Near-Fatal Industrial Accident Triggers Health and Safety Appeal

Many people do dangerous jobs, but employers are required by law to do all in their power to minimise risks, and the consequences of failing to do so can be severe. In one case, an equipment maintenance company was served with an improvement notice under the Health and Safety at Work etc. Act 1974 after a near-fatal accident.

A worker suffered catastrophic injuries when he fell through the floor of the cab of a straddle carrier that was used to shift lorry containers and fell 14 metres to the ground. A panel had been removed from the floor during maintenance work and, although a sign had been put in place indicating that the straddle carrier was not in use, it did not prevent access and was inadequate and misleading.

Following an investigation by a health and safety officer, the man’s employer was served with the notice, which required various systemic and physical improvements to be made that were designed to eliminate the risk of a recurrence. The employer appealed against the notice to an Employment Tribunal (ET).

The employer’s staff worked in the same yard as others who were employed by another company and it was asserted that the latter was to blame for the creation of the hazard. The employer argued that it did have a system in place that would have prevented the accident victim from gaining access to the cab.

In dismissing the appeal, however, the ET noted that both companies’ employees had worked together in close proximity and the baton of responsibility for various tasks had been passed between them on an ad hoc basis. That had led to confusion and increased risk on the site and the employer’s assertion that it was not at fault was not supported by evidence. The officer had reasonably formed the view that the employer had contravened one or more health and safety rules and that such contravention was likely to continue or be repeated.

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The Employment Tribunal Fees Refund Scheme

Following a four-week pilot scheme, the Employment Tribunal Fees Refund Scheme is now open to anyone who paid fees in respect of an Employment Tribunal or Employment Appeal Tribunal claim after their introduction in July 2013.

Those eligible can apply online here.

Alternatively, the following forms are available to apply for a refund by post or email:

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Equality Rights – EU Law Takes Priority over UK Legislation

In a ground-breaking decision that underlined the primacy of European law, the Supreme Court has opened the way for a police officer to appeal against her dismissal to an Employment Tribunal (ET) on disability discrimination grounds.

PoliceThe officer had suffered post-traumatic stress disorder after being assaulted whilst on duty. She was subsequently involved in an incident that led to her arrest and asserted that her behaviour on that occasion was related to her condition. However, following a disciplinary hearing before a Police Misconduct Panel (PMP), she was dismissed without notice.

She sought to appeal against her dismissal to an ET on the basis that the decision to sack her constituted disability discrimination and disability-related harassment. However, in a decision that was later upheld by the Employment Appeal Tribunal and the Court of Appeal, the ET struck out her claim on the basis that the PMP was a judicial body and that her claim was barred by the principle of judicial immunity.

In unanimously allowing her appeal, however, the Supreme Court noted that EU Council Directive 2000/78/EC confers on everyone, including police officers, a directly effective right to be treated equally in relation to employment and working conditions, including dismissals. The Directive took priority over domestic law and the UK was obliged to ensure that appropriate judicial and/or administrative procedures are available by which such rights can be enforced by effective, proportionate and dissuasive sanctions.

Allowing police officers to bring such claims before an ET would give them access to a wider range of remedies, including compensation, and the concept of judicial immunity should not be treated as a bar on complaints to ETs brought by police officers who claimed that they had been treated contrary to the Directive.

Reading additional words into Section 42(1) of the Equality Act 2010, so as to enable the officer to pursue her claim, was in line with the grain of the legislation and was warranted by the principle that domestic legislation should be interpreted in conformity with EU law. The officer’s case was remitted to the ET for full consideration of her complaints.

 

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‘Worker’ Status of Uber Drivers Confirmed in Landmark Case

In a ground-breaking ruling, the Employment Appeal Tribunal (EAT) has confirmed that drivers for online cab giants Uber are ‘workers’, as defined by the Employment Rights Act 1996, and are thus entitled to a panoply of rights and benefits.taxis

In upholding complaints by a number of Uber drivers who plied their trade in London, an Employment Tribunal (ET) had found that, whenever they had the company’s app switched on and were willing to accept assignments, they qualified as workers and were, amongst other things, entitled to the protection of the Working Time Regulations 1998 and the National Minimum Wage Act 1998.

In challenging that ruling, Uber pointed out that the drivers had no written contract with the American parent company’s London-based subsidiary. Whilst they did sign written agreements with the parent company, their terms were inconsistent with the existence of any worker relationship. It was submitted that the agreements made clear that the drivers provided transportation services to those who hailed them and that Uber provided services to the drivers as their agents. The drivers were carrying on business on their own account and were not required to work for Uber.

In dismissing the appeal, however, the EAT found that the contractual documents did not reflect the true relationship between the drivers and the London subsidiary. The reality was that the drivers formed a central part of Uber’s business in providing transportation services. The level of control to which they were required to submit pointed away from a conclusion that they worked on their own account and that their direct contractual relationship was with their passengers. It could not be said that the London subsidiary merely acted as the drivers’ agent.

The obligations imposed upon the drivers to accept trips offered by Uber, and not to cancel trips once accepted – there being potential penalties for doing so – was another powerful indicator that the relationship was not one of agency. If they had the app switched on, the drivers were required to be willing and able to accept assignments and Uber described them as being ‘on duty’. There was nothing inconsistent or perverse about the ET’s conclusions.

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Christmas and the Workplace

Christmas is a busy time for a lot of businesses, with many taking on temporary staff to cope with the extra workload. At the same time, many employees will want to take time off to spend with their family, go on holiday or attend religious services.

Employers are wise to plan ahead to cope with the varying demands placed on them at this time of year, and to this end the Advisory, Conciliation and Advisory Service has produced a guidance leaflet covering employees’ rights with regard to time off on bank holidays, annual leave and sickness absence over the Christmas period and Christmas parties.

 

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Employers – Disciplinary Proceedings Require an Open Mind

Hard-edged opinions are all too easily formed in the heat of disciplinary proceedings, but employers must be careful to stand back and take a balanced approach. In one case in which that did not happen, a senior hospital radiologist won the right to substantial compensation following her unfair dismissal.

HospitalWhen facing a disciplinary hearing, the woman had compiled a defence pack of documents at home. It included extracts from patient records from which identifying information had only partially been redacted. Her employer, an NHS trust, took the view that that was a serious breach of its patient confidentiality policies and she was summarily dismissed for gross misconduct.

In upholding her unfair dismissal claim, an Employment Tribunal (ET) found that the decision to sack her had been taken with a closed mind. There had been no consideration as to whether she had acted wilfully or whether what she had done justified summary dismissal.

In rejecting the trust’s challenge to that ruling, the Employment Appeal Tribunal found that the relevant manager had taken an unreasonably constrained approach, which failed to allow for the possibility of lesser sanctions and ignored mitigating factors. The trust’s appeal against findings that her dismissal was also wrongful, and that she had not been guilty of any contributory fault, succeeded and those issues were remitted to the same ET for reconsideration.

Government Takes Action to Boost Minimum Wage Compliance in Care Sector

The position of ‘live-in’ workers as regards employment status and rights has long been a bone of contention in the care industry in particular, leading the Government to create a new compliance scheme for social care employers.Care Home

Amid concern that ‘sleep-in’ shift workers may have been incorrectly paid less than the National Minimum Wage, the new Social Care Compliance Scheme will give employers who opt to join up to a year to identify any payments due to workers and, where arrears of pay are identified, three months to make them good.

Any social care employers that are currently the subject of a complaint will be contacted by HM Revenue and Customs (HMRC) to encourage them to sign up for the scheme. Where an employer chooses not to participate in the scheme they will be ‘subject to HMRC’s normal enforcement approach’.

The thin margins operating in the care sector have led to a general waiver of any PAYE penalties for such employers relating to underpayments arising prior to 26 July 2017, and enforcement action in respect of payments for sleep-in shifts was temporarily suspended then and recommenced only on 1 November 2017.

The updated guidance on sleep-in shifts can be seen here: National minimum wage law: enforcement

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HSE Publishes Annual Workplace Ill Health and Injury Statistics

The Health and Safety Executive (HSE) has published annual statistics for health and safety at work in Great Britain for the year April 2016 to March 2017. These show that an estimated 31.2 million days were lost through work-related ill health (25.7 million days) and non-fatal workplace injury (5.5 million days).Crane

In addition, in 2016/2017 there were:

137 fatal injuries – down from 144 in the year 2015/2016;
1.3 million working people suffering from work-related ill health (new or longstanding cases) – the same as for the previous year;
70,116 non-fatal injuries reported by employers under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013. This compares with 72,702 in the year 2015/2016; and
609,000 injuries at work according to self-reports from the Labour Force Survey, compared with 621,000 in the previous year.
The annual cost of work-related injury and new cases of ill health in 2015/2016, excluding long-latency illness such as cancer, was £14.9 billion, compared with £14.1 billion for the year 2014/2015.

In 2015, there were 2,542 deaths from mesothelioma as a result of past exposure to asbestos, compared with 2,515 in the year 2014.

Annual report for 2015/2016

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