EMPLOYMENT LAW • HEALTH & SAFETY
Knowledgebase Bibby Consulting & Support’s Client Risk Management Publication
Summer 2013 Edition
HSE Fee for Intervention Are you aware of the cost recovery scheme?
New Employee Shareholders Status Due to come into force this Autumn, we explain more about the new Act.
Overseas Workers CONSULTING &
SUPPORT
Your legal duty to ensure all employees have a right to work in the UK and are not in breach of Immigration Rules.
WWW.BIBBYCAS.COM
WELCOME TO THE SUMMER EDITION OF BIBBY CONSULTING & SUPPORT’S “Knowledgebase” Michael Slade, Managing Director of Bibby Consulting & Support
CONTACT BIBBY CONSULTING & SUPPORT Production: Designer Lisa Worsdale
It feels like only a week or two ago that I wrote the last Knowledgebase Welcome note. They say that time flies when you are enjoying yourself, and certainly we’ve had a lot to celebrate here at Bibby Consulting & Support. For example, in the last six months there have been some very exciting developments and new releases with our online portal “MyBibby”. These new releases are available to all of our clients and many of them at no extra cost to you whatsoever. New online services include:
Head of Marketing Katy Vaughan
›› eRAMS - A refreshed online risk assessment tool, helping you to produce risk assessments and
With thanks to:
›› Employee Module - A brand new online filing cabinet to store employee records, relevant HR
Employment Law Support Line Team Health & Safety Consultants
method statements quickly and to a consistently high standard.
documents and including alerts and reminders for actions your managers need to take, such
as annual and probationary reviews.
›› Accident Book - A new reporting tool to help you record and report on accidents across the various
locations of your business.
The team is also just a matter of days away from releasing an exciting new “Support Line” module. This will enable you to see the guidance notes from your support line advisor from within the portal, as well as an insightful reporting suite to give you greater visibility of your HR issues. So while we are hard at work making things easier for you, unfortunately legislation isn’t standing still, and we need to help you to keep up-to-date with that. However, there are some positive changes to report this time with some re-balancing of the employer-employee relationship at long last. You will see that these are covered in detail on page 7, under the Employment Law section. We have also taken the time to cover two grey areas of Health & Safety Law, including Fees for Intervention (page 16) and compliance issues when volunteering (page 20). Bibby Consulting & Support Ltd. Brunswick Court, Brunswick Street, Newcastle-under-Lyme, Staffordshire, ST5 1HH
As ever, we cover a lot of case law and changes in Knowledgebase, so if there is anything that you require clarification of, please contact the support line on 08453 100 999. We would be delighted to talk the issues through with you in more detail and prepare your business for the changes ahead.
t: 08453 100 600 f: 08453 100 650 e: enquiries@bibbycas.com w: www.bibbycas.com Support Line: 08453 100 999
BIBBY CONSULTING & SUPPORT UPDATE
03
CONTENTS
08
12
14
FEATURE ARTICLES
07
EMPLOYMENT LAW CHANGES FOR SUMMER 2013
12
11
OVERSEAS
20
HEALTH & SAFETY LEGISLATION FOR WORK
We briefly go through key
Your legal duty to ensure all
VOLUNTEERS
changes to legislation during this
employees have a right to work
Health and Safety law should
time and what benefits there are
in the UK and are not in breach
not be a barrier to volunteering
of Immigration Rules.
activities and events.
for employers.
08
EMPLOYING WORKERS FROM
NEW EMPLOYEE SHAREHOLDER STATUS
15
CLIENT PORTAL UPDATE - THE EMPLOYEE MODULE
22
WHY STRUGGLE WITH PUWER COMPLIANCE?
What is expected of the new
Bibby Consulting & Support’s
Health & Safety Consultant,
section released in The Growth
latest step in the release of
Lee Mockridge looks at the
and Infrastructure Act 2013 after
exciting new features from the
importance of monitoring work
receiving royal assent.
MyBibby portal.
equipment.
CONTRIBUTORY CONDUCT AND REDUCTION
19
26
JOB SAFETY ANALYSIS TECHNIQUES
AN INTRODUCTION TO LOSS CONTROL
What happens if an
We look at the technique of Job
Our Health and Safety
employment tribunal believes
Safety Analysis (JSA), a technique
consultant Ray Warlow explains
the behaviour of the claimant
to control accidents and loss
the concept of Loss Control.
contributes towards dismissal.
within your company.
16
COVER STORY HSE FEE FOR INTERVENTION (FFI)- AN OVERVIEW
The HSE’s Fee for Intervention (FFI) costs recovery scheme was widely publicised before it was implemented. However, particularly for the benefit of businesses who have managed to remain unaware of this important scheme, we provide an overview.
BIBBY CONSULTING & SUPPORT UPDATE
05
Employment Law Update
CASE UPDATE Compulsory retirement may be justified... In 2012, the Supreme Court remitted the case of Seddon v Clarkson Wright & Jakes back to the employment tribunal to consider various issues relating to the justification of forcing a solicitor-partner to retire at 65 years of age under the mandatory rules of the partnership. They were asked to consider if 65 years was appropriate as an age for mandatory retirement or if another age such as 68 or 70 should be used. The Employment Tribunal duly did as they were asked and found that the respondents’ aims, including retention and planning were justified and that a mandatory retirement age achieved the aims of the respondent company. Therefore a mandatory retirement age of 65 was a proportionate means of achieving their aims.
DISABILITY & REASONABLE ADJUSTMENTS UNFAIR DISMISSAL OF SCHOOL TEACHER SUFFERING FROM ASPERGERS A Schoolteacher who suffered from Asperger
The Tribunal decided that he was dismissed
syndrome was found by an Employment
because a view was taken that he was not
Tribunal to have been unfairly dismissed and
capable of carrying out a teacher’s role to
discriminated against because of his disability.
the standard required which had come about following his diagnosis and this was
The teacher had changed from a career
discrimination. No reasonable adjustments had
in financial services to teaching design,
been made to help him meet the standards
engineering and technology. He had
required.
Employers should note however, that each case of age discrimination where there is a mandatory retirement age will be considered individually, and justification will depend on specific facts relating to the particular employer.
interpersonal difficulties with pupils, staff
In addition, the decision in Seddon was based on information from 2006 which was before the abolition of the default retirement age and according to the decision of the Employment Tribunal it is possible that should a similar claim be lodged today, it may be
with bad behaviour and the other teachers were
decided differently.
and management and he suffered stress
This is a salutary lesson for employers who are
and depression which led to his absence.
faced with poor performing employees who
Complaints were made about his teaching
have recognised syndromes such as Aspergers.
manner; he was rigid and rule-based whereas
In such cases, employers are under a duty to
other teachers were more flexible.
look to see if they are able to take measures to assist the employees by making any reasonable
He believed that he was taking steps to deal not following the correct rules. When he went
Failure to do so can be extremely costly as there
off sick, he was due to be investigated about his
is no cap on compensation for discrimination
professional performance.
cases.
When he returned, the problems continued and he was placed on medical suspension. After a year’s medical suspension he was transferred
MORE INFORMATION
to a different campus but more issues arose with his teaching and he was diagnosed with Asperger Syndrome. His contract was eventually terminated.
06 BIBBY CONSULTING & SUPPORT UPDATE
adjustments to accommodate these disabilities.
If you are unsure how any of these subjects affect you, please contact our Support Line on: 08453 100 999
www.bibbycas.com
EMPLOYMENT LAW CHANGES SUMMER 2013
›› Type B: an Issue fee of £250 and a hearing
POTENTIAL GOOD NEWS FOR EMPLOYERS WITH NEW CHANGES
Fee of £950 for most types of claims
including unfair dismissal, discrimination
and whistleblowing.
Employment Law changes due to come in this
The proposal that employers will be held
Employment Appeal Tribunal Fees:
Summer 2013:
vicariously liable for any employee who
›› Appellant pays: £400 following the receipt
subjects a fellow employee to unfavourable
by the EAT of the notice of appeal and then
33 12-month cap on unfair dismissal
treatment for whistleblowing has not come
£1,200 payable on the date specified,
compensation awards of £74,000 or 1 year’s
into force and is likely to come in later this
following Direction by the EAT that a matter
pay, whichever is the lower.
year or early 2014.
will proceed to an oral hearing.
33 Settlement Agreements (formerly
33 Zero qualifying period for unfair dismissal
Compromise Agreements) - employers will
have more freedom to have discussions
affiliation.
with employees about termination
Schedules of the Employment Tribunals and
settlement packages without the risk of
These changes are potentially a good move for
the Employment Appeal Tribunals Fees
those conversations being used as evidence
employers.
Order 2013.
against them in a subsequent unfair
dismissal claim.
In addition to this, there is further good
This introduction will be welcomed by many
Employment Law news as the HM Courts &
employers and hopefully deter thousands of
33 Judges will have the power to dismiss cases
Tribunal Service announces that tribunal and
disgruntled employees from lodging claims
at a much earlier stage where they have
appeals fees will be introduced on the 29th July,
with little or no prospect of success. UNISON
little or no prospect of success. The
2013. This will mean that anyone who lodges a
have launched a legal challenge to these fees,
government has put off for the time being,
claim, unless their application for fee remission
see the article on page 11 for further details.
the proposal that non-judges should deal
is accepted, will be liable to pay the following:
with very straightforward claims such as
unpaid notice or holiday pay.
33 Amendments to whistleblowing laws to
remove the requirement for claims to be
made in good faith but they must be in
the public interest was to come into force
25th June.
›› Judicial mediation will cost £600.
claims relating to political beliefs or ›› Fees for other ET procedures can be found in
It is worth remembering that some claimants Employment Tribunal Fees:
may qualify for a fee remission. This means that
›› Type A: an Issue Fee of £160 and a Hearing
in some cases the employee may not have to
Fee of £230 for straightforward claims such
pay, but the simple notion of claims no longer
as unlawful deductions and statutory
being free for all, is great news for employers
redundancy payments.
at last.
NATIONAL MINIMUM WAGE RATES CHANGING IN OCTOBER 2013 GOVERNMENT APPROVES NEW NATIONAL MINIMUM WAGE RATE OF £6.31 Employee
From 1st October 2013
Previously
21 and over
£6.31 per hour
£6.19 per hour
18-20
£5.03 per hour
£4.98 per hour
16-17
£3.72 per hour
£3.68 per hour
Apprentices (under 19 or between 19-26 and in their first year of apprenticeship)
£2.68 per hour
£2.65 per hour
Accommodation Allowance (Max deduction for NMW purposes)
£4.91 per day (£34.37 per week)
£4.82 per day (£33.74 per week)
BIBBY CONSULTING & SUPPORT UPDATE
07
Employment Law Update
“ In future, the employer will be able to make a job offer providing the applicant agrees to become an employee shareholder. �
www.bibbycas.com
In this case it may be possible that the transferring employee shareholder has to surrender their shares before they transfer.
New Employee Shareholders Status The Growth and Infrastructure Act 2013 received royal assent on 25th April, 2013. The Act introduces a third type of employment status in addition to employee and worker, being the “employee shareholder”, which is due to come into force this Autumn. The Act introduces a new section 205A to the Employment Rights Act 1996 (ERA), whereby employees of any company with share capital, can trade some of their employment rights for fully paid-up company shares that have a value of no less than £2,000 on the day of issue. They then become “employee shareholders.” Shares up to a maximum of £50,000 will be exempt from Capital Gains Tax. The rights the employee can exchange for these shares are: ›› Not to be unfairly dismissed; ›› To receive a redundancy payment; ›› To request to undertake study or training; and ›› To request flexible working. In addition, employee shareholders will have to give an increased 16 weeks’ notice before returning to work early after maternity, parental, paternity, or adoption leave. However, employee shareholders will still have the right to claim unfair dismissal where their dismissal breaches the Equality Act 2010 or health and safety legislation or is automatically unfair under the ERA. In future, the employer will be able to make a job offer providing the applicant agrees to become an employee shareholder. If an applicant refuses to do so, the employer can withdraw the job offer.
In order for the employee’s acceptance of the employee shareholder job offer to be valid, the employer must have provided the employee with a statement of particulars, setting out the following: ›› The rights the employee shareholder is giving up; ››
The rights attached to the shares, e.g. voting, dividend, and ability to participate in the distribution of any surplus assets on winding up;
›› Whether there are any restrictions on the transferability of the shares; ›› Whether the employee shares are subject to drag-along rights or tag-along rights. There will be a seven-day “cooling off” period, during which time the employee can withdraw their agreement at any time, so any acceptance they may have already given will not be binding. The employer will also have to provide and pay for independent legal advice for employees about the new status before the employee is able to accept. If an employee refuses to accept an offer to become an employee shareholder, they must not be subject to a detriment by the employee and the dismissal of an employee for refusing to become an employee shareholder will be deemed unfair. It is not clear what will happen in a TUPE situation, for example when a business is sold, where an employee shareholders transfer across to a new employer who does not operate an employee shareholder scheme or does not have any share capital.
They would then regain their full employment rights with this new employer. However, this is just a theory at the moment and there is a requirement for the Government to provide further guidance in this area to help clarify exactly what should happen. When the employment contract is terminated, the company can buy back the shares from the employee shareholder. However, at present, there is no guidance about any conditions that have to be satisfied before and employer buys back these shares. So again, there is a need for the Government to provide some guidance in this area. There is also a risk that the new employee shareholder status could cause a two-tier workforce where there are non-employee shareholders already in the workforce who do not want to change to the new status. This could prove a problem where the employee shareholders are faced with enforced contractual changes and other less favourable treatment to their non-employee shareholder colleagues, who would still be able to make constructive unfair dismissal claims. On a positive note, employers could select only employee shareholders for redundancy in the future, as they could not claim unfair dismissal or redundancy payments (providing there is no element of discrimination). The additional burdens of cost and administration for the employer in using the new employee shareholder status in order to avoid straightforward unfair dismissal claims, redundancy payments and having to consider employees’ requests for flexible working or training, may well outweigh the proposed benefits. Employees will still have the right to make claims for discrimination, or breaches of health and safety legislation and even where the employee does not have the right to claim unfair dismissal and redundancy payments, they will still have the right to make a claim for failure by the employer to inform and consult in both Redundancy and Transfer of Undertakings situations as there is no specific mention of it in the regulations.
BIBBY CONSULTING & SUPPORT UPDATE
09
Employment Law Update
CASE UPDATE Pension Contributions do not amount to Wages for the purposes of unlawful deductions of wages... In the case of Somerset County Council v Chambers, the Employment Appeal Tribunal stated that even though the
Case Updates In this edition of Knowledgebase, Compliance Officer, Tracy Winter, updates us on recent case law..
definition in s 27 (1) (a) of the Employment Rights Act 1996 states that ‘wages’ meant “any sums payable to the
THE OBLIGATION TO INFORM AND CONSULT
worker in connection with
WHEN SHOULD EMPLOYERS DO SO REGARDING TUPE?
his employment”, these sums did not include contributions paid to a pension provider on the employee’s behalf by the employer.
As many employers are aware, TUPE Regulations
The Employment Appeal Tribunal however
place a very strict obligation on employers
disagreed and overturned the Employment
to inform and consult with those employees
Tribunal’s judgement.
affected by a TUPE transfer. They said that the law requires something Employers failing to do this may face a fine of
more than just part of a business in which the
up to 13 week’s pay for each affected employee.
employee is employed being made less viable
In the recent case of I Lab Facilities v Metcalfe
by virtue of the sale of the other part. The
and others, the employer was faced with an
employee must be carrying out some element
insolvency situation. The company had two
of work within the business which is to be
separate parts providing services to the film and
transferred.
TV industry. This is a useful case for employers in both There were two main parts to the business:
insolvency and non-insolvency cases, where
‘rushes’ work (first version filming typically
only part of a business is being sold but leaving
produced overnight) and ‘post-production’
other employees behind.
work. The central activities of these parts were quite different and staff worked, subject to a
Because it makes it clear that if these employees
few exceptions, in different premises, doing
are not directly affected by the transfer, then
different kinds of work at different hours
there is no duty to inform and consult with
although there was a bit of an overlap in terms
them as well as clarifying that there is no duty
of pooling resources and access to clients.
to inform and consult if there is an intended transfer that does not actually materialise, thus
The company was contemplating selling both
saving time and additional administration.
parts, but eventually only one part was sold and the post-production part was closed down. The claimants were employed in this part and they were made redundant. They claimed to the Employment Tribunal that they were affected employees and should have been informed and consulted. The Employment Tribunal agreed.
10 BIBBY CONSULTING & SUPPORT UPDATE
EMPLOYMENT LAW TRAINING For more information on our HR and Employment Law Training Courses, please call our Training Department on: 08453 100 600
www.bibbycas.com
ENFORCEMENTS OF RESTRICTIVE COVENANTS THE RISK OF ENFORCING IF EMPLOYEE HAS BEEN UNFAIRLY DISMISSED Restrictive Covenants are notoriously difficult to enforce; however, it is possible to rely on a welldrafted, and very specific clause in certain areas of the business world. The High Court case of
NEWS UPDATE UNISON launch legal challenge to the introduction of Tribunal Fees
Romero Insurance Brokers v Templeton is an interesting reminder that sometimes a Court will enforce UNISON are going to apply to
a restrictive covenant.
the High Court for a Judicial In this case, the employee had a contractual clause stating that for a period of 12 months following
Review of the Government’s
termination of his employment, he would not procure orders from, or do business with, a client of
decision to introduce
the employer with whom he had dealt within the last 6 months of his employment.
Employment Tribunal and Employment Appeal Tribunal
The judge concluded that the covenant was reasonably necessary in the context of the insurance
Fees. They argue that the
industry, where normally renewals take place on an annual basis. He granted Romero an injunction
introduction of the charges will
to enforce this restrictive covenant.
make it “virtually impossible” for most workers to exercise their
Part of the decision was based on the failure of the employee’s claim that he had been
employment rights.
constructively dismissed and although there was no express comment in this case that the employer who repudiates an employee’s contract (giving him grounds for a constructive dismissal
They argue that the fee
claim) will not be able to enforce restrictive covenants, the Judgement inferred that this would be
introduction will prevent
the case. Employers should bear in mind that even if restrictive covenants are carefully drafted, they
workers exercising their EU
still risk being unenforceable if the employee has been unfairly dismissed.
rights, breaches the EU principle of equivalence, will have a
CONTRIBUTORY CONDUCT AND REDUCTION IF A CLAIMANT’S BEHAVIOUR CONTRIBUTES TOWARDS DISMISSAL
disproportionate adverse impact on women and there has been no proper assessment of the public sector equality duty. The Government has
Employment Tribunals can, if they wish, make
unfair but the Employment Tribunal held that it
already stated that they do not
no award at all to a successful claimant if they
was not just and equitable to award him either
believe that the fees breach EU
believe that the behaviour of the claimant had
a basic or a compensatory award due to his
legislation or they would lead
contributed towards their dismissal.
conduct.
to indirect discrimination, so it
This is what happened in the case of Ladrick
The EAT agreed and set out the following
Lemonious v Church Commissioners and when he
principles: Firstly it is justifiable to reduce an
appealed to the Employment Appeal Tribunal
award by 100% for contributory conduct even if
(EAT), they confirmed that both the basic award
there were procedural failings by the employer,
and the compensatory award could be reduced
providing these did not cause or contribute to
to zero where the Employment Tribunal felt that
the dismissal. Secondly, the tribunal may reduce
it was just and equitable to do so.
the basic award to nil by virtue of the Claimant’s
will be now up to the Courts to
conduct. Mr Lemonious, who had been employed for over 36 years, was dismissed because he
Employers should note that it very rare for a
sent emails in the name of other employees,
Tribunal to make a reduction of 100 percent.
including one that wrongly implied that a
However, they often look at contributory
colleague had committed a criminal offence.
conduct and will reduce an award, depending
When confronted with the incident, he then
on how seriously they view the conduct, to
lied about sending the e-mails and attempted
reflect this. This is a useful negotiating point
to implicate other employees. His dismissal for
for employers if they are unlucky enough to be
Gross Misconduct was found to be procedurally
faced with a tribunal claim.
decide.
ONLINE UPDATES Read our Latest News Articles online to keep up-to-date on Employment Law and Health & Safety Industry News.
BIBBY CONSULTING & SUPPORT UPDATE
11
Employment Law Update
THE IMPLICATIONS OF EMPLOYING WORKERS FROM OVERSEAS CASES INVOLVING DISMISSAL OF WORKERS WHO NO LONGER HAVE A RIGHT TO WORK IN THE UK Employers have a legal duty to ensure that all their employees have a right to work in the UK and are not in breach of Immigration Rules.
However, employers should note that the Court of appeal went on to say that if an employee whose leave to remain in the UK has expired and has made a valid in-time
It is an offence to employ anyone over 16 who
Her late application was returned by UK Border
application to extend their leave, they will be
is subject to immigration control in the United
Agency because she had difficulty proving she
entitled to remain and work in the UK until their
Kingdom, and either has not been granted
was still with her husband so she reapplied.
application is properly determined.
or, having been granted leave, that leave is no
The company dismissed her a month after this,
Employers faced with this sort of situation,
longer valid or subject to a condition precluding
on the basis she could not demonstrate she had
should check to see if the employee applied
them from taking up the employment or
the right to work in the UK. The Employment
for their visa before or after it expired and if
subject to special conditions that are not being
Tribunal held that the dismissal was fair.
the application was in time, they should then
leave to enter or remain in the United Kingdom
satisfied.
wait until the outcome of the application is The claimant had let her visa expire and she
determined before taking any action.
In the case of Winful v Whitbread Group plc.
had been unable to demonstrate that she had
the employer, a large company, believed it
the right to work in the UK at the date she
In addition, it is important to follow a fair
had to dismiss a Ghanian worker married to an
was dismissed and the employer reasonably
procedure before any decision is made to
EEA national, who let her visa expire, despite
believed that it was acting illegally in
dismiss.
being warned by the company shortly before
continuing to employ her.
it expired, that she needed to show the proper documentation to prove that she had the right
The Tribunal considered the Court of Appeal
to continue to work in the UK.
decision in Klusova v London Borough of
MORE INFORMATION
Hounslow; that it can be fair to dismiss a worker She was advised that if she could not provide
who no longer has the legal right to work in
the documentation she could not continue her
the UK.
employment with the company.
12 BIBBY CONSULTING & SUPPORT UPDATE
If you are unsure how any of these subjects affect you, please contact our Support Line on: 08453 100 999
www.bibbycas.com
CHANGES TO DISCLOSURE & BARRING SCHEME UPDATE ON FILTERING RULES WILL IMPROVE RIGHT TO PRIVACY From 29th May 2013, due to changes in
If a person has more than one offence, then
legislation, the DBS will be removing certain
details of all their convictions will always be
specified old and minor offences from criminal
Included.
record certificates issued from this date. Adult cautions will be removed after 6 years The new filtering rules state that an adult
have elapsed since the date of caution, 2 years
conviction will be removed from a DBS criminal
for those under 18 at the time of the offence.
record certificate if:
A list of all offences that will never be filtered is
›› 11 years have elapsed since the date of
conviction (5.5 years for those under 18 at
the time of the offence); and
available on the DBS website. This should go some way to address the issue raised by the Court of Appeal’s ruling
›› It is the person’s only offence; and
in January this year, when it held that the
›› It did not result in a custodial sentence.
previous system, whereby the individual had
Even then, it will only removed if it does not
employers including cautions and warnings,
appear on the list of offences relevant to safeguarding.
to disclose all previous convictions to some was disproportionate and incompatible with the right to private and family life.
DISCLOSURE AND BARRING SERVICE NEW SYSTEM HOPES TO SAVE EMPLOYERS TIME AND MONEY Good news for employers - from 17th June
Employers will be able to carry out instant
a new service will mean that employees can
online checks of an individual’s certificate
apply to have their criminal record check kept
(providing they consent) to check that it is
up-to-date and employers will be able to
up-to-date. This is free of charge and only
check online if the information released is still
if the system states that something has
current and valid. Individuals will also be able to
changed, would the employer have to seek
challenge the information released by the DBS
a new criminal record check for an individual
before it is seen by their current or prospective
subscribing to the service.
employer. The DBS will no longer send a copy of an Individuals will also be able to challenge the
individual’s DBS certificate to Registered
information released by the DBS before it is
Bodies, which may cause them some concern,
seen by their current or prospective employer.
but according to the DBS, it is following the Government’s aim to put the individual in
From this date, individuals applying for their
greater control of their own data.
next criminal record check can pay £13 per year for an update service which will allow them to
Hopefully this new system will save employers
keep their criminal record certificate up-to-date,
a lot of time and money. If you want to know
allowing them to take it with them from role to
more about it, please call our Support Line on
role within the same workforce.
08453 100 999.
BIBBY CONSULTING & SUPPORT UPDATE
13
Employment Law Update
GOVERNMENT ANNOUNCE CASTE AS PART OF RACE DISCRIMINATION CASTE TO BE INCLUDED IN THE EQUALITY ACT AS A SPECIFIC ACT OF RACE DISCRIMINATION The Government has announced that Caste
Caste is associated primarily with cultures of the
It is yet to be seen how Caste will be defined by
will be included in the Equality Act as a specific
Indian Sub-continent. It is believed that there
the Government or interpreted by the courts
aspect of race for the purpose of discrimination
are presently up to 400,000 Dalit – the so-called
and tribunals, but it is hoped that employers
claims and will be introduced under S.97 of the
‘untouchables’ at the bottom of the Hindu caste
will be given clear guidance, rather than the
Enterprise and Regulatory Act, which amends
system, living in the UK.
definition being left to judicial interpretation.
S.9(5) of the Equality Act 2010. The Caste system is rigid. It is not possible to Consultation on the issue and extent of Caste
move from a lower caste to a higher one. It is a
discrimination will be carried out before the
well-defined, identifiable characteristic and the
legislation comes into force by April 2015. From
Caste an individual is born into stays the same
that time any discrimination on grounds of
for life.
Caste will be deemed race discrimination. There have been cases where individuals The Government did not include Caste in the
have been discriminated against at work on
original Equality Act 2010 due to inconclusive
grounds of Caste, but the present employment
evidence and the diverse nature of Caste which
legislation does not cover them. Once the
was not well understood in the UK.
legislation comes into force, they will have protection.
They believe that this is still the case and for this reason, they will review this legislation in 5 years’ time to see if it is still necessary and may repeal it if it is shown not to be needed any more.
LEGAL OBLIGATIONS ON COLLECTIVE REDUNDANCY
WHAT EMPLOYERS NEED TO DO WHEN DISMISSING 20 OR MORE STAFF IN AN ESTABLISHMENT For any employer proposing to dismiss 20 or more employees at one establishment as redundant within a period of 90 days or less, there is a legal obligation to collectively consult with the appropriate representatives of the affected employees. They must also notify the Department for Business Innovation and Skills (BIS) of the proposed redundancies using an HR1 form. This HR1 form must be submitted 30 days before the first redundancy dismissal takes place where it is proposed that 20-99 employees will be made redundant or 90 days where 100 or more redundancies are proposed. Failure to submit this form without good reason is a criminal offence and carries a fine of up to £5,000. Normally, employers will collectively consult with a recognised trade union or hold elections for employee representatives. However in some cases, rather than follow the election process, the employer may, in order to save time, be tempted to try to use some other employee representative body. The decision of the Employment Appeal Tribunal (EAT) in the case of Kelly and another v The Helsey Group Ltd is a timely reminder to employers that they need to ensure that such a consultative body has the authority to be consulted on the affected employees’ behalf in the redundancy consultation process. The EAT stated that employers must be sure that such bodies have the authority of all the affected employees and the burden is on the employer to prove that the chosen body has sufficient authority. If they are unable to do this, a tribunal could order protected awards of up to 90 days’ pay for each affected employee.
14 BIBBY CONSULTING & SUPPORT UPDATE
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MyBibby Update: The Employee Module Bibby Consulting & Support adds new, exciting HR functionality to the updated client portal In case you weren’t aware, Bibby Consulting &
Benefit and Equipment Tracking
Getting Data In and Out
Support’s Employee Module is the latest step in
Assign benefits and company equipment to
You can use our quick add function to get a new
the release of exciting new features which you
each of your employees to enable you to track
employee set up in just 5 simple steps, or if you
can access from your MyBibby portal.
your assets.
have your employee data in another system
This new functionality is aimed at people in
Help with Right to Work
senior HR roles or Directors with responsibility
A secure place to upload key documentation to
for HR, getting you ever-closer to a 360-degree
help prevent illegal working and comply with
You can also export your employee data too, so
view of your employees.
the UK Border Agency (now part of the Home
don’t worry that things will be tied in. We can
Office).
provide technical help to you in both instances
such as payroll, you won’t need to add this in
Keep employee data up-to-date
again, you can just use our simple import tool.
if you need assistance.
From anywhere in the world, you can log into a
Things to Consider
secure portal to access your employee records
If you choose to give access to someone for
How to get started?
and keep their details up-to-date.
this module, remember that they will see
Just let us know who in your business you want
confidential employee data, so only give this
to give access to this feature.
A secure filing cabinet
role to someone who you trust.
Upload confidential files or copies of letters that
If you are not yet a client, you can do this when
you have issued to your employees to provide
Don’t forget that if their role changes and
you sign your contract with us, or if you are an
you with a central place to access everything
they no longer need to see HR details as part
existing client you can do this by requesting an
you need, even when you are out of the office.
of their job, you must remove their access to
engagement letter from the Marketing team on:
this module. You can do this by changing their
08453 100 600.
Alerts & Reminders
security setting in the User section of the menu.
Always remember to complete probationary and annual reviews, ensuring that performance issues are formally addressed in a timely manner.
BIBBY CONSULTING & SUPPORT UPDATE
15
Health & Safety Update
One common failing is when machinery is purchased from the European Union; the machinery can often be CE-marked but, in reality, still be inadequately guarded. Poorly managed Transport: Poor pedestrian and
HSE Fee For Intervention (FFI)An Overview
transport segregation is another area where major incidents commonly occur. Issues include forklift trucks operated in poorly-lit warehouses with poorly-marked means of egress and access and, loading and unloading of vehicles in sheds where, over time, adherence to written safe procedures has lapsed. Transport accidents often result in fatalities, and the HSE’s work will undoubtedly involve pre-incident preventative work, focussing on transport plans and proper training programmes.
By Peter Harrower, Regional Health & Safety Consultant Asbestos: Although asbestos legislation has The HSE’s Fee For Intervention (FFI) costs
What “breaches” are they likely to look for?
recovery scheme was widely publicised
The HSE website identifies nine ‘basic health
before it was implemented from 1st October
and safety mistakes’ it considers is crippling
2012. However, particularly for the benefit
British industry. From this, it is reasonable
of businesses who have managed to remain
to presume that discovery of any of these
unaware of this important scheme, we provide
activities/conditions when visiting a business
an overview.
is likely to result in a ‘material breach’ being identified.
Under the scheme introduced from 1st October 2012, businesses considered in “material breach”
Poorly maintained or misused ladders: Ladders
of health and safety law are liable to pay the
are frequently misused as a place of work rather
HSE’s costs.
than as a method of access. Employers need to monitor ladder usage and ensure they are
The scheme allows the HSE to charge an hourly
properly maintained.
rate for “all work needed to identify a material breach and all work to ensure the breach is
Dangerous work at height: This can include
remedied”. This will include writing letters and
unsafe scaffolds, inadequately planned roofing
reports, taking statements, follow-up work
operations, and improper access methods.
to ensure compliance including site visits,
Clearly, duty-holders need to think seriously
phone calls, email correspondence, gathering
about proper safeguards, such as edge
information/evidence and so on.
protection, harnesses and safety nets, as the HSE will almost certainly issue FFI notices in
What is a “material breach”?
cases where such precautions are missing,
The HSE guidance defines a “material breach”
regardless of whether or not an incident has
as when the contravention of health and safety
occurred.
law is such that the HSE inspector is required to issue the duty-holder with a written notice
Inadequate or lack of Guarding: There have
confirming the breach and setting out what law,
been many fatality cases and serious non-fatal
in his/her opinion, has been breached and why
cases involving some quite horrific injuries,
this opinion is held.
following failure to properly guard.
16 BIBBY CONSULTING & SUPPORT UPDATE
prohibited the use of asbestos-containing materials (ACM’s) since the turn of the century, more than half a million public buildings still contain the substance. Significant exposure incidents are likely to continue to result in prosecution, but the HSE will be sure to continue to monitor the existence of proper registers and good communications with contractors, as well as ensuring that the correct notification is given at the correct time, for removal work. Hand-arm vibrating tools: The HSE estimates up to one million workers are exposed to vibrating tools, which could detrimentally affect their health. Employers must comply with specific requirements under the Control of Vibration at Work Regulations 2005 in situations where exposure is at action levels. The potential is that advice given to duty-holders on occupationalhealth surveillance could form a key area of FFI interaction. Inspector activity since the scheme commenced: Publicly released data shows that the HSE issued receipts totalling just over £700,000 in the first two months of the scheme, arising from 1,419 issued FFI invoices. 10% of the invoices were for values greater than £1000, 70% for less than £500 — with about 30% billing less than £200.
www.bibbycas.com
On the basis that it has invoiced for £727,000 (in two months), the revenue for a year would be approximately £4.3 million. An HSE spokesperson warned, however, that it is too early to draw conclusions on what the typical level of receipts from FFI will be.
“ Businesses considered in “material breach” of health and safety law are liable to pay the HSE’s costs. ”
Cause for concern There is significant concern being voiced that HSE inspectors will be under pressure to generate income under the scheme and will formalise their opinion in writing where in the past they may have given informal verbal advice. This in many ways will be something which is out of a business’ hands, and, the main concern may instead be to reduce the cost to them when the scheme is triggered. Safety professionals have long opined that one of the most cost-effective measures is take pre-emptive / preventative action as opposed to reactive action. This may become an ever more crucial strategy. Having engaged Bibby Consulting and Support to advise you, you are already on the track of prevention but, it is vital that you follow up on the advice provided by your consultant. The simplest way to reduce the cost to the business if a material breach is identified by an inspector is to remedy the breach as soon as possible. Clearly, the less work the HSE has to do then the less the business will have to pay. Appeals Procedure It was originally suggested that the appeals procedure would consist merely of a review by an HSE manager. However, following concerns voiced over this plan, the dispute process was revised and divided and now consists of two stages, albeit the first stage still being a review by a HSE manager. The reviewing manager will be independent from the department who issued the fee. In the event that a duty-holder is not satisfied with the outcome, a second stage is available which ensures a review by a panel comprising HSE employees and an independent business representative.
BIBBY CONSULTING & SUPPORT UPDATE
17
Health & Safety Update
NEWS UPDATE Over-the-top safety fears are a custard pie in the face… A custard pie fight to be held at a summer baking festival was deemed “too risky” by a number of insurers. The event was held during Bakewell’s first baking festival in Derbyshire in June, but the town’s Mayor Paul Morgans had considerable difficulty getting insurance for the “fight”, despite contacting several companies because it was conceived as being ‘too dangerous’. Good sense has since prevailed as the Health and Safety Executive (HSE) have responded to the case branding the whole situation as a ‘pantomime’. They went onto add that there are “no health and safety reasons to stop a good old fashioned custard pie fight. It’s hard to imagine what risks would render such harmless fun uninsurable. We think this over the top risk aversion should be greeted with a big boo.” The Health and Safety Team at Bibby Consulting & Support wholeheartedly support the HSE. Department Head, Pete Doyle said “Such exaggerated concerns over Health and Safety are stepping away from its true common sense approach. As a supplier of Health and Safety support to thousands of businesses, we get extremely frustrated when people wrongly use Health and Safety as a reason to stop innocent activities from happening. The insurers in this case really should have known better.”
UNREGISTERED GAS FITTER PROSECUTED WILTSHIRE FITTER CARRIES OUT ILLEGAL AND UNSAFE WORK An unregistered gas fitter from Westbury,
Those who undertake gas work must be on the
Wiltshire has been prosecuted for carrying out
Gas Safe Register and be competent to carry
illegal and unsafe gas work after falsely claiming
out such work.
to be on the Gas Safe Register. Anyone who works on gas appliances without The fitter appeared before North Wiltshire
being registered is breaking the law. Ken Pirie
Magistrates in April 2013 regarding work
knew this and falsely claimed to be Gas Safe
carried out in March 2012 on a gas boiler. He
registered to compensate. Yet he clearly wasn’t
pleaded guilty to three separate breaches of the
competent, as his unsafe handiwork testified.
Gas Safety (Installation and Use) Regulations
This case highlights the need for householders
1998 and was sentenced to 80 hours unpaid
to check the credentials of anyone working at
community service and was also ordered to pay
their property, especially where gas is involved .“
£450 compensation to the householder and £1,000 towards prosecution costs.
Register, said: Although the fitter claimed to be qualified to
“Every Gas Safe registered engineer has an ID
carry out work on gas appliances, the Health
card which shows who they are and the type of
and Safety Executive (HSE), investigated him
work they are qualified to carry out. Customers
and established that he wasn’t registered with
should ask to see this and check the engineer is
Gas Safe – a legal requirement for anyone
qualified to do the job in hand.
undertaking such work. You can also check your engineer by calling An investigator from Gas Safe Register informed
us on 0800 408 5500 or by visiting www.
the Magistrates that he went to the domestic
gassaferegister.co.uk.”
address in June 2012 following complaints from the householder. It was discovered that work had been done to the boiler that breached specifications for gas appliances and could be classed as unsafe. After the hearing, HSE
ONLINE UPDATES
Inspector Andy Shaw said: “Incorrectly fitted gas appliances can be highly dangerous and can lead to loss of life.
18 BIBBY CONSULTING & SUPPORT UPDATE
Russell Kramer, Chief Executive of Gas Safe
Read our Latest News Articles online to keep up-to-date on Employment Law and Health & Safety Industry News.
www.bibbycas.com
JOB SAFETY ANALYSIS HEALTH & SAFETY CONSULTANT, RAY WARLOW EXPLAINS THE PRINCIPLES BEHIND THIS TECHNIQUE There are many safety management techniques
The Method: The working practices and
›› The mapping out of all of the details of a job
which the Safety or Loss Prevention Manager
procedures of the job being analysed.
or operation so that they may be studied
and restudied as necessary.
is expected to use to control accidents and loss within his company. One of these ‘tools’ is the technique of Job Safety Analysis (JSA), a technique that has been in existence for many years, but misunderstood and underused.
The Machine: The machine tools being employed; there may be several involved at different stages of the job. The Material: The substances and articles, other than machine tools employed in the process.
JSA is concerned with investigating the hazards of a given job or operation. The fundamental
The Analysis
principles employed are exactly the same as
The JSA analyst examines each step of the job
for other forms of analysis, except that in this
process from its very beginning; this being used
case, each step of the job is being analysed to
to see if any of these can be responsible for the
unearth the potential and probable causes of
occurrence of accidents. If he finds a step that is
accidents. There are three basic steps involved in conducting a job safety analysis, they are: 1. Breaking the job down into simple and
elementary steps.
2. Listing those steps in a proper and logical
order or sequence.
3. The critical examination of each step for
potential hazards.
When conducting an analysis, the analyst should bear two things in mind: 1. The purpose of the JSA is to determine the
›› The technique is both factual and objective
and the results can be used with confidence.
›› The analysis permits a ready comparison of
methods and demonstrates clearly the type
and potential severity of the hazards of
specific jobs before accidents occur.
›› Presenting a picture of the effect on
production that safety procedures, practices
and equipment will have, allowing the
engineer to discern and improve the
potentially hazardous, he notes, alongside the
productivity of an operation.
particular step description, the type of accident
›› Being an aid in showing management
that is likely to be caused. The description may
that properly designed safety features do
include the type of injury and part of the body
not necessarily hinder output and that such
likely to be affected.
features may in fact improve efficiency.
The analyst therefore produces a record of:
›› Assisting in the thorough investigation of
the work methods and practices involved in
1. The steps of the job in an order or sequence.
those accidents in which the causes
2. Those steps in the sequence which may
are obscure by providing a source of reliable
reference data for comparison purposes.
prove to be hazardous.
3. The type(s) of injury that may be expected if
steps are not taken to prevent them.
Job safety analysis, when undertaken, is useful enough on its own as a means of identifying the
hazard potential involved in the job;
4. Tools, aids & equipment used at each step
therefore the primary objective is that of
5. The safety precautions, working practices
eliminating those particular hazards, rather
and protective equipment required to avoid
than to merely provide methods of guarding
A means of capturing any safety analysis would
accidents and injury.
against them.
be extremely useful when completing your Risk
hazard potential of any job or process.
Assessments and Safe Systems of Work (Method
2. By eliminating the hazardous steps involved
On completion of analysis, the potential hazards
Statements in the construction industry), as
in a job the total number of steps may be
discovered, together with safety practices
it will help your organisation to demonstrate
reduced; therefore not only will the task
and procedures, should be agreed with the
that you have considered various scenarios and
be made safer but it may also be done more
operator(s), supervisors and management.
acted upon them.
efficiently as well. A review of all analyses should be conducted
Bibby Consulting & Support provide our own
There are four aspects to a job safety analysis
periodically; such as an annual review. If jobs
electronic system for recording and creating
that should always be considered. It is helpful
change in between periodic reviews, then
Risk Assessments (eRAMS), that is beneficial to
therefore to think of a JSA as a square, each side
further analyses should be conducted to ensure
organisations as it helps to capture and record
representing a different aspect of the analysis.
a full assessment of the potential hazards that
hazards identified with the various controls put
may have been created by the change.
in place for future or further reference. If you
The Man: A representative word that includes
require any assistance/advice on how to use this
all or any one of the following: The operator,
Benefits
system please contact your Consultant or call us
adjacent employees, the supervisor, other
The advantages and benefits to be gained
on 08453 100 600.
persons who may be responsible for safety on
from a job safety analysis are many and varied,
the job.
including:
BIBBY CONSULTING & SUPPORT UPDATE
19
Health & Safety Update
HOW HEALTH & SAFETY LEGISLATION APPLIES TO WORK VOLUNTEERS DO YOU USE ORGANISATION VOLUNTEERS? WILL HEALTH & SAFETY LEGISLATION APPLY TO THEM? With over 20 million people every year
Information should be made available
Does the Data Protection Act apply to
volunteering, the work of voluntary
on support and supervision, as well as an
volunteers?
organisations and individual volunteers makes a
outline of the different volunteer roles and
Yes. Volunteers have the same rights under the
valuable contribution to our society and to the
activities available. In addition, this document
Data Protection Act as employees. This means
everyday lives of millions around the world.
should include insurance, health and safety
the organisation must comply with rules on
and confidentiality policies as well as equal
personal data held on a computer or in paper
opportunities and diversity.
files.
and stopping people from volunteering.
The HSE recommend that ‘In general, the
Risk Assessments
Health and Safety law should not and is not a
same health and safety standards should be
An employer’s legal duty to do a risk assessment
barrier to volunteering activities and events.
applied to voluntary workers as they would
is one that often causes concern. This isn’t about
to employees exposed to the same risks. They
creating huge amounts of paperwork but rather
So what is volunteering?
consider it good practice for a volunteer user
it’s about identifying sensible and proportionate
Volunteering is any activity or work in the
to provide the same level of health and safety
measures to control the risks.
community for which someone undertakes
protection as they would in an employer/
a specific task but receives no payment. A
employee relationship, irrespective of whether
The preventive and protective measures should
volunteer freely gives his or her own time to a
there are strict legal duties.’
reflect the actual risks that employees and
Health and Safety is often wrongly blamed for preventing organisations from running events
job without financial recompense.
volunteers face in their respective roles.
Over 20 million volunteers ‘work’ an average of
Therefore, you should conduct a Health & Safety
So a volunteer would reasonably expect similar
88 million hours per week
induction as you would with a paid employee
protection to a paid colleague who does the
and record that this has been completed.
same type of activity and undertaking risk
Do volunteers have employment rights?
assessments demonstrates commitment to
Volunteers do not have a contract of
Some volunteers may require additional, more
employment and so don’t have the rights of an
in-depth training for their roles. An example of
volunteers and the duty of care owed to them.
ordinary employee or worker. These include the
this would be Theatre Ushers who would usually
Employers Liability Insurance
right to a minimum wage, holiday and sick pay,
require Fire awareness and/or Fire Marshall
All employers are required by law to have
and other statutory rights.
training for their roles.
Employers Liability Insurance to cover
While volunteering is not contractual, it is good
When health and safety law applies?
or injury. This can include volunteers, but you
practice for part-time or full-time volunteers to
Health and Safety legislation doesn’t generally
must ensure that the cover for volunteers is
be given some form of volunteer agreement
apply to someone who is not an employer,
explicitly mentioned in the policy.
setting out mutual expectations and relevant
self-employed or an employee. However, the
organisational policies such as Health & Safety.
Health and Safety at Work etc Act 1974 (HSW
employees in the event of an accident, disease
Act), and the regulations made under it, apply What is a Volunteering Agreement?
if any organisation including a voluntary
A volunteering agreement sets out the
organisation has at least one employee. The Act
roles of volunteers. The agreement used by
refers to employers and the self-employed as
an organisation should be drawn up and
‘duty-holders’.
issued to all volunteers at the outset of their volunteering. It should set out details for how
The HSW Act sets out the general duties that
the management of volunteers will be dealt
employers have towards employees. It also
with and how problems will be handled.
requires employers and the self-employed to protect people other than those at work (eg
Other issues should include how the
members of the public, volunteers, clients and
organisation will involve and support
customers) from risks to their health and safety
volunteers, what volunteers can expect from the
arising out of, or in connection with, their work
organisation and what in turn the organisation
activities.
expects from volunteers.
20 BIBBY CONSULTING & SUPPORT UPDATE
MORE INFORMATION If you are unsure how any of these subjects affect you, please contact our Support Line on: 08453 100 999
www.bibbycas.com
All consultants and related staff see the assisting of a client as a true point of support rather than
Safety Update
a means of avoiding further work if a claim arises. IOSH have recently made a point of the legibility of the Occupational Safety and Health Consultants Register (OSHCR) and whether it is
With Lee Mockridge, Health & Safety Consultant
actually rooting out the ‘rogue consultants’ that are trading out there. But we should not see this so bluntly as ‘right and wrong’, because we can all quote from legislation but are we delivering
HEALTH & SAFETY CONSULTANCY
facts or understanding?
WHAT IS THE BEST WAY TO SUPPORT?
In a society and industry that is forever changing and advancing, Health and Safety
Although my time dealing with Health and
regulation’, purely advising on why a client is
Safety on a consultancy front is relatively limited
obliged to do something and never explaining
in comparison to many of my colleagues, I find
why and how inputting things as important
that how a client accepts support can vary from
as risk assessments can be something to really
one to the other. So is it how they receive the
improve the mindsets of all staff.
will always reflect this, and with it attitudes will continue to remain negative if the consultants of our trade are not easing their clients through each relevant part of legislation, with reason and logic.
information or how we as consultants deliver it? There needs to be a certain amount of customer I have visited a number of individuals in the
service and somewhat sales in the delivery
past 6 months and the attitude towards Health
of consultation. The individual needs to feel
and Safety varies greatly. Some see Health and
support, not pressure... a hand on the back to
Safety as too much red tape, a burden and an
stabilise, not push over the edge. When we
ever-growing ‘thorn in your side.’
refer back to the basics of HSG65 it should be delivered as simply as it actually is, rather than
Some see it as something that they can’t deal
drawing out the stereotype of an ill-tempered
with because they simply don’t understand
person with a clipboard, groaning at the client’s
and therefore leave themselves liable purely
misfortune, then providing them with enough
through lack of knowledge.
legal information to sink a ship.
Either way, very few look upon Health and
A good Health and Safety culture comes from
Safety as a positive subject or a culture-
the very top of an organisation and from a
enhancing tool that can really endorse a happy
consultants point of view, delivering friendly,
workforce if dealt with and communicated
reliable and understandable advice and support
upon correctly.
to the MD, owner or delegated individual,
HEALTH & SAFETY TRAINING For more information on our Health and Safety Training Courses, please call our Training Department on:
08453 100 600
leaving them feel as such, will only snowball So, with this in mind, is it how consultants
throughout the company, therefore reducing
deliver support and advice that can shape
negligence, claims, and on the whole the
the perception of this industry? Is the bedside
amount of cynicism aimed at staying compliant
manner making Health and Safety the taboo it
and avoiding the wrath of the HSE.
can commonly be taken as? The Health and Safety department at Bibby Through personal experience I can see how
Consulting & Support really avoid the archaic
easy it is to fall into the trap of relying on
approach as commonly as possible. Right
what powers we have to enforce people to
from the top, we all want to make what we
comply. Using the strength of ‘you must do
do worthwhile to the client and not such a
this because of this part of legislation or that
negative experience from start to finish.
BIBBY CONSULTING & SUPPORT UPDATE
21
Health & Safety Update STRUGGLE WITH PUWER COMPLIANCE?
WHY DO EMPLOYERS STRUGGLE WITH PUWER COMPLIANCE?
Either way, the main point of the HSE’s actions was to highlight the lack of formal maintenance plans produced by the company, therefore monitoring on-going upkeep.
PUWER or the Provision and Use of Work
In accumulated fees, the company paid out over
Equipment Regulations (1998), place duties
£9000 in fines and damages, not considering
on people and companies who own, operate
the loss of hours and potential negative attitude
or have control over work equipment. PUWER
of staff and clients that are aware of the event.
also places responsibilities on businesses and
The total cost, physically and financially of
organisations whose employees use work
the incident has obviously outweighed that
equipment, whether owned by them or not.
of adequately fitting the equipment with the
PUWER requires that equipment provided for
available guards. So have this company been
use at work is:
negligent due to cost or the mindset that until
›› Suitable for the intended use.
the machinery was ‘officially’ in use that they
›› Safe for use, maintained in a safe condition
needn’t make it safe. The latter seems to be the
and inspected to ensure it is correctly
case but other examples lead to cost.
to use a tractor/slurry tanker combination
installed and does not subsequently
deteriorate.
A recycling firm was fined for putting workers’
The youth became entangled on the drive
›› Used only by people who have received
lives at risk after two machines were found
to have vital safety mechanisms deliberately
adequate information, instruction and
training.
disabled. It was found that there had been
›› Accompanied by suitable Health and Safety
deliberate bypassing and disrepair of several
measures, such as protective devices and
machine guards on two baling machines,
controls. These will normally include
which were used to compress material such as
emergency stop devices, adequate means of
cardboard and cans for recycling.
isolation from sources of energy, clearly
visible markings and warning devices.
Prohibition Notices were served, stopping
›› Used in accordance with specific
all work on the two machines. The company
requirements, for mobile work equipment
was also served with an Improvement Notice,
and power presses.
requiring implementation of a routine guard checking procedure to ensure interlocks and
Some items may also be subject to testing
emergency stops were working correctly.
under additional regulations, such as PPE, PAT
Despite there being no incidents, as a result,
& LOLER, but considering in its simplest state,
the HSE concluded that the likelihood
this is purely the upkeep of equipment and the
was significant should the notices and
correct use of the item.
improvements not be acted upon. The company paid over £30,000 in costs and fines;
A recent article posted by the HSE covered an
again a substantial amount more than simply
employee that was unable to work for three
fitting the correct safety measures.
weeks following an incident where he broke one finger and lost another, due to insufficient
The HSE records a long history of serious
guarding being fitted to a piece of equipment.
reported injuries in this industry and with work processes similar to those highlighted but
But again, there are plenty of examples highlighting general issues with overall negligence to input safety measures that detract from general productivity reasons. This leaves us to maybe consider employers not taking action due to lack of knowledge of available safety aids and what staff should be allowed to operate work equipment. An employer permitted a 16 year old labourer with an inadequately maintained PIC guard. shaft and his clothes were torn from his body. He sustained clothing burns to his chest, contusions to head, and a broken left arm. The employer was present in the vicinity helping to assemble equipment for use by a contractor and managed to set him free. So not only was the employer allowing a user to complete tasks potentially more hazardous to that employee due to his age, but they neglected to implement adequate safety measures to the equipment in use. This issue leads to the idea that ‘opinion or necessity’ to input safety measures is passive, and cost may not be at the forefront and rather the fact that there is simply no need. Cost, whether it be in time or financial loss, additional productivity and general negligence through lacking knowledge of competency or hazard seem to be the main reasons occurring to why PUWER is not followed. So is it purely a stance on ignorance or a needed display of consequence with employers that will be the catalyst to stop this common
The company claimed that the machine, which
the company chose to neglect the available
forms and sand-coats bricks was being trialed
safety measures at their disposal, seemingly
as a new piece of workplace equipment and
due to a need to speed up processes and
that guarding would be fitted if the trial was
therefore create a short term financial gain, not
successful; but how could a successful trial
considering the long term loss in the event of
be completed when the machine was not
an incident.
starting with the fact that it will cost more after
not displaying its actual output if a guard slows
So is the cost concern to the company
than it would to simply make equipment safe
any process?
financially or time-based?
operating within its safety guidelines, therefore
22 BIBBY CONSULTING & SUPPORT UPDATE
and re-occurring health and safety breach? Either way, there is certainly more that can be done by employers, advisors, consultants and indeed the authorities to raise such awareness, something potentially serious has happened and monitor continuously both formally and informally.
Health & Safety Update
CONSEQUENCES OF INSUFFICIENT FIRE SAFETY
NEWS UPDATE
TWO NIGHTCLUB BOSSES FINED FOR FIRE SAFETY BREACHES
Boss Jailed for Manslaughter The case involved a company engaging a sub-contractor to undertake a series of tasks including dismantling disused steel structures in 2008. During this work, a beam struck the basket of a cherry picker in which an employee was standing and caused the machine to topple over. The occupant suffered serious head injuries and died as a result. The simple fact is that the original company had not properly planned for the work, and as such engaged a subcontractor, who according to the prosecution did not have the necessary competence to undertake the work. This was borne out by the lack of suitable lifting plans to ensure they operated a Safe System of Work for the dismantling of the steelwork. A director of the company who engaged the contractor was fined a total of £30,000 with a further £50,000 in costs. The contractor was jailed for three years for manslaughter directly caused by his gross negligence. It should also be noted that this sub-contractor had previously been prosecuted for causing another accident during the demolition of another building in 2005. The moral of this story simple: when you engage sub-contractors you are responsible for their actions/inactions and as such will be held equally liable should they cause injury.
Two Nightclub bosses have been fined after
The Director of prevention and protection at
breaching fire safety legislation. They appeared
Greater Manchester Fire and Rescue Service,
before Bury magistrates in September 2012
said: “We always support businesses that work
to face charges under the Regulatory Reform
to make their premises safe for people to use.
(Fire Safety) Order 2005 relating to their three
However we will take action against those
premises, in the town. Greater Manchester Fire
businesses that neglect fire safety and in doing
and Rescue Service took legal action following
so put the lives of staff and public at risk.
inspections of the three premises.
“We hope this court case sends a clear message that fire safety must be taken seriously.”
The first was fined £2,700 plus £1,906 court costs, a total of £4,606, after pleading guilty to
Carrying out a fire risk assessment is a legal
seven offences, including not having a suitable
requirement and helps to identify any flaws
and sufficient fire risk assessment and failing
or problems that could be rectified within a
to provide adequate fire safety training for
building before it’s too late
employees Remember Bibby Consulting & Support can The second was fined £550 plus £100 court costs,
arrange Fire Risk Assessments, Fire Training and
a total of £650, after admitting three offences
Maintenance of Firefighting Equipment. Contact
relating to a lack of suitable and sufficient fire risk
us on 08453 100 600 or email:
assessments.
fss@bibbycas.com for more information.
PESTICIDE SPRAYING REGULATIONS PRECAUTIONS FOR COMPANIES WORKING WITH PESTICIDES Companies that spray pesticides as part of
by the successful completion of a certificate
their work activities have to take a number of
of competence issued by City and Guilds Land
precautions. Pesticides are classed by DEFRA as
Based Services or the National Proficiency Test
covering both pesticides and plant protection
Council (NPTC).
products such as herbicides. Where trainees are required to spray pesticides, The relevant guidance requires that persons
then this should only be undertaken under the
spraying pesticides must:
direct supervision of someone in possession of
›› Take all reasonable precautions with
such a certificate of competence.
regard to protecting human health and the environment.
Remember to verify that anyone you engage to undertake tasks, whether they are simple or complex must have the necessary competence and skills to be able to carry out that task – otherwise their incompetence could damage your reputation, livelihood and possibly even liberty directly.
›› Apply pesticide only to the crops or area
requiring treatment.
›› Ensure that when pesticides are sprayed
in areas used by the general public, that the
quantity of pesticide used and the frequency
of its application are kept as low as is
reasonably practicable.
Any person spraying pesticides must be competent. Competence can be demonstrated
24 BIBBY CONSULTING & SUPPORT UPDATE
Employees born before 31/12/1964 who only spray pesticides on their own or on their employer’s land are currently exempt from the requirement to hold a certificate of competence or to work under the direct supervision of someone with such a certificate of competence. This exemption however is only in place until 26/11/2015. After this date they will be required to hold a certificate of competence or work under direct supervision of someone who has.
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SHOULD EMPLOYERS TAKE RESPONSIBILITY TO SAVE A LIFE? PERSONAL PROTECTIVE EQUIPMENT (PPE) With the country pushing health agendas like ‘5 a day’ and ‘staying alive/ hardandfast’, why are the governing bodies and local authorities not pushing the need for in-house defibrillators?
With these factors accounted for, should businesses still leave their staff members or customers lives in jeopardy for such a small investment?
Some smaller companies may not see the
Can the little guys expect the big brands to make
instantaneous need but with figures of cardiac
a unit locally available or do they take the chance
arrests occurring out of hospitals in excess of
and invest, considering that defibs’ are most
30,000 per year, why are only 18.5% of that
affective when administered within the first 3
number surviving?
minutes of an arrest.
The Institution of Occupational Safety and Health
Units cost around £1000 each which in
(IOSH), in support of the recent National Heart
comparison to the price of a life is a small
Week campaign, commissioned a survey of
fee, although when relating this back to the
1,000 business decision-makers across the UK
percentage of medium to large companies in
and found that 513 did not have the lifesaving
ownership, compared to that of a small business
equipment at work. Almost two thirds of those
being the same, the urgency obviously isn’t
who said ‘no’ also come from medium to very
there.
large companies. With medium and large companies having a So with this in mind, is it a case that the need
higher turnover and gross number of staff, the
is greater depending on the demographic of
cost they would incur if an arrest happened
staff or industry, and should the first step to
would be greater than simply the financial figure
be educating business owners to review their
but also that of the culture within the workforce,
independent situations appropriately?
potential counselling and mental distress caused to the individual conducting unsuccessful CPR
Looking at the percentages of the 1,000
and obvious downtime. This obviously points
surveyed, a similar level of numbers from all sizes
to the implementation of a defibrillator being
of company, did not have a defibrillator on site,
a strong business choice and one that should
showing that even those with greater resource,
be considered at all levels but again should
staff numbers and potential need have the same
this be down to the employers evaluating their
as those who don’t, but with the availability of
circumstance?
a unit increasing chances of survival by 75% if administered within the first few minutes, why is
So what should be considered?
there only around 40% in ownership?
›› Staff levels to gauge number of units required
(a unit should be available within 90 seconds
Why do employers refrain from bringing in a
of any member of staff)
defibrillator? Is it cost, foreseen necessity or
›› Adequacy of journey time and access to or
simply that they hadn’t thought about it? All of
these leading to one thing… Ignorance to the
›› Industrial activities and physical strain.
benefits that are gained through having a unit.
›› Incident reporting process and staff welfare
from emergency services.
facilities. Within a ‘no frills’ financial climate, cost will
›› Customers (Those operating within the
always be a huge issue; with anything that seems
unnecessary being placed firmly at the base of
visitors)
the priority list. But if all companies think like this
›› Trained first aiders and competency of those
who will break the chain?
individuals.
business, pupils, patients and occasional
Returning to the point of cost, is it an employer’s reluctance to train staff in the correct use of a defib’ or to put those employees under the responsibility of another’s life? This again leads to ignorance, as units made available to the public and companies alike are classed as AED’s or automated external defibrillator which is a portable electronic device that automatically diagnoses and treats life threatening cardiac arrhythmias through the application of electrical therapy, allowing the heart to re-establish an effective rhythm. So the necessity to train a member of staff, although vital for other first aid needs is not crucial for a defib’ to be affective and save a life, with most providers or suppliers delivering an adequate tutorial on purchase, why would any employer still avoid installation of a unit? Certain members of the government are now pushing for all employers to provide a defibrillator within public places, which, considering the obvious benefits, should not be a notion too hard to pass and why not, after all a generous 16 AED’s are scattered across the houses of parliament. It is ironically also a fact that all public provided gym facilities are equipped with AED’s and yet up to 80% of private gyms are not. So the government clearly see the lifesaving effects an AED has and therefore we should soon see a clear regulation that all employers must provide such facilities within their workplace or premises, which in reaction should only make these units more cost effective. But, it still leaves us with the question, how much do you value a life and in the light of a fatality what will the costs ACTUALLY be?
Health & Safety Update
AN INTRODUCTION TO LOSS CONTROL RAY WARLOW, HEALTH & SAFETY CONSULTANT, EXPLAINS FURTHER
Measurement: The minimum standard that can be set is that of the law. Where there is no legal standard set then it will be for the company or organisation to set its own. Such internal standards should ideally be based upon
Traditionally, health and safety has been seen,
They were rarely trained or had any relevant
by management, as an unavoidable cost factor.
knowledge of Health & Safety.
those of others in the same type of industry,
With the advent of the first Industrial
Even as late as the 1970’s, management still
experience-based.
Revolution, the working population was
saw the role as one of appeasing the Unions
suddenly subjected to problems they had never
and staying within the law. The Unions used
encountered before. Amongst them, was the ill
their power to get what they could out of the
health and injuries associated with the working
employers even to the extent of “selling” health
conditions they operated in and the machinery
& safety rights of their members. Although the
they were required to work with.
law had improved, it was still fragmented, and
other companies in the same group or even
Once a standard has been established, it, in itself, must be subject to measurement. Once it has been achieved and maintained, leaving it at that level will result in it falling off – it will need to be moved on to a higher, but achievable,
enforcement was, to say the least, inconsistent.
level.
equipped to deal with it. The workers had no
Loss Control
The form of measurement is up to the company,
means to deal with it, the employers generally
The concept of Loss Control is not a new one – it
had no will to do so (labour was cheap and
has been practised for centuries by the military.
plentiful) and the Government either failed or
It can be described as, “A management system
refused to see any problem.
designed to reduce or eliminate all aspects of
Neither they, their employers nor the Law were
accidental loss that may lead to wastage of
but must be one to which a figure can be placed upon it in relation to the standard set. A mere “complies” or “fails to comply” is inadequate. Such a system of measurement will indicate where the company is and also where priorities should be set.
Eventually, Government did react, and laws
an organisation’s assets. These assets include
started to be put into place. These were
manpower, materials, machinery, methods,
generally ineffective and enforcement was
manufactured goods and money”
Controls: When problems or problem areas
or classes of workers. The ordinary worker had
The system deals with all those losses, which
additional control measures will be apparent.
only theoretical access to common law remedy.
could be classed as “internal” from, for example,
It was not until the late 19th century that
injury accidents, property damage accidents,
employers’ attitudes started to change.
near misses and the systems surrounding them.
uncommon. They only covered certain sections
It forms part of Risk Management, which looks
have been identified, the need for new or Methods of control – guarding, training, systems etc. will have to be determined by those who have the responsibility. This will generally be line management assisted by the
at the control of all potential and real loss areas.
safety department/manager/officer.
legislation – one that affected their “bottom
The concept of Loss Control is based around:
Monitoring: As with all areas of management,
line” profits. The first Employers’ Liability
1. Identification of loss-making areas
Insurance Act came into force in 1880, followed
2. The measurement and analysis of such areas
by the Workmen’s Compensation Act of 1897.
Unfortunately, instead of improving the
3. The selection of further or improved
working conditions and introducing safer
control measures and continual and
systems of work, Health & Safety became a
effective monitoring and updating.
damage-limitation exercise to keep down
4. Benefits
Benefits: To prevent losses resulting from
Identification: Many areas of potential losses
eliminate – or at least reduce – the potential for
This change was brought about by pressures from Trade Unions and by a new type of
and existing controls
claims.
failure to monitor any system will result in its degradation. It should be part of the Audit System, subject to regular management inspection and changed when circumstances dictate.
accidents, it is necessary to identify and them to happen. Loss Control does exactly this.
As part of this exercise, the first “safety” people
are often overlooked, particularly regarding
started to appear. They were often employees
methods and systems which, if they fail or are
who themselves had been injured at work and
not up to the standard that has been set, could
so considered to be experienced. Their role
cause losses to occur.
cannot take place.
of guards to policing others in doing so. The
These are but examples of area that need to be
This is taking accident prevention beyond
security role was often attached and they were
considered. All of them need to be measured
by the 1950’s being drawn from the armed
against a predetermined standard to assess
forces or Police - hence Safety Officer.
action required.
gradually changed from that of “putters-on”
26 BIBBY CONSULTING & SUPPORT UPDATE
By breaking the chain of events leading to an accident, the accident and its resultant losses
the old attitude of injury prevention to loss prevention – it looks at the true causes of accidents and not just the results.
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For it to work, it will need the full and transparent backing of senior management, to be “owned” ”by line management and operate with the full co-operation of all employees. The Safety/Loss Control staff should operate as a consultative source. It must form an integral part of the management function with the same level of commitment and accountability as, for example, production and quality. Mere compliance with the law must be recognised as inadequate. The Loss Control process must be based upon the values and principles, which formulated the policies and not merely the written word. For it to work effectively, it will require behavioural change which in turn will lead to change in beliefs and attitudes.
HAZARDS OF USING WOOD PELLET BURNERS
Perfection, however, is not a realistic goal.
CARBON MONOXIDE RISKS WITH HEATING ALTERNATIVE
Attempts to achieve perfection will put the whole process at risk as it will be seen as unattainable and actually undesirable. There are, however, two areas where perfection should be strived for: 1. Where the consequences of failure may lead
to death.
Wood pellet burners are increasingly being used for heating as an alternative to conventional fuel sources such as oil and gas within workplaces. The wood pellets used in these burners are manufactured from dried sawdust and wood shavings. Auto-oxidation of the wood can occur during storage leading to carbon monoxide being released. The pellets are normally stored in sealed hoppers or in bespoke storage rooms fitted with an auger
2. Where the law might be broken.
to feed the boiler.
In the extremely competitive and ever-
Due to the enclosed nature of the storage areas, there is a significant risk of carbon monoxide
changing world of commerce and industry, any organisation, however large or small, will get left behind if it cannot control its losses. There is ample evidence to support this from many countries. The Old Ben Mine in Australia, by introducing Loss Control, turned itself around from a loss maker awaiting the
poisoning for people entering these areas. Such poisoning has given rise to nine fatalities in Europe since 2002. To control this issue, the following should be considered: ›› The wood burning system should be installed by a competent person ›› The wood burning system should be cleaned and maintained by a competent person in
accordance with the manufacturer’s recommendations
receivers to a profitable organisation. Syncrude
›› Risk assessments should be undertaken, addressing wood pellet storage and for any activities
Canada, BP UK and the vast Kvaerner Group
of Norway have all been able to demonstrate large improvements in their productivity and therefore profits. We need to change from being followers of the past into motivators – motivating others to want to improve for the right reasons, be it moral, legal or economic.
involving access to the storage areas eg for maintenance/inspection/cleaning purposes
›› Entry in to these storage spaces should be classed as entry into a confined space ›› Consideration should be given to the permanent ventilation of the storage area ›› Entry in to the area should be conducted under permit to work conditions and a competent
person should check for the ambient concentrations of oxygen and carbon monoxide in the
storage areas prior to entry
›› Warning signs stating “Danger – Risk of Carbon Monoxide Poisoning” should be displayed at the
pellet storage area access points
BIBBY CONSULTING & SUPPORT UPDATE
27