Risky Business - Health, Safety & Employment Law Update

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

ISSUE

02 2013

Changes to Employment Law Following a recent review undertaken by Mr Justice Underhill (former President of the Employment Appeals Tribunal) forthcoming changes in employment law are likely to have a significant impact on all businesses in the future, including:

Fees for Employment Tribunals The Employment Tribunals and Employment Appeal Tribunals Fees Order 2013 will require the payment of issue fees (either £160.00 or £250.00) and hearing fees (£230.00 or £950.00) by the claimant in order for an Employment Tribunal case to proceed.

Fees will be calculated based on whether a claim is “Type A” (for simpler claims such as unlawful deductions) or “Type B” (more complicated claims such as unfair dismissal and discrimination).

For the dismissal of a claim following withdrawal, the claimant will have to pay a further fee, which will start at £60.00 and rise to £5,700.00 for complicated claims involving 200 or more claimants.

Fees will be means-tested and will not be payable by those on state benefits or low incomes.

Employment Appeal Tribunal Structure Cases before the Employment Appeal Tribunal are currently heard by one judge and two nonjudges (wing members). In the future, they will usually be heard by one judge alone.

Fines for Employers who Breach Workers’ Rights Where a Tribunal decides that an employer has breached employees’ rights and that the breach was an aggravating factor, the employer may be ordered to pay the Government a penalty of between £100.00 and £5,000.00, in addition to any compensation.

Discounts will be available for early payment.

Political Beliefs Protected For dismissals wholly or mainly on the grounds of political belief or affiliation where the date of termination is on or after June 25th 2013, employees will not need to have been employed for two years to acquire the right not to be unfairly dismissed. Political belief or affiliation will become a protected characteristic which cannot be discriminated against, regardless of length

www.thomascarroll.co.uk

of service, in a similar way to the way that age, gender and race (amongst others) currently are.

Changes to Whistleblowing Previously, employees who whistleblew had to show that they made the protected disclosure in good faith.

In the future, this will no longer be necessary but tribunals may reduce any compensation awarded by up to 25% if the disclosure was made in bad faith.

(Article continued on next page)

Risky Business at a Glance

Changes to Employment Law Construction Sites Fail Safety Checks Default Retirement Age is Justified but Unlikely to Set a Precedent Frequently Asked Questions Health and Safety Training Courses In Court

Risky Business

Changes to Employment Law

Construction Sites Fail Safety Checks

(continued from cover) Additionally, whistleblowing employees will have to show that they reasonably believed that their disclosure was in the public interest; an allegation which the employee knew was false will, therefore, not be protected because the employee could not have reasonably believed that a false allegation would be in the public interest.

Employers’ vicarious liability for its employees’ acts is expected to come into force later this summer.

Disclosure and Barring Service The Disclosure and Barring Service (DBS), which replaced the Criminal Records Bureau Service (CRB) late in 2012, is launching its new Update Service.

Prospective employees will be able to pay an annual fee (currently £13.00) in return for which employers can check their DBS check is up to date. This is good news for employers because it will save them time and money but it requires the employee’s consent. Employees will be able to take their DBS check with them when they change jobs (as long as the jobs are similar enough to require the same level of DBS check) and get ahead of the competition by applying for jobs pre-DBS checked.

For further information on any of the above issues, please contact roger.davies@thomas-carroll.co.uk

Default Retirement Age Justified but is Unlikely to Set a Precedent Mr Seldon, a partner at the law firm Clarkson, Wright & Jakes was forced to retire in 2006 at age 65 and brought a claim of age discrimination against his previous employers. At the time, a default retirement age was still legal, since it was not abolished until October 1st 2011.

In what has become a landmark case, the Supreme Court brought his claim back to the Employment Tribunal and considered whether 65 was the correct age for compulsory retirement (as opposed to any other age.)

The Employment Tribunal found in favour of Clarkson, Wright & Jakes in June 2013 on the grounds that retention and planning of its workforce were legitimate aims. The firm needed to be able to offer Associates the reasonable prospect of

2

In a month-long initiative, nearly one in five construction sites visited across the UK received enforcement action from the HSE after failing safety checks.

Inspectors visited 2,363 sites where refurbishment or repair work was taking place and saw 2,976 contractors.

A total of 631 enforcement notices were served across 433 sites for poor practices that could put workers at risk, with 451 notices ordering that work stop immediately until the situation was put right.

Philip White, HSE’s Chief Inspector of Construction, said: ‘This initiative has once again shown us that the majority of construction employers do take their responsibilities to their workers seriously.

‘However, our inspectors also encountered numerous examples of poor practice, from lack of edge protection on stairwells and scaffolding to unsafe storage of flammable materials and inadequate personal protective equipment. None of these are acceptable on a modern construction site.

‘HSE will not hesitate to use its enforcement powers against reckless employers. It is they who continue to make construction one of the most dangerous industries in which to work.’

partnership after working there for a certain length of time and it was held that a default retirement age of 65 was a proportionate means of achieving this.

They also wished to maintain a good working atmosphere and were concerned about having to dismiss older partners on the grounds of poor performance. It was held that this could potentially have been a legitimate aim but the firm had not produced evidence to justify it - instead, they had based their policy on stereotypical assumptions about what age a partner’s performance would begin to deteriorate.

In view of the above, this case is unlikely to set a precedent because it was decided on very specific facts and concerned a partner in a law firm in a partnership structure where employees expect to follow a well-defined career path. Such a specific career path is often not present in other businesses and therefore retirement of older employees may not be necessary to retain younger ones.

Unlike most employer-employee relationships, Mr Seldon and the other partners had had significant bargaining power as a group when they signed up

Thomas Carroll

Inspectors made unannounced visits to construction sites to ensure they were managing high-risk activity, such as working at height.

Checks were also carried out on whether there was general good order on site, whether PPE was being used effectively and if welfare facilities were adequate.

During inspections, HSE inspectors considered whether:

•• Jobs that involve working at height had been identified and properly planned to ensure that appropriate precautions are in place;

•• Equipment was correctly installed/assembled, inspected and maintained and used properly;

•• Sites were well organised, to avoid trips and falls;

•• Walkways and stairs were free from obstructions;

•• Work areas were clear of unnecessary materials and waste;

•• Suitable PPE, including head protection, was provided and worn at all times.

Organisations need to ensure that great care is taken when introducing a default retirement age to their partnership agreement, which included the clause about default retirement age.

Most importantly perhaps are the social norms surrounding retirement in 2006 and now. The Employment Tribunal identified that the case may well have been judged differently had the facts of the case arisen today, given that people’s attitudes surrounding age and retirement have changed over the last seven years.

Organisations need to ensure that great care is taken when introducing a default retirement age as very high damages can be awarded to successful claimants, especially to those on high salaries.

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

Risky Business

Frequently Asked Questions Do we need to display a health and safety law poster?

Employers have a legal duty under the Health and Safety Information for Employees Regulations to display the Health and Safety Executive approved ‘What You Need to Know’ poster in a prominent position in each workplace or provide each employee with a copy of the equivalent leaflet (available as a free download from www.hse.gov.uk/pubns/books/lawleaflet.htm).

The health and safety law poster tells employees what they and their employers need to do in

Is there a Maximum Weight a Person can lift during their Work?

The law does not specify a universally safe maximum weight, but places a duty on employers to manage or control risk, which will vary depending on the circumstances of the task being undertaken.

In simple terms, the main requirement is a risk assessment, although there are other considerations: Firstly, does the load need to be moved at all? If so, can it be moved mechanically? For example by using a handling aid, such as a pallet truck, an electric or hand-powered hoist, or a conveyor?

If manual lifting is the only option then there are a number of things that can be done to reduce the risk, including;

•• Making the load smaller or lighter and easier to lift;

What is the maximum/minimum temperature in the workplace?

The law states that the temperature in all inside workplaces should be reasonable and this will obviously depend on the nature of the workplace i.e. a bakery, a cold store, an office, a warehouse.

The temperature in workrooms should provide reasonable comfort without the need for special clothing. Where such a temperature is impractical, all reasonable steps should be taken to achieve a temperature which is as close as possible to comfortable.

Although there is no minimum temperature, workrooms should normally be at least 16°C or 13°C if much of the work is physical.

These temperatures may not, however, ensure ‘reasonable comfort’ (without the need for special clothing), depending on other factors such as air movement and relative humidity.

simple terms and is available in Welsh and as a talking leaflet.

A new poster was published in 2009 and replaced the 1999 version, the HSE set a five-year transition period for replacing the 1999 poster and leaflet, which must be replaced no later than April 5th 2014.

•• Breaking up large consignments into more manageable loads;

•• Modifying the workstation to reduce

carrying distances, twisting movements, or the lifting of things from floor level or from above shoulder height;

•• Improving the environment – e.g. better lighting, flooring or air temperature can sometimes make manual handling easier and safer;

•• Ensuring the person doing the lifting has been trained to lift as safely as possible.

To assist organisations identify high risk workplace manual handling activities, the HSE has developed a Manual Handling Assessment Chart (MAC) tool which can be used to assess the risks posed by lifting, carrying and team manual handling activities.

For further information visit www.hse.gov.uk/msd/mac/index.htm

Where the temperature in a workroom would otherwise be uncomfortably high, all reasonable steps should be taken to achieve a reasonably comfortable temperature, for example by:

•• Insulating hot plants or pipes; •• Providing air-cooling plant; •• Shading windows; •• Siting workstations away from places subject to radiant heat.

Where a reasonably comfortable temperature cannot be achieved throughout a workroom, local cooling should be provided. If, despite the provision of local cooling, workers are exposed to temperatures which do not give reasonable comfort, suitable clothing and rest facilities should be provided.

Where practical, there should be systems of work in place to minimise the length of time the individual workers are exposed to uncomfortable temperatures.

www.thomascarroll.co.uk

Health and Safety Training Courses •• 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 Working Safely •• 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

Employment Training Courses •• 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 Thomas on 029 2085 3752 or email victoria.thomas@thomas-carroll.co.uk

3

Risky Business

In Court Huge fine for skiplorry crush fatality A Sheffield company has been ordered to pay nearly £425,000 in fines and costs after an employee was killed by an overturning skip lorry in Derbyshire.

David Vickers, 37, of Walton, was tipping a skip at Adis Scaffolding Ltd’s site in Markham Lane, Duckmanton, when the incident occurred. The company crushes rubble from construction and demolition waste.

Machine-guarding failures land two firms in dock Two companies admitted safety failings after a worker had his finger ripped off by an unguarded machine at a factory in Merthyr Tydfil.

Brian Allen, 53, was working at Ardagh Metal Packaging (UK) Ltd’s factory in Dragon Parc, Merthyr Tydfil, when the incident took place.

This case demonstrates the need for employers to carry out their own assessment

HSE inspector Paul Cartwright said: “Risk assessments by Crabtree identified that the conveyor could cause injury and a warning was included in the operating manual, but they nonetheless supplied the machine without adequate guarding.

“Ardagh, meanwhile, failed to identify the risk, despite the practice of hand-feeding sheets into the conveyor being well known to operators.

“This case demonstrates the need for employers to carry out their own assessment of the risks posed by machinery, based on the circumstances in which the equipment will be used. It is not sufficient to assume that [a machine] is safe as soon as it is purchased.”

Ardagh Metal Packaging (UK) Ltd appeared at Merthyr Tydfil Magistrates’ Court and was fined £10,000 and ordered to pay £11,754 in costs.

He was feeding sheets into the conveyor of a coating machine when his wedding ring got caught and his finger was severed. He still suffers continual pain and is unable to grip properly with his injured hand.

Crabtree of Gateshead Ltd appeared at the same hearing and pleaded guilty to the same charge and was fined £3,000 and ordered to pay £14,570 towards costs.

The HSE investigated the incident and found Crabtree of Gateshead Ltd had installed the machine without guards around the moving parts. Ardagh Metal Packaging had also failed to identify the risks posed by the missing guards.

After the hearing, inspector Paul Cartwright added: “Involving workers in the risk-assessment process is crucial. Had the employees been consulted by either company it would have been apparent that hand-feeding of sheets on to the conveyor took place. This would have alerted Ardagh and Crabtree to the need for adequate guarding, which has now been installed.”

The HSE issued two Improvement Notices, which required Ardagh Metal Packaging to carry out a sufficient risk assessment and install guards on the machine.

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

Feedback Please The feedback you give us about our services is vital to us. We send out service questionnaires and are grateful to our clients who complete them.

Derby Crown Court heard that Mr Vickers had exited the cab of the truck he was driving to deploy the stabilising rear outriggers. He began raising a skip using the lifting arms but, as he did so, the vehicle overturned and fell on top of him. He died at the scene.

The HSE investigated the incident and found the skip had not been hooked correctly. Instead of interlocking with the skip’s catch bar, the hooks engaged with the lip of a base plate.

The skip tipped in the normal fashion until reaching an angle of about 70 degrees, at which point it broke free and swung backwards, causing the front of the vehicle to lift several feet off the ground.

During the course of tipping, the offside outrigger also retracted, causing the lorry to tip over.

The HSE investigation also established: there was no safe system of work for the skip operation, including how to address mis-hooking and other foreseeable problems; there was inadequate training and instruction; the skip-lorry controls were not marked; and the risk assessment for loading and unloading skips fell short of identifying all significant risks and controls.

Adis Scaffolding Limited, now in liquidation, was fined £300,000 and ordered to pay £124,468 in costs after pleading guilty.

After the hearing, HSE inspector Edward Walker said: “The failings by Addis Scaffolding Limited were substantial and led to a situation in which things went badly wrong, and where David was placed in an impossible situation. His tragic death could easily have been avoided with better planning, management and foresight.”

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

But why wait until then?

Kevin Price is always available to hear your views, call him on 029 2085 3732

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