Logo

Archive for February, 2012

The Socially Acceptable Drug Addict

When we use the phrase “drug addict”, the image of criminals and homeless people appears in our mind. These people that rob, steal and cheat their way through life to focus on gaining their next fix of crack cocaine or heroin that taints the rest of our society. These drug addicts are supplied by dangerous criminal drug dealers that form an underclass of criminality. It is a serious social problem, one that is reflected in the criminal sanctions available to the courts when they are court; those convicted of dealing heroin could face life imprisonment.

So, taking and dealing drugs are bad. Why? Well, most of us would realise it’s because they’re bad for us. However medical opinion, as science, is always subject to change. Heroin was legal up until the 1950s in the UK and regularly prescribed by doctors; it was only made illegal following international pressure to recognise its addictiveness. And there we are lead to the first great paradoxes in current thinking on drugs: illegal drugs are illegal because they are bad for us, therefore legal drugs are legal because they are not bad for us. It is widely viewed as down to this sad paradox that the drug mephedrome was taken by a number of teenagers last year which resulted in their death. This prompted the necessary reviews and reclassification in order to protect society, and a crackdown on those dealing the drug inevitably followed.

And so we have the cyclical circumstance of drug legality, the bad men deal the drugs to the naive population who don’t appreciate the effects of the drugs. They take the drugs, they suffer the bad side effects, and so the drugs are made illegal in order to make it difficult to get (among, obviously, other reasons). Job done.

But what about the biggest drug dealer in the country? The NHS, doctors and nurses who regularly supply drugs that are just as addictive and in some cases as bad for you as heroin and mephedrome? We wouldn’t call them “bad men”…would we?

Today (28th February), the BBC reported that an American study in the BMJ Open has found that that the risk of death among users of the sleeping tablet temazepam is four times higher than in non-users. In 2010, 2.8 million people were prescribed this drug, and 5.3 million were prescribed zopiclone, another common drug. The researchers found that overall 1 in every 16 patients who took sleeping pills died, compared to 1 in 80 of those it did not. Balance this increased risk with the lack of justifiable benefit of these drugs, and the future seems increasingly unclear. In their own words, the researchers said; “the meagre benefits of hypnotics, as critically reviewed by groups without financial interest, would not justify substantial risks.”

This story comes on top of the Independent’s report at the end of last year, which commented that doctors were being sued for inadvertently creating prescription drug addicts by failing to recognise the withdrawal symptoms associated with them.  The failure to follow safety guidelines, which sets out the risks of certain drugs’ effects, has lead to an increase in clinical negligence litigation over long-term prescriptions of benzodiazepines, e.g. Valium. If taken off these drugs too quickly, patients may suffer from serious, disabling pain, and many are not warned about the dangers of withdrawal which can result in seizures and death.

The problem appears the speed at which these drugs are prescribed for a variety of social problems as opposed to purely medical. Professor Malcom Lader told the Independent that;

“There is no sign that such prescribing is diminishing. The Royal College of GPs is in denial about this because they fear being sued. With around a million long-term users, the [legal] defence unions will at some point decide that these cases are indefensible and GPs will have to pay their own costs.”

If increased addictiveness without recognisable benefit is the hallmark of “bad drugs” and thus illegal drugs, why are these prescriptions still being given? Why are the civil courts responsible for dealing with the effects of these drugs, but the criminal courts are required to deal with recreational use? Where’s the crackdown? The policy reclassification? The reaction?! And so we come to the second greatest paradox; the drug dealers that we really ought to be concerned with are perhaps not those who we see loitering on the street corners, but the ones that we pay for and trust almost unconditionally….

References

Michelle Roberts, ‘Sleeping pills ‘linked to increased death risk’’ accessed 28th February 2012

Nina Lakhani, ‘Doctors sued for creating Valium addicts’ accessed 28th February 2012


Pressure to Dilute Employment Rights

Those of us who offer legal advice in Bristol, and particularly those who profess expertise in employment law, need to consider their response to the reported views of Liam Fox (Independent, February 23, 2012).

Fox, the disgraced former Tory cabinet minister, is reported as saying:

” It is too difficult to hire and fire, and too expensive to take on new employees. It is intellectually unsustainable to believe that workplace rights should remain untouchable while output and employment are clearly cyclical”.

These comments are apparently part of pressure from Conservative MPs to relax employment protection laws as part of a “go for growth” package.

My own reaction to this “pressure” is as follows:

  • I don’t need lecturing on “intellectual sustainability” from a disgraced Tory, and I believe that very few employment lawyers would welcome this assessment of their trade.
  • We are seeing concerted attacks on employment rights in the context of an economic crisis with its roots in the greed of American bankers. It is supremely ironic that apologists for capitalism red in tooth and claw are now turning on those least able to defend themselves, blaming them for the crisis, and seeking to impose American “hire and fire” principles.
  • The cycles of capitalism are historical facts. Fox seeks to undermine workers’ rights, achieved after decades of bitter struggle, in the name of these cycles.
  • Attempts to dilute workers’ rights should be opposed by all employment lawyers worthy of their name.

Recent Awards in Discrimination Cases

Those of us who provide legal advice in Bristol, and particularly those who regard themselves as expert in supplying advice on employment law, should be aware of the following three recent decisions:

Michalak v The Mid Yorkshire Hospitals NHS Trust and Others (2012) Eq Opp Rev 28:221

Facts M, a woman of Polish origin, was employed by MY as a consultant physician. Soon after starting employment, she took maternity leave. She was subjected to disciplinary proceedings which resulted in her dismissal. She complained of unfair dismissal, race and sex discrimination and victimisation.

M’s maternity leave started a campaign by senior persons in the hospital to get rid of her. A number of secret meetings were held, with the aim of creating a strategy to dismiss M. References were made to M’s Polish origins and cultural issues. M was not informed of the meetings.

During M’s absence, colleagues were paid extra to cover her absence. M complained that by excluding her from these payments, she was being treated less favourably because she had been on maternity leave.

Senior managers and clinicians decided on a strategy to pursue investigations to try and identify misconduct by M. She was suspended from work in January 2006 following complaints by staff.

The tribunal found that M had been subjected to a campaign of harassment, was subjected to an improperly long suspension, and was dismissed for various acts of misconduct, none of which were substantiated.

There had been repeated references to M’s ethnic origins and the cultural issues which might arise. Although about half of the respondent’s consultant body were from ethnic minority backgrounds, the secret meetings and disciplinary panels comprised all British white people. There was direct race discrimination: the respondent failed to show that its actions were untainted by race discrimination.

Three of the fourteen individually named respondents were also found liable for sex and race discrimination.

Compensation award M was awarded £4,452, 206 compensation.

M suffered from chronic post-traumatic stress disorder, depression and anxiety. It was unlikely that she would be able to return to work as a consultant. Her symptoms had persisted for more than two years and she had undergone an enduring personality change.

Injury to feelings: £30,000: upper end of top Vento band.

Personal injury: psychiatric illness: £56,000.

Exemplary damages: £4000: Oppressive, arbitrary or unconstitutional action by the employer.

Actual loss of earnings: from date of dismissal: £168, 234.

Cost of care: past care: £43,207. Three years’ future care: £31,122.

Future loss of earnings: Calculated retirement age of 68: average net income over 14 years: £941, 802.

Pension loss: £666,260.

Medical treatment: £50,000.

Loss of benefit of life insurance: £15,000.

Uplift: The old statutory grievance procedure applied: 15% uplift: grave and contumelious failure to comply.

(Total award grossed up for tax)

Liability joint and several between all relevant respondents.

Browne v Central Manchester University NHS Foundation Trust (2012) Eq Opp Rev 31:221

Facts B was employed by CM as divisional director of the Clinical and Scientific Services (CCS) Division in March 2002. He was the only black divisional director. In 2007 concerns arose about his performance. The NHS procedure to deal with this was not followed. B received a letter telling him that his job was at risk. B became ill with stress and was off work. He was suspended and dismissed after investigation and disciplinary hearings. B complained of unfair dismissal and race discrimination.

The tribunal found the following:
* There had been a clear breach of CM’s capability porcedures by notifying B that his job was at risk before formal procedures had been invoked.

  • The investigation of B’s grievance had been cursory.
  • B was treated less favourably than other divisional directors with whom problems had arisen.
  • B had been suspended without proper procedures being followed.
  • Statistics had been presented to B which “showed a pattern of black employees being more likely to be subject to dismissal than white employees”.

Compensation award

Injury to feelings: lower end of top Vento band: £20,000.

Aggravated damages: £5000: no apology: B distressed at hearing when accused of making spurious and opportunistic complaints.

Personal injury: moderately severe mental illness: £13,000.

Actual loss of earnings: from date of dismissal to date of hearing: £172,114.

Future loss of earnings: to age of 65: £101,140.

Pension loss: £244,219.

Grossing up for tax: Total net award of £565,623 grossed up to £933, 115.

Burke v Clinton Cards plc & Walker (2012) Eq Opp Rev 32:221

Facts Mrs B was employed by CC as an area sales manager. She was diagnosed as suffering from breast cancer. Her employers made adjustments by reducing the number of stores for which she was responsible. W took over as a new regional manager. He increased Mrs B’s workload and criticised her performance. He did not take account of the effect of her medical treatment on her work. Mrs B resigned and complained of constructive dismissal and disability discrimination.

The complaints were upheld.

Compensation award

Actual loss of earnings: £24,838.

Future loss of earnings: three years: £42,371. Note: the tribunal would have favourably considered a claim for career-long loss of earnings, but this had not been included in the schedule of loss.

Pension loss: £6,698.

Loss of company car: £10,134.

Injury to feelings: £14,000: cumulatively caused distress: upper end of middle Vento band.


Employment Advice in Bristol

Employment law advice in Bristol

Those of us who offer legal advice services in Bristol, particularly in the area of employment law, deal with the following types of problem on a regular basis:

  • Employees made ill by workplace conditions, particularly excessive hours of work, bullying and breaches of contract by employers.
  • Non-payment or underpayment of wages.
  • Redudancy dismissals, which may involve consideration of the possibility of unfair dismissal claims where there is no true redundancy situation or where the selction for redundancy has not followed prescribed procedures.
  • Workers who feel that they have no alternative but to resign because the conduct of their employers has been in fundamental breach of contract. This may involve the possibility of claims for constructive dismissal.
  • Disability discrimination.
  • Age discrimination.
  • Sex discrimination.
  • Sexual orientation discrimination.
  • Race discrimination.

Common factors arising in connection with these types of problem include:

  • Emotionally distressed clients.
  • Funding problems.
  • Evidential difficulties.
  • Procedural complexities.

The Bristol Pound

Bristol Pound

Earlier this week it was announced that Bristol would be getting its own currency. Predominantly featured in the areas that have a high level of independent retailers, the Bristol pound hopes to inject much needed economic stimulation through keeping money local. Bristol Pound Community Interest Company and Bristol Credit Union are behind the scheme, due to go live on 21st May. They hope that the scheme will prove popular, meaning that more and more people and retailers will sign up.

How to get involved

  • Open an account with Bristol Credit Union (subject to your application being accepted)
  • Exchange pounds (sterling) for pounds (Bristol) at exchange points around the centre
  • Look out for the sign on your favourite independent shops to see if they are participating
  • Spend your Bristol Pounds at local businesses who accept them, either with notes, via SMS texts or by your mobile phone!
  • Also bonuses, discounts, special offers available on the Bristol Pound Directory
  • There are already a number of retailers signed up based on North Street (Southville/Bedminster) Gloucester Road (Montpelier, St Andrews, Bishopston and Horfield) and Clifton Village
  • ?

    More information on the Bristol Pound can be found here: bristolpound.org

    Bristol has always been proud of its independent shops, and by introducing the Bristol Pound, the CIC and BCU follow the example set by places such as Brixton, London and Stroud, Gloucestershire.


    Recent Bristol Health and Safety Prosecution

    Bristol construction company fined for poor hygiene facilities

    Health and Safety Executive v CR Construction (SW) Ltd

    CR Construction (SW) Ltd, a Bristol building firm, has been fined after HSE inspectors found inadequate hygiene facilities at its site in Pembroke Road, Clifton, Bristol.

    Significant points of the case

    • In June 2011 HSE inspectors visited the site. They found that the company had failed to provide basic welfare and washing facilities for workers, despite enforcement action by the HSE at another of its sites.
    • The company knew what the requirements for hygiene facilities were, because an improvement notice had been cerved in relation to the company’s site at Thornbury, near Bristol.
    • Up to sixteen people worked at the Clifton site. Facilities had been far below the minimum required for the whole of the year for which the site had been operative.

    CR Construction (SW) Ltd was fined £2000 plus £2000 costs for a breach of regulation 22 (1) ( c ) of the Construction (Design and Management) Regulations 2007 (CDM).

    Bristol magistrates’ court, January 2012

    An HSE inspector made the following points:

    • Workers on construction sites need access to clean and working toilets and hand washing facilities with hot and cold running water, soap and towels, because many materials used on site can cause skin problems.
    • It is a legal requirement to have a heated room on site where workers can change, rest, and make hot drinks and food if required.

    Regulation 22 (1) ( c ) of CDM states, in summary, that the principal contractor shall ensure that welfare facilities sufficient to comply with Schedule 2 are provided throughout the construction phase.


    Employment Law Reforms

    “V” for Vendetta
    In a recent speech, David Cameron lauded the ease with which employees, in the UK, can legally be fired, relative to other European practices. At the same time, Business Secretary Vince Cable announced a consultation on adopting “protected conversations” in the workplace, the theory being that employers will be protected from workers reporting conversations regarding performance or retirement, to a tribunal.

    The move comes in the wake of the coalition Government’s abolition of the Agricultural Wages Board, first established in 1948, which protects the rights of one of the lowest paid sectors of the economy. Even Thatcher didn’t go there.

    Effective from April of this year, there are proposals to increase the qualification period for bringing a claim for unfair dismissal, from one year to two. In addition, there is talk of reducing the consultation period for collective redundancies from 90 days to just 30, diminishing worker protection during business transfers and introducing fees in employment tribunals.

    The consultation on these fees, set to commence in April 2013, has a very specific purpose: not to advise on the fundamental principle of charging claimants as one might have thought, nor to analyse the potential effect this may have on access to justice. No. The aim of this consultation is to draw up plans for the charging structure, or rather, the way in which people will have to pay for the privilege of exercising their rights.

    Supporters of reform have attempted to argue that the current tribunal system is failing, with the number of claims rising 44% over two years, totaling 218,000 in 2010. Yet whilst proposed prohibitory measures will undoubtedly serve to curtail the number cases passing through the employment tribunals, the prospect of charging potential claimants will inevitably preclude those most vulnerable from seeking justice in the courts, filtering out cases based on ability pay, rather than merit.

    A further consultation carried out last year on potential employment tribunal reforms included plans for increased deposit orders, mandatory pre-claim arbitration through ACAS, unfair dismissal claims to be heard only by a judge and the termination of payment of witness expenses. Coupled with these changes, are whispers of “no fault” dismissals for companies employing just ten people or less, further restrictions being placed on the amount of compensation given for discrimination, diminishing rights under the Working Time Directive, removing union reps from the payroll of public bodies, making it harder for unions to ballot for industrial action and the list goes on.

    Ok, so it wouldn’t be the first time a Tory-led government has expressed a slight aversion to the trade unions, but one could be forgiven for thinking that these proposals constituted an all-out vendetta on workers’ rights. And all of this at a time when unemployment is at a 17 year high and workers’ sense of confidence and security, at an all time low.

    The avalanche of proposals certainly does not sit well with the Government’s supposed commitment to social justice and fair practice. So what is the reasoning behind Cameron’s war on employment rights and what are the implications?

    The theory behind the onslaught, according to the Tory camp, is to cut red tape for businesses and boost Britain’s flailing economic growth levels. Jumping on the bandwagon of popular complaints against health and safety laws, employers’ organizations appear to have convinced the Government that the current state of paralysis which has gripped the British economy stems from businesses’ fear of hiring people.

    Their answer: curtail employees’ rights, allow businesses free reign to hire and fire willy-nilly and exacerbate the sense of instability that is crippling the housing market, constricting consumer spending and pushing up unemployment levels. The logic is tenuous to say the least.

    What is most concerning of all, however, is the fact that the Government’s own surveys do not seem to necessitate the conclusions reached. As Iain Birrell, partner at Thompsons Solicitors, has highlighted, there is ‘a gap between what drives ministers ideologically and what their own evidence is telling them.’

    When a report commissioned by Cameron and produced by Lord Young, determined that there was no real need for reform or repeal of health and safety legislation, the Government simply asked the question again. So Work and Pensions Secretary Chris Grayling commissioned Professor Ragner Loftstedt to produce the right answer. The correct right answer that is.

    And even that did not go quite as planned. After months of careful consideration, in-depth analysis and exacting assessment, Loftstedt promptly arrived at much the same conclusion as his predecessor; that the UK’s health and safety laws “are broadly right”. Undeterred, Grayling has nevertheless proceeded to announce “a major cut back of health and safety red tape”. Loftstedt is said to have been unimpressed.

    Similar reports commissioned to assess the impact of proposed unfair dismissal claims illustrated that there is no correlation between employees who have only just attained the qualifying period and those making the majority of claims. And whilst the Tories are championing employment law reforms as the answer to the small business’ woes, the BIS Small Business Survey 2010 concluded that, in fact, employers find National Insurance and tax systems infinitely more burdensome than employment laws.

    So it seems that no matter how hard Cameron tries to mould the evidence to support his preconceived conclusions, he just can’t make it fit.

    To add to this sense of instability are claims of a rift at the very core of the coalition, stemming from Cameron’s support of a controversial proposal to allow businesses to fire staff who perform poorly, without explanation, in exchange for a minimal compensation payment. Clearly feeling that previous independent reports were a little too, well, independent, Cameron called on his old chum Adrian Beecroft, venture capitalist, Conservative Party donor, and adviser to Cameron’s policy guru Steve Hilton, to offer a wholly objective and utterly insightful super-plan for economic growth.

    The results, described by some in Whitehall as “flimsy”, have provoked uproar, not least from deputy Prime Minister Nick Clegg and Business Secretary Vince Cable, who are said to have instantly blocked the proposals, calling them a reversion to “Victorian employment practices”. Indeed, opponents to the plan have highlighted that not only is there no reason to believe that abolishing unfair dismissal claims will help the economy, to the contrary, diminishing job security is likely to quash consumer spending.

    Whilst deadlock between the coalition parties means that the plans are unlikely to go ahead, the Beecroft Report has not gone completely unheeded; the “no fault” dismissal proposals for small businesses and “protected conversations” derive from it. Business Secretary Vince Cable, who insists he does not want to spread fear of “the sack”, has endorsed both, despite his vehement opposition to the original report.

    Equally worrying, are arguments that proposals for “protected conversations” open the door to significant potential for abuse. Allowing employers this freedom will, it is suggested, allow them to bypass correct procedures for dismissal, particularly within the two years in which they will now be guarded from unfair dismissal claims. And what if “protected conversations” extend beyond their original remit of capability and misconduct, to issues of discrimination, redundancy or pay? Of course, the majority of responsible employers will not use “protected conversations” to intentionally deny employees their rights, but they provide those who are that way inclined, a convenient opportunity to bully, abuse and manipulate.

    Brendan Barber, General Secretary of the TUC, expressed similar concern when he commented recently, “Reducing protection for people at work will not save or protect a single job.” He added, “It’s not employment law that is holding firms back; it’s the tough economic climate and the problems companies are having getting the banks to lend to them that are to blame.”

    So it seems that whilst there are undoubtedly occasions where excessive regulation and red tape can stifle job creation, this does not appear to be one of them. Granted, Britain’s relatively flexible labour relations have proved advantageous throughout the economic slump – moves to cut back on hours rather than reduce the workforce meant that a 7% drop in national income yielded just a two point fall in the employment rate – but any notion that a regulatory abyss will promote greater growth or stability is belied by a fleeting global analysis.

    America’s unobstructed capitalism, for example, witnessed significantly more job cuts than that of a comparatively more collectivist Germany. There, whose workers are able to make a claim for unfair dismissal after just six months’ employment, are entitled to at least four weeks’ notice in the first two years of employment, compared with just one week in the UK and where a work council must be heard by an employer before a worker can be dismissed.

    Whilst George Osborne has said of our employment laws, “it’s no good comparing ourselves with other European countries”, perhaps he has something to learn from a Germany which, according to the Office of National Statistics, is the second most productive country in the G7, with productivity consistently around 20% higher that that of the UK over the past ten years, and basking in a significant trade surplus in the face of the UK’s trade deficit.

    So whilst Beecroft and his Tory comrades might advocate a system which, by his own admission, means “some people would be dismissed simply because their employers do not like them”, common sense must surely dictate that a work force which is secure, confident and is treated with respect, stands a significantly better chance of inspiring growth than one riddled with vulnerabilities, insecurities and paranoia. To put it in words even a Tory will understand; a frightened horse never wins.
     

     

    ?

    ?


    Housing

    Yesterday, Bristol City Council announced plans to assist first-time buyers through a new scheme, to be operated in conjunction with Lloyds TSB.

    The scheme is designed to tackle the gap between affordable housing and wages, which Bristol is dramatically short of meeting. Currently, the average house price in Bristol is £210,133 while the average earnings are £21,000. Alongside the recent economic crisis that means banks and building societies are loath to loan, especially to younger people, there are few options out there for first-time buyers.

    Bristol City Council has thus agreed to act guarantor for 20% of mortgages up to £142,500, meaning that those looking to get onto the property ladder only need to raise a 5% deposit.

    Of course, it’s good news to see Bristol City Council attempting to tackle the problem head on. Unfortunately, while this may help those looking to buy, what about the affordable housing issues as the other end of the scale?

    The above news comes alongside the fact that today squatters were evicted from the old English school at the bottom of lower Park Row. It may surprise you to know that Bristol has the highest rate of homelessness outside of London. Those living in Clifton will be perhaps more shocked than those in St Pauls or Bedminster, but as a surprisingly small city, the problem is far too big.

    The recent Occupy Bristol movement suffered from the similar problems. Homeless people joined the camp, disregarding any political motivations, because they had fires, shelter, company; all things that are particularly attractive when one is alone on the streets in the middle of winter.

    While I am delighted that Bristol City Council recognises the housing problems currently facing Bristolians, I think a little more attention should be given to those trying to get into a house at all, not moving up a ladder. Just because the problem is more endemic does not mean it should be ignored.