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Archive for September, 2017

Dangerous roof work in sight of health and safety managers

Dangerous roof work: suspended sentence for employer

Health and Safety Executive v Smith (2017) Leeds Crown Court, September 13

Statutory reference: regulation 6 of the Work at Height Regulations 2005 (WAHR)

The facts

·        In November 2015 Chris Smith, a roofing contractor, was engaged to carry out roof repairs to a guest house in Northallerton. Scaffolding was erected along the full length of the roof at the front of the property.

·        Because there was a conservatory at the back of the property, only a partial scaffold was erected. This left two-thirds of the rear roof edge unprotected.

·        Health and safety managers at North Yorkshire County Council could see the work from their office window. They had concerns about two workers on the roof where there were inadequate fall measures in place. Two workers were at risk of falling seven metres from the roof.

The decision

Smith was sentenced to eight months imprisonment, suspended for two years. He was ordered to carry out 200 hours community service and to pay £5800 costs. 

An HSE inspector commented after the case that work at height is a high-risk activity which accounts for a high proportion of workplace serious injuries and fatalities each year.


Workplace death of 19 year old: employer fined £450,000

Forklift truck death: £450,000 fine

Health and Safety Executive v Vinyl Compound Ltd (2017) Manchester Crown Court, September 4

Statutory reference: s.2 of the Health and Safety at Work, etc, Act 1974 (HSWA) and regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWA).

The facts

·        In February 2015 Ben Pallier-Singleton, a 19-year old employee of Vinyl Compound Ltd, was working at the company’s site in Chinley, Derbyshire.

·        He drove a forklift truck at night down a sloping roadway. The truck overturned and he suffered fatal injuries.

·        The deceased had not been adequately trained, nor was he wearing a seatbelt.

·        The company had not informed workers of the speed limit on site, had not put measures in place to control the speed of vehicles and failed to have adequate lighting and edge protection to avoid the risk of forklift trucks overturning.

The decision

The company was fined £450,000 plus £71,000 costs under s.2 of HSWA and regulation 3 of MHSWA.    


Carbon monoxide poisoning: company and director fined

Carbon monoxide poisoning: company and director fined

Health and Safety Executive v SJW Joinery & Building Ltd and Simon Wiley (2017) Manchester Crown Court, September 6

Statutory reference: regulation 8 of the Gas Safety (Installation and Use) Regulations 1998 (GSIR)

The facts

·        SJW Joinery & Building Ltd and Simon Wiley, the company’s director, were contracted to carry out building work at a house in Stalybridge.

·        A single-storey extension was built around part of the property. The roof of the extension was built over the existing flue of a gas boiler. This resulted in the flue venting into an enclosed space.

·        The combustion products of the boiler, including carbon monoxide, built up in the extension and the house. Four people were hospitalised with carbon monoxide poisoning.

·        Building plans related to the work showed that the risk of carbon monoxide poisoning had not been considered during the planning stage. The work was carried out without the risks having been considered.

The decision

The company was fined £6000 plus £4200 costs under regulation 8 of GSIR.

Wiley was sentenced to 200 hours community service plus £4200 costs for the same offence. 


Care home death: 89 year old woman dropped from hoist: Chilton Care Homes Ltd fined

Disability discrimination

The Disability Discrimination Act (DDA) is a good example of the modern mystification of a new area of law. The aim of the Act (now replaced with minor amendments by the Equality Act 2010) appears, at first sight, to be useful. It is a clear example of good, useful law in that its purpose is to protect the weak and vulnerable. But I defy you to find a lawyer who can tell you, off the top of his head, which sections of the Act were ever in force. Then we come on to the contents of the Act, which were so opaque and convoluted that non-lawyers and lawyers alike had extreme, almost insuperable, difficulty in grasping their meaning.

There are an estimated 6.5 million people in the United Kingdom who may come within the meaning of “disabled”. There is evidence of widespread discrimination against such people. If ever there was a need for a clear set of rules, it is in the context of protecting the rights of the disabled.

A disabled person who took the view that he or she had been discriminated against, and who sought to discover what the law was, faced a study of at least the following sources:

  • The body of the Disability Discrimination Act 1995.
  • Complex rules set out in the Schedules to the Act.
  • Disability Discrimination (Employment) Regulations 1996.
  • Disability Discrimination (Meaning of Disability) Regulations 1996.
  • Disability Discrimination (Exemption for Small Employers) Order 1998.
  • A mass of commencement orders which stated the date at which different parts of the Act came into force.
  • A Code of Practice issued by the Department of Education and Employment.
  • Guidance on matters to be taken into account in determining questions relating to the definition of disability.
  • An increasing body of case law.

Thus a ten-year old body of law became fragmented and less and less accessible to disabled people. The parliamentary draftspersons responsible for the DDA created what can only be described as a monster – a set of rules which placed access to the law outside the reach of non-legally qualified disabled persons.

The result of an overview of disability discrimination law is the depressing conclusion that it is not realistic for disabled persons who are not lawyers to bring their own proceedings. Even highly-trained lawyers find the law difficult to grasp. A totally new area of law which should have provided a rare opportunity to demystify the rules has been wasted. The meaning of “disability” should not be a complex matter of law.

 

In a recent case, O’Hanlon v Commissioners for HM Revenue & Customs (2007) (a complex case dealing with the application of “reasonable adjustment” principles), Lord Justice Sedley said that the DDA in its amended form is not at all easy to follow. This is a particular misfortune in an Act which it ought to be possible for employees and managers to read, understand and implement without legal advice or litigation.

Harvey on Industrial Relations and Employment Law, the six-volume looseleaf leading text on employment law, has 50 pages of closely printed, closely argued text in Volume 2, in a section headed “People with disabilities”.

The editors of Harvey refer to “subtle and obscure legal difficulties” and describe the DDA legislation as an unusually complex piece of legislation which poses novel questions of interpretation.

A proper understanding of the DDA, according to the editors of Harvey, requires a close study of its structure and technical detail. A commonsense approach is simply not sufficient and, in many cases, is likely to be positively dangerous if taken as a guide to proper behaviour.

For example, it is not necessary to show that in a case when what is in issue is not direct discrimination but disability-related discrimination, that there is a comparator whose relevant circumstances are the same, or materially different.

The terminology of the disability discrimination legislation must be understood as having a variety of shades of meaning, for example “long-term”, “substantial” and “normal”.

Case law interpreting the legislation has added complexity. There are many EAT and Court of Appeal decisions of great complexity, for example those dealing with the concepts of reasonable adjustment and justification.

The incomprehensibility of disability discrimination law may itself be seen as a form of discrimination against the disabled.

The Equality Act 2010, which has been described by its proponents as a codification of the whole of English discrimination law, has not improved the accessibility of disability discrimination law. An opportunity to demystify the rules governing the position of some of the most vulnerable and deprived members of society has been lost.

Disabled persons who are non-lawyers, for whose protection the law of disability discrimination exists, are effectively prevented from understanding the rules. They are obliged to seek legal advice, often at ruinous cost, in order to understand their rights.


Hull workplace stepladder death fall: employer fined £1 million

Stepladder fall death: £1 million fine

Health and Safety Executive v Greencore Grocery Ltd (2017) Hull Crown Court, September 5

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

The facts

·        A self-employed electrical contractor was wiring a motor above a machine at the company’s bakery site in Hull in October 2013.

·        He was standing on a stepladder which the company had agreed to provide. He fell and suffered fatal injuries.

·        The company had failed to properly plan the activity from the beginning, including access arrangements for the installation of motors.

The decision

The company was fined £1 million plus £30,000 costs under s.3 of HSWA.

An HSE inspector commented after the case that falls from height remain one of the most common causes of work-related fatalities in Great Britain. The risks associated with working at height are well-known.


Workplace fall from height: worker paralysed

Fall from height: worker paralysed: £26,000 fine

Health and Safety Executive v Mager Homes Ltd (2017) Lincoln magistrates’ court, August 25

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

The facts

·        In December 2016 Mager Homes Ltd was contracted to complete a house build in Grimsby.

·        A subcontracted joiner was working on the first floor level, installing joists and flooring. As he was laying a floorboard he stepped back, missed his footing and fell through a gap in the joists to the ground below.

·        The worker suffered fractured vertebrae. He is paralysed from the chest down.

·        The company had failed to provide workers with an adequate working platform. It had also failed to install edge protection or fall prevention to minimise the risks of falls.

The decision

The company was fined £26,000 plus £795 costs under s.3 of HSWA.