UK: Health And Safety Update - May 2011

CONSTRUCTION

The latest construction bulletin on the HSE website is on the link attached- http://www.hse.gov.uk/construction/ebulletins/apr11.htm

DIRECTORS' RESPONSIBILITIES AND CORPORATE MANSLAUGHTER

• No statutory directors duties
  It is understood that the HSE board will not be recommending to the Government that it create an explicit statutory duty for company directors to protect their legal workers. However, it has not completely ruled out advocating such a duty in future. The board accepted a paper from HSE officials suggesting it should continue to pursue other ways of encouraging directors to take their safety duties seriously.

• Corporate Manslaughter
  Cotswold Geotechnical (Holdings) Ltd, the first company convicted under new corporate manslaughter legislation, has had its conviction and the £385,000 fine imposed upheld by the Court of Appeal which commented that the company's liquidation was inevitable.

FOOD HYGIENE AND SAFETY

As outlined below, in March the Government published its progress report on the recommendations made in Lord Young's report for reforming health and safety law. In respect of food safety the report confirms that a food hygiene rating system (FHRS) for businesses serving or selling food to the public is being rolled out by local authorities on a voluntary basis with 40% of authorities expected to have adopted the scheme by June 2011. The Food Standards Agency is working closely with local authorities to promote this scheme in their areas and generate local and regional media interest. It is also proposed that businesses should be encouraged to display their ratings at premises on a voluntary basis with this to be reviewed in April 2012. There is also an on-line database containing the results of FHRS inspections.

ILL HEALTH/STRESS/DISABILITY

Sickness absence – latest news and statistics

• According to statistics released by DWP three quarters of people who apply for sickness benefits are either fit or drop their claim before completing their medical assessment. The DWP says that this highlights the need to continue working with reforms of the welfare system. As reported in our February Update, the Government also announced a major sickness absence review, led by Dame Carol Black, to examine new ways to help people stay in work and cut the costs of long-term ill-health. This review is due to report back later this year.

• According to the Engineering Employers Federation (EEF) sickness absence survey for 2011, one in five manufacturing companies believe the fit note has helped reduce sickness absence. The survey also reports a mixed reaction to the introduction of the "fit note" in April 2010, with employers concerned that employees are
• being signed off sick unnecessarily. However, the study also shows there has been a steady decrease in workplace sickness absence over the last three years. A record 45% of employees took no days off because of illness in 2010, and the average employee took 5 days off sick in 2010 compared with 6.7 days in 2007.

• In another workplace absence survey, the majority of businesses are disappointed by their experience of the fit note system. 66% of firms surveyed by CBI and the pharmaceutical company Pfizer said the system had not helped their rehabilitation policy. It also found that three quarters of respondents were not confident that GPs were using the fit note differently to the old sick note.

• However, absenteeism is costing businesses £32 billion a year according to a recent study by Price Waterhouse Coopers.

• According to research carried out on behalf of Legal & General, GPs regularly report seeing patients who have been dismissed during an illness.

• Work-related Upper Limb Disorders
  Upper Limb Disorders are often caused or aggravated by work and may limit the capacity to work. There is still no consensus between experts on classification which remains controversial. Research carried out for HSE recommends improving the classification in order to more effectively prevent and care for those suffering. The HSE has proposed five requirements for a satisfactory classification scheme.

http://www.hse.gov.uk/research/rrhtm/rr869.htm?ebul=hsegen&cr=11/9-may-11

Disability

• Statutory guidance
  The statutory guidance on "Matters to be taken into account in determining questions relating to the definition of disability" came into force on 1 May 2011 which updates the 2006 version.

• Pre-employment health screening
  The Government Equalities Offices has published a quick start guide to the ban on questions about health and disability during recruitment.

http://www.equalities.gov.uk/pdf/110406%20Pre%20Employment%20Questions.pdf

Cases:-

• Use of surveillance film in disciplinary proceedings
  In Pacey v Caterpillar Logistics Services (UK) Ltd an employment tribunal upheld a claim for unfair dismissal where the employee was dismissed for gross misconduct for falsely claiming sick pay where he had been shown on surveillance film carrying out various activities while absent on sick leave. The tribunal criticised the employer for failing to obtain a medical report in relation to surveillance film. The decision to dismiss the employee was made after his managers reviewed the film, but without any input from the employer's occupational health doctor. The tribunal acknowledged that the employee seemed able to do many things in the film but found that only appropriately qualified individuals would be able to assess whether the employee had an injury sufficient to keep him off work.

• Dismissal for drinking during work – unfair
  In Liberty Living plc v Reid Mr Reid, who was dismissed for drinking a pint of lager shandy off work premises during working hours, was held by a tribunal to have been unfairly dismissed. This decision was upheld by the EAT because of inconsistencies between two of the company's policies. The alcohol and drugs policy provided that "consumption of alcohol or being under the influence of alcohol" was prohibited and could lead to disciplinary action up to an including dismissal, whereas the disciplinary policy stated that "being under the influence of alcohol...during working hours" was an act of gross misconduct. The company relied on the disciplinary policy but there was no allegation that Mr Reid was "under the influence of alcohol". The drugs and alcohol policy (which covered the "consumption of alcohol") wasn't drawn to Mr Reid's attention until after he had been dismissed. The lesson for employers is to ensure that their policies are clear and consistent.

• Disability discrimination: reasonable adjustments
  In Tameside Hospital NHS Foundation Trust v Mylott, the EAT overturned a tribunal's decision that an employer's failure to facilitate a disabled employee's application for ill-health retirement was a breach of its duty to make reasonable adjustments under the Disability Discrimination Act 1995. It held that reasonable adjustments are steps making it possible for disabled employees to remain in employment, not steps enabling them to leave employment on favourable terms.

LEGISLATION

There have been a number of Government reports and announcements in recent weeks which directly or indirectly relate to health and safety legislation and which, to some extent, overlap with each other.

Plan for Growth

Along with the March Budget the Government published its "Plan for Growth" in which it set out its vision for removing barriers to growth by removing red tape, particularly for small businesses. The proposals which will impact on health and safety include:

• Changing the Health and Safety Regime
  This will involve removing automatic health and safety inspections for "responsible employers" with a concentrated effort to target more "high risk locations", regulating unqualified health and safety consultants, reviewing health and safety law to remove unnecessary regulation and introducing online guidance with information on health and safety contained in one place.

• Flexible working/shared parental leave and "Consultation on Modern Workplaces"
  The flexible working regime was due to be extended to all those with children of 17 and under from 6 April 2011. Instead the regulations were repealed before they came into force on the grounds that the extension would have been an "unhelpful complication" for employers. However, on 16 May the Government published its "Consultation on Modern Workplaces" on a new system of flexible parental leave and extending the right to request flexible working to all employees. It also covers working time issues and seeks views on requiring employers who lose an equal pay claim to undertake and publish equal pay audits. The consultation runs until 8 August 2011. Further details are covered under the Maternity and Working Time sections below.

• Equality Act 2010 – Third-party harassment
  The Government will be consulting on removing the "unworkable requirement" that employers take reasonable steps to prevent third party harassment.

Employment law review

The Government also announced on 11 May that as part of its employment law review it will be looking at compensation levels in discrimination cases.

Updates following Lord Young's report and the Government's Red Tape Challenge

In March the DWP published two reports on health and safety reforms following Lord Young's recommendations in his review "Common Sense, Common Safety" on the operation of health and safety laws; "Common Sense, Common Safety – progress report" and "Good Health and Safety, Good for Everyone" which sets out its plans.

In April, the Government launched its Red Tape Challenge aimed at identifying unnecessary regulations, including health and safety regulations, which could be scrapped, merged with other regulations, simplified or improved.

Common Sense, Common Safety – progress report

This report lists the recommendations contained in Lord Young's report, the Government body responsible for implementing them and the progress made. The DWP intends to regularly update the recommendations on its website.

http://www.dwp.gov.uk/docs/cscs-progress-21mar11.pdf

Good Health and Safety, Good for Everyone

This report sets out the next steps in the Government's plans for reform of the health and safety system. Part of this includes shifting the focus of health and safety enforcement away from businesses that do the right thing to concentrate on higher risk areas, dealing with serious breaches of health and safety regulations. http://www.dwp.gov.uk/docs/good-health-and-safety.pdf

The report is divided into key areas:

• The Register of health and safety consultants
  The Government aims to clamp down on rogue health and safety advisers and has launched the voluntary Occupational Safety and Health Consultants Register which we have previously reported on. The register is now open to the public. http://www.hse.gov.uk/oshcr/index.htm

• The new health and safety framework
  The report clarifies the HSE's role, both with major hazard industries and non-major hazard industries.

• Making health and safety simpler
  The report notes that there are 17 Acts of Parliament and over 200 regulations enforced by HSE and local authorities.
  In order to make it easier for employers to comply with their health and safety obligations, the Government has launched a number of on-line tools. On 21 March Health and Safety Made Simple was launched which offers guidance to small and medium sized employers in low risk businesses. http://www.hse.gov.uk/simple-health-safety
  In addition, the Government's Red Tape Challenge, referred to above, is aimed at identifying unnecessary health and safety regulations.

• The review of current health and safety regulation
  The report launched the independent review of health and safety regulation which is being chaired by Professor Lofstedt, who will be supported by an independent advisory panel made up of representatives by the three main political parties, as well as business people and employee representatives.
  
  The draft terms of reference of the independent review were published in April. The review will consider the opportunities for reducing the burden of health and safety legislation on businesses while maintaining the progress made in improving health and safety outcomes. The review will determine whether regulations can be simplified or abolished, including an examination of unnecessary 'gold-plating', as well as considering the impact of health and safety legislation on litigation and whether the legal position of employers needs clarifying where employees are irresponsible. It will focus on Statutory Instruments owned and enforced by HSE and local authorities and the associated Approved Codes of Practice.
  
  The review will gather evidence from "key stakeholders", which includes government bodies, employer organisations, professional health and safety bodies and academics. The review is expected to report to the Employment Minister, Chris Grayling, in the autumn.

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

MATERNITY/PATERNITY/PARENTAL LEAVE

Consultation on Modern Workplaces

As referred to above, the Government has now published its proposals for flexible parental leave and for extending the right to request flexible working in its "Consultation on Modern Workplaces".

• Flexible parental leave
  Under the proposed system of flexible parental leave:-

The Government aims to introduce the new system in April 2015.

• Flexible working extension
  The consultation also sets out proposals for extending the right to request flexible working to all employees. The proposals include replacing the existing statutory process for considering requests with a duty to consider requests "reasonably" alongside a new Code of Practice to guide employers.

Agency Workers Regulations

The new Agency Workers Regulations are due to come into force on 1 October 2011. These implement the EU Directive and give agency workers the right to equal treatment in respect of basic working and employment conditions with permanent staff after a qualifying period of 12 weeks. There is also equal treatment for pregnant women and new mothers so they will have the right to temporary changes or alternative work due to health and safety issues, as well as paid suspensions and reasonable paid time off for antenatal appointments. There are also certain "day one" rights including access to canteen facilities and to be informed about vacancies.

BIS has recently issued its final guidance on the regulations which was subject to consultation during April.

http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-905-agency-workers-regulations-guidance.pdf

Menopause

The TUC has launched new guidance "Supporting women through the menopause" aimed at helping union representatives raise the issue of menopause in workplaces. The TUC states that this is an important occupational health issue and employers should provide more support at work.

http://www.tuc.org.uk/extras/Supporting_Women_Through_the_Menopause.pdf

Cases

• Sex discrimination against man in redundancy scoring
  In Eversheds v De Belin the EAT has upheld a tribunal's decision that a law firm discriminated against a male lawyer on the ground of his sex when, in a redundancy selection exercise, it inflated the score of a female colleague who was on maternity leave. Pregnant employees and those on maternity leave should only be treated more favourably than male colleagues to the extent that this is reasonably necessary to remove the disadvantages occasioned by their condition. The employer's decision to award the female employee a notional maximum score in respect of one of the selection criteria, while confining the male colleague to his actual score, was not a proportionate means of removing the woman's disadvantage. There were less sex discriminatory alternatives available, such as measuring both employees' actual performance during the period before the woman's maternity leave started.

• Unfair dismissal and detriment – for taking time off to make emergency childcare arrangements
  In Clarke v Credit Resource Solutions an employment tribunal held that an employee was subjected to a detriment and unfairly dismissed for exercising the right to take time off to care for dependants when he was half an hour late for his shift due to sorting out childcare arrangements. It rejected the employer's argument that the employee was dismissed for gross misconduct. Instead it held that the employee had been dismissed for refusing to sign a form consenting to a deduction from his pay and that this had been connected with his having taken time off to arrange emergency childcare. The employer operated a time off for dependants policy but failed to make the connection between this policy and its decision to make deductions from the pay of employees who arrived late for work.

WORKING TIME ISSUES

"Modern Workplaces" consultation

The consultation referred to above concerning the new system of flexible parental leave also seeks views on changes to the Working Time Regulations (WTR) in respect of annual leave, sick leave and family-friendly leave. The WTR need to be amended to ensure compliance with ECJ decisions which have held that workers who are unable to take their annual leave during the current leave year due to sickness or maternity or parental leave must be able to carry it forward to the next leave year.

The proposals include limiting the ability to carry over the annual leave to four weeks under the Directive (i.e. excluding the additional 1.6 weeks in the WTR and any additional contractual leave). The Government is also looking at possibilities for employees to be able to "buy out" the additional 1.6 weeks or for employers to require employees to defer that leave until the first six months of the following leave year if this can be justified by business needs.

It is anticipated that the amendments to the WTR will come into force in 2012.

Special bank holidays

The TUC has urged the Government to change the law on special bank holidays by making an amendment to the Working Time Regulations. This would ensure that the same issues do not arise for the bank holiday to mark the Queen's Diamond Jubilee on 5 June 2012. This call comes after controversy over the recent Royal Wedding Bank Holiday because a minority of employers treated it as another working day.

Plans to move May bank holiday

The first bank holiday in May could be moved, under proposals put forward by the Department for Culture, Media and Sport (DCMS). The DCMS has published a strategy to improve the British tourism industry, which includes a plan to extend the UK's short tourism season by moving the bank holiday to either:

• 23 April for England, to celebrate St George's Day or 1 March for Wales, to coincide with St David's Day, or
• October half term, possibly to create a "UK day" or to commemorate military victories such as the Battle of Trafalgar.

The DCMS says that it recognises the economic and social significance of the first bank holiday in May, and it will consult with all industry sectors and community sector organisations about the proposals. The changes would not be brought into effect until 2013.

Discussions over Working Time Directive to resume before autumn 2011

Representatives of employee and employer groups are set to resume a debate over amendments to the Working Time Directive, although the areas for discussion remain contentious. In 2010, the European Commission launched a consultation to review the Directive but previous attempts to discuss amendments collapsed over issues such as the opt-out from the 48-hour week. The scope of the talks remains contentious, with business groups wishing to focus on narrow issues but employee groups seeking a comprehensive discussion of all provisions. It is anticipated that before June 2011, the social partners (representatives of businesses and workers) will obtain clearance for dialogue to begin, with a letter then sent to the Commission to indicate the start of the dialogue. After nine months, the Commission would then amend the Directive or extend the time for debate if the issues have not been resolved.

MISCELLANEOUS

First Aid

HSE has revised its basic advice on first aid at work http://www.hse.gov.uk/pubns/indg347.pdf

Complaints

HSE has updated details on how to make a complaint about workplace health and safety

http://www.hse.gov.uk/contact/workplace-complaints.htm

RIDDOR

The HSE has announced that from 12 September 2011 the reporting of work-related incidents under RIDDOR should be made on a new online system. It will no longer be possible to report incidents by email, post or fax, although it will still be possible to report fatal and major injuries and incidents to the HSE's Incident Contact Centre.

The HSE will publish seven online reporting forms. These forms (which will deal with reporting an injury, a dangerous occurrence, a case of disease, an injury offshore, a dangerous occurrence offshore, a flammable gas incident and a dangerous gas fitting) will make the reporting process quicker and easier. The HSE hopes that the move to a predominantly online system will make it more efficient and will also allow businesses to easily and conveniently report incidents.

http://www.hse.gov.uk/press/2011/hse-icc.htm

CRB

Online information about the Criminal Records Bureau has been moved to three new locations, according to the nature of the information:-

• Business Link will hold information and guidance about criminal records checks in recruitment, aimed at registered bodies and organisations;
• Directgov, will contain information on how and when to apply for a CRB check aimed at applicants and the general public; and
• the Home Office will provide information about the CRB and its Service.

COSHH, ELECTRICITY, FIRE SAFETY, GAS SAFETY, MANUAL HANDLING, RADIATION, SMOKING, WHISTLEBLOWING AND WORKING AT HEIGHT

No specific update

May 2011

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.