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Archive for July, 2012

Poverty and the Denial of Justice

Examples of poor clients who have been denied justice

Redundancy

Practice as an employment lawyer currently involves an increasing number of redundancy cases. Typical matters involve workers who have been made redundant, or threatened with redundancy. They have families to support and mortgages to pay. They have no wish to spend their limited savings on lawyers’ fees. The law relating to redundancy is complex, and it is very difficult for redundant workers to be able to pay to discover the extent of their rights or the possibility of enforcing those rights.

Redundancy

Practice as an employment lawyer currently involves an increasing number of redundancy cases. Typical matters involve workers who have been made redundant, or threatened with redundancy. They have families to support and mortgages to pay. They have no wish to spend their limited savings on lawyers’ fees. The law relating to redundancy is complex, and it is very difficult for redundant workers to be able to pay to discover the extent of their rights or the possibility of enforcing those rights.

Homelessness

Money is the key factor leading to the repossession of homes and the eviction of families. The non-payment of rent or mortgage instalments, purely a financial issue, is the basis for legally-enforced homelessness, for putting families in the street.

Personal injury

  • A litigant in person, seriously injured in a workplace accident, not a member of a trade union, living on borrowed money, was told by a judge that he had plunged alone into the icy waters of the English civil procedure system and that he was unlikely to float. He persevered, with some “pro bono” help, and struggled through the preliminary stages of his claim. A week before the trial, having coped with the bullying tactics of his opponents’ solicitor and barrister, he was told that the trial could not go ahead because no judges were available. He had organised all his documentation. His witnesses included a consultant surgeon whose fee was £1000 to give evidence. This fee was payable whether or not the trial went ahead. The claimant collapsed with anxiety and depression and was declared bankrupt. The case died.
  • A seriously disabled young man who was badly injured when a shop display fell on him. He had very little money and tried unsuccessfully to find solicitors who would take his case on a no-win no-fee basis. The local Law Centre was too busy to look at the case. He was forced to rely on a charitable lawyer who helped him through the preliminary stages. The owner of the shop admitted liability. Shortly before the case was due to be settled, the shop owner went out of business. He was not insured. The young man developed serious psychological problems.
  • A young man, disabled from birth with talipes (club feet), slipped on a patch of ice outside a shop. The ice was caused by water dripping from plants outside the shop onto the pavement. The young man suffered a leg fracture with complications because of his disability. He was unemployed and had no savings. He had no legal expenses insurance. He was not a member of a trade union. Legal aid was not available for a personal injury claim. After spending several weeks in hospital he was advised that he might never fully recover and might never be fit for work. He approached a firm of solicitors which refused to take his case on a no-win no-fee basis because the chances of success were too low. Two other firms refused to take the case. They asked for £1000 on account to look at the documentation. The local Law Centre could not take the case because it did not have the resources. Self-representation was impossible because of the nature of his disability and his injuries. All the textbook information on the common law of negligence, and procedure in personal injury cases, was simply of no relevance whatsoever.

Employment disputes

  • A waitress, a Russian woman living in London, who endured years of bullying in the restaurant where she worked, hoping to reach the age of 60 when she could retire with a pension. A year before her retirement age, she was sacked for being rude to a customer. Her local Law Centre would only act on a limited basis and would provide advice but not representation. She represented herself in an employment tribunal claim for unfair dismissal. Her claim failed. She had good grounds for an appeal to the Employment Appeal Tribunal but no money for lawyers. The appeal never went ahead.
  • A woman involved in an employment dispute who was told, on approaching a firm of solicitors, that she would have to pay £500 in advance for two hours’ work looking at the documentation in her case before the firm would decide whether or not to take on the case. For her, the figure of £500 might just as well have been £5 million.
  • A client who was dismissed from his job as a skilled worker, whose union refused to back him and who spent most of his money on an unsuccessful employment tribunal claim. His appeal to the Employment Appeal Tribunal resulted in lawyers taking his pension fund to pay their fees in a hopeless case. He lost his job, his claim and all his money. He now works as a shelf stacker in a supermarket.

Unpaid wages

  • Many contacts through the former free employment advice website related to unpaid wages. Typically, the enquirers were single mothers with unskilled or semi-skilled jobs who had been underpaid, or not paid at all, for weeks or months. They were in desperate financial circumstances. They had complained formally to their employers, without success. They were not members of trade unions. They had only a vague idea of their legal rights. Some might have contacted the Citizens’ Advice Bureau or other advice agencies.
  • The legal position – that there is a right to complain to an employment tribunal for unlawful deduction from wages – or a claim though the county court – has very little practical relevance for these workers. Consulting a solicitor is out of the question because of cost. Often, a formal letter from a lawyer on headed paper will result in payment. But the cost of such letters through the mainstream profession means that this remedy is largely illusory.
  • To some extent, the English legal profession can be seen as colluding with what can be described as a form of modern-day slavery in its failure to provide such workers with the means of redress. In recessionary times, these problems can only get worse, and lawyers will not help unless they are paid sums which are so far removed from unpaid workers’ resources that the remedy does not, in reality, exist.
  • The solution is a national network of community Law Centres, properly funded and staffed, offering free advice on an open-door basis. The cost of such a network is minimal compared with, for example, the amount of tax avoided by large corporations and the financing of illegal and/or unwinnable wars.

Personal injury

  • A litigant in person, seriously injured in a workplace accident, not a member of a trade union, living on borrowed money, was told by a judge that he had plunged alone into the icy waters of the English civil procedure system and that he was unlikely to float. He persevered, with some “pro bono” help, and struggled through the preliminary stages of his claim. A week before the trial, having coped with the bullying tactics of his opponents’ solicitor and barrister, he was told that the trial could not go ahead because no judges were available. He had organised all his documentation. His witnesses included a consultant surgeon whose fee was £1000 to give evidence. This fee was payable whether or not the trial went ahead. The claimant collapsed with anxiety and depression and was declared bankrupt. The case died.
  • A seriously disabled young man who was badly injured when a shop display fell on him. He had very little money and tried unsuccessfully to find solicitors who would take his case on a no-win no-fee basis. The local Law Centre was too busy to look at the case. He was forced to rely on a charitable lawyer who helped him through the preliminary stages. The owner of the shop admitted liability. Shortly before the case was due to be settled, the shop owner went out of business. He was not insured. The young man developed serious psychological problems.
  • A young man, disabled from birth with talipes (club feet), slipped on a patch of ice outside a shop. The ice was caused by water dripping from plants outside the shop onto the pavement. The young man suffered a leg fracture with complications because of his disability. He was unemployed and had no savings. He had no legal expenses insurance. He was not a member of a trade union. Legal aid was not available for a personal injury claim. After spending several weeks in hospital he was advised that he might never fully recover and might never be fit for work. He approached a firm of solicitors which refused to take his case on a no-win no-fee basis because the chances of success were too low. Two other firms refused to take the case. They asked for £1000 on account to look at the documentation. The local Law Centre could not take the case because it did not have the resources. Self-representation was impossible because of the nature of his disability and his injuries. All the textbook information on the common law of negligence, and procedure in personal injury cases, was simply of no relevance whatsoever.

Employment disputes

  • A waitress, a Russian woman living in London, who endured years of bullying in the restaurant where she worked, hoping to reach the age of 60 when she could retire with a pension. A year before her retirement age, she was sacked for being rude to a customer. Her local Law Centre would only act on a limited basis and would provide advice but not representation. She represented herself in an employment tribunal claim for unfair dismissal. Her claim failed. She had good grounds for an appeal to the Employment Appeal Tribunal but no money for lawyers. The appeal never went ahead.
  • A woman involved in an employment dispute who was told, on approaching a firm of solicitors, that she would have to pay £500 in advance for two hours’ work looking at the documentation in her case before the firm would decide whether or not to take on the case. For her, the figure of £500 might just as well have been £5 million.
  • A client who was dismissed from his job as a skilled worker, whose union refused to back him and who spent most of his money on an unsuccessful employment tribunal claim. His appeal to the Employment Appeal Tribunal resulted in lawyers taking his pension fund to pay their fees in a hopeless case. He lost his job, his claim and all his money. He now works as a shelf stacker in a supermarket.

Unpaid wages

  • Many contacts through the former free employment advice website related to unpaid wages. Typically, the enquirers were single mothers with unskilled or semi-skilled jobs who had been underpaid, or not paid at all, for weeks or months. They were in desperate financial circumstances. They had complained formally to their employers, without success. They were not members of trade unions. They had only a vague idea of their legal rights. Some might have contacted the Citizens’ Advice Bureau or other advice agencies.
  • The legal position – that there is a right to complain to an employment tribunal for unlawful deduction from wages – or a claim though the county court – has very little practical relevance for these workers. Consulting a solicitor is out of the question because of cost. Often, a formal letter from a lawyer on headed paper will result in payment. But the cost of such letters through the mainstream profession means that this remedy is largely illusory.
  • To some extent, the English legal profession can be seen as colluding with what can be described as a form of modern-day slavery in its failure to provide such workers with the means of redress. In recessionary times, these problems can only get worse, and lawyers will not help unless they are paid sums which are so far removed from unpaid workers’ resources that the remedy does not, in reality, exist.
  • The solution is a national network of community Law Centres, properly funded and staffed, offering free advice on an open-door basis. The cost of such a network is minimal compared with, for example, the amount of tax avoided by large corporations and the financing of illegal and/or unwinnable wars.

Class Justice: Part Two

Class justice means, essentially, that the principles of justice operate inequitably in favour of one class of people in relation to other classes. A basic definition of “class” is a division of society according to status, or a number of individuals possessing common attributes and grouped together under a general or class name.
Class justice functions when justice is done in favour of one class against another. In England in the early twentieth century, this means that justice can often be seen to operate in favour of the rich and powerful against the poor and the weak.

Class justice is exemplified by the prosecution of petty offenders against property while major criminals can appear to be immune.
This is not purely a theoretical concept. It has serious implications for people in their everyday lives.

Crown Immunity-The case of John Wynne and the Royal Mint

The case of John Wynne, employed by the Royal Mint at Llantrisant, South Wales, has highlighted the legal rules and procedures surrounding Crown immunity as a clear example of class justice. The facts, so far as reported in the national press, were that in 2001 Mr Wynne (W), suffered fatal crushing injuries when a six-tonne furnace fell from a crane. W, aged 50, had worked in the metal rolling department of the Mint for 21 years.
The Health and Safety Executive (HSE) found itself unable to prosecute the Mint for breaches of health and safety legislation. Instead, it brought Crown Censure proceedings. At the hearing of these proceedings it was stated that the Mint had failed to follow safety procedures. The hearing was not open to the public. A report of the hearing was sent to the government, the Royal Mint and the HSE. W’s widow was not entitled to a copy of the report.
W’s widow is reported to have commented that she was shown pictures at the hearing which showed the furnace hanging from a crane, but not sitting on the hook properly. The furnace was balancing on the top and it fell. It had fallen once before, and no-one was hurt. The Mint’s management had not carried out safety checks. If they had done so, they would have realised that it was faulty and the accident could never have happened.
An HSE inspector is reported to have made the following points to the hearing:
W’s death was an accident waiting to happen.
There was sufficient evidence to bring a criminal prosecution against the Mint.
Although Crown property, including the Mint, has to comply with health and safety regulations, it cannot be prosecuted because the Crown cannot prosecute itself.

The shadowy issue of Crown immunity arises in the context of both criminal and civil proceedings. Crown immunity is an ancient, obscure and complex area of law with significant practical implications. The concept is inextricably bound up with the development of the unwritten British Constitution and the relationship between the monarch, central government, legislation and the enforcement of criminal law.

Criminal proceedings

The following points may help with an understanding of Crown immunity:
The literal meaning of “Crown” is “an ornamental badge of regal power worn on the head of sovereign princes”. In general terms, it means the monarch. This involves a consideration of the constitutional position of the monarchy as the head of state.
In strict legal and constitutional theory, legislation cannot come into force until it has received the Royal Assent, that is, consent by the monarch.
The “Crown” now applies to the collective structure of central government in the United Kingdom.
The monarch is personally immune from prosecution or criminal proceedings. This is one reason why the execution of Charles I was deemed to be illegal after the restoration of the monarchy.
In constitutional law, the King (or Queen) can do no wrong. He/she is never a minor and never dies.
Crown immunity also applies, by implication, to the ruling sovereigns of other states. This does not extend to deposed or exiled sovereigns who happen to be within the jurisdiction. The authority for this is cited by Archbold (the barristers’ bible) as R v Mary, Queen of Scots (1586).
Criminal prosecutions are conducted on behalf of the Crown and generally brought in the name of the Queen. Criminal cases are cited as “R v …” which is an abbreviation of “Regina v…”.
The general principle is that the Crown is not bound by any statute. This principle may be displaced where there is an intention stated in the statute that the Crown should be bound.
The principle extends to Crown servants acting in the course of their official duties, Crown property and property occupied by the Crown for public purposes. It covers, for example, the Ministry of Defence, the Prison Service and the Royal Mint.
Section 48 of the Health and Safety at Work, etc., Act 1974 states, in summary, that sections 1 to 54 of the Act, except for sections 21 to 25 and 33 to 42, shall bind the Crown. But this does not mean that criminal proceedings may be brought against the Crown. It should also be noted that liability under the 1974 Act cannot, in itself, give rise to civil liability.
It is also significant that the Working Time Regulations 1998, regulation 37, states in summary that the regulations have effect in relation to Crown employment. No act or omission by the Crown shall make the Crown criminally liable, but the High Court or the Court of Session in Scotland may make a declaration that such act or omission is unlawful. There appear to be no reported examples of such declarations.
Crown Censure proceedings are brought by the Health and Safety Executive as an alternative to criminal prosecutions. These proceedings have no formal legal basis and it is difficult to find information about them through standard sources. It is thought that the HSE has reached agreement with the government that the proceedings will be used in appropriate circumstances. The proceedings have been used in a number of reported cases, mostly involving the prison service and the Ministry of Defence.

The proceedings are not open to the public. Trade union representatives may be invited to attend. The procedure is not a trial and it is chaired by a senior HSE inspector. The procedure has no statutory basis but is set out in a Cabinet Office Personnel Information Note. The aim of a Crown Censure hearing is to seek acknowledgment of the problem and to improve standards of health and safety. The absence of an agreed and documented procedure led to “some difficulties”. This resulted to the issue of the Cabinet Office note.


Class Justice

Crimewatch:an exemplar of the spectacle of class justice

The crimes presented in the Crimewatch television programme by glamorous personalities placed in lavish sets are portrayed, essentially, as entertainment. The programme is reported to have viewing figures of around 6 million.

“Crime”, in the context of the Crimewatch spectacle of dramatic reconstructions, is almost always presented as being committed by individuals or small groups of individuals against other individuals or groups.

The most serious crimes against humanity, in terms of numbers of people affected or numbers of deaths or serious injuries, are never put across as part of the Crimewatch spectacle. For example, although we are shown details of a particularly vicious rape of a UK citizen, and treated to theatrical self-congratulation by celebrities and the police when an arrest is made, we must wait in vain for the following:

  • Pictures of dead and horrifically injured children in wars involving the UK military, with requests for information about the immediate perpetrators and their superiors. There is no hotline number to call with information about war criminals.
  • Dramatic reconstructions of incidents on construction sites and in factories which have resulted in multiple injuries and deaths, with pictures of the employers allegedly responsible for such crimes.
  • Information about the activities of arms manufacturers, the construction of weapons of war and the consequences of their use.
  • Requests for the identification and tracing of those responsible for research, development and production of instruments of torture.

Who are the real criminals? Individuals whose background and upbringing has resulted in actions labelled as crimes by the state? Or those in power whose cynical manipulations and amoral choices have caused mass murder? Or both? The Crimewatch spectacle never addresses and least of all attempts to answer these questions.

The following possibility should be considered: Crimewatch publishes photographs of war criminals, arms manufacturers, tax avoiders, landlords and employers whose crimes may make those actually featured on Crimewatch sink into insignificance.


Recent Health and Safety Prosecutions July 2012

Fatal head injuries: £200,000 fine

Health and Safety Executive v SITA UK Ltd (2012) Wolverhampton Crown Court, June

SITA UK Ltd, a recycling company, has been fined following the death of an employee.

Significant points of the case

  • In June 2008 Mark Bate was driving a JCB skid steer loader at the company’s premises in Tipton. He had not been properly trained.
  • He was working on his own to load scrap paper onto a conveyor. He stopped the machine and raised the safety bat from his lap to isolate it. The machine failed to isolate. The arm of the loader dropped and crushed his head, killing him instantly.
  • Bate had not been formally trained, assessed or supervised in the use of the machine. A self-employed maintenance engineer has also used it for several months with no training.
  • The machine had not been maintained in the eight months preceding the incident. It should have been service at least twice during this time.

SITA UK Ltd was fined £200,000 plus £77,000 costs under sections 2 and 3, HSW Act, for failing to ensure the health and safety of employees and non-employees. It was also ordered to pay £4450 to the deceased’s mother for funeral expenses.

Lorry fall: serious injuries: £6000 fine

Health and Safety Executive v Mole Valley Feed Solutions (2012) Chippenham magistrates’ court, May 29

Mole Valley Feed Solutions has been fined after a driver suffered serious injuires when he fell from the top of a lorry.

Significant points of the case

Lee Waters was a lorry driver who delivered grain to customers. He was removing the cover from his vehicle’s load at the company’s feed mill in Calne, Wiltshire, when he fell from the steps of the vehicle onto a concrete floor. He suffered a fractured pelvis and wrist.

Simple measures could have been taken such as the provision of a long-handled crank handle to operate the cover from the grouund.

Mole Valley Feed Solutions was fined £6000 plus £4000 costs for a breach of regulation 6 of the Work at Height Regulations 2005 (WAHR). This states, in summary, that every employer shall ensure that work is not carried out at height where it is reasonably practicable to carry out the work safely otherwise than ta height.

Unsafe roofing work: £2000 fine

Health and Safety Executive v Daniel Loftus (2012) Wirral magistrates’ court, June.

David Loftus, a roofer, has been fined for unsafe work practices.

Significant points of the case

  • In November 2011 a pasing HSE inspector observed Loftus and another worker on the roof of a house in Wallasey.
  • They were five metres above the ground. Loftus allowed the other worker to use a lit gas burner on the roof without any measures in place to prevent him being injured in a fall.
  • There was no scaffolding or guarding around the edge of the roof to prevent either worker being injured in a fall. The workers had used a ladder which rested against guttering, to access the roof. They had then walked along it.
  • Loftus had also failed to cordon off the footpath immediately below the roof. This out members of the public at risk of being injured by faling debris or tools.
  • Roof care Ltd, Loftus’ employer, had provided him with a worksheet which stated that scaffolding had to be used for the work. He had ignored this. The scaffolding was in his van, but he had not unloaded or erected it.

Loftus was fined £2000 plus £600 costs for a breach of section 7 (a) HSW Act, for failing to take reasonable care of the health and safety of other people while at work.

Vehicle death: £80,000 fine

Health and Safety Executive v JH Hallam (Contracts) Ltd and J&H Construction Ltd (2012) Leicester Crown Court, May

JH Hallam (Contracts) Ltd and J&H Construction Ltd have been fined following an incident in which a worker was killed in a vehicle incident.

Significant points of the case

  • In October 2006 Richard Kenny, an employee of J&H Construction, was driving a mini digger on a construction site in Melton Mowbray. The digger was crushed when a tipper lorry, carrying 20 tonnes of aggregate, overturned on uneven ground. Kenny suffered fatal injuries.
  • The workplace transport risk assessment failed to properly consider tipping operations and, specifically, the risks of vehicles overturning. The tipping area had not been adequately assessed as being safe for tipping operations. It was not sufficiently level and had been poorly prepared.
  • Deliveries of bulk materials were made without adequate supervision, a banksman or an exclusion zone around the vehicle during tipping. Pedestrians were not kept away from vehicles, particularly during tipping.

JH Hallam, the principal contractor for the construction project, was fined £80,000 plus £20,000 costs under section 3, HSW Act, for failing to ensure the health and safety of non-employees. J&H Construction was fined £50,000 plus £20,000 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.

Burn injuries: £5000 fine

Health and Safety Executive v Marling Leek Ltd (2012) Stafford magistrates’ court, July

Marling Leek Ltd, a compnay which manufactures webbing for seatbelts and harnesses, has been fined following an incident in which a worker suffered severe burns when his arms were trapped in a machine.

Significant points of the case

  • Stewart Wood was a dye machine operative employed by Marling. In August 2011 he was working at the company’s site in Leek, Staffordshire. Webbing became trapped in the machine. He climbed onto the machine without isolating it to try to unravel the webbing. His left arm was drawn in between the unguarded rollers of the machine. His right arm was also drawn in. He suffered severe burns and skin damage.
  • Marling Leek had failed to implement a safe system of work for the job which Wood was doing. The company had exposed employees to risks for a number of years.
  • Wood had been employed by Marling for 12 years. He had never received adequate information, training or written instructions on how to carry out the common task of removing wrap-arounds safely.
  • The HSE served two improvement notices after the incident. The first required the company to carry out a thorough risk assessment to include dealing with wrap-arounds and working at height.
  • The second notice concerned the electrcis in the site’s powder dye room, which were found not to be waterproof despite being in a wet environment.

Marling Leek Ltd was fined £5000 plus £5800 costs under section 2, HSW Act, for failing to ensure the health and safety of employees.

Amputated finger: £7000 fine

Health and Safety Executive v Phoenix Brands Ltd (2012) Wolverhampton magistrates’ court, June 29

Phoenix Brands Ltd, a food production company, has been fined after a young worker suffered an amputated finger.

Significant points of the case

  • In November 2011 a sixteen-year old, employed part-time by Phoenix, was clearing a blockage on a biscuit crumbing machine at the compnay’s site in Bilston.
  • He reached into the machine’s hopper. His right hand was pulled into a screw conveyor, a machine which uses a rotating screw blade to break biscuits.
  • The worker injured his fingers. The middle finger had to be amputated.
  • Both the hopper and the screw conveyor were unguarded, and had been since the machine was installed.
  • The risks of clearing blockages had not been properly identified.

Phoenix Brands Ltd was fined £7000 plus £4000 costs for a breach of Regulation 11 of the Provision and Use of Work Equipment Regulations 1998 (PUWER).

Poorly guarded machinery: £10,000 fine

Health and Safety Executive v Frame Trade UK Ltd (2012) Southern Derbyshire magistrates’ court, June 28

Frame Trade UK Ltd, a window manufacturing company, has been fined following and incident in which a worker’s arm was dragged into a poorly guarded machine.

Significant points of the case

  • In May 2010 Wayne Marshall, an employee of Frame Trade, was working at the company’s premises in Langley Mill, Derbyshire. He was using a corner cleaning machine.
  • Plastic debris had accumulated in the machine and covered a sensor, preventing it from working properly. Marshall entered the machine to clear the debris. His sleeve was caught on a high speed cutter used to remove surplus plastic. He suffered a lacerated arm and damaged tendons.
  • The machine was not properly guarded. Marshall had not been instructed in how to correctly isolate power to the machine. The machine had side panels but these were not fixed in place. Employees were easily able to remove them.

Fair Trade UK Ltd was fined £10,000 plus £6500 costs under Regulation 11 of the Provision and use of Work Equipment Regulations 1998 (PUWER).