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Dale Collins - Bond Pearce LLP
Online advisor - 9 posts
Hi Mike
As you are no doubt aware, a company may be prosecuted under the Health and Safety at Work Act 1974, for breaches of the general duties imposed on employers under sections 2 and 3 of the Act. If convicted there could be a significant fine.
The Act does not have extra-territorial application - thus the company could only face liability if the breach of relevant duty took place in Great Britain. However, it does extend to certain premises and activities in the territorial sea adjacent to Great Britain and to areas designated under the Continental Shelf Act 1964. Thus, the company could still be liable for an offshore incident. The most obvious example is where there is a failure in Great Britain to properly assess the risks associated with the offshore activity and a failure to take reasonably practicable steps to minimise the risk. This, in the circumstances arising in the question, would include the usual requirements to check the competence of the third party provider etc. If the failure to do so led to the injury/death, the company should expect to be found liable.
So far as the potential for corporate manslaughter is concerned, post 6 April 2008, the 2007 Act applies where the harm resulting in death occurs in the UK, in UK territorial waters, on a British ship, aircraft or hovercraft, or on an oil rig or other offshore installation.
In short, the answer to the question is that there is a responsibility/link back to the company under both H&S legislation and Corporate Manslaughter legislation should an employee be injured or killed during a company organised activity arranged by a third party with an offshore venue.
Please contact me if you require greater detail
Dale Collins 0845 4156666
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Dale Collins - Bond Pearce LLP
Online advisor - 9 posts
As we all know, the principles of good health and safety management require employees to be informed of the contents of the health and safety policy, the hazards and risks identified by the risk assessments carried out in pursuance of that policy and the control measures in place to minimise the identified risks.
However, there is no legal requirement to display a hard copy of the general policy on health and safety. The law does require it to be brought to the notice of all employees but does not specify how that should be done.
I see no reason why it should not be made available via an intranet provided the employer is satisfied that, in practice, this is effective in communicating the contents to employees.
There are two documents that must be displayed by law (and this may be where the confusion has arisen):
1. A copy of the certificate of Employers Liability Insurance.
2. A Health and Safety Poster. This is available in standard format form HSE for £6.38 plus VAT (ISBN 0 7176 2493 5). In addition to the standard text on the poster, the employer identifies on the poster who has responsibility for health and safety management, who is the contact point for employee consultation and the address of the enforcing authority.
I hope this assists.
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Dale Collins - Bond Pearce LLP
Online advisor - 9 posts
Hi Dave
In general terms the word "accident" simply means an incident which was not intended by the recipient.
This has been both restricted by RIDDOR through the requirement for an injury to flow from the incident (subject to the dangerous occurrence sub-section) AND extended through the definition of "accident" in Reg 2(1) as including non-consensual physical violence to a person at work and an act of suicide.
Thus, in your scenario, as the strained back has been caused by the lifting activity, the lifting activity is the accident as it has led to the injury (and would therefore be reportable if it fell within the specified reporting criteria). The facyt that the load was light is not relevant so far as RIDDOR is concerned.
Although not in the context of RIDDOR, the recent DEEP VEIN THROMBOSIS & AIR TRAVEL GROUP LITIGATION (2003)considered the definition of "accident" for the purposes of Art 17 Warsaw Convention, and found that the definition of an accident could be broken into two elements: (a) there must be an event; and (b) the event must be unusual unexpected or untoward. In that case it was found that a failure by the Air Authorities to advise on the risk of DVT was not an accident as it could not be said, as the claimants sought to argue, that the failure by the defendants to advise of the risks of DVT was an event. To the contrary, inaction was a non-event, the antithesis of an accident.
I hope this assists
Dale Collins
0117 9174064
dale.collins@osborneclarke.com
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Dale Collins - Bond Pearce LLP
Online advisor - 9 posts
Good afternoon Harry
It is my view that it is wrong for an employer to expect/request contractors to undertake the task of fire marshall. The obligation on the employer is to ensure there are adequate systems in place to ensure the safety of staff and others, and he can only do this by asking employees to accept the duty of fire marshall (subject to adequate training) or employ competent external assistance.
The employer has no control/authority over the work being undertaken by the contractors (subject to contractual oversight) and cannot insist on them undertaking additional duties. The contract the contractor holds with the employer would need to be amended (and the contract value probably increased) if it were to be agreed that the contractors were to undertake the addidtional duties.
The emplyers insurers should also be notified that external contractors were to be used.
I hope this assists
Dale Collins
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Dale Collins - Bond Pearce LLP
Online advisor - 9 posts
Good morning John
The duty to report an accident to a non-employee only arises where the non-employee is injured in an accident arising "out of or in connection with work" AND it results in them being taken to hospital for treatment.
There is certainly an argument that the incident referred to arose "out of or in connection with work" if the incident arose due to a failure to supervise those on site properly and/or through the condition of the premises (lack of adequate lighting).
However, even if that is the case, the duty only arises if you know that the person was then taken to hospital from the premises.
Please do not hesitate to contact me to discuss further should you wish.
Dale Collins
0117 9174064
dale.collins@osborneclarke.com
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Dale Collins - Bond Pearce LLP
Online advisor - 9 posts
Good afternoon Peter
As to what most firms do, you will have to wait to see if other persons on the Network respond to the question and provide practical, real-life examples. What I can do is provide the broad legal view as to steps the employer should take in such circumstances.
First, as the travel abroad is part of the employees working practice it must be risk assessed by his employer. Such a RA should cover not only health and safety issues, but also personal security issues.
Secondly, the RA should consider the feasibility of alternative methods of doing the work, for example, can it be done from the UK via videolinks etc.
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Dale Collins - Bond Pearce LLP
Online advisor - 9 posts
Good afternoon Chris
Sorry for the delay in responding; I have been in court.
The simple answer to your question is "no", other than having to consider the young age of the persons you are protecting whose responses may be different to older persons in similar circumstances.
There are other considerations beyond the assessment itself and, although I am sure you are well aware of the position, as the answer is open to the forum it may be worth detailing those issues.
1. Enforcement, ie who is liable?
Most independent schools are charities.
The charitable status of a school may be constituted:
under Royal charter (letters patent)
by special act of parliament
under the Companies Act
by a Certificate of Incorporation under Part VII Charities Act
as an unincorporated trust with a charitable scheme
Thus the person responsible will either be the proprietor of the school, the company or the board of governors (trustees) etc.
2. Basic Fire law re: independent schools
a) A Designation Order has not been issued in respect of schools so the FPA does not apply.
b) There may be a change of status if dorms or boarding houses are subject to summer letting and are advertised to the general public so that they go beyond the general purposes of education.
c) Secretary of State has power under s469 of the Education Act 1996 regarding the suitability of school premises. This is addressed by local fire authorities as part of the school inspection programme
d) The Fire Precautions (Workplace) Reg's will apply to all parts of the school
I hope this assists. Please ring me should you wish to discuss further.
Dale Collins
0117 917 4064
dale.collins@osborneclarke.com
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Dale Collins - Bond Pearce LLP
Online advisor - 9 posts
Good morning Andrew
I will assume for the purposes of this answer that the spec does not prohibit a pressure above 250 bar.
Whilst not in itself illegal, by running the fitting beyond its specification you are creating a number of other problems, for example;
1. Health and Safety at Work Act
The company is under a duty to provide a safe system of work, which is itself linked with the requirements to provide and maintain equipment and to use such equipment in accordance with its abilities. By KNOWINGLY using equipment beyond its spec it could be argued that you are increasing the risk of failure and, therefore, injury to employees.
2. Civil claims for damages
Again by using the fitting beyond its specified limit it could be argued, should there be a failure due to the limit being exceeded, that the company has acted negligently, and, therefore, should anyone be injured a claim for damages would be made and would very likely be successful.
There is a further possibility of action but this is subject to the article falling within the wide definition of "work equipment" (which includes "installation for use at work") within PUWER, and as I don't know how or where it is being used, I cannot comment on.
All in all it is not a good idea to use any tool or equipment beyond its known capabilities not only for the above reasons, but also because it may have an effect on any insurance policies you hold, for example, if it is discovered by your insurers that you were doing something in a way which was clearly beyond its capabilities they may try to argue that your actions take any claim outside of the policy.
Please ring me should you wish to discuss this further.
Dale Collins
0117 917 4064
dale.collins@osborneclarke.com
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