health and safety: the return of “common sense”?

On the one hand, the Health and Safety Executive is becoming increasingly sensitive to suggestions that the way in which it enforces health and safety rules is excessively pernickety and can lead to red tape stifling initiative and supplanting common sense. It is currently conducting a high level campaign to bring proportionality into centre stage. Two recent examples are the public spat between the HSE and the tennis authorities and a recent HSE consultation on “proposals for replacement arrangements for adventure activities”.

health and safety round up

Accidents will happen but employers are often left exposed to prosecution as a result of failing to take steps to provide a safe working environment with a view to minimising risk. It is vital for employers to be aware of the need to comply with health and safety regulations and to apply required procedures on…

Unions continue to claim that Christmas songs harm workers’ health!

 And so this is Christmas… Jingle bells, jingle bells, jingle all the way… Frosty the snowman…

Walk into any shop at the moment and a medley of these little Christmas musical chestnuts will most likely be playing. And what could be more wonderful than being reminded of the joy of Christmas whilst elbowing your fellow Christmas shoppers out of the way to look for some suitably dull socks for Uncle Albert?

Well, unfortunately, some workers have written to Santa to request the banning of Christmas songs in their workplace! Now, that’s a bit extreme but let’s back up a little bit here.

For some years now, various worker unions around the world have protested against Christmas songs being played on loop in shops. Why? Well, at their nicest, unions have (pretty fairly you would imagine) described constantly looped Christmas music as ‘annoying’ and potentially ‘frustrating’ to their workers. However, the most forthright unions have gone so far as to say it ‘risks the mental health’ of workers.

So, what’s the truth?  Well, as always, it depends on the circumstances.

The Santa Clause: Employment Law issues in Lapland

Penguin Santa You know who’s having a low media presence this year? Santa Claus! I mean, just look at the Christmas adverts this year! Without naming names, the ‘biggest’ Christmas adverts this year involve a monster, a carrot and a toy factory. The only ‘big’ advert that sees the big, red man is one in which Paddington bear mistakes a burglar for Santa!

So, why the low media presence? Where is Santa?

On that front, I may be able to help. You see, Mr Claus is currently having some Employment Law and HR issues with his workforce and has been busy obtaining legal advice on what to do next. It’s a stressful time of year, particularly with less and less people believing in him (there seems to be a rumour going around that he isn’t real) and certain big rival companies in the logistics business setting up in competition (the main one named after a geographical location considerably far away from Lapland).

Put simply, Christmas needs saving and Santa can’t operate without solving his current employment law issues. With this in mind, let’s go on a Christmas journey and help Santa save Christmas!

The end of “fit to work” notes and referrals

Back in March 2010 I reported about the proposed introduction of fit notes, noting that the Government expected savings to the economy of £240 million over 10 years, by aiding the recovery to work of sick workers. Well, it didn’t turn out that way. By July 2010 there were teething problems. Bogus fit notes were widely available on the internet and offered for £9.99 with an introductory “buy one get one free” offer. A further and entirely predictable problem was that employers receiving the fit notes were unable to decipher GPs’ illegible handwriting and therefore overlooked key elements of the process such as, for example, arranging a structured return to work.

In 2015 the Engineering Employers Federation (EEF) reported that the scheme wasn’t working. By September 2014 only 5000 GPs from a pool of 40,854 had received training and 43% of employers said that the fit note had not helped employees to return to work. The EEF’s head of health and safety noted that the quality of advice being given by GPs to help people back to work was deteriorating and that, in order to work, the scheme needed greater resources.

Late in November 2017 it was quietly announced that the scheme is to be scrapped.

Anti-abuse charity employee awarded £90,000 for “calculated and premeditated” harassment

Roshni is the Urdu word for “light”. In June 2002 millionaire Ali Khan founded the charity of that name which is based in Glasgow. Its stated objectives are: “The advancement of education; the advancement of citizenship or community development; the relief of those in need by reason of age, ill health, disability, financial hardship or other disadvantage”. Its intended beneficiaries include children and young people and people of a particular ethnic or racial origin.

Misconduct within the charity became the focus of attention when an employee rejected advances towards her by Mr Khan, a married father of two. According to an Employment Tribunal, sitting in Glasgow, the situation deteriorated when Mr Khan attempted to turn the employee’s family against her. He threatened to turn up unannounced at her mother’s house to reveal an alleged affair between them.

The employee was so concerned by Mr Khan’s behaviour that she had a priority emergency police phone line installed at her home.

Mr Khan reacted to the rejection of his advances by reducing the employee’s working hours and she was issued with a final written warning. These actions were accompanied a campaign of physical and verbal abuse including making sexually explicit remarks, threatening to “post a video of them online”, to disclose intimate details of her private life, isolate her in the community and “damage her prospects”.

A clinical psychologist diagnosed that the employee had been left with major depressive disorder and post-traumatic stress disorder.

The Tribunal noted that the charity did nothing to stop the catalogue of abuse. It found that the Mr Khan’s threats left her feeling “very depressed, low and upset as well as powerless” and that she suffered “a lengthy and sustained series of acts of victimisation”. She was left in a constant state of “fear for her personal safety”. She was awarded compensation amounting to £90,000.

However, the charity has shown a notable lack of contrition following the Tribunal findings.

More issues concerning employee rights and social media

As we all know social media is an increasingly pervasive aspect of many of our daily lives. As I have previously reported the interaction between the publication of information by individuals on their personal social media platforms and rights at work can create significant problems.

This issue returned for judicial scrutiny once again this month in the Employment Appeal Tribunal decision in the case of British Waterways Board v Smith.

Mr Smith commenced employment with British Waterways Board, trading as Scottish Canals, as a manual worker in April 2005. Staff worked a seven day rota with standby for seven days one week in each five. Mr Smith was one of a team of eight, described by the Employment Tribunal as “not a happy team”. In 2012 and 2013 Mr Smith raised a number of grievances covering health and safety issues and an allegation of bullying and harassment by certain managers and supervisors. After investigation and an occupational health report was obtained a recommendation was made for mediation. Mr Smith did not want to attend mediation but it was nonetheless arranged to take place on 23 May 2013. On arrival with his union representative he was told that the mediation was not going to take place and, instead, he was suspended from work as a result of comments retrieved from his Facebook page.

The information retrieved included derogatory comments about managers and a reference to “being drunk while on standby”. Comments found by the Employment Tribunal to have been posted by Mr Smith are listed in the judgment. I won’t reproduce them here. Suffice to say that they use very strong language and are clearly very derogatory about Mr Smith’s employer and his managers.

Mr Smith admitted that he had posted the comments but said that he had not intended to offend anyone and that he had been “indulging in banter”. He said that it was typical to slag off the person on standby and that he had not in fact been drinking. However he also maintained that his Facebook page had been hacked and he did not know that the settings had been changed from private to public.

A disciplinary investigation report was prepared. It was noted that the posts were in any event public and available to be read. They were therefore likely to damage the reputation of both the employer and Mr Smith’s manager. The reference to being drunk while on duty gave the impression of a risk to public health. It was recommended that there should be a disciplinary hearing. Reference was made to the Company’s disciplinary and email and internet policies, the latter including the following:
The following activities may expose [British Waterways] and its employees, agents and contractors to unwarranted risks and are therefore disallowed…Any action on the internet which might embarrass or discredit [British Waterways] (including defamation of third parties for example, by posting comments on bulletin boards or chat rooms)…
Mr Smith said that despite what was on Facebook he had never been drunk while on standby. The other things he had said were also in jest. He thought that the timing of the allegations provided a convenient way to prevent his grievance from being investigated. He repeated that he thought that his Facebook page had been hacked and the security settings changed. Notwithstanding his mitigation Mr Smith was summarily dismissed from his employment by letter sent on 4 June.

Does time taken travelling to and from work count as working time?

It has long been the case that time spent in travelling to and from work does not form part of the working time of employees. Occasionally, specific issues have been considered, such as when an employer relocates, but the main principle has not altered.

However the European Court of Justice has now had its say in the case of Federación de Servicios Privados del sindicato Comisiones Obreras. This case, on referral from the Spanish national court, concerned workers who were required to travel to different locations to work. The Advocate General described them as “peripatetic workers, that is to say workers who are not assigned to a fixed or habitual place of work [and] spend time travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes”.

It was noted that, under Spanish law, working hours should not exceed 40 hours of “actual work” per week, calculated on an annual basis. There has to be at least 12 hours between the end of one working day and the beginning of another and  normal working hours should not exceed nine per day.

The employees concerned were technicians who worked for security system installation and maintenance services. They were allocated to areas and they used company vehicles to travel to homes and industrial and commercial premises where they were required to carry out work. Unsurprisingly the distances from a worker’s home to the first workplace varied considerably and were sometimes more than 100 km. They were also required to travel at least once a week to the offices of a transport logistics company to collect parts. Their place of work each day was notified to them by messages sent to company issued Blackberrys provided to each of them.

For the purpose of calculating working time the employer did not include time spent on the first journey of the day, from home to work, and the last journey of the day, from work to home. Instead, time was calculated with reference to the time of arrival at the first job and the time of departure from the last job.

In the view of the national court this arrangement meant that workers could not adjust their private life and their place of residence for the purpose of proximity to the place of work. Travelling time could not therefore be regarded as rest time, having regard also to health and safety issues. Equally it was not time that the worker was at the employer’s disposal so that he could be assigned to other work. It was therefore not clear whether this was working time or a rest period, hence the referral to the European Court.

Death benefits and the improbability of suicide

The decision of the Supreme Court in the case Braganza -v- BP Shipping and another concerns the difficult topic of entitlement to death benefits in the event that an employer considers that an employee has committed suicide.

It is well known that life insurance policies often include “suicide clauses”, sometimes applying an exclusion for a period of time after taking out the policy, e.g. two years. One practical problem with this is that when one policy is replaced with another the exclusion period tends to start over again. Another issue is that claims can be resisted on the basis of non-disclosure of mental health problems or medical including psychiatric conditions.

The same issue can arise with death in service benefits. Mr Braganza worked as a chief engineer on BP’s oil tanker the British Unity. Between the hours of 1.00 a.m. and 7.00 a.m. on 11 May 2009 and while the ship was in the mid-North Atlantic Mr Braganza disappeared. No-one knows what happened to him but the employer formed the opinion that he had committed suicide by throwing himself overboard.

His contract included an entitlement to death benefits payable to his widow but also included the following exclusion:
For the avoidance of doubt compensation for death, accidental injury or illness shall not be payable if, in the opinion of the Company or its insurers, the death, accidental injury or illness resulted from amongst other things, the Officer’s wilful act, default or misconduct whether at sea or ashore …
On this basis entitlement to death benefits was denied. Therefore, the question for the court was not to decide what happened to Mr Braganza but to decide whether or not the employer was entitled to form the opinion which it did.

On arrival in New York an investigation was carried out as is the usual procedure in such circumstances. Crew were interviewed under caution and it was concluded that Mr Braganza was lost overboard, presumed drowned, but no finding was made concerning the reason for his presumed drowning. BP then set up its own enquiry, dealing with health and safety issues. Although not specifically charged with identifying the cause of death the possibilities were narrowed down to an accidental fall from the vessel or suicide. The final version of the report concluded that “having regard for all the evidence the investigation team considers the most likely scenario to be that the C/E jumped overboard intentionally and therefore took his own life”.

On 13 November 2009 Mrs Braganza was notified, via her solicitors, that the claim for death in service benefits was rejected since, on the basis of the team’s report there had been a “wilful act” by Mr Braganza, thereby triggering the exclusion clause.

Mrs Braganza brought a claim for $230,265 death in service benefits and $1.325m damages for negligence.