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Archive for August, 2014

Newport Bakery Injury: Unguarded Machinery

Amputated fingers: £2400 fine

Health and Safety Executive v Solway Foods Ltd (2014) Newport magistrates’ court, August 15
Solway Foods Ltd has been prosecuted following an incident in which a worker lost the tips of two fingers.
Significant points of the case
• In September 2013 a female employee of Solway, who wishes to remain anonymous, was working at the company’s Avana Bakeries site in Rogerstone, Newport.
• She was cleaning cake mixture from a pipe by hand when her fingers were caught in part of the pump mechanism. The tips of her index and middle fingers of her right hand were severed.
• The company had placed bars over the inlet and outlet parts of most of the other pumps in the bakery but had failed to do this on the pump involved in the incident.
The company was fined £2400 plus £4300 costs for a breach of regulation 11 of the Provision and Use of Work Equipment Regulations 1998, for failing to prevent access to a dangerous part of machinery.
An HSE inspector is reported to have made the following comments after the case:
• Blockages of moving machinery are common occurrences in the food industry and employees will often try to remove them or clean them while a machine is moving. If access to dangerous parts is not prevented, they can be badly injured.
• Moving parts which could cause injury should be guarded or other safety mechanisms installed to cut power to the machine so that people cannot come into contact with them. Non-routine operations such as cleaning or maintenance are not exempt from this requirement.


Obesity And Disability Discrimination

Two recent cases have considered the issue of whether the condition of obesity, generally recognised as a growing health concern, can in itself be considered as a disability for the purposes of discrimination law. These cases are summarised below.
Case Walker v SITA Information Networking Computing Ltd (2013) Eq Opp Rev 236:28, EAT
Facts W, an employee of S, suffered from functional overlay compounded by obesity. He had a wide range of symptoms. He complained of disability discrimination. The ET found that he was not disabled because there was no specific diagnosis of any mental condition on his part and no physical organic cause had been identified apart from obesity. W appealed to the EAT.

Decision
1. Obesity itself cannot amount to a disability.
2.Obesity may be of evidential value in judging the effect and likely duration of an impairment.
3. If the employment judge had correctly considered the effect of the impairment instead of being distracted by its cause, he would inevitably have found that W was disabled within the meaning of the Act.

Case Kaltoft v The Municipality of Billund (2014) Court of Justice of the European Union C-354/13

Decision
Obesity is not in itself a disability. But where obesity has reached a stage where it hinders full participation in professional life, it can amount to a disability. The key issue is whether there is an impairment. The classification by the World Health Organisation of obesity as an illness is not determinative of it being a disability.


Migrant Workers

Migrant workers
Since the enlargement of the European Union, with the general principle that citizens of EU states have the right of free movement to work, increasing numbers of migrant workers have found employment in the United Kingdom. Migrant workers are generally regarded as being highly motivated, reliable and committed. Many of these workers do not have a fluent grasp of English and may be particularly vulnerable to failings in health and safety practices. The large number of migrant workers from Central and Eastern Europe currently employed in the United Kingdom has started to make an impact on health and safety and employment law.
These workers may be prepared to accept lower wages than their British counterparts, because wages in their home countries are far lower than those in the United Kingdom for comparable work. Those migrant workers who are highly educated find themselves in a position where they are not familiar with their employment rights. They may feel that they are in a vulnerable position in a foreign country with whose laws and customs they are unfamiliar. English employment tribunals and courts are increasingly demonstrating an awareness of this position.
The Health and Safety Executive has shown itself to be well aware of these problems. It has issued detailed advice and guidance on the proper management of migrant workers’ health and safety. The HSE recognises that factors such as poor language skills and unfamiliarity with the workplace can magnify the effects of existing health and safety problems. It advises that migrant workers with better English should be asked to interpret for their less fluent colleagues. Internationally recognised signs, videos or audio materials can be used to communicate health and safety messages.
In general, tribunals and courts have expressly recognised the problems arising in relation to large numbers of workers with a limited grasp of English language, law and culture. Spokespersons for the HSE have repeatedly commented on the vulnerability of such employees in relation to health and safety.


Illegality and Workplace Harassment: Supreme Court Decision In Hounga v Allen And Others

The Supreme Court has given judgment in the case of Hounga v Allen and others [2014] UKSC 47. The essence of the Court’s decision is that the defence of illegality does not necessarily defeat a discrimination claim.
The facts, in outline, were that H, a Nigerian national, started work as an au pair for a family in Britain in 2007. She obtained a six-month visitor’s visa by giving false information. She was subjected to a campaign of physical and verbal abuse. In 2008 she was dismissed and brought a number of claims, including race discrimination, in the employment tribunal. The tribunal rejected all the claims except for race discrimination. It stated that she had been ill-treated by her employer who would not have dismissed her if she had been a British-based person.
The Court of Appeal ruled that the claim failed. H was relying directly on the fact that she had been working illegally in Britain. If the Court were to allow her to rely upon her own illegal actions, it would be condoning her illegality. That was something which the Court would not do.
The Supreme Court reversed this decision.
It stated that the illegality defence is based on a public policy concern to preserve the integrity of the legal system. However, in the current case there was also the public policy concern, which runs counter to the defence, to fight human trafficking. The illegality defence should give way to allow the public policy aim to be pursued.


Protection From Harassment

Section 1(2) of the Protection from Harassment Act 1997 states, in summary, that a person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
In Winfield and Jolowicz, Tort, the author states that this subsection would cover conduct directed at a victim which the defendant regards as a joke but which a reasonable person would regard as going beyond that.
In the case of S & D Property Investments Ltd v Nisbet and French [2009] EWHC 1726, High Court, Nicol J found that conduct had crossed the threshold of gravity necessary to amount to harassment in that it was oppressive and unacceptable. The victim was entitled to damages for anxiety under the Act of 1997. Damages under the Act could be awarded without the need to prove psychiatric harm and without the need for medical evidence. Evidence of anxiety could come from witnesses and from the victim himself. The appropriate sum here was £7000.
The 1997 Act may be useful in workplace harassment cases where the provisions of the Equality Act 2010 cannot be used, for example where the time limit for the employment tribunal application has expired.
It is important to note that the definition of harassment in the 1997 Act (there is no clear definition) is different from that of the legislation which applies to employment. In harassment cases, it is important to analyse the different provisions and to decide which is more appropriate


The Absurdity Of Human Existence And The Law

Those of us who reluctantly accept the absurdity of human existence, who include some practising lawyers, find ourselves having to reach some conclusions about our daily work. To those who reject the acceptance of the absurdity of humanity I would give just a couple of examples. First, we are born under sentence of death. This reality was used by Camus to reject the death penalty in all circumstances. Also, we are under constant threat of painful and incurable diseases. We are constantly bombarded with images of the most terrible atrocities committed mainly by those who do not accept the absurdity of their lives.
What is to be done? Escape through drugs? Seize on religion? Stay in bed? Commit suicide?
The answer is perhaps to be found in a fictitious scenario – fictitious today but only too real in recent history. A truck full of SS troopers rolls down the road to collect and take away Jewish children. What is to be done? Accept the absurdity of life with a shrug of the shoulders? The answer must be that to be human, one can only resist evil. It may trivialise this scenario to transfer it to the daily life of a bourgeois provincial lawyer, but I would argue, with Camus, that the acceptance of the absurdity of human existence is not an end, but a beginning. As a human being, we can only be truly human if we rebel against evil and fight for some modest gains in the application of justice.
Comments on a postcard, please.


No Damages For Prisoners’ Refused Right To Vote: ECHR Decision

The European Court of Human Rights has ruled that the United Kingdom has continued to breach prisoners’ rights by depriving them of the opportunity to vote in elections. However, the ECHR failed to award damages to the inmates bringing the action, stating that the ruling was enough to secure their rights. Costs were also not awarded.
The 10 inmates are prisoners in Scottish jails who argued that the ban on voting in the 2009 European elections breached their human rights. In agreeing with the prisoners, the ECHR upheld its 2004 ruling that a blanket ban on denying prisoners the right to vote was against their human rights. Despite this, some 10 years later successive Governments have failed to change the law. This therefore paved the way for the current inmates to claim compensation due to the continuing failure of the UK Government to bring UK law in line with European.
The Government are currently discussing measures as to how to implement the ruling to the minimal possible standard. In December last year, a cross-party committee proposed that prisoners who were serving less than one year custodial sentence could be given the vote, however these proposals have not yet been adopted.
The ongoing row into prisoners’ rights to vote signal the tension between Strasbourg and London; many commentators feel that the decision has acted as the catalyst for David Cameron’s calling for limitations to the ECHR. We will wait and see whether further actions by prisoners are undertaken, and if so whether the ECHR will become angrier at the United Kingdom for overriding their authority by ignoring its judgment.
In turn, the most recent case also raises questions about the UK’s ongoing commitment to Europe. Lord Neuberger, the President of the Supreme Court, has commented that the Human Rights Act effectively gives judicial powers to override the Government, which is essential to keep the Government in check. However, momentum for opposition to the Human Rights Act is growing, with the Conservative manifesto for next years’ general election potentially going to include plans for its repeal.


West Country Health And Safety Prosecutions

Warehouse fall: Bristol roofing company fined
Mitie Tilley Roofing Ltd, a Bristol based company, has been fined £10,000 for a breach of the Work at Height Regulations 2005 at Edinburgh Sheriff Court after an employee fell through a rooflight at a warehouse in Edinburgh. Three employees of the company were carrying out patch repairs on the flat roof of the warehouse. The worker was seriously injured. The HSE found that the risk assessment was not appropriate for the work and there was no safe system of work.

Mower incident: £12,000 fine
Health and Safety Executive v Cirencester Town Council (2014) Cheltenham magistrates’ court, August 4.
Cirencester Town Council has been fined following an incident in which an employee suffered serious injuries when a mower overturned.
Significant points of the case
• A groundsman employed by the council was carrying out routine cutting on the outside slope of the Cirencester Amphitheatre. The grass was two feet high. This made it difficult to see the ground conditions. The mower overturned, striking the worker. He suffered four fractured ribs and bruising.
• The slope being mowed was 64 degrees. The mower was not suitable for slopes in excess of 25 degrees.
• The mower was unsuitable for the task in hand. The council had failed to carry out a suitable and sufficient risk assessment for the work. The injured employee had not received proper training, information or instructions on how to carry out the work.
The council was fined £12,000 plus £17,000 costs under section 2, HSW Act, for failing to ensure the health and safety of employees.
An HSE inspector commented after the case that the worker could easily have been killed, having been put at unnecessary risk because there were several other ways the work could have been safely carried out. It was an entirely avoidable incident and it was hoped that it served to remind employers to take all site conditions into account, including slopes, before choosing equipment to cut slopes.


Gaza And The Law

What can lawyers do about the killing and maiming of men, women and children in Gaza? The implications of international law and the law of war in the context of the Gaza tragedy have been repeatedly raised in the United Nations during the current conflict.

The view of academics is that international law is neither a myth on the one hand, nor a panacea on the other, but just one institution among other which we can use for the building of a better international order. Further, international law has no alternative “but to accept war, independently of the justice of its origin, as a relation which the parties to it may set up if they choose”.

The cornerstone of the UN Charter system is Article 2 (4) of the Charter, which states, in summary, that all memebers shall refrain from the threat or use of force agianst the territorial integrity or political independence of any state. This is modified by Article 51 which states tat nothing in the Charter shall impair the right of self-defence if an armed attack occurs against a member.

The law of war forms a branch of legal discipline in its owns right. It comprises a large number of international treaties and has developed into a massive and complex area of law. The law of war includes the following:

  • Rules for the protection of civilians
  • Control of types of weapons
  • The treatment of prisoners.

The reality seems to be that law has little or no relevance to the current position. Where an innocent child, of whatever nationality, is killed or injured, the legal issues are at best marginal and at worst of no significance whatsoever.

Without minimising the horrors of the current conflict, parallels can be drawn with the housing crisis in the United Kingdom. My argument is that a housing shortage is not a legal issue. It is a housing issue which can be solved by increasing the housing stock, which means that there must be the political will to build houses.

Another example is poverty, which can be seen, mistakenly, by some lawyers as a legal issue, is not so.  The unequal distribution of wealth, an increasing global phenomenon, can only be resolved by political action, with law as a subsidiary and marginally relevant factor.

Similarly, regional wars cannot be ended by lawyers, but by negotiators. The law may become relevant after the conflict has been resolved, when war criminals may be prosecuted, but in the words of Thomas Foley, appointed in 2003 as head of private sector development in Iraq:I don’t give a shit about international law.


Rolf Harris To Appeal Sentence For Indecent Assaults

Last month, the entertainer Rolf Harris was jailed for 5 years and nine months after he was unanimously convicted of 12 indecent assaults against young girls.

After the sentence was announced, the attorney general’s office announced that it would review the sentence after numerous complaints made by the public that it was “unduly lenient”. The office concluded that the sentence was not so, as the judge is required to consider the overall length of the sentence, the age of the offender and the nature of the crimes. Harris now faces various civil lawsuits against him from the victims of the assaults.

On 1st August 2014, Harris’s legal team stated that they had applied for permission to appeal against his convictions.

Indecent assault was charged due to the time frame of the assaults, i.e. prior to the Sexual Offences Act 2003 which overhauled the criminal law in relation to sexual offences. The offence is set out in the Sexual Offences Act 1956 section 14 (indecent assault against a woman). As a girl under 16 cannot in law give consent, all that is required to be proven in that the sexual act took place. The section thus refers to sexual acts which are less serious than intercourse. It is akin to the current section 3 offence of sexual assault.

Harris was convicted on assaults on 4 complainants. The first occurred during periods spanning 1978-1985 against a complainant who was aged 13-19. The second was a 7 or 8 year old who was assaulted in 1968. The third was a 14 year old who was assaulted in 1975. The final assault occurred in the “late 1980s” against a 15 year old. Due to the differences in the law at the time, the maximum sentence for each complainant was 2 years, apart from the youngest complainant of which a 5 year sentence could be imposed.

Some aggravating factors in this case are;

  • Harris’s respective age to his complainants
  • His position of trust

Some mitigating factors in this case are;

  • Lack of violence or physical threats
  • Touching was fleeting and over clothes
  • Harris’ previous good character

Legally, Harris’s criminality is at the lower end of the scale on the sentencing guidelines. The starting point for the assaults against the complainants who were over 13’s would have been around 26 weeks’ custody each. The starting point for the younger complainant would be 1 year custody. Taking the whole sentences together, 2 and half years would seem a rough starting point.

Thus, while Harris’s crimes have shocked the nation and understandably traumatised his victims, unfortunately the legal position restricts the sentence somewhat. As a lawyer, albeit not criminal, the judicial sentence of over twice this appears to reflect the public distain. It is thus not a huge surprise that Harris’s legal team have sought an appeal.