Comments by Smita Jamdar

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

The HSE's expectation is that, for an employee working for a UK company outside the UK, the UK company should do everything reasonably practicable to safeguard the individual (e.g. through increasing awareness of risks, vaccinations, research on the destination - location and site). Whilst abroad, the individual would be expected to follow any local health and safety laws. Where an accident occured to a UK worker abroad, the HSE would not have any power to investigate, instead this would be left to local authorities. Any criminal prosecution for breach of health and safety legislation therefore would be brought abroad and not in the UK. If the employee sustains injuries through the UK company's negligence, e.g. a failure to provide proper information about the destination, then the employee could bring a civil claim for damages against the UK company. It is important to check that the company's EL insurance covers activities abroad.

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

The seller should have had a management plan showing the location and condition of ACMs or presuming that ACMs were present throughout. This ought to have been sought by you/your advisors prior to purchasing the building so that appropriate provision could have been made in your contract for the costs of remedying any defects. Now you've got the building, the obligation to manage the asbestos falls on you and/or any tenant in occupier. Your contractual docs may have had something in it to the effect that the seller wasn't aware of any breach of the law, so you might be able to claim some of these costs under that provision, which could be costly. Alternatively - report them to the HSE. It won't get you a contribution to the costs, but it might make you feel better!

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

It is the duty of an employer to provide for employees, safe access to and egress from the place of work. This includes therefore ensuring that slip/trip hazards are eliminated or adequately controlled. An employer also has a statutory duty to protect non-employees who are also affected by their undertaking, which could for example include visitors to their premises.

In theory therefore, both the building owner/occupier, and yourselves as contractors would have a statutory duty to protect both your own employees, and any other persons affected by your undertaking. To protect yourselves as contractors, from liability for breach of this statutory duty, you need to show that you have done everything that is reasonably practicable to avoid the accident/occurence.

For example, if a company informed a contractor that they wished their paths to be gritted following a heavy frost, it still remains that company's duty to protect both employees and non-employees affected thereby. It is reasonable to expect that company to check the work of the contractor, to ensure paths have been gritted properly, and if they failed to do so, it may be the company who faces liability for breach of statutory duty.

If however, it is the contractor who is at fault, they also face the posibility of liability for breach of statutory duty.

Being held accountable for breaches of health and safety legislation is only one means by which either the company or the contractor may face liability.

Should a visitor slip on the ice and make a civil claim for, say, negligence, this claim may be brought in the first instance against the compnay owning or occupying those premises. The contractor should bear in mind however, that they could be joined into the proceedings if they fell below the standard reasonably to be expected from them, and as a result were somehow responsible for the injury.

Depending upon the terms agreed between the company and the contractor, there is also the possibility of a company attempting to recover losses from the contractor, where they have had to pay out in relation to an inury, and they believe that it was due to the fault of the contractor.

Practically, it may be of most use for a contractor to consider incorporating into their working procedure some way of ensuring that a client/company has checked that the gritting carried out covers all necessary areas. This way, the contractor will have gone further to meet their duty and therefore will be in a stronger position to resist a claim. In terms of any delay in gritting, providing you tell the company roughly how long it will take for your people to get to the site, then again, you are likely to have done enough to avoid liability.

In the worst case scenario, to protect yourselves as contractors you may wish to check your insurance policy to ensure that you are covered for legal costs in the event that you have to defend a claim.

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

There are two relevant legal issues here.

Firstly, because the company is making available the car park as part of the employees' working environment, under the health and safety legislation, you have a duty to take steps to ensure that, so far as is reasonably practicable, the car park is safe for your employees to use. Generally, that means making sure that it is structurally safe and safe to enter and exit. But in this context, it could mean that if you know that there have been assaults or muggings, you have a duty to consider what can be done to lessen the risk of such attacks. That might include warning staff about the risks, improving lighting, providing CCTV or manned security guards. How far you need to go will depend on how great the risk is, and whether there is anything that will in practical terms in fact reduce the risk. Under health and safety legislation, you have no duties in respect of your employees' property, such as their cars or the contents of their cars.

Secondly, if you lead your employees to assume that you are taking some responsibility for their cars and other property, then you will have to exercise a reasonable degree of skill and care in protecting their cars whilst in the car park. Again that might include the measures I have outlined above, as well as putting in some sort of automated barrier. However, if you make it clear that you are taking no responsibility, for example by putting up signs that "vehicles are parked at your own risk", then you will not be expected to take additional steps to protect the vehicles. You cannot, unfortunately, opt out of your duties in respect of your employees' physical well being (as summarised above) in this way.

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

Dear Lindsay

Thank you for your recent enquiry on therapeutic treatments being made available to staff in the first aid room.

In my view the fact that the only area which is available for the treatments is the first aid area which will need the most thought.

First Aid

As an employer Biogen Idec has an obligation to ensure that there is adequate provision of first aid facilities at all times. Unsurprisingly for UK health and safety law there is no definition of ?adequate first aid? - it is up to each employer to assess what personnel and facilities will be appropriate and adequate. This will depend a number of factors including the nature and business of the company, the number of employees and the results of the company?s risk assessment.

Assuming that your current risk assessment has already identified the need for a first aid room, then the room will also need to be easily identifiable and easily accessible to stretchers. If possible, the room should only be used for administering first aid.

If however you are considering using the room for another purpose then the company must consider the implications of the room being needed in an emergency (particularly in light of the nature of injuries or accidents which could occur at your premises), the amount of time the room would be in use and whether the treatments in the room could be stopped and the people and equipment evacuated immediately so that they would not interfere with the administration of first aid (obviously a nail shape and polish would be easier to stop than a leg wax!) The therapist will also need to take into consideration the need for quick evacuation when deciding which treatments she can safely offer at your premises.

Premises and Equipment

As the occupier of the premises the company is under a duty to take reasonable care to ensure that the therapist will be safe in using the room for his/her treatments. The therapist should also see facilities in advance and determine whether the room and equipment (including the need for evacuation) would be suitable and safe for her and her clients.

If the therapist is bringing their own equipment I would recommend you obtain written confirmation that this is in good working order and regularly cleaned and maintained.

If she is likely to bring any chemicals onto the premises you should check that she has completed and retained any necessary records (e.g. for nail treatments) and that she makes you aware of the presence of these chemicals, where they are kept and confirms that they will not be left on the premises once she leaves or that a safe method of storage is agreed.

Insurance

You should satisfy yourselves that the therapist has adequate insurance and state that a condition of offering services at your premises is that this insurance is kept in place at all times and is renewed or increased when necessary. She should also be informed that it will be her responsibility to collect any necessary medical history from your employees.

Qualifications

I would also recommend checking the therapist qualifications and taking up references. It would also be worth explaining to your employees that you are not employing the therapist or recommending him or her and that any treatment is at their own risk and any problems would need to be resolved with the therapist.



Instruction

Finally as with any visitor the therapist would also need to be informed of your internal policies and procedures and given any relevant induction training, for example what to do in a fire alarm, and who to contact in an emergency.

Kind regards

Smita.

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

Dear Harry,

As you will appreciate, I do not know how widespread an issue this is for you and your clients, or how risky use of the compactors is, so my advice is necessarily in general terms.

The legal position is that both you and your clients have duties in these circumstances.

The clients should have risk assessments for the compactors and should give you comprehensible information on the risks identified and the measures they are taking to address those risks. You have a duty to consider the risks your employees face in light of the information you receive, and take appropriate action in response.

Training will obviously be a key issue in guarding against the risks identified. My view is that the duty to provide a "safe system of work" (which includes a duty to provide information instruction training and supervision) rests with you as employer - the employees are doing the work that you (rather than the client) tell them to do, and they are under your rather than the client's control. It is your duty to ensure that your employees are adequately trained for what you want them to do.

However, the client is also under a duty to ensure that your employees' health and safety is not adversely affected by the way that they (the client) conducts their undertaking. The "undertaking" in this context is likely to include the machinery they have on site which they require your employees to use. This means that they should co-operate with you to provide information relevant to training, and will need to be satisfied that your employees have been trained properly.

In deciding who is responsible for actually training the employees, the following points are relevant:

1. The client has no way of compelling your employees to attend training: you can always discipline them if they do not attend.

2. You would have no way of knowing what quality of training the employees had received, unless you undertook to check the training yourself.

3. You would have no way of knowing if your employees were implementing the training, unless you checked what they were doing in practice.

In practical terms it may well be that the best way to discharge both your and the client's duties is to have some training at the client's premises with one of your managers in attendance, but that is something that you are far better placed to judge than me.

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

Dear Tony

Thank you for your query, I have set out my advice below, but please bear in mind I wasn?t sure whether your employees were visiting commerical or domestic tenants and this will of course make a difference.

As you will be aware your duties under the Health and Safety at Work Act (both to your employees and others) will extend to lone workers away from the office, therefore it is impotant to consider the health safety and welfare of your employees and the tenants or for other people they will meet (e.g. other drivers on the road).

A general risk assessment will need to be done dealing with the risks of lone working, namely, more specific assessments may also be requried (it may be that your employees can be trained to undertake a dynamic on the job risk assessment if it is not practical for the premises to be visited in advance). Examples of areas which will need to be considered include equipment which needs to be used, manual handling, whether cash will be handled and the risk of violenve towards employees, will they have to deal with complaints, deliver unwelcome news or go into high risk areas and being left in a 1-2-1 situation with a stranger. I would also suggest that instruction and training is given to your employees on how to handle complaints or accusations being made against them and that there is a procedure in place (which they are aware of) for dealing with this (both at the time and subsequently).

Your employees will also need to be aware of any prohibitions which the company wishes to impose. Employees will also need to be physically fit enuogh to be competent and I would suggest that they carry a mobile first aid kit. You will need to ensure that your employee is fit to drive and that they have sufficient time to drive between appointments keeping to the speed limit. You will also need to ensure that they have the appriopate licence, that the car is roadworthy and insured. Employees will also need to be made aware of the firms policy on driving and responding to calls. For example, should they pull over when it is safe to do so and call back, or has an appropriate system been installed to allow them to answer the calls safely and legally.

I would suggest that there is a written procedure dealing with ?checking in and out? . For example checking in by phone when your employee arrives at the premises and suggested how long they expect to be there and agreeeing a time to ?check out? later when they have finished. It should be clear who they need to check in with and what to do if this person is away from the office. There will also need to be a procedure on what to do if the employee fails to check in - for example who should be notified, who will take action and how.

The employees will need to be given sufficient information, instruction and training to ensure they are competent to carry out the required tasks at the premises and consideration will need to be given to whether it is unsafe for any of these activities to be carried out by a lone worker (and/ or if lone working is prohibited by legislation)

If it proves impossible to monitor employees in remote locations, regular consultation with the employees will be required for example to monitor new risks, previously identified risks increasing and the effectiveness of any precautions that are currently in place.

Kind regards

Smita

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

Dear Monique

Thank you for you enquiry on employees working at home. I have set out my advice below.

1. Home workers

There is obviously a need for sensitivity when approaching the health and safety implications of the regulations as the company will be intruding to an extent into the employee's personal space. However, any area used for working at home must comply with the legal requirements which apply to workplaces. To assess whether these areas are compliant a suitable and sufficient risk assessment is required.

Employees working from home should be asked to complete an initial assessment to confirm that the equipment they are using is in satisfactory condition and that the working arrangements provide a compliant working environment. If the assessment highlights any difficulties, the need for remedial action should be assessed and implemented where appropriate.

Home workers should also be asked to declare who might be present other than themselves as the company has a general duty to ?others who may be affected by the work? e.g. the home worker?s family.

The assessment may be conducted by a safety professional, a manager or the individual concerned, but inexperienced staff must be led through the process. If the individual is required to complete the assessment consideration should be given as to general safety training.

The assessments should be recorded and updated if the work environment changes. If there are no changes an annual re-assessment should be sufficient.

Home workers will need to be aware of the company health and safety policies and who to contact if they have any concerns. Training provided to office workers should also be provided to the home workers.

I see from your enquiry that your company is involved in software development and if your employees use a computer at home, obviously the Display Screen Equipment Regulations will apply specific provisions if the employees habitually use a VDU for a significant part of their normal work.

Any equipment provided by the company should also be maintained by the company. The company will also need to comply with the requirement for routine inspection of Portable Appliances.

Kind regards

Smita

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

Dear Mr Hughes

Thank you for your recent enquiry regarding the delegation of health and safety responsibilities. I have assumed that in your organisation the trustees are the employer, but this will, of course, depend on the constitution of your organisation.

Before refusing to incur expenditure the trustees and the committee must be satisfied that the employer has done everything reasonably practicable to:-

1. ensure the health, safety and welfare at work of all its employees; and

2. ensure that other persons who may be affected by the undertaking are not exposed to risks to their health and safety

otherwise the employer will be committing an offence under the Health and Safety at Work Act.

Whilst the employer may delegate the day to day tasks related to health and safety to a manager, the responsibility for complying with these legal duties will always remain with the employer and can not be delegated.

The consequences of any refusal to implement suggested improvements would, of course, depend on a number of factors (please see below) however, if an incident did occur after the hazard had specifically been drawn to their attention and nothing was done, this would be a seriously aggravating feature.

Some examples of factors that would be taken into account in assessing whether the charity had complied with its duties are, the extent to which the hazard could have been avoided by implementing the suggested improvements, the level of risk posed by the hazard, whether there were more effective ways of reducing or eliminating the hazard and whether any alternatives were implemented. The answers should be easily identifiable from the charity?s risk assessment.

If the trustees and committee decide to veto health and safety suggestions, they should record the reasons for the veto in writing (for example as a result of risk assessments the risk was perceived to be very low or there was a more effective way of eliminating either the hazard which they implemented instead) and the trustees and/or committee should be confident that they have taken sufficient action to comply with their duties. The cost of making any improvements will be taken into consideration by a Court, but arguments that a course of action was not ?reasonably practicable? due to cost are unlikely to be viewed favourably unless it clearly involves a large outlay which would produce minimal benefit.

Finally, depending on the hazard involved there may also be other more specific duties that they have to comply with and these may be strict liability offences.

Kind regards

Smita Jamdar

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

Dear Mr Dingley

Thank you for your enquiry.

The main duty under health and safety law relates to the safety of employees at work, it seems unlikely that the employees would be classed as at work (unless they are playing as a corporate side within normal working hours).

The second duty is to conduct the company in such a way, as far as reasonably practicable, that non-employees who may be affected thereby are not exposed to risks to their health and safety. Whether this section could impose liability, in the circumstances you describe, would depend for example on whether a Court would hold that this provision of sports activities was part of your undertaking, this might depend on the level of control which the company is able to / should have retained over the premises and the equipment which are hired. If, for example the company hired equipment which caused an injury because it was inappropriate, then potential liability could attach to the company. In addition this duty could extend to other groups of people e.g. passers by and spectators.

If for the company was held to be running an event and an injury or incident occurred, the Health and Safety Executive could become involved e.g. the recent football game, where fireworks were set off in a stadium and a spectator was injured.

The usual rule in relation to vicarious liability (liability of employers for acts of employees) is that employers will be liable for the wrongful acts of their employees if the acts are committed within the course of their employment.

As you know I can only advise on health and safety related issues and I would therefore recommend that you also seek specialist advice from a specialist in sports law.

Kind regards

Smita.

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

There is no general obligation to have at least two people on duty at all times.

To decide whether you are doing enough in this case, you need to ask yourself the following questions:

· How are the risks faced by your security officer addressed (e.g violence, emergencies, isolation etc)?

· How do you supervise her (e.g periodic spot checks to ensure that she has not developed unsafe working practices)?

· What training has she received to equip her to work alone?

· How do you know where she is at any given time (e.g does she have a relatively fixed schedule which she sticks to)?

· How can she get help if she has an accident?

In this case, although she may be the only person working, there are others in the building at all times (guests) and she can contact duty officers for help.

I am slightly concerned that the only risk identified in your RA is that of falling. If she's on her own for most of the time there are likely to be other risks - e.g having an accident of some other nature and no-one finding out, disturbing burglars, even drunken and disorderly guests. I would suggest that you start by assessing whether falling is really the only risk she faces, which will enable you to decide if there is anything more you need to do.

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

The basic legal position is that as the occupier of the premises you owe a duty to take reasonable care to ensure that visitors to your premises are reasonably safe for the purposes for which you have invited them or permitted them to enter the premises. Therefore, if any of the risks to your visitors are caused by the state of the premises, or by what you do on them, then you have to take steps to address those risks.

The duty does not, in my view, extend to risks caused by how your visitors do the things that you have let them on to your site to do. Based on what you have told me, if, for example, the flammable/hazardous substances are yours and pose a risk to your visitors, then you do need to address that risk by storing the substances elsewhere or more safely. However, if they are their own substances, then you do not have to take action (but see below).

As far as the health and safety legislation is concerned, you do not have any direct responsibility to address how they carry out their hobby, or the tools they use. However, if there are any risks to them because of how you conduct your undertaking on the rest of the site, then you have to do all that is reasonably practicable to ensure their safety by addressing those risks. They themselves are not covered by the Health & Safety at Work Act, because they are not an employer, nor are they at work. The obligations to ensure safe system of work and the requirement to keep tools and equipment at a certain standard do not therefore apply to them.

That?s the legal position. However, the reality is if one of them is seriously injured or killed, or if they set fire to your building, then you will be affected by the practical aftermath of that, whether or not you have any legal liability. Some practical steps that I would suggest you take are:-

Ask them to nominate one of them to be responsible for the safety of their activities and to tell you about any substances they bring on site and how they intend to store them. Make sure that you make it clear that you want this information to protect your employees and business and property, not because you are going to vet their arrangements. If possible, put this in writing or at least keep a record of any conversation you have with them.

Make sure that they know your procedures for evacuation in the case of fire, and that they nominate a marshall to oversee the evacuation and to tell you if there is a fire caused by their activities. Again, record this request.

Check your insurance policies, particularly your buildings insurance, to make sure that their activities will not vitiate the insurance policy.

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

By virtue of reg 12 of the Working Time Regulations 1998 an adult worker is entitled to a rest break where his daily working time is more than six hours. The rest break must be a period of not less than 20 minutes and may be taken away from his work station where there is one. However, details of the rest break including its duration and the terms upon which it is granted may be stipulated in a collective or workforce agreement and aside from being modified can be excluded altogether (reg 23a).

Although the regulations do not make provision for an agreement with an individual worker excluding a rest break, provided that the arrangement is agreed in writing and in the spirit of the regulations it is not likely to cause a problem.

It is also worth noting that this is not a right which can be enforced by the HSE and the employee's only recourse is to the Employment Tribunal. If the employee is happy with the terms agreed he/she is unlikely to bring a claim.

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

Dear Lesley

Thank you for your enquiry regarding driver hours for vehicles from small to 10 tonnes. The Working Time legislation only applies in four respects:-

1. A requirement to limit hours to an average of 48 per week

2. Drivers have an entitlement to 4 weeks paid leave

3. Health checks must be arranged for night workers

4. There is an entitlement to adequate rest.

If a vehicle is over 3 and a half tonnes it will also be subject to the tachograph legislation (although there are some limited exemptions). Under these regulations a driver can only drive for 4 and a half hours. After this they must have a break of 45 minutes. The maximum driving time allowed is 9 hours a day (but this can be extended to ten hours twice a week). A driver must have 11 hours rest a day (and a weekly rest period of 45 hours). Any driver with a second job must notify both yourself and his other employer of the extra hours he works and the amount of rest he has.

I suggest you ask the driver to sign a written declaration stating the amount of hours he works for the other company and the amount of daily and weekly rest he gets (as he may still be able to satisfy the regulations) and this will need to updated if the information changes.

If a driver exceeds the amount of driving time or does not get enough rest, then the driver will be committing a criminal offence. Your company would also be committing an offence for causing and/or permitting a breach of the regulations. The penalty (as well as a criminal record) is a fine of up to £2,5000 for each offence committed. Any prosecution could involve several offences and the fines would accumulate accordingly.

As the operator you are under a legal duty to ensure drivers do not exceed the prescribed driving hours and that they get enough rest. There are also offences for failing to install or use a tachograph. These offences carry a maximum penalty of a £5,000 fine and/or two years imprisonment. In addition convictions can be taken into account by Licensing Authorities when they decide whether or not to renew an operator?s licence or a HGV driver?s licence.

For vehicles not covered under the tachograph rules, a Risk Assessment should be carried out to assess risks, hazards and solutions.

The HSE and the Department of Transport have formed a designated Workplace Transport Advice Line. (0870 099 0099) which may be useful. In addition, a free leaflet produced by the Department of Transport called ?Drivers Hours and Tachograph Rules for Goods Vehicles in the UK and Europe? can be downloaded from their website. To access the leaflet log on to www.vosa.gov.uk. Click on ?Vehicle Inspectorate?. Then click on ?About VI?, ?publications? and then on ?manuals?.

Kind regards

Smita

Smita Jamdar - Martineau Johnson
Online advisor - 16 posts

The provisions relating to adjustments to premises in the DDA do not apply to Universities, but the Special Educational Needs and Disability Act does apply and addresses this issue. The exclusion of teaching facilities referred to above has been done away with and these will need to be accessible from, I believe, 1 Sept 2005. I agree, however, that rearranging classes to the ground floor is unlikely to constitute discrimination, unless it affects the quality of the educational experience in some way (e.g no access to labs etc).