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Archive for May, 2017

Nottingham City Council fined after apprentice injured

Lawnmower hand injuries: local authority fined £33,000

Health and Safety Executive v Nottingham City Council (2017) Nottingham Crown Court. May 25

Statutory reference: s.2 of the Health and Safety at Work, etc, Act 1974 (HSWA); regulation 9 of the Provision and Use of Work Equipment Regulations 1998 (PUWER) and regulations 3 and 5 of the Management of Health and Safety at Work Regulations 1999 (MHSWR).

Nottingham City Council has been fined following an incident in which an apprentice suffered serious hand injuries.

The facts

·        In August 2014 an apprentice employed by the council was using a lawnmower at a primary school in Nottingham. The machine became blocked and he tried to clear the blockage. his hand came into contact with the machine’s rotating blade.

·        His right index finger was severed and he suffered serious lacerations of other fingers on his right hand.

·        The council had removed some of the manufacturer’s safety measures and replaced them with its own, which were not to the required safety standard.

·        The council had failed to suitably control the risks posed by the machinery in use and had not fully considered training needs of workers to operate it in a safe and appropriate manner. There had also been failures in levels of supervision of apprentices.

The decision

Nottingham City Council was fined £33,000 plus £12,000 costs for breaches of s.2 HSWA, regulation 9 of PUWER and regulations 3 and 5 of MHSWR.


Homelessness not a matter of necessity: Lord Denning in London Borough of Southwark v Williams

Hunger and homelessness: London Borough of Southwark v Williams (1971)

Homeless families in London squatted in empty houses in Southwark. The local authority applied for immediate possession of the houses. The families pleaded necessity. The court (Lord Denning) made the following points:

  • Homelessness did not amount to necessity.
  • The doctrine of necessity was confined within very narrow limits, for example urgent and transient situations of great and imminent danger to life in which the law permitted some encroachment on private property.
  • If hunger were to be allowed as an excuse for stealing, it would open a way through which all kinds of disorder and lawlessness would pass. If homelessness were admitted as a defence to trespass, no-one’s home could be safe. The courts must, for the sake of law and order, take a firm stand. They must refuse to admit the pleas of necessity to the hungry and the homeless and trust that their distress will be relieved by the charitable and the good.

Thus the rights of the homeless depend, as a matter of law, on charity.


Four workers killed on excavation site: companies and director prosecuted

Multiple deaths on excavation site: two companies and director sentenced

Health and Safety Executive v Claxton Engineering Services Ltd, Encompass Project Management Ltd and David Groucott (2017) Central Criminal Court, May 25

Statutory reference: ss.3 and 37 of the Health and Safety at Work, etc., Act 1974 (HSWA) and regulation 9 of the Construction (Design and Management Regulations 2007 (CDM).

Two companies and a director have been sentence following the deaths of four workers at an excavation site.

The facts

·        In January 2011 workers were constructing a large steel structure as part of the foundations of a Pressure Test Facility at Claxton’s site in Great Yarmouth.

·        The structure weighed several tonnes. It collapsed on top of the workers, causing fatal crush injuries to Adam Taylor, Peter Johnson, Thomas Hazelton and Daniel Hazelton.

·        The decease were working for Hazegood Construction. Daniel Hazelton was an employee and the others were self-employed contractors. Encompass was the principal contractor and Hazegood was acting as contractor.

·        There were serious flaws in the planning, management and monitoring of the project.

The decision

·        Claxton Engineering Services was fined £500,000 plus £100,000 costs under regulation 9, CDM.

·        Encompass Project Management was fined £200,000 plus £50,000 costs for a breach of s.3, HSWA.

·        David Groucott, a director of Encompass, was sentenced to seven and a half months’ imprisonment, suspended for two years, 200 hours of unpaid community service and £7500 costs, under s.37, HSWA.

An HSE inspector commented that this had been a long term, large scale and complex engineering project which needed to be planned, designed and managed effectively.  


Construction site death from reversing vehicle: two companies fined £20,000 each

Reversing vehicle death: £20,000 fine

Health and Safety Executive v Cavanna Homes (SW) Ltd and Steve Hoskin Construction Ltd (2017) Exeter Crown Court, May 12

Statutory reference: regulation 36, Construction (Design and Management) Regulations 2007 (CDM) and s.2 of the Health and Safety at Work, etc., Act 19745 (HSWA).

Cavanna Homes (SW) Ltd and Steve Hoskin Construction Ltd have been fined following the death of a worker who was struck by a reversing vehicle.

The facts

·        In June 2013 John Small, an employee of Steve Hoskin Construction Ltd was working for the company at a construction site in Dawlish, Devon. He was walking alongside a reversing telescopic material handler when it crushed him, causing multiple fatal injuries.

·        Cavanna Homes, the principal contractor for the site, failed to ensure that the site was organised to enable vehicles and pedestrians to move safely.

·        Steve Hoskin Construction Ltd had not fully considered the risks to their employees at the site.

The decision

·        Cavanna Homes Ltd was fined £20,000 plus £20,000 costs for a bteach of regulation 36, CDM.

·        Steve Hoskin Construction Ltd was fined £20,000 plus £20,000 costs under s.2, HSWA, for failing to ensure the health and safety of employees.

 

 


Death of worker: employer fined £475,000

Death of worker: £475,000 fine

Health and Safety Executive v ATE Truck and Trailer Sales Ltd (2017) Wolverhampton Crown Court, May 16

Statutory reference: regulation 3of the Management of Health and Safety at Work Regulations 1999 (MHSWR)

ATE Truck and Trailer Sales Ltd, a company which buys, refurbishes and sells heavy goods vehicles and trailers, has been following the death of a worker.

The facts

·        In February 2013 William Price was dismantling a trailer at the company’s site.

·        He was struck by the roof of the trailer and suffered fatal head injuries.

·        The company had an established method in place for the work. But it had failed to properly consider the risks involved in the work and had not provided the deceased with information as to his safety when stripping down trailers.

The decision

The company was fined £475,000 plus £20,000 under regulation 3, MHSWR.


Farm death: badly maintained machinery: Penhill farm and owner fined

Farm death: £20,000 fine

Health and Safety Executive v Penhill Farm Ltd and Selwyn Andrew Thomas Richards (2017) Swansea Crown Court, May 15

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

Penhill Farm Ltd and its owner have been fined after a contractor was crushed by a reversing farm machine.

The facts

·        In July 2014 a contractor, engaged to spread fertilizer on fields at the farm in Camarthenshire. He was struck by a reversing telehandler in the farmyard. He suffered fatal crush injuries.

·        The farm had failed to maintain the machinery. It was in poor condition with visibility compromised  by dirty and badly positioned mirrors and dirty glass in the cab.

The decision

·        Penhill Farm Ltd was fined £20,000 plus £10,000 costs under s.3, HSWA.

·        The farm owner was convicted of an offence but no separate penalty was imposed.

 


Age discrimination:allocation of resources:new Court of Appeal decision

AGE DISCRIMINATION

Allocation of resources

Proportionate means of achieving legitimate aim

Case  Chief Constable of West Midlands Police and Others v Harrod and Others (2017) Morning Star, July 19, Court of Appeal

Facts Five police forces decided to reduce staff numbers because of budget cuts. The forces were empowered, in the general interests of efficiency, to retire officers who had qualified for two-thirds pension. Officers had to have served for 30 years to qualify and the minimum age of entry was 18. The retirement therefore disadvantaged anyone over the age of 48. A number of officers complained of indirect age discrimination. The ET upheld the complaints on the basis that that there were other methods of achieving the employer’s aim. The EAT reversed this decision and the officers appealed to the Court of Appeal.

Decision      1. The appeal was dismissed.

2. The selection process undoubtedly gave rise to prima facie age discrimination. The question was whether it was a proportionate means of achieving a legitimate aim.

3. The function of tribunals was not to challenge an employer’s legitimate decision about the allocation of resources and whether they represent a genuine “need” but rather to balance it against the impact complained of.

4. The decision to confine retirement to officers with more than 30 years’ service could not be criticised because no other method of selection was lawful under the Police Pension Regulations.


Chainsaw laceration: Growing Green Ltd fined £120,000

Chainsaw lacerations: £120,000 fine

Health and Safety Executive v Growing Green Ltd (2017) Basildon magistrates’ court, May 8

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

Growing Green Ltd, a salad growing company, has been fined after a worker suffered serious injuries from a chainsaw.

The facts

·        Two employees of the company were felling trees, using a chainsaw. One worker held and supported branches while the other cut through them with the chainsaw. One man’s arm landed on top of the moving chainsaw.

·        The worker suffered deep lacerations to his arm.

·        Neither worker had been trained to operate the chainsaw. They were not wearing personal protective equipment. There was no supervision and no proper planning had been put in place.

The decision

The company was fined £120,000 plus £1800 costs plus £170 victim surcharge.


Race discrimination: stereotypical assumptions: Chief Constable of Kent Constabulary v Bowler

RACE DISCRIMINATION

Stereotypical assumptions

Unreasonable conduct

Case  Chief Constable of Kent Constabulary v Bowler (2017) Morning Star, May 5, EAT

Facts B, a police officer with 25 years service, complained of direct race discrimination because his attempts at promotion were thwarted. He brought a grievance. This was not upheld. B claimed that the grievance, and a subsequent appeal, had not been treated seriously. He also complained of victimisation and made six allegations of less favourable treatment on grounds of race. The ET found that the grievance officer’s lackadaisical approach indicated a stereotypical view that B was over-sensitive because of his race and he would not have treated another grievance in a similar offhand manner. There was a prima facie case of less favourable treatment on grounds of race. The employer appealed to the EAT.

Decision      1. The appeal was allowed and the matter remitted back to the ET for reconsideration.

2.   Although unlawful direct discrimination can occur when a person makes stereotypical assumptions, tribunals cannot rely on unproven assertions.

3. There must be some evidence that a discriminator held a stereotypical assumption about race and that this operated on their mind when treating a complainant in the way alleged.

4. The ET had made a leap from a finding that the officer handling the grievance acted incompetently and had a lackadaisical attitude, to a conclusion that this indicated a stereotypical view.

5. In the absence of adequate material from which this inference could be drawn, the tribunal was not entitled to conclude that a prima facie case of less favourable treatment on race grounds had been established by B.


Religious discrimination: Islamc headscarf: customer complaint:dismissal

RELIGIOUS DISCRIMINATION

Islamic headscarf

Customer complaint

Case  Bougnaoui v Micropole SA (2017) Morning Star, May 12, European Court of Justice

Facts B was warned by her employer that it would be problematic if she wore an  Islamic headscarf when ding customer-facing work. She continued to wear a headscarf and a customer complained. She was told to stop wearing the headscarf. She refused and was dismissed. She complained of religious discrimination. An internal rule of the company prohibited employees from wearing any visible sign of political, philosophical or religious beliefs. A French labour tribunal rejected her claim. The Court of Appeal upheld that decision. B appealed to the Court of Cassation which referred the matter to the ECJ.

Decision      1. B’s dismissal had not been caused by her refusal to comply with the company’s internal rule.

2. An employer who wants to take account of the wishes of a customer not to have the services of that employer provided by a worker wearing an Islamic headscarf could not be considered a genuine and determining occupational requirement.