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Archive for August, 2017

Wilful and flagrant disregard of health and safety: director jailed

 Company and director sentenced for continuing safety failings

Health and Safety Executive v Crofty Point Metals Ltd and Robert Michael Collis (2017) Swansea Crown Court, August 23

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

The facts

·        In July 2013 the HSE was informed of a fire and explosion of used gas cylinders at Crofty Point Metals Ltd’s site in Swansea.

·        This had resulted from deliberate arson and was the latest in a series of incidents.

·        The HSE investigation involved a number of visits to the sites. Collis was the owner of the company and was ultimately responsible, The visits involved verbal and written advice relating to security fencing to prevent access to the site, maintenance of an excavator to ensure that no persons were put at risk and safety inspections of lifting equipment on safety vehicles used on the public highway.

·         A number of enforcement notices were served on Collis and the company over a three-year period.

·        In December 2016 HSE inspectors found the site unattended with the gate left open. It was full of waste and debris including gas cylinders. There was no clear area on site. The enforcement notices had not been complied with.

The decision

·        The company was fined £30,00 under ss. 2 and 3 of HSWA.

·        Collis was sentenced to 12 months imprisonment for the same offences and for environmental offences. He was disqualified from being a director for seven years.

An HSE inspector commented after the case that it was among the minority of HSE investigations which was met with a consistent, wilful and flagrant disregard for the law, the environment, workers and members of the public.


Workplace hand injuries: company fined £300,000

Hand crush injuries: £300,000 fine

Health and Safety Executive v Heathcoat Fabrics Ltd (2017) Exeter magistrates’ court, August 22

Statutory reference: regulation 11of the Provision and Use of Work Equipment Regulations 1998 (PUWER).

The facts

·        In August 2014 Anthony Seward, an employee of Heathcoat Fabrics, a textile company, was  preparing a piece of machinery for the next shift when his hand was drawn into rotating rollers. He suffered severe crush injuries to his hand and four of his fingers were partially amputated.

·        The company had failed to safeguard dangerous machinery. It had provided a guard but when it ceased to function it was not repaired but instead was replaced with an emergency stop wire.

·        The wire was kept in place for more than two years and was replaced th day after the incident.

The decision

The company was fined £300,000 plus £2800 costs under regulation 11 of PUWER.    


Bristol company fined £145,000 for construction site safety failures

Health and safety failures on construction site: £145,000 fine

Health and Safety Executive v Ikon Construction Ltd (2017) North Somerset magistrates’ court, August 24

Statutory reference: section 33 of the Health and Safety at Work, etc., Act 1974 (HSWA) and regulation 13 of the Construction (Design and Management) Regulations 2015 (CDM).

The facts

·        The company failed to ensure that the construction phase of nine timber frame houses was properly planned, managed and monitored.

·        The company had been given previous advice following earlier action by the HSE.

·        A member of the public complained to the HSE. The HSE identified a number of health and safety risks including risks related to work at height, plant, temporary works and spoil piles.

The decision

The company was fined £145,000 plus £2100 costs under section 33 of HSWA and regulation 13 of CDM.


Farm worker entangled in netting: £30,000 fine for employer

Worker entangled in netting: head injury: £30,000 fine

Health and Safety Executive v M Baker Produce Ltd (2017) Lincoln magistrates’ court, August 9

Statutory reference: regulations 11 and 16 of the Provision and Use of Work Equipment Regulations 1998 (PUWER) and regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR).

The facts

·         In June 2015 a farm worker was working on a farm near Boston, Lincolnshire. Netting was being removed from a crop on the ground using a tractor with a net winding machine.

·        The netting caught the worker’s glove. He was entangled in the netting and drawn onto the machine’s rotating reel and suffered head injuries and concussion.

·        M Baker Produce Ltd, a vegetable growing company, had failed to properly plan the work and had not defined a safe system of work.

·        The machine was not fitted with a trip device to stop the rotation of the reel. There was no emergency stop device which could be reached from ground level.

The decision

·        The company was fined £30,000 plus £6800 costs under regulation 11 of PUWER for failing to ensure that measures were taken to stop movement of the machine before anyone entered a danger zone; regulation 16 of PUWER for failing to provide a readily accessible emergency stop, and under regulation 3, MHSWR, for failing to carry out a suitable and sufficient risk assessment.   


Gas cylinder explosion: worker seriously injured

Exploding gas cylinder: £40,000 fine

Health and Safety Executive v J&R Gases Ltd (2017) Blackpool magistrates’ court, August 21.

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

The facts

·        An employee of J&R Gases Ltd was filling mixed-gas cylinders by connecting the cylinders to a high-pressure filling system. The cylinders were for use for dispensing drinks.

·        A cylinder exploded. The worker suffered life-changing leg injuries.

·        The work had not been properly planned. There had been a lack of thorough pre-fill checks of the cylinders.

·        The worker had not received adequate training or instruction in how to carry out pre-fill checks.

The decision

The company was fined £40,000 plus £5900 costs under s.2 of HSWA for failing to ensure the health and safety of employees.

An HSE inspector commented after the case that robust pre-fill checks of high pressure cylinders should be carried out before they are filled and workers must be informed of this.  


Paper coating machine fire: worker seriously injured

Fire on paper coating machine: £16,000 fine

Health and Safety Executive v Olympic Varnish Company (2017) Portsmouth magistrates’ court, August 17

Statutory reference: regulation 6 of the Dangerous Substances and Explosive Atmospheres Regulations 2002 (DSEAR).

The facts

·        In July 2015 an employee of Olympic Varnish Company, a paper coating company, used a highly-flammable liquid to clean rollers on a coating machine.

·        The liquid ignited and the worker suffered severe burn injuries.

·        The company had not ensured that risks from the use of highly flammable liquids had been eliminated or reduced.

The decision

The company was fined £16,000 plus £4500 costs under regulation 6 of DSEAR.

An HSE inspector commented after the case that if a suitable safe system of work had been in place before the incident, the serious injuries suffered by the employee could have been prevented.


ACAS Early Conciliation Certificate: names of employers

EMPLOYMENT TRIBUNALS

Early conciliation certificate

Case  Savage v JC 1991 LLP and others (2017) Morning Star, August 18

Facts S was dismissed for alleged gross misconduct. During her employment, the name of her employer changed several times without her knowledge. She complained of unfair dismissal and entered three names for her former employer on the ET1. Her early conciliation certificate only related to two names. The ET rejected her claim against the third name on the ET1 on the basis that she had not obtained an EC certificate in relation to the third name. She appealed on the basis that the third name was not required.

Decision      1. The appeal was allowed.

2. The two EC certificates applied to three employers because two were the same entity.

3. Noting the uncertainty as to the name of S’s former employer, caused in large part by the former employer, S had tried to deal with that uncertainty by naming three respondents.


Another workplace roof death fall: two companies fined

Fall death: two companies fined

Health and Safety Executive v Quality 1st Building Services Ltd and EP Abley Ltd (2017) Bournemouth Crown Court, August 14

Statutory reference: s. 3 of the Health and Safety at Work, etc., Act 1974 (HSWA) and regulation 4 of the Work at Height Regulations 2015 (WAH)

The facts

·        A subcontractor engaged by Quality 1st Building Services Ltd was working on the roof of a property in Ringwood, Hampshire, in July 2012.

·        He fell seven metres to the ground and suffered fatal head injuries.

·        Neither Quality, nor EP Abley, the principal contractor, had ensured that the roof work had the correct edge protection to prevent falls from height.

·        Both companies had failed to clearly communicate and co-ordinate work on the site in a safe and appropriate way.

The decision

Quality 1st Building Services Ltd was fined £40,000 plus £17,500 costs under regulation 4, WAH.

EP Abley Ltd was fined £26,600 plus £22,500 costs for a breach of s.3 of HSWA.

An HSE inspector commented after the case that it highlighted the importance of properly planning work at height to avoid such tragic incidents. The death could easily have been prevented if both companies had taken safety measures before any work at height had started.


Farm boy leg amputation in vehicle incident

Farm boy leg amputation: £10,000 fine

Crown Office and Procurator Fiscal Service v J Kelly and Sons (2017) Dumfries Sheriff Court, August 15

Statutory reference: regulation 3 of the Prevention of Accidents to Children in Agriculture Regulations 1998 (PACAR)

The facts

·        In October 2015 an eight-year old boy was sitting on the back of an all-terrain vehicle on his parents’ farm in Kirkbean, Scotland. The vehicle was being used to cut grass.

·        The boy fell from the vehicle and suffered serious leg injuries. The leg was amputated below the knee.

·        The driver of the vehicle had not been trained in its use and the company which operated the farm had allowed the boy to ride on it on previous occasions.

The decision

J Kelly and Sons, the company which operated the farm, was fined £10,000 for a breach of PACAR.

An HSE inspector commented after the case that the company had taken no action to ensure that the boy was kept separate from the farm’s business activities. Legislation prohibiting children under 13 from riding on machines such as ATVs protects them from these dangers. Sadly, all too often this is ignored.   


Disability discrimination: dyslexia: harassment: covert surveillance

DISABILITY DISCRIMINATION

Harassment

Covert surveillance

Case  Peninsula Business Services Ltd v Baker [2017] ICR 714, EAT

Facts B was employed by PBS to provide legal advice and tribunal representation. He told PBS that he suffered from dyslexia, that his condition had worsened, causing him longer to do his work, and he requested that reasonable adjustments should be made. The director of legal services was suspicious and instructed agents to carry out covert surveillance. When B was told about this, he went on sick leave. He complained of harassment and victimisation. The employment tribunal found that the surveillance did not amount to harassment because B did not know about it. But telling B about the surveillance was harassment because it created a hostile, degrading, humiliating or offensive working environment. The complaint of victimisation was upheld: the requests for reasonable adjustments were protected acts, the surveillance was a detriment and B had been placed under surveillance because of the protected acts. There was a sufficient causal connection between the protected act operating on the mind of the employer as principal and the detriment represented by the conduct of its agents carrying out the surveillance. PBS appealed to the EAT.

Decision      1. The appeal was allowed.

2. Where the protected characteristic relied on was disability, it was difficult to conclude that the unwanted conduct related to a disability claimed but not established by the claimant. Further, a person who falsely claimed disability could not make a claim of discrimination but could make a claim of harassment. That could not have been Parliament’s intention. B had not proved disability.

3. To support a finding of victimisation, the claimant had to identify a specific actual or believed protected act and to show that the employer knew about that act and had imposed a detriment because of it. The tribunal had not specifically found that the requests for reasonable adjustment were the reason for the surveillance and had therefore erred in law.

4. Under the Equality Act 2010, a principal was liable for an act of an agent only if what the agent did was in itself discriminatory. As the agents did not know about the protected characteristic and were not motivated by it, they did not commit the tort of victimisation.