Archive for month

November, 2019

Metal fabrication company fined for failing to comply with improvement notices

A Lincolnshire metal fabrication company has been fined for not complying with three improvement notices issued by the Health and Safety Executive (HSE).

Boston Magistrates’ Court heard that, in December 2018, W S Barrett & Son Limited was issued with three improvement notices relating to testing wood dust and powder coating local exhaust ventilation (LEV), and providing LEV for welding fume extraction on its site in Boston, Lincolnshire. Improvement notices are legal documents requiring improvements to be made by a specified date. WS Barrett & Son Limited failed to comply with all three notices by the completion date.

An investigation by HSE found that the company was first advised of the problem in February 2018 but did not act following receipt of a Notification of Contravention letter. A further visit by HSE in December 2018 found the company had still not made the necessary improvements. A subsequent follow-up visit in April 2019 showed they still had not done the work to meet the improvement notices.

W S Barrett & Son Limited of Marsh Lane, Boston pleaded guilty to breaching Section 33(1) (g) of the Health and Safety At work etc Act 1974. The company was fined £12,000.00 and ordered to pay costs of £1,740.40.

Speaking after the hearing, HSE inspector Martin Giles said, “The failure to comply with an improvement notice is a serious offence. If you receive a notice, you should ensure you take appropriate action to correct the health and safety problems and breaches that are identified in the notice.”

HSADD Says, The number of businesses that get improvement notices and then look at the due date and think ‘Got loads of time for this’ or think that it’s ‘Just a suggestion’! whether from LA, Fire Officer or especially HSE – NO it is not – you need to get onto this straight away and deal with it!

The fine and court costs, plus Solicitors likely in this case exceeded the cost of actually doing the job right the first time!

Credit to HSE –

TUPE – Potentially Important Decision

HSADD Says: This decision may yet be subject to an appeal, but it is interesting that ‘workers’ are now covered under TUPE.

I have had this ongoing discussion in relation to what are ‘workers’ ’employees’ self-employed’ for years and particularly in the night-time economy where you may employ ‘self-employed’ door security, DJ’s, Promotion people, dancers.

I have long explained the risks of getting this wrong and being subjected to an investigation and recovery of N.I and Tax, so it is important that you place all your ‘workers’ into the correct category! Otherwise, your savings may be very short term!

Does TUPE apply to limb ‘b’ workers, as well as traditional employees?

Yes, according to the decision of an employment tribunal sitting in London in Dewhurst v Revisecatch & City Sprint.

We never normally send out employment tribunal decisions, as they’re not binding. But this one is a stonker. Employment Judge Joffe has held, in a detailed and comprehensively reasoned judgment, that TUPE applies to ‘workers’ as well as traditional ’employees’.

Her reasoning massively simplified down, is that the Acquired Rights Directive requires TUPE to be interpreted liberally, and the definition of ’employee’ in TUPE is “an individual who works for another person whether under a contract of service or apprenticeship or otherwise…” The words ‘or otherwise’ must be taken to add something to the normal definition of ’employee’, and hence covers limb ‘b’ workers.

The decision was handed down yesterday. As an employment tribunal decision, it is not binding. The employers have 42 days to appeal. I suspect an appeal is likely. If the appellate courts agree, it means workers (as well as employees) transfer under TUPE. Wow.

Credit for this item to

Automatic unfair dismissal?

I haven’t posted any HR posts for a while so here we go.

Was a dismissal for trade union activities automatically unfair because of the involvement of a senior manager, when both managers who heard the disciplinary and appeal hearings were ‘innocent’ of this?

Yes, held the EAT in Cadent Gas Limited v Singh.

The Claimant, a gas engineer, was dismissed for gross misconduct because he responded to a call-out for a gas leak one minute outside the Respondent’s policy. He brought a claim that his dismissal was due to his trade union activity. The Claimant had 29 years’ service and an unblemished record. He was also a health and safety representative and trade union shop steward. He had previously raised a number of grievances that he had been unfairly allocated work. On the day of the call-out he had worked on a complex and demanding job, had not eaten all day, and had less than 2 hours’ sleep. On his way to the call-out he had stopped to get food.

The tribunal upheld the Claimant’s claim. It noted that a senior manager, the subject of some of the Claimant’s complaints, had driven the investigation towards dismissal. Although he was not the investigating officer, he had amended the terms of reference and given incorrect information to HR, and he told the Claimant that the case was one of gross misconduct before the investigation had concluded.

The Respondent appealed. The tribunal had found that the managers at the disciplinary and appeal stages had no prejudice against the Claimant because of his trade union activities. The Respondent argued that only the ‘mental processes’ of the decision-makers could be considered.

Following Royal Mail Group v Jhuti, the EAT rejected the appeal. It held that there are circumstances where the motivation and knowledge of someone who is not a decision-maker may be attributed to the employer if (as here) that person is engaged in and had manipulated the investigatory process

Credit –

Lest we forget

We will remember them

Registered charity fined after a resident of care home fell down a set of stairs and was fatally injured

Nazareth Care Charitable Trust, a registered charity, was today fined after an elderly resident of one of its care homes was fatally injured when she fell down a set of stairs.

Edinburgh Sheriff Court heard that on 16 May 2017, Sheila Whitehead, an 87-year-old resident at Nazareth House, Hill Head, Bonnyrigg, Midlothian, a care home operated by Nazareth Care Charitable Trust, fell down a stairwell. She suffered a fractured skull and subdural haemorrhage, which ultimately resulted in her death.

Adult size gate

An investigation by the Health and Safety Executive (HSE) found that Nazareth Care Charitable Trust failed to identify and implement adequate measures required to control the risk of care home residents falling down the stairs. The stairwell involved in the incident consisted of a flight of six steps, which descended from the main corridor on the ground floor down to the entrance of the boiler room. It was found to lack an effective physical barrier that prevented access to the stairwell, in an environment where many residents, due to their conditions and ailments, were at an increased risk of suffering a fall.

Nazareth Care Charitable Trust of East End Road, East Finchley, London pleaded guilty to breaching Section 3(1) of the Health and Safety at Work etc Act 1974 and was fined £40,000.

Speaking after the hearing, Nikki Jack of HSE said: “This incident could so easily have been avoided by simply carrying out correct control measures.

“Organisations should be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards”.

HSADD SAYS: Another preventable death, with a simple solution to prevent, guess the cost per floor of less than £100.00. This needs people to think about the possible risks for the groups concerned, in this case, elderly and infirmed people who have less balance than normal.

I have spoken to both residential care establishments and Child daycare centres when advising on safety and all too often a risk shows itself and they wonder why didn’t I think of that? The short answer is that ‘Yes, you should have’!


Outside events, one-off events, yearly events

Whether you are organising a one-off event or a yearly outside even you still need to be fully compliant with all Health & Safety regulations, employee training, Risk Assessments and everything that is needed for a permanent venue – most times even more.

HSADD staff have a wealth of experience of outside events from the preparation and planning to liaise with Local Authority, fire service, Police, we have software systems that will smoothly and effortlessly record staff training and we will retain all records for four years in the event of any claims.

HSADD has industry-leading contacts that can provide a vast knowledge base and access to specialist event insurance to ensure that your event proceeds successfully.

”We have always done it this way”

Is this one of the sentences that always greets you when you are trying ‘improve’ your workplace systems and protect the business?

That is why we improve and continuously develop, otherwise we would still be working ‘like this’ and never improve

University fined after research workers exposed to risk of suffering adverse health effects

The University of Edinburgh has been fined for its failings which led to animal research workers, who were already sensitised to laboratory animal allergens (LAA), being at risk of suffering from adverse health effects as a result of exposure to LAA.

Edinburgh Sheriff Court heard how the researchers both began work at the University of Edinburgh in 2003. Both declared that they were already allergic to rodents around the time of taking up these positions. Over the years both continued to work with rats and were exposed to various levels of LAA, a respiratory sensitiser and a substance hazardous to health.

An investigation by the Health and Safety Executive (HSE) found that The University of Edinburgh failed to carry out suitable and sufficient risk assessments of the exposure to LAA, particularly when it was known that the research workers were already sensitised to LAA. They failed to ensure suitable health surveillance was carried out at regular intervals (not more than 12 months apart) and that sufficient information, instruction, supervision and training was provided to the research workers.

The University of Edinburgh of Chambers Street, Edinburgh pleaded guilty to breaching Sections 2 and Section 33 (1) (a) of the Health and Safety at Work Act etc 1974 and was fined £10,000.

After the hearing, HSE inspector Susan Donnelly said: “This was a case of the University completely failing to grasp the importance of risk-based health surveillance.

“If the University had implemented a system of risk-based health surveillance, it would have ensured that an Occupational Health Management system was in place which would monitor worker’s fitness for work. Such systems can prevent an employee’s health condition becoming severe and life-altering.’’

HSADD SAYS: When I see cases like this one, I also think of what other industries could this issue also effect, in this case, not just animal research but NHS Labs and to a degree other trades that need LEV (Local exhaust ventilation), spray booths, welding etc. The long period sensitisation is a big problem as it can be sneaky in it’s approach, but with health monitoring, in place, it can be avoided.


No checklist or a Bad checklist – which is the better option?

Follow the link to see how we view this dilemma.

Checklists are the only way you can prove that something that you say you have done has been done, so on that basis the very best system is surely the best system for your business?