Welcome to the August edition of our Health and Safety update which covers recent news, cases and legislation.
The HSE has published guidance on demolition and what employers need to know. Please click here for further information.
DIRECTORS' RESPONSIBILITIES AND CORPORATE MANSLAUGHTER
Lion Steel fined £480,000 for corporate manslaughter
Lion Steel has been fined £480,000 for the corporate manslaughter of one of its employees, Steven Berry, who died from injuries when he fell through a roof while carrying out a repair. The company has also been ordered to pay prosecution costs which, after being reduced by 50% to reflect a delay in bringing the prosecution, amounted to £84,000. This is the third company in the UK to be convicted under the Corporate Manslaughter and Corporate Homicide Act since it came into force in 2008. The judge has allowed the company to pay the penalty in four instalments after taking into account submissions on its ability to pay while safeguarding current employees' employment. The amount of the fine is broadly consistent with published sentencing guidelines.
The CPS had originally charged three of Lion Steel's directors with gross negligence manslaughter under the Health and Safety at Work Act. However, these charges were severed and then dropped. The company admitted the offence during the trial.
No shift in prosecution policy
The HSE has confirmed in response to a letter in the Health and Safety Practitioner that there has not been a shift in its prosecution policy from employees to those at the top and that the HSE is not deliberately targeting senior employees. Please click here for further information.
The HSE has published an updated Memorandum of Guidance on the Electricity at Work Regulations 1989. This has been updated to reflect correct regulations, standards and publications. Please click here for further information.
Enforcement of Fire Safety Order
As part of the Focus on Enforcement campaign, the Government is urging companies, particularly SMEs, to feed in their experiences of fire safety enforcement by fire safety officers who visit premises to ensure compliance with the Regulatory Reform (Fire Safety) Order. The Government is also interested to hear where companies get advice from on fire safety compliance. Please click here for further information.
FOOD HYGIENE AND SAFETY
Food Hygiene Rating Scheme
The Food Hygiene Rating Scheme was officially launched in London on 17 July 2012. As previously reported, this national scheme was introduced by the Food Standards Agency (FSA) in partnership with local authorities in England, Wales and Northern Ireland. Following inspections by local council food safety officers, the hygiene standards are rated on a scale ranging from 0 at the bottom (which means 'urgent improvement necessary') to a top rating of 5 ('very good').
Food Standards Agency Annual Report and Accounts published
The Food Standards Agency has published its Annual Report and Accounts for 2011/12. Please click here for further information.
Case studies for those in catering and hospitality
The HSE has published case studies for those involved in catering and hospitality covering kitchen-related accidents, cleaning regimes and manual handling. Please click here for further information.
New report on disabled people and business
New evidence on the impact of disability in the workplace has been published in a report from the Equality and Human Rights Commission. It includes case examples from employers and individuals about what is working well and what would work better. The perfect partnership, Equality and Human Rights Commission, 22 May 2012
Study reveals increased drug use in the workplace
A study by a drug-screening firm which analysed results of more than 1.6 million workplace drug tests between 2007 and 2011 has revealed that there has been a 43% increase in employees testing positive for drugs. Employers should ensure they have clear rules about how they will treat employees coming to work under the influence of alcohol or drugs and about drinking alcohol or drug-taking while at work.
Case - Loss of death-in-service benefit recoverable by deceased former employee's estate
In Fox v BA plc the EAT has held that the dependents of an employee who died a few days after being dismissed could claim the loss of the death-in-service benefit (amounting to £85,000) which would have been provided had he died during his employment. Mr Fox was dismissed for incapability following long-term sickness absence. Five days later he had surgery which he hoped would allow him to return to work but died unexpectedly three weeks later. His father brought claims for unfair dismissal and disability discrimination on his estate's behalf. This was raised as a preliminary issue on the assumption that there was a finding of unfair dismissal.
The EAT considered that the tribunal was wrong to confine the award to £350 to reflect the cost of lost life insurance cover. It found that where the employee died shortly after dismissal, the loss amounted to the full sum which would have been payable on death, and not just the premium required to ensure continuous life assurance cover at the appropriate level. The case will now proceed to a full merits hearing.
Cost recovery scheme
The HSE's cost recovery scheme, Fee for Intervention, previously reported on has now been confirmed to start in October 2012 subject to Parliamentary approval of the regulations implementing this. The proposed hourly rate for 2012/13 is £124 and is intended to enable the HSE to recover costs from those who break health and safety laws for the time and effort HSE spends helping to put matters right. The HSE has also produced guidance about how the scheme will work in practice. Please click here for further information.
Lofstedt – progress report
The Government has issued a progress report outlining the steps it has taken so far with a view to implementing the Lofstedt recommendations and Lord Young's recommendations in his report "Common Sense, Common Safety".
In order to ensure the Government remains on track, it has also asked Professor Lofstedt to undertake an independent review of how well the recommendations in his report have been implemented and how those still to be delivered are progressing one year on from the publication of his report. He is expected to report back in January 2013. Please click here for further information.
The HSE is undertaking a number of consultations as part of the Government's response to the Lofstedt review. They currently include:
- Review of HSE Approved Codes of Practice
The HSE has opened a three month consultation on proposals in relation to its Approved Codes of Practice (ACoPs). The HSE initially reviewed 32 out of its 52 ACoPs following the Lofstedt review which commented that some of the ACoPs are out-of-date and others are too lengthy, technical and complex. Consultees have until 14 September to submit their views on proposals to revise, consolidate or withdraw 15 ACoPs identified by the HSE and on minor revisions, or recommendations for no change, to a further 15 ACoPs. Please click here for further information.
- RIDDOR reporting requirements
The HSE has opened a 12-week consultation on proposals to simplify and clarify how businesses comply with the requirements under RIDDOR. Responses are requested by 28 October 2012. Please click here for further information.
- Proposed exemption for self-employed
The HSE has opened a consultation on proposals to exempt self-employed people from health and safety law if their work activities pose no potential harm to others. This runs from 2 August to 28 October 2012. Please click here for further information.
The Lofstedt review recommended that the HSE amended regulations to remove the requirement for the HSE to approve the training and qualifications of appointed first-aid personnel. This was accepted by the Government and the HSE will remove this requirement as part of its commitment to reduce the burden on business. In future, businesses will be responsible for identifying first aid courses that are appropriate for their workplaces and for selecting suitable training providers. The HSE is currently considering the most appropriate date to initiate the change and will provide more information in the near future. Please click here for further information.
Consultation on removing third-party harassment from Equality Act
The Government has also consulted on its proposal to remove the third-party harassment provisions from the Equality Act 2010. It suggests that the provisions are an example of unnecessary regulation introduced without any real or perceived need and that there are alternative legal routes employees can pursue if they consider they have been subject to repeated harassment by a third party including claims for negligence, constructive dismissal, under the Protection from Harassment Act 1997 and general harassment under the Equality Act. The consultation closed on 2 August 2012.
New guide explaining maternity rights and redundancy published
ACAS and the Equality Human Rights Commission have published a new guide on Managing redundancy for pregnant employees or those on maternity leave. It sets out questions that the employer should ask when considering which posts to make redundant: whether the redundancy is genuine; how to consult employees on maternity leave; how to decide the correct selection criteria and whether there is a suitable alternative vacancy. Please click here for further information.
Maternity leave for mothers of children born by surrogates
The Government is considering the possibility of granting leave and pay for mothers of children born by surrogates. Whilst this issue was not included in the Modern Workplaces Consultation document published in May last year, the Business Minister, Norman Lamb, has confirmed that BIS is looking into this. In addition, as reported in our May update, it is the subject of a Private Member's bill, and in C-D v S-T the employment tribunal decided to refer questions to the ECJ about whether EU maternity and discrimination law protects a woman who becomes a mother under a surrogacy arrangement
Loophole to be closed
The Government has recently published the Enterprise and Regulatory Reform Bill which includes its proposals for employment law reform. One issue in relation to whistleblowing which is now addressed in the Bill arose as a result of the concern that the ability to "blow the whistle" by employees in relation to their own employment contracts was not what was intended by the whistle-blowing legislation. To rectify this, the Bill specifies that a "qualifying disclosure" must be made in the public interest. There is no definition of public interest, but the explanatory notes do state that if a worker does not receive the correct amount of holiday pay (which may be a breach of the terms of his contract of employment), this is a matter of personal rather than public interest.
WORKING TIME ISSUES
Failure to request holiday does not affect sick worker's right to carry over holiday
The Court of Appeal in NHS Leeds v Larner has upheld a tribunal's decision that a worker, who had been on sick leave for an entire leave year and had not taken any holiday during that period, was entitled to payment in respect of that year's unused statutory holiday entitlement on the termination of her employment.
The claimant's failure to request holiday or ask for it to be carried forward during the previous leave year did not mean that she lost the right to payment.
The court relied on ECJ cases which considered the effect of the Directive and, distinguishing this case from Fraser v South West London St George's Mental Health Trust on its facts, held that the claimant had had no opportunity to take (or to request to take) her accrued annual leave, since she had been dismissed while still on sick leave.
Sickness and annual leave
The most recent European judgment on the issue of what happens if a worker is sick when on annual leave has been considered in Asociacion Nacional de Grandes Empresas de Distribucion v Federación de Asociaciones Sindicales and others. This decision makes clear that if a worker becomes ill whilst on holiday, the period of illness can be reclaimed and taken as holiday at a later date. As a result, workers who are either ill before a scheduled holiday, or who fall ill during it, can reclaim holiday and even carry it over to the next holiday year if they are not able to take it in the same holiday year.
Whilst the WTR don't currently allow for this (amendments have been proposed as part of the Government's Modern Workplaces consultation) tribunals have to interpret them in light of European law which has led to some tribunals allowing the carry over of holiday. Employers therefore need to consider whether to include, within their sickness absence reporting procedures, a requirement that where a worker claims to be ill on holiday and wishes to reschedule this, they must provide medical evidence of their illness for the duration of the period they are seeking to reclaim. However, this raises its own practical difficulties as, depending on where the worker is holidaying, they may not be able to obtain medical evidence. Employers will need to consider each request carefully and consistently.
HSE Newsletter – new edition
The latest edition of the HSE newsletter has been published on its website. Please click here for further information.
Reappointment of HSE Chair
Judith Hackitt has been appointed for a further three years to October 2015 as HSE Chair.
HSE Annual Report and Accounts 2011/12
The HSE Annual report which covers its performance and looks at other key developments has been published. Please click here for further information.
HSE fatal injury statistics
The HSE's fatal injury statistics show that the number of workers fatally injured in Britain last year remains largely unchanged. 173 people were killed at work in the UK based on provisional data for April 2011 to March 2012 compared to 175 in 2010/2011. Construction still has the worst safety record, with 49 people killed. Please click here for further information.
HSE business plan
The HSE has published its business plan for 2012- 2015. The plan outlines the actions it will take to deliver the Government's reform agenda as outlined in the Lofstedt report. Please click here for further information. FAQs
The HSE has recently published FAQs on:
- Lone working - Please click here for further information.
- Equipment at work - Please click here for further information.
COSHH, GAS SAFETY, MANUAL HANDLING, RADIATION, SMOKING AND WHISTLEBLOWING AND WORKING AT HEIGHT
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.