A Redditch freight firm, its managing director and a Birmingham contractor have been prosecuted for putting at least 20 people at risk of lung disease from asbestos fibres.

The Health and Safety Executive (HSE) prosecuted Avon Freight Group Ltd (AFG) and its managing director Simon Poole, together with builder Ronald MacPhee, over the exposure during work to convert the unit in Hemming Road, Redditch, into a new storage centre and headquarters for AFG.

AFG’s architect commissioned a survey that identified asbestos insulation board in a number of partition walls, which the company wanted to demolish, and obtained estimates for its removal from three licensed contractors.

However, Worcester Crown Court heard Simon Poole instructed builder Ronald MacPhee, who was carrying out minor refurbishment work on the premises, to carry out the work even though he did not have a licence.

Mr MacPhee and two other workers removed almost 1.5 tonnes of asbestos insulation board from the site and disposed of it as asbestos cement, which can be removed without a licence, sometime between 24 April and 16 May 2008.

Five months later, two other companies, who had been commissioned to demolish parts of the building and build an extension, discovered pieces of asbestos insulation board on the floor and still attached to retaining screws on the walls and alerted HSE.

Analysis of the area revealed that it was contaminated with asbestos fibres and required decontamination by a specialist licensed asbestos contractor.

HSE’s investigation into the incident found that at least 20 people – including contract workers on the project, employees of AFG and workers for a tenant who had been using the site for storage, could have inhaled asbestos fibres during the five months.

Speaking after the hearing, HSE inspector Tariq Khan said:

“As a result of the appalling failings of the company and two individuals concerned, at least 20 people now have to live with the knowledge they have been exposed to asbestos.  This type of exposure could cause life-threatening illnesses in years to come but because it takes so long to develop, these people will be left with years of uncertainty.”

“AFG and Simon Poole knew that asbestos insulation board was present in the walls and presumably knew they should get an appropriately qualified person to dispose of it, having received estimates from three properly licensed contractors.  Regardless of safety, they instructed Ronald MacPhee to remove it.”

“Mr MacPhee should never have carried out the work, and his partial removal of the asbestos insulation board left the site in an even less safe state than before, as it was contaminated with fibres.”

“Only licensed contractors are allowed to remove asbestos insulating board. If we find evidence of anyone who does not have a licence working with asbestos, we will not hesitate to bring enforcement action.”

“It is no excuse to claim ignorance of the law, especially as there is a wealth of advice and information available from HSE free of charge.”

Fines and costs exceeded £100,000 for the company and its MD.

Note: -

Asbestos is the biggest cause of occupational deaths in the UK, with an estimated 4,000 people dying every year from related diseases such as mesothelioma and lung cancer.

Under ‘The Health and Safety at Work etc Act 1974 (HSW Act)’ employers have a legal duty under this Act to ensure, so far as it reasonably practicable, the health, safety and welfare at work of their employees and anyone else affected by their undertaken; including exposing people to asbestos.

Under the ‘Control of Asbestos Regulations 2006’ employers have a legal obligation to manage the risk from asbestos: -

·         Find out if there is asbestos in the premises, its amount and what condition it is in.

·         Presume materials contain asbestos, unless there is strong evidence that they do not.

·         Making and keeping up to date records of the location and condition of the asbestos containing materials (ACMs) or presumed ACMs within the premises.

·         Assess the risk from the material.

·         Prepare a plan that sets out in detail how you are going to manage the risk from asbestos.

·         Take steps to put the plan in action.

·         Review and monitor the plan and arrangements put in place.

·         Provide information on the location and condition of the material to anyone who is liable to work on or disturb ACMs.

Most asbestos removal work must be undertaken by a licensed contractor; before any removal is undertaken seek advice from a competent person.

The case, which saw a conflict between gay rights and religious beliefs, arose when a couple, Mr and Mrs Bull who ran a guest house in Cornwall refused a gay couple who had undergone a civil partnership ceremony, a double bedded room. The Bulls, who are Christians, let single bed and twin bed rooms in their guest house to anyone regardless of their sexual orientation, but refused to let rooms with double beds to anyone unless they were a married couple. Their guest house website made this policy clear and they stated their belief that homosexual relations and heterosexual relations outside marriage were sinful and against their religious beliefs.

The gay couple who were civil partners, Messrs Preddy and Hall, were refused a double bedded room by the Bulls and asserted that they should be entitled to be treated the same as any married couple and claimed that the only reason they were treated differently was due to their sexual orientation. On taking their case to the County Court, the Judge ruled that they had suffered direct discrimination. The couple were awarded damages for injury to feelings to the sum of £1,800 for each Respondent.

The Bulls took the case to the Court of Appeal who upheld the County Court’s decision, stating that the Bull’s policy of not allowing double bedded rooms only to married couples was merely a manifestation of their religious belief. The Court held that by running a business, they had to comply with the law, including their obligation not to discriminate against potential customers due to their sexual orientation.

It is important to keep accurate payroll records so that HMRC can check at any time to see that the payroll has been run correctly in respect of:

·         Tax and National Insurance deductions

·         Statutory Pay

·         Legislation

·         Payments made to HMRC

Records and documents need to support the Year End submitted.

For ALL employees you should have:

·         Name and Address

·         Date of Birth

·         Gender

·        Tax forms –  P45 from previous employer, P46 where P45 is not available, P38 for students that work solely in the holidays and subsequent tax code notices

Statutory Pay

For sick pay, records need to show:

·         How long an employee was off work

·         How much SSP was paid

·         Any dates they were off sick but not paid and why

·         Medical evidence – Self Certification forms or Doctors/Hospital notes.

For Maternity/Paternity/Adoption Leave you need to record all relevant dates and payments made. Forms to be kept are MATB1, SC3, SC4 and SC5

HMRC state that all records must be kept for the current tax year and at least the previous three years. This can either be in an electronic or paper format.

• Statutory maternity pay (SMP), paternity pay (SPP) and adoption pay (SAP) – all increase from £128.73 to £135.45 per week from 1st April 2012

• Statutory sick pay (SSP) – increases from £81.60 to £85.85 per week with effect from 6th April 2012

• Lower earnings limit increases from £102 to £107 per week on 6th April 2012

• Contracting out of state additional pension is abolished from 6th April 2012

• The qualifying period for an employee to bring an unfair dismissal claim will increase from one to two years on 6th April 2012

Other changes to the Employment Tribunal Rules of Procedure come into force on 6th April 2012, including judges hearing unfair dismissal cases alone, the increase in the maximum deposit order from £500 to £1,000 and the increase in the maximum amount of a costs order to increase from £10,000 to £20,000

Incapacitation means that the worker is absent, or is unable to do work that they would reasonably be expected to do as part of their normal work.

You must still keep a record of the accident if the worker has been incapacitated for more than three consecutive days. If you are an employer, who must keep an accident book under the Social Security (Claims and Payments) Regulations 1979, that record can be treated as a record for the purposes of RIDDOR.

(Taken from HSE publication Reporting accidents and incidents at work: A brief guide to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) – INDG 453)

You may have recently read in the news about the Employment Tribunal judgement awarded against the former high street retailer Woolworths plc that totalled approximately £68 million. The action was brought by the unions and employee representatives for the employer’s failure to collectively consult with employees about  proposed redundancies. Whilst there may have been a degree of inevitability regarding the fate of the Woolworths employees’ jobs it did not excuse the employer (via the appointed administrators) to conduct a genuine and meaningful consultation with employees about the proposed redundancies.

Collective consultation

In circumstances where an employer proposes to make 20 or more employees redundant at one establishment within a 90 day period then the employer must begin a process of collective consultation with the appropriate representatives of the affected employees in good time but at least 30 days before the first of the dismissals takes effect (or 90 days if there are 100 or more employees proposed for redundancy within a 90 day period).

The appropriate representatives will either be an independent trade union which is recognised by the employer and covers the affected employees; or employee representatives who have been appointed or elected by the affected employees with the purpose and authority to receive information and to be consulted about the proposed redundancies on behalf of the affected employees. If there are no existing appropriate employee representatives then the employer must arrange for the election of representatives before the consultation process begins.

The consultation process must include ways of exploring how the dismissals can be avoided, how the number of dismissals can be reduced and how the consequences of the dismissals can be mitigated, with a view to reaching agreement with the appropriate representatives.

Furthermore, as part of the consultation process the employer must provide specific information, in writing, to the appropriate representatives within the relevant timescales. The information will include:

·         the reasons for the proposals;

·         the numbers and descriptions of employees whom it is proposed to dismiss as redundant;

·         the total number of employees of any such description employed by the employer at the establishment in question;

·         the proposed method of selecting employees who may be dismissed;

·         the proposed method of carrying out the dismissals with due regard to any agreed procedure, including the period over which the dismissals are to take effect; and

·         the proposed method of calculating the amount of any enhanced redundancy payments

A failure to inform and consult (whether this is a complete lack of consultation or an inadequate effort to consult) or failure to hold a fair election of employee representatives will leave the employer open to a claim for a Protective Award of up to 90 days pay per affected employee, so it can prove a costly mistake for the employer.

If you are aged 65 or above and your Adjusted Net Income is above £24,000 your tax allowance is reduced by half of the amount you are over the £24,000 limit until the basic tax allowance is reached. For example if your income is £25,000, £1000 over the income limit your allowance will be reduced by £500 to £9440.

What is Adjusted Net Income?

Adjusted net income is the level of income used in the calculation of Age Related personal allowances. Your adjusted net income is your total income after taking certain deductable allowances and reliefs into consideration, such as donations to charity made through Gift Aid, trading losses and some pension contributions. Further information can be found on the HMRC website .

How do I get the Age Related Personal Allowance?

As long as HMRC have your date of birth on file and you are not self employed they will send you a Pension Coding form P161 automatically before you reach State Pension age. If you are within a month of reaching State Pension age and have not received the form or are self-employed you can download a copy of the form P161 from the HMRC website.

Volunteers:

There will be 70,000 ‘Games Maker’ volunteers for both the Olympic and Paralympic Games, needing a minimum of 10 days off for each event. Volunteers should now have been notified if they have been successful and should receive their roster in April, giving reasonable time for holidays to be booked. Employers aren’t required to give paid time off to volunteers, however accommodating this ‘once in a lifetime’ opportunity in some way may encourage loyalty that will last beyond the duration of the games, as well as allowing individuals to gain skills that may be utilised within the workplace. Whilst most will probably take annual leave to volunteer, you may consider introducing authorised unpaid time off for a limited period, particularly if your business is expecting a downturn during the Games anyway. Again, in order to encourage staff satisfaction, you may consider matching annual leave days with paid days off for volunteers, particularly if your organisation is involved in other volunteer or charity work throughout the year and could benefit from such an arrangement.

Spectators:

With 6.6 million tickets already issued, employees lucky enough to get tickets will already be aware of any time off work they may require to watch an event. Your existing holiday booking policy should already clarify how to book holiday and what happens if requests for the same period cannot be accommodated (often on a ‘first come, first served’ basis). It is advisable to reiterate the holiday booking procedure to your team urging them to make requests as soon as possible to avoid disappointment and so that there is sufficient time to look at ways of accommodating requests appropriately. If you do not have a clear holiday booking procedure, then now is the time to implement this into your organisation.

There will also be those not fortunate to get tickets, but who will want to watch key events on the television, which may clash with working time. Again, whilst there is no obligation on employers to allow employees time off to watch events, making provisions and having a flexible approach during this period where possible is likely prevent non-genuine absences occurring and may improve employee satisfaction. Considerations may include altering start and finish times or extending lunch breaks, with time made up elsewhere. Again, planning is key and will ensure minimum disruption to the business. For example, discuss with each work group which events individuals would like to watch and encourage compromise and agreement within the team to provide adequate cover. You may also want to consider making some flexible arrangements at a later date for those who are not Games enthusiasts but who are covering for their colleagues who are.

Travel disruption:

Even for those not enjoying or participating in the games and trying to work as normal, travel may well be disrupted, particularly in the hosting city of London and the out of London venues such as Cardiff and Manchester. If your place of work is likely to be affected by events nearby, it is worth giving thought to how any disruption may be avoided or at least minimised, in agreement with employees. Key measures to consider may include:

• Can employees work from home on days when key events are taking place?
• Can you alter working hours so that employees are not commuting during     times that will be busy?
• Are you able to arrange for hours to be made up outside busy periods?
• Can you look at those living within walking distance to the workplace and swap shifts temporarily with those living further away during key event times?

Whatever the impact on your organisation, we would advise that you give prior thought to how you will manage all elements of absence, volunteering and spectating, so that you can operate a clear, objective and fair approach as matters arise.

City of London Magistrates’ Court heard that on 4 March 2009 ambulance and fire crews were called to an address in Elgin Road, Croydon, where they found several people suffering flu-like symptoms and dizziness. One tenant thought he was having a heart attack.

Five residents were taken from the property, belonging to landlord James Long, to Princess Royal University hospital suffering from carbon monoxide poisoning. Three needed to be transferred to Whipps Cross hospital for specialist hyperbaric treatment.

The Health and Safety Executive (HSE) investigation found Mr Long did not have a landlord’s gas safety certificate covering the property, meaning the gas hob, boiler and flue had not been inspected by a qualified gas engineer.

It was discovered the carbon monoxide was coming from a gas boiler in the cellar and gas engineers found a taped-up air vent had led to insufficient fresh air coming into the cellar.

Speaking after the hearing, HSE Inspector Matthew Raine said:

“This carbon monoxide poisoning could easily have been fatal. If Mr Long had fulfilled his legal obligation to get the property inspected, he would have been made aware just how dangerous it was for the air vent to be taped-up. Mr Long disregarded his landlord duties and put his tenants at grave risk.

“Every year, around 20 people die and many others suffer ill-health from carbon monoxide poisoning. Landlords who put their tenants in danger will be prosecuted.”

Mr Long of Elgin Road, Croydon, pleaded guilty to breaching Regulation 36(3)(a) of the of the Gas Safety (installation and Use) Regulations 1998. He was fined a total of £24,000 and ordered to pay costs of £6,000.

(HSE Press Release: COILON/0912)

Whilst this particular case related to a Landlord, please note that under the ‘Gas Safety (Installation and Use) Regulations 1998 it shall be the duty of every employer or self-employed person to ensure that any gas appliance, installation pipework or flue installed at any place of work under his control is maintained in a safe condition so as to prevent risk of injury to any person.

There is a risk of explosion from gas installations that are not looked after or maintained. This can be caused by faulty or leaking equipment, pipework, etc.

Another problem is carbon monoxide. If gas hasn’t burnt properly or is burnt without adequate ventilation or blocked flues it will produce carbon monoxide. If this is breathed in, it mixes with the blood starving the body of oxygen and poisoning it. Symptoms can include tiredness, drowsiness, headaches, nausea and chest and stomach pains. In extreme cases carbon monoxide poisoning can kill within a matter of hours.

Gas appliances in the workplace must only be installed and maintained by a qualified, Gas Safe Registered engineer.

The engineer must also be qualified to service the particular type of equipment that is to be worked on, i.e. central heating etc. The installations service interval will be specified by the manufacturer, but is usually annually.

The government has announced developments in its plan to introduce tribunal fees.  The fees are intended to reduce the number of unnecessary employment tribunals after last year saw a 44% rise in cases, increasing the UK taxpayer’s cost to an estimated £84 million a year. It is thought that by placing a price on tribunals, both sides will be forced to consider whether their claim is substantive or whether they are likely to suffer a greater financial penalty by proceeding. It is important to highlight though that if a claim is deemed a case of justice, the government is prepared to waive the fees if the claimant cannot afford to pay.

However, it is hoped that the new fees will have a positive effect on the number of cases solved at an earlier stage by methods such as mediation and conciliation.

Although it has already been agreed that tribunal fees must be introduced, the government is currently consulting until March 6th of this year to consider two options for implementation:-

·Option one would see the claimant pay an initial fee of between £150 and £250 to begin proceedings, followed by an additional fee of between £250 and £1250 if there is a hearing. Under this option there would be no limit on the amount of possible compensation.

·Option two would see the claimant pay one fee of between £200- £600 but with a limit on compensation reaching £30,000. There would be the additional option of paying £1,750 if the claimant intends persue a greater level of compensation.

For both option one and two, there is the added possibility that the losing party will be forced to reimburse fees paid by the other side.

The year that the fees are implemented will depend on the option taken, with option one being adopted in 2013 and option two being adopted in 2014 as it requires primary legislation.