Risky Business Issue 03

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

ISSUE

03 2013

HSE Unveils New Reporting Requirements On October 1st 2013 the Health and Safety Executive formally implemented changes to simplify the mandatory reporting of workplace injuries for businesses.

The Reporting of Injuries, Diseases and Dangerous Occurrences 2013 Regulations (RIDDOR), which affects all employers (including the self-employed) aims to clarify and simplify the reporting requirements, while ensuring that the data collected gives an accurate and useful picture of workplace incidents.

•• Accidents resulting in a worker being

unable to perform their normal range of duties for more than 7 days

How an incident at work is reported and the criteria that determine whether an incident should be investigated remain the same.

information is retained, to provide sufficient data for the HSE and others to act in a risk-based manner, and to enable European and international obligations to be met. The proposed changes will facilitate improved reporting of such information, whilst not requiring businesses to provide information that is either not used or could be better obtained from other sources.”

For further information please visit www.hse.gov.uk/riddor/index.htm

The main changes are in the following areas:

•• The classification of ‘major injuries’ to workers

replaced with a shorter list of ‘specified injuries’

•• The existing schedule detailing 47 types of

industrial disease replaced with 8 categories of reportable work-related illness

•• Fewer types of ‘dangerous

Commenting on the impact of the changes, Dave Charnock of the HSE, explained: “Reporting under RIDDOR is a legal requirement for companies.

RIDDOR reports, along with all other complaints and information received by the HSE, will continue to be examined in conjunction with our Incident Selection Criteria to determine the need for investigations - this is not something new.

occurrence’ require reporting

There are no significant changes to the reporting requirements for:

•• Fatal accidents •• Accidents to non-workers (members of the public)

“It will not alter the current ways to report an incident at work. The principles of what must be recorded remain largely unchanged - everything that is reportable must also be recorded (other than gas events), together with over-3-day lost time accidents.

The aim is to simplify and clarify reporting requirements, whilst ensuring that a useful supply of

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Risky Business at a Glance

HSE Unveils New Reporting Requirements Holiday Pay Calculation Major Changes in Construction Accreditation Latest Health and Safety Statistics Changes to First Aid Training Requirements Financial Penalties for Employers Frequently Asked Questions Health and Safety Training Courses In Court

Risky Business

Holiday Pay Calculation

Major Changes in Construction Accreditation

Employers could be forgiven for thinking that holidays are one of the simpler aspects of employment legislation to manage. Unfortunately, the recent case of Neal v Freightliner Ltd demonstrates that such an assumption is misplaced.

The case found that an employee’s holiday pay should be calculated not only on the basis of their salary, but also include any element of remuneration ‘intrinsically linked’ to the tasks required under the employee’s contract, including overtime - even where overtime was neither guaranteed nor compulsory.

This sea change from the previous case law is based on the reasoning that holiday pay should represent what the employee would have received had they been at work - so if they regularly carry out overtime or receive unsocial hours premiums, those additional payments need to be factored in.

Although the case is due to be appealed, legal commentators are predicting that the decision will be upheld.

In certain industries, this case may have a considerable impact particularly as employees may be entitled to claim back to 1998 or to the start of their employment, if this was later.

Our advice to employers is not to panic, but to consider what financial impact this will have in respect of potential backdated claims and to further

Latest Health & Safety Statistics Key annual figures 2011/12 have recently been published and include:

•• 1.1 million working people were

suffering from a work related illness

•• 172 workers killed at work •• 111,000 other injuries to employees were reported under RIDDOR

•• 212,000 over three day absence injuries occurred

•• 27 million working days were lost due to

work related illness and workplace injury

•• Workplace injuries and ill health

(excluding cancer) cost society an estimated £13.4 billion in 2010/11

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One of the major quality control schemes within construction is set to undergo significant changes over the next year. consider what the cost will be for implementing the possible new holiday pay calculation for the future.

Employees may be entitled to claim back to 1998 or to the start of their employment It is possible that the Supreme Court may, on appeal, restrict the scope of the decision or give more detailed guidance as to how holiday pay should be calculated.

Employers should also bear in mind that the calculation will only apply to the 4 weeks’ holiday payable under the Working Time Regulations rather than the 5.6 weeks payable under UK legislation.

One piece of positive news for employers is that in most cases, tribunal claims must be brought within three months of the most recent underpayment.

This means that, in practice, only current workers and recent leavers would be able to make a claim.

The Construction Skills Certification Scheme (CSCS) plans to make it a requirement for labourers to achieve a level 1 vocational qualification in Health and Safety for Construction Labourers before receiving the scheme’s entry-level green card.

Previous misuse of the current green card led to confusion within the industry, with some perceiving the cards as purely a passport to gain access to a site as opposed to a measure of an individual’s competence to complete a job.

It is planned that from July 2014, labourers will have to demonstrate this requirement in order to obtain a card.

CSCS chief executive, Graham Wren said: “Our aim is to set this standard at a level that demonstrates a worker’s knowledge and understanding of basic health and safety issues without it being prohibitive in terms of time and cost.”

Changes to First Aid Training Requirement From 1st October 2013 the HSE no longer approves first aid training and qualifications. This means that businesses have more flexibility in how they manage their provision of first aid in the workplace.

The Health and Safety (First Aid) Regulations 1981 have been amended as part of the HSE’s work to reduce the burden on businesses and put common sense back into health and safety, while maintaining standards.

Going forward, when a first aid needs assessment indicates that trained first aiders are required, organisations must ensure training providers are competent to deliver their first aid training needs and have the correct quality assurance systems.

Advice on identifying and selecting a competent training provider to deliver any first aid training is contained in Selecting a First Aid Training Provider (GEIS3) and is available at www.hse.gov.uk/pubns/geis3.htm

Thomas Carroll

The HSE’s work to reduce the burden on businesses and put common sense back into health and safety The HSE’s first aid spokesman, Andy McGrory, said: “From October, the HSE will no longer approve first aid training and qualifications. Where a first aider is required, the guidance documents make it clear that the employer is free to select a training provider who is best suited to those needs.”

For further details of the First Aid at Work and Emergency First Aid at Work training courses provided by Thomas Carroll Management Services, please contact Victoria Thomas on 02920 853752.

Risky Business

Financial Penalties for Employers

Health and Safety Training Courses

The Minister for Employment Relations, Jo Swinson, has announced plans to implement s.16 of the Enterprise and Regulatory Reform Act 2013 on financial penalties for employers in April 2014.

The change gives an Employment Tribunal the power to order employers that have breached employee rights (and where the breach has one or more aggravating features), to pay a financial penalty of between £100 and £5,000 into Government coffers. The penalty will be, in most cases, 50% of the amount of any award that the Tribunal makes against the employer.

Penalties will be reduced by 50% if the employer pays within 21 days of the notice of the decision to impose a penalty being sent.

This additional penalty is separate from the potential 25% uplift to compensation which can be imposed by the Tribunal for nonadherence to the ACAS code of practice.

Frequently Asked Questions When Does CDM Apply to a Project?

The CDM (Construction, Design and Management) Regulations 2007 apply to most common building, civil engineering and engineering construction work. You must notify the HSE of the site if the construction work is expected to either:

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

The Manual Handling Operations Regulations 1992 set no specific requirements such as weight limits. Instead, they recommend an ergonomic assessment based on a range of relevant factors is used to determine the risk of injury and identify the following hierarchy of control measures:

•• Avoid hazardous manual handling operations

so far as is reasonably practicable, for example by redesigning the task to avoid moving the load or by automating or mechanising the process

•• Make a suitable and sufficient assessment of any hazardous manual handling operations that cannot be avoided

•• Last longer than 30 days; or •• Involve more than 500 person days of construction work;

The HSE should be notified in writing before construction work starts using form F10.

Notification should be sent to the HSE office nearest to the proposed site.

•• Reduce the risk of injury from those operations so far as is reasonably practicable. Where possible, you should provide mechanical assistance, for example a sack trolley or hoist - where this is not reasonably practicable, look at ways of changing the task, the load and working environment

Modern medical and scientific opinion accepts the scale of the problem and stresses the importance of an ergonomic approach to remove or reduce the risk of manual handling injury.

Ergonomics is sometimes described as ‘fitting the job to the person, rather than the person to the job’ and takes into account a range of relevant factors, including the nature of the task, the load, the working environment and individual capability.

•• 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

Each of these factors may influence the others and none of them can be considered on their own.

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3

Risky Business

In Court Company Allowed Work to Continue After Identifying Asbestos A company in Poole has been fined for safety breaches after exposing workers to potentially fatal asbestos at a disused tile factory.

£20,000 Fine Following Fall in Leicester Square A contractor has been fined £20,000 and ordered to pay costs of £13,365 after a worker broke his left leg and several bones in his foot after falling four storeys from an unguarded edge.

Poole Investments plc, a subsidiary of Inland Homes plc, had agreed to sell redundant plant machinery at the factory site to a local trader.

While demolishing part of a disused pottery kiln and removing kiln carts from the site, the trader unwittingly released asbestos dust and fibres.

Surrey-based Beck Interiors was the principal contractor for a major project to renovate the Hippodrome Casino in Leicester Square when the incident happened.

Bournemouth Magistrates Court heard that Poole Investments commissioned a firm to carry out an asbestos survey but allowed work to take place on site and next to the damaged kiln before the survey was completed.

Westminster Magistrates’ Court heard that the 35-year-old sub-contractor was working in a loft overlooking a plant room after taking an alternative route from the roof area of the building.

Once the company had received the survey report, which clearly stated asbestos debris was present and that the area should be made out-of-bounds, they allowed work to continue at the premises.

His fall was two-staged as the unguarded edge was above a plant room. He fell into the room and then through a riser duct for an air-conditioning system, where he then fell a further four storeys.

The total distance was more than 14 metres.

Following an investigation by the HSE, Poole Investments plc was fined £60,000 and ordered to pay a further £19,090 in costs.

The HSE investigation found that there was no edge protection in the loft to prevent a fall and the riser duct for the air-conditioning was exposed because a sturdy cover had been removed, with just a plastic sheet to keep out the dust. This offered little resistance as he fell through it.

The court heard that had the edge been adequately protected then the incident could have been avoided. Secondly, a properly secured cover for the duct could also have prevented the initial one storey drop from becoming worse.

Following the hearing, HSE inspector Stephron Baker-Holmes said: “This case highlights the need for principal contractors to proactively manage work at height risks, and to take appropriate action to prevent or mitigate falls”.

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 Caerphilly Swansea Haverfordwest Hereford

Speaking after the hearing, HSE inspector James Powell, said: “Poole Investments plc committed safety failings that led to workers being needlessly exposed to dangerous asbestos dust and fibres.

They failed to identify that asbestoscontaining material was present on the site before the work started.

Worse still, they allowed this work to continue even after they were in possession of a report showing asbestos was present.

Asbestos-related diseases kill more people than any other single work-related cause. All types of asbestos can be dangerous if disturbed. The danger arises when asbestos fibres become airborne. They form a very fine dust. Breathing asbestos dust can cause serious damage to the lungs and cause cancer.”

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Turf Company Ordered to Pay £180,000 Over Death A company in Kent has been ordered to pay over £180,000 in fines and costs after a worker was killed by dangerous lifting equipment on a tipper lorry.

Brian Peek, 57, sustained fatal injuries while unloading bags of hardcore and aggregate for Moores Turf & Topsoil Limited.

The incident could have been prevented had more suitable equipment been provided The lorry was fitted with a small crane and clamshell bucket, which Mr Peek was using to grab the bags and lower them to the ground.

As he unloaded the final bag, he leant over the back of the lorry and the crane slew round and trapped his neck between the bucket and the back of the lorry’s tipping body. Mr Peek was pronounced dead at the scene.

Following an investigation by the HSE, Canterbury Crown Court heard that the equipment supplied to Mr Peek was in a poor state of repair and the system of work employed to unload bulk bags of aggregate and hardcore was unsafe.

The court heard the incident could have been prevented had more suitable equipment been provided for the unloading task, such as a flatbed lorry and forklift truck. Moores had such equipment available for use, but chose to send the crane-mounted tipper instead.

Following the sentence, HSE principal inspector Mike Walters said: “Brian Peek’s tragic death could and should have been prevented. The lifting equipment on the lorry was badly maintained and simply wasn’t safe to use.

Had Moores Turf & Topsoil taken time to properly assess the risks associated with the delivery of bulky bags of hardcore and aggregate, it would have become clear that a safer method of working was necessary and could be used.”

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.