Thomas Carroll - Risky Business - Spring 2015

Wales’ First Health, Safety and Employment Law Consultancy to be awarded BS OHSAS 18001*

ISSUE

02 2015

Working in the Sun

Skin cancer is the most common form of cancer in the UK, with over 40,000 new cases diagnosed each year. Now that summer is finally upon us and temperatures are starting to rise, organisations need to consider the risks to their employees who work outside for most of the day.

People whose job keeps them outdoors for a long time, such as farm or building site workers, market gardeners, outdoor activity workers and some public service workers, could get more sun on their skin than is healthy for them. This can cause skin damage including sunburn, blistering and skin ageing, which in the long run, could lead to skin cancer.

WHO IS AT RISK?

•• People with pale skin are most at risk

of skin damage, especially those with fair or red hair, with a lot of freckles or with a family history of skin cancer.

•• People with darker skin are at a lower risk, but people of all skin colours can suffer from overheating and dehydration.

AS AN EMPLOYER YOU CAN:

•• Include sun protection advice in routine

health and safety training and inform workers that a tan is not healthy - it is a sign that skin has already been damaged by the sun.

•• Encourage workers to keep covered up during

the summer months – especially at lunch-time when the sun is at its hottest. They can cover up with a long-sleeved shirt and a hat with a brim or flap that protects the ears and neck.

•• Encourage workers to use sunscreen of at

least SPF (Sun Protection Factor) 15 on any part of the body they can’t cover up and to apply it as directed on the product packaging - they might prefer to use a spray or an alcohol-based (non-greasy) sunscreen.

•• Encourage workers to take their

breaks in the shade, if possible, rather than staying out in the sun.

•• Consider scheduling work to minimise exposure.

•• Site water points and rest areas in the shade.

•• Encourage workers to drink plenty of water to avoid dehydration.

•• Keep your employees informed about the dangers of sun exposure - further information is available at www.hse.gov.uk/temperature/outdoor

www.thomascarroll.co.uk

•• Encourage workers to check their skin regularly for unusual spots or moles that change size, shape or colour and to seek medical advice promptly if they find anything that causes them concern.

For further information contact victoria.vaughan@thomas-carroll.co.uk

Risky Business at a Glance

Working in the Sun Zero hours contracts – exclusivity clauses now unenforceable COSHH Essentials e-tool launched Dismissal of Employee Smelling of Alcohol Ruled Unfair New drug driving legislation Free road risk pack for SMEs Frequently Asked Questions Myth Busters Health, Safety and Employment Law Training Courses In Court

Risky Business

Zero Hours Contracts – Exclusivity Clauses Now Unenforceable The recent introduction of the Small Business, Enterprise and Employment Act 2015, which amends the Employment Rights Act 1996, prevents employers using exclusivity clauses in zero hours contracts and means employers can no longer prevent zero hours workers from working for another employer.

Under a zero hours contract, employers do not guarantee to provide workers with any work and pay only for work carried out, even though they expect workers to be available if and when required.

However, any provision which prevents zero hours workers from performing other work, or prohibits them working without the employer’s consent, will now be unenforceable.

Any provision which prevents zero hours workers from performing other work, will now be unenforceable.

In essence, an individual on a zero hours contract is free to work for another employer on a similar contractual arrangement (i.e. zero hours) without having to gain the consent of the employer. That means it is now possible for an employee to

New Drug Driving Legislation The introduction of the Drug Driving (Specified Limits) (England and Wales) Regulations 2014, which came into force in March, aims to crack down on drug-drivers.

Although it has always been illegal to drive whilst under the influence of drugs, the new laws specify exact limits for 16 different illegal and prescription drugs, bringing the legislation in line with drink-driving laws. hold several zero hours contracts with different employers without the consent of any of them.

In practice, it is difficult to know how much of an impact this new legislation will have. Employers may be able to circumvent their legal obligations by including clauses requiring zero hours staff to be available for work if and when needed, and requiring them to accept work when offered, which may have a similar impact to an exclusivity clause.

Furthermore, an employer can simply not offer any work to a zero hours member of staff if they go and work for another company whilst also under contract with them.

Nevertheless, the ban is set to benefit the 125,000 zero hours contract workers estimated to be tied to an exclusivity clause. It is part of a bid to clamp down on the unethical abuse of employees and will allow workers to look for additional work to boost their income.

For further information, please contact employment@thomas-carroll.co.uk

COSHH Essentials e-tool launched The HSE has launched a new online tool that provides advice on controlling exposure to hazardous substances in the workplace.

COSHH Essentials provides straightforward advice in the form of ‘control guidance sheets’ which are both generic and industry-specific.

For further information, please visit http://www.hse. gov.uk/coshh/essentials/

Dismissal of Employee Smelling of Alcohol Ruled Unfair The recent case of McElroy v Cambridgeshire Community Services NHS Trust, found that the dismissal of an employee for attending work whilst smelling of alcohol was unfair.

The judge held that a reasonable employer would not consider attending work smelling of alcohol as a gross misconduct offence, particularly where there was a lack of evidence to suggest that the employee’s ability to do his job was impaired or

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alternatively where the employee had not been given a previous warning under the organisation’s disciplinary policy for a similar offence.

This case serves as a warning to employers that Tribunals will draw a distinction between an employee attending work whilst smelling of alcohol and an employee who can be proved to have attended work under the influence of alcohol to the extent that his performance was impaired.

Thomas Carroll

Under this new legislation, police will be able to carry out roadside saliva tests, as well as impairment checks. Portable ‘drugalysers’ will be able to detect cocaine and cannabis, whilst a blood test will be taken for other substances including heroin, ecstasy and prescription drugs.

Those using prescription drugs within recommended amounts will not be penalised. Prescription drugs covered by the new law are clonazepam, diazepam, flunitrazepam, lorazepam, oxazepam, tamazepam, methadone and morphine.

Penalties for drug-driving will be similar to those given for drink-driving and could include a criminal record, a 12-month ban, as well as a fine of up to £5,000.

Employees should continue taking their prescription medicines, but be made aware that it is their responsibility to ask their doctor or pharmacist if the medicine might affect their ability to drive. Any drivers who take prescription medication should also be encouraged to carry proof of this, which they can produce at the roadside if necessary.

From an employment perspective, organisations – particularly those operating a fleet or supply business – need to ensure that their workplace policies and procedures reflect these changes, especially if they are considering the introduction of random drug testing.

For further information, please contact employment@thomas-carroll.co.uk

Free Road Risk Pack for SMEs A free information pack has been published by the road safety charity, Brake, aimed specifically at helping SMEs improve the safety of staff who drive for work.

With 30% of deaths on our roads involving vehicles being driven for work, this multi-faceted management tool will be a very useful tool in helping organisations manage road risk.

For further information, please visit: http://www.brakepro.org/component/content/article/2uncategorised/279-managing-road-risk-for-smes

Risky Business

Frequently Asked Questions

Health and Safety Training Courses

What are the health risks from asbestos?

Asbestos is responsible for over 5,000 deaths every year. Younger people, if routinely exposed to asbestos fibres over time, are at greater risk of developing asbestos-related diseases than older workers. This is due to the time it takes for the body to develop symptoms after exposure to asbestos (latency).

EXPOSURE TO ASBESTOS CAN CAUSE FOUR MAIN DISEASES:

•• Mesothelioma (a cancer of the lining of

the lungs; it is always fatal and is almost exclusively caused by exposure to asbestos)

•• Asbestos-related lung cancer (which is almost always fatal)

•• Asbestosis (a scarring of the lungs which is

not always fatal but can be a very debilitating disease, greatly affecting quality of life)

•• Diffuse pleural thickening (a thickening of the

membrane surrounding the lungs which can restrict lung expansion leading to breathlessness.)

It can take anywhere between 15-60 years for any symptoms to develop after exposure, so these diseases will not affect employees immediately but may do so later in life.

Asbestos was a widely used material within commercial buildings, homes and machinery until 1999, when it was banned. This means that

asbestos is common in the general environment.

However, working directly with asbestos-containing materials (ACMs) can expose workers to much higher levels of asbestos than are found in the normal environment. Repeated occupational exposure can give rise to a substantial cumulative exposure over time. This will increase the risk of developing an asbestos-related disease in the future.

The majority of current fatal cases from asbestos exposure are associated with very high exposure levels from past industrial processes and the installation of asbestos products.

To download a free copy of the HSE’s Asbestos Essentials please visit: http://www.hse.gov.uk/pubns/books/hsg210.htm For details of asbestos awareness training courses available from Thomas Carroll, please contact Victoria Vaughan on 029 2085 3752 or at victoria.vaughan@thomas-carroll.co.uk

Myth Busters

Employment Training Courses

The HSE Myth Busters Challenge Panel provides a mechanism to independently challenge potentially disproportionate or inaccurate advice or decisions, made in the name of health and safety.

Below is an example of a recent case to go before the Myth Busters Challenge panel

DIY store says it is unable to give customer product advice ISSUE A customer in a DIY store asked for some advice on which spotlights to buy, as her electrician had given her a connection block size and she wanted to know where to look for the connection box. She also wanted some general advice on the differences between various spotlights on the shelf. The store assistant said he could not give any advice due to health and safety, because if he did and then the enquirer relied on it, and something went wrong, he would be liable.

•• Accident Reporting and Investigation •• Asbestos Awareness •• CDM Awareness •• Confined Space Entry •• Conflict Management •• COSHH Awareness •• Developing Method Statements •• Display Screen Equipment Risk Assessment •• Directing Safely •• Employee Safety Awareness •• Event Management •• Fire Warden •• Fire Safety Awareness •• Health and Safety Awareness for Line Managers •• Health and Safety Awareness for Trade Apprentices •• IOSH Managing Safely •• IOSH Managing Safely Refresher •• IOSH Working Safely •• IOSH Working Safely Refresher •• Managing Contractors •• Manual Handling Awareness •• Manual Handling Train-The-Trainer •• NEBOSH National General Certificate •• Needlestick and Sharps Awareness •• Office Safety •• Managing Permits to Work •• Principles of Risk Assessment •• Representatives of Employee Safety •• Safe Use of Ladders •• Safe Use of Work Equipment •• Stress Management •• Stress Management for Managers •• Working at Height •• Working Alone Safely

PANEL OPINION Nothing in health and safety legislation prevents shop assistants providing product information. This company has a general policy that staff do not give detailed advice on matters that they feel are technical in nature unless they are trained to do so, but they do employ an electrician part-time in store to do this.

Instead of explaining this policy to the customer or involving the electrician, the assistant gave the less than illuminating excuse of ‘health and safety’.

www.thomascarroll.co.uk

•• Employment Law Essentials •• Absence Management •• Unfair Dismissal •• Employment Law Awareness for Managers •• Recruitment and Selection •• Managing Disciplinaries and Grievances •• Age Discrimination •• Compensation and Settlement in the Industrial Tribunal •• Disability Discrimination •• Race Discrimination For further information, please contact Victoria Vaughan on 029 2085 3752 or email victoria.vaughan@thomas-carroll.co.uk

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Risky Business

In Court Company in court after worker is crushed under forklift truck A Lincolnshire transport and storage firm has been prosecuted after a father-of-two died when a metal frame being loaded onto a lorry trailer fell on top of him.

Mr Newham had moved a large metal-wheeled chassis, also known as a ‘dolly’, from the first trailer. His colleague then attempted to load the dolly onto the second trailer.

Jonathan Newham, 52, of Skegness, died in hospital from head and chest crush injuries following the incident at George H Kime and Co Ltd in Wrangle, near Boston, Lincolnshire.

For unknown reasons, Mr Newham climbed onto the second trailer. As his colleague loaded the dolly onto the trailer with the forklift, it fell off the tines of the forklift truck, trapping and fatally injuring Mr Newham underneath.

Lincoln Crown Court heard that Mr Newham and a colleague were using forklift trucks to move a consignment of goods – which were not on pallets – from the trailer to a second vehicle, as the trailer was needed elsewhere.

George H Kime and Co Ltd of Main Road, Wrangle, was fined £125,000 and ordered to pay £61,935.

After the hearing, HSE Inspector Sally Harris said:

“Mr Newham’s death was entirely avoidable and his life was needlessly lost.”

“Lifting large, heavy and awkward items requires planning by a competent person and safe systems of work.

“Lifting operations, which often present severe risks to workers, must be properly planned, controlled and adequately supervised. By taking these steps, businesses can prevent tragic incidents such as this from happening.”

Advice on the safe operation of lifting trucks is available at: http://www.hse.gov.uk/ workplacetransport/lift-trucks/index.htm

Insufficient guarding leads to serious injuries A recycling firm has been prosecuted after a 25-yearold employee had his arm broken in three places when it was drawn into unguarded machinery.

Ryan Jackson, from Rawmarsh, also suffered a cracked shoulder blade and had a radial nerve shredded to the bone in the incident, which occurred at the premises of metal recycling company C F Booth Ltd of Rotherham.

Rotherham Magistrates heard that Mr Jackson, who was relatively inexperienced, had been on his own at the time and was attempting to remove a blockage from a conveyor belt. He had believed the machine would need an electrician to restart it once it had cut out due to the blockage.

However, once he had cleared the debris, the machine started running and his arm was drawn in and badly injured.

The court heard that Mr Jackson had needed a nerve removed from his calf to try to repair the arm damage. As well as being unable to cradle his new-born child, the surgery had meant a loss of feeling in his leg. He is still on medication and has not been able to return to work since the incident.

Thomas Carroll Group plc, Pendragon House Crescent Road, Caerphilly CF83 1XX

t 029 2088 7733 www.thomascarroll.co.uk w info@thomas-carroll.co.uk e Cardiff Swansea Pembrokeshire Hereford

C F Booth Ltd was fined £15,000 and ordered to pay costs of £1,595.

After the hearing, HSE inspector Carol Downes said: “This was a horrifying incident that has left Mr Jackson with perhaps a permanent physical impairment. It also had a profound psychological impact on him at a crucial time for a young family.

Employers have a duty to ensure that machinery is properly guarded and should take steps to ensure that guards remain in place “Incidents of this kind occur all too frequently in the recycling sector and the onus is on companies, like CF Booth Ltd, to acknowledge the dangers posed by unguarded machinery in general, and tail end drums of conveyors in particular, and to take action. The company had been warned before and there can be no excuse for its subsequent failings.

“Employers have a duty to ensure that machinery is properly guarded and should take steps to ensure that guards remain in place. HSE will continue to prosecute when worker safety is compromised.”

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Disclaimer: This newsletter is designed to keep readers abreast of current developments.

It is not intended to be a comprehensive statement of law and specialist legal advice should always be sought in relation to any particular circumstance. Therefore, Thomas Carroll Management Services is unable to

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accept liability for any errors or facts or opinion contained within. * Awarded by the British Standards Institution.