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Whistleblowing: more than one employer can be liable

WHISTLEBLOWING

Worker

More than one employer

Case  Day v Lewisham and Greenwich NHS Trust and another (2017) The Times, June 26, Court of Appeal

Facts D was a doctor working for L, having been accepted by London Deanery, the body responsible at the time for training doctors in London. In 2013 the Deanery was taken over by Local Education Training Boards, which have no legal personality and are part of Health Education England (HEE). D brought proceedings against L and HEE, alleging that he had suffered detriments for making protected disclosures related to patient safety. HEE defended the claim on the basis that D was not a worker. The ET found that the claims against HEE had no prospect of success and struck them out. This decision was upheld by the EAT which found that because D was employed by L, he could not claim against HEE. D appealed to the Court of Appeal.

Decision      1. The appeal was allowed.

2. For the purposes of the protection of whistleblowers in the workplace, a person in training might be employed by both the employer with whom he had been placed, and the training body which had made the placement, if the training body had substantially determined the terms under which he worked.

3. When determining who substantially determined the terms of engagement, a tribunal should make the assessment on a relatively broad brush basis having regard to all the factors bearing upon the terms on which the worker was engaged to do the work.


Surrey and Borders Partnership fined £300,000 after death of vulnerable patient

NHS Foundation Trust fined following death of patient

Health and Safety Executive v Surrey and Borders NHS Foundation Trust (2017) Guildford Crown Curt, June 22

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

Surrey and Borders NHS Foundation Trust has been fined after a patient suffered fatal injuries in a fall.

The facts

·        Adam Withers was detained as a patient at Epsom Hospital. In May 2014 he was in the hospital courtyard with his mother. he climbed over a conservatory roof and up a 130-foot industrial chimney. He fell and suffered fatal injuries.

·        There had been a series of failures to ensure the proper management of risk associated with absconding patients.

·        There was insufficient communication between employees and inadequate systems to ensure that the risks identified were addressed and remedied.

The decision

The Trust was fined £300,000 plus £16,700 costs under s.3 HSWA for failing to ensure the health and safety of non-employees.

An HSE inspector commented after the case that if the Trust had carried out a suitable assessment and made the appropriate changes they would not have allowed a vulnerable person the opportunity to end his life.


Ogden Tables: age as key factor in calculation: unconscious racism?

The Ogden Tables

These Tables took their name from Michael Ogden QC who was the chair of the working party which first drew them up. They involve the calculation of multipliers for future financial loss in personal injury cases based on actuarial principles. They are of crucial significance in personal injury cases.

The multiplier takes a claimant’s life expectancy and multiplies it by a rate of annual loss. The age of the claimant is a key factor. The Tables do not refer at all to a claimant who does not know his or her age.

The assessment of compensation is a highly-paid branch of law on its own. It is practically impossible for a successful claimant to accurately calculate his amount of compensation himself. Money can thus be made by lawyers from deciding on an amount of money.

The assessment of amounts of compensation for civil wrongs depends, as a starting point, on the age of the claimant. Legal textbooks dealing with civil procedure state, without further explanation, that formulas for future loss of earnings and other aspects of compensation depend upon the claimant’s age. The assumption of knowledge of age is the basis of the entire system of assessing amounts of compensation. Did the compilers of the Ogden Tables realise that some citizens have no birth certificates? Those of us who have worked with deprived persons from the Afro-Caribbean community know that, for a number of the middle aged and elderly, their date of birth is unknown. They know that they were born in the Caribbean fifty or sixty years ago but they have no record of their date of birth. The absence of proper certification systems in the colonial or post-colonial territories, with the implications of a legacy of slavery, means that such persons are at a huge disadvantage in their dealings with the legal system. On top of their weakness on financial and educational grounds, they face the added disadvantage of a third-world registration system up against a first-world legal system. How can you assess compensation if the client does not know his or her age? The unthinking assumption that all potential claimants know their dates of birth can be characterised as a form of unintentional racism in that it places certain ethnic groups at a disadvantage.

The issue of those who do not know, or cannot prove their age, is significant in the context of asylum and immigration cases, where “age dispute” is a recognised area of law. The Ogden Tables are untouched by this reality.


Fatal crushing incident on London construction site: CMF Ltd fined £185,000

Fatal crushing incident: company fined £185,000

Health and Safety Executive v CMF Ltd (2017) Southwark Crown Court, April 21

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

CMF Ltd has been fined following the death of a subcontractor.

The facts

·        Richard Laco was subcontracted by CMF to work on a large construction site in London. In November 2013 he was crushed by a concrete staircase which was being installed. He suffered fatal injuries.

·        There was no safe system of work in place for the installation of the staircase. The company had failed to appropriately supervise the work.

The decision

CMF Ltd was fined £185,000 plus £20,000 costs under s.3, HSWA, for failing to ensure the health and safety of non-employees.

 

 


Plymouth mobile elevated work platform death: compnay fined £130,000

Mobile elevated platform death: £130,000 fine

Health and Safety Executive v Pyeroy Ltd (2017) Plymouth magistrates’ court, June 16

Statutory reference: regulation 4 of the Work at Height Regulations 2005 (WAH).

Pyeroy Ltd, a contractor, has been fined after a worker was killed.

The facts

·        Keith Stevens was working for the company at Devonport Naval base. he was using a mobile elevated work platform (MEWP) to dismantle temporary roofing. He became trapped between a roof beam and the controls of the MEWP. He died of a pre-existing heart condition.

·        The company had not properly planned the MEWP work in restricted overhead areas.

·        Other employees had not been suitably trained in the emergency lowering procedure of the elevated platforms and no practice drills had been carried out.

The decision

The company was fined £130,000 plus £14,000 under regulation 4 of WAH.

An HSE inspector commented after the case that it highlighted the need for duty holders to properly plan all work at height beforehand, including emergency planning and rescue situations.    


Health and safety law: the Cinderella of the English legal system: never more important

Health and safety law outwardly appears to be for the benefit of the working class. It has been argued that it was never properly enforced and was never intended to be. The argument goes that health and safety laws were introduced to give employees the false impression that their interests were promoted and to deflect their militancy.

In reality:

·         The promoters of the early factory legislation were genuinely concerned to improve workplace conditions.

·         Within the employing class, competing industrialists supported the new laws because they would increase their competitors’ costs.

·         The Health and Safety at Work Act 1974 was introduced against a background of pressures from the civil service to simplify the legislation, from the TUC, from public concern and from individuals such as Foot and Lord Robens.

Health and safety legislation is starved of resources for its enforcement. In 2012-2013, 706 cases were prosecuted for health and safety offences.

The Health and Safety Executive (HSE) receives income from a number of sources, including the proceeds of fines, sales of publications, EU and investment income, and funding from the Department of Work and Pensions (DWP). Its budget from the DWP however has been cut by 35 per cent. A further 9.5 per cent reduction is scheduled for the year 2014/2015. The number of HSE employees has been reduced by 6 per cent. It has been reported that deaths in the construction industry increased by 8 per cent in the year 2013-2014. A trade union spokesperson is reported to have commented that dangers in the construction industry were exacerbated by the massive cuts that the government had made to the HSE’s budget and its continued attack on safety laws and regulations.    

Health and safety law and practice, however imperfect and underfunded, clearly operates to protect workers and to improve safety standards. If there were no health and safety law, could it seriously be argued that employers would voluntarily cut profits to improve safety standards?

During the Franco regime, advertisements for investments in Spain regularly appeared in the British press. These stated that one of the main advantages of investing in companies in a country with a fascist government was that there were minimal health and safety regulations and little legal employment protection.

 

Health and safety law is the Cinderella of the English legal system. It rarely features in law school syllabuses, is under constant attack for populist journalists and is subjected to government cuts. In reality, it is one of the few elements of English law which operates in favour of workers in relation to employers.


Care home death: Company fined £450,000

Death of care home resident: company fined £450,000

Health and Safety Executive v Caring Homes Healthcare Group Ltd (2017) Guildford Crown Court, June 7

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

Caring Homes Healthcare Group Ltd, the owner and manager of the Coppice Lea Nursing Home in Surrey, has been fined after the death of a resident.

The facts

·        In October 2013 an 87-year old woman was a resident at the home. She fell four metres through her window, suffering fatal injuries.

·        The window restrictor in place was easily overridden and was not fit for purpose.

The decision

The company was fined £450,000 plus £14,700 costs.

An HSE inspector is reported to have commented after the case that all windows which were large enough for people to fall through, should be restrained sufficiently to prevent falls. The benchmark of 100 mm should only be allowed to disengage using a special tool or key.


Poverty: the reality compared with lawyers’ earnings

 

 

Poverty

How many practising lawyers know the real meaning of poverty?

The income of lawyers, discussed below, should be seen, for example, in the context of the most recent poverty statistics compiled by the Joseph Rowntree Foundation. These statistics include:

  • The low-income threshold for a couple with two children under 14 is £357 per week.
  • In 2013, 13 million people in the UK were living in households below this threshold.
  • 3.5 million children were living in low-income households.
  • 4.4 million adults were paid less than £7 per hour.

 

In May 2014, the Office of National Statistics published data which showed that the richest 1 per cent of Britain’s population now own as much wealth as the poorest 55 per cent put together.

In 2013/2014, the Tressell Trust reported that 913,138 people were now using its food banks, an increase of 51 per cent from the previous year.

In December 2009 Shelter, the housing charity, reported that it would take between 10 and 33 years for local authorities to clear their housing waiting lists. Approximately 1.8 million households were currently on waiting lists for social housing.

 

The Royal Courts of Justice Citizen’s Advice Bureau (RCJCAB) deals with nearly 20,000 clients a year. It has reported the following:

  • In family cases, 69 per cent of divorce matters involved at least one unrepresented party.
  • In civil cases, 85 per cent of individual defendants in county court cases were unrepresented.
  • There is a definite trend of solicitors being unwilling to take on cases on a publicly-funded basis in areas such as housing and family.
  • 38 per cent of cases handled by the RCJCAB involve debt, mostly possession proceedings brought by banks.
  • There may be a theoretical entitlement to get legal aid but the reality is somewhat different. Solicitors say that they are too busy, or the case does not look like a sure-fire winner, or there is not going to be much money in it for them.
  • In relation to costs, many people do not have any concept of just how expensive litigation is.

Severed hand in the workplace: company fined £24,000

Severed hand: £24,000 finE

Health and Safety Executive v Pipework Engineering Services Ltd (2017) Birmingham magistrates’ court, May 26

Statutory reference: regulation 17 of the Provision and Use of Work Equipment Regulations 1998 (PUWER).

Pipework Engineering Services Ltd has been fined following an incident in which a worker suffered a severed hand.

The facts

·        In March 2016 a worker was operating a foot pedal saw. His hand came into contact with the saw’s rotating blade.

·        He suffered a severed hand and wrist which required surgical intervention to reattach.

·        The company had failed to install the machine correctly and in accordance with the manufacturer’s instructions. This meant that it could be operated from a position which took the operator very close to the blade.

The decision

The company was fined £24,000 plus £2000 costs under regulation 17 of PUWER.    


Cuba and human rights: UK and US hypocrisy

Cuba

Reports of the theory and practice of the Cuban legal system give clear examples of contradictions  between collective and individual human rights.

Anyone with an interest in human rights should look to the Cuban model, not as an ideal to be achieved, but as a comparative and alternative model for a legal system with an emphasis on social and economic rights.

The Cuban legal system is discussed further in Chapter 2 (Class).

In November 2009 the Human Rights Watch report on Cuba, entitled “New Cuba, Same Cuba” made the following points:

  • There is a provision in the Cuban criminal code allowing people to be convicted for “dangerousness”, defined as behaviour which contradicts socialist norms. This would appear to have some similarities to the English concept of the Anti-Social Behaviour Order (ASBO), except that the ASBO does not require a criminal conviction. ASBO proceedings are civil proceedings. An ASBO is a civil order containing conditions prohibiting specific anti-social acts or entering defined areas. “Anti-social behaviour” means behaviour which causes or is likely to cause harassment, alarm or distress. This includes writing graffiti (unless it is deemed artistically acceptable), begging and prostitution. It does not include war crimes, arms manufacturing or health and safety violations.
  • According to Human Rights Watch, there have been at least 40 cases of “dangerousness” in Cuba, which include:
  • Distributing copies of the Universal Declaration of Human Rights
  • Staging rallies
  • Writing articles critical of the government
  • Trying to organise independent trade unions
  • Failing to attend pro-government rallies
  • Not belonging to official party organisations
  • Being unemployed.
  • Cuban prisons are overcrowded, unhygienic and unhealthy. This can be compared with the position in the United Kingdom and the United States. For example, in Napier v Scottish Ministers (2005), N was a remand prisoner in Barlinnie Prison. He had to share a cell which was designed for one person. The cell had poor washing and toilet facilities and human waste had to be “slopped out”. He was confined to the cell for an average of 20 hours a day. The cell was described as small, overcrowded, gloomy and stuffy. N developed severe eczema and psychological problems. The Scottish court decided that he had suffered degrading treatment in breach of Article 3 of the European Convention. He had been exposed to conditions of detention which were such as to diminish his human dignity and to arouse in him feelings of anxiety, anguish, inferiority and humiliation.