Comments by Adrian Waltho

Adrian Waltho
Member - 27 posts

Have you had any experiences with bogus health and safety scams?

Record your experiences here for the benefit of other Workplace Law Network readers.

Adrian Waltho
Member - 27 posts

Jem,

Cannabis is now a class C drug, so it is still illegal to possess.

If your company policy specifically states that working under the influence of drugs is prohibited and that you may conduct searches, especially for health and safety reasons, then you would be within your rights to conduct a search. It is the employer's duty to ensure a safe working environment, so if an employee's behaviour places the employee or others at risk, the employer could be prosecuted.

You should approach the subject with care, though, and be careful to keep the proceedings confidential. You should bring the company policy to the attention of your employee first and obtain written consent for the search to take place should you wish to proceed.

You may find the following article helpful in deciding your position on drugs:

http://www.workplacelaw.net/display.php?resource_id=3956

I hope this helps. Please get in touch if you need any more information.

Regards,

Workplace Law Network

Adrian Waltho
Member - 27 posts

Dear Debbie,

The simple answer is that employers are totally vicariously liable for any racial or sexual harassment caused by their employees. You can be taken to a tribunal and, if the harassed employee wins their case, could be fined an unlimited amount.

You may find it useful to read the following article on the Workplace Law Network:

http://www.workplacelaw.net/display.php?resource_id=4246

Though the subject is the new sexual orientation and religious belief legislation, everything Rachel Clayfield says about the consequences of harassment are equally applicable to racial and sexual discrimination.

I hope this answers your query.

Regards,

Workplace Law Network

Adrian Waltho
Member - 27 posts

Zcott,

The provision of work space is set out in the Workplace (Health, Safety and Welfare) Regulations 1992. Regulation 10 states that each person shall have "sufficient floor area, height and unoccupied space". This requirement is expanded in the ACoP, and requires workrooms to have enough "free space" to allow people to get to and from workstations and to move within the room with ease.

The ACoP states that each person should have a total minimum of 11 cubic metres of space (when the room is empty), where the maximum height used is 3m. Therefore, in a room with a 3m or higher ceiling, the minimum "free" floor area should be 3.7 Sq. m. However, depending on the type of furniture, for example, in the room, 3.7 sq. m. may be insufficient to comply with the requirement for sufficient free space.

You may also find the following discussion in the forum about space planning useful:

http://www.workplacelaw.net/forum/thread.php?thread_id=369

and the following article:

http://www.workplacelaw.net/display.php?resource_id=2201

I hope you find this information useful.

Kind regards,

Workplace Law Network

Adrian Waltho
Member - 27 posts

David,

The following is taken from the ACAS guide to employment contracts:

"What is the notice entitlement?

There is a legal minimum amount of notice required to terminate a contract of employment when an employee has been continuously employed for a month or more.

After one month's employment employers must give one week's notice to employees. This notice increases to two weeks after two years service and then by a further week for each year served up to a maximum of 12 weeks to employees with 12 or more years service.

After one month's service, employees must give one week's notice of leaving employment. This requirement does not increase with additional service.

If employees have a contract of employment that specifies a greater amount of notice, the higher amount applies."

I hope this information helps.

We also suggest you look at the ACAS guide on lay-offs (short term redundancies) here:

http://www.acas.org.uk/publications/al01.html

Kind regards,

Workplace Law Network

Adrian Waltho
Member - 27 posts

Mary,

We have consulted Phil Wright - out health and safety trainer - on this issue and he gave the following advice.

There is no specific wind-speed advised because the risk to contractors working on the roof depends entirely on the situation and the work being carried out.

For example, if work with large sheets of plywood is being carried out even a 10mph may be too dangerous because the sheets would have a sail effect, catching the wind and potentially sending someone over the edge of the roof.

If work on the roof must be done you should carry out a risk assessment each time, taking into account any relevant factors. For example: is the wind gusting or constant (gusting is more dangerous)? What is the pitch of the roof? Is the work on the edge of the roof (in which case, by law, the worker should be harnessed in any case) or in the middle?

Always consider whether the work could be carried out using a safer method and, if not, what measures could be introduced to reduce the risk posed. Record your risk assessment and file it safely, along with the safe system of work detailed on the roof entry permit you give the contractor. Ensure the contractor is aware of the safe system of work and follows it closely.

As you are probably already aware, falls from height are the biggest cause of workplace fatalities and the HSE is pushing to greatly reduce them this year. If you would like more information about the dangers of working at height, go to the HSE ?Falls from Height? webpage at www.hse.gov.uk/falls/index.htm

I hope this helps. If you have any further queries, please don?t hesitate to get in touch.

Kind regards,

Workplace Law Network

Adrian Waltho
Member - 27 posts

Peter,

Thanks for bringing that to our attention.

You can now download the report by following the link provided.

If you have any further queries, please let us know.

Regards,

Adrian Waltho

Editor

Adrian Waltho
Member - 27 posts

Dorian,

In answer to your original question, the DVLA website says that if you wish to have expired endorsements removed from your licence you must send both the card and paper part in to the DVLA, implying that the physical card does actually carry a record of your endorsements.

Further information from the DVLA on penalties and disqualifications can be found on their website at www.dvla.gov.uk/drivers/endorsem.htm.

Regarding checking a driver's previous history, there is a system currently in place for you to do this. The following is taken from the management guide of the Workplace Law Publishing 'Driving at Work Policy and Management Guide, version 1.1':

"The Driver and Vehicle Licensing Agency (DVLA) can be contacted to verify the details given by a driver regarding any endorsements or driving history. The driver needs to contact the DVLA and grant permission for a named individual to given their licence history information. The named individual should then contact the DVLA on 01792 782341, asking for the Driving Licence Section. They will be asked to identify themselves and provide the driver?s full name, address, sex and date of birth. Once the DVLA have verified that permission has been granted to release the information the details will be provided. Presently the DVLA only operate this as a verbal process."

You can download a sample and contents list for the Driving at Work Policy and Management Guide, version 1.1 here: www.workplacelaw.net/my/download.php?download_id=217

Hope that helps!

Adrian Waltho
Member - 27 posts

Leigh,

You can get a copy of the report at the following address:

http://217.34.213.209/show_docs.cfm?dtype=SU&cntry=UK

The title of the document is 'Closing the lid on ID fraud' and makes for some very interesting reading!

It's in PDF format, so you'll need Adobe Acrobat 3.0 or higher to view it, and the file's quite large at 3.1Mb, so it might take a while to download.

Hope that helps.

Adrian

Workplace Law Network

Adrian Waltho
Member - 27 posts

Hi John,

The Workplace (Health, Safety and Welfare) Regulations 1992 require that "during working hours, the temperature in all workplaces inside buildings shall be reasonable". The Code of Practice that accompanies the Regulations suggests that, in a typical workplace (shops, offices, factories, and so on), the temperature should be at least 16 degrees C. If much of the work requires severe physical effort, the temperature should be at least 13 degrees C.

It may be difficult to justify not providing heaters, if the temperature is falling below a reasonable working temperature. On the whole, personal protective equipment (such as thermals and fleeces) should be seen as a last resort in terms of health and safety. The Health and Safety at Work Act 1974 does allow employers to balance the risks (of working in the cold, in this case) against the costs, time and inconvenience of providing a remedy, but I would not have thought that the cost of providing heaters would be so great.

I suggest that you get hold of a copy of the HSE guidance 'Thermal comfort in the workplace - guidance for employers' (ISBN 0 7176 2468 4, price £3.50) - available from HSE Books on (01787) 881165. The guidance reminds employers to provide adequate heating; to reduce exposure by separating cold areas from those where people work; and to introduce appropriate working practices and systems.

Hope that helps,

Workplacelaw Network

Adrian Waltho
Member - 27 posts

Mary,

There is no currently available data on the average holiday entitlement for architectural practices. We suggest you contact RIBA for guidance on the typical allowance.

Uniquely to the UK (out of the EU), the statutory allowance of 20 days paid holiday can, if the employer wishes, include designated public holidays such as Christmas and New Year. So, it is up to your terms and conditions of employment to state whether or not days off at Christmas and New Year are counted towards the statutory paid holiday entitlement.

The Advisory, Conciliation and Arbitration Service (ACAS) recently published some excellent guidance on their website concerning holidays and holiday pay. You can access the guidance at www.acas.org.uk/publications/AL03.html

Hope that helps. If you have any more queries, please don't hesitate to submit another online advice question.

Best regards,

Workplacelaw Network

Adrian Waltho
Member - 27 posts

Tom,

In answer to your comment about the police using two-way radios, you should have a look at this forum thread:

http://www.workplacelaw.net/forum/thread.php?thread_id=302

Adrian Waltho

Assistant Editor

Workplacelaw Network

Adrian Waltho
Member - 27 posts

Alan,

A question very similar to yours was answered as follows by Iain Skinner of Masons Solicitors:

"If the 3 month notice period is contractual and the employee refuses to comply with contractual obligation then as employer you could theoretically claim that the employee is in breach of contract and claim damages.

In practice however it is difficult to enforce such a term and you cannot restrain the employee from leaving without serving his contractual notice. Prevention in the form of an interdict applicable only if employee acting in breach of any contractual post termination restriction such as working for a competitor.

If as employer you agree to the employee giving less notice, you will be deemed to have acquiesced or waived the breach by the employee.

In the circumstances, if employer is keen to avoid publicity / litigation, then maybe agreeing to accept less than the contractual notice period from the employee is the only practical way to proceed."

We hope this answers your query. If you have any other questions, please don't hesitate to submit another question.

Best regards,

Workplacelaw Network

Adrian Waltho
Member - 27 posts

Ian,

Many thanks for your enquiry. The question of the exemption of two-way radios was covered in the Department for Transport's decision letter of their consultation on the ban. It has the following in section 14:

"The consultation document also suggested that 2-way radio microphones should be included within the proposed ban. However, some responses requested exemption for radio systems, pointing out that these have been used over many years without giving rise to road safety concerns. Amateur radio operators, some commercial drivers such as taxi drivers and hauliers, and some of the emergency services use them to communicate with a base station.

We accept that such "press to talk" devices keep conversations short and are likely to have a lower risk. Furthermore permitting their use will not open up a loophole because the vast majority of drivers are unlikely to use them as substitutes for mobile phones. They are far less convenient, generally require a dedicated frequency and permit only one-way conversations while a button is held. While the details of the extent of the exemption remain to be determined, the new offence will exempt the use of such devices. "

I hope this answers your query.

You can download the whole letter from:

http://www.dft.gov.uk/stellent/groups/dft_rdsafety/documents/page/dft_rdsafety_508356.pdf

Best regards,

Workplacelaw Network

Adrian Waltho
Member - 27 posts

Caroline,

The answer to your question can be found in our Network Guide on dismissal:

http://www.workplacelaw.net/display.php?resource_id=2590

The difference between them is that to be dismissed in breach of a contract of employment is automatically deemed to be wrongful e.g. dismissing without giving an agreed-upon notice period.

Unfair dismissal is when an employee is dismissed (within or without the terms of their contract) unfairly. Whether the dismissal is deemed as unfair depends on the particulars of the case and is decided by numerous laws and statues e.g. Disability Discrimination Act 1995, Employment Act 2002, Employment Equality Regulations 2003 etc.

So, wrongful dismissal may not be illegal i.e. it breaks no employment laws, but the dismissal does break the terms of the employee's contract of employment.

I hope that answer your question. More detailed guidance on various aspects of dismissal can be found in the guide above.

Kind regards,

Workplacelaw Network

Adrian Waltho
Member - 27 posts

Ross,

The legislation banning the use of mobile phones in cars has not been drafted yet. You can download a copy of the Department for Transport's decision letter and summary of responses to the consultation on the proposal to introduce legislation here:

http://www.dft.gov.uk/stellent/groups/dft_rdsafety/documents/page/dft_rdsafety_508356.pdf

This gives an idea of what the legislation will cover, if not the actual wording they will use. The wording they have used in the above letter is:

"drivers speaking or listening to a phone call, using a device interactively for accessing any sort of data, which would include the internet, sending or receiving text messages or other images [is an offence] if it is held in the driver's hand during at least part of the period of its operation."

We have put up an article today regarding this very point. You can access it at:

http://www.workplacelaw.net/display.php?resource_id=3977

This should help clarify what will and won't be seen as an offence under the legislation.

Regarding penalties, once the legislation comes into force offenders will face fines ranging from £30 to £1,000 if the case goes to court.

Hope you find this information useful.

Regards,

Workplacelaw Network

Adrian Waltho
Member - 27 posts

Adam,

The legislation banning the use of mobile phones in cars has not been drafted yet. You can download a copy of the Department for Transport's decision letter and summary of responses to the consultation on the proposal to introduce legislation here:

http://www.dft.gov.uk/stellent/groups/dft_rdsafety/documents/page/dft_rdsafety_508356.pdf

This gives an idea of what the legislation will cover, if not the actual wording they will use.

Hope you find it useful.

Regards,

Adrian Waltho

Assistant Editor

Adrian Waltho
Member - 27 posts

Ian,

There is no legislation detailing the specific requirements for fusing of electrical appliances, other than regulation 11 of the Electricity at Work Regulations 1989 which requires that suitably-located protection against excess currents must be provided where necessary.

The National Inspection Council for Electrical Installation Contracting will answer queries about the requirements for the inspection and testing of electrical appliances on 020 7564 2320. For more details see this page:

www.niceic.org.uk/specifiers/appliance.html and www.niceic.org.uk/specifiers/elecatwork.html

The HSE also publishes guidance on practically meeting the requirements of the EWR 1989, available in its 'Memorandum of guidance on the Electricity at Work Regulations 1989', priced £4.00 from HSE Books (www.hsebooks.co.uk).

I hope that helps. If not, do come back to us.

Kind regards,

Workplacelaw Network

Adrian Waltho
Member - 27 posts

Roy,

In answer to your question, the legislation specifically only applies to security guarding services that are under contract - not in-house services. You don't, therefore, have to register your guards.

You can see the relevant designated activities by following this link:

http://www.the-sia.org.uk/legislation/the-act3-6.asp

The list at the top shows you who is affected.

Adrian Waltho

Assistant Editor