UK Health & Safety / Employment e-lert: the winter of our discontent

Lord Young of Graffham has recently been at the centre of controversy.  In October he published his report on Health and Safety law and practice, "Common sense, Common safety".  As the Prime Minister's adviser he put forward a series of policies for improving the perception of health and safety.  The Government has accepted all of the recommendations put forward by Lord Young.  The key recommendations include:-

• Extending the simplified road traffic Personal Injury Scheme to include other personal injury claims;
• A "common sense" approach to educational trips;
• Consultants who undertake workplace assessments to be professionally qualified and registered on an online database;
• The Government to clarify that individuals will not be held liable for any consequences due to well-intentioned voluntary acts;
• Risk assessment procedures for low hazard workplaces to be simplified and employers to be exempted from risk assessments for employees working from home in a low hazard environment;
• Officials who ban events on health and safety grounds should be required to put their reasons in writing and follow a process relating to the refusal; and
• Amend RIDDOR and examine the regulations to determine whether this is the best approach to providing an accurate picture of workplace accidents.

Whilst all these intentions are laudable, there is a concern as to how this will interact with the public spending cuts.  It is difficult to anticipate that the aims of the review will be easily achieved when the TUC reported on 8 November that they were concerned that the inspection of workplaces by Health and Safety Inspectors would be adversely affected by the spending cuts.  They take the view that this is the only means of improving workplace safety (no mention was made of Lord Young's review).  The TUC note that only 50% of all workplaces have been inspected, and with cuts to the HSE of 35% at central government level and 28% at local government level it is unlikely that inspections will increase.

In the prelude to the report there was much debate concerning "one in one out" in respect of health and safety and employment law regulation.  How that will be achieved is unclear, in particular as private members bills are not included.  Recently no less than seven bills relating to health and safety were tabled by a private member!

Lord Young found himself again in the spotlight following an interview on the Today programme.  He was being interviewed following his appointment to prepare a new report on how government plans to become friendlier to small businesses.  As part of the interview he noted that unemployment levels had fallen after the qualifying period was increased to two years in the 1980s.  As such, there has been frenzied discussion in the media as to whether there are plans afoot to reinstate the previous two year qualifying period of continuous employment for entitlement to unfair dismissal rights.  Lord Young was keen to stress that he wanted the views of others and that this was not a current proposal.

Prejudicing settlement or just a privilege?

An important case has recently been heard in the Supreme Court on the status of without prejudice discussions.  Readers will know that very often settlement discussions are held on a without prejudice basis, to enable full and frank discussions to be held without risk of those discussions being adduced in evidence at a later date.  The Supreme Court has recently ruled that an "interpretation exception" should be recognised as an exception to the general rule that such discussions cannot be referred to.  In this case the parties in question had entered into a settlement agreement, the dispute centred on the parties' different interpretations of what a particular clause in the settlement agreement meant.  Although the negotiations were "without prejudice" one party wanted to adduce details of the discussion to demonstrate that its interpretation of the clause was in accordance with what the parties had intended.  The Supreme Court agreed as "justice clearly demands it".  It is still in only very exceptional circumstances that a tribunal or court will hear evidence of what the parties' discussed in the prelude to a settlement, but the exception is worth bearing in mind.

An important decision was handed down by the Court of Appeal in October dealing with legal professional privilege.  The Court of Appeal reaffirmed the principle that communications from an accountant giving legal advice do not attract legal professional privilege.  The court confirmed that the rule is only available if the advice is sought from a lawyer, and is not available to clients of non legally qualified advisers.

Compromising (e)quality under the new act?

There has been much debate regarding an apparent drafting error in the new Equality Act.  The Law Society and the Government appear to be at loggerheads, and unless the issue is resolved swiftly, the battle could have far reaching implications for the use of compromise agreements between employers and employees.

The issue is this.  Section 147 of the Equality Act sets out the requirements needed to reach an effective compromise contract to settle claims arising under the Act.  One of these is that the complainant must receive advice from an "independent lawyer" which excludes from the definition someone who is acting for a person who is either a party to the contract or the complaint, or connected to such a person.  The Law Society has released a statement indicating:-

"a solicitor who was instructed by the employee prior to the production of the final contract for consideration; or who has acted in any way for the employee during the course of his complaint - even in a supporting role to the lead adviser... will be precluded from acting any further as an independent legal adviser in that compromise contract...the effect of this is that there is no way in which compromise agreements until the Equality Act can be made enforceable".

This does not make sense at all as it is standard for employment lawyers to advise clients who become parties to a compromise agreement or complaint.  Such advice would now mean under the new act they are not independent of the employer which is an obvious mischief.  The Government does not agree with this interpretation and has taken advice from a leading QC on the subject.  The Law Society has requested a meeting with the Government Equalities Office to consider the question.  In the meantime employers may wish to use ACAS in finalising a settlement until the conundrum is resolved as the Act does allow for a previous adviser to be involved where the agreement is made with an ACAS conciliation officer using a COT3 instead of the more common compromise agreement.  Watch this space; we will update you on developments in this troubling area.

Deadlines Reach Out for EU Classification, Labelling and Packaging Regulation

Regular readers will know that deadlines are looming for changes in classification, labelling and packaging.  As a consequence Industry needs to establish what the hazards of substances and mixtures are before they are placed on the market, classify them in line with the identified hazards, and label and package hazardous substances and mixtures so that workers and consumers know about their effects before they handle them.  In the UK maximum penalties of an unlimited fine and/or up to two years' imprisonment are available to courts convicting following an infringement.

1. Obligation to notify the European Chemicals Agency

Manufacturers and importers in the EU (including US-based companies which import substances into the EU) will need to notify certain substances to the European Chemicals Agency by January 3, 2011 unless they have already submitted a registration under the EU REACH chemical substances legislation for the substance.

2. Obligation to classify, label, and package substances

Manufacturers, importers and downstream users in the EU will need to classify, package and label substances or mixtures before placing them on the market and manufacturers and importers in the EU will need to classify substances which are not placed on the market if they are subject to registration or notification in accordance with REACH. 

The timelines are specific according to the substance.  It is therefore advisable for suppliers of substances or mixtures in the EU to develop a company inventory of their substances and mixtures, including those substances contained in mixtures and take advice as to the needs of the new legislation in respect of your organisation in terms of the notification classification labelling and packaging requirements.  We have specialists available to assist you in this complex and challenging area.

Freedom to choose?

We are often asked whether claimants with the benefit of legal expense insurance can choose their own lawyers.  The answer was again considered in the summer after the European Commission expressed an interest in how member states have implemented the 1987 Legal Expenses Insurance Directive.  This followed an Austrian case which made clear that any provisions in an insurance contract that detracted from or qualified and insured's right to choose would be in breach.  The Financial Services Authority Insurance Director wrote to all insurers in the light of the decision reminding them of their obligations to claimants in respect of the choice of lawyer.

Update from the Courts

Following on from our e-lert on the subject of the sentencing guidelines in February this year, we thought an update on recent developments was in order.  What was thought to be the first prosecution under the new Corporate Manslaughter Act was adjourned in August 2009 due to a defendant director's ill health, the case was adjourned again in February 2010 and again in October until 24 January 2011 when the case against the company will be heard (the charges against the director personally have been permanently stayed on account of his ill health).  It is understood that the solicitors representing the company are looking to have the case dropped altogether.

In October a fine of £1 was imposed on Glenmill Group (Developments) Ltd which was prosecuted after a worker was killed as a result of a fall from faulty scaffolding.  The Judge at Preston Crown Court took into account that any significant fine would cause the company to go out of business, as the court were required to do under the February Guidelines.
Two significant cases are understood to be listed for hearing in the Court of Appeal on the 9 December:-

• The waste company Veolia was fined £225,000 and costs of £95,239 in August of this year after a litter collector died in a collision between one of its vehicles and a lorry in 2007. At the time of sentencing the company said it regretted the death of Mr. Griffiths, but believed it was an accident and would appeal.  Mr. Griffiths was litter picking on a grass verge, with a colleague driving the caged Veolia vehicle alongside him.  A large goods vehicle collided with the caged vehicle which then hit Mr. Griffiths who died at the scene.
• Tangerine Confectionary was fined £300,000 and costs of £72,901 after an employee blockage, but the machine restarted and killed him.  At the time of sentencing the company extended its sympathies to Mr. Pejril's family but indicated that they would be appealing

We will update you as soon as the appeal decisions in these important cases are handed down.