Welcome to the February edition of our Health and Safety update which covers recent news, cases and legislation.
Construction
Clampdown on construction
The HSE has launched a safety clampdown on construction sites aimed at reducing death and injury. Inspectors will make unannounced visits between 18 February and 15 March to construction sites where refurbishment or repair works are taking place to ensure they are managing high-risk activity. Please click here to read the guidance.
Bulletin
A reminder that the Construction e-bulletin is published each month. Please click here to read the bulletin.
Directors' responsibilities and corporate manslaughter
Mine company and manager charged with corporate manslaughter
The manager of Gleision Colliery in South Wales has been charged with four counts of gross negligence manslaughter following the deaths of four miners in September 2011. The company which owns the colliery, MNS Mining, has also been summoned with four counts of corporate manslaughter. The four men died after becoming trapped in the mine when the area they were working in was engulfed in an enormous inrush of water. The CPS has said that because of the way in which the activities were managed or organised by its senior management, the company caused the deaths of the miners by failing to ensure a safe system of working was in place. It is alleged that this failure amounted to a gross breach of the duty of care owed by the company to each of the four mine workers. The case has been sent to Swansea Crown court for hearing.
Electricity
The HSE has published a toolbox to help employers focus their attention on real risks in their business and to help employees take simple precautions when working with or near electricity and electrical equipment. Please click here to read the toolbox.
Food Hygiene and Safety
Please click here to view the link to subscribe to the Food Standard Agency's e-News bulletin together with the February issue.
Ill-health/Stress/Disability
Government response: tackling long-term sickness Absence
In a 2011 report, Health at work: an independent review of sickness absence , Dame Carol Black and David Frost CBE made a number of recommendations to reduce workplace sickness absence and the cost of ill health on individuals, employers and the taxpayer. In its response published on 17 January 2013, the government has accepted virtually all the recommendations contained in the report. However, it has rejected the introduction of a new job-brokering service to help long-term sick employees find new work before they fall on to the benefits system. It had been proposed that this service was offered free to employees who had been absent for at least 20 weeks, or earlier to individuals and employers willing to pay for it. Instead, the government will direct employees in this position to Universal Jobmatch, a free online jobmatching service launched in November 2012.
The Government will proceed with the report's main recommendation, the introduction of a health and work assessment and advisory service from 2014. The service will provide:
- A state-funded assessment by occupational health professionals
for employees who are off sick for four weeks or more.
- Case management for employees with complex needs who require
ongoing support to facilitate their return to work.
- Employers and employees with advice on overcoming the barriers
that prevent employees from returning to work.
In addition, the government will:
- Publish revised fit note guidance emphasising the importance of
assessing an individual's health condition by March 2013.
- Abolish the SSP record-keeping obligations and allow employers
to keep records in a flexible manner more suited to their
organisation.
Please click here to view the report.
Exempting disabled employee from absence management policy was not a reasonable adjustment
In Jennings v Bart's and the London NHS Trust the EAT has upheld a tribunal decision rejecting an employee's claim for unfair dismissal and failure to make reasonable adjustments for a disability. On the question of unfair dismissal, the employee had a long history of intermittent absence followed by long-term absence, and the employer was not unreasonable in dismissing the employee, in spite of a recommendation from occupational health that a phased return to work be undertaken.
The EAT ruled that, for the purposes of a reasonable adjustments claim, the employer could have "imputed knowledge" of the employee's disability even if the wrong diagnosis had been attached to it at the time. It went on to uphold the tribunal's decision that it was not a reasonable adjustment for the employer to exempt the employee from compliance with its shortterm absence policy.
Definition of disability – standing for long periods at work can be day-to-day activity
In Aderemi v London and South Eastern Railway Ltd the EAT has overturned a tribunal's decision that a station assistant, dismissed because his back pain prevented him from standing for long periods of time, was not disabled under the Equality Act 2010.
It held that the Tribunal had erred in focusing on what the employee could do despite his impairment rather than on what he could not do because of it. Further, the tribunal might incorrectly have thought that the employee's activities at work could not amount to "normal day-to-day activities" for the purposes of the statutory definition. It would be wrong to say that not enough people are required to stand for long periods as part of their jobs for a tribunal to find this to be a normal day-to-day activity; it is not difficult to think of many jobs in which standing for long periods is necessary. The EAT remitted the case to a fresh tribunal.
Legislation
Löfstedt review – Reclaiming health and safety for all: a review of progress one year on
The Government asked Professor Löfstedt to give an independent assessment of how well the recommendations in his November 2011 report Reclaiming health and safety for all have been implemented so far and how those still to be delivered are progressing. On 4 February 2013 he published his assessment which finds that overall good progress has been made and that in some cases the government has gone further than he proposed. He considers there is evidence that the perception of health and safety is changing but significant work remains to be done to ensure that regulations and directives coming out of Europe are both risk and evidence based. He also considers that health and safety stakeholders in the UK need to actively engage with the European counterparts.
Please click here to view the assessment.
Consultation on Local Authority Health and Safety Inspections
The HSE has opened a consultation on proposals to ensure local authority health and safety inspections are targeted at workplaces or activities with the most serious risks or where there is evidence of poor performance. The proposed Local Authority National Code aims to ensure greater consistency and a tighter focus in the enforcement of health and safety across Britain. The HSE is seeking views from those involved in local authority health and safety regulation and the businesses they regulate. The consultation runs until 1 March. Please click here to view the consultation.
Strict liability for health and safety offences to be removed – April 2013
Employer's strict liability for injuries to employees in the workplace is to be removed from April 2013. This implements one of Professor Löfstedt's recommendations and is contained in the Enterprise and Regulatory Reform Bill ("the ERR Bill") currently going through Parliament.
Equality Act: March 2013 changes
The Government is intending to bring into force in March 2013 the following changes to the Equality Act 2010 via the ERR Bill:
- The repeal of the third party harassment provisions.
- The abolition of discrimination questionnaires.
Guidance on workplace first aid changes
The HSE has published new draft guidance to help employers get to grips with proposed changes to workplace first aid. Two pieces of guidance have been published on the HSE website following a consultation on proposals to amend the First Aid Regulations 1981 and remove the requirement for HSE to approve first aid training providers. The changes are expected to take effect on 1 October 2013, subject to final approval by the HSE Board and Ministers. Please click here to view the guidance.
Maternity/Paternity/Parental Leave
Parental Leave – implementation of EU directive
The Parental Leave (EU Directive) Regulations 2013 have been approved by Parliament. The Regulations will come into force on 8 March 2013. This increases the parental leave of a qualifying employee from 13 to 18 weeks in respect of an individual child.
Children and Families Bill – implements family friendly proposals
On 4 February 2013, the Children and Families Bill was introduced in the House of Commons. It implements, among other things, the family-friendly proposals contained in the Government's Consultation on Modern Workplaces which we reported on in our last update.
The Bill will introduce a new system of shared parental leave. Under this system, an eligible mother will continue to receive 52 weeks' maternity leave as a day one right. Following the completion of the two weeks of compulsory maternity leave, the mother can choose to end her leave early and share the remainder of her leave with her partner. There will be new statutory payments for parents on shared parental leave with the same qualifying requirements that currently apply to statutory maternity and paternity pay.
The Bill will allow partners of pregnant women and fathers of expected children unpaid time off to attend ante-natal appointments and prospective adoptive parents time off to attend adoption meetings. It will also extend the right to request flexible working arrangements to all employees and repeal the statutory procedure for considering such requests.
Whistleblowing
Whistleblowing loophole to be closed April 2013
The Government has confirmed that legislation closing the whistleblowing loophole will be implemented in April 2013 so that in order to be protected the disclosure must be in the public interest.
The Government has also tabled an amendment to the Enterprise and Regulatory Reform Bill ("ERR Bill") due to be debated which includes the removal of the good faith requirement for a protected disclosure in whistleblowing cases. This may be intended to counterbalance the introduction of the new public interest test. Tribunals will, however, have a new power to reduce compensation by up to 25% if the disclosure was not made in good faith.
Further whistleblowing protection
The government has also announced its intention to make further amendments to the ERR Bill to protect whistleblowers from bullying or harassment by coworkers. The government has also produced an updated policy paper setting out why it is taking the measures contained in the Bill and what each measure aims to achieve.
Currently, the law only protects whistleblowers from harassment or bullying by their employer. The government states that it will:
- introduce a provision having the effect that detrimental acts
of one co-worker towards another who has blown the whistle will be
treated as being done by the employer, therefore making the
employer responsible; and
- provide a defence for an employer who is able to show that it
took all reasonable steps to prevent the detrimental treatment of a
coworker towards another who blew the whistle.
Disclosure after employment ends can be Protected
In Onyango v Berkeley (t/a Berkeley Solicitors) the EAT held that a disclosure made after employment has terminated can still be a protected disclosure. This is the first appellate decision on this issue and the EAT held it had no hesitation in accepting that such adisclosure could be protected. This was in line with the purpose of the legislation and was consistent with other recent authorities. The most likely scenarios in which a worker is likely to argue that a former employer has subjected them to a detriment for a post termination protected disclosure is where the employer refuses to provide a reference or refuses to consider them in a future recruitment exercise.
Public Concern at Work sets up whistleblowing Commission
Public Concern at Work, a whistleblowing charity, has set up an "independent Whistleblowing Commission" to examine existing arrangements for workplace whistleblowing and make recommendations for change. Members of the commission include two whistleblowers, one of whom is the former chief executive of United Lincolnshire Hospitals Trust, Gary Walker.
The Commission will oversee a public consultation process, due to commence in March 2013, to assess different aspects of whistleblowing, including:
- The effectiveness of current legislation.
- The role of regulators.
- The current rewards for whistleblowing.
- How tribunals are protecting whistleblowers and society at
large.
The Commission and Public Concern at Work intend to produce a report in November 2013.
Miscellaneous
HSE's Fee For Intervention Scheme
The HSE has released figures for bills totalling over £700,000 following investigations at over 900 premises following the introduction of its Fee for Intervention Scheme on 1 October 2012. The Scheme was brought in to allow HSE to recover its costs from investigating breaches of health and safety law. The amount is, however, lower than the HSE predicted before the scheme started. However, the HSE has said is too early to make assumptions as to the long-term value of receipts and there are no "targets" for the scheme.
H & S newsletter
For the HSE January online newsletter please click here.
Temperature at work
HSE has published a site which provides advice on thermal comfort including heat stress and cold stress for employers and employees when working indoor and outdoors. Please click here to view the site
Work equipment
The HSE had published a leaflet to give simple, practical advice on eliminating or reducing the risks from work equipment which summarises the main requirements of the Provision and Use of Work Equipment Regulations. It is mainly for those who have responsibility for work equipment and how it is used. Please click here to view the leaflet.
Personal protective equipment
The HSE has published guidance on an employer's duties concerning the provision and use of personal protective equipment (PPE) at work. Please click here to view the guidance.
Health and safety toolbox
The HSE's message for 2013 is to keep things easy when controlling risk. Please click here to view there messages.
COSHH, fire safety, gas safety, manual handling, radiation, smoking, working at height and working time issues
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.
