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Archive for July, 2014

Jessica Mitford On Law

Jessica Mitford (1917-1996) was an English author, journalist and political campaigner who became an American citizen. She identified, in the American context,

… manufacturers of unsafe cars which in the next year will have caused thousands to perish in flaming highway wrecks, absentee landlords who charge extortionate rents for rat-infested slum apartments, Madison Avenue copywriters whose job it is to manipulate the gullible into buying shoddy merchandise, manufacturers of napalm and other genocidal weapons – all operating on the safe side of the law, since none of these activities is a violation of any criminal statute. Criminal law is essentially a reflection of the values, and a codification of the self-interest, and a method of control, of the dominant class in any given society.

 

Mitford took her argument further by asking her readers to imagine a prison system populated primarily by well-to-do people, convicted of offences like price-fixing, political corruption, industrial pollution, criminal neglect of safety standards at work, fraudulent share dealing and the manufacture of arms. Her conclusion was:

…that this notion seems like the wildest flight of fancy is already a commentary on the class character of the prison system. After all, no one would expect that those who command political power and control the criminal justice system would use these in such a manner as to make themselves the likeliest candidates for imprisonment.

 


Hand Arm Vibration Syndrome

Hand Arm Vibration Syndrome (HAVS): £20,000 fine

Health and Safety Executive v Cummins Power Generation Ltd (2014) Canterbury magistrates’ court, July 22.

Cummins Power Generation Ltd has been fined after five workers were diagnosed with HAVS.

Significant points of the case

  • The company had failed to manage the exposure of employees to serious risks from working with a range of vibrating machine tools for more than ten years at its sites in Ramsgate and Margate.
  • One employee was diagnosed with advanced HAVS in both hands. Another four workers were diagnosed with early stage HAVS. This condition cannot be reversed.
  • The company had failed to assess employees’ level of exposure to vibration until the HSE started its investigation. The employees were either at or beyond the trigger levels for developing symptoms.
  • The company had failed to put preventative measures in place until the HSE served an improvement notice.

The company was fined £20,000 plus £49,000 costs under section 2, HSW Act, for failing to ensure the health and safety of employees.

An HSE inspector is reported to have made the following comments after the case:

  • HSE guidance on HAVS was published in 1994. The company had failed to manage the risk from early 1998 until 2009.
  • Control measures could include purchasing tools with the lowest vibration levels, introducing better systems of work when possible to avoid exposure, making sure workers know how to use tools properly and regular health surveillance to detect early signs.

Poverty And Lawyers

Poverty

How many practising lawyers know the real meaning of poverty?

The income of lawyers should be seen, for example, in the context of the most recent poverty statistics compiled by the Joseph Rowntree Foundation. These statistics include:

  • The low-income threshold for a couple with two children under 14 is £357 per week.
  • In 2013, 13 million people in the UK were living in households below this threshold.
  • 3.5 million children were living in low-income households.
  • 4.4 million adults were paid less than £7 per hour.

 

In May 2014, the Office of National Statistics published data which showed that the richest 1 per cent of Britain’s population now own as much wealth as the poorest 55 per cent put together.

In 2013/2014, the Tressell Trust reported that 913,138 people were now using its food banks, an increase of 51 per cent from the previous year.

In December 2009 Shelter, the housing charity, reported that it would take between 10 and 33 years for local authorities to clear their housing waiting lists. Approximately 1.8 million households were currently on waiting lists for social housing.

 

The Royal Courts of Justice Citizen’s Advice Bureau (RCJCAB) deals with nearly 20,000 clients a year. It has reported the following:

  • In family cases, 69 per cent of divorce matters involved at least one unrepresented party.
  • In civil cases, 85 per cent of individual defendants in county court cases were unrepresented.
  • There is a definite trend of solicitors being unwilling to take on cases on a publicly-funded basis in areas such as housing and family.
  • 38 per cent of cases handled by the RCJCAB involve debt, mostly possession proceedings brought by banks.
  • There may be a theoretical entitlement to get legal aid but the reality is somewhat different. Solicitors say that they are too busy, or the case does not look like a sure-fire winner, or there is not going to be much money in it for them.
  • In relation to costs, many people do not have any concept of just how expensive litigation is.

 

 


Airbus Death: Recent Prosecution

Airbus death: £200,000 fine

Health and Safety Executive v Airbus Operations Ltd (2014) Mold Crown Court, July 17

Airbus has been fined following the death of an employee by crushing.

Significant points of the case

  • In November 2011 Donny Willliams, an employee of Airbus, was working at the company’s site in Broughton. He was told to fit a fertiliser spreader to the back of a tractor as part of a trial to spread de-icer onto the site’s runway.
  • He was crushed between the tractor and the spreader and suffered fatal injuries.
  • Williams and his colleagues in the maintenance department had been given no training in driving, maintaining or attaching equipment to tractors and lacked understanding of tractor controls.
  • Airbus did not have a safe system of work for attaching equipment to tractors. No risk assessment for the work had been carried out. None of the fitters in the department knew of the existence of an operator’s manual for the tractor. They used a trial and error approach to find the correct operations.
  • The death could have been avoided if the well-known safe-stop industry practice had been adopted by making sure that the handbrake was fully applied, all controls and equipment were in neutral, the engine was stopped and the key removed.

The company was fined £200,000 plus £58,000 costs under section 2, HSW Act, for failing to ensure the health and safety of employees.

 


Gas Leak: Recent Prosecution: Suspended Sentence

Gas risk: suspended prison sentence

Health and Safety Executive v John Stanley (2014) Luton magistrates’ court, July 14

A roofing contractor has been sentenced after his work on a chimney exposed householders to the risk of leaking combustion fumes.

Significant points of the case

  • In August 2011 John Stanley, a roofing contractor, was engaged to repair a water leak between a chimney stack and roof tiles by householders in Luton.
  • His team’s repair work blocked the chimney above a gas fire. This resulted in a potentially dangerous leak of combustion fumes within the house’s loft space.
  • The team failed to check that the flue for a gas fire in the house was in working order. This flue was blocked by the repair work.
  • The gas fire was used for more than a year with all its fumes going into the loft of the house instead of through the flue. This left the householders at serious risk. A simple smoke risk would have identified the issue immediately after completion of the work.
  • Stanley was not on the Gas Safe Register and was not qualified to carry out gas work. He should not have undertaken the work knowing that a gas fire was linked to the chimney.

John Stanley was sentenced to four months imprisonment, suspended for two years, for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees. He was also ordered to pay £500 compensation.

An HSE inspector commented after the case that the incident could have resulted in fatalities, because gas fire fumes can contain carbon monoxide, which can kill. It was vital that building contractors were aware of the risks they created and complied with laws to control the risks.


M25 Construction Death Prosecution

M25 construction death: company and bulldozer operator fined

Health and Safety Executive v J McArdle Contracts Ltd and Stephen Blackmore (2014) Chelmsford Crown Court, July 11

J McArdle Contracts Ltd, a construction company, and Stephen Blackmore, a bulldozer operator, have been sentenced following the death of a worker on the M25 widening project.

Significant points of the case

  • In October 2010 Mihai Hondru, an employee of J McArdle, was working on the M25 widening project at Upminster.
  • His work involved directing lorries to the correct position on an embankment for the to tip loads of soil. Blackmore’s job was to level the soil with his bulldozer.
  • Hondru was struck by the reversing bulldozer and suffered fatal injuries.
  • The company had carried out a risk assessment and had implemented a one-way system to minimise the risks to pedestrians from moving vehicles.
  • On the day of the incident, ground conditions had changed. This meant that vehicles had to reverse into position. Inadequate safety measures were put in place to protect workers operating near the reversing bulldozer.
  • Blackmore had failed to take sufficient account of the deceased’s presence in his immediate vicinity. He did not make sure that he knew exactly where Hondru was. He assumed that he was not in his way or that he would move out of his way when he reversed his vehicle.

The company, which is now in liquidation, was fined £2000 for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees. The judge is reported to have commented that if the company had still been trading, the fine would have been £200,000.

Blackmore was sentenced to six months imprisonment, suspended for twelve months, and order to pay £2500 costs, under regulation 37 (3) (a), Construction (Design and Management) Regulations 2007. This states, in summary, that any vehicle being used for the purposes of construction shall, when being driven, operated or towed, be driven, operated or towed in such a manner as is safe in the circumstances.

 


Disability Discrimination

DISABILITY DISCRIMINATION

Reasonable adjustments

Case    Griffiths v Secretary of State for Work and Pensions (2014) Eq Opp Rev 249:31

Facts    G was employed by the DWP as an administrative officer.  From February until May 2011 she was off work sick with post-viral fatigue. When she returned to work she was referred for an occupational health assessment. This confirmed that she was suffering from fibromyalgia, which caused widespread pain and extreme tiredness. Before receiving the OH report, the employer warned G that a continued pattern of future sickness might result in dismissal or demotion. G lodged a grievance arguing that reasonable adjustment should be made to its absence management policy. She complained of disability discrimination. The ET rejected the complaint on the basis that G had not been less favourably treated than other employees. G appealed to The EAT.

Decision          1. The appeal was dismissed.

2. The employer was under no duty to make reasonable adjustments in the application of its absence management policy.

3. The policy provided for special allowances to be made in relation to employees with a disability and did not place a disabled employee with poor attendance at a particular disadvantage when compared to employees who were not disabled.


Agriculture Crushing Death

Agriculture crushing death: £67,000 fine

Health and Safety Executive v Turfgrass Services International Ltd (2014) Hull Crown Court, July 9.

Turfgrass Services International Ltd, a specialist turf company, has been fined following the death of an employee.

Significant points of the case

  • In September 2011 Lee Woodhouse, an employee of Turfgrass, was using a 27 tonne turf harvester in a field on a farm in East Yorkshire.
  • He was struck and run over by the machine and suffered fatal injuries.
  • He was run over while walking alongside the machine to observe or adjust the operation of the cutoff mechanism at the front end.
  • A wire link had been put across the terminals of a relay switch. This defeated a number of  safety features on the harvester, including the cutoff switch attached to the driver’s seat designed to cut the operation of the machine if the driver was not sitting in the seat.
  • The harvester had been operated with the safety features disabled since 2009. Further investigation revealed that the safety features on another machine had also been deliberately defeated in 2011.
  • The company had failed to identify the risks of operating harvesting machines, failed to implement safe systems of work regarding maintenance and inspection, failed to train machine operators and their supervisors properly and failed to protect employees from access to dangerous parts of the machines.

It had also failed to make sure that the machines were maintained safely and regularly checked.

The company was fined  £67,000 plus £33,000 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.

An HSE inspector commented after the case that agricultural machines were inherently dangerous. Agriculture has the second highest rate of deaths of all work sectors. In the last ten years, almost one person a week has been killed as a direct result of agricultural work.


Recent Compensation Awards In Discrimination Cases

SEX DISCRIMINATION

Compensation

Case    Austin v West Sussex County Council (2014) Eq Opp Rev 249:15, Havant ET

Facts    Labelling a complaint against a male employee as sexual harassment without evidence of sexual misconduct showed that the employer had prejudged the outcome of disciplinary proceedings. A hypothetical female comparator would not have been treated in that way.

Remedies * Injury to feelings: grave case of direct discrimination: middle Vento band: £7500 plus 25% uplift.

  • Past loss of earnings: £69, 615
  • Future loss of earnings: 17 weeks: £18,785.

 

SEX DISCRIMINATION

Compensation

Case    O’Farrell v Harlow District Council (2014) Eq Opp Rev 249:15, East London ET

Facts    The ET upheld O’s complaint of victimisation in relation to dismissal from her position as a lawyer, the employer’s conduct of her appeal against dismissal, and its failure to provide a grievance appeal.

Remedies: * Polkey reduction 30%:

  • Failure to comply with ACAS Code of Practice: 15% uplift
  • Past loss of earnings: £24,890
  • Future loss of earnings: 9 months: £14,083
  • Pension loss: substantial loss approach: £69,900
  • Injury to feelings: Vento middle band: £10,000

 

SEX DISCRIMINATION

Compensation

Case    Marriott v The Good Agency Group Ltd (2014) Eq Opp Rev 249:18, London South ET

Facts    M was told that she would have to work full-time when she returned from maternity leave.  She resigned and complained of constructive dismissal and indirect sex discrimination.

Decision          1. There was a PCP that employees were required to work full-time hours. This necessarily had a greater impact on females of child-bearing age and was indirect discrimination. The employer’s justification of the PCP was rejected.

Remedies        43 weeks loss of earnings: £250 per week childcare costs deducted.

Injury to feelings: middle Vento: £12,000

 

SEX DISCRIMINATION

Pregnancy/maternity

Compensation

Case    Grant v SPG Hygiene Ltd and Granger (2014) Eq Opp Rev 249:17, Liverpool ET

Facts    When G returned from additional maternity leave, she was not allowed to return to her old duties but was given tedious and menial work. She complained and her complaints were ignored. She complained of direct and indirect sex discrimination.

Decision          1. G had been denied her right to return from maternity leave to the same job. This was direct discrimination.

2. There had been indirect discrimination. There was a provision, criterion or practice that long-term absent employees would not be consulted about any changes to their duties. This out women on maternity leave at a particular disadvantage.

3.  Her manager had ignored her and treated her rudely. This amounted to sexual harassment.

Remedies        Injury to feelings: considerable upset and distress: middle Vento band: £18,000

Aggravated damages: £1000: no apology given: her manager regarded himself as above the law because he was the boss.

Uplift: 25%.

Reinstatement to original role ordered.

 

SEX DISCRIMINATION

Pregnancy/maternity

Compensation

Case    Alam v Khan and others (2014) Eq Opp Rev 249:18, East London ET

Facts    A was treated unfavourably because she was pregnant. She was subjected to detriments including ignoring her concerns about health and safety matters and cleaning products and threatening her with dismissal when she was ill, suspending her without pay and acting belligerently towards her.

Remedies        Very distressing course of conduct: middle Vento band: £13,760.

Aggravated damages: £2000 based on employer’s conduct of proceedings.

 

SEX DISCRIMINATION

Victimisation

Case    Sheridan v Stevens; Wood v Stevens (2014) Eq Opp Rev 249:19, London East ET

Facts    St, the owner and director Precious Self, complained of discrimination. Sh compromised her claim for £2000 and W’s claim succeeded in the ET. Neither received any money. Precious Self ceased trading and its business was taken over by PS & LG. St knew that the claimants had not been paid. Sh and W complained of victimisation.

Decision          The ET found that St had made payments from the company with the aim of ensuring that no funds were available to pay the claimants. This amounted to victimisation.

Remedies        Injury to feelings: the claimants had hurt feelings: £2500

 

 


Emergency Laws

Yesterday (10/07/2014) , the Coalition Government announced emergency surveillance laws would be brought into force within days. The laws will ‘shore up’ powers of spies, police and government agencies to access data. Following a European Court of Justice ruling in April which restricted state access to citizens’ data, the Government are concerned that foreign-based phone and internet companies would stop responding to UK warrants and delete content of individual communications.

David Cameron has, however, agreed to insert a “sunset clause” in to this controversial legislation, which means that the bill will expire in 2016. This enables more time to think through the consequences of the bill, while providing opportunities for a full scale review of intercepts laws and a new oversight board to be created, alongside planning restrictions.

The speed that this legislation will be implemented, however, is a cause for concern. Surely with legislation that intrudes so much into people’s lives, a mere week is not sufficient to enable parliamentary scrutiny, even with the sunset clause.