Health & Safety Organiser, Health and Safety Unit, UNISON, 1 Mabledon Place, London, WC1H 9AJ. Tel: 020 75511156. Email: firstname.lastname@example.org Website: http://www.unison.org.uk/safety Out to UNISON safety reps and officers every two months – inside this issue: Alternative Penalties Fire Safety Back Pain Hazards Conf. Consultation Involving Workers Corp. Manslaughter Smoking Bans Coroner Reform Stress Conf. Enforcement Conf. Work Transport October/November 2006 Issue 46 Because Work shouldn’t kill, injure, nor poison At the time of writing, the Corporate Manslaughter Bill was before the House of Commons for its second consideration UNISON’s concerns over the adequacy of the current law to deal with organisations whose failings lead to death were highlighted following the Zeebrugge disaster, which led to a 187 deaths. It proved impossible to successfully prosecute the operators of the vessel. Since then there have been further high-profile disasters, including the King’s Cross Fire, the Southall and Hatfield rail crashes, the Marchioness Pleasure boat disaster, and the Piper Alpha oil rig disaster; but not one successful prosecution. Where there have been successful prosecutions these have all been against small companies, where the ‘directing mind’ (the person clearly in control and responsible) has been easy to identify. In most large organisations, complex management structures and devolved functions mean that it is virtually impossible to satisfy the current legal criteria for a successful prosecution. Following pressure from UNISON and others; the Law Commission recommended the creation of a new offence of Corporate Killing in 1996. This was incorporated into the Labour Party’s 1997 Manifesto and led to the Home Office consulting on a new bill (draft law). The 2001 Manifesto again committed the Government to introducing a new law. Finally in July 2006, the Corporate Manslaughter Bill was presented to Parliament. UNISON welcomes this fact but is concerned that the Bill contains a number of flaws and omissions, which need to be addressed. The Bill The Bill covers corporations and most public sector and voluntary organisations. An organisation will commit an offence if the way its activities are managed or organised by its senior managers lead to a death due to a ‘gross’ breach of the duty of care. This means that there must be conduct falling far below standards which can reasonably be expected of the organisation in the circumstances. However, if convicted of the new offence, the only penalty will be an unlimited fine, with the courts also able to order an organisation to remedy any breach. Whilst this is a considerable improvement on the existing situation, whilst the Government has not completely hidden behind Crown Immunity and so will partially be covered by the new law, and whilst we also welcome the fact that the courts will be able to order steps to remedy any breaches of health and safety law that may have led to a death; there are nevertheless, a number of key areas where the Bill is clearly inadequate. The ‘Senior Management Test’ There has been considerable criticism over the current definition of ‘senior manager’ and the focus that the Bill gives to this role. The Bill only covers those who play a significant role in making decisions about, or actually managing the activities of the company as a whole, or a substantial part of it. The larger the organisation, the less likely that an individual manager will be deemed to be responsible for a ‘substantial’ part. This reduces the likelihood that the actions of any sectoral or regional managers’ will be covered. In larger organisations with complex management structures or a considerable amount of work subcontracted, it may prove just as difficult as at present to bring a charge against the organisation. The proposed definition of ‘senior manager’ is imprecise and too restrictive. Penalties UNISON is concerned that the only sanctions available against an organisation will be an unlimited fine or a remedial order. This is no different to now. Other penalties must be considered, including corporate probation and disqualification of directors. Where fines are imposed, they should be significantly higher than currently and in large private companies, should be linked to the profits. The Government is currently considering sentencing options generally under the Macrory Review (see page 4). As part of this review the Government should look at innovative sentencing options once organisations are convicted. Unincorporated Bodies Although the scope of the Bill is relatively broad, it does exclude unincorporated bodies, such as partnerships. A parliamentary committee has already requested that the Government rectify this so that all organisations are covered equally. UNISON supports this proposal, otherwise workplace deaths will still occur with no organisation is held to account. Individuals It is not organisations that kill, it is the actions or inactions of the people inside. Those people should be held to account as individuals. There is nothing currently in the Bill which will do this. UNISON recognises that this Bill is only able to deal with issues relating to corporate manslaughter as opposed to individual directors’ duties. However, a new offence of corporate manslaughter will only be effective if there is also a specific legal duty on directors. UNISON therefore strongly urges the Government to impose a statutory duty on directors to take all reasonable steps to comply with health and safety obligations as soon as possible. UNISON also believes that the Bill should establish secondary liability, as recommended by a parliamentary committee, for those who connive, conspire, or collude in an act which results in death. It is unclear why the Government rejected this recommendation, and we urge that it is reconsidered. In Conclusion UNISON is pleased that the Government has finally introduced a bill and welcomes its broad coverage, but is convinced that without considerable changes, without a positive duty on directors, and without greater penalties; its effectiveness will be significantly compromised. Next Steps UNISON is briefing MP’s and has proposed two amendments to the Bill, focusing on the definition of a manager and on the issue of individual liability. • Families Against Corporate Killers (FACK) held a protest at the House of Commons on the day of the second reading, to highlight the inadequacy of the current proposals. Family members held photos of their loved ones who were killed at work, and then attended a meeting with MPs hosted by UNISON MP Katy Clarke. For more on FACK, see the last issue of this newsletter. Better Backs Back pain is the leading cause of disability affecting over 1 million employees, including many UNISON members. It is also a Health and Safety Executive (HSE) priority, and so earlier this October the HSE officially re-launched its Better Backs campaign. UNISON has been involved with and supports this campaign. Go to: http://www.hse.gov.uk/betterbacks/index.htm and http://www.hse.gov.uk/msd/campaigns/index.htm for more information, downloadable materials, suggestions for organising events or how to get involved, a checklist (also at: http://www.hse.gov.uk/msd/campaigns/pdf/manualhandling.pdf), and more. Or call the HSE Infoline on 0845 345 0055. Bullying - Update A landmark decision will give added protection to those bullied at work. William Majrowski had suffered persistent homophobic bullying from his manager. In ruling that the 1997 Protection from Harassment Act applies to harassment and bullying at work even when the employer has not caused nor failed to prevent it, the House of Lords held the employer vicariously liable. This means that an employer need not have negligently failed to have stopped the bullying, nor must the victim have suffered psychological damage. Now the onus is on the employer to stamp out unwanted behaviour. Lip service is not an option. UNISON’s guide, Bullying at Work, will be revised—watch this space. Diary Dates Health and Safety Week - 23 Oct. For more on this, see the last issue of this newsletter or go to: http://www.unison.org.uk/safety/campaigns.asp Stress Awareness Day -1 Nov. National Stress Awareness Day aims to raise awareness of stress and how to tackle it. For more information including a list of useful UNISON materials have a look at our webpages for the Day at: http://www.unison.org.uk/safety/campaigns.asp Branches can use the Day to raise awareness amongst workers and employers, and to begin to jointly tackle the problem. CCA Enforcement Conf. - 3 Nov. There’s just about time (deadline 31 Oct.) to book a place on Whither Enforcement, a Centre for Corporate Accountability conference taking place in London. It will cover various recent developments including: the Corporate Manslaughter Bill, levels of HSE enforcement, the Macrory Review (see page 4), and the Coroners Reform Bill. For the full programme and registration see your branch safety officer, call the CCA on: 020 7490 4494 or go to: http://www.corporateaccountability.org/conference/nov06ldn.htm Ban Bullying at Work Day - 7 Nov. This important initiative aims to raise awareness about workplace bullying and is organised by the Andrea Adams Trust. See its website with various materials at: http://ww.banbullyingatwork.com UNISON also has various materials which will be of use. See our webpages for the Day and for Health and Safety Week 2006 at: http://www.unison.org.uk/safety/campaigns.asp UNISON will also be forwarding several copies of a new poster for the Day direct to branch safety officers. UNISON branch action might include: • raising awareness of the problem - hold a meeting for members or a training session for safety reps, • surveying members and discuss the results and how to tackle the problem with the employer, and • With the employer jointly developing, revising, or promoting policies and procedures on workplace bullying. Sickness Absence Conf. - 18 Nov. Managing Sickness Absence with Care, is the theme for this years National Stress Network Conference which UNISON supports and is involved with. For more information go to: http://www.workstress.net/downloads/Conference_2006_flier.pdf or write to: Les Roberts, 33 Old Street, Upton, Upon Severn, WORCS, WR8 0HN. Hazards Conference - 2007 Hazards Conference is the UK’s best and largest safety reps conference, and next takes place from 27 - 29 July 2007 at the University of Manchester. Nationally, UNISON supports and sponsors the Conference and further details will be sent out in due course. Hazards 2006 was extremely successful, with 258 UNISON safety activists (50% of union delegates) experiencing a range of plenaries, meetings, and workshops. But can you help? Sponsorship is urgently so that delegate fees can be kept to a reasonable figure. The Conference is organised on a not for profit basis and is very good value for money. Your branch can support the Conference by completing the sponsorship form sent to all branch health and safety officers and also available on UNISON’s website at: http://www.unison.org.uk/safety/bulletins.asp Special Feature Fire Risk Assessing This article is a summary of UNISON’s fire safety information sheet and will give a basic understanding of fire safety and fire risk assessments. The full information sheet which contains a two-page checklist is available at: http://www.unison.org.uk/safety/infosheets.asp or from the Health and Safety Unit. More detailed official guidance is also available - see below. The Revised Law The Regulatory Reform (Fire Safety) Order 2005., applicable to England and Wales only and in force from 1 October 2006 is a consolidation of existing fire safety laws so that all workplaces and other non-domestic premises are now covered by the same law. Fire certificates which had covered many work places no-longer have legal status. This does not mean that employers can just abandon specified fire precautions. Relatively up to date though now obsolete fire certificates will contain sensible advice, specifying what fire precautions must be taken: including escape routes, the number of persons that can be on the premises at any one time, and any training requirements. They will therefore contain sensible considerations for when fire risk assessing. Employers must review their fire risk assessments to ensure that they fulfil the requirements of the law and adequately: identify the hazards, evaluate the risks, consider who is at risk, and put in place appropriate measures to prevent where possible and otherwise control those risks. Fire Risk Assessments Responsibility for compliance will fall to a responsible person, normally the employer, or any other person in control of the premises. There is now a far greater emphasis on fire prevention through risk assessment. One or more competent persons, that is with the appropriate experience, knowledge, and training; will have to be appointed to identify the preventative and protective measures and carry out the other specific duties. Employers must: • fire risk assess (specifically or as part of their general risk assessments): - to identify fire hazards and the risk of fire, - to check that a fire can be detected in a reasonable time and that people can be warned and escape, - considering all employees and others who may be affected by a workplace fire and identifying those who might be especially at risk, and - to put into place measures to remove or reduce the risks identified, including adequate provision for people with disabilities or special needs who use or may be present at the premises; - to plan how to deal with an emergency • record the findings of the assessment if more than five people are employed; • review the assessment whenever there is reason to suspect that it is no longer valid or if there has been a significant change in the matters to which it relates; • provide and maintain such fire precautions as are necessary to safe guard those at work, such as: - fire fighting equipment, detectors, and alarms, - fire-fighting equipment which is not automatic must be readily accessible, easy to use, and indicated by signs, - nominating and training employees responsible for implementing fire fighting measures and for undertaking any special roles which are required under the emergency plan for the workplace, - a suitable system for the regular service and maintenance of fire equipment , and - keeping emergency routes clear and complying with specific criteria relating to routes, doors, and signs so that those in the building can get out; and • provide information, instruction, and training to all employees about fire risks and precautions in the workplace so that they know what to do in the event of a fire. Employers must also: • consult with safety reps about the nominations and about proposals for improving fire safety; • inform other employers in the same building of any significant risks they have identified which might affect the safety of their employees, and co-operate on proposals to reduce and control these risks and; • establish a suitable and easy means of contacting the emergency services. Safety Rep Action Remember your rights to consultation. Ask whether the fire risk assessment has been reviewed. If it has, check that it is suitable and sufficient, and that the precautions identified have been taken. If it hasn’t, ask when it will be and ensure you’re consulted. Use the checklist within UNISON’s full fire safety information sheet to assist you in deciding whether all necessary considerations have been taken into account and consider conducting a workplace inspection. Liaise with fire officers when they visit your workplace and ask for a copy of any report they produce. Remember to speak to the employees – they often know far more about potential hazards (such as the waste materials which accumulate in the basement next to the fire exit before collection day). Further Advice The local fire authorities are generally responsible for fire safety at work. For further advice, contact the local fire service and ask for the Fire Prevention Officer. New or altered buildings must meet the appropriate building regulations, which cover various issues including fire safety. The Government has produced a series of guides, both general and specific to various types of workplace which are free to download (although most are priced if a hardcopy is ordered) including a very user friendly “Entry Level Guide”. Go to: http://www.communities.gov.uk/index.asp?id=1500383 This site also includes a frequently asked questions page. Further guidance on fire safety is also available from the HSE website at: http://www.hse.gov.uk/fireandexplosion/workplace.htm UNISON- Campaigning and Lobbying on Health and Safety In addition to the Corporate Manslaughter Bill (see page 1), UNISON has recently been involved in a number of high profile consultation exercises (see below). Despite the various proposals, the consistent theme throughout was that significant improvements in workplace health and safety will only occur when employers are effectively held to account. Macrory - Alternative Penalties The Macrory Review of Alternatives Penalties, Regulatory Justice: Sanctioning in a post-Hampton World, examined a number of alternative penalties that could be applied after conviction, or in place of prosecution by an enforcing authority. It also considered training judges on health and safety offences and linking fines to profits. However, UNISON believes that whilst most of its proposals may be useful, by far the greatest problem is the current lack of enforcement, and the lack of a deterrent effect from penalties once applied. UNISON believes that the current enforcement notice regime could achieve many of the outcomes outlined for alternative penalties if only the enforcing authorities had sufficient resources to implement these effectively, especially when considering rogue employers. At the moment, employers can choose to run the risk of breaking health and safety law, knowing that in all likelihood they won’t get caught, and if they do, the fine will be small compared to the profits achieved. Coroner Reform: - Draft Law The main concerns with this proposed new law were: that it still left room for real or perceived bias by coroners or coroners officers, the removal of jury inquests following workplace deaths, the no-longer automatic right to an inquest following a death abroad; and the wider effects that these could have on the coroner system, and health and safety in general. Workplace Transport Route Map Effectively, a guide to the law and best practice on transport used on work sites (as opposed to the public roads), UNISON again raised the need to not just encourage and educate employers, but also to enforce the law by inspections and prosecutions. Other concerns included insufficient references to the need to consult, and the issue of drug testing. Smoke Free Regulations By the summer of 2007, the whole of the UK is likely to be covered by a legal smoking ban applicable to workplaces and public places which are either enclosed or substantially enclosed. UNISON believes that workers should not be exposed to second-hand (passive) smoke whilst at work, but employers must take a sensible approach. Positively encouraging staff to quit should they wish is to be welcomed, but there must be recognised that smoking is addictive and that some staff may not be able to give up. Above all, there must be consultation on the development of workplace policies. Scotland’s ban now in force, and the bans proposed for Northern Ireland, Wales, and England are with a few exceptions, all expected to follow a similar approach. They do or will prohibit smoking in most workplaces but allow exemptions in certain residential accommodation and do/will not apply to a service users own home. This means that some UNISON members will continue to be exposed. UNISON is continuing its campaign for a sensible approach to smoking bans which acknowledges the addiction and offers protection for those workers who visit the homes of service users. As such, UNISON has registered as a stakeholder with the National Institute for Health and Clinical Excellence (NICE). The Government has asked NICE to produce guidance on workplace smoking bans. UNISON is gathering relevant evidence (via a bulletin to branch safety officers, and where we have an address, an email to UNISON safety activists) for inclusion within its formal response to NICE’s proposals. We will especially be raising enforcement/compliance difficulties caused by of employers imposing total smoking bans (such as during working hours, whilst identifiable or in uniform, or whilst anywhere on site even when out in the open) and how to tackle exposure for those who work in someone else's home. UNISON will also be updating our own guidance as appropriate. Improving Worker Involvement The HSE’s Improving Worker Involvement – Improving Health and Safety, considers how to improve employers compliance with the legal requirement to consult, whilst recognising that this is only the foundation for the longer term goal for worker involvement, which it terms as “participant involvement” or “full engagement.” Such it says would involve the sorts of changes in behaviour in managers and workers that will lead to safer and healthier workplaces. UNISON supports the proposals to specifically require employers to consult on risk assessments and to respond to safety rep queries, even though the former is already required under general provisions, and the latter is implicit in the Brown Book. There are however serious shortfalls in the scope of the proposals. There is no consideration of the role of enforcement - there has never been a prosecution for failing to consult. Good practice guidance and voluntary standards are examined when the evidence suggests that without effective enforcement, these don’t work. Other difficulties experienced by safety reps in trying to use their rights under the Brown Book are also not considered, nor are: PINS, the right to stop the job, or adequate protection from victimisation. Consideration is given to how to encourage worker/safety rep involvement but it is dismissive of roving safety reps because of “funding difficulties”. UNISON believes that this “difficulty” could possibly be tackled by a scheme which reimburses employers like statutory maternity or sick pay. Recent research by the HSE’s own laboratory is also ignored. This concluded that non-unionised workplaces were generally clueless about the requirement to consult and about health and safety laws. Lastly the cost benefit analysis of the limited proposals over-estimates the costs, whilst vastly under-estimates the possible benefits. Even their own figures suggest that the benefit could be far higher. UNISON’s Consultation Responses UNISON’s responses to the above and others can be found on the web at: http://www.unison.org.uk/safety/consultation.asp Printed and published by: UNISON, 1 Mabledon Place, London WC1H 9AJ.