THE TRUTH ABOUT WHERE THERES BLAME, THERES A CLAIM 

Over recent years the phrase "No win no fee" has become an established part of our everyday language. It certainly seems a growth business with increasing numbers of claims management companies touting for business on television and radio and sending their canvassers into shopping centres.

Is this really the case? The insurance companies claim there has been an increase in claims and that people expect to claim when anything goes wrong, in fact we are constantly being encouraged to do just that.

We hear similar messages from employers and their representatives, people expect compensation for every accident and injury. However the trade unions and solicitors deny that there is a claims culture and that it is in decline, even the Government’s own Better Regulation Unit report that there is no such culture.

What is the truth? I’m not sure, but from a personal perspective I tend to believe that the so called claims culture, particularly in regard to workplace injuries, is nothing new and does exist. As an Enforcing Officer I was often amazed to receive a letter from solicitors asking for information about an occupational injury that had happened just two days before; and this was in the days before the phrase “ambulance chasers” had become common.

As very large companies with closed shop trade union recognition have become but memories, trade union membership has declined. Many workers no longer have this free, and generally unpublicised, access to legal advice and a mechanism for making injury claims. This I believe is a vacuum that the claims management companies have filled. In my previous dealings with the unions they dealt with “personal injuries” in house with the company’s own insurers / safety advisers. Now people are “accosted” when out shopping, an industry grown out of need, or greed?

Whatever the truth about a compensation culture you should always bear in mind that this is a legal process that follows well established rules. Every compensation claim will be subject to rigorous investigation. Those representing the claimant will have to establish a valid claim and those representing the defendant or the employer will work to avoid being found liable and subject to a potentially large financial payout.. A claim can only succeed when negligence can be proved. In my opinion the easiest way to stop people claiming is to comply with the well established and publicised legal requirements in the first place. If there are no grounds, there can be no claim. This is the case in every circumstance, not just occupational health and safety.

We have found that what concerns employers most is the claims that succeed, only because they cannot produce evidence to disprove them; cases where they have almost done all of what was required but had not gone the whole way and kept records to prove it.. If you haven’t kept a record of a health and safety briefing, of training, or a tool box talk you will find it difficult to prove that it was ever delivered. If you haven’t got a record of a safety inspection how could you prove that it was done and the particular day on which it was completed?

Records don’t have to be pristine and typed, hand written notes and registers are often adequate, it is the content that matters. For more information or to arrange a no obligation meeting to discuss how we can help, please call Peter Titchener on 07818319741 or email    peter.titchener@peninsula-uk.com

Remember, at Peninsula we supply our clients with a safety management system and the supporting resource, guidance, record forms and checklists that help them meet their legal responsibilities. Provided they adopt and use the system as part of their day to day health and safety management they should not need to be worried by the compensation culture.

The Silent And Invisible Killer That Could Be Lurking In Your Premises

The Silent And Invisible Killer That Could Be Lurking In Your Premises

You cant see it. You cant taste it. You cant even smell it. But carbon monoxide can kill without warning in just a matter of hours so says the Health and Safety Executive (HSE) in one of their Gas Safety leaflets.

The truth of the statement was tragically illustrated in 2006 when a British family on holiday in Corfu were overcome by carbon monoxide. The gas boiler in their holiday apartment was faulty and during the night pumped carbon monoxide into their sleeping accommodation. The father and his partner survived the incident, but only after two days in intensive care. Sadly, the children, aged 6 and 7, died, having succumbed to the silent killer.

Back at home HSE statistics reveal that cases of carbon monoxide (CO) poisoning from faulty gas appliances are not uncommon. During 2007/8, 150 work-related incidents of CO poisoning (an increase of 30.4% on 2006/7), with 34 explosion incidents (up by 54.5%), were reported. These gas incidents resulted in 306 injuries, including 14 people who died as a result of carbon monoxide poisoning and 3 who died following gas explosions.

In nearly every case, these incidents, injuries and deaths were down to equipment and appliances that had not been properly installed or maintained. Had the equipment been properly installed and subject to regular servicing and maintenance nearly all could have been prevented.

Gas equipment is often taken for granted, expected to work on demand and by automated controls. Until it fails it is out of sight and out of mind. When it does go wrong it will be at the time of greatest need; central heating systems do not go wrong in the summer – they only ever seem to go wrong on “the coldest day of the year so far.” Whatever the system, its failure will only ever be noticed when it is wanted. If there is a total failure, users may be tempted to try to get the system going by their own devices or carry on using equipment that is clearly not working correctly – sometimes with disastrous consequences.

Recognising these factors as a cause of incidents, and that they could be prevented by routine maintenance, legislation requires that gas equipment is inspected and maintained by trained competent personnel. In domestic, commercial and many manufacturing situations it is a strict offence for any person to install, alter or repair any item of gas equipment if they are not competent to do so. For gas work, competent personnel are legally defined as members of a scheme approved by the HSE.

Until recently, the CORGI gas registration scheme was the approved scheme but, with effect from 1st April 2009, the Gas Safe Register™, operated by Capita plc on behalf of HSE, has become the approved scheme.

In practice, gas consumers and employers will see no change to the way work is done. Instead of checking that a gas engineer is registered with the CORGI scheme they will now have to check that they are listed on the Gas Safe Register™. Every Gas Safe registered engineer will carry an ID card. This will contain their name, photograph, licence and registration numbers and a start and expiry date. The back of the card lists the type of work that an engineer is competent to complete. Checking the details on the ID card can easily be done by calling the Gas Safe Register™ on 0800 408 5500 or via their website www.gassafe register.co.uk. The registration scheme has been open since early January so, by now, gas engineers should be able to demonstrate their membership of the Gas Safe Register™.

The HSE has made the changes to the scheme to modernise and simplify the existing registration requirements for gas engineers. They say that the new scheme will not compromise safety or standards and offers further opportunities for improvements in standards and the wider promotion of gas safety.

Apart from using Gas Safe registered™ engineers, employers and the self-employed are required to ensure that any gas appliance, installation, pipe work or flue installed in any place of work under their control is maintained in a safe condition. To meet these requirements gas appliances and supply systems should be inspected on an annual basis or more often if required by the manufacturer’s instructions. A report of the inspection, showing that the equipment is safe for continued use, should be obtained and kept with your safety records.
Where an employer or self-employed person acts as a Landlord and leases domestic premises or provides residential accommodation as part of their business, additional specific requirements apply. Landlords have to ensure that gas fittings and flues are checked once in every period of 12 months and keep a record of the safety checks (known as the Landlord’s Gas Safety Certificate) for at least two years. A copy of this Gas Safety Certificate has to be given to existing tenants within 28 days of the inspection and new tenants should be given a copy before they move in. For these regulations a ‘landlord’ will include local authorities, housing associations, private sector landlords, housing co-operatives and hostels providing residential accommodation for rent. Rooms let in bed-sit accommodation, private households, and bed and breakfast accommodation are also covered, along with rented holiday accommodation, such as chalets, cottages, flats, caravans and narrow boats on inland waterways. The duties apply to landlords providing residential accommodation for occupation by others on the basis of a lease for less than seven years, a tenancy agreement for a periodic term, or a licence.

For more information or to arrange a no obligation business health check, call Peter Titchener on 07817319741 or via email on       peter.titchener@peninsula-uk.com

THE ADVANTAGES & DISADVANTAGES TO EMPLOYING FRIENDS AND FAMILY

Many people have friends at work and occasionally work with family. However, there is a big difference between working with friends and relations and employing them.

The advantages seem obvious. Your friends and family should work with you and you would expect them to be flexible and trustworthy. You know their background and their personality so you are not having to assess them based on an application form and an interview. The likelihood of them trying to “pull a sickie” is potentially lower because you are more likely to know if their ill health is genuine or self inflicted.

There can be a tendency to view working with friends and family in an overly optimistic manner. What someone is like outside of work doesn’t necessarily reflect what they will be like in work. There is also a world of difference between having someone work with you and having them work for you.

The dynamics in a friendship situation is based on one of equals. It can be very difficult, for both parties, to adapt to a situation where in work on of you is the boss of the other. When you are someone’s boss you cannot always be their friend. There can be difficulties with other members of the workforce because the personal relationship leaves you both open to accusations of favouritism and that in the event of any issues there will be the assumption that you would take each other sides rather than be unbiased.

Family dynamics are even more complex and it can be very hard for family members to act in accordance with the work relationship rather than follow years of established family behaviour. It can be very difficult to view each other as responsible, professional adults when you have a lifetime of family visits and events to draw from. Family members are vulnerable to accusations that they have only got or kept their position because they family.

There can be a reluctance by other members of the workforce to raise issues of concern about the behaviour or performance of your family or friends because of a belief that you will close ranks and protect them. It is important to consider how you would feel if it became necessary to discipline or dismiss your friend or family member.

An added complication is the fact that friends and family fall out. You need to consider how you would keep those issues completely out of the workplace. As a separate matter do consider that from a practical perspective, one of the most overlooked problems can occur when there is a family/friends holiday or event, such as a wedding, that you all want to attend. You can be left with the choice of either allowing more people off than you would normally or being held responsible for the reason why your family or friends aren’t in attendance.

Employing family and friends can be a positive step but it is one you should only enter into with your eyes wide open.
For more information or to arrange a no obligation meeting, please call Peter Titchener on 07817319741
or via email  peter.titchener@peninsula-uk.com

 

Tighter Controls For Those Working With Children And Vulnerable Adults

Tighter Controls For Those Working With Children And Vulnerable Adults

The Safeguarding Vulnerable Groups Act 2006 aims to solve the failures identified by the 2004 Bichard Inquiry, arising from the Soham murders of Holly Wells and Jessica Chapman in 2002. It provides for the introduction of new arrangements, requiring those who wish to work with children or vulnerable adults to be registered.

The Safeguarding Vulnerable Groups Act 2006 aims to solve the failures identified by the 2004 Bichard Inquiry, arising from the Soham murders of Holly Wells and Jessica Chapman in 2002. It provides for the introduction of new arrangements, requiring those who wish to work with children or vulnerable adults to be registered.

Key measures of the Act include:

•	Introducing a new vetting and barring system, bringing relevant information together in one place for the first time, while still under the auspices of the Criminal Records Bureau (CRB). This will integrate the current List 99 (for teachers) and the Protection of Children Act (PoCA) list (for those working in childcare settings) into a single new “children’s barred list” and also provide for a new “adult’s barred list” of people barred from working with vulnerable adults to replace the Protection of Vulnerable Adults (PoVA) list;
•	transferring responsibility for barring decisions from Ministers to the "Independent Safeguarding Authority" (ISA), which will take decisions on whether to include someone on the barred lists;
•	making it possible for domestic employers, such as parents, to check whether private tutors, nannies, music teachers and care workers are barred;
•	enabling employers to make a ‘real-time’ instant check of whether a prospective employee is barred via secure online access, rather than the current paper-based process; and
•	updating barring decisions as soon as any new information becomes available and, where possible, notifying relevant employers if an employee becomes barred.

The ISA service will extend to England, Wales and Northern Ireland, although arrangements for application and appeals may differ slightly in Northern Ireland. Equivalent legislation is being made in Northern Ireland, under the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007, but implementation dates will vary.

A separate, but aligned, scheme is being set up in Scotland under the Protection of Vulnerable Groups (Scotland) Act 2007. Anyone included on a Barred List in Scotland will also be barred from working with children and vulnerable adults across the UK.

Implementation dates

The ISA was brought into operation on 2nd January 2008, and various Orders and Regulations made under the Act continue to be brought into force in preparation for implementation.

Referrals – On 20th January 2009 (13th March 2009 in Northern Ireland), the ISA assumed responsibility for making barring decisions on new referrals from organisations that are under a duty to refer individuals in appropriate circumstances under the current List 99, PoCA and PoVA schemes. Employers and service providers (including employment businesses) of “regulated” and “controlled” activity have a legal obligation to refer relevant information to the ISA, for example, where an employee has been dismissed (or resigns) because they harmed or may harm a child or vulnerable adult. From 12th October 2009 there will be criminal penalties for barred individuals who seek or undertake work with vulnerable groups and for employers who knowingly take them on.

Registration - the ISA Scheme will start processing applications for registration via the CRB/AccessNI from 26th July 2010 and from November 2010 all new workers or those changing jobs in regulated activity will be legally required to register with the ISA Scheme and employers will be required to check their status. Thereafter, existing workers undertaking regulated activity will be required to apply for ISA registration, starting with those who have never had a CRB check – the process will be phased in over several years. Individuals wishing to undertake paid work involving working with vulnerable groups will pay a one-off fee of £64 (£28 for ISA Registration and £36 for a CRB Enhanced Disclosure). However, there will be no cost for volunteers (although amendments are proposed to the effect that volunteers will be subject to a fee if they subsequently enter paid employment in a regulated activity). There are also proposals to enable employers to request that the CRB provide details of any known restrictions on an individual’s right to work in the UK as part of the Disclosure Certificate, subject to payment of an additional fee.

Regulated and Controlled Activity

The new scheme classifies work with vulnerable groups into two categories: regulated and controlled activities, which include both paid and unpaid (voluntary) work. For the purposes below “frequently” means once a month or more and “intensively” means on 3 or more days in a 30-day period.

Regulated Activity:

•	any activity of a specified nature that involves contact with children or vulnerable adults frequently, intensively and/or overnight (for example, teaching, training, care, supervision, advice, treatment and transportation);
•	any activity allowing contact with children or vulnerable adults that is in a specified place frequently or intensively (for example, schools and care homes);
•	fostering and childcare; and
•	any activity that involves people in certain defined positions of responsibility (for example, school governors and trustees of certain charities)

Upon implementation of the Act, an individual taking part in a regulated activity must be registered with the ISA and it will be a criminal offence:

•	for a barred individual to take part in a regulated activity;
•	for an employer to take on an individual in regulated activity if they fail to check that person’s status (domestic employers do not have to check an individual they wish to employ but they will be able to do if they so wish – with the consent of the individual); and
•	For an employer to allow a barred individual to work in any regulated activity.

Controlled Activity:

•	Frequent or intensive support work in general health settings, the NHS and further education (for example, cleaners, caretakers, shop workers, catering staff, car park attendants and receptionists);
•	Individuals working for specified organisations (for example, local authorities) who have frequent access to sensitive records about children and vulnerable adults; and
•	Support work in adult social care settings (for example, day centre cleaners and those with access to social care records).

Upon implementation of the Act:

•	it will be a criminal offence for an employer to take on an individual in controlled activity if they fail to check that person’s status; but
•	an employer will be allowed to permit a barred individual to work in a controlled activity provided sufficient safeguards are put in place.

People wishing to take up posts in regulated or controlled activity will need to be “subject to monitoring”, which means that they must be a member of the new Vetting and Barring Scheme.

It is important to note that the ISA will not provisionally bar a person while considering a referral. Consequently, it is important for employers of those who work with children or vulnerable adults to ensure that other pre-recruitment safeguards are undertaken, such as CRB checks, taking up references and scrutinising employment history. 

	Bar will apply (Duty on individual)	Individual must be checked (Duty on employers)	Barred individual can be employed
Regulated activities Employment and volunteer settings	Yes	Yes	No
Regulated activities Domestic employment settings	Yes	No	No
Controlled Activities Employers	No	Yes	Yes with safeguards

 Under 16s in the workplace

In light of responses to consultation documents, the government has decided that where young people under the age of 16 work, the adults who teach, train or instruct them in the workplace will not be required to register with the ISA scheme. However, it will be an offence for a barred adult to do this work or for an employer knowingly to use a barred person for this work.

This means that managers of newsagents and other shops will not have to register before they can employ newspaper delivery boys and girls or under 16s in Saturday jobs.

Employees who train or supervise other employees aged under 16 will be able to register with the ISA scheme and their employers will be able to check them if they wish. Decisions to register and to check should be taken in the light of the circumstances and a commonsense assessment of risk.

Work experience organisers will want – as they do now – to agree appropriate safeguarding measures with the employer which may include ISA checks.

Offences and sanctions

Employers will be committing an offence and will face penalties if they employ people to work with children and vulnerable adults that they know are barred. The most serious cases, where there is evidence of serious collusion, could result in a maximum penalty of 5 years in prison.

In addition, for the first time, they would also face a fine of up to £5,000 if they employ someone who has not been through the new central vetting system or fail to make a check of the system. These same penalties – fines and sentences - will also be applied to employees.

Terms and conditions of employment

These forthcoming changes should not, of themselves, necessitate any changes to contracts of employment or employee handbooks, as the provisions relate to statutory obligations. However, some employers may include specific references to the current barred lists in employment documentation, such as application forms, personnel specifications etc. which they may wish to update to reflect the new terminology in due course.

For more information or to find out how we can help your organisation, please call Peter Titchener from Peninsula Business Services Ltd on 07817319741 or via email   peter.titchener@peninsula-uk.com

THE RIGHT TO BE ACCOMPANIED COMES INTO THE SPOTLIGHT

Section 10 of the Employment Relations Act 1999 gave a worker attending a disciplinary or grievance hearing the right, on reasonable verbal or written request, to be accompanied to this hearing by a fellow worker or trade union official.

A disciplinary hearing takes place when an employer wishes to formally discuss alleged misconduct with an employee and will normally occur as part of an organisation’s formal disciplinary procedure. A grievance hearing is called by an employer when they receive a complaint from an employee about something that has happened in the workplace that the employee is not happy with, and would like some kind of formal resolution to the problem.

An employee called to a disciplinary or grievance hearing should receive a written invitation to the hearing, and this invitation should remind the employee that they have the statutory right to be accompanied.

The employee may then choose who they wish to accompany them to the hearing. If a trade union official is the chosen companion, the worker has a right to choose an official from any trade union, regardless of whether or not the union is recognised by the employer, or whether they are an existing member. Whilst the worker should, in all cases, tell the employer who their chosen companion is, in the particular case that the companion is a trade union official, it is helpful for the employer and companion to make contact at an early stage to ensure that a mutually convenient time and location for the hearing can be set.

The worker is entitled to propose an alternative date and time (provided that it is reasonable and not more than five working days later than the original hearing date) if it becomes apparent that their companion will not be able to attend at the agreed time and location. Employers should also be aware that they are required to make “reasonable adjustments” in the case of a disabled worker or a disabled companion.

Recent case law has suggested that if the result of a disciplinary procedure could affect an employee’s ability to continue to practice his profession, then he is entitled to legal representation at a disciplinary hearing and need not rely only on a fellow worker or a trade union official.

The worker’s companion may:

• put the worker’s case;
• sum up that case; and
• respond on the worker’s behalf to any view expressed at the hearing.

However, the companion is specifically prohibited from:

• addressing the hearing if the worker indicates a wish against this; and
• preventing the employer or any other person at the hearing from making a contribution to it

Refusing to allow a worker to be accompanied could lead to a finding of automatically unfair dismissal if the worker is dismissed as a result of the disciplinary hearing and makes an unfair dismissal claim to an employment tribunal.

If you currently have a problem with employment law or you would like to arrange a no obligation meeting then just call Peter on 07817319741. or via email  peter.titchener@peninsula-uk.com