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Martin CMIOSH
Member - 5 posts
Nigel, I disagree with your premise in the first paragraph. My understanding of the law is that it is only illegal to discrimate in terms of skin colour, ethnicity, religion, disability, gender & age. There is also the (much discussed) Human Rights Act where an individual may claim that their fundamental rights have been imposed upon, but this is not a realistic legal argument (at the present time).
The process of employing someone is all about discrimating one candidate against another. But this is on legal terms i.e. you CAN discriminate between the qualifications and experience that candidates have. Similarly you can discriminate between how candidates dress, talk and act at an interview.
The Barister quoted in the article is claiming that the way someone dresses, or if they are obese, it is equivalent to sex discrimination. This is really fictional and, although our legal system would allow someone to make a claim on these grounds, there is no case law to support his argument. It would be very interesting to hear a legal argument that proved women were naturally fatter than men.
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Martin CMIOSH
Member - 5 posts
Clownism is real, and practiced by a great many individuals in my experience. I respect their right to make complete fools of themselves everytime they open their mouth. It is what makes life interesting...
Claire, it is humbling to see that you have taken this prank so seriously with the photo of you in the hat, scarf and comedy hair!
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Martin CMIOSH
Member - 5 posts
Kelly, Thank you very much for your response, and for taking my concerns seriously.
Insurance is an art, and I am no expert at all. I believe that where organisations have cover for legal expenses this would automatically (?) include any prosecutions under CMCH - BUT it is worthwhile to say that you cannot insure against fines, and there are always huge costs that might not be included in insurance terms.
Adrian, Legal privilege is where correspondence between an individual and their legal adviser cannot be produced as evidence in a case. For example a H&S manager may want to discuss possible causes of an accident in a way that is private from the HSE.
However it has also been used as a defensive strategy in the US where H&S audit reports were prepared for the lawyers rather than the management. Then, if there was an accident (and the audit report had identified a deficiency) the audit could not be used in evidence. I recommend you watch the film Erin Brockovich as it details this point very well!
This has been taken to extreme, and consequently enforcement authorities will not necessarily allow anything to be legally privileged just because it was sent to a lawyer.
If there is a serious accident in your workplace then it is useful to immediately seek legal advice, but also cooperate fully with the HSE.
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Martin CMIOSH
Member - 5 posts
This is a sensational piece of journalism. The impact of the Act will be slight. There are basically no new duties than under the HASAW Act (It does include non-employees, but then so does HASAW in a less explicit fashion). The biggest difference is that CMCH Act requires proof of Gross Negligence, whereas HASAW only requires SFAIRP. In practice it will be very difficult to for the CPS to prove Gross Negligence - especially in a large organisation. Therefore organisations will continue to be prosecuted under HASAW much as before.
The questionnaire that you base your article on is deeply flawed as the options lead the responder in to making certain answers - which are then interpreted by your article in a different context. Since your news story is quoting your own organisation as the only source it is actually a press release not a news story, and the word "complacent" in the headline appears as if this was said by someone, but there is no reference to the source in the article.
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Martin CMIOSH
Member - 5 posts
the responses so far have missed one vital element. Drivers are inherently safer in their own car, than one they are not familar with. Typically company cars (and often pool cars) are large vehicles >1.8 litre, but if the driver is used to a 1.1 litre Fiesta the driving experience is very different. Their concentration is directed on driving the car rather than on what's happening on the road.
It is difficult to balance the risks on both sides of this coin, and I'm not advocating the use of the employees own car in every situation, but this factor needs to be considered.
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