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Archive for May, 2019

More new health and safety prosecutions

Health and Safety Executive v 2 Sisters Food Group (2019) Doncaster magistrates’ court, March 29

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

2 Sisters Food group, a food processing company, has been fined following an incident in which a worker suffered serious crush injuries.

The facts

  • In September 2012 an employee of the company was trying to clear a blockage on a conveyancing system at its site in Scunthorpe.
  • He was struck by a large metal stillage which crushed him at chest height against the end of the system. He suffered multiple injuries including fractured ribs, a fractured spine and a punctured lung.
  • The company had failed to identify deficiencies in the guarding of the machine. The clearing of blockages was normally carried out while the system was still in operation.

The decision

The company was fined £1.4 million plus £38,000 costs under ss. 2and 3 of HSWA.

 

Health and Safety Executive v GLA Land and Property Ltd (2019) Southwark Crown Court, May 2

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

GLA Land Property Ltd, the land and property section of the Greater London Authority, has been fined after the collapse of a wall and an advertising hoarding.

The facts

  • In January 2014 a family of four were walking along a pavement to Catford station when a wall and hoarding was blown onto the father of the family.
  • He suffered serious facial and skull injuries. The family remains affected by the incident.
  • GLA Land and Property engaged a company to manage and maintain the site. It had failed to oversee the contract properly. This resulted in the wall being not properly maintained.
  • The wall developed a crack which weakened and caused the hoarding to act as a sail in string winds. This led to the collapse of the wall.

The decision

GLA Land and Property Ltd was fined £250,000 plus £14,600 costs under s.3 of HSWA.

An HSE inspector commented after the case that a whole family had been traumatised by seeing the father suffer serious injuries.


Health and safety: recent prosecutions

Health and Safety Executive v Braegate Produce Ltd (2019) Leeds magistrates’ court, April 12

Statutory reference: regulation 4 of the Workplace (Health, Safety and Welfare) Regulations 1991 (WHSWR)

Braegate Produce Ltd, a potato processing company, has been fined following an incident in which a worker was struck by a telehandler load.

The facts

  • In January 2018 Colin Smith was walking across the company’s yard when he was struck by three potato boxes which fell from the tines of a telehandler. He suffered a fractured leg.
  • The company had insufficient measures in place to prevent people being struck by a vehicle.
  • A protected walkway was provided only to two sides of the yard but not to the right side which was a well-used pedestrian route.
  • A large number of potato boxes had been stored in the yard. This meant that there was less room for pedestrians, who had to take a route further into the transport area.
  • The company had also failed to ensure that forklift truck and telehandler operators were clear about site rules dealing with the transportation of potato boxes and had failed to enforce those rules.

The decision

The company was fined £50,000 plus £962 costs under regulation 4 of WHSWR.

 

Health and Safety Executive v Westdale Services Ltd (2019) Cardiff magistrates’ court, April 12

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

Westdale Services Ltd has been fined after a 12 year old boy fell 10 metres from a scaffold ladder.

The facts

  • In May 2017 two boys climbed a scaffold ladder erected by the company in Cwmbran, South Wales. One boy climbed to the top platform of the scaffold. The ladder slipped and he fell 10 metres to the ground. He suffered life-changing injuries. He has no bladder or bowel control and is only able to walk short distances.
  • Security arrangements for preventing access to the scaffolding, especially by children from a nearby school, were inadequate.

The decision

The company was fined £160,000 plus £22,000 costs under section 3 of HSWA.

An HSE inspector commented after the case that the potential for unauthorised access to construction sites must be carefully risk assessed and effective controls put in place.

 

Health and Safety Executive v Priory Healthcare Ltd (2019) Lewes Crown Court, April 17

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

The facts

  • In November 2012 Amy El-Keria, a 14 year-old patient at Priory Ticehurst House Hospital, was found in her room with a ligature around her neck. She had been transferred to the hospital following several similar attempts at her home. She suffered irreparable brain damage and failure of multiple organs which proved fatal.
  • The company had failed to identify or put in place control measures which would have better managed ligature risks.
  • It had failed to carry out a suitable and sufficient risk assessment related to the presence of ligatures and ligature points.
  • It had failed to consider relevant industry and NHS guidance to inform its risk assessment process and to determine correct fixtures and fittings for units where patients were at high risk of self-harm and suicide.
  • It had also failed to ensure that staff working at the hospital were trained and their work practices appropriately monitored with respect to life support techniques.

The decision

The company was fined £300,000 plus £65,000 costs under s.3 of HSWA.


Constructive dismissal case law developments

CONSTRUCTIVE DISMISSAL

Fundamental breach

Unilateral salary cut

Case  Mostyn v S and P Casuals Ltd [2018] UKEAT/0158/17, Employment Appeal Tribunal

Facts M, a sales executive, reported poor sales figures over a four-year period. S, his employer, asked him to take a 50 per cent reduction in his salary. he refused and S stated that it would impose a unilateral salary cut. M resigned without notice and complained of constructive unfair dismissal on the basis that S’s conduct had breached the implied term of mutual trust and confidence. The ET rejected the claim, stating that M’s poor performance had given S reasonable and proper cause to take action which would otherwise breach the implied term. M appealed to the EAT.

Decision      1. The appeal was allowed and the matter remitted to a fresh tribunal.

  1. Unilateral pay cuts breached a fundamental term of any contract of employment and would generally entitle immediate resignation.
  2. Tribunals should never assess whether an employer’s “reasonableness” could justify a fundamental breach of contract.

 

CONSTRUCTIVE DISMISSAL

Last straw

Affirmation of breaches of contract

Case  Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, Court of Appeal

Facts K was subject to disciplinary proceedings following an altercation with a colleague. She was issued with a final written warning for inappropriate behaviour. Her appeal was dismissed. On the following day she resigned, claiming that the rejection of the appeal amounted to the last straw in a series of events which, taken cumulatively, breached the implied duty of mutual trust and confidence. On behalf of her employer it was argued that because she had continued to work following earlier incidents which she cited, which included unjustified comments about her performance, she had affirmed any possible earlier breach and could not, for the purposes of a constructive dismissal claim, invoke them as part of the relevant chain of events culminating with the appeal outcome. The ET rejected her claim on the basis that the disciplinary and appeal decisions had been reached in compliance with a far process and could not contribute to the repudiation of her employment contract. Her appeal was dismissed by the EAT and she appealed to the Court of Appeal.

Decision      1. The appeal was dismissed.

The Court of Appeal made the following points:

  • Even where an employee affirms repudiatory breaches caused by earlier employer conduct, for example by continuing to work as normal, further damaging acts on the part of an employer at a later date can revive a potential constructive dismissal claim, taking the full chain of events into account.
  • What was the employer’s most recent act/omission which the employee says triggered their resignation?
  • Has the employee affirmed the contact since that date?
  • If not, was that act/omission by itself a repudiatory breach of contract?
  • If not, was it nevertheless a part of a course of conduct (regardless of any intervening affirmation) comprising several acts and omissions which. viewed cumulatively, amounted to a breach of the implied term of trust and confidence?
  • Did the employee resign in response to that breach?

Miscarriages of justice

Miscarriages of justice

Without going into detail, which is outside the scope of this book, readers might wish to be reminded of the following:

  • Guildford Four. In summary, a group of three men and one woman who were convicted for the Guildford pub bombings in 1975. All four confessed. They were sentenced to life imprisonment. The trial judge is reported to have commented that he regretted that they had not been charged with treason, which carried the death penalty. Their convictions were quashed in 1989. They stated that their confessions had been obtained by intimidation and torture. Alibi evidence was not shown to the police. There was evidence of police collusion in fabricating evidence.
  • Maguire Seven. Seven persons who were convicted of handling explosives and were sentenced to terms ranging from 4 to 14 years. The convictions were quashed in 1991. The court stated that police officers had beaten some of them into confessing and had withheld information. Forensic evidence was discredited.
  • Judith Ward. A woman who confessed to a number of bombings. She was convicted despite retracting the confessions and spent 18 years in prison before her conviction was quashed. Her confession had resulted from a mental illness. Forensic evidence was unreliable.
  • Birmingham Six. Six men were sentenced to life imprisonment in 1975 for the Birmingham pub bombings. Their convictions were overturned in 1991. They had been forced to sign statements and there was evidence that the police had fabricated evidence.
  • Bridgwater Four. Four men were convicted of murder in 1978. In 1997 they were released on the basis that their trial had been unfair and following allegations of serious, substantial and widespread police malpractice.
  • Tottenham Three. Three men were convicted of murder following the Broadwater Farm riots in 1985. Their convictions were quashed four years later when it was shown that police notes of interrogations had been tampered with.
  • Stefan Kiszko. Kiszko spent 17 years in prison for a murder to which he confessed. Forensic evidence had been suppressed by the police. He was released in 1992. The Kiszko case has been described as the worst miscarriage of justice of all time.
  • Cardiff Three. Three men who were sentenced to life imprisonment for murder. Their convictions were quashed by the Court of Appeal. Police evidence was described as almost entirely a fabrication and largely the product of the imagination. The court stated that it was hard to conceive of a more hostile and intimidatory approach by police officers.
  • Sally Clark. A solicitor, wrongly convicted of the murder of her two sons. She was released after serving three years of her sentence. Statistical evidence was deeply flawed. Clark was unable to recover from the effects of her conviction and imprisonment.

These are some of the most extreme and well-publicised examples of the wrongful conviction and imprisonment of the innocent. The list goes on and on but never seems to affect the constant myth that English justice is the finest in the world, that all foreign systems are in some way inferior.

 

In McIlkenny v Chief Constable of West Midlands Police Force (1980), where the Birmingham Six, later to be released on appeal, brought civil proceedings against the police. Lord Denning struck out the action and commented:

If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, and that the confessions were involuntary and were improperly admitted in evidence and that the convictions were erroneous. That would mean that the Home Secretary would either have to recommend that they be pardoned or he would have to remit the case to the Court of Appeal. This is such an appalling vista that every sensible person in the land would say: it cannot be right that these actions should go further.

 


LAW critical analysis Part 4: law reform

Reform proposals

In 1986 Lord Gifford QC published proposals for the reform of the justice system, described as a realisable manifesto for a complete overhaul of the legal system. This included the following:

  • The position of Queen’s Counsel to be abolished. It is better, in Gifford’s opinion, for lawyers to be assessed by their talents and reputation rather than by the secret bestowal of honours by the state.
  • Wigs and gowns no longer to be worn. The wig and gown are intended to convey a message: that we, judges and barristers, are different and superior; that we have more in common with each other than with you, the litigants; that we practice a craft which you can never understand.
  • Judges to be appointed from a wide range of people, including younger people, solicitors and academics.
  • Magistrates to be selected from across the whole community.
  • Extension of the right to trial by jury.
  • Court procedures to be reformed to meet the needs of the public.
  • Extension of the legal aid scheme.
  • The creation and proper funding of a network of community law centres across the country. The Legal Aid and Advice Act 1949 was based on the principle that no-one should be prevented from obtaining the services of a lawyer through lack of means. State funds were made available through a means test. In 1950 an estimated 80 per cent of the population was covered by legal aid.
  • The abolition of the monopoly of advocacy. This was a very interesting proposal. Gifford argued that non-lawyers should have the right to represent people in court and that all qualified lawyers should have rights of audience before all courts. This would move towards the democratisation of the legal system. If implemented, it would strike a serious blow at the power of the legal profession.

Gifford also made the following points:

  • Comprehensive legal services should be provided in a similar way to health services.
  • Socially and culturally, the Bar is a privileged profession which is structured to exclude those who do not fit in.
  • The role of judges should be to uphold the law equally and impartially. But when they have no conception of what it is to be, for example, a worker facing redundancy, they are incapable of discharging that role.

This programme of reforms was adopted as part of the election manifesto of the Labour party and then forgotten.

In reality, we have moved backwards since 1986.

 

It is significant that Gifford’s proposals are similar, in some respects, to those put forward by the Levellers in the Seventeenth Century.

The Levellers’ proposed reforms included:

  • Codification and simplification of the law
  • Prison reform
  • Decentralisation of the legal system
  • The abolition of the lawyers’ monopoly on representation and advocacy.

These proposals are fully examined in Chapter 3 (Dissent).