Comments by Kelly Mansfield

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Hi Christine,

In the first instance, I would recommend that you read the Workplace Law Network factsheet on overseas workers, which you can find here:
http://www.workplacelaw.net/news/display/id/11010

This details your duties in relation to the health and safety of overseas workers and offers some pointers on risk assessment, etc.

The factsheet also provides links to the Foreign and Commonwealth Office, where you can find information on the risks within specific countries and the precautions you might need to take.

I hope this is helpful. If you need further assistance then please come back to me.

Best wishes,
Kelly
Head of Network
kelly.mansfield@workplacelaw.net

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

The following advice comes from Mahendra Mistry, an Electrical Engineering Specialist with Bureau Veritas:

"When purchasing new equipment from a reputable supplier it must be visually inspected when installed then fully tested after 12 months. Following this the next inspection and testing then will be in accordance with the inspection and testing regime for that class of equipment set by the company. Further information on inspection and testing frequency can be found in the following IEE publication: Code of Practice for In-service Inspection and Testing of Electrical Equipment."

Hope this helps!
Kelly

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Mike,

In order to answer your query we spoke to Sunil Shah, who is the Technical Director and Head of Sustainability at Jacobs and has years consultancy experience within the built environment.

He advises:

"If the building has a centralised plant, it is up to the landlord as to whether they issue one EPC for the building, or for each tenanted area. They have to do one, but have a choice over which one they choose to do.

"If a building has decentralised plant – if the building is being let or sold as a whole, only one EPC is required. However, if the building is being part sold or let, an EPC is necessary for the area that is being sold or let. Therefore, if each floor is being sold or let separately, an EPC is required for each demised area.

"If the building is sub-let, the landlord has the ultimate responsibility to provide the EPC. The tenant will need to provide for their demised areas based upon the above whether the building has a centralised plant or not."

I hope this helps to answer your query.
Best wishes,
Kelly

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Hi Rosemary,

In order to answer your query I have referred to the Corporate Manslaughter and Corporate Homicide Act: Special Report, published by Workplace Law Group. Within the report, insurance broker Simon Hickman provides the following guidance:

"As usual, insurers will not provide cover for fines or penalties of any kind and this is likely to extend to any publicity order (see Chapter Four) made by the courts.

"The cover is therefore for costs and expenses for which an organisation will be legally liable to pay in the defence of an action.

"Typically the types of policies that have provided cover in the past are directors and officers indemnity policies. These policies provide cover for wrongful acts committed by or alleged to have been committed by a director or officer of the organisation. In the future, these policies will not provide cover for corporate manslaughter as the policy covers the individuals and not the corporate entity. However, it is possible to extend the policy to cover the corporate entity for the defence and investigation costs and expenses. The problem area here is that the policy may well share the indemnity provided with that of the cover provided to the individual directors and officers. This will reduce the level of cover available if they are also facing individual charges under health and safety legislation.

"[Public and employers liability insurance] is likely to be the main policy under which corporate bodies will obtain cover. Typically these policies in the past have provided a level of cover for the costs and expenses legally incurred in the defence of criminal proceedings for offences under health and safety legislation.

"Current policies should be checked to see if the existing health and safety cover extends to similar safety legislation, which should include the new Act."

I hope this information is helpful. There is further detail available on this and all other issues relating to the new Act within the report. See: http://www.workplacelaw.net/news/display/id/14115

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Peter - we've actually just published a new briefing on energy certificates, which might help to clarify things for you.

See: http://www.workplacelaw.net/news/display/id/14335

Hope this helps!
Kelly

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Hi all,

I thought I'd let you know that there is a new group at www.workplacelaw.net/groups dedicated to disability issues.

It's only just been introduced but is intended to offer members a place to go to discuss any disability-related issues, ask for support from other members and experts, and share experiences.

Phil - I've invited you to join the group already, feel free to add your comments and queries to this area.

Nice to see some faces in the forum :-) Those of you who haven't uploaded your pictures yet can do so by clicking on 'profile' in the blue panel on the left-hand side of the homepage once you are logged in.

Cheers,
Kelly

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Martin - a brief furter note re. insurance. Simon Hickman, a Chartered Insurance Broker and author of our Special Report on the new Act, stresses the need to check that existing health and safety cover under public and employers liability policies extends to similar health and safety legislation, which would include the new Act, rather than assume that it automatically extends.

As you say, insurers will not provide cover for fines, and this will extend to publicity and remedial orders - other penalties that will be available under the Act and that could prove costly!

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Martin,


Thank you for your comments.

As you say, there are no new duties under the Corporate Manslaughter and Corporate Homicide Act. So, this doesn’t mean preparing for any new duties, but instead taking the opportunity to check that you are fully complying with existing health and safety duties; that you have effective health and safety policies in place, and that they are well communicated and monitored throughout the organisation. Our survey shows this isn’t necessarily the case.

One particular area of confusion, which the survey was intended to highlight (as opposed to mislead!) is that of insurance. It is a complicated issue when it comes to corporate manslaughter – as the Chartered Insurance Broker writing in our Special Report affirmed – because existing policies covering individuals won’t cover the corporate entity. And organisations must check that any policy they have covers them for the costs associated with action under the Corporate Manslaughter and Corporate Homicide Act – as a new piece of legislation – rather than just assume that it does. Defending this action could prove costly for organisations not covered.

The aim of our survey – and the ensuing article – was to highlight these concerns and ensure organisations prepare themselves for all eventualities, rather than assume they’ll never be prosecuted because it’ll be too difficult to prove.

The survey is not masquerading itself as “research”, and (as with the vast majority of online surveys) has its weaknesses with regard to sampling (respondents need access to the internet, exposure to the survey is limited to Workplace Law members etc.).

We try consciously very hard never to sensationalise the impact of legislation. Our approach has always been that the law is there to help society as a whole (including businesses and the people who work in them), an attitude that we have applied to some major recent issues such as changes to the law relating to asbestos, work at height, access for disabled people, and fire safety. We never adopt the ‘too much red tape’ approach. We’re very happy to stand by the survey findings.

In the light of your comments, we’ve moved the article to the ‘Network News’ (PR about the Network) area of the site, rather than the newsroom.

Thanks again for your feedback. I’d be interested to hear other views on corporate manslaughter legislation, which still seems to be surrounded by a strange silence given its magnitude.

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Hi Hayley,

Gary Callaghan is a Fire Consultant for Workplace Law. He provides the following guidance in response to your query:

"With regard to the first part of the question ‘How often should Fire Wardens/Fire Marshals receive external training?', essentially, I am not aware of any requirement (legal or implied) for employees to be specifically provided with EXTERNAL training. The essence of the matter is the level of professional competence of the person providing training. Whilst it is acknowledged within statutory guidance that persons who assume roles with extra responsibilities (Managers, Fire Marshals et al) should be considered for additional training sufficient to allow them to safely carry out their specified function, the person providing this training could be someone from within the company who has acquired/been provided with the underpinning skills, knowledge, training and experience etc to be able to cascade the training to their peers (in this case nominated Fire Marshals) within the business.

"On the upside, if a company decided to equip one of their own employees with the aforementioned underpinning skills, knowledge, training and experience, etc. to be able to cascade the training, someone (in our case Workplace Law Group) has to provide the nominated person with that level of competence in the first place.

"Is there a legal requirement for refresher training? Quite simply, the answer to this question has to be ‘yes’, however it is necessary to also look beyond the Fire Safety Order when considering this question.

"Primarily there is the implicit requirement contained in the Health and Safety at Work etc Act 1974 to provide employees with information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, their health and safety at work.

"The Management of Health and Safety at Work Regulations 1999 - Approved Code of Practise and Guidance also states:

Regulation 13: ‘Capabilities and training’

(1) Every employer shall, in entrusting tasks to his employees, take into account
their capabilities as regards health and safety.

(2) Every employer shall ensure that his employees are provided with adequate
health and safety training-

(a) on their being recruited into the employer's undertaking; and

(b) on their being exposed to new or increased risks because of –

(i) their being transferred or given a change of responsibilities within the employer's undertaking,

(ii) the introduction of new work equipment into or a change respecting work equipment already in use within the employer's
undertaking,

(iii) the introduction of new technology into the employer's undertaking,
or
(iv) the introduction of a new system of work into or a change respecting a system of work already in use within the employer's
undertaking.

(3) The training referred to in paragraph (2) shall-

(a) be repeated periodically where appropriate;

(b) be adapted to take account of any new or changed risks to the health and safety of the employees concerned; and

(c) take place during working hours.

"The content of Article 21 of The Fire Safety Order 2005 ‘Training’, is essentially a ‘copy out’ of the content of Regulation 13: ‘Capabilities and training’ of The Management of Health and Safety at Work Regulations 1999 and makes mention of the need for training to be repeated periodically where appropriate.

"The guidance documents published by the CLG and which are available to support the ‘Responsible Person’ make an informed judgement on how to comply with the requirements of the Fire Safety Order simply states that 'refresher training should be repeated at pre determined intervals' and 'as often as is necessary'.

"With regard to the 'at pre determined intervals' aspect, I am not aware of any ‘Industry Standard’ for when such training should be repeated. I am aware of companies who conduct their refresher training annually, whilst others consider a two- or three-year period to be appropriate.

"I would suggest that a great number of factors can influence the 'as often as is necessary element' of when refresher training is carried out, and in addition to the matters discussed in the above mentioned Regulation 13, I offer a few examples more specific to fire safety in premises to clarify this:

1. When staff are moved to a different part of a large or complex building, or are required to undertake a different role, or their work responsibilities have changed;
2. Where an employee has a defined role in the evacuation of disabled persons or those identified by the Fire Risk Assessment as being especially at risk (this is a role commonly associated with the duties and responsibilities of a Fire Marshal);
3. Where changes have been made to the Emergency Plan particular to the premises;
4. Where structural alterations have affected the means of escape from a building.

"It is worthy to note that whatever training frequency is considered necessary in relation to fire safety within premises, it should be verifiable. Stakeholders such as The Fire Authority and insurance companies may wish to examine your records as part of any routine audit or inspection they carry out.

"There are 17 references specific to training contained in the Fire Safety Order, the great majority of which refer to the need for a person to demonstrate sufficient “experience, training, knowledge or other qualities” to enable him to comply with the requirements of that particular element of the Order in which each respective reference to training is contained".

I hope this information answers your query. Workpace Law does offer Fire Warden training, the details of which are included in our training supplement, downloadable from here: http://www.workplacelaw.net/specialoffers/view/id/3261
If you want to discuss this in more depth call Holly James on 01223 431 072

Best wishes,
Kelly Mansfield
Head of Network

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Hi Paul,

There are a few aspects to your query, namely:
- vehicle maintenance;
- driver capability; and
- the effect of the Corporate Manslaughter and Corporate Homicide Act 2007 on issues around driving at work.

All of the above are discussed in Workplace Law's newly published Corporate Manslaughter and Corporate Homicide Act: Special Report, which I have referred to in order to answer your query.

The Corporate Manslaughter Act doesn't itself introduce any new duties but does place a new focus on the actions of senior management in managing health and safety. It also means employers / fleet managers need to address their insurance policies to ensure they are covered for action under the new Act.

The police are already involved in investigating road accidents and under the Act will assume further responsibility for investigating workplace deaths.

John Maslen, author of a dedicated chapter on driving at work in the Special Report, offers the following information:

"Police officers investigating fatal crashes are told to assume the death is an unlawful killing until proved otherwise. Therefore, fleet managers must expect all fatal crash investigations will be extremely thorough and will involve delving into all of the relevant health and safety and employee duty of care procedures and policies in place within a fleet...

"The police will lead most most investigations, but the HSE should be contacted when there is sufficient indication that failures in safety management by the employer have significantly contributed to the accident...

"The following are instances where this might apply:

- Driver competency: The employer has failed to ensure that drivers are competent and capable of doing their work in a way that is safe for them and other people; for example, has the employer considered whether the driver has the necessary driving licence and if so whether further training is required?
- Fitness and health: The employer has ignored obvious signs that an employee is unfit to drive; for example, from the effects of drink or drugs.
- Vehicle suitability: Vehicles are being used for a purpose for which they were not intended; for example, saloon cars used to transport heavy or bulky goods without appropriate means to secure the load safely.

"In the event that an accident involves an employee driving on company business, the police will be looking to establish:

- why the vehicle was at the scene;
- the mechanical condition of the vehicle - regardless of ownership;
- the physical condition of the driver, including the signs of fatigue; and
- the legalities of both vehicle and driver - licence, MOT, insurance, etc.

"It is for these reasons that a vehicle and driver audit trail is required to show that the policy for employees driving on company business is based on health and safety best practice guidelines...

"If you believe that the employee has a responsibility to look after a vehicle, think again. If you require the employee to check safety systems, document this and most of all train the employee how to do the checks and monitor that they do.

"If the employee is using their own vehicle, implement a reasonable system to ensure the vehicle is properly maintained. Do not forget that if the employee is acting in the course of their employment, the fleet may still ultimately be held responsible for the employee's negligence by virtue of vicarious liability, whoever owns the vehicle."

I hope the above information answers your query. The Special Report goes into further depth on occupational driving issues in relation to corporate manslaughter, see: http://www.workplacelaw.net/news/display/id/13879

You should also look out for a dedicated report on driving at work from Workplace Law (Driving at Work 2008: Special Report) due to be published on 21 April, which will provide comprehensive guidance on compliance issues surrounding occupational driving.

Best wishes,
Kelly Mansfield
Head of Network

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Hi Kelvin,

In order to answer your query I spoke with David Faithful, who is a Solicitor and Fleet legal consultant. He says:

"The answer is potentially yes, although the company has a policy for prohibitting mobile phone use for business purposes whilst driving, the employer has set up a mechanism for use of the mobile phone while driving by providing both the phone and the car, it is forseeable that the employer will use both while off duty.

"I am assuming that the phone is a hands-free one as otherwise it should not be used while driving at all.

"Provided the employers policy bans the use of a phone while driving a company vehicle both on and off duty then this will form the basis of a defence".

I hope this helps - let me know if you need further guidance.

Regards,
Kelly

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Hi Tomek,

In order to answer your query, I spoke to Giles Green, Principal Scientific Advisor at Bureau Veritas HS&E Limited. His response is as follows:

The answer is, unfortunately, a little bit do-it-yourself.

The whole strategy should be based on a risk assessment, whether the premises are within the NHS, local authority, private or any other sector. It may be, for example that a local authority or privately run residential home for the elderly would have higher risk factors intrinsic in the exposed population than a well-woman or mobile blood pressure and cholesterol check clinic run by the NHS, which would clearly come under the of Department of Health guidance.

The real difficulties usually boil down to whether a risk is negligible or significant and whether one risk outweighs another. Examples of these could be an oversized water tank or slightly warm cold water (or slightly cool hot water) in the first case or the balance of risks when storing water for a sprinkler system or protecting users against scalding in the second case. The solution is that a decision needs to be made and it needs to be made by the appointed Responsible Person, who may very well choose to seek advice from others or from guidance documents.

As a general rule, conventional cold and hot water systems within buildings which are designed, installed and operated correctly constitute a low to very low risk of legionellosis and following the general guidance in L8 is quite sufficient. Even where the exposed population is rather more susceptible to infection than average (as may be the case in some care homes), it may well not be appropriate to do any more, as a regime which controls legionella at insignificant concentrations does exactly that, controls legionella at insignificant concentrations. Where the exposed population is at exceptionally high risk and may be vulnerable to infection at very low exposure levels, as may be the case in high dependency or intensive care wards, extraordinary measures may be required.

The HSE advocate testing for legionella only in certain types of premises and under certain circumstances and point out that negative results may lead to a false sense of security. I would recommend also sampling and testing in a rationalised (most definitely not random) way as a check on the effectiveness of the precautions and a challenge to the assumptions underlying the risk assessment. In my experience, this has uncovered flushing regimes which were simply not being carried out, despite the signed records stating that they were, and peculiarities of systems which were not evident in the course of routine monitoring or inspection in the course of risk assessment. It is, however, important never to use sampling and analysis as a substitute for control measures, either by spending money which would otherwise have been used to control the risk, or by accepting unsatisfactory conditions simply because the analysis has proved negative.

With kind regards,

Giles Green, FWMSoc., Practising Associate of the Academy of Experts
Principal Scientific Advisor

Bureau Veritas HS&E Limited

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Mike - thanks for your query on this. A member of the Network team will call you this morning to discuss further, and we will look into it urgently.

Regards,
Kelly
Head of Network

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

We had an interesting debate in the Workplace Law offices this week, as to whether, in a multi-tenanted building that is in use roughly between 9am and 5pm each day, you should turn the lights in the toilets off when you leave (assuming there is nobody else still on the loo, of course!).

The toilets where Workplace Law is based are also used by two other organisations located on the same floor of the building. Therefore people are in and out all day.

Next to the light switch in the toilets, there is one of the Carbon Trust's 'switch it off' stickers, and while some have very much got into the habit of turning the light off on their way out (so much so that some absentmindedly switch it off leaving some poor soul sat on the loo in the dark!), others are of the opinion that with people coming and going so frequently, more energy must be wasted by constantly switching the light on and off than if the lights were just left on between 9am and 5pm.

It's a point we've yet to prove or disprove - what do you think?

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Wendy,
The Waste Management Policy and Management Guide documentation was fully revised and updated in April of this year.

It comprises downloadable documents as opposed to a hard copy book, enabling you to customise the policy to your company's requirements.

I hope this helps.
Kelly

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Christopher Edgcumbe-Rendle, Business Development Director, Cobra Beer has today provided Workplace Law with a comment on this case. He says:

"At Cobra Beer we take our environmental responsibilities extremely seriously. It is clear that during the period 2003-05, we did not take the necessary steps to engage with the Environment Agency to meet all of our obligations, for which we apologise unreservedly.

"Since being made aware of the situation, we have cooperated fully with the Environment Agency and joined an Environment Agency accredited compliance scheme to ensure we now meet all Producer Responsibility Obligations. Our own internal review of the situation has now led to appointing a full-time Operations Director and Operations team to ensure that our production policies and practices go even further to fulfil our genuine commitment to environmental responsibility.”

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Dear Chris,

To answer your query, I spoke with Karen Clarke, a Solicitor with CMS Cameron McKenna, who provided the following response:

"Basically, both parties are bound by the terms of the contract that they have signed and if it doesn't allow for part payment upfront then the Contractor is not entitled to it.

"If the parties come to an agreement to make a payment which is outside of the existing terms of the contract then it would vary the payment terms of the contract and any such change should be agreed between the parties and made in writing to ensure that nothing else in the contract changes. You should be aware that if a payment is made without agreeing a change in writing then by the actions of making the payment you could be seen to have agreed to a variation in the contract and this could lead to contractual uncertainty."

I hope this answers your query!

Regards,
Kelly Mansfield
Workplace Law Group

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

We will be discussing the issue of HIV and AIDS in the May issue of Workplace Law Magazine, due out on 26 April.

The article looks in depth at how to put an HIV policy in place, issues surrounding recruitment, whether employees have a duty to disclose the condition, as well as some of the common fears and misconceptions surrounding the virus.

For further information see: http://www.workplacelaw.net/magazine/

Kelly Mansfield
Editor
Workplace Law Magazine

Kelly Mansfield - Workplace Law Network
Online advisor - 52 posts

Workplace Law's Driving at Work Policy and Management Guide was fully update this year. Version 2 is now available to download at http://www.workplacelaw.net/eshop/product_info.php?product_id=327
The new edition updates several elements of the original including the implications of the Road Transport (Working Time) Directive and the Regulatory Impact Assessment.

As with all policy documentation from Workplace Law Publishing, this policy has been fully reviewed by our qualified lawyers.