UK: Health and Safety Update - December 2011

Last Updated: 20 December 2011
Article by Helen Brooks

CONSTRUCTION

A leadership and worker involvement toolkit for the construction industry has been published by the HSE. http://www.hse.gov.uk/construction/lwit/index.htm

New RICS guidance to assess construction compensation has been published. http://www.rics.org/site/scripts/press_article.aspx?pressreleaseID=629

Frequently asked questions in relation to the CDM regulations have been published by the HSE. http://www.hse.gov.uk/construction/cdm/faq/principal.htm

DIRECTORS' RESPONSIBILITIES AND CORPORATE MANSLAUGHTER

In our August update we reported that a second company, Lion Steel Ltd, was being charged with corporate manslaughter under the new corporate manslaughter legislation along with three of its directors who were charged with gross negligence manslaughter. This resulted from 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. A preliminary hearing took place in August with the trial expected to start on 12 June 2012. The directors will return to court this month to enter their pleas. This case is the first brought against a medium sized company with over 100 employees.

ELECTRICITY

HSE has published frequently asked questions about electricity at work which covers how often equipment should be tested. http://www.hse.gov.uk/electricity/faq.htm

FOOD HYGIENE AND SAFETY

HSE has also published frequently asked questions for those involved in catering and hospitality including which safety laws apply. http://www.hse.gov.uk/catering/faqs.htm#t1

Food Hygiene Rating Scheme

In September the Food Standards Agency announced its plans to unify the food hygiene rating scheme (FHRS) to encourage all remaining local authorities in England and Northern Ireland to adopt the scheme. http://www.food.gov.uk/news/newsarchive/2011/aug/unifyratings

ILL HEALTH/STRESS/DISABILITY

Death/injury at work

HSE annual statistics for April 2010 to March 2011 show an increase in the number of workers killed - 171 compared to last year when 147 died – which was the lowest number on record. The construction and agricultural industries reported the highest levels of work-related injuries, with disproportionately high numbers of accidents. An estimated 1.2 million people said they were suffering from an illness caused or made worse by work compared to 1.3 million in 2009/10.

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".

Sickness

The report Health at Work – an independent review of sickness absence following a review by Dame Carol Black and David Frost was published at the end of November. It makes a number of recommendations to reduce workplace sickness absence and the cost of ill health on individuals, employers and the tax payer.

These include establishing a new Independent Assessment Service which, after an employee has been absent for 4 weeks, can provide expert evidence on whether, and if so, how the employee can be supported in a return to work. It recommends revising fit notes so that an individual's capacity to return not only to their own job, but to work more generally is considered. It also suggests that after a 20 week absence, employees should be considered for a job-brokering service that will seek employment opportunities beyond their current employer.

The report also recommends that the Government's Employment Law Review and Red Tape challenge should find an alternative route to the use of costly compromise agreements, that protected conversations should enable employers to have honest, without prejudice conversations about health conditions, and that the ban on pre-employment health questionnaires should be reconsidered.

The review states that its recommendations could save £400 million a year for employers, up to £300 million a year for the State, and boost economic output by up to £1.4 billion. The Government will respond to the review in due course.

http://www.dwp.gov.uk/docs/health-at-work.pdf

Disability discrimination

A recent report into the experience of disabled job applicants has found that many people do not declare their disability at the recruitment stage for fear of it affecting their chances of being hired.

Cases

  • Reasonable adjustments and cost In Cordell v Foreign & Commonwealth Office the EAT upheld the decision of an employment tribunal that the FCO did not directly discriminate against a deaf senior diplomat under the Disability Discrimination Act 1995, nor breach its duty to make reasonable adjustments, when it withdrew an offer of a post in Kazakhstan because of the cost of providing English lipspeaker support for her. The tribunal had found that the cost of the support (about £250,000 a year) was unreasonable. It acknowledged that there is no objective test by which tribunals can balance competing budgetary considerations, but suggested a number of factors that may help tribunals put the costs figures in context. It held that the outcome of a given case will be a judgement call, based on what the tribunal considers "right and just".
  • Adjustment need not have "good prospect" of removing disabled employee's disadvantage to be reasonable In Leeds Teaching Hospital NHS Trust v Foster the EAT stated that a proposed adjustment need not have a "good prospect" of removing a disabled employee's disadvantage to be reasonable for the purposes of disability discrimination law. An adjustment might be reasonable, and therefore required, where there is "a prospect" that it will succeed.
  • Reasonable adjustments must help employee return to work In Salford NHS Primary Care Trust v Smith the EAT held that it was not reasonable to require an employer to offer a disabled employee a career break or to require the employer to submit suggestions as to possible rehabilitative non-productive work to the employee's GP that the employee could then put to her GP in order to get signed back to work. The EAT considered that the suggestion of a career break was in fact something that could be said to put the employee at a disadvantage because she was at that time on sick leave at half pay; a career break would have been unpaid and could also have prejudiced her future chances of taking ill-health retirement. The case also confirms guidance given in an earlier EAT case that the reasonable adjustments duty only covers "substantive" adjustments rather than "procedural" steps such as consultations, investigations and trial periods, which do not in themselves alleviate the disadvantage.
  • Sickness absence dismissals: length of service not relevant to reasonableness of investigation In Dundee City Council v Sharp the EAT set aside a tribunal decision that an employer had failed to carry out a reasonable investigation and had therefore unfairly dismissed an employee who had been absent on long-term sick leave. It held that the tribunal had set the bar too high in requiring the employer to investigate beyond the employee's assertion he was not better and not ready to return to work. It was also wrongly influenced by taking into consideration the employee's length of service. This underlines the fact that while length of service is a relevant consideration in determining the reasonableness of an employer's decision to dismiss, it is irrelevant in determining whether an employer's investigation is reasonable.

LEGISLATION

Löfstedt Health and Safety legislation review

Professor Löfstedt published his review of health and safety legislation, Reclaiming health and safety for all: An independent review of health and safety legislation at the end of November 2011. The Government has also published its response confirming that it will implement the report's key recommendations.

The Löfstedt report noted that, overall, the UK's health and safety regulations are broadly supported, but that not every piece of regulation contributes to a healthier and safer workplace. It is this aspect that the report aims to address. It also recognised that some regulations are used to cover trivial risks, when they are designed to address real risks. This over-enthusiastic application of certain regulations has led to a red-tape nightmare for some businesses.

The report recommends simplifying health and safety regulations (through consolidating or revoking existing regulations), and providing clearer guidance through Approved Codes of Practice ("ACoPs") which will assist businesses and ease their health and safety regulatory burden. In addition, exempting the self-employed in low risk areas (where they pose no potential risk of harm to others) is another way of doing this.

The Löfstedt report's recommendations

The Löfstedt report makes a number of recommendations, which it says should be delivered by April 2015, with earlier target dates for some items.

The key relevant recommendations are:

  • An exemption from health and safety law for the self-employed in low risk occupations whose work activities post no potential risk of harm to others.
  • Review by HSE of all its 53 ACoPs, with the initial phase of the review completed by June 2012 so that businesses have certainty about what is planned and when changes can be anticipated.
  • The HSE to consolidate sector-specific health and safety legislation by April 2015.
  • Legislation to be changed to give the HSE authority to direct local authorities' health and safety inspections and enforcement activity. The aim of this is to ensure a consistent and targeted approach to risky workplaces.
  • Strict liability for personal injury claims to be reviewed and the meaning of "reasonably practicable" to be clarified or the regulations amended to prevent civil liability. Also, to clarify the intention of standard pre-action disclosure lists in personal injury claims.
  • The UK Government to work more closely with the EU on health and safety regulations to ensure that both new and existing EU health and safety legislation is risk-based and evidence-based.

In addition to the key recommendations, the Löfstedt report makes a number of further recommendations, where regulations have resulted in unnecessary costs to business while offering little benefit. The regulations that should be reviewed, clarified or amended include:

  • Construction (Design and Management) Regulations 2008 and its associated ACoP. By April 2012, these should be reviewed to ensure there is a clearer expression of duties, reduced bureaucracy and guidance for small projects.
  • Work at Height Regulations 2005 which govern the use of safety equipment for working at height where there is a risk of a personal injury, if there is a fall. At present there is confusion about how the regulations apply in practice.
  • RIDDOR 1995 should be amended by the end of 2013, to provide clarity to businesses on how to comply with its requirements.

In addition, the Löfstedt report recommends that:

  • The HSE undertakes research to see whether a "core" set of health and safety regulations could be consolidated in such a way that would provide clarity and savings for businesses.
  • The HSE's website is redesigned to distinguish between regulations that impose specific duties on businesses and those regulations that define "administrative requirements" or revoke (or amend) earlier regulations.
  • The HSE helps businesses to understand the meaning of "reasonably practicable" to ensure they comply with the law in a proportionate way.
  • The HSE is the Primary Authority for multi-site national organisations.
  • Those bodies responsible for prosecuting health and safety breaches (like the police, the HSE and the CPS), should work together to ensure a prosecution starts within three years.
  • The House of Lords sets up a Select Committee on risk, to stimulate a wider debate about risk in society. The Chief Scientific Adviser should also convene an expert group to address the same question.
  • Finally, on the issue of engaging with Europe, the Löfstedt report recommends that the Government works more closely with the Commission (and others), especially during the planned review in 2013, to ensure that new and existing EU health and safety legislation is risk-based and evidence-based.

http://www.dwp.gov.uk/docs/lofstedt-report.pdf

Government response to Professor Löfstedt's review

The Government's response identifies the key recommendations from the Löfstedt report, where it says action will be taken as a priority.

These fall into six areas:

  • Exemption for self-employed in low risk occupations.
  • Reviewing all 53 ACoPs to make them easier for employers to understand and to meet their legal obligations.
  • Consolidating health and safety legislation by April 2015. The Government hopes to reduce the number of health and safety regulations by 50%. The HSE will also be asked to look for other areas to consolidate, simplify or revoke.
  • Strengthening the HSE's role will require legislation to give the HSE authority to direct local authorities.
  • Reviewing strict liability for personal injury claims and pre-action disclosure. The Government has pledged to review those regulations that impose strict liability and either qualify the regulation with "reasonably practicable" or amend the regulation to prevent civil liability attaching to a breach of the regulations. The requirements of the standard disclosure list for the pre-action protocol for personal injury claims is to be clarified, as it is creating a burden on employers to keep paperwork, in case there is a claim.
  • Working more closely with the EU on health and safety regulations. The Government has pledged to work more closely with the European Commission and others during the planned review in 2013 to ensure that new and existing health and safety legislation is risk-based and evidence-based. This is intended to address the perception that EU regulations are gold-plated when introduced into UK law.

The Government's response concluded by stating that this review is a significant step in its effort to "...keep our workplaces safe, free businesses from red tape and reclaim the reputation of health and safety that has been so damaged by the excesses of the compensation culture".

This is only part of the Government's plans to simplify health and safety legislation. While the recommendations may be taken forward "vigorously", the outcome of the Red Tape Challenge which will report on further possible changes to health and safety regulations is expected in the new year.

Timetable to implement Löfstedt's report

The Government has set out a timetable to deliver the recommendations in the Löfstedt's report:

By summer 2012:

  • simplify health and safety guidance for small businesses;
  • businesses will get simple and consistent guidance from the HSE, professional bodies and insurers on whether and when they need to bring in expert health and safety advice; and
  • low risk businesses that manage their responsibilities properly will no longer be visited by inspectors.

By 2013:

  • self-employed people whose work poses no threat to others will be exempt from health and safety law;
  • ACoPS will be reviewed to give businesses clear practical examples of how to comply with the law; and
  • unnecessary regulations will be revoked.

By 2014:

  • a simpler accident reporting regime will be in place;
  • EU health and safety legislation will be risk- and evidence-based (if the UK is successful in influencing the planned review);
  • the HSE's enhanced powers will ensure consistent enforcement for all businesses;
  • regulations will be consolidated by industry sector; and
  • the total number of regulations will be reduced by 50%.

http://www.dwp.gov.uk/docs/lofstedt-report-response.pdf

Proposed amendments to RIDDOR

As reported in our August update RIDDOR is to be amended. HSE has agreed that the absence period that triggers an accident report to HSE or local authority under RIDDOR should increase from three to seven days. At a board meeting in August the HSE agreed to recommend this change to the Secretary of State following a recommendation in Lord Young's Common Sense, Common Safety report and the outcome of its consultation. 67% of responses to the consultation supported this proposal. However, this is to be reviewed in three years to check for any negative impact on injury rates or RIDDOR reporting. Amendments to RIDDOR will be laid before parliament next February with a view to arrangements coming into force from April 2012.

Work-related deaths protocol

The Work Related Deaths Protocol has recently been revised. The Protocol operates to ensure that the relevant parties involved in an investigation of a death related to work consult with each other to ensure that appropriate prosecutions are brought. The main change from 1 October 2011 is that health and safety prosecutions can be brought before the inquest into the cause of death is conducted where appropriate and in the interests of justice.

MATERNITY/PATERNITY/PARENTAL LEAVE

Pregnant Workers Directive

The European Parliament and European Council remain divided on proposals to amend the Pregnant Workers Directive which include an increase to the minimum period of paid maternity leave to 20 weeks. In response to a question about the lack of progress – a representative of the Polish Presidency of the Council said it would be difficult to reach a compromise in the current difficult economic conditions.

Employment law review

In his speech to the EEF which announced the outcome of the Government's Employment Law Review and the Government's response to the consultation on Resolving Workplace Disputes Vince Cable reaffirmed the Government's commitment to extend the right to request flexible working to everyone and to modernise maternity leave so it becomes shared and flexible parental leave. He also recognised that greater flexibility is needed in relation to parental leave which reflects the increased involvement of fathers and noted that many fathers take annual leave on top of parental leave which indicates a demand is not being met.

WORKING AT HEIGHT

HSE has published frequently asked questions in relation to reducing the risk of falls from height.

http://www.hse.gov.uk/falls/faq.htm#comply-with-work-at-height-regulations

WORKING TIME ISSUES

Working Time Directive

Discussions have resumed between social partners about reviewing the Working Time Directive (WTD). They have nine months to reach agreement and if they succeed they can ask for their agreement to be implemented as a Directive. If not, the European Commission will make a legislative proposal based on the consultation.

It has also been reported that Britain will use future negotiations in Europe on the Lisbon Treaty to further the Government's objective of restricting the application of the WTD within the UK - particularly in relation to the 48 hour limit on the working week.

Cases - Long-term sickness and holiday

  • Workers only entitled to statutory holiday pay if they take or seek to take holiday In Fraser v South West London St George's Mental Health Trust the EAT considered whether workers have the right to statutory holiday pay under the Working Time Regulations 1998 (WTR) regardless of whether they take or give notice to take holiday. (Free access)

The EAT has held that workers are only entitled to statutory holiday pay under regulation 16 of the WTR if they take statutory holiday or give notice to their employer under regulation 15 that they wish to take such holiday. It would be contrary to the purpose of the regulations if workers could receive statutory holiday pay regardless of whether they take time off, as this would create a financial incentive for them not to exercise their holiday rights. Canada Life Ltd v Gray, in which the EAT held that workers should receive payments on termination in respect of previous years' relinquished statutory holiday entitlement, was wrongly decided.

The EAT noted, however, that workers on long-term sick leave do not necessarily relinquish their untaken statutory holiday entitlement at the end of each leave year. The ECJ, in Pereda v Madrid Movillad SA, held that they have a choice: to take statutory holiday while off sick, or to ask for the holiday to be deferred until their return to work. In the EAT's view, however, if a sick worker wishes to defer taking their statutory holiday to another leave year, they must make a request to their employer in this regard. As the worker in this case failed to make any such request, her untaken statutory holiday entitlement extinguished at the end of each leave year. Therefore, she was not entitled to payment in respect of it when she was dismissed.

  • Sick workers can carry over all 5.6 weeks' statutory holiday to next leave year In Adams and another v Harwich International Port Ltd an employment tribunal considered whether the WTR could be interpreted as allowing sick workers to carry over their 5.6 weeks' statutory holiday entitlement to the next leave year.

An employment judge has held that words can be read into regulation 13(9) of the WTR to enable workers, in accordance with the requirements of the Directive, to carry over their statutory annual leave entitlement to the next leave year where they have been unable or unwilling to take it because of sickness. However, the judge did not think that sick workers should be able to accumulate and carry over their leave entitlement from year to year indefinitely.

The judge also held that sick workers are entitled to carry over not only the minimum four weeks' annual leave required by the Directive, but also the additional 1.6 weeks' leave provided for by regulation 13A of the WTR 1998. This is noteworthy given that the Government's proposals to amend the WTR 1998 to give effect to the Directive's requirements with regard to sickness and holiday rights do not cover the regulation 13A entitlement.

  • EU law does not require unlimited accumulation of annual leave accrued during sick leave In KHS AG v Schulte the ECJ held that there is a limit to the length of time an employee on long-term sick leave can continue to carry over untaken statutory annual leave under the principle in the Stringer and Schultz-Hoff cases. In this case, a German collective agreement provided that, in cases of sickness, all holiday not taken within 15 months of the end of the relevant leave year would be lost. The ECJ held that there must come a time when one of the purposes of the leave (to give the employee a break from work) can no longer be met - something which is recognised in ILO Convention which provides for a cut-off period of 18 months. In view of this, the limit of 15 months on the carry-over period in this case did not infringe the Working Time Directive.

We will have to wait for the outcome of the Government's review of the WTR to see if this limit (or any other time period) is included. In the meantime, tribunals will have to decide whether to apply a 15 month or other time limit.

  • Pilots' holiday pay must correspond to normal remuneration and not just basic salary In Williams and others v British Airways plc the ECJ considered how pilots' holiday pay must be calculated under the Aviation Directive.

The ECJ has held that pilots' holiday pay entitlement under the Aviation Directive should not be limited to basic salary but must, in line with other workers' entitlement under the WTD, correspond to "normal remuneration". This means that pilots should be entitled to holiday pay in respect of remuneration (such as flying supplements) that is linked intrinsically to the performance of tasks which they are contractually obliged to perform. In contrast, remuneration (such as time away from base allowances) intended to cover ancillary costs arising at the time of the performance of contractual duties need not be taken into account. That said, pilots are entitled to holiday pay in respect of all remuneration that relates to their personal and professional status.

The ECJ stated that it is for the national court to determine whether various components comprising total remuneration meet the relevant criteria. The case will now return to the Supreme Court to consider whether the Court of Appeal erred in holding that British Airways was entitled to exclude "flying supplements" and "time away from base allowances" from its pilots' statutory holiday pay under the Civil Aviation (Working Time) Regulations 2004.

Working time: compensatory rest for "special case" workers

In Hughes v Corps of Commissionaires Management Ltd the Court of Appeal considered the entitlement to compensatory rest under the WTR. It confirmed that a period of compensatory rest under regulation 24(a) WTR does not have to have the same characteristics as a rest break under regulation 12(1) of the Regulations and as defined in Gallagher v Alpha Catering Services Ltd (T/A Alpha Flight Services). An equivalent period of compensatory rest must have the characteristics of a rest in the sense of a break from work and, so far as possible, ensure that it lasts for at least 20 minutes.

The court also confirmed that, when considering whether a case is a special case to which regulation 24 of the Regulations will apply, it is the worker's activities that have to be considered, not those of the employer. Therefore, in the case of workers engaged in surveillance and security activities requiring a permanent presence on site covered by regulation 21(b), if working arrangements can be made to enable the worker to carry out their duties without a permanent presence being required throughout their shift, regulation 21 will not be engaged.

WHISTLEBLOWING

In Vince Cable's speech to EEF referred to above he also announced that the "loophole" in the whistle-blowing legislation which currently allows employees to blow the whistle about breaches to their own employment contract will be closed as this was not what the legislation was designed to achieve.

MISCELLANEOUS

HSE infoline

The HSE Infoline telephone service which provided a basic information service to callers ended at the end of September 2011. From 30 September, all those seeking information and official guidance will be directed to the HSE website. HSE says it has made various improvements to its website to coincide with the closure of Infoline, including clearer information on what the HSE does and does not do, expanded Q & A sections for the most frequent enquiries such as those on RIDDOR reporting and first aid.

HSE cost recovery scheme

Following the HSE's consultation on cost recovery for breaches of health and safety law which closed in October and which we covered in our last update, it has started a "dry run" of the scheme. This is to see how well it works in practice. It began in October and will last until 9 December. The HSE will test the new procedures and how well businesses understand the scheme but no actual costs will be recovered.

First aid at work

HSE has published frequently asked questions for employers, first aiders and training organisations.

http://www.hse.gov.uk/firstaid/faqs.htm

COSHH, FIRE SAFETY, GAS SAFETY, MANUAL HANDLING, RADIATION and SMOKING

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If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.