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chillin out
29-04-2008, 12:51 AM
Got another one for you mate.

Lets say a workers daily duties were mapped out in some sort of detailed document and after completing each job it gets signed off by the worker.
Lets also say that the afore mentioned document lists jobs that if done correctly were to take 15hours but the worker only has 8 hours to complete every task.

Now lets say something goes wrong and because corners were cut on the tasks a vital something is missed.

If the matter got out of the companies hands (HSA or whatever) how much trouble would..
a, the worker be in
b, the employer be in.

Does having an unreasonable work load give you some sort of alibi?
Surely the company can not wriggle out of it by saying it's the workers fault because he signed the document?

Chillin:):)

Abe
29-04-2008, 09:28 PM
There are 2 elements to this,

1: Employers Liabilities
and
2: Employees liabilities

I will kick off first with statutory employees liabilities
These being:

Employees' duties
Section 7 of HSWA 1974 sets out that every employee must take reasonable care for the health and safety of him or herself and other people at work. If there is a legal requirement on an employer to do certain things for reasons of health and safety, then the employee must co-operate to enable the employer to fulfil his or her legal duty.

Section 8 of HSWA 1974 prohibits interference by anyone with anything provided in the interests of health and safety at work.


Consequences of breach
An employee who is in breach of his or her duties under the HSWA 1974 may be liable to pay a fine on conviction. The employee may also be dismissed from his or her employment for being in breach of the contractual duty to carry out his or her work with proper care and skill, provided the employee was properly instructed about the safety measures and had been made aware that the interference could lead to dismissal (Martin v Yorkshire Imperial Metals Ltd [1978] IRLR 440). An employee who is injured may also have any damages awarded against his or her employer reduced on the basis that the employer has been contributorily negligent.

Abe
29-04-2008, 09:29 PM
Employers liabilities

Employers' duties to employees
Under HSWA 1974, s 2(1) every employer shall ensure, so far as is reasonably practicable, the health, safety and welfare of his or her employees. In particular, employers must:

*
(a) provide and maintain plant and systems of work so that they are, so far as is reasonably practicable, safe and without risks to health;
*
(b) make arrangements for ensuring, so far as is reasonably practicable, that articles and substances are used, handled, stored and transported safely and without risks to health;
*
(c) provide the necessary information, instruction, training and supervision to ensure, so far as is reasonably practicable, the health and safety at work of employees;
*
(d) maintain any place of work under the employer's control, so far as is reasonably practicable, in a safe condition and without risks to health, including safe access and egress; and
*
(e) provide and maintain a working environment which is, so far as is reasonably practicable, safe and without risks to health and provided with adequate facilities and welfare arrangements.

Abe
29-04-2008, 09:31 PM
Reasonable practicality

These duties are qualified by the phrase 'so far as is reasonably practicable'. This standard of care applies equally to the other duties owed under HSWA 1974, ss 3–8

It has been interpreted in the courts as meaning that the costs of carrying out health and safety measures must not be grossly disproportionate to the benefits, and means that technical and financial considerations can be taken into account.

Abe
29-04-2008, 09:32 PM
Case Law

In R v Nelson Group Services (Maintenance) Ltd [1999] IRLR 646, the Court of Appeal held that the fact that an employee carrying out work had done the work carelessly or failed to take a precaution that should have been taken does not of itself preclude the employer from establishing a defence of reasonably practicability. This is a question of fact depending on the circumstances of each case. The employer must show that everything reasonably practicable has been done to ensure that a person doing the work has the necessary skill and instruction, that safe systems of work have been laid down, that there is adequate supervision and that safe plant and equipment has been provided.

In a 1996 Court of Appeal case, R v Gateway Foodmarkets Ltd [1997] IRLR 189, it was ruled that a company is liable for a breach of HSWA 1974, s 2(1) even though at senior management or head office level it had taken all reasonable precautions to avoid the risk of injury to an employee.

This case involved an employee who fell through an open trap door and was killed, as a result of a system of work adopted at one of its stores by the store's management without the knowledge of senior company personnel. The Crown Court had ruled that HSWA 1974, s 2(1) (which, as mentioned above, states that 'It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees') imposes strict liability, subject to 'reasonable practicability', and that the company was liable if its employee had caused a breach of the duty.

The company appealed, arguing that it was not liable under HSWA 1974, s 2(1) for the acts or omissions of an employee (in this case the store manager) who could not be regarded as the 'embodiment' of the company. 'Embodiment', it argued, was limited to the 'directing mind' of the company – a small number of senior head office personnel. However, the Court of Appeal stated that the breach of duty and liability under the section do not depend upon any failure by the company itself, ie those who embody the company, to take all reasonable precautions. Rather, the company is liable if there is a failure to ensure an employee's health and safety, unless all reasonable precautions have been taken by the company or on its behalf. The company's conviction by the Crown Court was upheld.

The European Court of Justice (ECJ) has upheld the use of the phrase 'so far as is reasonably practicable' – a key element in UK health and safety law – in a case brought by the European Commission (EC): Commission v United Kingdown [2007] IRLR.

The EC challenged the UK's implementation of the European framework directive, which lays down employers' duties to protect the health and safety of workers, which does not contain a 'so far as is reasonably practicable' qualification.

The Commission argued that the qualification of the duty under s2(1) of the Health and Safety at Work Act by the phrase 'so far as is reasonably practicable' was inconsistent with the European Framework Directive because it 'permits an employer to escape responsibility if he can prove that the sacrifice involved in taking further measures, whether in money, time or trouble, would be greatly disproportionate to the risk'. The ECJ rejected this view.

In R v HTM Ltd [2006] EWCA Crim 1156, the Court of Appeal ruled that it was open to employers to argue that they had discharged their safety duties, so far as is reasonably practical, by providing safe systems at work. The HSE argued that:

*
● the question of foreseeability was not relevant in considering whether there had been a breach of s2 of the HSWA 1974; and
*
● section 21 of the Management Regulations, means that an employer cannot rely on an act or omission of an employee for their defence (Regulation 21 says: 'Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in criminal proceedings for a contravention of those provisions by reason of an act or default of an employee of his…'

In a pre-trial hearing, the Recorder of Middlesborough ruled against the HSE, saying that evidence of foreseeability is admissible when considering what is reasonably practicable for the purposes of discharging a duty under s 2(1) HSWA, and that reg 21 of the Management Regulations does not preclude a defendant from advancing evidence of any act or default of an employee.

The Court of Appeal upheld the ruling, and the HSE was not given leave to appeal to the House of Lords. The case then went back to the Teeside Court, where the judge ruled that HSE had not sufficiently 'particularised' its case. It had not set out the reasonably practicable steps HTM could have taken to prevent the incident. The hearing has been rescheduled for January 2008.Coxall v Goodyear [2002] IRLR 742 which was heard in the Court of Appeal, found that an employer's failure to follow its doctor's advice to move, or dismiss, an asthmatic employee from a job causing harm was a breach of duty.

Grizzly
29-04-2008, 10:10 PM
Abe
You deserve a big thanks for taking the time to type that lot.

Chillin Out has got a really good point there.
Most site visits are a balance between what is reasonably practical and what the paperwork says should be done.
Personally I always make sure that someone has witnessed my unease if I feel unhappy with a situation.
verbally or written dependant upon the circumstances.
Reasonably practical works both ways does it not?
once again thanks guys good info all round.
Grizzly

Brian_UK
29-04-2008, 11:49 PM
Abe, I have to say first of all that I am seriously impressed with your personal upgrade from 'fridgy' to 'lawyer' and grateful for the advice that you are freely giving here.:)

However as a 'simple man' my reading of the above confirms why I dislike the Law.

From a simple(ish) question we have been given a legal answer which as far as I can see hasn't answered the question directly. That I believe is because the Law does not allow things to be simply answered due to the potential complexities of the question. Why argue that black is black when it could be matt black, gloss black, charcoal, slate etc.:(

For us, as workers, to approach our boss with quotes from Case Law would confuse them as much as us.

It would be so nice if engineering companies were run by engineers and not accountants.

Now, I say again, this is not a complaint aimed at you Abe in way way at all.

[/end legal rant]

Abe
30-04-2008, 12:27 PM
Hi Brian

Point taken

In future I shall keep it simple and leave out the legislation and case law part.

Thx
Abe

Abe
30-04-2008, 12:34 PM
Does having an unreasonable work load give you some sort of alibi?
Surely the company can not wriggle out of it by saying it's the workers fault because he signed the document?

Chillin:):)

Yes, an unreasonable work load, ( quantified) will give rise to an alibi or mitigate the claim against the employee.

It must be weighed and balanced however depending upon the strengths and weaknesses of the argument.

ie: The worker signed off, yes, but the pressure he was under, did the employer know or were aware of this?

If it can be " proved" then the employer is liable.

its a balancing act, and what tips the scales it the weight of the evidence.

My advice, when you come across a situation where there is some contention, keep records of everything

Tape recordings
Telephone logs
Diaries

Anything that can be produced to confirm who said what.

I am dealing in a matter at the moment for a claimant who kept records going back 5 years.

Its an employment tribunal case, and these records have helped . Now looking for a massive payout.

Regards

chillin out
30-04-2008, 03:19 PM
Abe, your the man. That is exactly what I wanted to hear.

Now I just need to wait for something to go wrong....lol

Thanks again.

Chillin:):)

Abe
30-04-2008, 06:20 PM
However as a 'simple man' my reading of the above confirms why I dislike the Law.

From a simple(ish) question we have been given a legal answer which as far as I can see hasn't answered the question directly. That I believe is because the Law does not allow things to be simply answered due to the potential complexities of the question. Why argue that black is black when it could be matt black, gloss black, charcoal, slate etc.:(

For us, as workers, to approach our boss with quotes from Case Law would confuse them as much as us.

[/end legal rant]


The " problem" with the law is that we are guided by:

1: statute, that what is passed by parliament
3: precedent that was represents case law
3: other, remnants from our historic past

You can have two identical scenarios, with one case going this way and the other decided differently

Then it goes to appeal, and the appeal wins, or loses, and goes to House of Lords and they say the original decision of the court was wrong!!

That is why , it is all about persuasive argument , putting forward a case that holds and is convincing.

Judges use the easy way out to determine who is telling the truth. Its called evidence, those that can "prove" usually win, that is why I maintain that it is essential to maintain records of everything.

Hope this gives an idea about the complexities of the law and why often it seems that criminals get away.
:)

Brian_UK
30-04-2008, 09:39 PM
Hi Brian

Point taken

In future I shall keep it simple and leave out the legislation and case law part.

Thx
AbeNo, Abe, not my point at all, sorry if I misled you.

Examples and facts as given by you are most important to all. I think that it shows how difficult it can be for both the emp'ee and emp'er to arrive at what ought to be a simple(ish) resolution.

It's being able to apply the knowledge that we often need people such as yourself Abe to liaise, guide and, if need be, push the data down our throats.

Brian_UK
30-04-2008, 09:45 PM
One small addition to your post above about keeping records/notes etc.

Maybe not quite in the same ballpark, we'll see, but with a previous firm I, and the other techies, were getting pushed harder and harder to complete more tasks than there were hours in the day.

I suddenly realised that I couldn't take that sort of pressure so fired off a 2/3 page email to the firms HR department complaining about the treatment that we were receiving and from which manager.

It paid off, the workload got more sensible and importantly the complaint is on record, both mine and the companys'.

acb
30-04-2008, 10:01 PM
Hi Abe, Ive got one for you,

Say an employee was on standby, he works from 7.30am and doesnt get home till 1am, he then gets another call to a major breakdown at 3am for a job approx 2hrs away and decides hes too tired to go.

can the employer sack him for this.

Brian_UK
30-04-2008, 11:54 PM
I think that you can lean on the good old Health and Safety on that one, you are unfit to drive the company vehicle.

Grizzly
01-05-2008, 11:36 AM
Hi Abe, Ive got one for you,

Say an employee was on standby, he works from 7.AM and doesn't get home till 1am, he then gets another call to a major breakdown at 3am for a job approx 2hrs away and decides hes too tired to go.

can the employer sack him for this.

Ah! The joys of Commercial/ Supermarket work I presume?

You have my sympathies ABC, my very very limit knowledge of that style of call out regime.
Is if you do it they will let you!
Ultimately YOU are the First line of safety when your Health & Safety are concerned.
And I don't now many managers stupid enough to go against H&S.
Although they apparently can make your life hell!
Thanks for the post
Sadly some working practises never change and I bet they tell you it is character building?
Cheers Grizzly

Abe
01-05-2008, 03:07 PM
Hi Abe, Ive got one for you,

Say an employee was on standby, he works from 7.30am and doesnt get home till 1am, he then gets another call to a major breakdown at 3am for a job approx 2hrs away and decides hes too tired to go.

can the employer sack him for this.

This one is governed by the " hours" regulation within the Employment Rights Act 1996

I shall check the position and revert later today

Abe
01-05-2008, 03:37 PM
Hi Abe, Ive got one for you,

Say an employee was on standby, he works from 7.30am and doesnt get home till 1am, he then gets another call to a major breakdown at 3am for a job approx 2hrs away and decides hes too tired to go.

can the employer sack him for this.

This is a really huge area , however to answer your question I have honed in to what I think is appropriate here

Daily rest period

Adult workers are entitled to an uninterrupted rest period of not less than 11 consecutive hours in each 24-hour period. [Working Time Regulations 1998 (SI 1998/1833), reg 10].

Employers must ensure that workers are allowed to take their rest breaks and that work arrangements provide a proper opportunity for workers to take their breaks.

This was confirmed by the ECJ in a successful challenge brought by the European Commission to the DTI's original guidance on rest breaks: see Commission of the European Communities v United Kingdom (C-484/04). The DTI's guidance originally stated that 'employers must make sure that workers can take their rest, but are not required to make sure they do take their rest'.


The provisions regarding daily rest periods do not apply where a worker's working time is unmeasured. [Working Time Regulations 1998 (SI 1998/1833), reg 20(1)].

Derogations from the rule may be made with regard to shift work [reg 22], or by means of collective or workforce agreements [reg 23] or where there are special categories of workers [reg 21]. However, in all cases (except for workers with unmeasured working time under reg 20(1) – see W7033 below) compensatory rest must be provided [reg 24].


So need to consider the following:

If you fit into a category where the time is unmeasured, ( highly unlikely)

If there are collective or workforce agreements in place, refer to your employment contract and look for a clause
( again, I feel unlikely)

to answer your question then, in a period of 24 hours, you are entitled to 11 hours of uninterrupted rest.

See the next post for Night Work

Abe
01-05-2008, 03:38 PM
Definitions

Before considering the detailed provisions in relation to night work contained in reg 6, an understanding of the definitions of 'night time' and 'night worker' contained in reg 2 of the Regulations is necessary. These are as follows.

Night time in relation to a worker means a period:

*
(a) the duration of which is not less than 7 hours; and
*
(b) which includes the period between midnight and 5am,

which is determined for the purposes of the Regulations by a relevant agreement or, in the absence of such an agreement, the period between 11pm and 6am.

Night worker means a worker:

*
(i) who as a normal course works at least three hours of his daily working time during night time (for the purpose of this definition, it is stated in the Regulations that (without prejudice to the generality of that expression) a person works hours 'as a normal course' if he works such hours on a majority of days on which he works – a person who performs night work as part of a rotating shift pattern may also be covered); or
*
(ii) who is likely during night time to work at least such proportion of his annual working time as may be specified for the purposes of the Regulations in a collective or workforce agreement.

The question of when someone works at least 3 hours of his daily working time 'as a normal course' was addressed in the case of R A-G for Northern Ireland ex parte Burns [1999] IRLR 315. In this case the Northern Ireland High Court held that a worker who spent one week in each 3-week cycle working at least 3 hours during the night was a 'night worker'. The High Court said that 'as a normal course' meant nothing more than as a regular feature. The DBERR in its guidance refers to this case and states that occasional and or ad hoc work at night does not make you a 'night worker'.

The question is certainly open, following the Burns case, of how frequent something has to be in order to become 'regular'.

Abe
01-05-2008, 03:39 PM
Length of night work

If a worker falls within these definitions, then he or she is a night worker for the purposes of the Regulations. The Working Time Regulations 1998 (SI 1998/1833), reg 6 then goes on to provide that an employer shall take all reasonable steps to ensure that the normal working hours of a night worker do not exceed an average of 8 hours in any 24-hour period. This is averaged over a 17-week reference period which is calculated in the same way as in reg 4 (see W7011 above).

As with the maximum working week, there is a formula for calculating a night worker's average normal hours for each 24-hour period as follows:

where:

*
a is the normal (not actual) working hours during the reference period;
*
b is the number of 24-hour periods during the applicable reference period; and
*
c is the number of hours during that period which comprise or are included in weekly rest periods under reg 11, which is then divided by 24.

Although the Regulations originally excluded night shift overtime hours from those which count towards 'normal' hours, this provision has been repealed. It is therefore possible for overtime to count towards 'normal hours' where it is regularly worked and forms part of a night worker's normal hours of work.

If the night work involves 'special hazards or heavy physical or mental strain', then a strict eight-hour time limit is imposed on working time in each 24-hour period and no averaging is allowed over a reference period. The identification of night work with such characteristics is by means of either a collective or workforce agreement which takes account of the specific effects and hazards of night work, or by the risk assessment which all employers are required to carry out under the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242).

The derogations in reg 21 of the Regulations (special categories of workers) apply to the provisions on length of night work. Workers whose working time is unmeasured or cannot be predetermined (and where it is only partly unmeasured or predetermined, to the extent that it is unmeasured) are also excluded. [Working Time Regulations 1998 (SI 1998/1833), reg 20]. Other exemptions may be made by means of collective or workforce agreement. [Working Time Regulations 1998 (SI 1998/1833), reg 23].

Abe
01-05-2008, 03:41 PM
Health assessment and transfer of night workers to day work

An employer must, before assigning a worker to night work, provide him with the opportunity to have a free health assessment. [Working Time Regulations 1998 (SI 1998/1833), reg 7]. The purpose of the assessment is to determine whether the worker is fit to undertake the night work. While there is no reliable evidence as to any specific health factor which rules out night work, a number of medical conditions could arise or could be made worse by working at night, such as diabetes, cardiovascular conditions or gastric intestinal disorders.

Employers are under a further duty to ensure that each night worker has the opportunity to have such health assessments 'at regular intervals of whatever duration may be appropriate in his case'. [Working Time Regulations 1998 (SI 1998/1833), reg 7(1)(b)].

The Regulations do not specify the way in which the health assessment must be carried out, nor is there specific reference to medical assessments, so that strictly speaking, such assessments could be carried out by qualified health professionals rather than by a medical practitioner. The latest DBERR guidance contains a sample health questionnaire.

Contrast this with the position as regards the transfer from night to day work. If a night worker is found to be suffering from health problems that are recognised as being connected with night work, he or she is entitled to be transferred to suitable day work 'where it is possible'. In such a situation, the Regulations provide that a 'registered medical practitioner' must have advised the employer that the worker is suffering from health problems which the practitioner considers to be connected with the performance by that night worker of night work.