term gains by reducing their budgets.

      It also reports that it has seen increases in many health and safety problems that affect workers as they absorb work previously done by workers who have been made redundant and suffer from greater stress. Workers are also facing the growing risk that long-term absence will result in them never getting back into employment.
  • HSE Prosecutions

    Prosecutions by HSE have been halved in 10 years from 2000. This ten year period also saw a 13% reduction in the number of enforcement notices issued.
  • HSE Statistics – Reduction in Deaths

    These have revealed that the figures on fatal accidents in the workplace have reached a record low. 151 workers were killed between 1 April 2009 and 31 March 2010 compared to 178 the year before and an average of 200 per year over the last five years.
  • Health and Safety Consultants

    HSE intends to set up a registration scheme for safety consultants by January 2011. This will be a voluntary scheme and will create a register of consultants who will be accredited to give employers competent advice.
  • HSE – Two Appointments to the Board

    Two new appointments of non-executive directors have been made to the HSE Board effective from 1 October 2010 for three years.

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