UK: Health & Safety Update - March 2012

Last Updated: 14 March 2012
Article by Helen Brooks

Construction

The HSE's latest construction e-Bulletin is available on its website. Please click here to view the bulletin. HSE has also recently published construction site safety advice. Please click here to view the advice.

COSHH

HSE has recently published information on COSHH basics. Please click here for further information.

Directors' responsibilities and corporate manslaughter

Senior staff prosecutions

According to unofficial figures released by the HSE under a Freedom of Information request the number of directors and senior managers prosecuted for health and safety failings has significantly increased in the past five years. The report in Safety and Health Practitioner, the magazine of the Institution of Occupational Safety and Health, argues that there has been a 400% rise in prosecutions under s.37 of the Health and Safety at Work Act 1974. Please click here for further information.

Electricity

The HSE has recently published frequently asked questions for electricity safety, quality and continuity regulations. Please click here for further information.

Fire Safety

HSE has recently published a simple guide to dangerous substances containing information on fire and explosion hazards. Please click here to view this guidance.

Food hygiene and safety

The HSE has recently published frequently asked questions in relation to maintaining equipment in the catering and hospitality industry. Please click here for further information.

Ill health/stress/disability

Employees still reluctant to disclose mental health issues

A survey carried out by CIPD of 2000 people revealed that only four in ten people would feel comfortable disclosing a mental health problem to their employer. It also found that only 37% say their employer supports employees with mental health problems well. Mental health charity MIND and the CIPD have published a new guide to help more employers support and manage mental health in the workplace. Managing and supporting mental health at work: disclosure tools for managers (December 2011).

Work-life balance – biggest health issue

Research by Group Risk Development, the trade body for the group risk industry, has found that maintaining a good work-life balance ranked as the top health issue for more than one in five employers (21%). This is ahead of stress and mental health issues (19%), currently cited as the most common cause for workplace absence. Please click here for further information.

Disability discrimination

Health and safety for disabled people

The HSE has published guidance on health & safety for disabled people setting out the key points to remember. Please click here to view the guidance.

Reasonable adjustments: PCP need not apply to the Claimant

The EAT has confirmed in Roberts v North West Ambulance Service that a provision, criterion or practice does not need to apply to a claimant in order for them to be put at a substantial disadvantage. Mr Roberts worked as an emergency medical dispatcher in a busy control room with other medical dispatchers who although he was not required to. He suffered from social anxiety disorder and asked to sit at a desk close to the window. His employer agreed but his desk was not always available when he arrived for work. He claimed his employer had failed to make a reasonable adjustment. A tribunal found that as the hot desking did not apply to him he was not placed at a disadvantage. However, the EAT held the tribunal was incorrect and the PCP, in this case the hot desking requirement, could still place a claimant at a disadvantage even though it did not apply to him.

Violence at work

In two combined cases, Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Ltd the Court of Appeal considered whether employers were vicariously liable for violent acts committed by their employees against managers in response to lawful requests or instructions.

In the first case, the Court held that an employer was not vicariously liable where an employee, whose manager telephoned him at home asking him to work a night shift because of a colleague's absence, cycled to work and attacked the manager while drunk. Although the assault happened at the workplace, it was otherwise unconnected with employment.

However, in the second case the Court held that an employer was vicariously liable where a factory employee, in response to a reasonable instruction, violently attacked his manager.

The possibility of friction was inherent in the factory environment. In addition, the employee's attack was instantaneous and had a close relationship with the employment in both time and space.

Legislation

RIDDOR

HSE has published new guidance on RIDDOR changes to come into effect on 6 April 2012 which we have previously reported on. Please click here to view the guidance notes.

HSE – consultation on removing legislation

The HSE plans to withdraw seven laws which it considers outdated or redundant and has started a consultation on this process which ends on 12 March. This is the start of the response to the Loftstedt review of health and safety legislation which we reported on in our December newsletter. Please click here for further information.

Health and Safety (Amendment) Bill 2012

A Private Member's Bill had its first reading in the Commons. The Bill proposes amendments to give health and safety inspectors the power to apply for a court order to freeze the assets, or parts thereof, of a company under investigation following a death or serious injury at work. The provisional date for the second reading is 27 April 2012.

Government to cap lawyers earnings in claims of up to £25,000.

David Cameron has pledged to "kill off" the health and safety "monster" for good. The Government intends to cap the amount lawyers can earn in respect of personal injury claims brought against employers of up to £25,000.

Maternity/paternity/ parental leave

Guidance in respect of new and expectant Mothers

HSE has updated its information for employers and employees in respect of new and expectant mothers and the employer's responsibilities and what it must do to comply with the law. Please click here for further information.

Surrogacy, maternity, and associative Discrimination

In C-D v S-T an Employment Tribunal has decided to refer questions to the ECJ on whether EU legislation on maternity and discrimination protects a woman who is involved in a surrogacy arrangement. The case concerned whether a woman who had a baby through a surrogate was entitled to maternity leave and related benefits such as paid leave. It was noted that it may be appropriate for counsel to liaise with those involved on another case which is referring questions to the ECJ on whether the Equal Treatment Directive provides protection against "associative discrimination" in the context of discrimination because of someone else's pregnancy.

Flexible Work Commission

A new Flexible Work Commission has been launched by the Recruitment & Employment Confederation which will put forward practical recommendations to the Government and businesses on flexible working. It will consider how flexible working can be expanded to further enhance productivity, skills and career prospects for maximum benefit to employers and workers. Its first meeting took place at the start of February 2012.

UK to implement revised parental leave directive in March 2013

The Government intends to implement the new Parental Leave Directive which increases parental leave entitlement from three to four months in March 2013.

Working at height

HSE has published advice on safe management. Please click here to view the advice.

Working time issues

Working Time Directive annual leave provisions are directly effective

In Dominguez v Centre Informatique du Centre Ouest Atlantique and anor the ECJ confirmed that the 4 week annual leave provisions in the Working Time Directive are directly effective for those who work for the state or emanations of the state. However, the ECJ accepted that national laws could treat sick workers differently in respect of any entitlement over and above the minimum.

This may therefore impact on how the additional 1.6 weeks in the Working Time Regulations "WTR" are treated in respect of any carry-over in respect of the Government's proposals. The outcome of the consultation on this is still awaited.

Supreme Court confirms entitlement to annual leave can be satisfied by time off when not required to work

The Supreme Court in Russell and others v Transocean International Resources Limited and others has agreed with the decision of the Inner House of the Court of Session that entitlement to annual leave under the WTR, interpreted in the light of the Directive, can be satisfied during periods when workers are not otherwise required to work. Therefore, the employers in this case were entitled to insist that employees working on an offshore installation took their paid annual leave during so-called "field-breaks" spent onshore. This decision will be of particular relevance for sectors where annual leave is required to be taken during certain periods when no work is undertaken.

Requirement to sign opt-out for overtime work not a detriment

In Arriva London South Ltd v Nicolaou the EAT held that a requirement by an employer for an employee to sign an opt-out agreement in order to work overtime was reasonable and necessary to ensure the employer complied with its duty under the WTR to take reasonable steps to ensure compliance with the 48 hour week. The requirement was not designed to penalise the employee and could not be considered a detriment.

Miscellaneous

Small businesses

The HSE has published information for small businesses on the basics of health and safety and also on risk assessments. Please click here for further information. Please click here for the case studies.

HSE cost recovery scheme

The HSE board has approved the cost recovery scheme for breaches of health and safety law which we have covered in recent updates and which will start in April 2012. It has, however, decided to reduce the rate of the fees it will charge for its inspectors' intervention from the proposed £133 per hour to £124 per hour.

Gas safety, manual handling, radiation, smoking and whistleblowing

No specific update.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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