Stagesafe

News for 2007

March

Potential gang violence forces concert cancellation

A May 29 hip-hop concert scheduled for the 14,500-capacity Dunkin' Donuts Center in Providence, R.I., that was canceled after city officials and the promoter disagreed on a condition of the event license may have been doomed from the beginning. Providence police reportedly weren't thrilled when officials green-lighted the concert March 7, a stop on The Street Dreamz Tour featuring Jim Jones, Young Jeezy, Lil' Wayne and others. Police warned officials that Jones and a couple of other performers have ties to the Bloods gang, which could attract violence from Crips in the area.

Then a local DJ put out flyers saying Jones would be signing autographs before the show at a local clothing store and make an appearance at a nightclub after the show. The Board of Licenses then pulled the permit to Lowell Williams of CL500 Entertainment March 14 because the artists would not agree to wait 12 hours to collect the rest of their fee. That stipulation was added to discourage the performers from appearing at after-parties or promotions.

Dunkin' Donuts Executive Director Lawrence Lepore said the board's request was beyond what other promoters have been asked to do. "The opinion of the Board of Licenses was quite clear. The venue was more than capable of doing the show in a safe manner," Lepore told Pollstar. "We went to [the board] with our attorneys on behalf of the promoter and said it was an unfair burden and also set a very bad precedent for doing business in the city. But it did not go in our favor."

Lapore said the local DJ apparently had an agreement with Jones to do the appearances, but the artist later signed an affidavit for the board that said he would not. Despite that assurance, board officials wanted Williams to be held responsible for the touring artists keeping a low profile. "There was nothing [Williams] could do to prove to the board he had control over what the artists would do after, nor should he. I don't know of any other promoter who had been burdened with that responsibility," he said. "The board made it clear they were only concerned with public safety. They felt there was no way to protect the public from something happening."

He added that the Dunkin' Donuts Center was "in the middle of the ruckus" between Lil' Kim and 50 Cent back in 2004 but handled a crowd of about 11,000 at that time with no incident. These shows are difficult to do, we acknowledge that," Lepore said. "[But] there are a number of law-abiding citizens who like hip-hop. They have every right to come and see a show." About 700 tickets priced at $40, $60 and $70 had been sold in two days, he said.

Teaching assistant sacked for being pagan

A teaching assistant is claiming that she was unfairly dismissed because of the fact that she is a witch. Sommer De La Rosa told an Employment Tribunal that her employers feared that she would “brainwash” students with her pagan beliefs. She also claims that other teachers shunned her because of her faith.

De La Rosa, who practises pagan religion Wicca, claims one teacher told her to stop wearing her pentagram necklace, a traditional pagan symbol. She was sacked last May after nine months at Dorothy Stringer Secondary School in Brighton. While she is claiming that she was unfairly dismissed the school and Brighton and Hove Council say she was sacked because of poor attendance record and “inappropriate disclosures” to students. The tribunal continues.

The Employment Equality (Religion or Belief) Regulations 2003 are designed to prevent discrimination on the grounds of religion or belief. The Regulations define religion or belief as any “religion, religious belief, or similar philosophical belief.

A solicitor said “This tells us very little”. They go on to explain that the notes to the Regulations say that a religion or belief does not include any philosophical or political belief unless that belief is “similar” to a religious belief. The guidance also adds that courts and tribunals may consider a number of factors when deciding what is a “religion or belief”. For example, whether there is collective worship, whether there is a clear belief system and whether the individual’s belief is profound enough so that it affects their way of life or their view of the world.

As a note of warning the solicitor added: “It can be seen that the circumstances which can give rise to claims under the Regulations are many and varied. A wise employer will consult with his staff before implementing any change of terms or, for example, introducing a new policy, in order to ensure that it does not impinge upon their religious freedoms. That same wise employer will also be prepared to be flexible so as to avoid litigation.”

How parents can protect their children at gigs

It had to happen sooner or later. Your young teenager is standing in front of you, pleading to attend an "all-ages" show with a band you've never heard of at a club you've never visited. How do you know whether to give permission?

First, adults need to realize that the "all-ages" label does not imply any seal of approval regarding the music's content or message, the performers' language or deportment on stage, the behavior of other concert-goers or the possibility that drugs or booze will be smuggled in. It simply means that audience members under age 21 are confined to an area where no alcohol is served. Beyond that, parents are on their own in figuring out what's appropriate for their children. So, how to make an informed decision? Start at the computer, said one experienced dad whom other parents sometimes call on for advice.

"We've found that the Internet is a very useful tool," said the Rev. Matthew Frey, father of two rock-musician sons ages 17 and 21 and rector at the Church of the Advent in Brookline. "Almost every band has their own Web site or MySpace page where you can at least start to get some information about them and their style of music," he said. "Bands want people to know what they're about, so it's pretty easy to find out."

Parents also can listen to the band's music on CD or via computer download, read concert reviews online or attend a show in person. If they don't like what they see or hear, they'll be able to act accordingly. As for the safety factor, Mr. Frey suggests that young concert-goers be required to go with at least one friend and to carry a cell phone for a report home and, if things aren't to their liking, an early retrieval.

"Knowing when to say 'no' is hard," Mr. Frey conceded. "Sometimes we've said our younger son can only go if his older brother goes, too. And sometimes we have simply said 'no.' It could be the cost of the tickets, or for some of the heavier stuff, it could be hateful lyrics. A couple of bands are really abusive towards women."

Mr. Frey and his wife, Katharine Frey, are often present when their son's band plays venues such as Mr. Small's or the Rex, and they've been known to attend other concerts as well. "The first time I saw anything punk and watched the kids dance, I thought a fight had broken out until my son said they're just dancing. It didn't look like any dancing I had ever seen," he said. "The mosh pit can be very violent. There's a lot of fast motion, not just everyone bumping, but there's some real slamming that goes on, and it's not always based on who the band is."

He recounted a recent concert where his younger son wound up flying through the air, even though it was not the kind of event where one would have expected such a thing. "He came home with a sore neck and told us an horrific story, but he had friends who looked out for him afterwards. I think it shook him up."

For parents whose kids can't abide the idea of being seen at a concert with mom or dad, Mr. Frey has this suggestion: "Parents can drop the kids off, park the car, come in separately and hang out at the back and watch the show. If they really want to make sure their kids are safe, that's a legitimate way to do it."

Worker awarded damages for tripping on cable

A Jobcentre Plus employee has been awarded damages after an accident at work in which he was injured after tripping over a cable. The accident happened on 30 June 2005, following some building renovation work the night before. While he was walking, John Burdett caught his foot in computer wires trailing from a desk onto the floor. He fell heavily onto the corner of a desk and was left with fractured ribs and other injuries to his neck, shoulders and arms.

Burdett brought his case with the assistance of his union, the PCS, and following photographic evidence his employer admitted liability for the accident and agreed to pay compensation. Phil Madelin, PCS Health and Safety Officer, says: "Health and safety these days is often ridiculed as going too far – and trip and slip incidents as being more laughable than serious. But this case proves that they can result in serious injuries. It also shows that employers need to pay attention to all aspects of health and safety – and highlights the valuable support that unions offer to their members."

Often dangers posed in an office environment can be overlooked or can be not considered to be a risk. Kate Gardner comments: “In general offices are usually low risk environments with slips and trips being among the most common of incidents that occur. Designing and operating a risk assessment process that clearly outlines the possible risks that can occur is only part of the process. If the outcomes of the assessments are not then acted upon and staff advised of the precautions that should be taken to minimise their exposure to the risk, the whole exercise becomes meaningless. Encouraging staff to report hazards is important, but if there is no mechanism in place to review the hazard reports that have been submitted, take remedial actions to correct the faults or follow-up to ensure that the recommended actions have been completed then the likelihood of an accident occurring remains high.”

In a case last year a council worker was awarded £30,000 in damages after she fell down a staircase and broke her arm. According to an expert the staircase in question breached building regulations and was not suitable for an office. Morag Holtes fell down them after catching her heel on a bulge in the stair carpet. She also claimed that the steps were too narrow to put her foot down properly. Aberdeenshire Council had failed to carry out an adequate risk assessment of the risk posed by the stairs and had also failed to act on complaints from other staff working in the building.

Manufacturer fined for accident

A container manufacturer has been fined £5,000 after one of its welders was seriously injured after a work at height incident. Bradgate Containers Ltd has been fined £5,000, ordered to pay £5,000 compensation and £1,587 costs after pleading guilty to breaching Regulation 4(1)(a) and Regulation 4(1)(c) of the Work at Height Regulations 2005.

Welder Richard Brooks sustained severe head injuries when he landed on a concrete yard surface on 18 September 2006. His fall involved an unsecured aluminium ladder, which was being used as a working place for welding during the building of large shipping containers for housing generators and other equipment packages. Bradgate Containers Ltd pleaded guilty to failing to take suitable measures to ensure the work was properly planned, and failing to ensure the work was carried out safely.

Roger Amery, the HSE Inspector who prosecuted, says: "These injuries could so easily have been avoided. Health and safety law is not about doing unnecessary stuff; it is about being wise before the event and prioritising risk control effort on the issues that really matter. Falls from height are one of the most common causes of injury and are easily preventable. This is a good firm and an important local manufacturer, but they just didn't have their eye on the ball. The sad consequence was damage to Mr Brooks' brain, a period of great distress for his family and an upsetting time for his workmates at Bradgates; along with harm to this company's reputation.

"The accident was typical of the type of preventable falls which remain all too common. Had there been a proper plan for this manufacturing work and had good access equipment been in place then this accident would not have happened. An untied aluminium ladder resting on a metal edge is a recipe for disaster. Employers and employees must work together in order to stamp out this sort of thing”.

Falls from height are the most common cause of fatal injury and the second most common cause of major injury to employees, accounting for around 15% of injuries at work. In 2005/06, 46 people died and over 3,500 suffered a serious injury as a result of a fall from height in workplaces. Firms should remember that work at height can be extremely dangerous unless proper control measures are in place. Compliance with the Work at Height Regulations 2005 is essential. Companies should remember to:

Commission emphasise workers' involvement in health & safety

The Health and Safety Commission (HSC) has stressed the vital link between health and safety and active involvement of the workforce, and has set out how it intends to further its, and the HSE’s, work on worker involvement in health and safety.

Bill Callaghan, Chair of the HSC emphasised the importance of the link by reminding people of the work done by the Robens Committee – work that led to the enactment of the Health and Safety at Work Act (HSWA) in 1974. Robens, who recognised that the new statutory arrangements should be designed to provide a framework for better self-regulation, wrote "safety and health at work is a matter of efficient management. But it is not a management prerogative. Work people must be encouraged to participate fully."

Helen Bamborough comments, “the cog that turns the wheels of the British health and safety system is worker involvement. Since the introduction of the HSWA, constructing a practical system to enable effective worker participation and consultation has been a top priority and had made an important contribution to raising standards of health and safety management over the last 30 years.”

Citing the success of the close collaboration between Acas and the HSE on stress management Callaghan called on other stakeholders to follow this lead, "health and safety needs to re-discover its roots, re-discover the art of the possible, rather than pursue the ideal of the perfect. The human relations and health and safety communities need to work more closely together to achieve this goal."

He praised the partnerships between trade unions and employer and trade organisations in industries such as construction, paper and board and quarrying, where innovative approaches had been put in place that had resulted in the building of constructive and fruitful partnerships, genuine worker involvement and consultation, the reduction in disputes and the achievement of exemplary standards of health and safety. But these arrangements were not as numerous as they might be. The need for genuine involvement and consultation, rather than rigid structures, was raised. The aim, said Callaghan, should be to achieve progress by mutual consent.

He added: "My view is that informal regulation via unions and employers will be more efficient and less onerous than regulation imposed externally, either by the HSE or through the courts. Joined up inspection has a considerable role to play too if we are to achieve our health and safety goals and the case for joining up the different labour market inspection regimes had considerable attraction. Not every health and safety problem needs a new law. We also need to work closely with our partners to join up and make readily accessible the wealth of advice, guidance and best practice that already exists. Self-regulation and worker involvement are inextricably linked."

To date the HSE has taken certain steps to encourage greater worker involvement, including:

A new approach to worker involvement will build on the foundations created by these achievements. Work being taken forward will concentrate on four key areas:

Bad weather nixes fireworks display

Dublin's St Patrick's Festival went out without the expected bang as gales forced the cancellation of the city's most spectacular firework display. Two years of planning were blown away as a one-metre swell on the River Liffey made it impossible to set up the light and music extravaganza.

More than 200,000 people were expected in Dublin for Skyfest, which would have been the biggest firework display to be held in the heart of the city. But with wind speeds of 31km-per-hour forecast for tonight, the display, which was set to illuminate the sky, was grounded.

Disappointed organisers said it was impossible to reschedule the display for tomorrow night, when weather conditions are due to be as bad.

"The decision to cancel the National Lottery Skyfest was one we were unfortunately forced to make this morning due to health and safety concerns," said Donal Shiels, St Patricks Festival chief executive. "The planning for the show has been over a two year period."

Despite today's disappointment, the success of this years festival - and Irelands sporting achievements - have made it into the history books. Tens of thousands attended an array of activities during the five-day St Patricks Festival, which is scheduled to end tomorrow with a fun fair and safari theme day featuring street performers, acrobats and clowns on Merrion Square.

Case highlights the dangers of working at height

A recent case, in which a contractor and member of the public were injured, highlights that firms should pay careful attention to the risks of working at height without taking proper precautions. Worker Jeremy Davenport suffered multiple injuries, including a shattered heel and a broken pelvis, when he fell over five metres from a ladder he was using for access to a ledge, at the University of the Arts London, which was located above the busy shopping area of Oxford Street. He fell onto the ledge and from there to the ground. The ladder he was using also fell from the ledge and struck a member of the public, Desislava Ilieva, who was walking underneath at the time. She suffered head and back injuries.

At a hearing on 8 March 2007, at the City of London Magistrates Court, self-employed workers John Preston and Graham Cresswell were each fined £7,500 after pleading guilty to breaching Section 3(2) of the Health and Safety at Work Act 1974 (HSWA), which states: "It shall be the duty of every self-employed person to conduct his undertaking in such as way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety."

The University of the Arts London, who employed the three workers, was fined £20,000 (the maximum fine in the Magistrates Court) after pleading guilty to breaching Section 3(1) of the HSWA, which states: "It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety."

HSE Inspector Dominic Long said: "This case should act as a wake up call to all firms engaged in working at height to properly consider the serious risks involved. This was an accident which very nearly killed a young man and a member of the public. The accident happened on one of the busiest shopping streets in the UK and it was sheer luck that more people were not killed or injured. It was entirely preventable – had the contractors and the University cooperated with each other in assessing the risks and planning the work being carried out it is very likely that this accident would have been avoided."

"Every year people working at height lose their lives or suffer serious injury and firms need to exercise sufficient control to prevent this sort of thing happening – including carrying out a proper risk assessment."

Company fined for exploding tyre death

A company and its director have been fined a total of £124,000 in relation to the death of a young worker. Trainee tyre fitter Donald Kelly died when a JCB tyre he was inflating exploded in his face on 13 May 2005. He later died from massive internal injuries.

John Wallace, Managing Director of Auchinlea Tyres, admitted a charge under the Health and Safety at Work Act, in that his negligence led to Kelly’s death. The court heard that when the incident happened Kelly was using an air line that was not fitted with a pressure gauge or control trigger. The tyre should also have been inflated in a metal cage to prevent accidents, but this was not provided.

An investigation after the incident found that the tyre Kelly had been working on had been inflated to almost four times its normal operating pressure. Readings showed it had been inflated to a pressure reading of between 125lb to 150lb per square inch (PSI). The normal pressure for such a tyre is 36 PSI, the court was told. The company has since put in place changes to their practices, including installing a cage.

Sentencing Wallace, Sheriff Thomas Welsh, said: "You knew of the practice that was allowed to continue. The company exposed their employee to an unnecessary and avoidable risk and you are the principal beneficiary of the company." Auchinlea Tyres was fined £100,000 and Wallace, £24,000.

According to the HSE there are two main hazards that can arise during tyre inflation:

HM Inspector of Health and Safety, Mike Walters, makes the following points in relation to this type of work.

Firms struggling with H & S laws

Small firms spend almost two days a month coping with health and safety regulations, the Forum of Private Business (FPB) has claimed. A survey by the FPB found that 47% of small business managers spend more than seven hours a month understanding updates to regulation as well as implementation, action and monitoring. Nineteen per cent said they spend up to a week, with the average time spent being 14 hours.

When asked how time-consuming health and safety regulations were in terms of both administration and time spent understanding them, 57% said administration was very time consuming, while 56% said understanding health and safety regulations was very time consuming.

Over half of those questioned (60%) believe that this time spent administering health and safety regulations is disproportionate to the benefits of or need for the regulations. Meanwhile 64% said that time spent understanding the regulations was disproportionate to the benefits of or need for their own business.

Chief Executive Nick Goulding said the burden is becoming too much for SMEs and wants the Government to simplify legislation. He commented: "These findings show that owner-managers not only feel that health and safety form-filling is extremely time-consuming, but also that keeping up-to-date and understanding changes is a burden. The amount of time being spent on these areas replaces the time spent on supervision, which could have a greater impact on safety. Health and safety regulations are seen by many of our members as neither beneficial nor necessary when compared with the amount of time they prevent them from running their businesses."

Goulding adds that the good intentions of many regulations are lost when they are implemented. One issue that was raised by the survey was that many respondents thought there was no acknowledgement of size disparity within the regulations: “The one rule fits all approach is completely impractical for smaller firms and new procedures aren't flexible enough as a result,” Goudling comments. Particular regulations that the FPB is  keen to see re-thought or delayed are the Construction Design Management Regulations (CDM) Regulations, which are due to come into force on 6 April.

As Raymond Joyce, MD of Joyce Legal, comments CDM 2007 will “throw more onus back on the client”. The Regulations will mean that clients have much more responsibility when it comes to health and safety throughout the life of a construction project; they will no longer be able to opt-out of these obligations by passing them onto a third part, as they were under CDM 1994.

The FPB believes that CDM 2007 will place too great a burden onto smaller businesses having building work carried out, because of this it would like to see the Regulations changed.

Firms fail to heed fire safety regulations

Research has suggested that small businesses are still failing to comply with new fire safety regulations, risking potentially harsh penalties. The Regulatory Reform (Fire Safety) Order (RRO), the biggest overhaul of fire safety legislation in decades, came into force 1 October.

The aim of the RRO is a move towards greater emphasis on fire prevention in all non-domestic premises, including the voluntary sector and self-employed people with premises separate from their homes. The Order made fire certificates obsolete.

Responsibility for complying with the RRO rests with the 'responsible person'. In a workplace, this is the employer and any other person who may have control of any part of the premises. This responsible person then has a duty to carry out the necessary fire risk assessments. A survey carried out by Norwich Union Risk Services, a month before the RRO came into force, found that almost half of small firms were unaware of the new laws.

A recent survey by small business insurer More Than Business, carried out six months after the legislation came into force, suggests that in many circumstances this is still the case. The research suggests that almost one million small businesses could be facing penalties of up to £10,000 or even jail, because they are not complying with the RRO.

According to More Than Business, fire in small businesses costs the UK economy an estimated £330m a year. In 2006 the average cost of a fire claim was £26,000. Yet the true cost to the business can be even larger: 80% of small businesses affected by fire will not be trading a year later. According to the insurer, since the legislation was introduced, there has been a 36% decrease in the number of fire claims compared with the same time period the year before. This decrease could be much greater if all businesses were complying with the regulations.

Figures from the Association of British Insurers (ABI) suggest UK business lost more than £2m every day in 2005 due to fire damage. The ABI reports that during the year insurers paid out £790m in commercial fire claims, up 60% on 2004. In addition, business interruption claims following fire damage, at £220m, were the highest since 1997.

So far there have been no prosecutions under the RRO; a source within the fire service commented that, under the RRO, fire inspections will be risk based, meaning that premises considered high risk (e.g. schools) will take priority, followed by the following up of complaints and then following up of actual fires. He added: “The implication is there that we will be looking to post-incident prosecution. The burden of proof has been reversed and the onus will be on the responsible person to prove they are innocent after they have had the fire".

HSE sponsor "back pain" event

Back pain can be excruciating, but can also injure the bank balances of businesses, so the Health and Safety Executive (HSE) is inviting employers to a free event in Cardiff aimed at giving them support in getting health and safety right before they have an accident. The event, at the Copthorne Hotel in Culverhouse Cross, Cardiff, will provide free advice from back experts, HSE inspectors and healthcare professionals.

HSE Principal Inspector Chris Ward said: "Back pain costs employers in Wales about £250 million each year. Employees with back pain take, on average, 19 days sickness absence per year, and yet a great deal of this cost can be avoided. "There is a wealth of advice and knowledge available to employers through the HSE and through Workplace Health Connect. Simple issues such as providing training in correct manual handling techniques can save a business a lot of money in the long run, and attending this event is an excellent way to start putting best practice into action."

The event will also provide employers currently experiencing sickness absence issues through back pain with suggestions on realistic and proactive return to work strategies. HSE is working in support of the Welsh Assembly Government's Welsh Backs campaign, which aims to raise awareness of measures to prevent back pain, but also to encourage those with back trouble to continue with their lives as normal, rather than "taking it lying down."

The event takes place on 21st March 2007 between 9.30 am and 3.15pm. Anyone interested in attending should contact Ruth Batten at HSE Cardiff on 029 2026 3074 or email ruth.batten [at] hse.gsi.gov.uk.

Company fined after worker paralysed

The importance of training staff on the proper use of machinery has been highlighted by a case in which a worker was paralysed. SFJ Ltd, of Bangor, was fined £15,000 and ordered to pay costs of £7,500 at Caernarfon Crown Court following the incident in February 2005 in which Clive Forbes received his injuries.

Forbes was assisting with the unloading of a cement mixer from the back of a pick up truck along with supervisor Conrad Taylor. Taylor's coat caught the controls of the excavator lifting the mixer five feet into the air and knocking Forbes over the side of the truck. He fell heavily, and sustained injuries that led to the paralysis. The court heard that Taylor did not have formal qualifications to drive excavators.

At an earlier hearing, the company admitted breaching Section 2(1) of the Health and Safety at Work Act 1974, relating to an employer's responsibility to ensure the safety of their employees. HSE inspector Debbie John said: “This was a tragic set of circumstances which led to this accident, but it demonstrates how important it is to be properly trained to use machinery of any kind.”

Every year, around 70 people are killed, and a further 2,000 injured as a result of incidents involving vehicles at work. The most common vehicle accidents at work are caused by:

The HSE is also currently running a campaign on the dangers of falling from height, and this case once again provides a reminder that it can be extremely dangerous to fall even from a relatively low height. Every employer has an explicit legal duty to provide information, instruction and training to every employee in order to allow them to carry out their work safely. This is expressed in the Health and Safety at Work Act 1974, section 2(2)c. The extent and complexity of the training required will depend upon the size of the organisation, the nature of work and the potential severity of hazards associated with the undertaking.

The Management of Health and Safety at Work Regulations 1999 are more specific in their requirements about when training should be provided. Regulation 13(2) requires every employer to provide all employees with adequate health and safety training:

The Regulations also require that training must:

Establishing a health and safety training policy is the starting point but specific and continuous health and safety training combined with developing a safety culture within the organisation is required if the goals within the Health and Safety at Work Act 1974 are to be truly met.

National minimum wage to rise

Following the eruption of the ongoing argument over whether the National Minimum Wage (NMW) should rise again the Government has announced that the NMW will rise again from October. The Government has said that more than a million workers will benefit from a rise in the NMW from £5.35 to £5.52 an hour from October.

In announcing the increase Alistair Darling, Secretary of State for Trade and Industry, has accepted the level recommended by the independent Low Pay Commission which will also mean increases from £4.45 to £4.60 for 18–21 year olds, and from £3.30 to £3.40 for 16–17 year olds. The announcement means the minimum wage has gone up by almost 30% more than inflation since it was introduced in 1999, with the number of jobs increasing by almost two million in the same time.

David Coats, Assistant Director of the Work Foundation, has warned that the rate of increase in the NMW should be slowed to prevent it hitting employment, his sentiments are echoed by many businesses and business groups. On the other hand, however, unions would like to see the NMW rise to £7 per hour.

 Darling comments: "More than a million workers, two thirds of them low paid women will benefit from this announcement. It means the minimum wage has gone up by almost 30% more than inflation since 1999, with the number of jobs in the economy increasing by almost two million in the same period. It is right for workers and employers. Just ten years ago home workers could be paid as little as 35p an hour, cleaners £1.30 an hour and security guards £2.25 an hour. It's bad for families and just plain wrong. I am proud of the minimum wage, proud of how it is helping families and proud of the role it plays in the modern economy we are delivering."

In January new measures came into force to back the minimum wage with tougher enforcement. Under the measures employers who refuse to pay the NMW could face a £200 fine for every worker they underpay. Employers already have to pay back the arrears they owe to workers, and now those who refuse to pay up will be penalised. This is on top of the risk of a criminal record and £5,000 fine they already face for refusing to pay staff.

Her Majesty's Revenue and Customs (HMRC) enforces NMW legislation on the Government's behalf. In cases where workers complain they are not getting the minimum wage HMRC investigates the employer. If the complaint is upheld, and the employer will not pay, they are given a warning to repay the arrears within seven days. Those employers who do not pay within seven days risk a fine. Previously employers were given 28 days to pay back arrears and could be fined at a rate of £10.70 per worker for each day that elapsed.

Police to target company drivers

The police could be given new powers to visit employers and undertake formal inspections of companies whose drivers and vehicles come to their attention on the road as part of new proposals targeting at-work motoring. It would mean the police turning up not just for traditional crash investigations, but if they felt the state of the vehicle, or driving standard of the person at the wheel, warranted it.

In its road safety review Tomorrow’s Roads – safer for everyone, the Department for Transport highlighted at-work drivers as one of the two most vulnerable groups, along with young drivers. The spectre of the police knocking on the office door of fleet managers is the most controversial of all the measures. Transport for London has already instigated this policy for errant van and lorry drivers but the report recommends it goes nationwide for all at-work driving and that the police are delegated HSE inspection powers "either for a vehicle defect and accident or because they catch a driver committing an offence".

However, the report stopped short of providing any more detail about what would happen next in terms of prosecutions, and sounded a conciliatory note that instead the police would be able to "direct employers to sources of advice and help". Although lacking in detail, as many of its recommendations would have to go to consultation before being accepted, the review said the HSE was researching the links between management failings and accidents, adding that successful prosecutions could "help motivate other employers to take action".

The review also identified at-work drivers as targets for increased training, saying it wanted to improve the lifelong driving standards of people driving for work. This would include a ‘framework of competencies’ for safe driving – effectively standards for training, testing and education that should be adhered to when training fleet drivers. The report said that company car and commercial vehicle drivers appeared to have a high ‘blameworthiness’ when it came to crashes, with fatigue, long commutes and talking on the phone causing many of the problems.

This week, the THINK! road safety agency launched a new campaign specifically targeting "stress and distractions" among van drivers, using posters and advertising. A separate TV campaign urging people who phone drivers "to kill the conversation" was also launched.

Businessman fined for illegal fireworks storage

A businessman and his company have been fined £20,000 each for storing fireworks illegally in an unlicensed unit on an industrial estate in Wetherby, Yorkshire. Men Shun Fireworks imported the fireworks in question into the UK from China for onward distribution.

A check on 6 September 2004 found that 100 tonnes of fireworks containing 25 tonnes of explosives were temporarily being stored, because of a problem with the distribution, in a unit on an industrial estate in Wetherby.

The premises had not been licensed for such storage and would never have been for that amount. In addition, some fire doors were padlocked, three of the five fire exits were blocked by pallets, the only two fire extinguishers in the building did not work and the distance to the nearest available exit exceeded the distance allowed.

The fireworks were being stored temporarily because mistakes by the company who handled the distribution of the fireworks in the UK, Global Logistics Ltd, led to the company having more fireworks than its licensed premises had capacity for.

Men Shun Fireworks and its owner, Run Guang Tan, were each fined £20,000 and ordered to pay a total of £50,000 costs because ultimate responsibility for health and safety regarding the fireworks belonged to Men Shun and its owner. The company admitted to breaching the Health and Safety at Work Act 1974. Tan admitted one offence.

Since the incident Global Logistics has gone into liquidation so it was not fined. However, if it had not been in liquidation, the judge said, it would have been prosecuted too as Men Shun had delegated responsibility for the fireworks to it for distribution.

The judge did acknowledge that the fireworks involved were at the lowest level of hazard, and the risk of ignition was minimal. Jeremy Barnett, for Tan and the company, said they had trusted Global to handle its logistic work efficiently.

If you want to store or manufacture explosives you need a licence or to register with your local licensing authority. You also need to comply with the Manufacture and Storage of Explosives Regulations 2005, which came into force on 26 April 2005.

The main requirements of the Regulations are:

Injury to rigger costs National Exhibition Centre £33,500

Lift motorThe National Exhibition Centre (NEC) in Birmingham has been prosecuted over an injury to an employee who tried to lift a 53kg load on his own. The case was brought by Solihull Council, following an investigation into the incident at the NEC’s rigging store in November 2005.

The store is where rigging motors are taken for maintenance and servicing. The units comprise a motor and integral chain and self-propel out of a holding box to raise items like lights up to roof beams.

When they require maintenance they need to be taken out of the box and repackaged to be sent to the manufacturer. The employee was trying to lift the 53kg motor out of the box by its chain – it did not have a handle – but his hand slipped on the chain grease and he jarred his back, which required hospital treatment. He has since returned to full-time work as a rigger with the NEC.

According to Solihull Council, its inspectors found “a persistent and complete absence of any safe system of work in the rigging stores, and confusion about responsibilities at management level, which led to the accident”. No assessments of the risks associated with handling activities in the rigging stores had been carried out, despite the foreseeable risk of injury.

The National Exhibition Centre Ltd pleaded guilty before Solihull magistrates on 23 January to a breach of s2(1) HSWA for failing to ensure the health and safety of its employee. It was fined £20,000 and ordered to pay the Council’s full costs of £13,500.

Head of environmental health for Solihull Council, Ian Keagle, said: “At the time of the accident there was no evidence of health and safety training, risk assessments had not been revised for some 10 years, and no consideration had been given to manual handling in an area where heavy motors were moved regularly. For an organisation of this size, this was completely unacceptable, and the fine awarded for these breaches reflects this.”

When contacted for a comment, the NEC Group told SHP: “This was an isolated incident that broke a previously excellent health and safety record. However, we are never complacent about health and safety and so recognised that there were improvements that needed to be made to our processes and training in this area.

“Since the injury occurred, we have reviewed all our processes and procedures, supported by an independent specialist, in order that we minimise any risk of accident at our venues. This has led to a company-wide drive to improve our health and safety processes, particularly in relation to clear and well-communicated risk assessments, safe systems of work and manual handling processes. The NEC Group’s new chief executive, Paul Thandi, has personally ensured that this company-wide drive receives the highest priority.”

Company and worker fined

Work at height must be planned carefully and the correct equipment used for safe working, the HSE has warned. The warning follows the prosecution of a roofer and firm of property developers last week (22 February) for failing to take suitable and sufficient measures to prevent workers falling a distance liable to cause personal injury prior to work starting at the site.

Roofer Michael Allinson and his two employees were discovered by HSE inspector John Rowe, risking serious injury as they dismantled a roof whilst standing on top of it. There was no form of edge or other protection to prevent them falling either through the fragile roofing sheets and roof lights from the edge created internally by the removal of roofing sheets, or from the edge of the building, on to an area of hard standing almost 12m below.

Allinson and Lakeland Property Consultants and Management Co. Ltd were each fined £1,500 plus costs of £315. Allinson pleaded guilty to a charge under Regulation 6(3) of the Work at Height Regulations 2005. Lakeland Property Consultants — the client for the work — pleaded guilty to a charge under Regulation 10 of the Construction (Design and Management) Regulations 1994 (CDM) for failing to ensure a health and safety plan was in place that took account of all the risks involved in the construction work, such as work at height, prior to work starting on site.

Company breaches employment laws

Publishing company Macmillan Publishers has been found in breach of employment legislation requiring companies to inform and consult staff over what is happening in their company and workplace. The finding comes after Amicus, the union representing staff in the publishing, media and on-line information sector, made a complaint to the Central Arbitration Committee (CAC).

Amicus made the complaint as part of a long running campaign to get the company to set up an Information and Consultation Forum as they are obliged to under European and UK legislation.

The union, which represents publishing and warehouse employees at various Macmillan sites in London, Oxford, Basingstoke and Swansea, has lodged three separate complaints with the CAC since November 2005. On each occasion its complaint was upheld. One decision led to the CAC issuing a 'declaration of union recognition', giving Swansea warehouse workers collective bargaining rights after the company failed to enter into voluntary agreement talks.

In another ruling the CAC ruled in favour of an employee claim for a statutory Information and Consultation agreement.

This means that, in the future, Macmillan must provide information and consultation representatives with information on:

The most recent ruling means the company has to establish an employee elected Information and Consultation (I&C) body under the Information and Consultation Regulations 2004. This ruling covers every employee of Macmillan's in the UK.

According to Tony Burke, Assistant General Secretary at Amicus: "In this day and age employees should be informed and consulted about what is happening in their company and at their workplace.

"We are disappointed that the company has not at all entered into the spirit of the legislation. The company has now been ordered to set up proper procedures to establish an I&C Forum and elect employee representatives for the purpose of this legislation.”

The scope of the Information and Consultation of Employees Regulations will be extended from 6 April 2007.

Currently, employees in organisations with 150 or more employees have a right to be informed and consulted on a regular basis about issues in their organisation. Organisations with 100 or more employees will come within the scope of the legislation in April 2007, and those with 50 or more from April 2008.

The requirements in the legislation do not apply automatically. At workplaces where there are no existing consultation arrangements employers can initiate the process themselves, or an employee request must be made by at least 10% of employees in the organisation (subject to a minimum of 15 employees and a maximum of 2,500 employees).

Companies that are able to demonstrate their existing arrangements have the support of employees (for example, through a formal agreement with employee representatives or union officials) are able to use these arrangements for the purpose of the Regulations. These arrangements only need to be changed if 10% of employees call for a ballot in which 40% of employees vote in favour of a review of the current arrangements.

The law is designed to encourage employers, employees and their representatives to agree information and consultation arrangements that suit their particular circumstances – it does not spell out the subjects, method, timing or frequency of the arrangements that are allowed.

Company fined for employee death

A company has been fined more than £33,000 in fines and costs following an incident in which an employee died after being crushed. Exel UK pleaded guilty to offences under the Health and Safety at Work Act 1974 during a court case brought by Halton Borough Council. At the time of the accident the company was known as Tibbett and Britten.

Warehouse operative and forklift truck driver, John Rowland, was killed on 14 April 2004, after a half-tonne bale of plastic fell off an HGV trailer and struck him when he was unloading the trailer with colleagues. The court heard the firm's employees had admitted this was not the first time that items had fallen from trailers, and that restraint straps were not always used correctly to stabilise loads.

Though the company had undertaken risk assessments and had produced a safe system of work, this system had not been implemented and employees had not been formally trained in it. The safe system of work was also not comprehensive because it failed to make reference to how unsafe loads should be dealt with and did not specify how unsafe loads should be identified. A process involving taking pictures of unsafe loads and emailing them back to the depot responsible, before a decision on how to unload safely could be made, was undocumented.

There was also no common understanding of what represented an ‘unsafe’ load. The court ruled that the company had failed to maintain a system of work by having no written company procedure for dealing with unsafe loads.

Tibbett and Britten had ceased trading in July 2004 and was bought out by Exel after the accident happened. The company's management had the option of winding up Tibbett and Britten but chose to keep it in existence so it could deal with the court proceedings, knowing the company was to plead guilty and would be fined.

In the 'Communicating health and safety' chapter in Workplace Law Group's Health and Safety Strategies 2007: Case Report, author Helen Bamborough comments, "frequently we hear of a 'breakdown in communications' being the cause of health and safety incidents, some with devastating consequences. The sad fact is often these situations could have been easily avoided by implementing simple procedures to improve communications between working parties."

It is the responsibility of every employer to ensure that all persons on their premises (including the general public) have the necessary information they need to ensure their health and safety. As can be seen in the case above, if a failure in health and safety should occur an HSE inspection would check staff's awareness of health and safety procedures and the lengths to which the employer has gone to supply them with necessary information.

Employers must consider how they can effectively communicate with their workforce. For example, T-Mobile produces a monthly bulletin to keep its staff aware of health and safety issues; Hobart UK uses power point presentations at regular meetings to reach certain areas of its workforce; Sigma-Genosys has a regular health and safety awareness week; and DuPont has a health and safety award scheme.

EAT guidlines on the National Minimum Wage Act

The Employment Appeals Tribunal (EAT) has given useful guidance on the correct approach to be taken when considering whether someone is a worker for the purposes of the National Minimum Wage Act 1998 ("the NMW Act").

Workers are entitled to the National Minimum Wage. The statutory definition of a worker includes those employed under a contract of employment but also extends to a wider category of individuals. There are three elements to the wider definition. First, there must be a contract to perform work or services. Second, there must be an obligation to perform the work or services personally. Third, the individual will not be a worker if he performs the work or services in the course of running a profession or business and the other party is a client or customer.

Mrs James worked as a courier for Redcats, a courier company. She delivered parcels to private addresses using her own vehicle, the parcels having been delivered to her house and stored there pending delivery. Her pay was determined by the number of parcels she was sent for delivery. She had the right to find a substitute to deliver the parcels if she was unable to do it herself due to holiday or sickness.

The EAT gave the following guidance to tribunals considering the definition of a worker:

Was there an obligation personally to perform the work/services?
The key question is whether an individual is contractually obliged to perform the work personally (as opposed to just choosing to do so). It held that James was clearly under an obligation to perform the work personally. The fact that she could send a substitute if she was unable (as opposed to unwilling) to perform the work due to sickness or holiday did not affect this. It is only if a worker can decide not to work and send a substitute when they are unwilling to work that there will be no obligation to perform the work personally.

Is the individual contracting with the other party as a customer of a business?
The EAT said that tribunals considering this question must seek to determine whether the essence of the relationship is that of a worker or of somebody who is engaged, albeit in a small way, in a business undertaking. It rejected an argument that the individual must have a pre-existing business if they are to be viewed as engaged in a business undertaking.

It drew on case law in the discrimination field which requires courts to consider the dominant purpose of the contract. The EAT thought a better approach might be to consider whether the obligation of personal service is the dominant feature of the contractual arrangements or not. If it is, then the contract will lie in the employment field (and the individual will be an employee or worker). If it is not, and if, for example, the dominant feature of the contract is a particular outcome or objective and the obligation to provide personal service is an incidental or secondary consideration, the contract will lie in the business field.

The same definition of worker is contained in the Working Time Regulations 1998 and the Employment Rights Act 1996 and so the guidance in this case will apply equally to that legislation. The EAT also considered the issue of mutuality of obligation and criticised its earlier decision in AD Bly Construction Ltd v. Cochrane. That case suggested that a person who performs work from time to time but without any mutuality of obligation in the breaks cannot fall within the statutory definition of a worker when he is actually at work.

The EAT said it did not agree with that proposition – the fact that there is no contract in place when someone is not working has no bearing on their status when they are working. This makes sense and accords with the Court of Appeal decision in Cornwall City Council v. Prater where it was held that that the lack of mutuality of obligation between the assignments of a teacher working on a succession of contracts did not of itself prevent each assignment from constituting a contract of employment.

Notes on RSI Awareness Day

In advance of RSI Awareness Day this weekend (24 February) the Chartered Society of Physiotherapy (CSP) is warning employers that repetitive strain injury is more likely to affect factory and manual workers than office staff. Previous studies have usually suggested the risks associated with RSI are most likely to affect health and social work sector employees, followed closely by those in the construction and manufacturing industries. Recent research has shown, however, that workers most at risk from work-related upper limb disorders (WRULDs) are metal, plastics, textile and other plant and machine operatives, with over one in 100 workers suffering from RSI. Office workers and managers were least at risk, with just 0.32 and 0.36 in 100, respectively, complaining of RSI.

Employers can face hefty fines for failing to provide adequate equipment and facilities to reduce the risk of RSI. In the case of one car assembly firm, a fine of £10,000 was imposed after the employer ignored HSE warnings that working practices needed to be changed to avoid injury to its workforce, leading to three employees developing symptoms of upper limb disorder.

Work-related upper limb disorders affect over 370,000 people in Great Britain with 86,000 new cases recorded last year. The costs to UK businesses amount to almost £300m in lost working time, sick pay and administration, but this could be easily avoided if employers were to take the phenomenon more seriously.

The HSE defines WRULDs as “problems with the shoulder and arm, including the forearm, elbow, wrist, hand and fingers”. They are commonly caused by repetitive and recurring movements, carried out whilst the worker is in one position, for long periods of time. Employers have a legal duty under the Health and Safety at Work etc. Act 1974, and Management of Health and Safety at Work Regulations 1999, to prevent work-related WRULDs or to stop existing cases getting any worse.

RSI Awareness Day, run by RSI Action, aims to improve awareness and help employers take the necessary steps to avoid needless and preventable injury and illness. The Chartered Society of Physiotherapy has some helpful tips on how both employers and employees can reduce the risk of RSI.

Manual workers should:

Employers should:

Workplace accidents going unreported

Only 30% of reportable workplace accidents are actually being reported to the HSE, a study by the University of Liverpool suggests. Under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) employers, the self-employed and anyone in control of work premises are required to report deaths, major injuries or any other injury leading to three days or more away from work.

The report, funded by the HSE, matched patients attending the Royal Liverpool University Hospital with cases reported to the HSE. Patients were followed up to establish which accidents should be reported, but only 30% of those were actually reported to the HSE.

The report found that the main reason accidents were reported was time lost from work. Other reasons, such as major injuries and four or more days on reduced duties were "largely ignored". Self-employed workers proved the poorest at reporting accidents, with a reporting rate of 12% compared with 32% for employed workers.

The advise is that in the event of an accident the responsible person (as designed in the RIDDOR regulations) is required to notify the relevant enforcing authority by the quickest practical means, usually a telephone call, and within 10 days send a report to the relevant enforcing authority.

In addition, all workplace accidents should be recorded in an accident book. This applies to organisations employing 10 or more employees.

In March 2005 the HSC carried out a review of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR).

A key element of the review was to ensure that any future reporting requirements were easy to understand and that businesses could achieve compliance without undue administrative costs. The review identified that under-reporting was one of the fundamental flaws of the RIDDOR system: "the current RIDDOR is complex, compliance is poor and, given questions over the need for some of the reporting requirements, many duty holders are, arguably, unnecessarily criminalised".

Based on its findings, however, the Commission agreed that the benefits of making changes to RIDDOR would be outweighed by the costs. A spokesperson for the HSE said that even a modest tweak to the Regulations would have an impact on those people who do comply with the existing legislation, thereby costing them. The review therefore concluded that changes were not justified and there are no further plans at this stage.

Company risk for private vehicle usage

Companies who allow staff to drive for work using their own private vehicles are leaving a significant hole in their driving safety policies that could be putting their drivers at risk. Only 18 out of 251 companies questioned for a study had carried out fleet risk assessments as recommended in the Health and Safety Executive’s guidelines on managing at-work road safety.

It says the major omission involves the estimated four million employees who drive on business but who do not receive a company car or a cash allowance. A quarter of firms admitted they did not include such employees in their road safety procedures, creating what report author Alphabet calls a ‘safety black hole’.

Employers are advised to:

Drivers face penalties for using mobile phones

From now on, motorists face tough new penalties for breaking the law by using a hand-held mobile phone while driving. As well as having implications for individuals the changes will also affect businesses and fleet managers. It became a specific offence to use a mobile while driving in December 2003 with drivers receiving a £30 fine, but the Government believes tougher penalties are necessary to deter drivers.

The new Road Safety Act 2006 has now introduced a fixed penalty of three points as well as a £60 fine for anyone driving while using a phone. If the police or the driver chooses to take a case to court rather than use a fixed penalty notice, the maximum fine is £1,000. That amount has increased to £2,500 for drivers of vans, lorries, buses and coaches, while employers that require employees to make or receive calls while driving can be prosecuted.

Drivers who are not in proper control of their vehicle while talking on a hands-free mobile can also be prosecuted. It is now also illegal to use a hand-held phone while stopped at traffic lights or in a queue of traffic. Driving carelessly and dangerously when using any phone can lead to disqualification, a large fine and up to two years imprisonment.

To coincide with the changes the Government has unveiled new proposals, which would mean that motorists could face having their mobile phone records checked after routine accidents. Under existing guidelines drawn up by the Association of Chief Police Officers, mobile phones and records can be checked only after a fatal accident and on the instruction of a senior officer. The Government's new proposals would lower the need for this seniority of officer and the threshold of the severity of the accident.

Employers and fleet managers need to be aware of the change as more and more people are using their mobiles for work purposes, this means that businesses should ensure that they have the correct policies and procedures in place to convey what is and isn't appropriate usage. This is especially important when you consider that recent research has suggested that seven million drivers believe they are not distracted by using a hand-held mobile phone when behind the wheel of a car, meaning employees may be tempted to use them while driving.

The Health and Safety at Work Act places a legal duty on employers to provide their employees with a safe working environment and to take all reasonably practicable measures to ensure the safety of their staff and of others that they come into contact with while working. This applies to employees driving or riding on the road in the course of their employment. It is important for businesses to ensure that they have an up-to-date robust driving at work policy in place, which is communicated to all employees. This policy should set out the company’s policy on mobile phones and should ban the use of them while driving.

The Department for Transport advises businesses to:

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