Case Law Update and 'The Hidden Killer'

In this post Empire highlight two cases involving employees dismissals and their outcome in court. We also discuss HSE's  pledge to tackle Scotland’s share of 4,000 asbestos death toll.

Oudahar v Esporta Group Limited UKEAT/0566/10
The EAT has clarified that there is a two stage test to be satisfied when considering a claim for automatic unfair dismissal based on a health and safety reason. These are:

1. Were there circumstances of danger which the employee reasonably deemed to be serious and imminent?  Did the employee take or propose to take appropriate steps to protect himself or other persons from danger; or did he take steps to communicate these circumstances to his employer by appropriate means?
2. If these criteria are met, was the employer’s sole or principle reason for dismissal that the employee took or proposed to take such steps?

This was an interesting case because there is very little case law on this area. Dismissals on the grounds of health and safety are automatically unfair, which means those with less than 1 years’ service are also able to raise a claim on this basis.

Hughes v Corps of Commissionaires Management Ltd (2011) EWCA Civ 1061
The Court of Appeal has confirmed that the requirement to remain on call during a rest break does not contravene the Working Time Regulations. In this case, a security guard argued that because he could be interrupted during a rest break, the compensatory rest allocated to make up for this should be taken outside working time (ie he should not be on call during compensatory rest periods). The appeal was dismissed, on the basis that being on call does not necessary mean that the Regulations have not been complied with.

THE 'HIDDEN KILLER'
The HSE in partnership with the training industry has pledged to tackle Scotland’s share of 4,000 asbestos death toll. They are calling for businesses to pledge free training courses in an attempt to hit the target of 4,000 hours in September which would reflect the approximate number of deaths each year in Britain from asbestos- related diseases.

The free asbestos awareness training is being provided to help tradesmen in Scotland and across Britain protect themselves from the deadly dust. Sessions will be available throughout October and November and is aimed at joiners, electricians and plumbers who as part of their activities are likely to disturb asbestos fibres as they work. Figures quoted by HSE state between 1982 and 2008, there were 3,456 deaths from asbestos- related cancer mesothelioma in Scotland.

A weekly update of free places at the various locations in Scotland are being made available on the HSE web- site www.hse.gov.uk

Have you been affected by any of the issues raised in this post? Do you have have any experience in dealing with asbestos? Maybe you know of an organisation or individual who has dealt with dismissal based on a health and safety reason? Do you agree with the ruling of the courts in the case of Hughes Vs Corps of Commissionaires Management Ltd? We would like to hear your comments and feedback, please visit our facebook page where we often hold discussions regarding topics covered here.

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London Riots, First Aid and Empire HR

There have been many current affairs that have been featured in the press recently, where Empire have identified issues concerning HR, including the News of the World Scandal. In addition the recent events in London and the riots that took place, also raise issues relating to HR. 

In this blog we explore issues from the riots as well as guidance on First Aid in the workplace.

RIOTING AND HR

The riots that hit London last month have highlighted the crucial role of HR in a crisis. The spontaneity and unpredictability of the riots meant that those affected had to react swiftly in circumstances that they had probably never encountered before.

Having a good HR manager or department within a business would undoubtedly have been an invaluable asset during the crisis, providing immediate and commercially viable solutions to the problems faced.

For example, many affected businesses had to consider what to do with employees who no longer had a viable place of work. Larger business could rely on their HR departments to organise the redeployment of employees to alternative stores or offices. Smaller businesses could temporarily lay off employees, or perhaps enforce a period of annual leave. Some may even be forced to make employees redundant if the business is no longer operating and will not be viable for the foreseeable future.

Unfortunately those with no HR support may now face the additional burden of potential tribunal claims if they simply sent employees home with no pay for an indefinite period of time.

The basic starting point for business owners and managers is that where an employee opts not to come into work, there will normally be no obligation to pay them. However, where the decision is taken out of their hands and they are willing to come into work, they must be paid. The uniqueness of the circumstances means that there is no hard and fast rule – all absences should be investigated in full before any pay is withheld.

It is essential that business owners seek legal advice on the options available to them before assuming that they can dismiss employees. The ability to temporarily lay off employees is largely dependent on the inclusion of a ‘lay off’ clause in their contract. Redundancy is also dependent on the circumstances facing each particular business, and a consultation process must be followed prior to any redundancy dismissal.

Some HR Managers will need to deal with employees who have been convicted of an offence related to the rioting. In general, a criminal conviction is not sufficient justification for a dismissal unless the employee works with vulnerable service users or is in a sensitive role.

A lot would depend on whether the conviction has affected the reputation of the business (perhaps the media named and shamed the employee), and whether the conviction has undermined the trust and confidence in the employee. For example, an employee convicted of looting in the area in which they work may lead to their retail employer losing trust in them.

Each case must be considered on its own merits, with the full ACAS Code on Discipline and Grievance being followed at each stage of the process. Given the current wave of public anger, it does seem likely that tribunals will be sympathetic to businesses but they will still consider whether a dismissal falls within the ‘range of reasonable responses of a reasonable employer’.

FIRST AID IN THE WORKPLACE GUIDANCE 

Guidance has been issued by the Health and Safety Executive in relation to the qualifications first-aiders in the workplace need and the responsibilities employers have when appointing them. The guidance defines a ‘first-aider’ as somebody who has undertaken training and has a qualification that The HSE approves;

Either a valid certificate of competence in either:

First aid at work, issued by a training organisation approved by HSE;
Emergency First Aid at Work, (issued by either a training organisation approved by The HSE or a recognised Awarding Body of Ofqual/Scottish Qualifications Authority.

Employers must undertake a first-aid needs assessment and should use the findings to determine which training in first aid and what number of trained personnel will be suitable and sufficient after taking account of all the relevant circumstances of their particular workplace.

A question often arises about liability of first-aiders, and while the HSE seeks to reassure that it is very unlikely that action would be taken against a first-aider who was using the first-aid training they have received (and in any case not by HSE as it is outside their jurisdiction), it is recommended that Employer’s should seek advice from their insurance brokers on whether their policies cover first-aiders’ liability.

What are your thought on this? Have you been affected by any of the issues raised in this blog? We would really like to hear your views and comments. Visit our facebook or twitter page to share your comments.

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NOTW FIASCO – WHAT CAN BUSINESSES LEARN ? PART TWO...

The shock closure of the News Of The World and the phone hacking scandal has left many of the British public shocked. 

Empire is encouraging businesses to learn from the NOTW situation, as it serves as a timely reminder that no business is immune from closure, and very large, successful businesses can be destroyed by the actions of a few employees.

In light of the closure Empire has compiled a list of potential learning points for other businesses to take into account. Over a series of blog posts we will highlight the issues that we feel are important to consider.
Last week we discussed issues concerning Whistle-blowing and Organisational Culture. This week we look at further pointers that should be learned from the NOTW shock closure.

ETHICS ARE IMPORTANT
In an increasingly transparent business community, it is more important than ever to ensure your business is ethical. At the most basic level, customers tend not to want to buy goods from a supplier with questionable ethics. Suppliers may not wish to associate with a business with a poor reputation for ethics, and this was clearly demonstrated when advertisers withdrew from the NOTW. Ethics can be the foundation of a positive organisational culture and the two are closely linked.

SEEK LEGAL ADVICE BEFORE ANNOUNCING REDUNDANCIES
The NOTW’s 200 employees were collectively advised of their impending redundancies during a staff meeting in the office on the week of the disaster. This potentially breaches several requirements of employment law, namely that they should have been collectively consulted prior to the final decision being made. The Secretary of State must also be notified when there is a proposal to make 20 or more employees redundant. A failure to consult may result in an award of 90 days’ pay to each employee as well as potential unfair dismissal claims.

TRANSFERS MAY INCUR TUPE LIABILITY
There is speculation that News International will simply start publishing The Sun on a Sunday to replace the NOTW. This could result in what is known as a TUPE transfer, whereby NOTW employees should have their employment protected and transferred. Further details on this are expected in the near future, but the NOTW would be well advised to seek legal advice on this immediately. Businesses must always ensure that advice is sought prior to mergers, buyouts and the sale of businesses in order to avoid unexpected liability for transferred employees.

HEALTH & SAFETY

THE DAMAGES (Scotland) ACT 2011
This new act has been introduced to end the long legal battles in pursuit of agreement over damages claims altering the way Scottish courts will now award damages following fatal accidents.

A fixed percentage of 75% of the net income will now be used as the basis for calculating the loss of support entitlement for dependants of the deceased, applicable in all cases except where a court considers that it would result in a ‘manifestly and materially unfair result’.

Furthermore, a spouse’s income will be disregarded when calculating the amount of damages to be paid.

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Vehicle Safety is a must

There are many factors that are essential for all businesses to consider when it comes to Health and Safety. Therefore, Empire HR would like to raise some topical issues and welcome you to leave your comments and provide us with feedback. In this post we discuss the importance of Vehicle Safety, the indecent of a company being prosecuted for a reversing lorry. We also discuss and offer advice on helping foreign staff improve their English.

VEHICLE SAFETY
There are numerous safety issues to consider and risk assess with the use of vehicles at work. Not only are the licenses, roadworthiness, tax, insurance and safety checks to be undertaken on company vehicles, there is a need to include employee’s own vehicles in the equation when these are used for work purposes. The safe movement of vehicles on work premises, safety of pedestrians, planning of road trips, loading operations of vehicles and weather conditions to name but a few all add up to present a potentially lethal cocktail if not planned and controlled, regularly monitored and reviewed by competent persons.

PROSECUTION FOR REVERSING LORRY ACCIDENT
An Essex based company has been fined £150,000 and ordered to pay £19,000 costs following an accident which resulted in an employee being seriously injured, having his skull crushed by a reversing lorry at the company’s depot.

An articulated 45ft HGV trailer was being reversed into an open loading bay as the warehouse porter waited to unload it. He had noticed a positioning error and put his head around the back of the trailer to shout instructions to the driver. At that moment the trailer reversed further, crushing his head against the brick wall. He received severe head injuries and long term effects but has returned to work.

The subsequent HSE investigation found the company had not assessed, controlled, or properly managed the risks arising from vehicle and equipment movements and had also failed to provide a safe system of work for its employees.

HSE stated “This firm could have put in place a physical separation between the porters, moving vehicles and the loading bays and a safe way for porters and drivers to communicate with each other. None of these measures were evident and so a worker was seriously hurt for no good reason.”

DO YOU HAVE ANY FOREIGN STAFF WHO NEED HELP WITH THEIR ENGLISH?
If you run an international company you will understand the importance of effective communication, dealing with customers on the telephone, writing reports and meeting clients. All these situations require non-native employees to speak and understand English clearly. Do you encounter any of the following problems in your workplace?

• Our employees do their day-to-day duties well but their ability to communicate is poor. We’re particularly worried about health & safety issues.

• My boss keeps asking me to do presentations in English and I’m finding it stressful!

• My English is good but clients don’t understand me over the phone. I need help with my pronunciation! I can speak English well but I find it difficult to write technical reports!

Whatever problems your staff may have with English language, International House Aberdeen can help.
International House Aberdeen, Grampian’s premier English language school can offer tailor-made one-to-one or group tuition for your employees.

Their flexible study programme allows us to offer courses at any time convenient to you or your staff, either at our premises on Union Street or on-site.

If you think the services of International House, Aberdeen would be of benefit to you or some of your staff, please contact IH Aberdeen on 01224 634006 or email directly on info@ihaberdeen.com and quote “EMPIRE HR”. 

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NOTW FIASCO – WHAT CAN BUSINESSES LEARN?

The shock closure of the News Of The World and the phone hacking scandal has left many of the British public shocked. 

Empire is encouraging businesses to learn from the NOTW situation, as it serves as a timely reminder that no business is immune from closure, and very large, successful businesses can be destroyed by the actions of a few employees. In light of the closure Empire has compiled a list of potential learning points for other businesses to take into account. Over a series of blog posts we will highlight the issues that we feel are important to consider.

The most popular English-language newspaper in the world was published for the last time in July, which has left politicians, News International, The Metropolitan Police, and the NOTW employees battling to find out who is to blame. Public speculation, police questioning, political debate, and media coverage is certain to go on for the foreseeable future but, in the meantime, there are lessons the business community can learn from the demise of the NOTW. 

Here are the first two points where lessons should be learned from NOTW:

ORGANISATIONAL CULTURE MUST NOT BE NEGLECTED
Does the culture of your business encourage employees to push the wrong boundaries, go to extremes and turn a blind eye to bad practices?
A journalist deleting the voicemail messages of murder victim Millie Dowler is an extreme example of this, but can you be sure that your employees wouldn’t be tempted to break the law if pressurised?
In the case of the NOTW, serious questions need to be asked about why journalists felt the need to go to such extremes to get a story.
Could the HR department or line managers have prevented this incident by fostering a different organisational culture?

WHISTLEBLOWING CAN HELP BUSINESS
A good whistleblowing policy encourages employees to come forward if they become aware of malpractice or breaches of the law. This allows a manager or HR department to be made aware of the issue as early as possible, therefore preventing an escalation. It is likely that the NOTW did have a policy, but employees did not feel able to use it. The importance of encouraging an effective whistleblowing policy was also demonstrated by the recent care home scandal in Bristol, in which a senior nurse broke the silence of abuse of patients resulting in closure of the home. It is not enough to simply have a policy, it must be circulated and utilised appropriately.

It is important that businesses throughout the UK take on board the lessons learnt, and most importantly ensure steps are taken to prevent the same thing happening to them. We will be posting more pointers relating to the NOTW scandal in the following blog posts.

 
A REMINDER - NEW ARRANGEMENTS FOR REPORTING OF INJURIES AND INCIDENTS TAKE EFFECT FROM 12th SEPTEMBER

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) place a legal duty on employers, self-employed and people in control of premises to report work-related deaths, major injuries, over-three-day injuries, work related diseases and dangerous occurrences (near misses).

Businesses will no longer be able to report incidents by email, post or fax.

Fatal and major incidents and injuries will still be reportable by telephone however all other reportable work-related injuries and incidents under RIDDOR will move to a online system using interactive forms.

Seven forms will be available on the HSE’s website which is aimed at separating the incident type and making the statutory reporting process quick and easy for employers to use.

Further changes will take effect on the 30th September 2011 - the HSE’s Infoline telephone service, which currently provides a basic information service to callers, will end due to the increased use of their website.

We would really like to hear your views on the issues that have been highlighted in this post. Have you had any experience in people within an organisation turning a blind eye to bad practices? What are your thoughts on the whistleblowing culture? Do you think it can help businesses? What are your thoughts on the new arrangements for reporting injuries? Join our facebook page to enter our discussions amongst our online community

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