Wales’ First Health, Safety and Employment Law Consultancy to be awarded BS: OHSAS 18001*
ISSUE
02 2014
Unique Employment Tribunal Service Launched for Employers
Thomas Carroll are delighted to announce the launch of our new No Win No Fee* Employment Tribunal service designed specifically for employers.
If you lose the case, you pay us nothing! Over many years, our employment team has developed a reputation for innovation and our new service aims to provide financial certainty to employers for whom the average cost of defending themselves at a Tribunal is £8,500, whilst the maximum award made by the Employment Tribunal last year was £387,472. Our cost guarantee service applies to any of the following claims:
•• Unfair dismissal •• Wrongful dismissal •• Discrimination (race, sex, disability, religion or belief; sexual orientation, age) •• Deductions from wages
As a demonstration of our confidence in our ability, we will review any case and provide a free, no obligation assessment of the likelihood of success. If we win the case, we will only charge for our time at our normal hourly rate. However, if you lose the case, you pay us nothing! Kevin Price, Managing Director said at the launch: ‘We recognise that the uncertainty associated with defending an Employment Tribunal can have a detrimental impact on organisations. Our aim with the launch of our No Win No Fee service is to provide employers with peace of mind at what is already a very difficult time’. For further information, please contact Victoria Thomas on 029 2085 3752 or at victoria.thomas@thomas-carroll.co.uk *subject to terms and conditions
www.thomascarroll.co.uk
Risky Business at a Glance
Unique Employment Tribunal Service Launched for Employers Alternatives to Zero Hours Contracts The HSE Generates Over £12m in FFI Income Britain’s Most Dangerous Industries New IOSH Managing Safely and Working Safely REFRESHER Training Courses More Health and Safety Myths Health, Safety and Employment Law Training Courses Frequently Asked Questions In Court
Risky Business
Zero Hours Contracts A zero hours contract of employment, which is a permanent contract that entitles employees to the usual benefits of employment such as statutory sick pay (if income thresholds are met), annual leave and continuous employment, but does not guarantee any hours of work, is still attracting media attention. Their main advantage is flexibility; employees can fit work around their lifestyle and employers can vary their bank of labour to suit business demand and manage their staffing costs. However, zero hours contracts have a bad reputation. A genuine contract of employment requires “mutuality of obligation”. If there is no obligation for a Company to offer work and no obligation for an individual to accept work if it is offered, then there is no mutuality of obligation and the individual would not be an employee and would not be entitled to rights such as redundancy pay or to claim unfair dismissal. When hours are not guaranteed, zero hours contracts can sometimes lead to employees feeling dissatisfied as they are frequently tied to working for only one employer, even when they are not being provided with much work. It is often said that the flexibility of these contracts works mostly to the employer’s advantage and to the employee’s detriment. This exclusivity clause is the cause of most of the controversy and the Government has announced following a period of consultation, that it will ban the use of exclusivity clauses and increase the availability of information on zero-hours contracts
The HSE Generates Over £ 12m in FFI income for employees. The Government will also work with unions and businesses to develop a best practice code of conduct aimed at employers who wish to use zero-hours contracts.
Zero hour contracts can sometimes lead to employees feeling dissatisfied Whilst we wait for the government’s decision, it is worth considering some alternatives to zero hours contracts:
•• 1.5% of the working population works ••
in agriculture, yet it accounts for 20% of all work-related deaths each year Waste and recycling accounts for only about 0.6% of employees in Britain, yet has 2.8% of reported injuries to employees
Rick Brunt, the HSE’s Head of Agriculture and the Waste and Recycling Sector, said:
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However, with the HSE budgeting FFI income to reach £23million this year, it can only mean further enforcement action will be likely in the future. Under the Health and Safety (Fees) Regulations 2012, companies that break health and safety laws are liable to cover HSE related costs, including call-outs, inspections, investigations, and taking law enforcement action. The Fee for Intervention rate is £124.00 per hour.
•• Casual worker contracts – there is no •• •• ••
mutuality of obligation and the individual is not an employee, so does not receive the benefits of being employed Annualised hours contracts – the employee is guaranteed a fixed number of hours over a year, but the hours worked are flexible Part time contracts – the employer is only committed to a small number of hours each week Fixed-term contracts – to cover times of peak demand
For further information, please contact employment@thomas-carroll.co.uk
Britain’s Most Dangerous Industries Recent figure issued by the HSE highlight the poor track record of the agriculture and waste and recycling industries have of managing risks. Overall, agriculture has the highest number of fatalities, while the waste and recycling industry has the worst record for serious injuries. The facts speak for themselves:
The HSE has released its latest results detailing the total revenue generated from fining businesses with its Fee for Intervention (FFI) scheme, which was over £12.3 million between April 1st 2013 and March 31st 2014.
“Industry perception is that accidents happen when distractions arise but all too often the failure is in the planning of the job, and not using the correct equipment. Solutions don’t usually require anything more than modest investment, and are often simple and cheap; they usually help make the job more effective too and make good business sense.” For further information and guidance on improving health and safety in the agricultural and waste management and recycling industries, please visit http://www.hse.gov.uk/agriculture/ and http://www.hse.gov.uk/waste/
Thomas Carroll
New IOSH Managing Safely and Working Safely Refresher Training Courses Thomas Carroll Management Services are delighted to announce the launch of our new IOSH Managing Safely and Working Safely Refresher training courses. Specifically designed for anyone who has attended the IOSH Managing Safely or IOSH Working Safely courses in the last three years (the recommended timescale for refresher training), these new courses will enable delegates to further contribute to managing health and safety in their workplace. The courses revisit and reinforce the key issues covered in the original Managing Safely and Working Safely courses, whilst also addressing changes in relevant legislation, guidance and good practice. Prices start from £91.75 per delegate, so now is the time to REFRESH! For further information, please contact Victoria Thomas on 02920 853752 or at victoria.thomas@thomas-carroll.co.uk
Risky Business
More Health and Safety Myths The HSE Myth Busters Challenge Panel provides a mechanism to independently challenge potentially disproportionate or inaccurate advice or decisions, made in the name of health and safety. Below is a selection of the latest cases to go before the Myth Busters Challenge Panel.
Can you stock plasters in a first-aid box? ISSUE An employee cut her finger in the workplace and a colleague tried to obtain a plaster from the first-aid kit but there were none. The employee asked a manager if they could restock them but she replied that due to health and safety reasons i.e. allergies, plasters were no longer supplied for the first-aid kit.
Café refused to top up tea in same cup due to health and safety ISSUE A customer was having a cup of tea in a café and was told he could not have a second cup poured into the same cup - instead it would have to be supplied in a new clean one.
Junior school bans children bringing in a snack of fruit or rice cakes ISSUE A Junior School is to ban children bringing a snack of fruit or rice cakes to school on the grounds of “health and safety”. Their reasoning is that this is a health and safety risk to children at school with food allergies.
PANEL DECISION There is no health and safety regulation which bans the provision of plasters - in fact the HSE’s own guidance recommends that a first-aid box should stock plasters. If the concern is about the small risk of allergic reaction to some types of plaster then this can be easily managed by stocking the hypoallergenic variety or simply asking the person being treated if they are allergic to plasters before they are applied.
PANEL DECISION This is not a health and safety matter and there is no legislation which would prevent the customer being served a second cup of tea in the same mug. The café may have other reasons for its policy, but the panel applauded the person who raised this example of excessive risk aversion and his well meaning attempt to save on their washing up!
PANEL DECISION Whilst schools need to have procedures in place for managing pupils with food allergies, they should not misquote ‘health and safety’ as a reason for justifying a disproportionate ban on all snacks. Various guidance by other organisations than the HSE make it clear that schools need to have a policy and an action plan in place to manage the risk of allergic reactions. A complete banning of all snacks seems a thoroughly disproportionate response which goes against some of the stated principles in the guidance of helping food allergic pupils to learn to take responsibility for their own allergy – an important life skill given that the world cannot be made nut/allergen-free!
Health and Safety Training Courses •• 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 Managing Safely Refresher •• IOSH Working Safely •• IOSH Working Safely Refresher •• 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 Law 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 Employment Tribunal •• Disability Discrimination •• Race Discrimination
For further information, please contact Victoria Thomas on 029 2085 3752 or email victoria.thomas@thomas-carroll.co.uk
If you think a decision or advice that you have been given in the name of health and safety is wrong, or disproportionate to what you are doing, you can contact the panel at www.hse.gov.uk/contact/contact-myth-busting.htm
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Risky Business
Frequently Asked Questions
In Court Director Jailed after Roof Fatality A director has been sentenced to 12 months in prison after his company illegally supplied pre used roofing panels containing asbestos that gave way when a construction worker was roofing a barn. An investigation by HSE found that 64-year-old Robert Marsh, sole director of RM Developments, Shropshire, had supplied the roofing sheets containing white asbestos to a farming partnership building a barn in Frankley, Worcestershire.
Can a person be left alone at their workplace? Establishing a healthy and safe working environment for lone workers can be different from organising the health and safety of other employees. They should not be put at more risk than other people working for you. It will often be safe to work alone. However, the law requires employers to think about and deal with any health and safety risks before people are allowed to do so. Things you could consider to help ensure lone workers are not put at risk include:
•• Assessing areas of risk including violence, •• ••
manual handling, the medical suitability of the individual to work alone and whether the workplace itself presents a risk to them Requirements for training, levels of experience and how best to monitor and supervise them Making sure you know what is happening, including having systems in place to keep in touch with them
For a free copy of the HSE’s Working alone: Health and Safety Guidance on the Risks of Lone Working, please visit www.hse.gov.uk/pubns/indg73.htm
Thomas Carroll Group plc, Pendragon House Crescent Road, Caerphilly CF83 1XX t 029 2088 7733 www.thomascarroll.co.uk w info@thomas-carroll.co.uk e Cardiff Swansea Haverfordwest Hereford
Worcester Crown Court heard that the partnership hired steel erector Tony Podmore to use the materials to build the barn, but during the final phase of its construction, Mr Podmore, fell through the fragile asbestos cement roof sheets, landing on the concrete floor more than six metres below. He later died of his injuries in hospital. The farm partnership had agreed to pay £4,000 for what they thought would be substantial roofing material. However, Mr Marsh supplied them with poor-quality, second-hand roof panels that had cost him nothing. As he had paid just £250 for transport, he stood to make a profit of £3,750 on the roof alone. The court was told that after the fall, Mr Marsh tried to persuade witnesses to hide the sheets that he had supplied. He also told Mr Podmore’s daughter that her father had fallen from the roof edge rather than through the fragile roof sheets and later tried to persuade Mr Podmore’s relatives not to report the incident to HSE.
Firm Found Guilty of Corporate Manslaughter A stonemasonry firm has been found guilty of corporate manslaughter following the death of an employee on site. David Evans, 23, who worked for Cavendish Masonry Ltd, suffered catastrophic injuries to his chest and abdomen after a two-tonne block of limestone fell off its lintel and onto him after a crane driver was told to slacken the ropes holding it.
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Robert Marsh changed his plea to guilty on the first day of his trial. As well as the 12 month prison sentence he was disqualified from being a director for six years and ordered to pay £10,000 costs.
Mr Marsh demonstrated a complete disregard for the law for his financial gain Speaking after the prosecution, HSE Inspector Luke Messenger, said: “Asbestos fibres are a well-known and widely-publicised health risk and can lead to fatal illnesses. The supply of materials containing asbestos has been illegal for many years. Mr Marsh demonstrated a complete disregard for the law for his financial gain. In this case, the weak second-hand panels he supplied were a significant contributing factor to the death of Mr Podmore. “This tragic incident also demonstrates the dangers of working on fragile roofs. Falls from height are the major cause of workplace fatalities and measures should always be taken to protect workers when they are working from height.
Mr Evans’ employer Cavendish Masonry Ltd denied a charge of corporate manslaughter after they were accused of failing to adequately prepare for the operation. The Bristol and Bath-based Company will be sentenced at Oxford Crown Court at a later date, but faces a large financial penalty after being convicted of a gross breach of its duty of care.
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
But why wait until then? Kevin Price is always available to hear your views, call him on 029 2085 3732
accept liability for any errors or facts or opinion contained within. * Awarded by the British Standards Institution.