UK Health and Safety e-lert - Crowell & Moring

Welcome to Crowell & Moring's latest Health and Safety newsletter. This newsletter has an element of employment issues, and therefore we hope it will be valuable reading for Health and Safety Managers and Human Resource managers alike. We would welcome your feedback on what you would like to see in future e-lerts.

In this issue, we will be looking at the thorny problem of stress in the workplace, and the experience of some NHS Trusts for their stated failure to deal with workplace stress. Related to that, we touch on Data Protection Principles as they impact on witness evidence.

We will also be looking at the topic of privilege, and how this impacts not only lawyers but also managers and independent consultants.

There is a review of R v Norwest Holst Construction & Others and a brief overview of the ever developing area of nanotechnology.

Stressing improvement?

An Improvement Notice was issued against United Lincolnshire Hospitals NHS Trust earlier this year. This is only the second recorded time that the Health and Safety Executive has issued such a notice (notably the first Improvement Notice recorded on the database was also against an NHS Trust in 2003). The HSE website and their stress e-bulletin make it clear that the HSE are taking the issue of workplace stress very seriously….

In 2003 an Improvement Notice was issued against West Dorset General Hospitals NHS Trust following complaints about bullying and long working hours.

The Inspector visited the Trust following a complaint from a former employee who had resigned claiming bullying and harassment. The Trust admitted that they had not made an assessment of the risk associated with work-related stressor and that they did not have a policy in place to manage stressed staff. Indeed the inspector apparently found that the Trust were a "long way" from where they should be "…no policy, no workload monitoring, no analysis of sickness absences, a long hours culture and a failure to act on a staff attitude survey dating from 2001 indicating that bullying & harassment was a significant stressor not being managed by the Trust…"

He was also impacted by what he perceived as a reluctance to treat this issue as a priority.

The issue of the Improvement Notice is said to have led to a rapid improvement in stress management at the Trust, indeed the inspector commented that the Trust exhibited an "exemplary" approach from the point of his intention to serve the Notice.

The second recorded Improvement Notice was issued against United Lincolnshire Hospitals NHS Trust earlier this year.

Employers are therefore cautioned to take careful note of the rising trend of issuing Improvement Notices, and take steps within their organisation to improve how they manage stress at work. It is clear that the issue of workplace stress is taken very seriously by the HSE who see the problem of employers failing to meet their stress management obligations under Health and Safety law as very serious.

Employers should therefore carefully review their policies and procedures to ensure that adequate assessments are made of the risk associated with work-related stressors and ensure that appropriate monitoring and policies and procedures are in place for dealing with the issue.

There is also a noticeable increase in the number of employees who seek civil damages as a result of stress at work. Although case law has established some tough hurdles for a Claimant to overcome when presenting a "stress at work claim" those same hurdles do not apply when the claim is pursued under The Protection from Harassment Act. Although originally intended to address the issue of stalking is increasingly seen as a vehicle to pursue damages by those who suffer harassment in the work place.

Witness protection

The issue of the Improvement Notice also raised an interesting point on the Data Protection Act, which is relevant in any witness situation….

The Improvement Notice served on Dorset General Hospitals NHS Trust in 2003 was the subject of a request for information under the Freedom of Information Act. In dealing with the request, the HSE were obliged to contact the original complainant to ask for consent to disclose information that was clearly "personal information". The complainant did not give consent, and as such the HSE were required to delete all information relating to the complainants name, role and position as such information would allow the complainant to be easily identified. Accordingly, such disclosure without consent would be a breach of the Data Protection Principles as set out in the Data Protection Act.

Care should be taken in respect of any witness evidence that consent to disclose personal information is obtained, failing which any information which could identify the individual should be deleted.

Privileged professionals?

Failure to understand the rules on privileged communications can result in unqualified advisers having to disclose information or advice that they thought was confidential. This can have serious implications if there is subsequently an investigation or prosecution…

The issue of legal privilege will be familiar to lawyers, but is it something that is widely known by HR professionals or Health and Safety professionals? Sadly the applicable principles are sometimes misunderstood by employers, managers and their advisers, and as a consequence employers may find themselves having to disclose advice they believed to be confidential.

The key is that privileged communications are not subject to the usual rules of disclosure, and fall into two categories - legal advice privilege and litigation privilege.

Broadly legal advice privilege protects confidential communications between a lawyer and a client for the purpose of giving or seeking legal advice for any purpose. The advice must be requested from or given by professional legal advisers acting in that capacity (friendly legal advice from a friend who happens to be a lawyer does not count). Therefore, legal advice privilege does not extend to people who are not legal advisers. Advice from in-house counsel will attract privilege (although there are a number of cases that consider this point. The advice must be legal advice if it is business or strategic advice then privilege does not necessarily attached), but advice from and HR or Health and Safety manager will not. Similarly advice from an external lawyer will be protected, but advice from and external Health and Safety consultant will not be protected.

Litigation privilege protects confidential communications between an employer, a legal adviser and a third party (perhaps an expert Health and Safety Consultant) where those communications have come into existence for the principal purpose of being used in connection with actual or contemplated litigation. However the advice must be for the principal purpose of being used in connection with actual or contemplated litigation - the fact that litigation is contemplated is not enough to attract the protection of privilege.

Therefore any employer should use care to ensure that all confidential advice sought and received is protected by using the services of a qualified practising lawyer - the services of an independent highly qualified consultant will not necessarily attract the required protection.

The early involvement of a qualified practicing lawyer is essential otherwise reports and documents prepared immediately after an incident will not attract litigation privilege.

R v Norwest Holst Construction Ltd and Costain Ltd

The unforeseeable actions of an employee are not a condemnable reason to prosecute the employer. It is becoming increasingly difficult for the HSE to justify attempting to prosecute employers whose employees have been injured either seriously or even fatally due to no fault of the employer; such cases in which the employee has suffered an injury due to their own unauthorised exploits have been coined "going off on a frolic of [their] own".

Provided a company can produce evidence of having taken all the necessary measures to ensure safety, then organisations should be slow to plead guilty to "wholly unforeseeable and dangerous acts of its employees".

A case concerning the death of construction worker Ismail Altun, who was working on the Hungerford Bridge Millennium Project, throws light on the argument. Altun was involved in the dismantling of a temporary drilling platform, and had been instructed by Alan Healey, who was in charge of the dismantling, to carry out some welding on the structure. The problem arose when Altun embarked on what can only be described as a "frolic of his own", as he attempted to carry out further uninstructed work (cutting the welds on the substructure) which resulted in the beams and the platform being unbalanced, resulting in one beam fatally wounding his chest.

The irrational nature of such a "frolic" suggests that blame for its cause cannot be pinned on anything other than the inexplicable workings of the human mind. Thus, attempts at prosecution of the employer by the HSE seem futile; surely there are only so many measures that an employer can take to ensure that the safety regulations it advocates are adhered to? With regards to Altun's case, HSE attempted to prosecute both construction companies that ran the project on the basis that there were safety risks for non-employees, and that the procedure used to dismantle the platform was unsafe. One might argue that Altun was not instructed not to carry out the work that he did, however an objection to this highlights its irrelevancy, in that his cutting the welds was an action that no-one could predict; it was entirely needless and could only be the product of an unstable mind at the time.

Should the employer be held accountable for the products of this unstable mind? The employer has an obligation to ensure the safety of its employees. With regards to Altun's case, this included ensuring that the structural design of the project was safe, that the methods of dismantling were sufficient, and that the employees were fully aware and understood their tasks and any hazards. Beyond this, the employer could not accurately predict or foresee any of the actions of its employees; therefore, the employer cannot be held responsible for the unforeseeable movements of its employees. The outcome may have been different if there was evidence of a culture of disregard for rules and procedures.

Key points to note from this case were:

• There was no language barrier
• An adequate method statement had been prepared
• The team had been briefed
• Radios were available to make contact between members of the team

OECD issues guidance documents on nanomaterial exposure at the workplace

The nanotechnology sector appears poised for considerable economic growth. However, many concerns have been raised about the potential harmful nature of nanomaterials, in particular as regards workplace exposure.

Furthermore, nanotechnology is an area in constant development with new applications continually emerging that are likely to lead to new, currently unforeseen, exposure scenarios. Thus, there is considerable need for environmental, health and safety data on nanomaterials as well as guidance on how the risks should be managed in the workplace.

In this regard, the Organisation for Economic Cooperation and Development ("OECD") is playing a key global role in assessing the risks (and opportunities) posed by nanotechnology. In particular, on 9 July 2009, the OECD published three guidance documents related to exposure to nanomaterials:

• a report of an OECD workshop on exposure assessment and exposure mitigation for manufactured nanomaterials ("MNs"), held in October 2008 in Frankfurt, which includes a summary of the plenary presentations as well as the presentations that were given;
• a comparison of guidance on the selection of skin protection equipment and respirators for use in workplaces that use nanomaterials; and
• a compilation of existing guidance on emission assessment for the identification of sources and release of airborne nanomaterials in the workplace.

These reports were prepared by the OECD's Working Party on Manufactured Nanomaterials ("WPMN"). The WPMN was established in 2006 with the aim of promoting international cooperation in human health and environmental safety related aspects of MNs, in order to assist in the development of rigorous safety evaluations. The work is implemented through eight projects. The three documents released on 9 July were in the context of the project on "Exposure Measurement and Exposure Mitigation".

A key objective of this project is to address exposure to MNs in occupational settings and it aims to do this by exchanging information on guidance documents for exposure measurement and exposure mitigation and to develop recommendations on required future work to be undertaken.

Whilst the OECD is simply an intergovernmental organisation and thus has no power to legislate, these documents on exposure to MNs in occupational settings provide useful guidance to employers on how to deal with particular potential scenarios. Additionally, the reports are likely to be taken on board by regulatory authorities (including the UK government and the EU institutions) and thus may end up shaping likely future nanotechnology-focused legislation.

Miscellaneous matters

• MSD directive proposals
• Sentencing guidelines
• Fire safety

The European Commission are proposing a new directive dealing with work related musculoskeletal disorders.

Employers would be expected to evaluate risks associated with certain tasks and prepare a ergonomic prevention programme with the intention of controlling or reducing exposure to those risks. The UK Government is currently resisting this and attempting to look at a simpler form of regulation.

The Sentencing Guidelines Council (SGC) is developing guidance in relation to sentencing individuals under the Health and Safety (Offences) Act. The Act gave Magistrates Courts increased powers in relation to higher fines and to impose terms of imprisonment. The Guidelines are due later in the month and will feature in our next update. The Guidelines in relation to the sentencing of corporate manslaughter offences is yet to be released.

Fire safety should always be a focus but an even greater need for proper consideration and appreciation of the Regulatory Reform (Fire Safety) Order 2005 follows a record fine against Shell. They were fined £300,000 and ordered to pay £45,000 in costs following two small fires in their offices at Shell Centre in London.