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Connect Issue 30
17 August 2009

 

Welcome to the latest issue of Connect

Hello, and welcome to another issue of Connect.

There seem to be conflicting views on the effect swine flu is having on the British economy.

The Institute of Directors found that some 85 per cent of organisations it surveyed believe swine flu is having little effect on business, with directors able to focus on the immediate priority of tackling the economic crisis.

Meanwhile, the Employment Law Advisory Services say those workers who are skiving by taking time off with false cases of swine flu are having a “significant impact on workplaces across the country”.

One thing that’s obvious, if you ask me, is staff skiving has been blown out of proportion more than the flu pandemic itself – particularly as the number of swine flu cases continues to fall. However, if cases are expected to rise sharply in the coming months, then it’s vital that both workers and businesses work together to safeguard the health of staff and the economy as a whole.

In this issue of Connect, we have the second in a series of articles on workplace stress. We look in more detail at what the signs and symptoms of stress are, and how you can learn from the mistakes of others when cases come before the courts.

We also take a look at a recent court case which, for the first time, is requiring the Scottish Appeal Court to look very closely at how fines should be calculated for health and safety offences.

As well as features, we’ve the latest roundup of news across the profession, including why the HSE is introducing new guidance for people who carry out asbestos surveys, and details of the decision by the Court of Appeal to reduce the fine imposed on the creator of a piece of inflatable artwork which killed two women.

Thanks for reading. If you have any comments to make, or would like to be featured in Connect, please drop me a line.

Shaun Gibbons
e-Editor, IOSH.



From the courts: what you need to know

A recent case has, for the first time, required the Scottish Appeal Court to look very closely at how fines should be calculated for health and safety offences.

Since the late 1990s there’s been a steady stream of decisions by English courts that have effectively set out how health and safety prosecutions and penalties will be decided. That was never mirrored in Scotland. A £15 million fine against Transco in 2005 following the death of a family of four in South Lanarkshire made headlines, but it didn't set a precedent for other defendants. It was a tragic case and Transco had large pockets. A big fine was inevitable. But now, the Scottish Appeal Court has decided how fines should be worked out and it's not good news.

The case

In June 2006, haulage contractor Munro & Sons (Highland) Ltd was transporting a heavy loading vehicle from its base to a quarry on a trailer. The vehicle was secured by two chains.

On the journey to the quarry up a steep hill, the heavy loading vehicle began to roll backwards, breaking the chains. The vehicle rolled off the trailer, crushing a car that was travelling behind, killing one person and seriously injuring another.

On investigation, the hand brake of the loading vehicle was found to be faulty, meaning that the wheels were free to turn while it was on the trailer. Although the company wasn’t aware of the defective brake, the main failure was identified as being the chains, which fell far below the required standards.

The right fine?

The sentencing judge fixed a starting point for the fine at £5,000, reduced by 25 per cent to £3,750, to reflect the company’s early guilty plea. This level of fine in an English court would be consistent with a minor injury. Not surprisingly, the prosecution appealed on the basis that the sentence was unduly lenient.

The appeal court made considerable reference to English sentencing cases, in particular R v Balfour Beatty Rail Infrastructure Ltd where it was held that failures of general duties under the Health and Safety at Work Act 1974 were particularly serious as they were seen as “the foundations for protecting the health and safety of the public”.

The court in the Balfour Beatty case said that it would be helpful to look at how far below the appropriate standard the defendant fell. The degree of risk, extent of the danger, and whether it’s an isolated failure or one over an extended period would also be relevant. If a death had occurred that would be an aggravating factor i.e. it would increase the level of the fine significantly.

The Balfour Beatty judgment was also important in emphasising the need for a court to consider a defendant’s financial position and the effect a fine would have on the business. The challenge was to set a fine which was high enough to send a message to the owners or shareholders of the business, while at the same time acknowledging what they could afford without impacting heavily on their ability to operate.

The Scottish Appeal Court also looked at the consultation paper on sentencing for corporate manslaughter, issued by the Sentencing Advisory Panel in November 2007. The panel suggested that, for a first offence of corporate manslaughter, the fine should amount to five per cent of the offender’s average annual turnover during the three years before sentencing. After taking into account any mitigating factors, the court should then arrive at a fine between 2.5 and 10 per cent of average annual turnover.

The draft guidelines within the consultation paper are only intended to apply in England and Wales, but it’s clear that Scottish courts are already taking the recommendations into consideration when sentencing health and safety cases.

The decision

The appeal court in the case of Munro & Sons decided that the sentencing judge had been wrong in his approach and that the seriousness of the offence, the company’s ability to pay and other mitigating and aggravating factors should have been considered. The Appeal Court judge deemed it “entirely foreseeable” that if the vehicle rolled off the trailer onto the road that members of the public would be at risk of death or serious injury. The fine was raised to £40,000, but reduced to £30,000 to reflect the fact that the company had entered an early guilty plea. Although the company’s turnover was substantial, it was accepted that it was not a profitable company.

Conclusion

Even at £30,000, the fine would still be considered relatively low in comparison with fines imposed by English courts in fatal accident cases. But the most important aspect of this judgment is the willingness of the courts to adopt sentencing recommendations that have been criticised by those working in the courts system for focusing on turnover, which often doesn’t reflect a company’s true financial position.

In the next few months, a decision should be reached on whether these sentencing recommendations will be implemented in their current form. Gross or net profit may replace turnover; the percentages may be reduced. About the same time, courts will be given new guidance on their powers to impose custodial sentences in health and safety cases following the introduction of the Health and Safety (Offences) Act 2008 in January. Previously, imprisonment was only an option where a defendant failed to comply with an Improvement or Prohibition Notice.

It's an interesting time in health and safety but one that's also causing those in business to review how they manage their obligations.

Our thanks to DWF for this article.


Guidance: what you need to know

In our second article on workplace stress, we look in more detail about what stress is...

Workplace stress: what is it and is it good for you?  

Headlines

  • While work is basically good for us, excessive demands can create stress
  • An employer has a duty to avoid damage to an employee’s mental health just as they have to avoid harm to physical health
  • Recent compensation payouts for stress have reached over £100,000
  • Four out of ten senior HR professionals in the private sector, and five out of ten in the public sector, singled out stress as the main workforce health concern.

Introduction

In the Monday 3 August issue of Connect, “Good practice: managing workplace stress”, we looked at how to use the HSE management standards in a risk assessment to manage stress in the workplace.

In this article, we define stress, look at its signs and symptoms and consider what can be learnt about managing workplace stress from legal cases.

What is stress?

The HSE defines work-related stress as “the adverse reaction people have to excessive pressures or other types of demand placed on them at work.” What is considered as excessive will vary for each individual. For example, one may enjoy throwing themselves into a new project, learning new skills and taking on more complex tasks. Another may find this complexity stressful, and yet be able to cope with repetitive, familiar work which the first person would have found stressful.

What are the signs and symptoms of stress?

The HSE provides a list of signs and symptoms of stress, which fall into three categories:

  • Emotional symptoms such as anger, loss of motivation, tearfulness and low self esteem
  • Mental symptoms such as poor memory, inability to plan and confusion
  • Changes in behaviour including eating more or less, smoking more and nail biting.

Signs of stress in a group are also given, including increases in staff turnover, increased sickness absence and customer complaints.

The physical signs of stress aren’t mentioned in this list, and are only briefly mentioned by the HSE. A more detailed list is available at which includes high blood pressure, nausea, headache and sleep disturbance.

Is stress good for you?

Some people will tell you that stress is good for you. What they usually mean is that some pressure is good for you. Using the HSE definition, stress is the reaction to the pressure, so it’s more accurate to say that mild pressure is good for you – it can motivate and energise. But too much can result in stress. This is illustrated by the following diagram.

Tasks where high vigilance is required for long periods of time with little else to do (such as security jobs watching CCTV) often result in poor performance – people miss the activity they’re supposed to spot because they are so bored they aren’t performing any more. This should be considered by managers as a form of stress.

At the other extreme, when there’s too much pressure, for example because a task is too complex for an individual, or there’s simply too much to do, performance suffers, less is achieved and a person suffers stress.

How much pressure is too much?

It’s obvious to say that different people cope in different ways, and yet much that’s written about stress talks about it as if there is a given level of pressure that people can take. The factors that influence an individual’s response to pressure include:

Ability – has the person the aptitude and the training needed for the task they’re doing? As a simple example, ask someone familiar with Excel to produce a simple graph showing sales across three product lines for the week, and they can complete the task in five minutes. Ask someone without the skills, and it could take over an hour, and still not be completed correctly. The first person will have the same workload, but no stress; the second person could be very stressed.

Personal circumstances – are there pressures at home that are creating stress, and making it more difficult for the person to cope at work?

Support – employees will cope better with work pressure if they feel supported by colleagues and management, and know there’s a way of reducing the pressure if it gets too much.

Health – pre-existing health conditions such as hypertension (high blood pressure), heart conditions or existing mental health problems may affect an individual’s ability to cope with work pressure.

Your responsibility – learning from others’ mistakes

One of the deciding factors in legal cases on stress has been whether the employer could have reasonably foreseen circumstances leading to the damage to an employee’s mental health.

Organisations should therefore take note of reasons given in sick notes for absences, as well as any conversations or emails where staff mention they are feeling overworked or under pressure. It’s the patchwork of such small evidence that can turn a case for compensation.

As an example, take the case of school teacher Mr Barber who first won his case – then lost when the employer took the case to the Court of Appeal but was finally compensated following a judgment from the House of Lords. Line managers and supervisors at all levels need to be aware of the signs of stress, and need to know who to contact for advice if they believe an employee may have a stress-related problem.

The second point is how an organisation fulfils its duty of care. The 2002 Court of Appeal judgment on the case of Mrs Hatton led some employers to believe that provision of a work-based counselling service would be defence against a claim for compensation for stress. However, counselling should be seen as a means of identifying stress, not the solution to it. In 2007 the Court of Appeal decided that Intel’s compensation payment of over £134,000 would have to be paid, because although they had provided counselling to an overworked employee, they had done nothing to deal with the actual problem –  too many and conflicting demands.

Yet in 2008, the Court of Appeal had to take O2 to task on a similar issue, where the company had cited their counselling service as defence against the charge of breach of duty of care.

Confidential counselling can identify whether an individual is vulnerable, but it’s clear from the Intel and O2 judgements that it must be backed up with a process for considering the task and the person. It’s not a defence to show that the same workload was not stressful for other people. For example, in the case of a police officer with high blood pressure, the Court of Appeal found that his pre-existing health condition should have been considered.

Links

HSE

Safety & Health Practitioner November 2007 

Emplaw, February 2005