| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
Understand and Manage the Increased Risk of Claims For Health and Safety Detriment
On 31 May, new regulations came into force which extend the right not to be subjected to health and safety detriment to workers (not just those with higher ‘employee’ status). This is a significant development in light of employers’ duty to protect their workforce from Covid risks. These are the key points you need to be aware of to reduce the risk of claims under the revised legislation.
What’s Changed?
Before 31 May, section 44 of the Employment Rights Act 1996 (ERA) protected ‘employees’ against detrimental treatment because they:
- Left, proposed to leave or refused to return to their workplace ‘in circumstances of danger which the employee reasonably believed to be serious and imminent and which [they] could not reasonably have been expected to avert’.
- Took or proposed to take appropriate steps to protect themselves or other people in circumstances of danger which they reasonably believed to be serious and imminent.
‘Other people’ will include vulnerable family members whom the individual believes they need to protect.
The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 has now extended this protection to workers.
Why has the Government Made this Change?
In a recent case, the High Court held that the UK had failed to implement the EU Health and Safety Framework Directive correctly by excluding workers from section 44. Little attention had previously been paid to this oversight because, prior to the pandemic, claims for health and safety detriment were very rare. However, the Independent Workers’ Union of Great Britain, which mainly represents low-paid gig economy workers, brought a successful challenge on behalf of its members. It said that workers such as delivery drivers had no legal protection if, for example, they refused to work due to a lack of social distancing while waiting to pick up orders.
What Does Detrimental Treatment Mean?
This is unfair treatment that doesn’t go as far as actual dismissal. Examples are disciplining the person or withholding pay because they’ve refused to attend work due to Covid fears.
How Easy is it to Bring a Successful Claim?
Not easy at all, as we’ve seen from the few cases which have already been heard. These cases have been brought under the similar provisions in the ERA that protect employees from dismissal but the same principles will apply in detriment cases. The individual will have to convince an employment tribunal:
- It was reasonable for them to believe the workplace was especially dangerous compared to the world at large.
- They couldn’t reasonably avert the danger, for example, by social distancing, wearing a face mask or sanitising their hands.
How Can We Safeguard Our Business from a Successful Claim?
You should:
- Carry out a workplace risk assessment and act on the findings.
- Follow the government’s Covid-secure guidelines for your sector.
- Consult staff on your precautions.
- Regularly remind staff to comply with measures such as hand washing and social distancing.
Are Workers Protected from Dismissal as Well as Detriment?
No. Only employees can claim automatic unfair dismissal under the health and safety provisions in section 100 of the ERA. However, in detriment cases, individuals can claim compensation for financial loss such as unpaid wages. They may also be able to claim for injury to feelings (as in discrimination cases, where damages can be significant) but the case law is inconsistent on this point.
You should therefore still take care before disciplining a worker, or withholding pay, for refusing to work due to Covid fears. Take a close look at the precautions you’ve put in place first and consider whether there’s anything more you should sensibly be doing to keep the person safe.
Tip: The new legislation only applies to cases brought on or after 31 May 2021. Tribunal claims must usually relate to treatment that happened in the previous 3 months, so you don’t need to worry about claims surfacing in relation to a refusal to work when Covid fears were at their height last year.
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
Grenfell Assessor ‘Overstated Qualifications’: 7 Key Messages for Anyone Hiring Safety Experts
According to a recent report in The Guardian, Carl Stokes (the fire risk assessor brought in to check the Grenfell Tower) put letters after his name suggesting professional registrations that either did not exist or which he did not hold. The allegation, which surfaced on day 136 of the Grenfell Public Inquiry, highlights the much wider risk of misleading or downright false claims made by employees and consultants as they seek work. We set out the threats for everyone involved, along with 7 checks you should make when hiring any health and safety specialist.
Carl Stokes is a former firefighter who carried out fire risk assessments (FRAs) at Grenfell Tower from 2010 until the catastrophic fire in 2017 in which 72 residents died. In that time, he received almost a quarter of a million pounds in fees from KCTMO, the firm who managed Grenfell Tower on behalf of Kensington and Chelsea Royal Borough.
Giving evidence to the Inquiry chaired by Sir Martin Moore-Bick, Stokes was grilled on his qualifications and experience by leading counsel Richard Millett QC. He admitted he had exaggerated his fire risk assessment experience; he also conceded that the way he summarised courses he’d attended could be taken as claiming qualifications he did not hold or which did not exist. For example:
- He used the post-nominal term ‘Fire Eng (FPA)’ which made it sound as if he were a qualified fire engineer, but he wasn’t.
- He also mentioned ‘IOSH’ and ‘NEBOSH’, but these were courses he’d attended, not professional memberships he held.
Risks for Employees and Employers
Overstating qualifications, memberships or experience creates a minefield for both employers and employees. For employees, they risk losing their job if deceit is proved. As for employers, they rely on advisers’ competence, whether their experts are direct employees or outside consultants. Advice that’s not based on sound qualifications and experience could lead to firms wasting money on precautions that are not actually needed, or, more seriously, failing to meet their legal obligations to manage foreseeable hazards effectively.
Key actions to minimise these risks include:
- When recruiting, be specific. Say applicants must ‘be chartered members of IOSH’ or ‘hold the NEBOSH Diploma’ rather than the vague ‘be IOSH/NEBOSH qualified’.
- Watch out for candidates who ‘rose tint’ their qualifications. Just one word can make a huge difference: for example, where someone who holds the NEBOSH National Certificate (a level 3 qualification equivalent to A levels) claims they hold the NEBOSH National Diploma (a level 6 qualification at degree level).
- Check key qualifications for shortlisted candidates, or when an offer is made. Insist on seeing original certificates (many now include security features such as watermarks and holograms).
- For professional memberships, contact the membership department of professional bodies (e.g. IOSH) to verify the individual’s standing.
- To check experience, ask for references and take them up. This applies both to new employees and outside providers such as consultants.
- For consultants, choosing from the Occupational Safety and Health Consultants Register gives assurance that member firms/individuals (a) are qualified (b) implement Continuous Professional Development (CPD) and (c) carry insurance.
- Tap into your network to find suitable people: the best expert is someone who comes recommended by someone you trust.