UK: Health And Safety Update - August 2011

Last Updated: 15 August 2011
Article by Helen Brooks

CONSTRUCTION RICS has published construction sector safety guidance. http://www.rics.org/site/scripts/press_article.aspx?pressReleaseID=559

COSHH HSE is now providing the latest COSHH news and information free via an email bulletin or RSS feeds. http://www.hse.gov.uk/coshh/subscribe.htm

DIRECTORS' RESPONSIBILITIES AND CORPORATE MANSLAUGHTER

In July the CPS confirmed that a second company, Lion Steel Ltd, was being charged with corporate manslaughter under the new corporate manslaughter legislation. Three of the company's directors, Kevin Palliser, Richard Williams and Graham Coupe were also charged with gross negligence manslaughter. The charges come after the death of Steven Berry, who fell through a fragile roof panel in 2008 and died as a result the injuries sustained in the fall. The three directors and the company have also been charged under the Health and Safety at Work Act for failing to ensure the safety at work of their employees. A preliminary hearing opened at Manchester Crown Court on 2 August 2011.

This case will be watched with interest as Lion Steel is a much larger company (it employs over 100 employees) than Cotswold Geotechnical (Holdings) Ltd (which employed fewer than five employees) the only other company prosecuted so far for corporate manslaughter under the new legislation. We will report on any developments in our next newsletter.

FIRE SAFETY

The Fire Industry Association (FIA) recently conducted a survey which concluded UK employers are potentially putting their employees' lives at risk by cutting back on fire safety in the current economic climate. Almost a fifth of bosses admitted to revising fire safety procedures, through actions such as delaying maintenance checks of fire safety equipment, reducing staff training or delaying updating their fire risk assessments.

FOOD HYGIENE AND SAFETY

  • CIEH argues for more local food safety services The Chartered Institute of Environmental Health has continued to make a robust case for local food safety services rather than a central delivery model following an Open Board meeting of the Food Standards Agency (FSA).
  • FSA Annual report and accounts 2010/2011 The Food Standards Agency has published its annual report and accounts. http://www.food.gov.uk/multimedia/webpage/anrepacc1011

ILL HEALTH/STRESS/DISABILITY

  • Death at work HSE provisional statistics for April 2010 to March 2011 show an increase in the number of workers killed at 171 compared to last year when 147 died – which was the lowest number on record. There has also been an increase in the number of near-miss reports. The HSE says that it takes this as "welcome sign of increased awareness amongst staff leading to a richer source of information about safety performance".
  • One in three openly admit to skiving One in three UK workers admit to lying to take time off work, mainly because they're disillusioned with their jobs, according to research commissioned by Price Waterhouse Coopers on attitudes to absence. While good weather, hangovers, and romance are motivations for 11%, 18% and 5% of 'skivers' respectively, the majority (61%) claim they are simply bored and depressed with work. Just over one in five workers said family responsibilities are the real reason behind 'sick' days.
  • Long-term absence impacts on work colleagues New research from Aviva UK Health has concluded that long-term absence is not only an issue for over two thirds of employers but it also has a major impact on their staff. Nearly 70% of the employers questioned said it was an issue for their company with nearly 20% of employees having taken long-term leave due to mental health issues and 24% due to muscular or skeletal conditions.
  • Mental health website A new mental health at work website has been launched by the Royal College of Psychiatrists offering guidance on mental health in the workplace. http://www.rcpsych.ac.uk/mentalhealthinfo/workandmentalhealth.aspx
  • Stress A survey by mental health charity MIND found that one in five employees feared that mentioning stress to their boss would put them first in line for redundancy.
  • Disability discrimination compensation Two recent cases involving high levels of compensation in respect of disability discrimination are a warning to employers to ensure they comply with their duties under the Equality Act. Jewson recently paid nearly £400,000 for failing to make reasonable adjustments after a branch manager suffered a stroke. It has also been reported that a city law firm has settled a disability discrimination claim brought by an autistic member of staff for £1.3million. Although the terms of the settlement are confidential it is understood that the firm has also promised to implement internal training and policies educating staff on non-visible disabilities such as autism, dyslexia and Asperger's syndrome.
  • Consultation on employment services for the disabled On 11 July the Government launched its consultation on recommendations to reform disability support employment programmes and services. The recommendations it is consulting on include the reform of Remploy and residential training colleges. Funding would then be available to support individual aspirations for sustainable work and career choices using the Access to Work scheme, rather than disability-specific workplaces or facilities. Information about available support, technology and services provided by the Access to Work scheme should be accessible to both employers and employees over the internet, and Access to Work awards would be transferable between employers. The consultation closes on 17 October 2011.

CASES

  • Health and safety dismissals – two stage test In Oudahar v Esporta Group Ltd the EAT gave guidance to tribunals on when a dismissal is to be regarded as automatically unfair for a health and safety reason setting out a two-stage test. The EAT held that the correct approach is to focus firstly on whether the employee reasonably believed there was a serious and imminent danger and took steps to protect himself and others. If so, the tribunal should then look at whether sole or main reason for dismissal was because the employee took those steps.

In this case there was a dispute as to whether a chef had been dismissed for a health and safety concern when he refused to clean behind the fryers because he considered exposed wires made the area unsafe or whether he had been dismissed for insubordination and a breach of food hygiene rules. His employer considered there was no health and safety risk and the tribunal upheld the dismissal. However, on appeal the EAT confirmed that the tribunal had been wrong to focus on whether the employer believed in the presence of danger. What the tribunal needed to do was focus on the employee's state of mind and why he acted as he did. The case was remitted back to the tribunal to apply the correct test.

  • Reasonable adjustments: employer's knowledge of disability In Wilcox v Birmingham CAB Services Ltd the EAT looked at the correct approach to assessing whether an employer knows or could reasonably have been expected to know that an employee was disabled to trigger the duty to make reasonable adjustments. Although medical issues had been raised in relation to the employee's anxiety resulting in stress-related absence, the tribunal found there was nothing to suggest the employer had actual or constructive knowledge of the employee's disability until it received a medical report at the direction of the tribunal.

On the facts of this case the employee's reluctance to provide information or acknowledge she had a psychiatric problem resulted in a delay in fixing her employer with knowledge about her disability.

  • Disability discrimination: changing redundancy selection criteria was not reasonable adjustment In Lancaster v TBWA Manchester the EAT considered whether changing certain redundancy selection criteria was a reasonable adjustment under the Disability Discrimination Act 1995 where the disabled employee would have been selected in any event. (The EAT upheld the tribunal's decision. It found the tribunal correctly decided that the suggested adjustments were not reasonable given that they would not have prevented the employee from being selected for redundancy.
  • Protection from Harassment Act: course of conduct amounting to harassment In Marinello v City of Edinburgh Council the Inner House of the Court of Session considered what was required for an identified course of conduct to amount to harassment under the Protection from Harassment Act 1997.

The Inner House of the Court of Session held that the proper approach to deciding whether there has been a"course of conduct" is for all the evidence to be considered in the round. In this case the judge at first instance should therefore have heard all the evidence, rather than dismissing the case at a preliminary stage on the basis that the alleged incidents were not sufficiently connected to amount to a course of conduct.

The court also endorsed the view previously expressed by the Court of Appeal in Iqbal v Dean Manson Solicitors that courts should look at whether the course of conduct as a whole amounts to harassment and not assess each incident separately.

  • Public sector employer liable under the RRA for third-party harassment In Sheffield City Council v Norouzi the EAT upheld a tribunal's decision that a public sector employer, which in the tribunal's view did not do enough to protect a social worker from regular racial harassment at the hands of a child in a care home, was liable for indirect race discrimination and race harassment under the RRA and the EC Race Directive.

The Equality Act 2010 contains provisions which mean an employer could be liable for the harassment of its employees by third parties where the harassment is related to a protected characteristic, although the Government is currently considering whether this provision is "workable".

  • Accident at team building day – not during the course of employment In Reynolds v Strutt and Parker the High Court held that an employee who was injured whilst cycling in a race as part of an event for all employees, organised by his employer, was not participating in the course of his employment for the purposes of health and safety legislation. However, the Court did go on to find that the partners who organised the event breached their duty of care. Neither partner who had responsibility for the event had the necessary skills and knowledge to make the necessary risk assessment. The employee was held to be 2/3 contributorily negligent through his failure to wear a helmet.

LEGISLATION

" Lofstedt Health and Safety legislation review The Lofstedt review announced in March and covered in our May newsletter has called for evidence. The review is considering the extent to which health and safety regulations have impacted on positive health and safety outcomes and businesses; have led to unreasonable outcomes, or inappropriate litigation and compensation; and have unnecessarily enhanced the requirements of an EU directive.

At the same time a survey of nearly 6,000 employers by the British Chambers of Commerce found that nearly half of businesses claim regulation around health and safety issues is a burden on their business.

The Royal Society for the Prevention of Accidents, which is contributing to the Lofstedt Review, has said that in addition to improving regulatory "housekeeping" the review should consider how businesses, particularly smaller firms, can be helped to avoid accidents and ill health. The Association of Personal Injury Lawyers has warned Ministers that they risk inviting an increase in claims if they relax health and safety legislation. While the Institute for Occupational Safety and Health has told the review that there is no scope for cutting health and safety legislation and that it should be merged provided this does not weaken the employer's responsibilities for protecting its staff.

  • Red tape challenge Business owners, employees, the public and inspectors and enforcement officers are now being urged to "blow the whistle on inconsistent and over-zealous enforcement of rules and regulations" by having their say on the Red Tape Challenge website. The new drive is the result of comments already made by the public as part of the Red Tape Challenge. Health and safety took over as the focus for the Government's challenge for 21 days from 30 June. This is designed to feed into the Lofstedt review.
  • Common Sense, Common Safety: a progress report As reported in our last newsletter, the DWP has continued to update the recommendations on its website following the report by Lord Young last October. In July, it published a further update and, in particular, notes that the Minister for Employment, Chris Grayling MP, has overall responsibility for implementing Lord Young's recommendations and lists all recommendations along with progress to date.
  • Proposed amendments to RIDDOR HSE is consulting on proposals to change the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). The Chartered Institute of Environmental Health has warned that plans to increase the threshold for reporting workplace injuries from three days to more than seven will make it harder to gather evidence on workplace safety.

MATERNITY/PATERNITY/PARENTAL LEAVE

  • UK to oppose European Parliament proposal to increase maternity leave and pay A consortium of ministers from eight to eleven EU member states is reported to be planning to block a proposal to increase paid maternity leave. In October 2010, the European Parliament voted to amend the Pregnant Workers Directive and extend the minimum period for maternity leave from 18 weeks to 20 weeks, during which the employee on leave would be entitled to her full salary. The consortium opposing the extension includes the UK and Germany. The proposals to amend the directive are subject to qualified majority voting, meaning that the consortium's opposition could cause the draft legislation to be shelved indefinitely.

SMOKING

The Court of Appeal has ruled that the Government's proposed ban on cigarette vending machines is lawful.

WORKING TIME ISSUES

  • Advocate General Opinion on long-term sickness and holiday The Advocate General has delivered her opinion in KHS AG v Schulte, a case concerning the relationship between holiday rights under the Working Time Directive and long-term sick leave.

She concluded that:

EU law does not require that workers on long-term sick leave accumulate, without any time limitation, the right to paid annual leave or to payments in lieu of such entitlement. Allowing a worker to take accrued leave several years after the leave year to which it related would not achieve the Directive's purpose of enabling the worker to recuperate from the effort and stresses of that year.

A national law under which annual leave entitlement extinguishes 18 months after the end of the relevant leave year (effectively giving workers up to two and a half years to use a year's leave entitlement) does not offend against the Directive. An 18-month minimum period is a guideline which member states should follow as far as possible for the purposes of implementing the Directive: a carry-over period of only six months is insufficient. The ECJ is not obliged to follow the Advocate General's opinion. Nevertheless, the opinion is interesting given the uncertainty caused by the ECJ's decisions in Stringer and others v HM

Revenue & Customs and Pereda v Madrid Movilidad SA.

  • Sick worker's entitlement to statutory holiday and pay carried over to next leave year In NHS Leeds v Larner, the EAT considered whether a worker, who had been off sick for an entire leave year without requesting any statutory holiday, was entitled to a payment in respect of that year's holiday entitlement when her employment terminated.

The EAT upheld the tribunal's decision. The claimant's failure to request holiday during the relevant leave year did not mean that she lost the right to payment. It held there was no distinction between the claimant's situation and that of the worker in the ECJ case of Pereda v Madrid Movilidad SA; owing to sickness, she had not been well enough to exercise her "right to enjoy a period of relaxation and leisure". In the circumstances, her holiday entitlement carried over to the next leave year, even though she did not expressly request carry over. Her right to be paid in respect of that entitlement crystallised on the termination of her employment. It is understood that leave to appeal to the Court of Appeal is being sought.

  • Advocate General: pilots' holiday pay must reflect normal remuneration including supplements The Advocate General has given her opinion in Williams and others v British Airways plc which concerns how holiday pay must be calculated under the Working Time Directive and the Aviation Directive.

In the Advocate General's opinion, the Working Time Directive and the Aviation Directive require a worker's statutory holiday pay to correspond to their "normal remuneration". Where remuneration varies, this equates to the worker's average earnings in a representative reference period. The calculation of average earnings must include supplements usually due as part of remuneration, such as the "flying pay supplements" and "time away from base allowances" payable to the pilots in this case.

If the ECJ agrees with the Advocate General, the Court of Appeal's decision that British Airways was entitled to exclude the above supplements from its pilots' statutory holiday pay under the Civil Aviation (Working Time) Regulations 2004 is likely to be overturned.

MISCELLANEOUS

  • One in three unaware of health and safety procedures at work Three-quarters of employees questioned in a recent survey claimed to be 'unaware' of the health and safety procedures within their workplace. The study also found that 49% of the 1,561 employees surveyed claimed that they had never seen any written documentation of safety procedures in place, despite working in a business employing five or more people.
  • HSE newsletter – Summer 2011 The HSE has replaced its printed newsletter with a new online interactive version. This covers all the latest HSE news, case studies, court stories and guidance – much of which we have also referred to in our newsletters. http://www.hse.gov.uk/pubns/books/newsletter-jul11.pdf
  • HSE consultation on cost recovery scheme The HSE has started a three-month consultation ending on 14 October 2011 on how a cost recovery scheme for intervention will work. Costs would be recovered if, during an inspection or investigation, a material breach - a failure to adhere to health and safety law identified by an inspector as requiring formal action - is discovered. HSE expects to charge non-compliant businesses around £133 an hour for cost recovery. Under the proposals, the costs of any specialist supported needed by HSE would also be passed on. The introduction of charging for advice to remedy breaches is set for April 2012. http://www.hse.gov.uk/press/2011/hse-costrecovery.htm
  • HSE annual report HSE has published its annual report and accounts for 2010/2011http://www.hse.gov.uk/aboutus/reports/1011/index.htm
  • New Workers HSE has published 6 steps to protect new starters as they are more likely to have an accident through lack of experience, lack of familiarity and eagerness to impress colleagues.http://www.hse.gov.uk/diversity/new-to-the-job.htm

ELECTRICITY, GAS SAFETY, MANUAL HANDLING, RADIATION, WHISTLEBLOWING AND WORKING AT HEIGHT

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