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Archive for August, 2015

More tinkering with health and safety

Self-employment: significant changes in the law

Section 3(2) of the Health and Safety at Work, etc., Act 1974 states that it shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons, not being his employees, who may be affected thereby, are not thereby exposed to risks to their health and safety.

This apparently clear and simple provision has, in reality, given rise to a number of definitional issues.

Section 53 of the 1974 Act defines “self-employed person” as an individual who works for gain or reward otherwise than under a contract of employment, whether or not he himself employs others.

“Contract of employment” is defined as a contract of employment or apprenticeship whether express or implied, and if express, whether oral or in writing.

There is also a substantial mass of case law in relation to the terms used in section 3. One example is that the boundaries between employment and self-employment are far from clear.

In relation to the meaning of “undertaking”, the leading case is R v Mara (1987) where a cleaner was electrocuted when using a faulty electric scrubbing machine on a Saturday, when the employees at the place being cleaned were not on the premises The court ruled that the conduct of an undertaking is not confined to the hours when the company’s employees are actually there. For example, a company may shut down over a weekend for cleaners to come in. The company would not be excused from liability to the cleaners because its own employees were not there. It is not permissible to treat section 3 as being applicable only when an undertaking is in the process of being actively carried on.

In 2011, the Lofstedt Review[1] recommended that those self-employed whose work activities pose no potential risk of harm to others should be exempt from health and safety law. This recommendation was accepted by the government which enacted the Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015. The general effect of these Regulations is that, from 1 October 2015, if you are self-employed and your work activity poses no potential risk to the health and safety of other workers or members of the public, then health and safety law will not apply to you.

It is estimated that health and safety law will no longer apply to 1.7 million self-employed people like novelists, journalists, graphic designers, accountants, confectioners, financial advisors and online traders.

High risk activities

The law says that there are certain work activities where the law applies because they are high risk. If your work involves any of these activities, then the law will apply to you:

  • Agriculture
  • Asbestos
  • Construction
  • Gas
  • Genetically modified organisms
  • Railways.

An activity which is not listed above is still covered by section 3 of the 1974 Act where it may pose a risk to the health and safety of another person. This would appear to defeat the entire purpose of the changes.

The new Regulations also provide for a review by the Secretary of State within five years from the date on which they came into force. The review must be set out in a report which must:

  • Set out the objectives intended to be achieved by the new Regulations
  • Assess the extent to which those objectives are achieved
  • Assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system which imposes less regulation.

The TUC made the following points in relation to the proposed new Regulations before they were enacted:

  • The proposals would create confusion and uncertainty in a sector which already has a much higher fatality, injury and health rate.
  • IOSH had stated that this was a very shorty-sighted and misleading move which would not actually help anyone. It would not support business but would cause general confusion.
  • The proposed changes were completely unnecessary because the only time in which the 1974 Act could be used was in circumstances where a person did put another person at risk. If a self-employed person injures another person through their work, regardless of what they might have believed beforehand, the Act of 1974 would apply.
  • There was no need to change the duty of a self-employed not to injure themselves. No self-employed person has ever been prosecuted for risking their own health. The HSE has been able to give the self-employed guidance on how to protect their own safety. Self-employed people, for example scaffolders and window-cleaners, have been prosecuted where they have risked the health and safety of others. The new Regulations will not affect this position.
  • All self-employed people will continue to be under an obligation to carry out risk assessments to determine whether or not their work poses a risk to others. If there is no risk, there is no problem. Again, the new Regulations do not affect this position.
  • The new Regulations will bring confusion and complacency. The self-employed are likely to be unsure if they are covered, particularly if they are not on the list of occupations in the Regulations, set out above.
  • Many self-employed people who clearly do pose a risk will assume that they have nothing to worry about because they are not in occupations on the list and will believe that there is no need for any safety precautions.
  • Those who control workplaces where self-employed people work, who may in fact be bogus self-employed, will wrongly assume that they do not have a duty of care to these workers. Self-employed people who employ others may interpret the new Regulations as meaning that they are exempt from the law.
  • The listed occupations are, generally, the most dangerous. They all have a high proportion of the self-employed, and anything which confuses the legal position is objectionable.
  • The new Regulations are supposedly being introduced for the reduction of burdens resulting from legislation. The reality, in the view of the TUC, is that the effect is likely to be the opposite because it does not change the law for those who pose genuine risks and creates confusion for all othere self-employed persons.
  • Reported statistics show a fatality rate of 1.2 per 100,000 for the self-employed and 0.5 per 100,000 for employees.

 

 

 


Dangerous gas work: suspended prison sentences

Dangerous gas work: suspended prison sentences

Health and Safety Executive v Lee Butterworth t/a English Riviera Building Company Ltd and Scott Butterworth (2015) Torquay magistrates’ court, August 21

Lee and Scott Butterworth have been sentenced to suspended terms of imprisonment following illegal and dangerous gas work.

Significant points of the case

  • Lee Butterworth was carrying out work on a house in Plymouth. He contracted his brother Scott to install a gas boiler and pipework. Scott Butterworth was not a member of Gas Safe Register.
  • The property owner engaged a Gas Safe Register member to fit a gas cooker. He found a leak in the pipework and classified it as immediately dangerous with a real risk of a gas explosion.

Lee Butterworth was sentenced to 10 weeks imprisonment suspended for two years, ordered to undertake 150 hours unpaid community work and to pay £496 costs, for a breach of the Gas Safety (Installation and Use) Regulations 1998.

Scott Butterworth received the same sentence.

An HSE inspector commented after the case that Lee Butterworth had failed to check if his brother was a member of Gas Safe Register. It was extremely fortunate that there had not been an explosion.


Air show crashes raise concerns over flight safety

This weekend (22nd – 23rd August), two separate horrific incidents occurred at air shows; the first, here in the UK, involved a Hawker Hunter jet crashing into the A27 at Shoreham, West Sussex, after failing to pull out of a loop manoeuvre. It is not yet known how many people died. The second concerned two light planes crashing into each other in Switzerland, leaving one of the pilots dead after his automatic rescue system failed to activate.
The Civil Aviation Authority has since announced it will “thoroughly examine” the circumstances of the UK disaster. Its comments come in light of calls from a mother of one of the victims to not stage air shows so close to busy roads.
These accidents come off the back of a difficult time for aviation. Recent years have seen a number of high profile flight disasters; from missing planes to those deliberately attacked, flight safety is now seemingly a public concern. And yet, the Aviation Safety Network, along with other organizations, highlights that the number of fatal accidents is actually falling, compared with the number of passengers flying. It reports that in 2014, while there were 692 fatalities, these resulted from only 20 accidents. Planes are flying with more people, with air traffic at its peak. Unfortunately, with more people on board, the rate of passenger deaths will remain high even with just one accident.
Technological improvements and strict flying standards have inordinately increased plane safety. While older planes such as the jet involved at Shoreham may be perceived as less safe, in reality they are maintained to a modern standard. Simply, a plane is either operable or not, its age does not affect it. The aforementioned CAA actively enforces international and European safety standards in relation to airworthiness of aircraft. The CAA are also responsible for enforcing the Civil Aviation (Working Time) Regulations 2004, which set out various health and safety rights in relation to working time, such as rest breaks and hours to be worked. The Health and Safety Executive also retains responsibility under the Health and Safety at Work etc. Act 1974. As far as industries go, it therefore has the widest range and most stringent regulatory systems in place.
Bristol has a long legacy of aviation, most notably through the Bristol Aeroplane Company, Concorde and more recently through BAE Systems and Airbus. Aside from the large amount of people that are employed, aerospace is part of Bristol’s identity and every airplane disaster is felt acutely by those who work and live nearby. While each and every disaster is shocking, it would be a great shame for the headlines which follow to lose sight of the fact that aviation remains one of the safest modes of travel.


Reading a law book is like eating sawdust (Franz Kafka)

The boredom of law

Most law is dull. As noted above, Kafka likened reading a law book to eating sawdust. For anyone with a spark of individuality or creative genius, the following are examples which can kill the drive to originality and provide an effective cure for insomnia:

  • The endless tedium of the detail of the law of trusts.
  • The mind-numbing aridity of the law of intestate succession.
  • The excruciating dullness of conveyancing procedure.
  • The incomprehensibility of the more arcane aspects of the law of contract.
  • Administrative law in all its deadening detail.
  • Tax law with its endless sections and subsections of Finance Acts.
  • European commercial law in all its abstract splendour.
  • The grinding complexity of the Civil Procedure Rules, even after reform.

Iraq War: contemporary judicial comments

 

In a speech to the Bar Council in November 2006, Lord Steyn put forward the following views:

  • President Bush was guilty of high crimes under international law. Blair backed Bush, however lawless and outrageous the means adopted.
  • Members of the British government who were consciously involved in the decision to invade Iraq were subject to the universal criminal jurisdiction of international law.
  • The Attorney-General’s advice of March 2003 had paved the way for a disastrous war. It had been a black day for the rule of law.
  • Examples of illegality were the Guantanamo prison camp, secret CIA prison camps, CIA extraordinary rendition flights of prisoners and the invasion of Iraq.
  • The Bush administration had set out to undermine international institutions and refashion international law.
  • The record of British troops in Iraq was far from unblemished.
  • Long after the Prime Minister and his Cabinet had gone, the UK would pay the price for an abdication by our government of independent responsibility in foreign affairs and for playing a part with the Bush administration in undermining the international rule of law.

Amazon boss hits back at claims of “bruising” corporate culture

Over the weekend (15th August), the New York Times published an article concerning the various workplace practices of Amazon, the world’s biggest online retailer. For example, one former Amazon HR director commented that the annual culling of staff led to “purposeful Darwinism” while another reported that “nearly every person I worked with, I saw cry at their desk.” The article described the culture as follows;
“At Amazon, workers are encouraged to tear apart one another’s ideas in meetings, toil long and late (emails arrive past midnight, followed by text messages asking why they were not answered), and held to standards that the company boasts are “unreasonably high.”

In response to this, Amazon’s boss Jeff Bezos has written a memo to staff that the “article doesn’t describe the Amazon I know”. He encouraged employees to read the article and email him directly if it recognised any of the “shockingly callous management practices.” He went on to add;
“It claims that our intentional approach is to create a soulless, dystopian workplace where no fun is had and no laughter heard. Again, I don’t recognize this Amazon and I very much hope you don’t, either… The people we hire here are the best of the best. You are recruited every day by other world-class companies, and you can work anywhere you want.”

Many of the claims made were also refuted by Nick Ciubotariu, a current employee, on LinkedIn;
“No one tells me to work nights. No one makes me answer emails at night. No one texts me to ask me why emails aren’t answered.”
This is not the first time that the retailer has hit the headlights over purported working conditions. At Christmas 2013, Amazon UK came under fire for increasing risk of mental illness. The article does serve as a strong warning however, that in times of social media, workplace conditions of even the biggest employers can and will come under scrutiny.


Devon paper mill death: £400,000 fine

Death in unguarded machinery: £400,000 fine

Health and Safety Executive v DS Smith Paper Ltd (2015) Exeter Crown Court, August 11

DS Smith Paper Ltd has been fined following the death of a worker in unguarded machinery.

Significant points of the case

  • In September 2011 John Stoddart was working at the company’s paper mill in Devon. He was attempting to smooth out felt on a conveyor. He was pulled into the machinery and suffered fatal crush injuries.
  • The deceased was trying to identify a problem which caused creases in large rolls of paper. He climbed onto a work platform to check if the creases were caused by problems with the belt, which was used to squeeze water from wood pulp.
  • It was thought that the deceased was dragged onto the felt belt and then into the machinery below.
  • The company had failed to place any guard around the belt and did not have a suitable risk assessment for work which needed to be carried out to find the cause of creases.

The company was fined £400,000 plus £34,000 costs under regulation 11, 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 commented after the case that a proper risk assessment would have highlighted dangers with the machinery and established safe practices for workers instead of putting their lives at risk.


Levellers and the law

The Levellers

Some of the earliest and most devastating criticisms of English law and lawyers were made by the Levellers in the seventeenth century in the context of revolutionary changes in English society following the Civil War and the execution of Charles I. The Leveller movement advocated popular sovereignty, extended suffrage, equality before the law and religious tolerance. The Levellers proposed radical reforms, most of which have not yet been carried out in Britain. The Levellers put forward a revolutionary programme, including the codification of the common law in a brief and intelligible handbook, the abolition of barbarous punishments and the reform of the prisons. Its keynote was decentralisation, so that the common man and his neighbours should govern themselves through their juries and elected magistrates.


Farmers’ hold urgent summit on falling milk prices

Following protests around the UK this weekend, today (10th August 2015), farming unions are meeting to discuss falling milk prices. The action comes following the news that some dairy farmers are now being paid less that the cost of production.
Standard prices of milk are now between 23.01p and 24.06p per litre, while it costs on average 30 and 32p per litre to produce. Describing the situation as a “crisis”, NFU president Meurig Raymond said that; “It’s simply not sustainable for any farmer to continue to produce milk if they’re selling it at a loss.”
Mr Handley, from Monmouth, told Huffington post that his family farm with an 140-strong herd had £50,000 loss in profits since last May.
“That’s £50,000 that has been committed to other things – trying to make a living and the infrastructure of keeping a dairy herd, which is very expensive.
Each month we are getting a letter saying ‘sorry your price is less’. We are a small family farm, we have had cows for 30 years. We have been told we are very good at what we do, we produce Red Tractor products and we are facing selling our cows. That’s the harsh reality of it.”

Sadly, Mr Handley’s experience is the norm not the exception. It remains to be seen over the week if talks can be effective.


Gloucestershire woodwork saw injuries: amputated fingers

Amputated fingers: £8000 fine

Health and Safety Executive v Severn Valley Woodworks Ltd (2015) Stroud magistrates’ court, August 3

Severn Valley Woodworks Ltd has been fined after a worker suffered the amputation of three fingers when using a table saw.

Significant points of the case

  • In September 2014 Egidijus Norkus, an agency worker, was using a table saw to cut tongue and groove boards for use as bird table bases.
  • He suffered the loss of three fingers.
  • The company had not trained the victim in a safe system of work for making the products. It had failed to supervise the work and had not effectively set up the saw.

The company was fined £8000 plus £1100 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

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

  • This had been an unfortunate incident which could have been avoided if the company had effectively supervised workers using dangerous machinery.
  • The woodwork industry has a high accident rate. Most accidents are caused by contact with moving machinery.
  • Employers need to ensure that machines are effectively guarded and workers are adequately trained and supervised.