UK: Health & Safety Update - November 2012

Last Updated: 10 December 2012
Article by Helen Brooks

COSHH

Chemicals at work: FAQ The HSE has published frequently asked questions about chemicals at work.

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Directors' responsibilities and corporate manslaughter

Flower nursery charged with corporate Manslaughter

PS & JE Ward Ltd is the fourth company to be charged with corporate manslaughter after the death of an employee at a flower nursery in Norfolk on 15 July 2010. Grzegorz Krystian Pieton died from an electric shock caused when the metal hydraulic trailer he was towing touched an overhead power line. The company also faces a charge of failing to ensure the safety of its employees under the Health and Safety at Work Act 1974. The company has been summonsed to appear at King's Lynn magistrates court on 23 November.

Electricity

FAQs on portable appliance testing The HSE has published key facts about the inspection and testing of portable equipment.

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Gas Safety

According to a recent survey, less than one third of managers are confident that gas detectors in their workplace function correctly. This is an important reminder to employers to ensure they are aware of the dangers posed by gas in the workplace and to take control of safety.

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Ill-health/Stress/Disability

Growing your customer base to include disabled people: a guide for businesses The Government has published new guidance to encourage businesses to make themselves more accessible to disabled people. This follows Government figures which indicate that disabled people contribute more than £80 billion a year to the UK economy and account for up to 20% of the customer base for an average UK business. The Government feels that despite the statistics the needs of disabled people are often not properly addressed by most UK businesses.

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Presenteeism

A report by the Chartered Institute of Personnel and Development ("CIPD") has found that the average level of employee absence has fallen from 7.7 days to 6.8 per year since 2011. The increase in "presenteeism", where employees go to work despite being ill, has been attributed to the threat of redundancy.

European Depression Association

A survey from the European Depression Association has revealed that one in ten working people surveyed in Europe have taken time off work due to depression. The Impact of Depression in the Workplace in Europe Audit survey shows that the average number of days taken off work during an episode of depression to be 36 days with Great Britain having the highest of 41. Despite the size of the problem nearly one in three managers reported they had no formal support or resources to deal with employees who have depression.

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Stress indicator

A new stress indicator tool for managers has been developed by CIPD in partnership with the HSE. It is designed for managers to assess how effective they are in preventing and reducing stress in their staff.

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MEP submits proposals for new EU law on restructuring and redundancies

The European Parliament has published a draft law on restructuring and redundancies, drawn up by a Spanish MEP. One proposal is that, as part of a restructuring exercise, employers should measure the "psycho-social health" of employees (including those who are being made redundant and those who are staying on). It suggests that where there is a significant deterioration in an employee's mental health and well-being, the employer should be obliged to offer retraining, training on interview techniques and general assistance with finding alternative employment as a concession for making them redundant. It also suggests employers should have to report on the impact of restructuring on the local community, including proposals for regenerating local communities affected by significant job cuts.

Although it has been reported that the European Parliament has voted in favour of the proposals, they have not had a first reading yet. Even if the Parliament does eventually vote in favour, it will be up to the EU Commission and, in due course, the Council of Ministers to decide whether to take the legislative process any further.

PHI and dismissal

In Lloyd v BCQ Ltd the EAT considered whether there was an implied term in an employee's contract not to terminate his employment while he was receiving permanent health insurance ("PHI") payments. Mr Lloyd suffered from a back injury resulting in him being off on long-term sick absence. His contract contained no reference to PHI but he was provided with PHI cover from 1988. His employment contract, which he signed in 1992, contained an entire agreement clause.

When Mr Lloyd was dismissed he brought several claims in the tribunal including a claim for breach of contract in relation to PHI. He argued that there was an implied term that his employment would not be terminated while he was in receipt of PHI benefits where the effect of termination would be to deprive him of those benefits (following Aspden v Webbs Poultry and Meat (Holdings) Ltd). The Tribunal and EAT held there was no such implied term. His right to PHI was not part of his employment contract as the entire agreement clause made it clear he did not have a contractual right to the PHI benefit. The EAT also took the opportunity to clarify the limits of Aspden which it held was a case decided on its own particular facts where it had been necessary to imply a term to make sense of two express terms which were mutually inconsistent.

Denying pay rise to NHS workers on grounds of sickness absence was unlawful deduction from wages

In Bent and ors v Central Manchester University Hospitals NHS Foundation Trust an employment tribunal has held that an NHS Trust was not entitled to apply a local pay progression policy which sought to defer the effect of contractual pay increments where employees had exceeded set sickness absence thresholds. The tribunal found that the policy was inconsistent with the nationally agreed NHS terms and conditions, which were expressly incorporated into employees' contracts of employment. These entitled staff to automatic annual pay increments provided their performance was satisfactory and they had demonstrated the requisite knowledge and skills for the new pay band. Accordingly, the employees had been subjected to a purported unilateral variation of their terms and conditions, resulting in a series of unlawful deductions from their pay.

Legislation

Red tape blitz

On 10 September 2012 the Government announced that it will be making changes to health and safety legislation as part of its red tape blitz aimed at boosting growth by introducing new rules which will exempt significant numbers of businesses from proactive health and safety inspections and by removing strict liability offences from health and safety legislation.

The intention is that from April 2013 health and safety inspections will be limited to businesses operating in higher risk areas such as construction, chemical industries or gas fitting and installation or where there has been an accident, a genuine employee complaint or the organisation has a track record of poor performance in health and safety. The Government will be introducing a new binding statutory Code under which HSE will direct all Local Authority inspections and which will rule out proactive inspections of lowrisk businesses such as those which are office-based, shops, hotels, restaurants, pubs and clubs.

The Government has also introduced proposals, which have been inserted into the Enterprise and Regulatory Reform Bill currently going through Parliament, aimed at ensuring businesses will only be held liable for civil damages in health and safety cases if they can be shown to have acted negligently. This means that employers who have complied with their health and safety duties will no longer be automatically liable for damages, as is the case at the moment. This change is aimed at helping to deal effectively with "compensation This is a private member's Bill which is currently undergoing its passage through Parliament. It seeks to repeal legislative provisions that can prevent people with mental health conditions (including a history of depression) from serving as MPs, members of devolved legislatures, jurors or company directors. The Bill is next being considered on 30 November 2012.

The Protection of Workers Bill

This Bill creates a specific offence relating to assault of those whose work brings them into face-to-face contact with members of the public. It has had its first reading in the House of Commons and the provisional date for the second reading is 1 February 2013.

Third party harassment

The Government has confirmed its decision to remove an employer's liability for third party harassment from the Equality Act 2010. Amendments to the Equality Act are being made in the Enterprise and Regulatory Reform Bill.

Consultation on first aid changes

The HSE has published a consultation on the proposed removal of the requirement for the HSE to approve first aid training and qualifications. A review of the Approved Code of Practice and the content of associated guidance has also been published. The consultation closes on 3 December 2012.

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Responses to consultations

The Association of Personal Injury Lawyers has published its responses to two consultations – the proposals to exempt the self employed from HSE regulation and on the proposed changes to the RIDDOR reporting system.

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Age-related changes and safety critical work The removal of the compulsory retirement age may have implications for health and safety at work, as an individual's ability to carry out certain categories of work may diminish. The HSE has produced a report highlighting tools which may assist employers in evaluating the continuing functions and abilities of individuals.

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Manual Handling

Repetitive Strain Injury

The HSE has published a report providing practical advice on mechanical aids to reduce the risk of heavy manual handling. There is little information on the mechanisation and automation available to reduce upper limb disorder risks that can arise with repetitive handling. The report shows a variety of automated and mechanised equipment and the benefits and limitations of using the devices based on real-world case studies.

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Maternity/Paternity/Parental Leave

Parents to share maternity leave

On 13 November the Government announced proposals to introduce flexible parental leave. Under the new system of flexible parental leave parents will be able to choose how they share the care of their child in the first year after birth. Employed mothers will still be entitled to 52 weeks of maternity leave but working parents will be able to opt to share the leave. Mothers will have to take at least the initial two weeks of leave after birth but after that they can choose to end the maternity leave and opt to share the remaining leave as flexible parental leave. It will be up to both parents to decide how to share the remaining weeks of leave, they can take it together or take the leave in turns provided they take no more than 52 weeks combined in total. The Government will be launching a consultation on the detail of the new system early in the New Year with plans to introduce the changes in 2015.

Flexible working for all

On 13 November the Government also announced its intention to extend the right to request flexible working to all employees with 26 weeks' continuous employment. It will also remove the current statutory procedure for considering requests. Instead, employers will have a duty to consider all requests in a reasonable manner. ACAS will produce a statutory code of practice on the meaning of "reasonable" which will be consulted on in due course. This is expected to be implemented in 2014.

Other proposals

The Government also announced other proposals. These include:- l a new right allowing men to take unpaid leave to attend two ante-natal appointments.

bonuses, which are currently excluded from holiday pay under the week's pay regime, should form part of their normal remuneration.

In order for private sector employees to make a claim, they would have to persuade a Tribunal to interpret the current provisions in line with this Judgment. Given the recent willingness of the UK Courts to add words into legislation in order to "interpret" in line with European case law, it seems highly likely that they will continue in this way if provided with persuasive arguments.

Annual leave and zero-hours contracts

In Heimann and anor v Kaiser Gmbh the ECJ held that the Working Time Directive does not preclude a national law or practice under which a worker's accrual of paid annual leave entitlement is adjusted pro rata during a period of "zero hours short-time working". In this case, German workers were placed on zero-hours contracts under which they performed no work in order to improve their position with regard to unemployment benefits. When their employment ended they claimed payments in lieu of untaken statutory annual leave for the time when they were on zero hours contracts. The ECJ held it was not contrary to the Directive for them to receive no payment in lieu of untaken annual leave in respect of this period.

Miscellaneous

Risk assessments

HSE has published examples of the approach it expects small businesses or workplaces to take in conducting risk assessments.

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New Tool for small businesses

The HSE has produced a new toolbox for small businesses. Building on "Health and safety made simple" — which provides sufficient basic information for low-risk businesses — the toolbox sets out core health and safety issues relating to the type of organisation, its workforce and workplace environment in simple sections. It also covers information on manual handling, trip hazards and harmful substances, and tips on protective equipment.

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Cost recovery

On 1 October the HSE began implementing its cost recovery scheme – Fee for Intervention – which we have previously reported on.

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However, according to a recent survey, nearly three out of five businesses will be less likely to approach the HSE as a result of this scheme.

HSE autumn newsletter

The HSE has published its autumn newsletter

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Office health and safety

The new updated "Office health and safety" site is now live on HSE. This gives advice on health, safety and welfare in the office.

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Statistics

The provisional statistics published by HSE at the end of October show slight falls in a number of key areas of workplace ill-health and injury.

The provisional statistics show that in Britain between April 2011 and March 2012:

  • 22,433 major injuries such as amputations, fractures and burns, to employees were reported - a rate of 89.90 injuries per 100,000 workers - compared with 24,944 in 2010/11. The average for the past five years is 27,170.
  • 88,731 other injuries serious enough to keep people off work for four or more days were reported - a rate of 355.5 injuries per 100,000 employees - down from 91,742 the previous year. The average for the past five years is 103,627.
  • An estimated 1.1 million people said they were suffering from an illness caused or made worse by their work, down from 1.2 million in 2010/11. Of these, 452,000 were new illnesses occurring in-year. The average for the past five years was 1.25 million with an average 554,000 new cases each year.
  • 173 workers fatally injured - down from 175 the previous year. The average for the past five years was 196 worker deaths per year.

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Construction, fire safety, food hygiene and safety, radiation and working at height

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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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