Your monthly news update from Croner
November 2009 www.croner.co.uk
Solutions 67
Language and literacy
problems could be deadly
for business
The Institution of Occupational Safety and Health (IOSH) has warned that literacy
problems in the workforce could have deadly consequences in the health and safety
context. The safety body was quoting recent figures which indicate that over a million
people aged over 16 in England do not have the reading age expected of seven-year-olds.
This, IOSH says, could have major implications for employees’ safety.
Following International Literacy Day, which took place in September, IOSH urged
businesses not to assume that written down health and safety instructions will be
understood by all. The safety body says the key is to always make sure employees
understand before letting them get on with work, and to encourage workers to not be
embarrassed to ask questions if they do not understand something.
Nattasha Freeman, President of IOSH, said, “Being able to read is something many of us
take for granted. But there are many people in the workplace with low levels of literacy,
which means we must not just rely on written information or even verbal instructions.”
She added, “Just because some employees have low levels of literacy doesn’t mean they
can’t understand, though. Employers need to make sure they put plenty of effort into
their communications with staff on health and safety — pictures can often tell a thousand
words, demonstrations can really help aid understanding. Failing to get health and safety
messages across could be deadly — for your employees, for others who come into contact
with your business and, given the current economic climate, for your firm.”
Legal requirements to provide health and safety
information, instruction and training
The Health and Safety at Work etc. Act 1974 requires that employers provide adequate
relevant health and safety information, instruction and training to their workers to ensure
that they can go about their job safely. These requirements are also common features
throughout health and safety legislation.
Information will generally consist of the details of the hazards they are likely to encounter
in the course of their employment, the controls in place to protect their health and safety,
the findings of relevant risk assessments, details of how to get first-aid treatment and
details of emergency procedures, eg fire evacuation, raising the alarm, etc.
Instruction should provide detailed directions on the procedures necessary to prevent
exposure to a hazard and may include any safe systems of work in place that must be
followed and the systems in place for control and supervision.
A suitable system of training should be in place whereby the needs of each individual are
identified in order to bring them to a suitable standard of proficiency. Training should be
In this issue:
 Age discrimination
 Expert view  Event diary
given that covers the safe working practices in place by a system of practice, instruction
and supervision.
The requirements for the provision of information, instruction and training apply to
workers who may suffer from disabilities that make learning difficult, along with workers
who may not fully understand the English language.
Overcoming the language barrier with migrant workers
Speaking for IOSH, Ms Freeman also highlighted the issue of foreign workers, stating,
“There’s also been a huge increase in workers who don’t speak English as their first
language, and we have to make sure we are able to communicate, particularly on health
and safety, with these members of staff.”
The ideal solution to overcoming the language barrier is to provide sponsored English
lessons, where the employer meets the cost (or part of the cost) of the course. In the
current financial climate, this may not be practical, especially with short-term seasonal
workers. However, if the worker(s) are long-term employees, then English lessons will be a
valuable investment to both the worker and the company. Alternatively, English-speaking
employees could be sponsored to learn the basic language of the migrant workers,
particularly if they speak a common language.
The services of a translator could be used to provide safety talks and to help both the
existing employees and migrant workers learn a few critical phrases of each other’s
language. Schemes providing basic language training have been successfully trialled on
building sites employing migrant workers.
It might also be useful to have critical documents (such as safe systems of work) translated
either by professional documentation translators or by using commonly available software
programmes. All safety signs should be pictographic, easy to understand and comply with
the Health and Safety (Safety Signs and Signals) Regulations 1996.
Further information
In conjunction with the Trade Union Congress (TUC) the Health and Safety Executive
(HSE) has published, , a document discussing workers’ health and safety rights in the
UK entitled Your health, your safety: A guide for workers. It is available to download in 25
languages from http://www.hse.gov.uk/workers/hse27.htm.
The HSE also has on its website a range of downloadable leaflets on various other health
and safety subjects, including the Health and Safety: What You Should Know leaflet in a
variety of languages.
 British safety history timeline
 Case law update
 Ask an expert
Business issues
Age discrimination —
the retirement age of
65 remains in place
for now…
Employers can still use the retirement age of 65 following the recent High Court
judgment in the case commonly referred to as Heyday. Heyday was an organisation
originally connected with Age Concern, which is now known as Age UK.
The case concerned the judicial review of the Employment Equality (Age) Regulations
2006 by the High Court. Age UK argued that the Regulations were in breach of the
European Framework Directive, prohibiting age discrimination in employment.
Following the decision by the European Court of Justice in March this year that it
was possible to have the retirement age of 65, if it can be objectively and reasonably
justified, the High Court held that the regulations were lawful, and there was a
legitimate social policy aim for the designated retirement age of 65 (referred to as
the “DRA”) when it was set in 2006.
However, the judge, Mr Justice Blake, said that if the DRA had been adopted this year,
the choice of the retirement age of 65 would not have been proportionate, and that
the retirement age of 65 creates a greater discriminatory effect than is necessary on
a class of people who are both able to and want to continue in their employment.
A higher retirement age would not have any general detrimental labour market
consequences or block access to high-level jobs by future generations.
Shortly before the case was heard in July, the Government had announced that
it was going to review the retirement age in 2010, rather than in 2011, as had
previously been proposed. The judge welcomed this review as “timely” and stated, “I
cannot see how 65 could remain as a DRA after the review”.
Employers can continue to retire their employees at the age of 65 if they follow
the “duty to consider” procedure. At least six months before the employee’s
65th birthday, the employee must be informed in writing of the intended date of
retirement and the right to request to continue working. However, the case is likely
to play a part in the Government’s review next year. Will the retirement age be
increased, or will it be removed altogether? Only time will tell, although employers
may wish to bear these issues in mind when considering matters such as planning
their future workforce requirements.
Company fined after death of worker in Scotland
A horticulture company has been fined £23,300 for failing to ensure proper health and safety standards were in
place, following the death of an agency worker at its site in Annan in Scotland.
The worker, aged 55, died at a site in Annan in Dumfries and Galloway on 31 January 2008
when a tip bucket he was welding moved as he was working on it, crushing him to death.
On 22 September 2009, at Dumfries Sheriff Court, the Surrey-based horticulture
company pleaded guilty to breaching s.3(1) of the Health and Safety at Work, etc Act
1974, which covers the duty of the employer to ensure, so far as reasonably practicable,
that affected non-employees are not exposed to risks to their health and safety.
Following the conclusion of the court case, Jean Edgar, an inspector at the Health and
Safety Executive (HSE) warned other companies about the need to ensure agency workers
are provided with adequate information and instruction to enable them to do their work
safely.
The inspector commented, “Employers who take on agency staff to plug a temporary gap
in their workforce should not provide any lesser standard of health and safety protection
for these people than they would for their own employees. Incidents can happen when
inadequate information and instruction is provided to such workers. It may result in a
failure to take the correct action to control risks relating to the work in hand, as shown by
this tragic death.”
Expert View by Gillian Dowling,
Employment Technical
Consultant, in conjunction
with Melanie Parsons, Regional
Consultant
Narrowing the
Gender Gap
In this article we discuss the new
anti-discrimination legislation.
The Equality Bill
The Equality Bill, published on 27 April 2009, sets
out new provisions to strengthen anti-discrimination
legislation, extend the use of positive action and narrow
the pay gap between male and female employees.
It will replace nine laws and more than 100 other
measures with one single Act to strengthen equality
law. The overriding aim is to make it easier for
employers and staff to understand their responsibilities
to each other.
From the employers’ point of view, these are some of
the key points as the Bill goes through Parliament.
Banning secrecy clauses
Clauses in employment contracts that prevent
employees from discussing their salaries will become
unenforceable. Work colleagues will be able to
compare their pay. If an employer takes action against
an employee for comparing pay, the employee
will have recourse to an employment tribunal. This
measure is designed to enable women to challenge
their employers if they discover they are earning less
than their male colleagues. Men will be protected
from victimisation if they disclose their pay details to
women.
Gender pay gap reporting
Positive action
The Equality Bill will expand the way positive action
can be used so that employers can select someone for
a job from an under-represented group when they have
the choice between two or more candidates who are
equally suitable, provided they do not have a general
policy of doing so in every case.
Positive discrimination will remain unlawful. Positive
discrimination means recruiting or promoting people
just because they are from an under-represented group,
even if they are less suitable.
Tribunal recommendations to cover
whole workforce
The Equality Bill will allow employment tribunals to
order a recommendation, which employers will have
to implement with a view to reducing or wiping out
the impact of the discrimination, of which a claimant
complained.
The Bill includes a provision to enable new regulations
to be passed to require private sector employers with
250 or more employees to publish annual details about
their salaries to reveal the differences between the pay
male and female employees receive. These regulations
will not be introduced before April 2013 and will only
be made if employers have not done so on a voluntary
basis by then.
Broadening the scope of protection
Further information on the format of the gender pay
report is expected to be released.
At present, if a black female employee missed out on
a promotion which she felt was because of her sex and
The Bill also extends the protection against
discrimination for those who are “associated” with
someone who has certain characteristics. The Bill will
ensure that the right to protection from discrimination
by association is extended to all types of discrimination.
Multiple discrimination claims
race, she would have to bring two separate claims, one
for sex and one for race with separate comparators.
In theory, there is a risk that she may not succeed in
either claim if it is the combination of both race and sex
which have caused the discrimination. A clause covering
combined discrimination or dual discrimination, as it is
also known, is currently being considered by Parliament.
Discrimination arising from a disability
The definition of disability-related discrimination is
also being considered to attempt to redress the effect
of the House of Lords’ judgment in the 2008 case of
London Borough of Lewisham v Malcolm, which makes it
potentially more difficult for claimants to bring claims
of discrimination. The new concept of discrimination
arising from a disability is still subject to further review.
What should employers do?
Equal pay issues as well as discrimination are very much
on the agenda, both in terms of this Bill going through
Parliament and case law, so employers need to consider
how best to protect their businesses now and prepare
for the new legislation. This may include pay audits,
and extra staff training to prevent discrimination in the
workplace, which should also cover good practice on
recruitment and promotion.
At the time of writing, the timescales for the Royal
Assent and implementation of the new Act are not
definite, but it has been said that the Government
hopes that the Bill will be passed by the spring of 2010.
Top business issues
Every month we will bring you the top issues from callers to our telephone advice lines. These were the top issues in October.
Tax & VAT
Employment
Legal
Health & Safety
1. Capital allowances in respect of
vehicles and interaction with AIA.
1. Conduct.
1. General contract issues.
1. Welfare (including swine flu).
2. Capital gains — disposal of a business
and entrepreneurs’ relief.
2. Absence from work, including sickness
absence.
2. Company law.
2. Policy implementation.
3. Company share reorganisations and
extracting value from companies.
3. Redundancy.
3. Property issues, including landlord
and tenant.
3. Legislation.
For more information or to book please contact:
Event diary
Employment on
01455 897193
Legislation
or Health & Safety on
01455 897192
Fax: 01455 897026
All our courses can be designed to meet your specific requirements
and are available on an in-house basis.
Event diary — Open Course Schedule 2009/2010
Health & Safety
Employment
Course title
Duration
Date
Location
Course title
Duration
Date
Location
Manual Handling for
Demonstrators
2 days
11–12
November
Copthorne Hotel,
Manchester
Dealing With
Discipline
1 day
12
November
Holiday Inn Leeds,
Garforth, Leeds
Introducing Health &
Safety Level 2
2 days
17–18
November
The Caledonian Hotel,
Tyne & Wear
Essential
Employment Law
1 day
17
November
Greenwoods Hotel Spa &
Retreat, Ingatestone, Essex
Introducing Health &
Safety Level 2
1 day
25
November
Beechlawn Hotel, Belfast
Absence
1 day
19
November
Ushaw College, Durham
Manual Handling for
Demonstrators
2 days
25–26
November
Capital Hotel, Edinburgh
Negotiating Skills
1 day
25
November
Said Business School,
Oxford
Introducing Health &
Safety Level 2
2 days
2–3
December
Mercure London City
Bankside
Managing
Investigations
1 day
26
November
Holiday Inn, Warrington
Risk Assessment
1 day
9
December
Croner Consulting,
Hinckley
Managing
Investigations
½ day
26
November
Comfort Hotel, Antrim
Introducing Health &
Safety Level 2
2 days
13–14
January
Croner Consulting,
Hinckley
Essential
Employment Law
1 day
3
December
Aztec Hotel & Spa, Bristol
Manual Handling
Training for the
Trainer
2 days
25–26
January
Bolton Arena
Absence
½ day
3
December
Doubletree by Hilton,
Aberdeen
Introducing Health &
Safety Level 2
2 days
27–28
January
Copthorn Hotel,
Manchester
Dealing With
Discipline
1 day
9
December
Holiday Inn Heathrow Ariel
Introducing Health &
Safety Level 2
2 days
3–4
February
Botleigh Grange,
Southampton
Absence
1 day
10
December
The Devon Hotel, Exeter
Introducing Health &
Safety Level 2
2 days
17–18
February
Saint Petrocs, Truro
Appraisal
1 day
17
December
Holiday Inn, Warrington
Legislation
Area
Legislation
Details
Date
Protection of
Children and
Vulnerable
Adults
Safeguarding Vulnerable
Groups Act 2006
Increased safeguards will be introduced, such as a wider definition of “regulated activities”, further
enhancing protection of children and vulnerable adults. The three current barring lists (PoCA, PoVA, and List
99) will be replaced by the creation of two new barred lists administered by the Independent Safeguarding
Authority. Checks of these new lists will be made via an enhanced CRB check.
12
October
2009
Ecclesiastical
Law
The Ecclesiastical Offices
(Terms of Service)
Regulations 2009
Church of England clergy as office holders, not employees, will have the right to claim unfair dismissal at
an employment tribunal. There will be no requirement for one year’s service to make a claim.
1 January
2010
Discrimination
Equality Bill
The aims of the Bill are to: consolidate existing discrimination law; introduce positive action on
recruitment for under-represented groups; make it unlawful to prevent employees from discussing
their pay; extend discrimination by association to all aspects of discrimination; enable the Secretary of
State to order employers with 250 or more employees to publish information on pay (subject to further
consultation and not to come into force before 2013); introduce wider powers for employment tribunals
to make recommendations in discrimination claims; create a single equality duty on public sector
employers to include duties in relation to gender reassignment, age, sexual orientation and religion or
belief; and extend age discrimination law to the provision of goods and services.
Expected
Spring
2010
Health & Safety
Timeline of British
safety history
Great Britain has had health and safety legislation in place since the 1800s
and has continually improved on it since, which the HSE shows in its newlypublished health and safety timeline.
Despite the current perception in some areas that
health and safety is something to be ridiculed, Great
Britain has a long and proud history of protecting
workers, and, for over 30 years, the Health and Safety
Executive (HSE) has been crucial to this protection. The
HSE has recently produced an online timeline charting
the history of health and safety in Britain, highlighting
the significant changes that led to the birth of the
safety watchdog and the developments since.
Protecting factory and mine workers
The timeline makes interesting viewing, starting off
with the formation of HM Factory Inspectorate in
1833 and of the Mines Inspectorate in 1843. In 1840, a
Royal Commission had been established to investigate
working conditions in the mining industry.
The Commission’s findings, published in 1842, made
shocking reading, with accidents, incidents of brutality,
lung diseases, long hours and highly dangerous and
adverse working conditions the norm. A public outcry
resulted and the Mines Act 1842 was brought into
force, with the Mines Inspectorate being formed a year
later.
Britain’s first female factory inspector
The timeline also describes the appointment in 1893
of Britain’s first female factory inspector. Alexander
Redgrave, the Chief Inspector of Factories, was
opposed to the idea of women inspectors, and said in
his 1879 annual report, “I doubt very much whether
the office of factory inspector is one suitable for
women... The general and multifarious duties of an
inspector of factories would really be incompatible
with the gentle and home-loving character of a
woman...”
Nevertheless, May Abraham and Mary Paterson were
appointed in 1893, based in London and Glasgow
respectively, on an annual salary of £200. Much
of their early work focused on women’s hours of
employment and enforcing health and safety in
laundries.
The Health and Safety at Work Act
and creation of the Health and Safety
Executive
The timeline charts other significant historical
developments, such as the Health and Safety at Work,
etc Act 1974. The Act was described as “a bold and
far-reaching piece of legislation” by HSE’s first Director
General, John Locke. It marked a major departure
from the highly prescriptive and detailed framework
which was in place at the time. The Act introduced
less-prescriptive and more goal-based regulations,
supported by guidance and codes of practice. For
the first time, employers and employees were to be
consulted and engaged in the process of designing a
modern health and safety system.
The Health and Safety at Work etc Act 1974 also
established the Health and Safety Commission
(HSC) for the purpose of proposing new regulations,
providing information and advice and conducting
research. HSC’s operating arm, the Health and Safety
Executive (HSE), was formed shortly after in order to
enforce health and safety law, a duty shared with local
authorities.
Other historical developments
The timeline describes other major disasters that have
ultimately taught us critical lessons in the field of
health and safety. Examples include the Flixborough
chemical plant explosion in 1974, the Kings Cross
underground station fire, the Piper Alpha oil rig fire and
explosion which claimed 167 lives, and more recently,
the Morecambe Bay cockle picker tragedy and the
Buncefield oil storage plant explosion.
Other historical developments include the introduction
of the “six pack” of health and safety regulations in
1992, the launch of the Revitalising Health and Safety
strategy in 2000 and the appointment of Judith
Hackett as Chair of the HSE following the retirement of
Bill Callahan who was knighted for his achievements in
the field of health and safety.
Kent company fined after
employee crushed to death
The Health and Safety Executive (HSE) has prosecuted a Kent
shotblasting company following an incident in which a vehicle spray
painter was crushed to death.
The death occurred on the company’s premises on 20 October 2006, where the employee was due
to seal and paint a large heavy metal plate, weighing 975kg. However, the plate was left unsecured
and unstable, causing it to fall on top of him and he died from his injuries.
The HSE’s subsequent investigation found that the fatal injuries were easily preventable, and the
incident came about through a combination of events, which included the reliance on a fatally
flawed system of work and the company’s complete lack of control over employees’ safety.
David Fussell, HSE Inspector, said these flaws had resulted in employees deciding for themselves
on how best to secure these heavy metal plates.
On 5 February 2009, at Maidstone Crown Court, the company pleaded guilty to breaching s.2(1)
of the Health and Safety at Work, etc Act 1974, covering the duty of the employer to ensure, so
far as is reasonably practicable, the health, safety and welfare at work of all the employees. The
company was fined £150,000 and also ordered to pay costs of £24,000.
According to the HSE, more than 8000 injuries and 24 deaths have occurred in the motor vehicle
repair industry in the last five years from a variety of causes.
Case law update
Kulkarni v Milton Keynes Hospital
NHS Foundation Trust
Dr Kulkarni was employed by the NHS as a junior doctor. Less than four weeks
after his employment had commenced, a female patient made a complaint
alleging that the doctor had placed a stethoscope under her pants without her
consent. Before starting the employment, the doctor had been acquitted of an
offence of sexual assault on a patient at another hospital. An investigation by the
employer included information about the previous case.
The employer’s disciplinary procedure allowed a companion to accompany the
doctor at a disciplinary hearing. The procedure set out that the companion could
be a representative of a trade union or a defence organisation. It also stated:
“Such a representative may be legally qualified but they will not, however, be
representing the practitioner formally in a legal capacity”. The Court of Appeal
held that this contractual provision allowed the doctor to be represented at his
disciplinary hearing by a lawyer instructed by the Medical Protection Society,
a defence organisation, but not to bring a legally qualified person instructed
independently.
The aspect of the case which is of greater importance for employers, however, is
the Court’s comments on the right to legal representation. Under Article 6 of the
European Convention on Human Rights (as set out in Schedule 1 of the Human
Rights Act 1998) there is an argument to legal representation, because the
doctor faced what was in effect a criminal charge, although it was being dealt
with by disciplinary proceedings. The doctor, in this case, was a trainee and if the
NHS did not employ him he could not complete his training. The Court took the
view that if there is not a contractual right to legal representation, an employee
can ask for it and at that point the employer should consider the request “fairly
and rationally”. If the case is so serious that Article 6 is engaged, (such as the
potentially grave effect of an adverse finding on the doctor’s ability to practise
his or her profession), to refuse legal representation will be unlawful. Article 6
would not take effect in ordinary disciplinary proceedings where a job might be
lost but the employee would not lose the right to practice his or her profession.
The European Convention on Human Rights had a direct effect on the NHS as a
public body.
Ask an expert
Each month, one of our employment experts will
be answering a question in this section. If you
have an employment question that you would
like our experts to answer, please e-mail it to
[email protected].
Q: We have an employee who is about to
attend a disciplinary meeting. As an employer,
we do not recognise a trade union for
collective bargaining purposes. The employee
has asked for a trade union official to
accompany her to the disciplinary meeting. In
normal circumstances, we know that we would
have to allow this external person from the
trade union to accompany her even though we
do not recognise a trade union. However, when
we asked more about this person’s credentials
we discovered that, although this person is an
accredited union official, the employee is not
a member of the trade union. Apparently the
trade union official is prepared to represent her
as a favour, because she is a close friend. Does
she have a right to be accompanied by this
person if she is not a member of the union?
Contact us
A: The right to be accompanied is a statutory
right, which is set out from s.10 onwards in the
Employment Relations Act 1999. The law says
that a worker’s chosen companion to accompany
him or her to a disciplinary meeting or grievance
hearing is someone chosen by the worker and
can be another of the employer’s workers or a
person employed by a trade union of which he
or she is an official. The official has experience
of, or received training in, acting as a worker’s
companion at disciplinary or grievance hearings,
and this fact should be “reasonably certified
in writing”. The law does not specifically state
that to have this benefit the worker needs to be
a member of the union. In this particular case,
therefore, your employee does have the right to
be accompanied by the trade union official, even
though she is not actually a member.
If an employer does not comply with this
statutory right to be accompanied, there is the
possibility of the worker claiming an award of
two weeks’ pay (capped at the weekly limit of
£380) at the employment tribunal.
If you have any questions about the topics covered in
Solutions please call 0800 634 1700,
or e-mail [email protected].
Alternatively, call the number on your advice line card
to speak to a consultant, or if you are not currently a
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how Croner can help your business.
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