Logo

Archive for March, 2014

Care Home Death Prosecution

Care home death: £170,000 fines and costs

Health and Safety Executive v Four Seasons Health Care (England) Ltd (2014) Preston Crown Court, March 13, 2014

Four Seasons Health Care (England) Ltd has been fined after a care home resident choked to death.

Significant points of the case

  • In December 2010 Rita Smith, aged 75, a resident of Euxton Park Care Home, who suffered from dementia and motor neurone disease, was given a cone of fish and chips during a film and supper evening. She choked to death.
  • The home was aware that the deceased had difficulty swallowing, needed pureed food on a teaspoon and supervision by a carer while eating.
  • Neither of the staff who organised the evening had been made aware that the deceased could not eat solid foods.
  • A specialist assessment carried out at the local hospital had recommended that the deceased should be supervised at meals and prompted to slow down and swallow twice during each mouthful. This assessment was supplied to the care home but not communicated to staff.
  • A care plan and risk assessment had not been completed for the deceased. This would have identified the need for a care worker to feed her pureed food.

The company was fined £125,000 plus £45,000 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

 


Employment Law Reforms

On 6th April 2014, a number of key employment law reforms will come into force. The majority of these changes will flow from the implementation of the Enterprise and Regulatory Reform Act 2013, with additional provisions in the Children and Families Bill.

The key changes are:

  • Mandatory pre-claim ACAS conciliation for all claims
  • The repeal of the statutory discrimination questionnaire procedure
  • Potential financial penalties for employers who lose at Employment Tribunal. The financial penalty will be half the amount of the total award made by the Employment Tribunal, with a minimum of £100 and a maximum of £5,000.
  • right to request flexible working extended to all employees with 26 weeks’ qualifying service
  • rates of statutory maternity pay, statutory paternity pay and statutory adoption pay are due to increase
  • rates of Statutory Sick Pay (SSP) are also due to increase
  • The Government is also due to abolish the SSP record-keeping obligations and introduce more flexible record-keeping procedures to allow employers to keep records in a way which best suits their organisation.

 

These changes signal further intent to bring Employment Tribunals in line with the civil proceedings, which we all know means greater time, expense and stress at pursuing claims.


Bath Asbestos Health And Safety Prosecution

Asbestos exposure: £5000 fine

Health and Safety Executive v Geoff Thomas and Son Ltd (2014) Bath magistrates’ court, March 19

Geoff Thomas and Son Ltd, a building contracting firm, has been fined after two ofits employees were exposed to asbestos dust.

Significant points of the case

  • The company was contracted by Curo Places Ltd to replace a basement ceiling in a house in Bath.
  • Two employees used hand tools and pulled down the ceiling, which was made of asbestos board, by hand.
  • The company had not checked for the presence of asbestos. When it was discovered that asbestos was present, the employees were sent off to do other jobs without decontaminating their tools or their clothes.
  • The company had failed to make any assessment for the presence of asbestos before work was started. When the presence of asbestos was identified, the company failed to prevent its spread.
  • The company was not licensed to deal with asbestos and it failed to notify the HSE in advance of the work.

The company was fined £5000 plus costs of £637 under regulations 5 and 16 of the Control of Asbestos Regulations 2012, for failing to assess the presence of asbestos and failing to prevent the spread of asbestos.

A spokesperson for the HSE commented after the case that the long-term effects of exposure to asbestos materials was the single greatest cause of work-related deaths in the UK and the exposure of the two workers to this dangerous substance had been entirely preventable.      


Health And Safety In Morocco

I am currently working in Morocco. As a health and safety lawyer, I observe practices which shock me and which would rarely arise in the UK.

Morocco is a developing country with aspirations to join the European Union. If it were to join, it would be subject to EU health and safety regulations, which would mean massive societal changes.

One example of widespread disregard of basic health and safety principles is the almost total absence of segregation of vehicles and pedestrians. Road traffic is disorganised and undisciplined. This is not picturesque or charming. It is not patronising to point out that Moroccan statistics for road traffic-related deaths and injuries are truly shocking. Seat belts are rarely worn and the vast numbers of motorcyclists do not use helmets.

There are many construction sites around, for example, Marrakech. Even a perfunctory observation of these sites is shocking for a health and safety lawyer. The most basic and rudimentary safety measures are ignored.

The climate is superb, the people are charming, the scenery is dramatic. But human safety does not appear to have a high priority.


Zero-hours Contracts Rise, Despite Economy Boost

The latest figures released by the Office of National Statistics show a worrying increase in the use of zero-hours contracts. 582, 935 workers have been required to sign the contracts, a figure which is over double the estimate of 250,000 provided by the Government last year.

These contracts were initially designed as a way to provide flexibility to both employers and employees. With no obligation for the employer to provide work, and the employee only agreeing to remain on call and receive remuneration for hours worked, zero-hour contracts can be useful for those seeking occasional additional earnings. However, considering the prevalence of their use now it is clear that such contracts are being abused, a point recognised by Vince Cable, Business Secretary.

By providing little or no job security, those workers who work entirely under zero-hours contracts are victims of an imbalance of power weighing heavily in the employers’ favour. This issue becomes a little sourer when further figures reveal that the job market and economy has grown in 2014.  Hopefully, market confidence will transcend into workers’, and employees will no longer accept the terms which employers have dictated since the beginning of the downturn.


Specimen Opening Statement For An Unrepresented Client

Specimen opening statement for an unrepresented client

  • Ask the court or tribunal for permission to make a brief opening statement.
  • Explain one’s own position so far as any or all of the following apply: limited financial means, no legal training or background, inability to obtain representation because of lack of money. Employment, medical and family status. Legal aid not available. No legal expenses insurance. Not a member of a trade union. Unable to obtain conditional fee. Have approached local Law Centre and charitable bodies for example the Bar Pro Bono Unit, without success.
  • Draw the attention of the court or tribunal to the overriding objective of the Civil Procedure Rules. The overriding objective of the Rules is to enable the court to deal with cases justly. This includes ensuring that the parties are on an equal footing.
  • Submit that the parties are not on an equal footing because the defendant has legal representation which he can afford, whereas claimant does not.
  • Draw the attention of court or tribunal to Article 6 of the European Convention on Human Rights: in summary, everyone is entitled to a fair trial. Submit that there is a danger of this principle being breached where one party can afford representation and the other side cannot.
  • Draw the attention of the court or tribunal to the decision of the European Court of Human Rights in the case of Airey v Ireland (1979) 2 E.H.R.R. 305, where that court ruled that there had been violations of Article 6 because Mrs Airey did not enjoy an effective right of access to the Ireland High Court to seek a decree of judicial separation. Legal aid was not available for the purpose of seeking judicial separation and Mrs Airey had insufficient means to pay the cost of proceedings herself. The court made the following points:

The European Convention on Human Rights was intended to guarantee not theoretical or illusory but practical and effective rights. Having regard to the complexity of the procedure and points of law involved, to the evidential questions arising and to the emotional involvement entailed by marital disputes, the possibility open to Mrs Airey of conducting her case herself did not provide her with an effective right of access.

The fact that the alleged right of access stemmed solely from Mrs Airey’s personal circumstances was not decisive. Hindrance in fact could constitute a violation of the Convention just like a legal impediment and certain Convention obligations, such as that to secure an effective right of access to the courts, could on occasion necessitate positive State action.

It was most improbable that a person in Mrs Airey’s position could effectively present his or her own case.

  • Draw the attention of court or tribunal to the decision of the European Court of Human Rights in the case of Steel and Morris v United Kingdom (2005) The Times, February 16, where that court ruled that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms.
  • Point out to the court or tribunal the decision in Bertuzzi v France (2003)In June 1995 B obtained full legal aid to start proceedings against a lawyer. The lawyers assigned to the case applied to withdraw because they had personal links with the defendant. Later in 1995 B asked the president of the legal aid office and the president of the bar council to assign another lawyer. B received no reply until March 1997 when he was told that the grant of legal aid had lapsed.

The European Court of Human Rights ruled that there had been a breach of Article 6 of the European Convention on Human Rights – B had not had effective access to a court. The court made the following points:

The relevant authorities should have arranged for a replacement who would provide B with proper assistance.

Permitting B to represent himself in proceedings against a legal practitioner did not afford him access to a court under conditions which would secure him the effective enjoyment of equality of arms which was inherent in the concept of a fair trial.

The Convention is intended to guarantee not rights which are theoretical or illusory but which are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial.

  • State that one appreciates that the court or tribunal may regard this submission as not relevant to current proceedings: advise the court or tribunal that the issues raised in the submission may also be raised in future appeal proceedings and/or in an application to the European Court of Human Rights.

 

 


Age Discrimination: Post-Termination Victimisation

Post-termination victimisation

Case          Rowstock Ltd v Jessemy [2014] EWCA Civ 185

Facts                      J was employed as a car body repairer. He was dismissed shortly before his 66th birthday. He was told that the company did not employ manual workers over the age of 65 for health and safety and quality reasons. The employer did not follow the statutory retirement procedure. The employer gave J a poor reference.

J complained of age discrimination and victimisation. The tribunal ruled that because of section 108(7) of the Equality Act 2010, post-employment victimisation is not unlawful. It found that there had been unlawful age discrimination.

Remedies

Financial loss: Actual loss: £11, 347. Future loss: 6 months: £5,244. 10% uplift

Injury to feelings: £3000: lower Vento band: act of omission rather than commission.

On appeal to the EAT by J, the appeal was dismissed. The Equality Act does not allow a claim for victimisation which arises from acts committed after the employment has ended.

J appealed further to the Court of Appeal.

Decision    1. The appeal was allowed.

2. The apparent failure of the statute to proscribe post-termination victimisation was a drafting error.

3. Given the existence of an EU obligation to proscribe post-termination victimisation, the question was whether it was possible to imply words into the Equality Act 2010 which achieved that result. It plainly was.

4. The case would be remitted to the ET for assessment of compensation.

 


Individual And Collective Human Rights

Individual and collective human rights

For an ex-miner in Blaenau Gwent, suffering from a terminal lung disease, who develops a raging toothache, and cannot afford dentistry, it is of great solace to know that a Queen’s Counsel in chambers in Lincoln’s Inn has worked night and day to ensure that he has freedom of religion.

When my own father was dying, and no ambulance could be found to take him from hospital to a hospice, so that I had to pay a private ambulance to travel fifty miles, it was most reassuring for me to know that it was unlawful for me to be discriminated against on the grounds of my ethnic origins and that this right would be protected by a coterie of London QCs.

 

The rights protected by the Act of 1998 are generally recognised as civil and political rights, largely aimed at the protection of individuals. Social and economic rights are not covered. There is, for example, no right to work and no right to healthy and safe working conditions.

 

While the current trend towards the protection of human rights in relation to, for example, freedom of speech and the right to a fair trial, is without doubt desirable, progressive and moving towards human emancipation and social justice, these are essentially individual civil and political rights. They do not address social and economic issues. It is, for example, of little comfort to those living in the most deprived circumstances that liberal lawyers from London are willing to earn huge sums to protect their right to freedom of religion.

The human rights industry in England is rarely criticised from the left. It is normally selected for abuse by populist politicians and journalists. But this does not mean that it is beyond criticism. It should be realised that there is a substantial body of academic opinion, particularly in developing countries, which is highly critical of the Western emphasis on individual civil and political rights.

This has been described as the little magic territory of human rights which is just civil and political. It has also been pointed out that before people get to political rights they want to know what to do about Aids and what to do about food and water.

In 1986 Tony Gifford made the following points:

  • The most profound injustices in our society stem from political and economic, rather than legal causes.
  • Legal rights can do little to enrich the lives of those who have no jobs.
  • If no money is spent on building new homes, then the theoretical rights of  homeless people and slum dwellers are not of great value.
  • If the opportunity for a good education and good health is a perquisite for the wealthy, then the idea of equality before the law becomes a fraud.

Lord Bingham has pointed out that there is no universal consensus as to fundamental rights and freedoms. In some developing countries, a higher premium is put on economic growth than on the protection of human rights.

 


Employment Tribunal Fees:The Effects

It has been reported that the number of disputes which reached employment tribunal stage fell by 79 per cent between October and December 2013. This relates to the introduction of fees for employment tribunal claims. The GMB’s legal officer is reported to have commented that the figures confirmed the union’s fears that the government’s introduction of fees had a devastating impact on access to justice for working people.

From the practitioner’s point of view, the introduction of fees means that any claim which could fall within the jurisdiction of the county court should be considered as appropriate for a county court claim. For example, claims for unlawful deduction of wages may be pursued as simple debt claims, and complaints of breach of contract may be suitable for the county court. The advantages of county court claims are twofold: they are much cheaper and the tight three-month time limit for employment tribunal claims does not apply.


Disproportionate Sanctions For BME Solicitors But SRA “Not Institutionally Racist”

In an independent report published today (13th March 2014) by Professor Gus Johns, BME (Black and Minority Ethnic) solicitors were found to:

  • be more likely than their white colleagues to be investigated by the Solicitors’ Regulation Authority (“SRA”)
  • comprise a higher proportion of those against whom disciplinary action is taken
  • receive harsher sentences when convicted

The report went on to suggest that BME solicitors in the City firms did not face the same issues as those in the inner-city high streets. This was due to the lack of financial resources and their lesser ability to manage risk.

In order to counter the difficulties, the report calls for a “more nuanced approach” such as supervision and engagement with smaller firms and sole practitioners to identify potential early warning signals of inter-race issues.

It is, however, concerning that legal professionals who are employed to apply the law can, as a collective, be found to act racially disproportionately at all. There is, perhaps, a worrying similarity between Professor John’s report and the MacPherson report which examined the potential institutional racism of the police force following the murder, and subsequent investigation, of Stephen Lawrence. These parallels must not be ignored by the profession.