Wales’ First Health, Safety and Employment Law Consultancy to be awarded BS: OHSAS 18001*
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Family-Friendly Rights Increase From March 8th 2013, eligible employees will have the right to 18 weeks of parental leave, instead of 13. Parents who have at least one year’s continuous employment with their employer, will be able to take up to 18 weeks of unpaid leave for each child which they have, within the first 5 years of their child’s life. Parents may take parental leave in respect of an adopted child by the 5th anniversary of the date when they adopted the child (as long as the child is less than eighteen at the time of taking the parental leave). Leave must be taken in blocks of at least one week at a time and at a maximum of 4 weeks per year with 21 days’ notice given. In the case of a child who has been awarded disability living allowance, parents will be entitled to take parental leave up until the child’s 18th birthday and may take the leave one day at a time, if they prefer. Employers can usually postpone the leave for up to 6 months if there is a good business reason, but leave beginning on the day the child is born or adopted cannot be postponed.
If postponement by the employer means that the statutory time limit will have passed, the employee must still be able to take the leave in full. From April 7th 2013, the standard rate of statutory maternity, paternity and adoption pay increases from £135.45 to £136.78 per week. Employees who have been continuously employed for 26 weeks or more by the end of the 15th week before the expected week of childbirth are entitled to 39 weeks’ statutory maternity pay. The first six weeks is payable at 90% of the employee’s average weekly earnings and the next 33 weeks of payment at the rate set by the Government for the relevant tax year (£136.78 from April 7th 2013 or 90% of her average weekly earnings if this figure is less). Subject to specified qualifying requirements, an employee can receive statutory paternity pay for either 1 week or 2 consecutive weeks of ordinary paternity leave, and additional statutory paternity pay for up to 19 weeks of additional paternity leave (although the employee’s total additional paternity leave can be 26 weeks).
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Paternity pay is available to a person of either sex in an adoption situation, and to the spouse, civil partner or partner of either sex of the biological mother of a child. Employees who adopt a child and who have been continuously employed for at least 26 weeks ending with the week in which he or she is notified of having been matched with the child are entitled to 39 weeks’ statutory adoption pay.
Risky Business at a Glance
Family-Friendly Rights Increase HSE Fee for Intervention Figures Published Changes to Criminal Records Bureau Checks Gleision Manslaughter Charges Brought Frequently Asked Questions Health and Safety Training Courses In Court
Risky Business
Changes to Criminal Records Bureau Checks On December 1st 2012 the Criminal Records Bureau (CRB) merged with the Independent Safeguarding Authority and changed its name to the Disclosure and Barring Service (DBS) in preparation for the highly anticipated move to the checks being portable. Under the old system employees would need to have a new CRB check for any new roles. This would often involve the individual having to pay for the check a number of times if, for example, they had more than one job that required it, or they were involved in voluntary work. From March 2013 the new system will allow an employer to pay a fee to join and register with the DBS. This will allow them to apply for access to standard and enhanced criminal records checks of employees. The new system will aim to make it easier to access information for roles that are exempt from the provisions of the Rehabilitation of Offenders Act 1974, as well as to access additional information about individuals who are on the barred list. In addition, once an employee has provided their information and consent, it will allow an employer to simply check whether there have been any changes to their status, thus making it easier for employers to comply with their obligations to review all checks. However, the whole system may be under scrutiny after a recent decision by the Court of Appeal. It was found that the exemptions to the Rehabilitation of Offenders Act 1974 were in breach of Article 8 of the European Convention on Human Rights. The case centred on an individual, referred to as ‘T’, a 21 year old man who received warnings from Manchester Police when he was 11 years old regarding two stolen bikes. ‘T’ was successful in his claim that it was a breach of his human rights as he had been “tarnished for life”. Although the Home Office have indicated that they intend to appeal the decision, stating “the protection of children and vulnerable groups must not be compromised”, it will be interesting to see what the final decision is on this on-going legal battle and the consequences it will have on the future of DBS.
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HSE Fee for Intervention Figures Published
There was a major focus on the construction sector
Recent figures released by the HSE reveal bills totalling over £700,000 were issued to businesses following investigations at over 903 premises during the first two months of the Health and Safety Executive’s (HSE’s) Fee for Intervention (FFI) cost recovery scheme.
“The relatively high numbers in construction reflect its high priority for HSE as a high risk sector, which is why construction is a division in field operations division (FOD), whereas the other high risk sectors are covered by our geographically based divisions.”
Since October last year, the HSE has been able to charge £124.00 per hour for time spent identifying and investigating a material safety breach and assisting the duty holder to put things right. Of the inspections undertaken, there was a major focus on the construction sector, which reflects the HSE’s focus on this industry as a ‘high risk-high priority’ sector.
Anyone receiving an FFI invoice has 21 days from receipt in which to query it, should they believe they were not in material breach of the law or the time the fee is charged for is incorrect. If they remain unhappy after the HSE’s response, they have 10 days in which to lodge a dispute. For further information visit www.hse.gov.uk/fee-for-intervention
Gleision Manslaughter Charges Brought The Crown Prosecution Service (CPS) is prosecuting both the manager and the company who operated the Gleision Colliery, the scene of a tragic accident in September 2011, in which four miners lost their lives.
In addition, MNS Mining Ltd have been summoned for four counts of corporate manslaughter. The CPS alleges that the way in which MNS managed or organised its activities led to the death of the four workers.
Charles Breslin, Philip Hill, Garry Jenkins and David Powell were all killed when the mine in which they were working was flooded by 500,000 gallons of water.
According to the CPS, the company failed to ensure the system of work adopted was safe and that failure amounted to a gross breach of the duty of care the company owed to its employees.
The incident was investigated by South Wales Police, who were supported by the Health and Safety Executive. The investigation aimed to identify the underlying causes of the failures. On completion, the investigation teams referred the incident to the CPS.
It is alleged that the mine manager caused the deaths of the four miners by mining into old, previously flooded mine workings, contrary to health and safety regulations.
The CPS recently concluded that prosecution is in the public interest and there is a realistic prospect of conviction. The mine manager, Malcolm Fyfield, has been charged with four counts of gross negligence manslaughter.
Thomas Carroll
For further information on our Safety for Directors training course, that explains the roles and responsibilities of directors have in relation to health and safety, please contact Victoria Thomas on 029 2085 3752 or e-mail victoria.thomas@thomas-carroll.co.uk
Risky Business
Frequently Asked Questions
Health and Safety Training Courses
How many first-aiders do I need? The findings of your first-aid needs assessment will help you decide how many first-aiders are required. The table below provides general guidance on how many first-aiders or appointed persons might be needed. 1. From your risk assessment, what degree of hazard is associated
2. How many employees
3. What first-aid personnel
do you have?
do you need?
Less than 25
At least one appointed person
25 - 50
At least one first-aider trained in EFAW
More than 50
trained in FAW for every 100
with your work activities?
Low hazard e.g. offices, shops, libraries
At least one first-aider employed (or part thereof)
Higher hazard
Less than 5
At least one appointed person
5 - 50
EFAW or FAW depending on the
e.g. light engineering and assembly
At least one first-aider trained in
work, food processing, warehousing, extensive work with dangerous
type of injuries that might occur
machinery or sharp instruments, construction, chemical manufacture
More than 50
At least one first-aider trained in FAW for every 50 employed (or part thereof)
Can legal action be taken against first-aiders? It is very unlikely that any action would be taken against a first-aider who was using the first-aid training they have received. However, it is recommended that you seek advice from your insurers on whether your insurance policies cover first-aiders’ liability.
Why apply for a NEBOSH Certificate? Latest statistics published by the HSE show that in 2011 26.4 million working days were lost due to work related illness and workplace injury costing an estimated £14 Billion. There has never been a better time to ensure that your business does not become a statistic, by ensuring that employees are appropriately trained to deal with every eventuality. Failure to manage health and safety effectively can have a damaging effect on three key aspects of your organisation: Business - Employees - Reputation
When you or a member of your staff holds this qualification what affect can you expect it to have on your organisation? A Safer Workplace - Effective health and safety management has never been more important. It protects people from injury and loss of life. Staff Morale - If your staff are NEBOSH qualified it indicates to staff and customers that you are committed to health and safety and can help you meet recognised standards and codes of practice Cost Effective - A small investment in training can help avoid the risk for potential heavy fines by not having effective procedures in place.
The NEBOSH Certificate is the most widely held health and safety qualification in the UK and is the minimum qualification required by most companies when appointing a health and safety manager.
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
NEBOSH Certificate Special Offer Only £950.00 per delegate excluding VAT for all course booked before April 1st 2013 Contact Victoria Thomas on 029 2085 3752 or email victoria.thomas@thomas-carroll.co.uk
www.thomascarroll.co.uk
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Risky Business
In Court £326k Penalty After Runaway Lorry Crushed Driver A driver was crushed to death when a runaway lorry pushed him against another freight vehicle, a court has heard. Russell Homer died at Nightfreight Distribution in Northamptonshire when the lorry he had been driving rolled forward while he was attaching a tractor unit to its trailer.
Worker Found Brother Lying Dead in Machine Two companies have been ordered to pay more than £450,000 in fines and costs after a worker was crushed inside a machine used to manufacture bridges for the military. Brian Miller was working as a machine operator at WFEL Ltd’s plant in Stockport, when the incident took place. He was operating a large CNC machine when he noticed a fault with one of the switches. The 38-year-old was able to enter a setting on the machine, which allowed him to open the cab door and access the area where the fault was located. As he was leaning over a tool-head, a large hydraulic ram descended on him and crushed his head. His brother, who was working on adjacent equipment, found him dead on the bed of the machine. The HSE investigated the incident and found the machine, which was designed by Netherlandsbased firm Unisign Produktie Automatisering BV, did not comply with European safety standards, as access should not have been possible when the machine was running at full speed.
Thomas Carroll Group plc, Pendragon House, Crescent Road, Caerphilly CF83 1XX t 029 2088 7733 w www.thomascarroll.co.uk e info@thomas-carroll.co.uk
WFEL Ltd had failed to undertake adequate risk assessments on the machine The investigation identified that WFEL Ltd had failed to undertake adequate risk assessments on the machine, or ensure safe operating procedures. There was also insufficient monitoring and supervision of workers operating the machines. HSE inspector Philip Strickland said: “Unisign should not have supplied a machine that fell below accepted standards and did not have suitable guards and safety systems installed to protect workers. WFEL should have made sure its employees only fixed faults when the machine was in a safe state.
Northampton Crown Court was told Homer may not have applied the handbrake or turned off the engine — a recurring practice that the company was aware was happening. The 44-year-old suffered serious chest injuries when the vehicle — which can weigh 28 tonnes when fully loaded — rolled down a slope and crushed him against a stationary heavy goods vehicle before travelling a further 27 metres and hitting a wall. Had it not been stopped by the wall, it may have rolled directly out onto a public highway. The international logistics firm had issued new safety guidelines to all of its staff, including Homer, after a previous incident occurred when a vehicle rolled away from another driver in 2008. An HSE investigation found Nightfreight had failed to monitor its employees effectively and ensure they followed the correct, safe working procedure; in addition there were no appropriate measures in place to prevent vehicles parked on the slope from rolling away, such as flattening it out, installing road bumps in front of the vehicle wheels, or using chocks. The company was fined £300,000 and ordered to pay costs of £26,000.
Unisign Produktie Automatisering BV was fined £200,000 and ordered to pay £28,313 in costs.
After the hearing, HSE inspector Judith McNultyGreen described the case as “disappointing”, as there had been previous similar incidents at this company and at the same site.
WFEL Ltd was fined £200,000 and ordered to pay £28,074 in costs.
“Lessons should have been learned from these but weren’t” she added.
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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
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accept liability for any errors or facts or opinion contained within. * Awarded by the British Standards Institution.