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Archive for July, 2018

Building collapse: property developer imprisoned

Building collapse: property developer imprisoned

Health and Safety Executive v Riaz Ahmad (2018) Manchester Crown Court, July 20

Statutory reference: ss. 2 and 3 of the Health and Safety at Work, etc., Act 1974 (HSWA) and regulation 19 of the Construction (Design and Management) Regulations 2015 (CDM).

Riaz Ahmad, a property developer, has been sentenced to imprisonment following the collapse of a building in Oldham

The facts

  • Ahmad appointed a group of workers with no experience in construction work to demolish a building.
  • In August 2017 an HSE inspector visited the site and found that most of the internal walls and roof supports had been removed. A prohibition notice was served and the major road next to the building was closed.
  • The roof and a wall of the building collapsed. This resulted in an emergency response during which other properties were evacuated.
  • The collapse could have been prevented if a principal contractor had been appointed and a suitable risk assessment carried out.
  • Ahmad did not plan the work. He appointed unskilled workers, neglected the risks of working at height and the stability of the building, failed to provide workers with basic welfare facilities and did not consider a number of health hazards.

The decision

Ahmad was sentenced to eight months imprisonment under ss. 2 and 3 of HSWA and regulation 19 of CDM, the sentences to run concurrently.

The Crown Court Judge is reported to have commented that this was a very serious case and it was nothing short of a miracle that only one person was injured.

 


Worker paralysed in roof fall: two companies fined £540,000

Worker paralysed in roof fall: two companies fined £540,000

Health and Safety Executive v Grangewood Builders Ltd and Trenchco Ltd (2018) Westminster magistrates’ court, July 11

Statutory reference: regulations 13 and 15 of the Construction (Design and Mangement) Regulations 2015 (CDM).

The facts

  • In November Marcel Paduraru, a Romanian construction worker was working on the refurbishment of a house near Buckingham Palace. He fell through a fragile plastic skylight into a basement three metres below. He suffered a fractured spine and permanent loss of the use of his legs.
  • Grangewood Builders Ltd was principal contractor for the project. It contracted Trenchco Ltd to carry out specialised demolition work.
  • Despite work being carries out close to the skylight, neither company had checked it for fragility nor taken action to prevent workers falling through it.
  • Neither company had ensured that the work was adequately planned. Safe systems of work were not identified and implemented.
  • Workers had been put at risk from construction activities at the site. The activities involved the demolition of a roof without edge protection, to manually handling wood beams weighing 200 kg.
  • The Trenchco supervisor controlling the work had no formal training related to supervision. Some workers, including the victim, had to rely on unofficial interpreters to pass on instructions and to tell them the contents of health and safety records.

The decision

  • Grangewood Builders Ltd was fined £270,000 plus £7000 costs under regulation 13 of CDM.
  • Trenchco Ltd was fined the same amount under regulation 15 of CDM.

Exposure to gas vapour: £160,000 fine

Exposure to gas vapour: £160,000 fine

Health and Safety Executive v Air Liquide (UK) Ltd (2018) Stoke Combined Court, July 6

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

Air Liquide (UK) Ltd, a specialty gas company, has been fined after a worker was overcome by vapour.

The facts

  • In February 2015 four members of the company’s Emergency Response Team were disposing of redundant gas bottles at the company’s site. The work involved two workers cutting the bottles open inside a box, using a hacksaw operated from the outside.
  • One worker, wearing protective equipment, was carrying a cut-open bottle when 50 ml of highly hazardous liquid leaked from it.
  • Vapour from the spillage drifted downwind and affected two unprotected workers. One of the workers collapsed.
  • The work system was inadequate. The Team had not been adequately informed or supervised, nor was the risk of explosion adequately controlled.

The decision

The company was fined £160,000 plus £22,000 costs under s.2 of HSWA.


Company director imprisoned after death of two workers

Company director imprisoned after death of two workers [remove for online]

Health and Safety Executive v Simon Thomerson (2018) Luton Crown Court, July 9

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

Simon Thomerson, the sole owner and director of Clearview Design and Construction Ltd, has been sentenced to imprisonment following the death of two workers in an explosion.

The facts

  • In October 2015 two workers were using thinners to remove dried carpet adhesive during the refurbishment of industrial units at Hoddesdon, Hertfordshire. The work had been contracted to Thomerson’s company.
  • The thinners were poured onto the floor. Vapour from the thinners ignited and exploded.
  • Two workers were killed after suffering 100 per cent burns.
  • Thomerson had given no serious consideration to the safe use of the thinners, despite warnings on the containers. The vapour had spread to a large area and had been ignited by one of a number of possible source.

The decision

Thomerson was sentenced to 8 months imprisonment under s.3 of HSWA. He was also ordered to pay a £170 victim surcharge.


Unfair dismissal: gross misconduct: pattern of conduct

UNFAIR DISMISSAL

Pattern of conduct

Case  Mbubaegbu v Homerton University Hospital NHS Foundation Trust UKEAT/0218/17/JOJ

Facts M, a black African consultant orthopaedic surgeon, was dismissed for gross misconduct. This followed an investigation into compliance issues in relation to rules and reporting requirements and patient safety. M brought claims of unfair dismissal, wrongful dismissal and race discrimination. The ET dismissed the claims. It ruled that the dismissal was fair, that there had been a breach of contract by M and no wrongful dismissal, and there were no grounds for race discrimination. M appealed to the EAT.

Decision      1. The appeal was dismissed.

  1. The employer’s reliance on a pattern of conduct giving rise to concerns about patient safety as a sufficient reason to dismiss was within the range of reasonable responses. There was no authority stating that there must be single act of gross misconduct to justify dismissal.
  2. The employer believed that M was incapable of change. Not providing an opportunity to improve did not make the dismissal unfair.
  3. The decision in relation to wrongful dismissal had been wrong because the ET had not made the necessary findings of fact to establish a repudiatory breach of conduct by M.

Race/religion discrimination: harassment

RACE DISCRIMINATION

Harassment

Case  Bakkali v Greater Manchester Buses (South) Ltd UKEAT/0716/17/RN

Facts B, a Moroccan Muslim bus driver, made comments about IS/Daesh which might be interpreted as favourable. A colleague asked him if he was still promoting IS/Daesh. This resulted in a confrontation during which B was frightening, aggressive and intimidating. B was dismissed. He complained of discrimination and harassment. The ET dismissed the complaints and B appealed to the EAT.

Decision      1. The appeal was dismissed.

  1. The comment made to B was unwanted conduct and had the effect of humiliating him. However, the ET was entitled to take into account the context in which the words had been spoken and to determine that the comment was not related to the religion, race or belief of B.

Contracts of employment: reality of position

CONTRACTS OF EMPLOYMENT

Reality of employment position

Case  Dynasystems for Trade and General Consulting v Mosley UKEAT/0091/17/BA

Facts The appeal concerned the identification of the correct respondent against which M, the claimant, should make claims of unfair and wrongful dismissal. He had signed a written contract of employment with Dynasystems for Trade and General Consulting Company (Jordan), a Jordanian company. He was also sent a letter, for passport reasons, from Dynasystems UK (D UK). The ET upheld complaints that the claimant had been unfairly and wrongfully dismissed by Dynasystems UK. The respondents appealed to the EAT.

Decision      1.The appeal was dismissed.

  1. The reality was that M was employed by Dynasystems UK.
  2. Dynasystems Jordan had no actual place of business.
  3. M was line managed by an employee of D UK. He received instructions from D UK, which had agreed his salary. Dynasystems Jordan had not been involved in M’s recruitment.

Contracts of employment: worker: self-employed cycle courier

CONTRACTS OF EMPLOYMENT

Worker

Case  Addison Lee v Gascoigne UKEAT/0289/17

Facts G was a cycle courier for AL. The ET decided that he was a worker, at least during the time when he had the employer’s app switched on. AL appealed to the EAT on the following grounds:

  • The ET had been wrong to decide that there was sufficient mutuality of obligations establish a contract
  • The ET had been wrong to apply a multi-factorial test to decide that other requirements of worker status were satisfied.

Decision      1. The appeal was dismissed.

  1. The ET’s findings supported its conclusion that G was a worker when logged on.
  2. The lack of a sanction did not provide a material distinction.
  3. The ET’s findings of established practice, and the expectations of the parties, had established mutuality of obligation.
  4. The written documentation did not reflect the reality of the relationship and it was possible to look behind it.
  5. The reality was that when the app was switched on, there was an expectation that G would take any job offered.

Supreme Court upholds sanctity of contract

CONTRACTS

No oral modification clause

Variation

Case  Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24, Supreme Court

Facts Rock entered into a licence agreement with MWB to occupy office space for a fixed term of 12 months. The agreement provided that all variations of the terms must be set out in writing (a no oral modification (NOM) clause). Rock accumulated licence fee arrears. It proposed a revised schedule of payments to MWB’s credit controller. This was worth less to MWB than the original terms. A dispute arose as to whether this arrangement had been accepted. MWB locked Rock out of the premises, terminated the licence and sued for arrears of payments. Rock counterclaimed for wrongful exclusion from the premises. At first instance the county court ruled that MWB’ claim succeeded because the oral variation did not satisfy the terms of the licence agreement. Rock appealed to the Court of Appeal which found that the oral agreement amounted to an agreement to dispense with the NOM clause. MWB appealed to the Supreme Court.

Decision      1. The appeal was allowed.

  1. The oral variation was invalid for lack of writing.
  2. Parties who agree an oral variation in spite of a NOM clause do not necessarily intend to dispense with that clause. What the parties agreed was that oral variations would be invalid.
  3. The natural inference from a failure to observe a NOM clause is not that the parties intended to dispense with it, but that they overlooked it.
  4. Party autonomy operates up to the point when the contract is made, but thereafter only to the extent that the contract allows.

Disability discrimination: menopausal symptoms

DISABILITY DISCRIMINATION

Menopausal symptoms

Case  Davies v Scottish Courts and Tribunal Service (2018) ET (Scotland) S/4104575/2017

Facts D, a court officer, was suffering from a range of pre-menopausal symptoms. Her medication had to be dissolved in water. While she was in court, she noticed that two members of the public were drinking water from the jug. She could not remember if she had placed her medication in the jug and she told the men that the water might have medication in it. One of them lost his temper and blamed D for losing his case. The water would have been pink if it contained medication and the employer found that D had lied and had failed to uphold the court’s code and values. She was summarily dismissed for gross misconduct and complained of unfair dismissal and disability discrimination.

Decision      1. The dismissal was unfair.

  1. There was discrimination arising from disability. The unfavourable treatment was the dismissal, caused by D’s conduct which was affected by her disability, which had caused her to be confused and forgetful. It had not been proportionate to dismiss D while failing to have regard to her disability. Other measured, for example a warning, had been available.
  2. Reinstatement and compensation of £5000 for injury to feelings were ordered.