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Archive for March, 2017

Heathrow crushing death: Laing O’Rourke fined £800,000

Construction company fined £800,000 following Heathrow crushing death

Health and Safety Executive v Laing O’Rourke Construction Ltd (2017) Southwark Crown Court, March 24

Statutory reference: regulation 22 of the Construction (Design and Management) Regulations 2007 (CDM).

Ling O’Rourke Construction Ltd has been fined following the death of a worker in a crushing incident.

The facts

·        In October 2014 Phillip Griffiths and his brother were trying to move a broken-down scissor lift on a service road at Heathrow Airport.

·        Griffiths’ brother tried to tow the vehicle away, using a dumper truck. His foot was caught between the brake and the accelerator. The truck reversed and crushed Griffiths, causing fatal injuries.

·        Neither worker had been authorised with the appropriate certificate to use the dumper truck. The operation had not been properly overseen or managed.

The decision

The company was fined £800,000 plus £10,000 costs under regulation 22 of CDM.


Disability discrimination: wheelchair user: FirstGroup bus: no compensation:Supreme Court

DISABILITY DISCRIMINATION

Reasonable adjustments

Case  FirstGroup plc v Paulley [2017} IRLR 258, Supreme Court

Facts P, a wheelchair user, tried to catch a bus operated by F. The wheelchair space on the bus was occupied by a woman with a sleeping child in a pushchair. She refused to move when asked to do so by the driver. The driver refused to allow P to fold down his wheelchair and use an ordinary seat. P complained of disability discrimination on the basis that F had failed to make reasonable adjustments to its policies. The county court allowed the claim and awarded him £5000 compensation. The court found that there was a PCP of £first come first served”. Possible reasonable adjustments would have included posting a notice which positively required a non-disabled passenger occupying a space to move from it if a wheelchair user needed it.  F successfully appealed to the Court of Appeal and P appealed to the Supreme Court.

Decision      1. The appeal was allowed.

2. Good practice would have been a policy to encourage drivers to go as far as they thought appropriate to induce a recalcitrant passenger to reconsider his or her refusal.

3. The award of damages would not be upheld. P had not established that if an adjustment had been made, there was at least a real prospect that it would have made a difference. There was no finding by the county court that if F had phrased the notice more peremptorily and/or required its drivers to be more forceful, that requirement would have been satisfied, given that there would have been no question of actual enforcement.


Disability discrimination: associative: burden of proof

DISABILITY DISCRIMINATION

Associative discrimination

Case  McCorry and others v McKeith [2017] IRLR 253, Northern Ireland Court of Appeal

Facts M was employed as an advice assistant. She had a disabled daughter who was looked after by a family friend while she was at work. Her employer thought that M’s place was at home. She was told, against her wishes, to be absent from work for some periods to care for her daughter. M was later dismissed for redundancy. She complained of associative direct disability discrimination. The industrial tribunal found that she had established a prima facie case that she had been discriminated against because she had been the primary career of her disabled daughter. The burden of proof therefore shifted to the employer which had not put forward any convincing or coherent explanation for its decision to make her redundant. The employer appealed to the Northern Ireland Court of Appeal.

Decision      1. The appeal was dismissed.

2. There was evidence of a difference in status, a difference in treatment and a reason for differential treatment. In the absence of an adequate explanation, a tribunal could conclude that the employer had committed an unlawful act of associative disability discrimination.


Fall from aircraft: Stansted Airport: serious injuries: £160,000 fine

Fall from aircraft: serious injuries: £160,000 fine

Health and Safety Executive v Inflite Engineering Ltd (2017) Chelmsford magistrates’ court, March 15

Statutory reference: ss. 2 and 3 of the Health and Safety at Work, etc., Act 1974 (HSWA).

Inflite Engineering Ltd, an aircraft engineering company, has been fined after two workers suffered injuries when they fell from the tail of an aeroplane.

The facts

·         In June 2015 two men were carrying out checks on the tail of an aeroplane at Stansted Airport. They were working on either side of the tail, using elevated work platforms, when another worker closed the wrong circuit breaker. This activated the aircraft’s air brake and both work platforms were knocked over.

·        The workers fell between 10 and 15 feet. One, an employee of the company, suffered multiple fractures and a punctured lung. The other, an agency worker, suffered fractures.

·        No suitable risk assessment was in place and there was a lack of effective monitoring.

Decision

The company was fined £160,000 plus £5400 costs under ss. 2 and 3, HSWA.


The key to understanding the Englsih legal system is the central importance of money

 

The key to understanding the English legal system is the central role of money. I have lost count of the number of my clients who have not been able to start or continue their cases because of lack of money. My conclusion can only be that where legal rights cannot in reality be exercised because of poverty, then those rights have no existence. Their existence, for the poor, is abstract and theoretical. Outside plush solicitors’ offices, barristers’ chambers, legal textbooks and university lecture rooms, legal rights have little relevance for poor people. 

Almost every aspect of English law has to do with money or claims for money.


Identity cards existed from 1939 until 1952: what next?

Identity cards

Without going into the details of the current arguments for and against identity cards, which may seem to have reached the level of a sixth-form debate, the historical context may be useful:

The United Kingdom had an identity card system between 1939 and 1952. Under the National Registration Act 1939, a National Register was set up. This contained details of all citizens and National Identity Cards were issued to all persons on the Register. The following information was entered on the Register:

·         Names

·         Sex

·         Age

·         Occupation

·         Residence

·         Marriage status

·         Membership of the armed forces.

The Act of 1939 stated that the police had power to require the production of the National Identity Card and created a number of offences.

This law was justified by three reasons:

·         The need for central planning in a national emergency.

·         The likelihood of rationing being introduced.

·         The need for detailed statistics about the population.

The Act was introduced without any real scrutiny by Parliament. It gave very wide powers to the police, which did not cease at the end of the war. Identity cards were not abolished until 1952.

Aneurin Bevan was reported to have commented that he believed that the requirement of an internal passport was more objectionable than an external passport, and that citizens ought to be allowed to move about freely without running the risk of being accosted by a policeman or anyone else, and asked to produce proof of identity.

 


London Container (Tilbury) Ltd fined after worker suffers life-changing injuries

Container terminal fined £180,000 following serious injuries to worker

Health and Safety Executive v London Container (Tilbury) Ltd (2017) Basildon Crown Court, February 20

Statutory reference: ss. 2 and 3 of the Health and Safety at Work, etc., Act 1974 (HSWA).

London Container (Tilbury) Ltd (LCT) has been fined after a worker suffered life-changing injuries when the vehicle which he was driving overturned.

The facts

·        In November 2014 a worker at Tilbury Docks was driving a straddle carrier, used for stacking and moving freight shipping containers. He drove into an excavation because he could not see road cones, flashing lights or ticker tape around the excavation. It was dark and the weather conditions were poor.

·        The vehicle overturned and the worker suffered life-changing injuries including serious head wounds.

·        The precautions taken by LCT were wholly inadequate. All the straddle carriers working near the excavation had been exposed to the risk ofr several days.

The decision

LCT was fined £180,000 plus £73,000 costs for breaches of ss. 2 and 3, HSWA, for failing to ensure the health and safety of employees and non-employees.  


Stately home butler crushed to death by lift: £266,000 fine for employer

Lift crushing death: stately home operator fined £266,000

Health and Safety Executive v Burghley House Preservation Trust Ltd (2017) Peterborough Crown Court, February 27

Statutory reference: S.2 of the Health and Safety at Work, etc., Act 1974 (HSWA).

Burghley House Preservation Trust Ltd, the operator of the Burghley House stately home in Stamford, has been fined after an employee was crushed to death by a lift.

The facts

·        Arthur Mellar, a butler, was killed in July 2014 when a luggage lift descended on him.

·        The luggage lift was being used to lift guests’ bags from the ground to the second floor of the house. A bag became jammed and the lift stopped. Mellar tried to free the bag when the lift descended and crushed him, causing fatal injuries.

·        The lift had not been fitted with a slack rope detector. An assessment of the lift would have shown that the lift should have been thoroughly examined and tested. A competent lift engineer would have identified defects with the lift.

The decision

The company was fined £266,000 plus £16,800 costs under s.2 HSWA for failing to ensure the health and safety of employees.


MOD agency driver killed: no prosecution: Crown Censure: rule of law? You speak in jest

Driver death: Ministry of Defence Crown Censure

Statutory reference: ss. 2 and 3 of the Health and Safety at Work, etc., Act 1974 (HSWA).

The MOD has been issued with a Crown Censure following the death of an agency driver.

The facts

·        In November 2013 Graham Wood, an agency driver working for the MOD, was crushed between a reversing lorry and a stationary vehicle as he was delivering goods to a holding area in Warwickshire. He suffered fatal injuries.

·        The MOD had failed to assess the risks created by the movement of large vehicles. It had failed to ensure that a safe system of work was in place to identify and control the risks presented by those movements.

The decision

The HSE issued the MOD with a Crown Censure in relation to breaches of ss. 2 and 3, HSWA, for failing to ensure the health and safety of employees and non-employees.

The MOD cannot be prosecuted in the same way as non-government bodies. A Crown Censure is the maximum sanction which the HSE can bring against a government body. There is no financial penalty associated with a Crown Censure. Once a Censure is accepted, it is an official record of failings to meet legal standards.

 

Driver death: Ministry of Defence Crown Censure [remove for online]

Statutory reference: ss. 2 and 3 of the Health and Safety at Work, etc., Act 1974 (HSWA).

The MOD has been issued with a Crown Censure following the death of an agency driver.

The facts

·        In November 2013 Graham Wood, an agency driver working for the MOD, was crushed between a reversing lorry and a stationary vehicle as he was delivering goods to a holding area in Warwickshire. He suffered fatal injuries.

·        The MOD had failed to assess the risks created by the movement of large vehicles. It had failed to ensure that a safe system of work was in place to identify and control the risks presented by those movements.

The decision

The HSE issued the MOD with a Crown Censure in relation to breaches of ss. 2 and 3, HSWA, for failing to ensure the health and safety of employees and non-employees.

The MOD cannot be prosecuted in the same way as non-government bodies. A Crown Censure is the maximum sanction which the HSE can bring against a government body. There is no financial penalty associated with a Crown Censure. Once a Censure is accepted, it is an official record of failings to meet legal standards.

 VV


Chambers party (not ours) inappropriate conduct towards females: Bar Standards Board appeal dismissed

Bar Standards Board v Howd; Howd v Bar Standards Board [2017] EWHC 210 (Admin)

Background

A Disciplinary Tribunal of the Council of the Inns of Court (“the Tribunal”) was convened on 4 and 5 May 2016 to hear charges of professional misconduct brought against barrister, Stephen Howd (‘H’). The charges arose from complaints made about H’s inappropriate behaviour towards female colleagues and staff at a party held at his former chambers in July 2014. Two of the complainants were barristers; one was an apprentice administrative assistant and the other a junior clerk.

Out of the eight charges of professional misconduct, six of the charges were found proved and two were dismissed. By way of sanction, the Tribunal imposed a fine of £1,800 and H was also ordered to pay £400 towards witness expenses.

 

The Appeals

H appealed the Tribunal’s findings on six grounds, which are set out in greater detail below. The Bar Standards Board (BSB) also raised an appeal in relation to the decision on sanction, submitting that a more severe sanction should have been imposed by the Tribunal.

The appeal was heard before Mrs Justice Lang on 10 November 2016 and 20 January 2017.

 

Ground 1: The Tribunal misinterpreted and failed to give due regard to the medical evidence concerning H’s medical condition

Medical evidence relating to H’s medical condition was made available to the Tribunal. Having considered this, the Tribunal came to the conclusion that his medical condition did not make a significant contribution to his conduct and that this was in fact caused by his excessive consumption of alcohol.

Mrs Justice Lang confirmed that she had the benefit of seeing more comprehensive medical evidence regarding H’s medical condition than the original Tribunal, as further evidence was adduced at the appeal. In her judgment, the medical evidence established that on the balance of probabilities, H’s inappropriate and at times offensive behaviour was a consequence of his medical condition. It also established that his excessive consumption of alcohol was very likely to have been a response to the onset of his medical condition and it probably had the consequence of exacerbating his lack of inhibition and loss of judgment on the occasion in question. Mrs Justice Lang was satisfied that the Tribunal’s conclusions in respect of H’s medical condition were mistaken and that they had misunderstood and misapplied the medical evidence.

 

Ground 2: The Tribunal erred in finding the evidence of Witness B reliable, as her credibility was fundamentally undermined by other witnesses

H submitted that the Tribunal wrongly found Witness B’s evidence reliable. When making its decision, the Tribunal concluded that weighing the evidence as a whole, Witness B’s account of the night in question was true and they found her to be a careful and credible witness, notwithstanding the inconsistency with other evidence.

Mrs Justice Lang concluded that because the Tribunal had expressly addressed their minds to the issues, H’s challenge on this ground must fail. Mrs Justice Lang stated that the Tribunal made its decision based on their assessment of Witness B when she gave evidence before them and they were therefore able to assess her credibility in a way which she could not. She could not therefore interfere with the Tribunal’s conclusions.

 

Ground 3: The Tribunal erred in concluding that Core Duty 3 could be engaged at all during a Chambers party, on a proper interpretation of the Code of Conduct and the BSB Handbook

Core Duty 3 in the Code of Conduct set out in the BSB Standards Handbook (“the Handbook”) states ‘You must act with honesty and integrity’. H submitted that Core Duty 3 applied to him in his capacity as a “practising barrister”, defined solely as someone who supplies legal services.

Mrs Justice Lang rejected Mr H’s submission. In her judgment, the Tribunal was correct to conclude that a marketing event directed at professional clients was a business related activity of a practising barrister.

 

Ground 4: The Tribunal misconstrued the meaning of “integrity” in Core Duty 3, and so wrongly concluded that the proved facts demonstrated a breach of this duty

H submitted that the Tribunal misconstrued the meaning of “integrity” in Core Duty 3, as it was intended to cover professional integrity and not personal/sexual morality. It was also submitted that the term took its colour from “honesty”, an analogous submission having been accepted in the BSB v Sivanadan PC 2009/0280/D3 in relation to an earlier iteration of the BSB’s code.

Mrs Justice Lang agreed with Mr H’s construction of Core Duty 3 and that “integrity” does take its colour from the term “honesty”. She stated that it connotes probity and adherence to ethical standards, not inappropriate and offensive social or sexual behaviour. Mrs Justice Lang concluded that H’s behaviour was not appropriately charged as a breach of Core Duty 3, because although his behaviour was inappropriate and at times offensive, it did not demonstrate a lack of honesty or integrity. The charges should therefore have been dismissed.

 

Ground 5: The Tribunal erred in concluding that Core Duty 5 had been breached, as the proved facts could only have adversely affected his personal reputation, if at all, not his professional reputation

Core Duty 5 in the Handbook states ‘You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession’. H submitted that the proved facts, which had nothing to do with his practice as a barrister, could only have adversely affected his personal reputation, not his professional reputation. In addition, he submitted they were not likely to diminish the public’s trust and confidence in his capacity as a barrister or the standing of the profession.

Mrs Justice Lang stated that in principle she thought Mr H’s conduct could be capable of diminishing public trust and confidence since it occurred in the course of his professional life. However, if the public were aware that his behaviour was as a consequence of a medical condition, as discussed above, it would be unlikely to diminish their trust and confidence in the profession or H personally, provided he was fit to practise.

 

Ground 6: The Tribunal erred in concluding that the allegations against him, even if found proved, were capable of amounting to “professional misconduct”.

Mrs Justice Lang stated that in light of H’s medical condition, his behaviour was plainly “not reprehensible, morally culpable or disgraceful as it was caused by factors beyond his control”. In her judgment therefore the threshold for a finding of serious professional misconduct was not met.

In light of Mrs Justice Lang’s decision in respect of H’s appeal, the BSB’s appeal in relation to sanction was dismissed.