Regional Health & Safety – “Violence at Work” compensation

Last week I went to the UNISON London regional health & safety committee meeting. First, we have a normal “business” meeting regarding safety issues in London. Then we usually have a guest speaker. This month we were pleased to see again Henrietta Phillips from the trade union solicitors Thompsons. Henrietta in fact spoke at the last meeting on “work related stress, bullying and harassment”. This time she talked about legal remedies following “Violence at Work” (see new UNISON safety guide here).

During the committee meeting we discussed planning for this year’s European Health & Safety week (20-24 October) and National Inspection Day. It’s too late for this year, but to encourage inspections we talked about buying clip boards and reflective safety bibs with UNISON logos for London safety reps. Maybe all new safety reps should get these things included in the “Welcome Pack” they automatically receive when they become reps?

My favourite agenda item is when each committee member gives a local report on issues in their workplace. For some reason one committee member recalled the issue he came across in his housing department where they had to deal with a tenant who kept his horse in his home. Now, this is not a particularly sensible thing for anyone to do, especially since he lived on the 9th floor of a tower block and he used to take the horse up and down in the lift.

On a far more serious issue it was reported that 104 housing officers in one employer were tested for exposure to TB and 4 (all British born) were found to be in danger of developing the disease and had to be given 6 month courses of treatment. I think we should all review risk assessments for visiting officers to take account of such biological hazards.

Another committee member reported that in their workplace they were getting rid of unnecessary safety signage. These just cause clutter and confuse people. For example, in their main office staircase there was a sign saying “Hold the rail on your Left”. Which is just plain silly - such things give health & safety a bad image.

One organisation had not only introduced home working and hot-desking but had got rid of all desk telephones and issued staff with mobile phones (with email etc). There was an issue regarding the risk to pregnant women from using such phones. Any risk is hotly denied by the mobile companies themselves, but there have been a number of reports about theoretical dangers. It would therefore appear to make sense that such staff should be issued with a normal desk phone for purely precautionary measures.

There is one issue that UNISON needs to get sorted ASAP. Many UNISON branch offices are not accessible to disabled members. This should not happen in this day and age.

Next item was report backs from conferences attended by committee members. Two had gone to this year’s Hazard Conference in the University of Keele. This is probably the most important conference for safety reps. Both committee members found the conference very useful and would encourage people to attend the conference in the future. One mentioned being shocked at a presentation made by the widower of a teacher who had died of an asbestos related disease despite the fact that she had been a teacher all her life and had no other known risk factors. Many, many schools are riddled with asbestos containing materials. Between 2001-2005 nationally 62 teachers were reported to have died of such diseases. A sobering thought.

The meeting agreed that I could attend a conference on 24 November run by the CCA on the “Future of Safety Enforcement”.

I gave a report as the London representative on the UNISON national health & safety committee. I had already been asked to bring up safety concerns over “hot-desking” and to ask UNISON if there are any plans for up-to-date guidance on this topic.

After the close of the committee meeting Henrietta gave her presentation on “Violence at Work” to the Health & Safety network, to which all UNISON branch safety officers are invited.

All UNISON members injured in an accident or assault at work are entitled to free legal advice and assistance form Thompsons. Members can contact UNISON direct on 0845 355 0845 to be referred.

There are 3 possible routes to compensation – claim against the employer, the assailant (not normally any use) or via the Criminal Injuries Compensation Authority (CICA).

The key issue with regard to any possible legal case against an employer is to establish “failings”. An employer has a duty of care to provide a safe place of work and a safe system of work. To win a claim you have to prove that the employer was in breach of that duty, either by breaching safety law or by being negligent and that breach or negligence caused injury.

Usually it is difficult to win since you have to persuade a court that the employer is responsible for a third party assailant. However, if you can establish a pattern of “failings” and negligence you can be successful. Henrietta suggested a checklist of things that should be done after an assault.

Such as report attacks to the Police and record details of crime numbers etc, write you account about what happened as soon as is possible, take copies of all reports you make, ask for copy of employer investigation and RIDDOR reports (if applicable) get full contact details of any witnesses, have photographs taken of injuries, record details of any visits to doctors or hospital, keep any receipts for any expense you incur.

She encouraged all “near misses” or incidents of aggressive behaviour to be recorded. This may help prove that the employers should have been aware of the risk.

At the beginning Henrietta had pointed out that personal injury cases are for workers who have already been hurt, while the whole point of safety reps is to try and prevent injuries occurring in the first place. While I am in favour personally of a “no fault” compensatory payments scheme rather than resorting to legal claims for compensation. If a claim is strong and compensation is paid then this would have the welcome effect of encouraging the employer to change and improve its working practices. As usual - Money talks.

Corporate Killing Law in force from Tomorrow.

From tomorrow (Sunday) the new Corporate Manslaughter and Cooperate Homicide Act 2007 comes into force.

The TUC broadly welcome the Act. TUC General Secretary Brendan Barber is quoted as saying “'Too often in the past senior executives have been taken an overly casual approach towards the safety of their employees...... 'Although unions would have preferred to see the new law make individual company directors personally liable for safety breaches at work and for it to have introduced tougher penalties against employers found guilty of workplace safety crimes, we hope the Corporate Manslaughter Act will see the start of a change in the safety culture at the top of the UK's companies and organisations.

'The new law would be tougher if it were accompanied by a new legal health and safety duty on directors and a requirement on companies to report annually on their workplace safety culture.'

The safety pressure group “Centre for Corporate Accountability” (CCA) are disappointed that the Act will only apply to deaths that occur after April 5 (and all the evidence supporting the allegation must also take place after this date). This will mean that it will probably be at least until 2010 before any large organisation charged. In the meantime the old common law offence of manslaughter will still of course apply.

By co-incidence “Inside Housing” leads on a Police corporate manslaughter investigation into the high profile housing association “Notting Hill” and House builders, Barrets, following the death of 26 year old Elouise Littlewood. She died in her brand new “shared ownership” home from suspected carbon monoxide poisoning only 2 months after moving in.

It is also only 3 weeks before this years Workers Memorial Day.

Company killers fined less than 1/700th of turnover

I received today a persuasive email alert from the Centre for Corporate Accountability (CCA). At the moment the Government Sentencing Advisory Panel (SAP) is drafting guidance for Courts on what sentence they should give companies convicted of work “death related” and manslaughter offences.

The CCA research show that most fines against companies convicted of offenses following work related deaths are less than 1/700th of turnover.

“If individuals earning an average annual income of £24,769 were sentenced at this level, they would be fined just £35.

The research also shows that the fines imposed on most of these companies was only 1% of their gross profits”.

The CCA quite rightly urge the SAP to ensure that Courts “fine companies convicted of 'death-related' health and safety offences between 2.5 and 10% of the company's turnover and for the new corporate manslaughter offence of between 15 and 40% of the company's turnover".

Company directors should in my view face jail if convicted of such offences. However, this is not happening for the foreseeable future. So to make sure these laws bite, the penalty must meet the crime, not for revenge but to punish and deter. The present penalties are clearly inadequate and must be raised significantly.

Tell the CBI and those who oppose large fines that unless the legislation works, then the demand for jail terms will return.

This of course a suitable topic only a few weeks before Workers Memorial Day – Monday 28 April 2008.

Row over corporate killing fines

This months SHP magazine reports on a row about how to fine offenders under the new “Corporate Manslaughter and Homicide Act”. The Sentencing Advisory panel have suggested that the fine should be 2.5-10% of an offending company’s annual turnover.

The IOSH think this is fair since it is in line with the fines that can be levied on companies for infringing European competition law. Surprise, surprise the CBI (the “Voice of Business”) think that fines running into “hundreds of millions of pounds...unfair”. While the CCA thinks even 10% is too low.

The CBI seems to forget that this is about companies being punished for killing people. While competition laws are important surely committing manslaughter should attract a higher penalty. Better still a custodial sentence?

At last – a Corporate Killing Law?

Yesterday the TUC sent out a press release welcoming a “last minute” compromise between the House of Commons and the House of Lords over this bill. It seems that it will finally become law. Ironically the dispute in Parliament was over the (important) issue of deaths in police and prison custody rather than the main trade union (and Warwick Agreement?) issue that individual company or public sector directors should be held personally liable to prosecution for killing workers by their gross negligence.

The well respected “Campaign for Corporate Accountability” (CCA) is broadly in favour of the bill since they believe (like the TUC) that bill will result in more prosecutions for negligent deaths at work and therefore will deter irresponsible employers. However, I (and many others) am disappointed that it has not gone further. The main problem being is that existing manslaughter laws finds it very difficult to prosecute large public companies and individual directors for negligently killing their workers. Since it is usually very hard in large organisations to prove who is personally responsible for this negligence, unlike in small companies. In small companies it is often clear whose individual negligence resulted in a workers death or serious injury? Such as in this case were a manager was found to have falsified driving records. This bill may make it easier to prosecute big companies but not necessarily those directors who often make (or don't make when they should) the decisions which result in death or serious injury to workers (and/or members of the public). So a large company may be prosecuted for say deliberately underfunding vital safety equipment, but shouldn't the directors who made that decision also be held responsible?

I remember being at a CCA conference a year or two ago when they had a senior Tory MP (true old school one nation Tory – utterly unlike modern day Cameron) on the main panel (sorry I forget his name) who told the conference that he was the director of a number of companies (as they do). He thought it wrong that if he and his fellow directors were found to be fiddling the company out of money then they could face prison. However, if they were negligent about killing their employees then it would be practically impossible to be personally criminally prosecuted.

He thought that this was a disgrace. Quite right too. I think that we must welcome this bill as an improvement to the existing status quo. But we must still continue to campaign for further improvements and make people responsible for their crimes.