Re: Workers' rights - government assault goes on : Tue Oct 23, 2012 11:53 am  

Dally wrote:

No. Who'd polish their shoes?

Or polish something else

Re: Workers' rights - government assault goes on : Tue Oct 23, 2012 7:59 pm  

rhino phil wrote:

Ill preface this by saying I am absolutely no fan of the coalition or the tories.

However as fas as I am aware the only two effects on health and safety legislation that are proposed within this legislation are a removal of strict liability under for eg Reg 4 of PUWER essentially taking us back to the position prior to Stark v Post office 2000 and removing a vicarious liability for harrasment again reversing Majorowski v Guys ans St Thomas. Neither remove a right to pursue compensation or for an award to be made against a negligent employer

Stark was always a very narrow interpretation of PUWER 4. This regulation broadly imposes a duty on an employer to maintain their work equipment (the regulation includes the word shall- this is important!) In the case of Stark the Claimant, a postman was riding his bike when his peddle snapped and he fell and was injured. He sued alleging that the bike was not properly maintained. The post office defended the claim on the basis that they had maintained the bike and its peddle. It was regularly inspected and the failure of peddle simply could not be anticipated or reasonably prevented. They therefore contended that they had demonstrated a more than reasonable system of maintenance and had discharged their duty under the regulation. I.e the accident was not their fault. The courts ultimately held however that as the wording of PUWER stated that employers shall maintain equipment, there was no room for 'so far as reasonably practicable' and the duty was absolute. as such they held that the fact the peddle snapped was evidence itself that the bike had not been maintained and imposed a strict liability. Following this case if any work equipment is 'defective ' irrespective of whether an employer could should or even did maintain it they are liable for their employees injury. Removing this strict interpretation of what was an EU directive is only levelling the playing field. If an employer hasnt bothered to maintain their work equipment and this breaks and injures employees they will still be in breach of PUWER. This change will only benefit employers who had proper systems of inspection and maintenance in place already but were being penalised by the strict liability provisions of stark. If anything it will be an incentive to step up maintenance etc as at present their is no reward for doing so in litigation (although obvioulsy this should help prevent the accident in teh first instance)

and breathe

Excellent post - perhaps the OP and Mintball should have read this before jumping on the bandwagon of propaganda and miss direction.

Re: Workers' rights - government assault goes on : Tue Oct 23, 2012 8:24 pm  

Sal Paradise wrote:

Excellent post - perhaps the OP and Mintball should have read this before jumping on the bandwagon of propaganda and miss direction.

And Henry Dimbleby, obviously.

After all, what would a businessman know, eh?

Re: Workers' rights - government assault goes on : Wed Oct 24, 2012 2:44 am  

Surely Mr Dimbleby was referring to the sort of H&S rule that is made up on the spot by over-zealous management and/or H&S official rather than cases where all reasonable and practical precautions to prevent an accident have been taken?
I'm not sure, from what you've said, that he'd criticise regular maintenance of a (fairly) essential piece of day-to-day equipment.

If you took the court decision to it's logical conclusion, then every single time that a machine breaks and causes injury, then each and every similar machine should be withdrawn from use - why allow paperboys to use pushbikes if they've caused 'provable' harm?

Re: Workers' rights - government assault goes on : Wed Oct 24, 2012 5:58 am  

With the new £124 per hour 'fee for intervention' being charged by HSE from 1st October to allow them to be 'self funding', you might see them a bit keener to jump on employers from now on. Hopefully it will target 'bad' employers rather than those who have done what they can as in the pedaL incident.

Re: Workers' rights - government assault goes on : Wed Oct 24, 2012 7:09 am  

Scooter Nik wrote:

Surely Mr Dimbleby was referring to the sort of H&S rule that is made up on the spot by over-zealous management and/or H&S official rather than cases where all reasonable and practical precautions to prevent an accident have been taken?

Exactly.

Which is what I'd mentioned earlier – in my one previous contribution to this thread – and is presumably, therefore, what Sal was referring to when he accused me and the OP of "jumping on the bandwagon of propaganda and miss direction".

The only other points that I can imagine him taking issue with was the fact that farms have now been exempted from inspections, in spite of the levels of accidents and fatalities, and that at least one government minister has stated that there is nothing wrong with H&S legislation itself – the issue is with interpretation. I then offered the Dimbleby comments as support for this, noting that there are cases exactly as you say here.

Either way, though, these seem to be "the bandwagon of propaganda and miss direction".

Re: Workers' rights - government assault goes on : Wed Oct 24, 2012 8:20 am  

Nevermind a legal obligation under H+S legislation companies have a moral obligation to protect employees who are in the course of their employment. I have no sympathy with companies who try and dodge that obligation. If the equipment used by the employee in the course of their work breaks, and the employee is injured the company has a responsibility to compensate that employee. The risk is the companies to bear and not the employees. I have no sympathy with the PO in the example given, it is a risk which should be factored in to their business plan and one they should have accepted.

The one which always gets me, is this governments attempts to remove unfair dismissal protections. Which by their very definition, are there to protect people from being treated unfairly. Its selfish nonsense from a government who seems to think that businesses are there to benefit a greedy minority at the top rather than society as a whole. If a business cannot survive without treating its employees unfairly, then that business shouldn’t survive.

Re: Workers' rights - government assault goes on : Wed Oct 24, 2012 11:48 am  

Removing H&S legislation from farms just seems utterley incredible.

Having worked on a number of farms as Summer jobs in between college and universtiy years I've never come across a more dangerous place of work or indeed a more dangerous set of employees.

Perhaps with increased mechanisation this is how we solve rural unemployment.

Re: Workers' rights - government assault goes on : Wed Oct 24, 2012 12:17 pm  

Farms are the most dangerous places of work, apparently.

Farms are the most dangerous places of work, apparently.

Re: Workers' rights - government assault goes on : Wed Oct 24, 2012 12:20 pm  

Sal Paradise wrote:

Excellent post - perhaps the OP and Mintball should have read this before jumping on the bandwagon of propaganda and miss direction.

On the contrary, a misguided post, all the more so by praing in aid the postman case which in fact, and ironically, provides you with a salutary lesson.

In the postman on a bike case, the employee was injured when a front brake caliper broke. According to the case report, the Post Office had a policy of replacing bicycles at 10 years, but didn't treat it as a rule and as they thought this bicycle had a few years serviceable life left, they didn't pension it off. The bicycle was in its 14th year.

The brake probably broke due to metal fatigue. After 14 years of daily use, it is not a shock. However without strict liability, the PO would have had plenty of potential for a "get ou" by arguing that they did check the bike, that it seemed OK, that they couldn't have detected the metal fatigue, that bikes are expensive, that they acted reasonably, why throw away what seems to eb a perfectly serviceable machine, etc etc.

Whereas in fact if they had followed their own policy the postman never would have been injured. Given that he was, and given that the specific cause was a metal failure on a 14 year old bike, provided by his employer, why should he have to jump through hoops and combat the inevitable defences? They took the risk of using ageing equipment and so they, and not their innocent employee, are the obvious party that should pay the price.

The following excerpt is taken from the case report - with my emphasis:

It is quite true that the sub-section, so read, imposes a heavy burden upon employers, but the object of this group of sections is to protect the workman. I think the sub-section must have been so worded in order to relieve the injured workman from the burden of proving that there was some particular step which the employers could have taken and did not take. This would often be a difficult matter, more especially if the cause of the failure of the mechanism to operate could not be ascertained. The statute renders the task of the injured workman easier by saying, "You need only prove that the mechanism failed to work efficiently and that this failure caused the accident.""

The law in this case worked exactly as I think it should. The employee was injured due to metal failure on work equipment provided for his use by his employer. That was, and clearly should be, enough. Change the law and you plainly open the door to the postman not being compensated at all. And before you go off on another of your rants, perhaps you should bear in mind that even with strict liability in place, the employer was defending this claim and, had it not been for strict liability, his employer may well have escaped paying him compensation, and that, to me, would have been the clearest of injustices.