Comments by Ciaron Dunne

Ciaron Dunne
Member - 85 posts

John,

Directors' And Officers (D&O) Insurance protects directors and officers against personal liability. The Telegraph website contains a good summary of the various insurances for employers, whether compulsory or voluntary:

http://www.telegraph.co.uk/money/main.jhtml?xml=/money/exclusions/businessinsurance/bigeneral.xml

Ciaron

Ciaron Dunne
Member - 85 posts

The damages in this case have now been reduced by £117,000 because of mistakes when arriving at the original figure.

The BBC reports that the Court of Appeal has also heard that insufficient weight had been attached to Cantor's criticisms of Mr Horkulak - this included claims that he absented himself from the office without informing anyone, that he often had his mobile phone switched off, and that he was frequently absent from work without explanation.

The judge who made the original decision will also be re-considering a further £630,000 of the award.

http://news.bbc.co.uk/1/hi/england/london/3742704.stm

Ciaron Dunne
Member - 85 posts

Ernest,

The Provision and Use of Work Equipment Regulation 1998 require that equipment provided for use at work is safe for use and maintained in a safe condition. There are also numerous references in specific health and safety legislation relating to the fact that equipment must be maintained in safe working order.

With regards heating systems, the Workplace (Health, Safety and Welfare)Regulations 1992 require employers to provide a reasonable working temperature. I would suggest you download the Heating and Ventilating Contractors' Association (HVCA) checklist for the inspection of heating systems:

http://www.hvca.org.uk/hvcapdf/ia/Technical/checklists/maintenanceintro.pdf

The HVCA also publishes several other inspection checklists for building services, which can be found on www.hvca.org.uk under the heading 'Inspection and Assessment'. You can also call the HVCA on 020 7313 4900.

With regards fire alarms, the Fire Precautions (Workplace) Regulations 1997 make provision for the maintenance of frire safety devices. To be considered suitable, a fire alarm system must be designed, installed, commissioned, maintained and tested in accordance with the requirements BS 5839. If you have specific queries about maintenance of fire alarms, you could try the British Fire Protection Systems Association (BFPSA), 020 8549 5855, www.bfpsa.org.uk

Different building services have different maintenance requirements and standards, and I would suggest that your best source of information would usually be the supplier. Hope the information above helps point you in the right direction. Please don't hesitate to ask if you have any further questions.

Ciaron Dunne

Workplace Law

Ciaron Dunne
Member - 85 posts

Not sure about private disputes but - from a workplace point of view - it is the responsibility of the car driver to ensure that he/she has suitable visibility before driving. Best practice for a property manager is to place non-adhesive notices under the windscreen wiper on the driver's side. This ensures high visibility but does not leave a residue of adhesive to impair vision.

Ciaron Dunne
Member - 85 posts

Hi Rupert,

We passed your query on to Peter Harris, Senior Environmental Consultant at Atkins Environment. Peter has kindly provided the following response, which I hope helps:

The main assurance to be sought is that the wastes are being correctly categorised and despatched to sorting or disposal sites that are licensed to handle the waste types concerned. Things to check are:

* Does the transfer note contain a correct and accurate description of the wastes, and are the new EWC (European Waste Catalogue) codes being used?

* Are there any materials in the waste that would be classed as hazardous waste under the new EWC categories?

* Does the waste contractor possess a carriers license, and do the downstream sorting or disposal sites hold waste management licences?

Duty of Care requires that waste producers take reasonable steps to ensure their wastes are being handled correctly - see the DEFRA guidance on this:

http://www.defra.gov.uk/environment/waste/management/doc/pdf/waste_man_duty_code.pdf

Whether the wastes are separated out at a tip is (in terms of legal compliance) not that important. This does though raise the question of why separation is occurring at a tip, rather than segregation on site (which may provide greater opportunity for recycling of materials, and incur lower collection charges).

Hope this helps,

Best regards

Peter Harris, Senior Environmental Consultant, Atkins Environment

www.atkinsglobal.com

Ciaron Dunne
Member - 85 posts

Brian,

I'm not sure about the acceptable levels for different substances. You could try the Government tackling drugs website at: http://www.drugs.gov.uk

Alternatively try Drugscope at http://www.drugscope.org.uk/ or on 020 7928 1211.

Ciaron

Ciaron Dunne
Member - 85 posts

Hi Ameera,

The consensus on the subject seems to be that the use of VDU screens cannot trigger seizures for photosensitive epilepsy. There is a wealth of useful guidance on the subject from the National Society for Epilepsy at:

http://www.epilepsy.org.uk/info/photo.html

On lighting, the British Computer Society facsheet advises:

"Modern office lighting is generally achieved using fluorescent tubes which also flicker to some degree. Slightly flickering screens and flickering lights may in some cases combine to flash at the rate which could trigger a seizure. Try to opt for natural lighting (being careful to avoid glare on sunny days) or ?old fashioned? incandescent light bulbs. Note: the newer style energy saving bulbs are in fact small folded up fluorescent tubes. Due to the technology employed, these type of bulbs are particularly prone to flickering."

You can download the HSE factsheet from:

http://www.bcs.org/NR/rdonlyres/7FA015AA-DC2A-4356-8996-2DBEBFA765FB/0/fs18.pdf

Hope that helps

Workplace Law Network

Ciaron Dunne
Member - 85 posts

Rosemarie,

Workplace Law will be publishing fuller guidance on business continuity planning later this month: hopefully this will help you put together a policy. We will alert you when the guidance is publshed.

Regards

Ciaron

Ciaron Dunne
Member - 85 posts

Charlie,

We recently published an article on the implications at:

http://www.workplacelaw.net/display.php?resource_id=4709

Hope that helps

Ciaron

Ciaron Dunne
Member - 85 posts

Sonya,

I put your query to Alan Masson, who is the head of employment law at MacRoberts solicitors. His response is summarised as follows:

- Generally, mitigating circumstances are an explanation put forward to a court, when pleading guilty to a charge - the effect being not to exculpate the accused from the doing of the act concerned but to at least justify or explain it to some extent, in the hope that it can have the effect of persuading the court to reduce the penalty.

- For example, someone rushing their wife (who is in labour) to hospital, who speeds and jumps a red traffic light, if charged with dangerous driving, might in mitigation plead the circumstances which led to him doing so. The result might be that the penalty imposed might be reduced or a lesser charge e.g. speeding accepted instead.

- However, it does involve an admission of guilt or, if not in a criminal context but say in an employment situation, an acknowledgement of fault coupled with an excuse for the behaviour. The aim is always to lighten the consequent penalty.

Does that help? I think that - by definition - where there are mitigating circumstances there must have been some sort of culpable action.

Ciaron

Ciaron Dunne
Member - 85 posts

That's also the definition given by www.thelegaldictionary.com - it seems to make sense.

Ciaron Dunne
Member - 85 posts

Hi Peter,

The main statutory duties in relation to emergency lighting are:

* The Fire Precautions (Workplace) (Amendment) Regulations 1999 require all employers to conduct a fire risk assessment: one of the considerations for the risk assessment to address is the need for emergency lighting.

* The Building Regulations Approved Document B, Fire Safety (which applies to all new buildings, refurbishments, alterations, etc.) states that all escape routes should have adequate artificial lighting. Essentially, all escape routes require emergency lighting: other areas specifically requiring emergency lighting are set out in a table (table 9). You can download the document (PDF format) from:

http://www.odpm.gov.uk/stellent/groups/odpm_buildreg/documents/page/odpm_breg_027756.pdf

There is an useful Q&A about emergency lighting on the website of the National Inspection Council for Electrical Installation Contracting (NICEIC):

http://www.niceic.org.uk/approved/emergency.html

With regards certification, the NICEIC recommends the following:

--

On completing the installation of an emergency lighting system, or part of it, or of a major alteration to an existing installation, an emergency lighting completion certificate should be supplied to the occupier/owner of the premises. A copy of this certificate may be required by the enforcing authority.

On completion of a three-yearly inspection and test schedule, an emergency lighting periodic inspection and test certificate should be issued to the occupier/owner of the premises. This certificate should be supplied at intervals of no more than 3 years or on the completion of a major alteration or addition to an existing installation, or at such other times as required by the enforcing authority. A copy of this certificate may be required by the enforcing authority.

A log book should be kept on the premises in the care of a responsible person appointed by the occupier/owner and should be readily available for examination by any authorized person. The log book should be used to record the following information:

a) Date of any completion certificate including any certificate relating to alterations.

b) Date of each periodic inspection and test certificate.

c) Date and brief details of each service, inspection or test carried out.

d) Date and brief details of any defects and of remedial action taken.

e) Date and brief details of any alterations to the emergency lighting installation.

--

The main guidance on emergency lighting is 'British Standard 5266, Code of Practice for the emergency lighting of premises other than private domestic premises, cinemas and certain other special premises used for entertainment'.

More information on the BS 5266 Series is available from:

http://www.bsi-global.com/Local+Authorities/Standards/Emergency+Planning/bs5266.xalter

Hope that helps

Ciaron Dunne

Ciaron Dunne
Member - 85 posts

OUT-LAW.COM has reported that the OFT has taken action against a businessman who was sending bogus data protection "registration" demands.

The action concerned businessman Peter Michael Hardy, who was involved with a firm known as the ?Data Protection Registration Department? from Emersons Green, Bristol.

The mailings sent by Hardy misled the businesses receiving them to believe that they were under a legal obligation to register with the sender immediately at a cost of £49.

Ciaron Dunne
Member - 85 posts

Further to this case report, Alan Mark has now launched an appeal. If the appeal is allowed, Mark will appear before the High Court later this year.

Ciaron Dunne
Member - 85 posts

All employers are required to issue employees with a written statement of terms of employment. A model employment contract is available from Workplace Law at:

http://www.workplacelaw.net/eshop/product_info.php?product_id=73

You may also be interested in a summary of the Fixed-Term Workers Regulations, which came into force in October 2002:

http://www.workplacelaw.net/display.php?resource_id=2594

Ciaron

Ciaron Dunne
Member - 85 posts

Hi Peter,

Unfortunately, we are not able to provide a complete answer to your query because there is so much that could be said. I can point you in the right direction for some of your queries, as follows:

Asbestos
http://www.workplacelaw.net/display.php?resource_id=365

Electrical/PAT testing
http://www.workplacelaw.net/display.php?resource_id=3258

Fire certificates
http://www.london-fire.gov.uk/fire_safety/at_work/fire_certificates.asp

Fire extinguishers
http://www.workplacelaw.net/display.php?resource_id=809

Fuel storage
http://www.workplacelaw.net/display.php?resource_id=2913

Gas safety
http://www.workplacelaw.net/display.php?resource_id=355

Lightning conductors
http://www.workplacelaw.net/display.php?resource_id=410

Pressure systems
http://www.workplacelaw.net/display.php?resource_id=1443

Water fittings
http://www.workplacelaw.net/display.php?resource_id=414

Unfortunately, we have no direct expertise in duct cleaning, generator, interceptor cleaning, and sprinklers. Hopefully other members can fill in the blanks in the forum, or suggest alternatives to the sources listed above.

If you need in-depth advice on these areas, I strongly suggest that you get Workplace Law Consulting involved - 0870 777 8881.

Hope that helps get you started.

Ciaron Dunne

Ciaron Dunne
Member - 85 posts

Stephen,

You may need to find a company law expert to answer this query; unfortuntely, we don't specialise in company law at Workplace Law.

However, from our experience the director of the new company may be correct in what he is saying: the debtor has no claim against his new company because this is a separate legal entity. The debtor may have a claim against the director personally, if he can prove that the director has broken his fiduciary duties and traded wrongfully.

Wrongful trading is a legal term, and can include a director trading where he does not have the ability to meet the debts he incurs whilst carrying out the course of his trade. It can be difficult to prove, because you must show that the director knew that he could not pay the debts that he was incurring while trading.

Hopefully, members may have something to add to that.

Ciaron Dunne

Ciaron Dunne
Member - 85 posts

Hi Anne,

We published a brief summary of the amendments to the Fire Precautions (Workplace) Regulations 1997 and the Management of Health and Safety at Work Regulations 1999, which you may find helpful. The summary was written by Mark Tyler of CMS Cameron McKenna:

http://www.workplacelaw.net/display.php?resource_id=4003

My understanding is that the amendments opened up a new area of liability for employers. Employees can now claim damages from their employer in a civil action, where they have suffered injury or illness as a result of the employer breaching the regulations mentioned above (e.g. by failing to carry out a risk assessment).

Previously, employers could be prosecuted by the enforcement authority (e.g the HSE) for such breaches, but could not be sued.

Ciaron

Ciaron Dunne
Member - 85 posts

Gail,

I imagine it depends on the contracted hours, so you would have to see the employment contract in question. If someone is contracted to work a 40-hour week, then it would be a change in terms and conditions. The 48-hour max itself is calculated over a 17-week rolling week.

Ciaron