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RJW Advice Leaflet

Lord Young’s Review: A Review Of Health And Safety

In this issue we report on a number of cases that we have recently dealt with or are currently involved in involving health and safety issues. We also look in detail at Lord Young’s report on health and safety and compensation culture.

There is an update on a new scheme to compensate UK nationals who are victims of terrorism when in other countries. We also examine the most recent HSE statistics on UK accidents and ill-health at work.

We aim this newsletter at Health & Safety Representatives, but feel free to circulate to other Federation members who may find it useful.

We certainly welcome any feedback or comments. If you have suggestions for topics that you would like to see covered in future issues then please do get in contact.

Richard Geraghty – R.M.Geraghty@rjw.co.uk

Lord Young of Graffham recently published his report on health & safety. He had been tasked by the Prime Minister to review the operation of health & safety laws and the growth of a compensation culture. The report, entitled “Common sense, Common Safety”, is perhaps surprising more for what it does not say than for the actual recommendations he makes.

In the build up to the publication of this report many of Lord Young’s comments suggested that he was going to be proposing a major overhaul of health & safety legislation. He promised a bonfire of the “elf & safety” laws brought in by the previous Government.

In fact, Lord Young’s report does not actually suggest any substantive changes to existing health & safety legislation. The report instead makes a number of relatively low key suggestions, such as simplified risk assessment forms to be published for low hazard workplaces and accreditation of health & safety consultants.

Another surprising omission from the report is a failure to recommend any substantive change to the application of health & safety legislation to the Emergency Services. In his comments prior to publication Lord Young appeared to be firmly of the view that this was an area where the law required substantial change. In an interview with The Times in June 2010 Lord Young said that “children are dying because of health & safety”. He claimed that health & safety was being used as an excuse for inaction by the Police. He even went so far as to claim that the Police would stand by whilst somebody died. These comments also followed on from earlier suggestions by the Conservative party advocating the removal of the Police from health & safety laws.

The report merely suggests that the HSE, ACPO and the CPS should consider further guidance to ensure that police officers and fire fighters should not be at risk of investigation or prosecution when engaged in the course of their duties if they put themselves at risk as a result of committing a heroic act. Lord Young specifically supports the approach set out in the “Striking the Balance” guidance document published by the HSE.

One can only assume that after making his comments about the Police, Lord Young had an opportunity to reflect upon the realities (rather than the myths and misinformation in the media) of health & safety legislation and police work. No doubt he also took on board powerful submissions advanced by representatives from the Police Federation with whom he consulted prior to publication.

Many Federation members will be mightily relieved that the protection offered to them by health & safety legislation will not be removed. Police officers are frequently required to act in difficult and urgent situations. It is vitally important that they have the training and equipment they need to be able to do this often hazardous work. To reduce the legal protection offered to police officers always seemed to those of us familiar with the risks that come with the work to be a move in the wrong direction. After all, it is those who do dangerous work who really rely upon health & safety measures to protect life and limb on a daily basis.


Summary of the main recommendations in Lord Young’s report, “Common-sense, Common Safety”

Low Hazard Workplaces

  • Risk assessment procedures for low hazard workplaces such as offices, classrooms and shops should be simplified. The HSE should create simple interactive risk assessments for such work environments and make these readily available
  • The HSE should create check lists to enable businesses operating in low hazard environments to monitor their compliance with the Regulations
  • Employers should not be required to carry out risk assessments for employees working from home in a low hazard environment
  • Self employed people in low hazard business should be exempt from risk assessments.

Raising Standards

  • Health & Safety Consultants should be professionalised with qualification requirements and accreditation to professional bodies
  • A web based directory of accredited Health & Safety Consultants should be established.

Compensation Culture

  • A simplified claims procedure for personal injury claims should be introduced similar to that already in existence for road traffic accidents where the claim is worth under £10,000. Legal costs for such claims should be fixed
  • The claims procedure for road traffic accident claims should be increased for all claims worth up to £25,000
  • There should be restrictions on the operation of referral agencies and the payment of referral fees and on legal advertising
  • Clarify (through legislation if necessary) that people will not be held liable for any consequences due towell-intentioned voluntary acts on their part.

Insurance

  • Insurance companies should cease the current practice that requires businesses operating in low hazard environments to employ Health & Safety Consultants to carry out full health & safety risk assessments. Where consultants are used they should be qualified
  • There should be consultation with the insurance industry to ensure that worthwhile activities are not unnecessarily curtailed on health & safety grounds. Legislation should be considered if the industry is unable to draw up such a code.

Education

  • The processes undertaken by schools and other similar organisations before taking children on trips should be simplified
  • A single consent form covering all activities a child may undertake during his or her time at school should be introduced
  • A simplified risk assessment for classrooms should be introduced.

Local Authorities

  • Officials who ban events on health & safety grounds should put their reasons in writing
  • Citizens should have a route for redress should they wish to challenge the decision of a local official to refuse a matter on health & safety grounds
  • Citizens should be able to refer unfair decisions to an Ombudsman with a fast track process being implemented to enable decisions to be overturned quickly.

Health & Safety Legislation

  • The HSE should produce a clear separate guidance under the Code of Practice focused on small and medical businesses engaged in lower risk activities
  • The current raft of Health & Safety Regulations should be consolidated into a single set of accessible Regulations.
  • The UK should take the lead in co-operating with other member states to ensure that EU Health & Safety Rules for low risk businesses are not overly prescriptive, are proportionate and do not attempt to achieve the elimination of all risk.

Other Recommendations

  • The current requirements upon employers to report accidents and injuries should be reduced and the current Regulations should be reviewed by the HSE
  • Food Safety and Health & Safety Inspectors in Local Authorities should be combined
  • The Adventure Activities Licensing Authority should be abolished and there should instead be a Code of Practice put in place

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Welcome to the Autumn 2010 edition of Equality Matters. On 1 October 2010 the majority of the provisions in the Equality Act came into force. The legislation, ambitious in scope, is intended to replace and streamline all the many and varied statutes and regulations which previously set out our domestic equality protections.

In this edition we therefore take an in depth look at the changes made.

We also consider what further changes may be still to come. As ever we conclude with our usual round up of current equality cases for Police Federation members.

This update is aimed at Equality Representatives, but please feel free to circulate to any other Federation members who may find it useful.

We would welcome any feedback or suggestions for subjects you would like to see covered in future editions.

Emma Hawksworth and Rachel Harfield
Employment Department
Russell Jones & Walker Solicitors

Equality Act 2010

After years in the pipeline, the Equality Act 2010 is finally in force. So how much does it actually change?

First, the act brings together all the separate ‘strands’ of discrimination protection. Now, instead of separate legislation prohibiting discrimination on the grounds of race, gender, disability, age, sexual orientation and religion/belief, there is one act with standard definitions of direct and indirect discrimination, harassment and victimisation. These apply, subject to some exceptions and differences, across the seven protected characteristics which are sex, gender reassignment, sexual orientation, race, religion or belief, disability and age. It is also unlawful to discriminate on the grounds of maternity and marriage/civil partnership, although the scope of protection for these two characteristics is more limited.

The introduction of the Equality Act means that the same broad framework of protections will now apply across the board, rather than there being unnecessary differences and inconsistencies in definitions between the various strands, and separate bodies of case law relating to each. The biggest exception to this is within the disability arena which, whilst harmonised where it could be, maintains some important distinctions from the other protected characteristics. We look at this key area in more detail in our disability section. Direct age discrimination also retains its justification defence in contrast to the other protected characteristics.

One of the other important changes is more consistent protection for those who claim discriminatory treatment on the ground that they are associated with someone with a protected characteristic, or those who are perceived to have but don’t actually have a protected characteristic. While there has always been protection under some of the strands for associative discrimination or discrimination on the ground of perception, this was not consistent across the various strands of discrimination. Now there will be stronger protection against direct discrimination and harassment across the protected characteristics, for example for someone who is harassed because of their partner’s age or treated less favourably because of a perception that they are disabled.

There are also new powers for tribunals to make recommendations to benefit the wider workforce, not just the person bringing the claim. We consider separately what this could mean in practice.

Some of the provisions permitting voluntary positive action will come into force. These are similar to those which applied previously to enable employers to encourage under-represented groups in a particular area, by way of additional training for example. However, the more controversial positive action provisions on recruitment or promotion (the ‘tie break’ provisions) are not being brought into force at this time. It is also important to note that the protection given to whistleblowers and the prohibition on the less favourable treatment of part time workers have not been harmonised into the Equality Act. The separate protection for whistleblowers continues as before under the Employment Rights Act 1996. Likewise the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 remain in force.

Disability – Improved Protection

The disability arena probably sees the largest number of positive changes. There is no change to the primary definition of “disability”, that is a physical or mental impairment which has a substantial and long term adverse effect on the individual’s ability to carry out normal day to day activities.

However, the interpretation of “normal day to day activities” is less restrictive. Under the DDA the impairment had to affect at least one of eight specific functions such as mobility or manual dexterity. This requirement has now been removed, and this should make it easier for some individuals, particularly those with mental illnesses, to establish that they meet the definition of disabled.

The duty to make reasonable adjustments is retained in the Equality Act and continues to only apply to disability claims. The act now expressly confirms that the cost of making reasonable adjustments cannot be passed onto the disabled individual. The prohibition of direct discrimination, harassment and victimisation also remain. Two new forms of discrimination are however introduced. First, the concept of indirect discrimination now applies in the disability arena. Second, the Equality Act has introduced a new form of “discrimination arising from disability” in an attempt to broadly reinstate the concept of “disability-related discrimination” prior to it being weakened by the House of Lords decision in the case of Malcolm.

Discrimination arising from disability occurs where an employer treats a worker unfavourably because of something arising in consequence of the worker’s disability. Both discrimination arising from disability and indirect discrimination are subject to a justification defence, if the employer can show it is a proportionate means of achieving a legitimate aim. These should be important improvements in the level of protection offered to disabled officers.

Recommendations

Historically in successful discrimination cases tribunals have only been able to make recommendations that would benefit the particular claimant. Statistically a large proportion of claimants have left employment by the time their cases are heard which means that recommendations can be relatively rare.

Under the Equality Act a tribunal can now make recommendations that would benefit the wider workforce. This may be an important remedy in its own right given that many claimants’ express aim is to try and prevent the discriminatory treatment they have experienced happening to another individual. Recommendations will always be specific to the features of a particular case, however, some examples given in the Act’s explanatory notes include recommendations that the employer:

  • Introduces an equal opportunities policy
  • Ensures its harassment policy is more effectively implemented
  • Sets up a review panel to deal with equal opportunities and harassment/grievance procedures
  • Re-trains staff

Makes public the selection criteria used for transfer or promotion of staff

Time Limits and Questionnaires

The time limits for lodging discrimination claims with the employment tribunal have not changed. The time limit continues to be 3 months less 1 day running from the alleged act of discrimination.

The time limits for lodging a statutory questionnaire have changed to address previous inconsistencies between disability and the other protected characteristics. There is now a standardised time limit and questionnaires should be issued either before the claim is lodged or within 28 days of the claim being lodged with the employment tribunal.

There is also a new recommended form for drafting the questions which can be found Here

Enquiries about disability and health

In a new development, the Equality Act now also regulates the use of pre-employment health questions. In general employers are now prohibited from asking questions about an applicant’s health before a job offer is made, or before placing the individual in a pool of applicants from which it intends to offer work in the future.

This prohibition is, however, subject to some important exceptions. For example, questions may be asked where they are necessary to establish whether the applicant will be able to comply with a requirement to undergo an assessment (such as fitness testing) or whether reasonable adjustments are required in respect of an assessment.

Questions may also be asked where necessary in establishing whether the applicant will be able to carry out a function that is intrinsic to the role in question.

If health questions are asked in breach of this prohibition there is no automatic finding of discrimination. If a direct disability discrimination claim is brought any health questions asked will be important evidence in the claim, and could assist with shifting the burden of proof onto the Respondent. Otherwise the power to take enforcement action lies in the hands of the Equality and Human Rights Commission.

Transitional Provisions

Discriminatory acts taking place wholly before 1st October 2010 are not covered by the Equality Act and claims will be governed by the old strand specific pieces of legislation. Where a continuing act of discrimination straddles 1st October 2010 the position is not entirely clear. Acts taking place wholly on or after 1st October 2010 are brought under the Equality Act 2010.

One interpretation is that a claim can be brought under the Equality Act in respect of the whole period of discrimination without having to rely on the old strand specific legislative regime. However, to the extent it is necessary to state which piece of legislation is being relied upon, at the current time the safest course of action is to rely both upon the Equality Act and the previous strand specific legislation such as the Sex Discrimination Act or the Disability Discrimination Act.

Still to come?

Some provisions included in the text of the Equality Act have not yet been brought into force. In particular, the intention was to establish a single equality duty on public sector bodies across all the protected characteristics. The government is currently consulting on how best to implement this new wider duty.

The fate of some other provisions is even less certain as the government states that it is still considering the future of:

  • The socio-economic duty, that would require certain public authorities to consider “socio-economic disadvantage” when taking strategic decisions about how to exercise their functions
  • Positive action initiative which would allow employers to recruit or promote someone from an under-represented group as a “tie break” where they have a choice between two equally qualified candidates
  • Requirements to publish gender pay gap information
  • Dual discrimination, a prohibition of less favourable treatment that occurs because of a combination of two relevant protected characteristics (for example the less favourable treatment of Asian women)

More Information

The act and its explanatory notes together with other information published by the Government Equalities Office can be found Here

Equality Case Watch

In our regular case watch column, we outline some cases of interest on equality issues in which we are acting for Police Federation members.

Disability Discrimination

We are seeing a continued growth in cases concerning unsatisfactory attendance and unsatisfactory performance procedures particularly concerning requirements placed on officers successfully performing restricted roles to return to full duties within a specified period of time. We are also advising in a number of cases alleging that reasonable adjustments should be made to defer the application of attendance management procedures to allow time, with adjustments for officers to return to work and improve their attendance.

As before we also continue to successfully challenge decisions to ill health retire disabled officers against their wishes, where with adjustments suitable roles could have been found for them. For example, we recently achieved an excellent settlement for an officer with a serious disability confining him to a wheelchair which included his reinstatement to the force which had forcibly retired him.

Cases also continue to arise concerning failures by Forces to separately record disability related absences which can lead to detrimental treatment. For example, we are currently representing an individual who was criticised by his line manager and blocked from promotion due to his disability related sick leave record.

We continue to pursue cases for student officers, particularly addressing the issue of whether, if the individual due to their disability is unable to complete their SOLAP a reasonable adjustment would include a transfer to a civilian vacancy.

Sex Discrimination

We successfully acted for Barbara Lynford in her claim against Sussex Police concerning sexual harassment by male colleagues in the firearms team. Our client received a record award of compensation in the sum of £273,132.42 in respect of the injury to her health, feelings, financial losses and aggravated damages. A separate assessment of her pension loss remains outstanding as her ill health retirement application continues.

We continue to see flexible working cases arise particularly in respect of officers in supervisory ranks. For example, we are currently handling a case concerning whether a Force can legitimately insist that promotion to sergeant must initially be into a 24/7 response role and whether the requirements of the probationary period can be met if working bespoke hours. We are also acting for a female custody sergeant who was refused flexible working in her own role and was told if she wished to work flexibly then it was up to her to find her own job without assistance.

We successfully acted for 2 male officers in sex discrimination claims relating to their removal from a specialist post where their female comparator was allowed to remain. The cases settled on favourable terms on the morning of the hearing.

Whistleblowing

We are representing 3 firearms officers in whistleblowing claims who allege they were redeployed after blowing the whistle on unsafe practices by their line manager.

Sexual Orientation Discrimination

We are representing an officer who alleges that there is a general culture of homophobic and racist profiling and comments within a specialist unit.

Age Discrimination

We continue to represent an officer in a claim of indirect age and indirect discrimination relating to the “shield run” public order training course.

Race Discrimination

We are acting for an officer who is challenging a lack of promotion opportunities for BME officers in specialist units. We are also acting for another officer who was subject to overtly racist language by an external trainer.

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