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Archive for January, 2012

Migrant Workers

Those of us who provide employment law advice, and legal advice in general, in the Bristol area, should be aware of the poisition of migrant workers

Migrant workers

 

 

Since the enlargement of the European Union, with the general principle that citizens of EU states have the right of free movement to work, increasing numbers of migrant workers have found employment in the United Kingdom. Migrant workers are generally regarded as being highly motivated, reliable and committed. Many of these workers do not have a fluent grasp of English and may be particularly vulnerable to failings in health and safety practices. The large number of migrant workers from Central and Eastern Europe currently employed in the United Kingdom has started to make an impact on health and safety and employment law.

These workers may be prepared to accept lower wages than their British counterparts, because wages in their home countries are far lower than those in the United Kingdom for comparable work. Those migrant workers who are highly educated find themselves in a position where they are not familiar with their employment rights. They may feel that they are in a vulnerable position in a foreign country with whose laws and customs they are unfamiliar. English employment tribunals and courts are increasingly demonstrating an awareness of this position.

The Health and Safety Executive has shown itself to be well aware of these problems. It has issued detailed advice and guidance on the proper management of migrant workers’ health and safety. The HSE recognises that factors such as poor language skills and unfamiliarity with the workplace can magnify the effects of existing health and safety problems. It advises that migrant workers with better English should be asked to interpret for their less fluent colleagues. Internationally recognised signs, videos or audio materials can be used to communicate health and safety messages.

In general, tribunals and courts have expressly recognised the problems arising in relation to large numbers of workers with a limited grasp of English language, law and culture. Spokespersons for the HSE have repeatedly commented on the vulnerability of such employees in relation to health and safety.

In July 2009 Thomas Thomson, the director of Thomas Thomson (Blairgowrie) Ltd, a fruit farming company, was fined following the death of a migrant worker by electrocution.

In July 2006 Gerard Faltynowski, a Polish migrant worker, was helping to build a polytunnel in a field near Blairgowrie in Scotland. The polytunnel was placed below three overhead power lines carrying 11,000 volts.

Faltynowski had slotted thirteen poles, each one half a metre in length, and was carrying them vertically. The pole touched the cables. He was killed instantly.

Thomson was fined £1800 under Regulation 3 of the Management of Health and Safety at Work Regulations 1999 for failing to make a suitable risk assessment of working below power lines.

In August 2006 a gangmaster in charge of Chinese migrant cockle pickers was sentenced to 14 years’ imprisonment on 21 counts of manslaughter. The facts, in summary, were that 23 Chinese migrant workers died after a group of 35 cockle pickers were cut off by the tide after dark in February 2004. Twenty-one bodies were later recovered.

The gangmaster – Lin Liang Ren – was also convicted of perverting the course of justice and facilitating illegal immigrants to work in the United Kingdom. His girlfriend, Zhao Xiao Qing, was sentenced to two years and nine months imprisonment for perverting the course of justice and facilitating. His cousin, Lin Mu Yong, received a sentence of four years and nine months imprisonment for helping cocklers to break immigration laws.


Employment Law Reforms

Proposed employment law reforms

Anyone giving legal advice in Bristol, and more specifically those providing employment law advice, needs to be aware that the scope of their expertise is likely to be significantly affected by the proposals put forward by the government in November 2010. If, or perhaps when, the proposals are put into effect, employment protection for workers will be drastically curtailed. The proposals include:

  • An increase in the qualification period for unfair dismissal claims from one to two years.
  • The introduction of fees for employment tribunal claims.
  • Amendment of the whistleblowing legislation to exclude claims arising from personal work contracts.
  • A requirement that all employment disputes are referred to ACAS before they proceed to an employment tribunal.
  • Compromise agreements to be simplified and known as settlement agreements.
  • Witness statements in employment tribunal proceedings will be taken as read, expenses for witnesses will no longer be allowed and the powers of employment judges to sit alone will be extended.
  • The maximum amount of costs which an employment tribunal can award will be increased from £10,000 to £20,000.

How are we to react to these proposals? On the one hand, they can be seen as a comprehensive attack on workers’ rights, secured after years of struggle. It also appears that the main motivation behind the proposals is to save money.

It can also be argued that the proposals mark yet another step towards the Americanisation of the English legal system, exemplified by the abolition of legal aid and the introduction of conditional fees. America has no law of unfair dismissal – this “hire and fire” philosophy clearly has its attractions for those who wish to make a bonfire of workers’ rights.

Another point worth making is that, although the proposals may look like bad news for lawyers, because the number of unfair dismissal claims will be sharply reduced, the reality is that the proposals mean further “legalisation” of employment tribunals. These tribunals, created to deal quickly and cheaply with employment disputes, have become increasingly the haunt of specialist lawyers. We may soon see the day when m’learned friends have to don fancy dress before they can be heard by an employment judge.


Health and Safety Attacked

Cameron attacks Britain’s ‘health and safety culture’ but raises more questions than answers

Last week at a conference for business owners, David Cameron launched an attack on the ‘monster’ that is health and safety law; warning that it was stifling business growth and contributing to the slow economic development. Continuing his onslaught, the prime minster suggested that local authorities needed a ‘slap’ to force them into more effective cooperation with business.

He also admitted that he was wrong about something. Was it the admission that the austere measures enforced upon us weren’t working? Was it the admission that his approach to the Eurozone crisis was an error in judgment? Or maybe it was the fact that referring to Ed Balls’ “enthusiasm” in the House of Commons in the following terms was wrong; “the endless, ceaseless banter, it’s like having someone with Tourette’s permanently sitting opposite you.”

No no, the penetrating mistake for which Cameron finally held his hands up was actually nothing as headline-grabbing – the national insurance holiday for new businesses outside of the South-east didn’t actually create any new jobs. Quelle surprise. Everybody, well everybody that wasn’t educated in Eton and has job security (probably) until 2015, knows that there are no new jobs. Anywhere. Crikey, most people are having a hard enough time trying to hold on to the one they’ve got.

Cameron has sought to rectify his mistake at not providing businesses with opportunity for growth by announcing that;

“One of the coalition’s New Year resolutions is this: kill off the health and safety culture for good. I want 2012 to go down in history not just as Olympics year or diamond jubilee year, but the year we banished a lot of this pointless time-wasting from the economy and British life once and for all… I think that will take a lot of fear out of the health and safety monster and make sure that businesses feel they can get on, they can plan, they can invest, they can grow without feeling they are going to be strangled by red tape and health and safety regulation.” (London Evening Standard)

Unfortunately, this statement only reinforces the view that there is a real gap in our PM’s knowledge. One supposes he is trying to engage with his electorate, the “Common people”. Complaints over health and safety law restricting events are well-known, and they’re perpetuated by both workers and the media. Thus by attacking the monster of health and safety in order to encourage growth, on the surface, is a good plan.

However, quite simply, his approach to condemning health and safety law completely undermines the policy reasons for having it and worse, not only does Cameron subscribe to the myth that health and safety law strangles growth, he is perpetuating it.

There are a few points that everyone in this discussion should know:

  • There is no “health and safety culture”. There is a fear of litigation for failing to comply with health and safety. The two are quite different.
  • This culture is analogous to another myth – compensation culture. It is a phrase frequently used, but again, it does not exist. Researchers in to the compensation culture, in their 2006-2007 report to the House of Commons, recognised that the true problem is excessive risk aversion and not a repeated desire to sue.
  • It is not the principle of the law that is to blame – it is the interpretation of it. If interpretation is failing, one looks to the drafting of the offending item. One does not remove it completely.

Health and safety rules and regulations are perhaps the most important body of law in the UK. By requiring risks to be identified, it STOPS INJURY AND DEATH. That means that health and safety law SAVES LIVES. It does not just, like most other areas of law, punish those who caused injury or death after the event. Murder, for example, is “the unlawful killing of a human being in the Queen’s peace, with malice aforethought.” The law on murder doesn’t stop the killing; it punishes not prevents. In health and safety law crimes and civil wrongs are committed on the possibility of causing injury. Why, therefore, does Mr Cameron refer to this important body of law as the enemy? Why is he, weirdly, using violent metaphors to define law that is the most protective of them all? Is it to be that Common person and engage with people? Or more sinisterly, does he actually believe that businesses and his “Big Society” would be better off without it?


Recent Health and Safety Fines and Prosecutions

Anyone providing advice on employment law in general, and health and safety law in particular, needs to be aware of the following recent prosecutions:

Deaths of mineworkers: £1.2 million fines

UK Coal Mining has been fined following the deaths of four mineworkers.

Significant points of the case

The deaths were as follows:

  • In June 2006 Trevor Steeples was killed at Daw Mill colliery near Coventry when he was exposed to high levels of methane.
  • In August 2008 Paul Hunt was killed at the same colliery when he fell from an inadequately maintained underground transporter into the path of a moving train.
  • In January 2007 Anthony Garriagn was killed at the same colliery as he worked with colleagues to install rockbolts to keep a tunnel support wall in position. he was crushed to death when more than 100 tonnes of inadequately supported coal and stone fell on him. The tunnel had previously collapsed and UK Coal should have supplied a safer system of support.
  • In November 2007 Paul Milner died at Welback colliery in Nottinghamshire. he was installing extra roof supports in order to salvage equipment from a coal face which had ceased production. Milner was crushed to death under 90 tonnes of rock when the roof collapsed. A suitable code of practice had been agreed to provide a safe system of work. This code was not properly implemented by UK Coal.

UK Coal Mining wads fined £112,500 plus £187,500 costs in respect of each death for breaches of sections 2 and 3 of the Health and Safety at Work, etc., Act 1974 (HSW Act), for failing to ensure the health and safety of employees and non-employees.

Sheffield Crown Court, December 2011.

Forklift truck death: £100,000 fines

Millenium Rubber International Ltd, a compnay which manufactures rubber surfaces for children’s playgrounds and  running tracks, and United Crane Services Ltd have been fined after a worker was killed when he fell from the forks of a forklift truck.

Significant points of the case

  • In June 2006 Martin Denton was working at Millenium Rubber’s factory in Macclesfield.
  • He was being lifted in a stillage (a metal container) when it slipped off the forks of a forklift truck. He fell four metres onto a concrete floor and suffered fatal head injuries.
  • United Crane Services had been contracted to repair an overhead crane at the factory. It allowed Denton to be lifted in a container which was not designed to carry people.
  • It was standard practice at the factory to use pallets and containers on forklift trucks to lift workers. Neither containers nor pallets were safe nor designed for that purpose.

Millenium Rubber was fined £90,000 plus £21,000 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.

United Crane Services was fined £10,000 plus £5000 costs under section 3, HSW Act, for failing to ensure the health and safety of non-employees.

Chester Crown Court, December 2011.


Key changes in Employment Law in 2012

2012 is a year that many have been anticipating more than most. For many Britons, the promise of the Olympics coming to London in the summer has provided a brief respite from the gloom of austerity. Against this renewed optimism, there are the pessimists that believe, thanks to the Mayans, that this year really will be spectacular, albeit based on the belief that the world will end on 23rd December.

In between these two extremes; optimism and pessimism, summer and winter, and  the varying degrees of state in between, us civilians still have to pick our way through the malaise of everyday life. Unfortunately, the warnings coming from Europe and economists is that this year, financially, will be as tough as the previous few. Further, with the effects of the recession now filtering through to more job losses, pressures on employment law to react become even more heightened.

There are changes afoot. Some are – like the summer Olympics, bringing with it messages of renewed hope, triumph over adversity etc. Others, however, will be more akin to the end of the world. Below is a summary of the some of the key changes to employment law due to be implemented in the forthcoming year.

February

1st Increase in redundancy pay

Increase to £72,300 limit on amount of compensatory award in unfair dismissal cases

April

1st Increase in statutory pay for maternity and paternity leave

6th Increase in statutory sick pay to £85.85 per week

Qualifying period will increase in unfair dismissal cases to 2 years.

The Employment Tribunal procedure will be reviewed with significant changes to be made, including bringing in a deposit order payable (currently £500) to the court to continue with proceedings.

October

1st The automatic enrolment of employees’ pensions scheme begins.

The national minimum wage MAY rise…

This is not a complete list of all relevant dates. In that respect, it is more like the Mayan’s calendar. While the increased payments are welcomed, the changes to the employment tribunal procedure represent one of the biggest threats to employment law as it currently is. How successful the changes are dependent on their final substance and implementation. It is only then that we can truly assess 2012 as either an Olympic year…or the end of the world as we know it…