UK Health & Safety / Employment e-lert: Tis the season to be jolly (well not that jolly!)

In our November e-lert we promised an update on two cases that were coming on for appeal on 9th December. We have now heard that these hearings have been stayed pending the decision of the Supreme Court in the case of Baker v Quantum Clothing Limited which we understood was heard last week.  We will update you with news as soon as it is available.

This case (commonly referred to as the Nottinghamshire & Derbyshire Textile Litigation) concerns liability at for noise induced hearing loss (NIHL) arising from long-term exposure to low levels of noise. At first instance the court held that one of the test Claimants (Mrs Baker) had proved NIHL but dismissed her claim on the grounds that her employer was not in breach of s29 of the Factories Act 1961 or in breach of its common law duty. On appeal the Court of Appeal allowed Mrs. Baker's appeal. The Court of Appeal ruled that s29 of the 1961 Act imposed an absolute duty which was subject only to the defence of reasonable practicability; that the issue of safety of the workplace was to be judged objectively without reference to reasonable foresight of injury. On the issue of "reasonable practicability", the Court of Appeal ruled that average sized employers were in breach of s29 in respect of exposure to noise levels of 85 dB (A) or more from January 1978.

The appeal to the Supreme Court raises questions of law of general importance regarding liability for NIHL prior to the introduction of the Noise at Work Regulations 1989, and challenges are made to the Court of Appeal's rulings on s29 Factories Act 1961 & its date of knowledge. Guy Warwick Limited (which was a Defendant at trial but was not a party in the Court of Appeal) has been given permission to intervene in the Supreme Court appeal to address arguments specific to the small employer. Although a civil case it will have implications on health and safety prosecutions particularly how the criminal courts interpret "reasonable practicability". Watch this space. We are grateful to our friends at Crown Office Chambers for their updates as to progress in the case.

Whilst we await that decision, we can perhaps focus on health and safety matters closer to home. Whilst in the grip of a biting cold spell, we return to the risk of occupational road risk. Regular readers know that we have covered the issue on a number of occasions, and ran a seminar series this year on the subject including a mock trial for Corporate Manslaughter. However, at this time of year it is appropriate to remind readers that occupational road risk is potentially one of the most challenging issues facing risk professionals. The impact of severe weather conditions, and when they subside, the challenges faced by the Christmas party season cannot be denied. It is appropriate to remind all your employees of the terms of your road risk policy and emphasise the following:-

• Ensure the roadworthy state of their vehicle at all times - this is particularly important at this time of year with severe weather conditions - check on tyres, water, oil and fuel prior to each journey and ensure that the vehicle has appropriate equipment - including perhaps a shovel, warm clothing/blankets and appropriate warm drinks and snacks in the event of being stranded.
• Ensure that the vehicle is appropriately taxed, MOT'd and insured and serviced at appropriate intervals.
• Always follow police and emergency service guidance - if they recommend journeys should not be made unless an emergency, instruct staff NOT to make journeys. Listen for AA and RAC reports on road conditions.
• Have a mobile phone in the vehicle, but never use the phone in the vehicle without appropriate Bluetooth or other hands-free approved equipment
• Always make allowance for prevailing weather and road conditions and adhere to the Highway Code.
• Report any health concerns and never drive under the influence of drink and drugs.

A related subject is the risk of the Christmas party.  Obviously the risk of occupational road risk links in to the risk of Christmas party if alcohol and driving combine, but there are other risks involved. Ideally there should be a party policy in place reminding everyone to have a good time but to take care of the risks. If a policy has yet to be formulated a simple email to all staff reminding them of the following is better than nothing!

• Review the venue to make sure there are no serious risks from frivolity - if you are having the party within your office premises, ensure day to day office equipment will not provoke a problem - dancing on glass top desks is less than wise!
• Ensure the invitation list does not discriminate against protected groups, and take care to acknowledge that not all workers will be celebrating the Christian festival of Christmas.
• Keep the provision of free alcohol to a reasonable level.
• Steer clear of potential mine fields – the Christmas party is not the time to discuss promotion prospects.
• Make sure that everyone can get home safely.
• Be clear in your expectations for the day following the party - or fix it for a day when there is no work the next day!

We wish all our readers a happy and safe Christmas break. Remember the issue of Health and Safety is not limited to the workplace, take care at home too. Warnings have been issued to Consumers buying electrical goods on the internet in the run-up to Christmas.  An industry safety body says as many as one in ten items bought online can result in a fire. Shoppers are being advised to take particular care when purchasing online from a site based outside of the EU - if the deal seems too good to be true it probably is! And did you know that RoSPA has estimated that more than 80,000 people are expected to have a trip to hospital during the 12 days of Christmas, rushing to open presents, problems putting toys together, trailing cables from new electrical goods and kitchen disasters all play a part, while 1,000 people have to receive treatment following mishaps with Christmas trees!

Happy Christmas all!!