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Archive for January, 2015

Gloucestershire (Cinderford) Construction Site Welfare And Safety Prosecution

Construction site welfare and safety standards: £13,000 fines

Health and Safety Executive v Keith Bell and KW Bell Group Ltd (2014) Cheltenham magistrates’ court, January 26

Keith Bell, the managing director of KW Bell Group Ltd, and the company itself, have been fined for poor welfare facilities and unsafe excavation at a construction site near Cinderford, Gloucestershire.

Significant points of the case

  • In December 2013 an HSE inspector visited the site. She found a lack of hot running water and washing facilities and an unsupported excavation.
  • An improvement notice was served, requiring welfare improvements. A prohibition notice, stopping further excavation work, was also issued.

The following fines were imposed:

  • Keith Bell: £9000 plus £3500 costs under regulations 22 and 31, Construction (Design and Management) Regulations 2007.
  • KW Bell Ltd: £4000 plus £765 costs for the same offences.

Regulation 22 of the 2007 Regulations deals with the duties of a principal contractor.

Regulation 31 states, in outline, that all practicable steps shall be taken to prevent danger, including the provision of supports to prevent collapse of an excavation.

An HSE inspector commented after the case that the excavation work was a major cause for concern because there was clear evidence of excavation without adequate precautions. The consequences of the collapse of the sides of the excavation could have been devastating.


Care Home Death: £100,000 Fine

Health and Safety Executive v Western Park Leicester Ltd (2014) Leicester Crown Court, January 23.

A company which owns a care home in Leicester has been fined following the death of a vulnerable patient.

Significant points of the case

  • In May 2012 Walter Powley, aged 85, was admitted to Western Park View, a care home, after his family was advised that he could not be safely left at home because of his risk of falling.
  • Powley fell in his room at the home. He was trapped between a wardrobe and a radiator. He suffered serious burns to his legs from the radiator pipe and valves. The injuries were fatal.
  • The pipes and valves were not covered and had temperatures of 73 degrees centigrade.
  • The company was aware that the deceased was at risk of falls and injury and that staff should be vigilant. It had failed to assess the risks in his room and had not taken appropriate action to control and manage the risks.

The company was fined £100,000 plus £35,000 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

An HSE inspector commented after the case that this had been a foreseeable and preventable fatal accident. The scalding or burning risks from the pipes were longstanding and could have caused injury to any resident. The company had failed to heed published guidance from the HSE about the need to cover hot pipes and valves.


Severed Arm: Circular Saw: Health And Safety Prosecution

Severed arm: £10,000 fine

Health and Safety Executive v Stagecraft Display Ltd (2014) Llandrindod Wells magistrates’ court, January 21.

Stagecraft Display Ltd has been fined following an incident in which a worker had his right arm severed by a circular saw.

Significant points of the case

  • In February 2012 Brian Morris, an employee of Stagecraft, was working at the company’s factory in Powys. He had finished sawing for the day and was cleaning sawdust from below a circular saw.
  • He stopped the machine and reached into the machine as it was still running. The moving blade caught the arm of his jacket, severing his right arm.
  • Although the saw was fitted with an interlock which stopped it when it was accessed, it took more than 30 seconds for it to stop completely.
  • Three months before the incident, a machine maintenance engineer inspected the saw and told a manager that it should be taken out of service or fitted with a brake which would stop it more quickly.

The company was fined £10,000 plus £11,800 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.

An HSE inspector is reported to have commented after the case that saws cause the most injuries in the woodworking industry. Power-operated circular saws are dangerous machines which have caused many serious incidents.


Legality Of Children’s Parties

Yesterday, it was widely reported that a five year old boy had been sent an invoice for £15.95 for missing his friend’s birthday party. The mother of birthday boy decided to invoice the father of Alex Nash after he failed to show up at her child’s party, which left her out of pocket and his parents had her details to contact her. The mother, Ms Lawrence, has threatened proceedings through the small claims court if Alex’s parents refuse to pay.

For a small claim to be successful in this instance, there must be a contract. For there to be a contract, there must also be an intention to create legal relations and consideration, i.e. price. Clearly, no such situation arises in the case of a five year old’s birthday party. A five year old is also legally incapable of creating binding contractual relations.

While Ms Lawrence is out of pocket, perhaps there would be an alternative approach to recovering the fees spent as opposed to threatening court action via a five year old boy…


Freedom Of Expression: You Must Be Joking

One of the more depressing consequences of the Charlie Hebdo massacre is the assertion by French, and some English politicians, that freedom of expression is an absolute right. Nothing could be further from the truth. Freedom of expression in Britain is limited, for example, by libel and slander law, by discrimination law in relation to race, sex, disability and age and by official secrets. If freedom of expression were absolute, we would probably face the most appalling public outflow of extreme racist material. Thank goodness that there is no absolute freedom of expression. It is also worth noting that holocaust denial is a criminal offence in many European countries. Again, we should be thankful that there is no freedom of expression in this context.


“On The Buses”: London Bus Drivers’ Strike

Bus drivers in London are today (13th January 2015) participating in a 24-hour strike over pay and conditions. Members of the Unite union at 18 bus companies walked out, leaving Transport for London (TfL) stating that about 33% of its buses were operating.
Many of the drivers are striking due to the low wage compared to the high cost of living in London. As the BBC reports, one striking driver, Jake, commented that;
“It depends on the shifts I get per week [whether] I can take home £300 and rent in north London is like £1,000 a month.”

Unite stated that wages were negotiated on an individual company basis, meaning that some rates of pay could vary by more than £3. Unite were therefore calling for a single agreement covering all bus companies. However, they felt forced into strike action due to bus companies’ refusal to meet with them.

In response, the TfL commented that less than 16% of London bus drivers voted in favour of the strike. Mike Weston, TfL’s Director of Buses stated,
“As in all professions, bus drivers have different skills and experience and it is only right that this can be reflected in pay… If all drivers are paid the average then by definition half of all bus drivers will need to take a pay cut. Any ‘levelling up’ of pay to the highest rates would lead to a cut in bus services, an increase in fares, or both.”

 


New Poll Into Employment Tribunal Fees: It’s Worse Than We Thought

And so we begin 2015 with news that every employment lawyer already knows – the employment tribunal fees are putting off potential claimants. This is unsurprisingly after all, as it was the Government’s aim in July 2013 when they introduced them to dissuade weak or vexatious claims. However, research published by the Citizen’s Advice Bureau found that 80% of their service users were put off pursuing their claim by the fees. It is simply not true that 80% of cases are weak or vexatious.

The Government also justified the levy by stating that the fees would fund the tribunal system. Again, Citizens Advice have debunked by highlighted that the fees only cover 7% of the cost of running the tribunals. The number of winning cases for claimants has also dropped to below 60%, which as the Law Society Gazette rightly concludes, suggests that the fees have had a bigger impact on stronger cases than weak ones.

The fact of the matter is that placing a financial hurdle on pursing cases, which does not inquire into the quality of the action, means a price is placed on justice. If you can afford it, you can claim; the merits of case are irrelevant. As the research above noted, the fee level was so high compared to the amount of compensation usually obtained that clients pursuing unfair dismissal actions or discrimination claims would have to put aside all of their discretionary income for six months to afford the fees.

The problem thus is twofold – the introduction of fees at all is illogical compared to its purpose, whilst being set far too high. If fees must stay, then they also must be reduced.

The legal case over the fees introduction will continue this year and we at Frederick Place Chambers will continue to update you. In the meantime, claimants should be aware that there is a remission service in place for fees, more information can be found on the Ministry of Justice’s website.