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UK Health & Safety / Employment e-lert: Summertime and the living is easy… or are the risks just too high?.....

Jul.20.2010

Summertime is finally here, in our summer round up of all things health and safety and employment-related we cover: the government's move to review health and safety legislation; the vexing issue of liability for social events; e-communications in a health and safety prosecution; REACH; and some interesting developments in the courts and guidance from the HSE. Happy reading and remember to take care of your own personal health and safety in the sun… by the pool…at the barbeque….at the airport…

The Young Review

Almost immediately the new government came into power David Cameron commissioned a Review of Health and Safety by Lord Young, who himself describes Health and Safety law as a "music hall joke". Lord young was formerly Trade and Industry Secretary in a former Conservative regime and held a number of other cabinet posts in the 1980s. Mr Cameron has pledged to take on "compensation culture", as this is apparently at the root of the decision to commission the review with Mr Cameron commenting that:

"the rise of the compensation culture over the last 10 years is a real concern" .

Is this concern really justified, or is it pandering to media frenzy and popular prejudices about "elfin safety"? It is not the legislation that is the problem, rather it is the fear of litigation - arguably it would be more sensible to explode the myth about compensation culture so that the general public could begin to understand that risk assessment is about protecting their enjoyment rather than preventing their enjoyment. A review of the law is not going to prevent bizarre decisions being taken or decisions being misinterpreted by the tabloid press. Children wearing safety goggles whilst playing conkers was not dictated by the legislation, rather by the fearful actions of a head teacher wanting to avoid litigation.

Lord young has said

"Health and safety regulation is essential in many industries, but may well have been applied too generally and have become an unnecessary burden on firms, but also community organisations and public services…I hope my review will reintroduce an element of common sense and focus the regulation where it is most needed. We need a system that is proportionate and not Bureaucratic" .

Yes Lord Young, but we also need to remember that the legislation is there to protect us all from serious harm, and deregulation to pander to the sensibilities of the tabloid press would be a disaster.

Vicarious Liability

One of the perks of summer is the office summer party or barbeque, but what about the issue of vicarious liability? Regular readers will be aware that employers are vicariously liable for negligent acts or omissions by their employees in the course of their employment.

Many employers have asked the question "where does this leave us on the issue of awaydays or parties?". Although there is a troubling line of cases that hold the employer liable for nefarious or questionable activities outside the workplace (often relating to abuse or connected to those employers that are regulated by statute or different duties such as the MOD or the police service), we take the view that employers should always be guided by standard principles to take care of the safety of their employees without being overly troubled by the issue of vicarious liability.

It always helps to send out a reminder to staff before these events asking them to behave sensibly, just as many people do around the Christmas party season.

Here are some points to consider: -

  • remember to extend the invite to all potential guests to avoid the risk of discrimination;
  • think carefully about when the event is to be scheduled - midweek perhaps to be avoided?
  • off site or not, the laws on discrimination are clear, and there is a line of cases that clearly state that the laws apply regardless of location. Be watchful of any unwanted advances between employees. Be careful also if you plan to invite any external speakers - readers will recall that when Bernard Manning was invited to speak for one company the venue was deemed liable for the offence caused to their waitress by a racist joke.
  • warn staff that although alcohol is permitted and possibly free, that inappropriate behaviour will not be tolerated and they must behave reasonably;
  • if activities like team sports are planned, bear in mind these should be sensible - we warned in our last e-lert not to condone jumping on the tables at the world cup viewings, that advice applies here, make sure that you are not condoning obviously risky or dangerous behaviour;
  • think about whether insurance is advisable or needs to be amended if team or sporting activities are planned;
  • If alcohol is to be provided consider how your employees will get home - occupational road risk should not be overlooked (especially to those that participated in the recent seminar on the subject!);
  • follow through with appropriate disciplinary action if necessary.

E-discovery

Regular readers will know that since the introduction of corporate manslaughter and other health and safety legislation the stakes have been raised for those charged with ensuring health and safety compliance. It is now much easier for there to be a prosecution against a company for corporate manslaughter following a fatal incident in the work place. In any investigation this necessarily makes it more likely that representatives of a company could be arrested and interviewed following a serious incident. What are the obligations to provide (either to the Police or the Health and Safety Executive) documentation, computers, mobile phones and/or any e-communications following an incident?

Timing here is crucial. If the Police have cause to suspect that there have been management failings, and that those failings have led to a fatal accident, they can arrest any "senior manager" that they think would have had responsibility for making sure appropriate policies and procedures where properly instigated.

On arrest, the Police have the power to search the area where a suspect has recently been, and to seize items that they think could assist in their investigation. If they suspect corporate failings, this is likely to include computers, mobile phones and IT equipment. If an individual has been arrested at work, this would enable the Police to seize items such as files and computers from the work place, if they are considered relevant. Were an individual to be arrested at their home shortly after they had left the scene of an incident, it is likely that the Police would be entitled to search not only their home but also their place of employment where they had in the past few hours.

It is important to note that the arrest of a corporate representative where the company is suspected of having committed an offence is only likely to happen shortly after an incident if there is very clear evidence that a human/corporate failing has lead to the incident. This is perhaps unlikely as it will not normally be clear to the Police (or the HSE) when they initially attend site what the cause is. It is therefore more likely that the Police will take time (and in some cases, a rather long time) to investigate before making any decision about whether or not to interview or arrest/charge anyone. In most cases this will give the company time to conduct their own internal investigation (and review emails/documents etc.).

If the Police do not arrest, the only way that they may obtain copies of computers, mobile phones or IT equipment etc. would be to secure a warrant via the courts.

Once the Police have completed their initial investigations (and decide not to take matters further), they will hand the investigation over to the HSE who will investigate whether there is any evidence of health and safety offences having been committed by individuals or the company. Once the HSE have primacy they will often request that the company co-operate with their investigation, which can involve them requesting the handing over of various items - which can include computers and IT equipment. They also have their own powers (under s.20 of the Health and Safety at Work etc. Act 1974) to compel the company to hand over certain information. The important point here is that it is unlikely that the HSE would request/demand the disclosure of this sort of information in the immediate aftermath of an incident but may do so as their investigation develops.

In the light of the above, it is important that all employees/staff know that all and any electronic communications (texts, emails etc.) could be seized and/or become disclosable if the Police or HSE descend on the company. It is therefore vital that, as well as having appropriate health and safety policies and procedures in place, a company should also have suitable e-communication and IT policies and that staff know about these and receive appropriate training.

REACH

REACH is a European Union regulation concerning the Registration, Evaluation, Authorisation and restriction of Chemicals. It came into force on 1st June 2007 and replaced a number of European Directives and Regulations with a single system. This has been the subject of many client e-lerts, but finally the enforcement guidelines are available. Our September newsletter will bring the detail.

Latest developments

Finally, what has been happening in the courts recently?

  • The Court of Appeal upheld the fine of £400,000 against New Look for breaches of health and safety regulations. Happily the fire did not lead to death, but the fine was in excess of the figure reserved as a starting point for cases of corporate manslaughter, prior to the discount for a guilty plea. It is clear that the Court was sending an unequivocal message to those in control of premises that they must take fire safety as seriously as health and safety obligations generally, and is a departure from the former practice of reserving fines above £500,000 for major public disaster. All those with responsibility for this area should ensure that there assessments, policies and training is up to date.
  • ANDREW SWAIN v (1) GEOFFREY OSBORNE LTD (2) PJ BROWN LTD (2010)

    The court was required to determine whether the first defendant contractor and the second defendant subcontractor were liable for personal injuries sustained by the claimant lorry driver who slipped due to a lack of an adequate system being in place to ensure that the area was kept clear of mud.

    The main contractor was responsible for work carried out on a building site and a system had been in place to wash the wheels of lorries before they left the site. The sub contractor then assumed full responsibility for ground-works that continued on the site.

    The Court held that an unreasonable risk of slipping had arisen from the failure of the system in place adequately to ensure that the footway was kept clear of mud. The main contractor had to bear some measure of responsibility for not ensuring that the sub contractor put in place and implemented a satisfactory system derived from the main contractor's continuing supervisory role. However, the sub contractor had day-to-day responsibility for the works on site and was therefore likely to have to bear the greater proportion of responsibility.

    This case is a stark reminder of the problems of the contractor/sub-contractor relationship.
  • The Health and Safety Executive recently brought a prosecution against both the owner and the inspector of a fairground ride for breaching health and safety regulations in which two women were hospitalised, and one was left with catastrophic spinal injuries. The owner of the Orbiter ride at Moxley Park Fairground in Bilston, West Midlands was fined £15,000 and £5,000 costs. The company which inspected the ride three weeks prior to the incident (which should have revealed the faulty welding) was ordered to pay £35,000 compensation to the victim. HSE inspector Gareth Langston criticised both responsible parties for putting the public at risk.

    This case is reminiscent of the prosecution by the HSE in 2008 relating to an outbreak of legionnaires disease. HP Bulmer employed water treatment company Nalco, to manage risk from legionella bacteria during the use of the evaporative cooling towers at the Hereford cider production facility. The outbreak, which occurred in 2003, caused the deaths of two people. The companies were each fined £300,000 with costs of £50,000. HSE investigating inspector Tony Woodward commented:
    "The fact that building users engage a specialist contractor does not mean that they have complied with the law; they must work with the contractor and ensure they are receiving the service required … Equally specialist contractors and sub-contractors must provide their clients with the expertise which they have been engaged for."
    His comments apply equally to the more recent case against the fairground owner and inspector.
  • And not strictly a case summary, but a statistical summary of cases….The Tribunals Service has published its Annual Statistics Report 2009-10, which shows a substantial increase in the number of claims lodged in employment tribunals. The number of claims in 2009-10 rose to 236,100, a 56 per cent increase on the number of claims lodged in 2008-9. The report suggests that the increase is not simply due to the recession, but to a rise in the number of multiple claims arising out of the same or very similar circumstances. A stark warning to all employers to take care to adhere to the statutory provisions relating to fairness, equal treatment and non discrimination, and adopt appropriate policies and procedures where possible.
  • Finally, following on from an incident in February this year when a young child was killed and a woman injured when a lamp column fell on them, the HSE have issued guidance on the risks associated with working on or near lamp columns. In this incident the lamp column fell outside the boundary of a site where street works were taking place. The guidance recommends that
    • all relevant organisations should be aware of different types of column;
    • before any work is undertaken extensive consultation should take place; and
    • care should be taken not to compromise the stability of the structure.

      This is important guidance for utility companies, local authorities, highway authorities and other construction companies. A copy of the guidance can be accessed here:-

      http://www.hse.gov.uk/safetybulletins/lampcolumns.htm?ebul=safbul/15-jul-10&cr=1.

We wish all our readers a very happy and safe summer.

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