News for 2008
July
HSE consult over saftey posters
The HSE has launched a consultation to discuss whether the health and safety posters employers are required to display should be altered because they are currently “very unappealing and rarely read by employees”. The Health and Safety Information for Employers Regulations 1989 (HSIER Regulations) require employers to provide information to their employees relating to health, safety and welfare at work, generally by display of a poster or alternatively by giving out leaflets.
The proposed amendments to the legislation would allow the HSE to approve and publish new posters and leaflets which do not need to be updated or added to by employers (which the current posters have to be) but would still provide employees with the information they need.
According to the consultation, the publication of a new approved poster “provides an opportunity to present clear basic information about employees’ health and safety rights”. In particular, the HSE notes that the poster needs to be:
- understood by employees who have visual and/or learning difficulties;
- poor English reading skills; and
- work in an environment where the risk of being denied employment rights is high.
Although overlooked in many businesses, the review of the regulations found that the posters are of value, not least because in some businesses they may provide the only obvious source of health and safety information.
Rule change over display of employers’ liability insurance certificate
As of 1 October 2008, the rules requiring an employer to display an employers’ liability insurance certificate will be changed so that the requirement will be satisfied if the certificate is made available in electronic format and is reasonably accessible to relevant employees.
The Employers’ Liability (Compulsory Insurance) Regulations 1998 currently require an employer to retain a copy of the certificate for 40 years and display one or more copies at each place of business, "reasonably protected" from being defaced or damaged.
Most organisations frame copies of their certificates and hang them in staff kitchens or other communal areas. There is a penalty of up to £1,000 for failure to display and provide a copy of a certificate to an inspector on request. However, a review by the Department for Work and Pensions (DWP) estimated that the total cost to UK business of the requirement to retain and display the certificates is £71m.
The Employers’ Liability (Compulsory Insurance) (Amendment) Regulations 2008 therefore allow employers to display the certificate online, so long as it is readily available to all employees. The Regulations also allow employers to keep the certificate displayed in the workplace if this is easier.
The removal of the requirement to display the certificate is part of the DWP’s campaign to reduce the administrative burden on businesses by 25%.
Row breaks out over employers’ liability insurance
The announcement that employers will no longer be required to retain their employers’ liability insurance policy for 40 years has been met with outrage by MPs and asbestos groups alike. The Employers’ Liability (Compulsory Insurance) Regulations 1998 require employers to display one or more copies of the certificate at each place of business, "reasonably protected" from being defaced or damaged.
As of 1 October 2008, when the amendments to the legislation come into force, the requirements of the Regulations will be met if the certificate is made available in electronic format and is reasonably accessible to relevant employees. However, the amendments to the Regulations also remove the requirement for employers to retain the details of their policies for 40 years, as the Government believes the cost of retaining insurance policies is a burden on businesses and is not effectively enforced by the HSE.
This move has angered both backbench MPs and asbestos victims groups, as the requirement to retain insurance policies for 40 years was introduced to make it easier for workers affected by long-latent diseases, such as asbestosis and mesothelioma, to trace their employers’ insurers to claim compensation. Two early day motions (EDM) have been tabled by MPs since the amendments were announced, the first expressing “profound disappointment” at the move and the second requesting that the regulations bringing the amendments into law be annulled.
The first EDM notes that there is no reliable mechanism for ensuring the preservation of insurance policies if a company ceases trading, and calls on the Government to establish a central electronic database for the compulsory recording of all employers’ liability insurance policies before the amendments take effect.
This is also the call of Tony Whitston, Chair of the Asbestos Victims Support Groups Forum UK: “The Government’s manic determination to reduce administrative burdens on business by 25% has hit asbestos victims for no reason. Retaining insurance records costs each employer next to nothing but the burden and the cost of losing compensation is incalculable: it is not simply a question of financial compensation but a question of justice and fairness.
“There is no compensation culture as far as asbestos victims are concerned, but there is a despicable ‘Government tick-box culture’, ticking off regulations to achieve targets with no regard to the harm done to the most vulnerable people: asbestos victims.
“Introducing voluntary measures rather than a statutory central database for employers’ liability insurance instead of the current regulation is totally unsatisfactory: there has to be a statutory requirement to retain and to record employers’ liability insurance in a central register.”
A spokesperson for the Department for Work and Pensions (DWP) said eligible businesses will still have to hold employers’ liability insurance, and would risk a £2,500 penalty for every day without cover: “The regulation being revoked is ineffective as it carried no penalty for non compliance and did not apply to business that had ceased to trade. This regulation was introduced in 1999 and cannot be applied retrospectively.
“It is good business practice to keep records whilst an employee can make a claim against a policy. A business that can't prove it held insurance for the period of a claim may find itself meeting legal and compensation costs for illness or injury rather than the insurance company.
“The DWP is working with groups representing employers, employees, insurers and the legal profession to find a way to address the issues around tracing historic liability insurance policies."
Russian laser show damages punters' eyesight
Over 30 people who attended an open air music festival near Moscow in early July have suffered eyesight damage, with doctors fearing the effect could be permanent, the Kommersant daily reported on Monday. The Aquamarine Festival was held near the town of Vladimir, around 170 km (106 miles) east of Moscow on July 5. People started seeking medical assistance on July 7, complaining of aching eyes and eyesight loss.
"Usually, laser beams at such concerts are directed into the air. But it was raining heavily and the organizers had to stretch a canopy over the dance floor, and the [laser] beam at times fell below the canopy," one of the victims was quoted by Kommersant as saying. A doctor told Kommersant that many of the victims, aged between 16 and 30, who sought medical treatment were suffering from burnt retinas.
Doctors say the "loss of eyesight is up to 80% in some cases" and for some of the victims "it will not be possible" to restore their eyesight. Those affected by the laser have made complaints against the organizers. "The doctors must prove, that the injuries were caused only by the laser, and not by alcohol or, for instance, loud noise," one of the patients said, however.
Cosmic Connection, the concert organizer and promoter has been unavailable for comment.
The head of the EQ laser show firm, Valentin Vasilyev, however, called the incident "unprecedented" and told Kommersant that if a laser beam hit the retina, then the burn would be instantaneous and blamed poorly trained personnel and badly maintained equipment for such incidents.
But a DJ involved in music festivals said the firm that organized the concert had all the required health and safety certificates.
Door closer held to be "work equipment"
The pursuer, who was employed as a mechanical technician on an offshore oil rig, was injured while repairing the closer device for the door of the central control room. The closer consisted of a spring mechanism attached to the door and connected by a linkage arm to the door frame. The linkage arm had sprung loose and struck the pursuer in the face causing him to lose four teeth.
The pursuer claimed the defenders were in breach of their obligations under regulations 2 and 3 of the Provision and Use of Work Equipment Regulations 1998 to ensure that work equipment was suitable for use. The defenders took pleas of relevancy on the ground that the door closer could not be “work equipment” within the meaning of the Regulations. The sheriff found that the door closer was work equipment but the Court of Session held that it was not and dismissed the action.
The pursuer appealed.
The House of Lords held: The 1998 Regulations were intended to implement the Work Equipment Directive (Council Directive 89/655/EEC). The definition of work equipment in the Directive was “any machine, apparatus, tool or installation used at work”. The definition in the 1998 Regulations used the words “for use at work”. The domestic definition required one to ascertain the purpose of the apparatus etc. What was it for? If it was for use at work, then it was work equipment. If one took that simple approach then the answer was clear.
Everyone using the control room was using it for the purposes of their work. They used the door to enter or leave the control room. And in doing so, they used the closer. Its purpose was for use at work. Giving the definition its ordinary meaning, the closer was work equipment.
An alterative approach based upon the decision of the Court of Appeal in Hammond v. Comr of Police of the Metropolis (2004) was wrong. Something could not be work equipment in relation to one person but not to another. The Directive did not say that work equipment had to have been made available to the particular employee who had been injured. It spoke of the equipment being made available to “workers in the undertaking”. That meant all or any of the workers in the undertaking.
When one was considering the persons to whom the equipment had been made available, the relevant unit was the undertaking and not the particular worker. The 1998 Regulations should be interpreted to accord with the principle stated in the Directive.
The appeal was allowed.
Spencer-Franks v. Kellogg Brown and Root Ltd (2008)
Safety Bill enters committee stage
The Health and Safety (Offences) Bill has now reached the committee stage in the House of Lords, where it will be given a detailed examination on 18 July 2008. The Bill, which would raise the maximum fines and make prison an option for health and safety offences, received widespread support in the House of Commons. This support is expected to continue in the House of Lords.
In the Bill’s second reading earlier in the week, however, the Lords raised concerns about the option of imprisonment. Keith Hill, MP behind the Bill, has previously told Workplace Law Network that prison would be an option for those who have committed grievous health and safety crimes, which are currently only punishable by a fine: “There has been, unfortunately and sadly, a succession of cases of cowboy gas fitters whose botched work has led to deaths as a result of carbon monoxide poisoning, there have been gas explosions in coal mines as a result of criminal negligence on the part of managers, and people have been illegally involved in asbestos stripping.
“For a whole range of cases it has been found that all that was available to the courts under the existing legislation were fines.” It is the fifth time a Bill to raise the level of punishment for health and safety offences has been introduced to Parliament, but the first time such a Bill looks set to become law.
Health and Safety: What you must do
The Health and Safety Executive has published an action list highlighting the very basics of what you must do in order to comply with current legislation. This 10-point list shows some of the key actions required by law that apply to nearly every business. Many business will certainly require more than is outlined by this list.
You must protect the health and safety of your workers and others who might be affected by you work. Health and safety is about sensible, proportionate actions that protect people - not unnecessary bureaucracy and paperwork.
Stagesafe exist to assist both companies in complying with these duties. Call us on 07831 437062 or email us.
Fatal workplace injury figures fall
Provisional figures of work-related fatal injuries in Great Britain, issued by the HSE reveal that 228 workers lost their lived as a result of incidents at work in 2007-2008. This is 19 less work-related deaths than in 2006-2007, where 247 workers died. There has been a slight increase in the number of workers killed in the agriculture industry (36 in 2006-2007 to 39 in 2007-2008), but a slight decrease in the number killed in the construction industry (77 to 72).
Responding to the release of the figures HSE chair Judith Hackitt says: “Whilst we welcome the headline decrease in overall numbers of fatalities, there is absolutely no room for complacency as the report suggests a plateau in the overall five year trend. Great Britain's position amongst major European Union countries is in relative terms a creditable one, but none can find it acceptable that 228 people died directly as a cause of their work.
“After many years of improvement, it is disappointing that we are on a performance plateau. This stresses the need for everyone, employers and employees alike to make a further effort to reduce this total of human misery.”
Hackitt says that it is when employers and employees work closely together to agree the agenda and set targets to tackle health and safety issues that significant improvements are made: “We want this to continue and we also want to see employers taking more ownership and leadership to embed health and safety in their organisational culture and boardrooms. The high levels of fatalities in the agriculture and construction sectors continue to be of particular concern to us and will be a major focus of the HSE's work priorities over the coming year."
When the Health and Safety at Work Act 1974 was introduced, there were 651 deaths at work a year. The year with the lowest number of work-related fatalities recorded since then was 2005-2006, with 217 deaths. The reporting of health and safety incidents at work is a statutory requirement, set out under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR).
SIA revokes licence
The owner of a security company in Manchester has become the first director to have his licence revoked by the Security Industry Authority (SIA) based on non-conviction information.
The company director, who cannot be named for legal reasons, had received warnings from the SIA for deploying unlicensed security operatives and failing to respond to requests made under Section 19 of the Private Security Industry Act 2001, which states:
“Regulated persons are required to produce documents or information in connection with matters that are subject to regulation under the Act (i.e. licensable conduct, the provision of security services, and any conditions attaching to approved contractor status under a compulsory scheme).”
Rachael White, an SIA Head of Investigation, says: "We always maintain a fair and just approach to enforcement and work closely with companies and their employees to help them work within the law. In this case, the director made no attempt to comply, and by working against us, led to his SIA licence being revoked. We hope this sends a strong message to other non-compliant company directors."
The SIA says that it always takes a fair and proportionate approach to enforcement action and will take into account the progress an individual has made towards getting or renewing a license e.g. training completed, license application submitted. However, it also says it expects security companies and individuals to comply with the law.
Landlord fined for lack of fire safety
A pub landlord has been successfully prosecuted for ten separate breaches of fire safety legislation, which meant his pub had failed to meet the legal standards for fire safety. The charges were brought under the Regulatory Reform (Fire Safety) Order 2006 (RRO) against Paul Dailey, the proprietor of the George and Dragon public house in Berkshire.
A routine inspection of the George and Dragon by Fire Safety Officers identified serious breaches to the fire safety precautions for the premises. These breaches included:
- No fire risk assessment was carried out for the premises.
- No fire protection was provided for fire escape routes.
- No fire alarm system was in place.
- Fire escape routes were obstructed.
- No fire drill training was given to members of staff.
- Emergency lighting systems did not work.
The court was informed that these breaches presented a serious and life-threatening risk, not only to the staff who worked there but also to the members of the public who visited the premises. In summing up, the Magistrates reinforced the seriousness of the case and attributed this to a clear failure on the part of Dailey to comply with the responsibilities imposed on him under the Order, and his failure to address inadequate fire safety provisions. Dailey was fined £4,000 plus £3,984 costs.
David Walden, Fire Safety Technical Support Officer, says: “We are very pleased that the courts have acknowledged the serious nature of this case. This prosecution was brought about under the RRO, which came into effect in October 2006. Although fire and rescue services are no longer required to issue fire safety certificates, we continue to carry out a rigorous inspection programme of commercial premises to ensure they are meeting the standards required by the Order.
“Royal Berkshire Fire and Rescue Service strongly advises that anybody who employs staff or has responsibility and control of commercial premises must ensure that the responsibilities placed upon them by the RRO are properly discharged.”
New course gets government nod
The Government has welcomed the launch of the Workplace Hazards Awareness Course (WHAC), which has been developed by IOSH and the HSE to teach students about health and safety before they enter the working world.
In a speech to the All Party Parliamentary Group on Occupational Safety and Health, which met to discuss how to reduce the numbers of young people injured and killed in the workplace each year, Parliamentary Under-Secretary of State for Work and Pensions Anne McGuire said that school-age students would “benefit hugely” from the course: “It encourages students to assess the impact of their actions on themselves, which is a very important starting point. They are also encouraged to consider the impact of their actions on colleagues, both of which should help to make them much more considerate employees.
“In turn, this may help them to become considerate managers and employers, fully confident with the practicalities of health and safety or risk assessment, perhaps even more confident in life generally.”
McGuire believes WHAC could also have further reaching uses: “Importantly though, there is also a huge potential for WHAC to benefit vulnerable workers from a variety of different backgrounds, including migrant workers or those new to the UK workforce for a myriad of different reasons.”
Health and safety is not currently a mandatory part of the school curriculum; however, the Qualifications and Curriculum Authority has consulted with the HSE about changing this, meaning all 15-year-olds could receive health and safety training in the future.
McGuire was very positive about the implications WHAC may have for employers: “What an impact this will have on the expectations of our new workforce! Imagine all of your entry-level employees arriving ready armed with an understanding of their role, and not just supporting but promoting positive health and safety. Won’t that be fantastic?”
The All Party Parliamentary Group on Occupational Safety and Health met last week to discuss how better to protect young people at work because, in the last decade, 64 young people aged under 19 have been killed in workplace accidents. A further 15,000 have been seriously injured.
Excuse me sir, is that tobacco in your joint?
Smoking tobacco in restaurants and cafes across Holland is now illegal, but customers are still allowed to light up pure cannabis cigarettes. Dutch coffee shop owners claim the law, which has effectively put a stop to smoking the milder varieties of cannabis cigarette, threatens to put hundreds of them out of business.
Mark Jacobsen, chairman of the BCD, a nationwide association of coffee shop owners, said proper implementation of it would require inspectors to check each cannabis joint for tobacco content.
He said: "It's absurd. In other countries they look to see whether you have marijuana in your cigarette, here they'll look to see if you've got cigarette in your marijuana."
HSE warns over inadequate risk assessments
The Health and Safety Executive (HSE) is warning employers to ensure adequate risk assessments are in place and the proper maintenance of all equipment following HSE’s prosecution of a multinational company after a worker suffered severe crush injuries.
Schenker, based in Feltham, Middlesex were fined £45,000 and ordered to pay £19,000 in costs, at Basildon Crown Court on 30th June after pleading guilty of breaching sections 2 and 3 of the Health and Safety at Work etc Act 1974, and regulation 5(1) of the Provision and Use of Work Equipment Regulations1998.
On 17 March 2006, Mr Mark Treadwell from Benfleet, was standing on the back of a truck in front of a loading dock at the company site at Fenton Way, Southfields Industrial Estate in Basildon. He was trying to ensure the dock levelling equipment was laid flat as the driver manoeuvred the truck into place.
Mr Treadwell’s head was crushed between the truck and a wall when the truck reversed. He suffered severe crush injuries including facial lacerations, a fractured nose, brain stem bleeding, blurred vision, speech and balance problems, and a perforated eardrum.
HSE Inspector, Julie Rayner said: "This tragic incident makes it clear to employers that they need to take positive action to maintain equipment. Had the company involved properly maintained the loading dock and carried out adequate risk assessments, this terrible incident could have been avoided. HSE will not hesitate to take action against those who fall short of the law in such a way."
