As a safety and health practitioner you are offered a degree of protection from two aspects of employment law enshrined in the Employment Rights Act 1996 (ERA). In particular s44 and s100 protect employees from being disadvantaged (e.g. disciplined) or dismissed on health and safety grounds, such as carrying our health and safety duties where designated by the employer, performing the duties of an appointed safety rep or committee member, or if there is no safety rep when the employee brings health and safety matters to the employer’s attention.

So when a practitioner, or for that matter any employee, makes a disclosure regarding health and safety concerns the ERA also offers protection if that disclosure can be defined as a protected disclosure. In order to be protected it must meet one of a number of qualifying criteria. For health and safety issues s43B covers information which, in the reasonable belief of the employee, shows the health and safety of any employee is being or likely to be endangered, or that a person is failing or likely to fail to comply with a legal obligation.

However it’s not just nature of the information that is important, it’s the way the disclosure is made that is crucial too. Workers can make a protected disclosure in one of a number of ways; in good faith to the employer or responsible person, to another person identified, say, in a whistleblowing policy, to a prescribed person such as the HSE, or to another person if the employee reasonably believes they’ll suffer a detriment if they disclose it to the employer. It’s this last example that requires careful attention. An employee can contact the local newspaper, but only if they reasonably believe the information/allegation is substantially true and they make no personal gain from the disclosure.

I highlighted a number of key phrases that form the battleground in cases involving protected disclosures and there are a number of legal cases that help illustrate the application of the law*. Whilst the ERA should mean employees concerns are treated seriously in the first instance, at the very least it provides a degree of protection when they aren’t.

*see Collins v National Trust, Fidelis v Boyle, Vento v Chief Constable of West Yorkshire Police, Shillito v Van Leer, Babulo v Waltham Forest College, Street v Derbyshire

The new guidance adopts a straightforward, practical style, with information points throughout used to explain more technical points or explaining terminology. It utilises the familiar Plan-Do-Check-Act* model and references standardised approaches to risk management such as the HSE’s 5 Steps to Risk Assessment. To help illustrate the approaches laid out are a number of case studies that provide examples of good practice.

Whilst the safety and health risks associated with research commonly involve high risk activities such as work with chemicals, biological agents, heavy engineering or radiation, a case study is included on the oft-forgotten issues relating to social science research. Factors for consideration include personal safety and security for researchers in vulnerable situations, potential psychosocial impact and fatigue. A number of these areas may overlap with ethical or quality concerns where solutions have already been identified, however the use of risk assessment will prompt active consideration of how these issues might affect the safety and health of those involved.

It is hoped that the guidance will develop overtime, particularly as more case studies are added. It can be downloaded free of charge from the USHA website here.

As the disaster occurred in 1989 it is the old common law of gross negligence manslaughter that would be used as the basis of the offence rather than the Corporate Manslaughter and Corporate Homicide Act that was introduced in 2007. This is an offence that evolved over decades to find a way of holding corporations accountable for their actions. In short the challenge was how to prove that a corporation can have acted with a guilty mind i.e. how could it have intended to commit a crime in the same way that an individual can. With the definition of corporate liability having been established in the case of Tesco v Nattrass¹ the first application of this to a large scale disaster was the legal action resulting from the Herald of Free Enterprise² disaster where 193 passengers and crew died. This affirmed the identification principle defined in the Tesco case where a corporation can be indicted of manslaughter if, through the controlling mind of one of its agents, it does an act which fulfils the prerequisites of the crime of manslaughter. In other words for a successful prosecution of a company for corporate manslaughter an individual must also be found guilty of gross negligence manslaughter AND that same individual must have acted as the controlling mind of the organisation.

In a succession of following cases, such as the Southall³ and Hatfield⁴ train crashes, this presented a huge obstacle for the prosecution, it being impossible to prove that in large organisations any one individual could be identified as transacting the whole affairs of the company. This created a huge paradox with the law, as expressed by the Attorney General in his submission to the Court of Appeal following the Southall train crash:

‘… if the negligence was high enough, the company large enough, and the officers far enough removed from the scene of the crime the corporation would avoid prosecution no matter how heinous the negligence and how grave the consequences’.

During the period that followed the judiciary rejected the opportunity to develop the law to allow for an aggregation of management failure to prove the offence, feeling it was more appropriate for Parliament to address through legislation should it see fit. This it did with the 2007 Act where the offence of corporate manslaughter now relies on ‘the way in which [an organisations] activities are managed or organised by its senior management [being] a substantial element’ of the cause of a fatality i.e. a pseudo-aggregation of management behaviour.

In considering how this might apply to Hillsborough, the prosecution of Barrow Council⁵ following the deaths of 7 members of the public through exposure to legionella bacteria from poorly maintained air conditioning at a council-run arts centre provides an good yardstick. Charges of gross negligence manslaughter were brought against an individual manager who had failed to specify correct maintenance of the system. However the judge in the case ruled that despite the individual’s ‘serious failings’ the manager could not be deemed to be the directing mind of the council. He further added:

‘… a local authority is not in all material particulars to be equated with a commercial enterprise; still less perhaps with a very small corporate with few directors or a sole director… It is far from clear to me that even the Chief Executive could properly be described as ‘the controlling mind’ of a council of elected members’.

As such I don’t see any realistic possibility of corporate manslaughter charges being brought against any of the organisations, let alone expect any chance of success if they are. To do so would be expecting the judiciary to evolve an area of law that has already been fixed by Parliament and on a principle which it has already expressed an opinion. That might sound unjust, particularly given the facts that emerged from the review and the scandalous attempts by the police to cover up their failings. But right or wrong that is what the law says.

1 – Tesco Supermarkets Ltd v Nattrass [1972] A.C.153

2 – R v P&O Ferries [1991] 93 Cr.App. R. 72

3 – Attroney General’s Reference No 2 of 1999 [2000] Q.B. 796

4 – R v Balfour Beatty Infrastructure Services Ltd [2007] I.C.R. 354

5 – R v Barrow Council (unreported)

Thankfully not, the wider social benefits of physical exercise, social interaction and risk appreciation greatly outweigh the risk. And of course the risk is well managed. The organising club, the wonderfully titled Bradford Bandits, go to some lengths to ensure the riding is as safe as possible. For £2 subs each rider gets the loan of a well maintained bmx bike, specialist helmet and gloves. The clubs coaches are on hand to provide expert tuition to all riders (even the dads) on how to get better and stay upright. Each is also a qualified first aider, ready to deal with any resulting bumps and scrapes.

From my perspective the club is doing a good job, but isn’t necessarily able to evidence this. As such i’ve put together a simple checklist they can follow before every meeting to double check things are in place. Sad as it may be, this will provide important evidence of their good organisation if there was ever a serious accident and inevitable claim. Items such as track condition, weather, equipment, rider behaviour, first aid, and emergency contact details all get a mention. It took me just 5 minutes to walk the track, remove a few rocks and complete the checklist. Simples.

Image courtesy of Telegraph & Argus www.thetelegraphandargus.co.uk

Perhaps more impressive was life in the local park (the Parc de Joan Miro) after 5pm when work was finishing and the weather cooling. The park came alive with family members young and old descending on the excellent play facilities, sport pitches, benches, and open areas. Basketball, football, biking, skateboarding and even tai-chi were all in evidence. And this isn’t just Catalan life, i’ve made similar observations on my travels to Bilbao, Valencia, and Madrid

Back home and a quick look at recent OECD data on obesity levels shows that a full 10% fewer Spaniards are obese than their fellow Britains*. Whilst the warmer climate plays its part in allowing access to outdoor spaces, its clear that the Spanish culture, whether intentional or not, is more geared up for a healthier lifestyle. All of this highlights the difficulties that UK politicians and policymakers have in trying to influence the habits of 60 million people, especially at a time of austerity when such promotional initiatives cost money. The obesity timebomb is ticking and the solution is that we all ‘eat well, move more, live longer’, or  ‘menjar bé, moure’s més, viure més temps’ as they say in Barcelona.

*According to the OECD 2005 study, the USA tops the table with 30.6% of the population have a BMI of over 30. UK is third with 23%, Spain in twelfth with 13.1%, below the weighted average of 14.1%. Read more here.

Not everyone sees their annual leave allowance as a health and wellbeing ‘intervention’, but that is exactly what it is. Rest periods are seen as so important that the EU regulated the amount of time off we all get through the Working Time Directive (which in 1998 became the Working time Regulations in the UK), probably the most influential piece of ‘health and safety’ legislation to originate from Brussels. Better known for the limits its places on weekly working hours, it also requires employers to provide employees with 20 days of paid leave every year.

A former colleague of mine always advocated having at least a fortnight off at some point in the year, arguing that if you only have a week it takes 3 days to properly unwind and you start thinking of work 2 days before you go back, hence an extra week was genuinely beneficial.

Simply being away from work doesn’t automatically mean you’ll be relaxed though, one of the reasons i think i’m chilled is all the walking, cycling, DIY, and book reading i’ve done in the past 3 weeks – in fact I’ll be going back to work for a rest. In the meantime i’m off for a lie down…

At Leeds Metropolitan our in-house Occupational Health team is actively engaged in managing employee sickness absence. In an ideal world this would give GPs a point of contact within our organisation to provide more detailed knowledge on the work aspects of their patient’s ill-health. In reality connecting with these GPs is a tall order – there are over 250 GP practices within a 10-mile radius of our Headingley campus. To help target our resources more effectively we recently undertook a mapping exercise using anonymised employee data from our HR management system. This allowed us to plot employee density by postcode sector for our 3000 employees and map these on to the location of GP practices in those areas. In particular we were interested in the locations of our campus and residential services employees for which our health care needs analysis had identified a need for earlier intervention for musculoskeletal disorders.

The mapping showed that 22% of our employees live in the top 12 postcode sectors, all of which are less than 2 miles from one of our campuses. For the campus and residential services employees this was 38%. There are 27 GP practices serving these areas which has allowed us to target our communication to a smaller number of GPs, raising their awareness of the range of OH services and interventions available to our employees.

It is this emotional attachment to the job and working environment that makes burnout an individual trait within a work context. Six workplace factors are thought to influence burnout; excessive workloads, low level of control and lack of support are shared factors with work-related stress. However the other three factors give an insight into the personal dimension; lack of reward and recognition, lack of perceived fairness in the workplace, and a lack of alignment between personal and organisational values.

Evidence shows that burnout is more prevalent in jobs that have a high degree of emotional involvement, through the building and maintaining of relationships between the employee and their ‘client’ – particularly roles such as healthcare and teaching where the relationships can be particularly challenging. It can have significant consequence for both the individual and the organisation, with evidence of exhaustion, sleep issues, and home relationship problems, together with care/service quality issues, increased absence and employee turnover.

It’s important for practitioners to recognise the difference between stress and burnout when dealing with individual cases. A stressed employee might present as being overtly negative, even obstructive, which in turn might affect the practitioners empathy for their position if burnout is not detected. Yet the types of intervention needed could be very different, with job/task intervention perhaps needed in stress cases, but a more fundamental examination of the employee’s relationship with work needed if they are suffering from burnout. As such interventions such as job coaching or mentoring might be more appropriate and effective.

You might be wondering where my friend Dave comes into this. Dave left the teaching profession last week after 12 years working in secondary education. His story is a compelling one, he cites a number of reasons why teaching is no longer for him. But rather than put words in his mouth, why not read his own blog to hear from him directly on why he is ‘worn out and getting out’. Keep in mind the above description and it’s easy to identify a number of the characteristics and workplace factors in Dave’s account. The good news is he took charge of his own destiny and got out before it significantly impacted on his health, his family or his work.

*there’s a fuller explanation of the concept of burnout in this paper… MASLACH, C. & LEITER, M. P. 1997. The truth about burnout: How organizations cause personal stress and what to do about it, San Francisco, CA US, Jossey-Bass.

Lion Steel Equipment Ltd became the third UK company to be prosecuted under the Corporate Manslaughter and Corporate Homicide Act that came into force in 2008. In fact Lion Steel pleaded guilty to the offence in a complicated arrangement with the prosecution that involved a number of health and safety offences and gross negligence manslaughter charges against 3 of its directors being set aside. Lions Steel was subsequently fined £480,000 with £84,000 costs

In my blog last week about the case I railed against the apparent injustice that a company that had pleaded guilty to a charge involving the death of one its employees because the way its activities were being managed and organised could carry on being run by the same Directors. A closer look at the sentencing remarks sheds some light on a number of interesting features of the case, particularly the charges against the Directors, the role of the insurers, and the level of fine.

In general Judge Gilbart had some harsh words for the prosecution particularly for the time taken to charge the offences and then bring the cases to trial. Despite considering that the ‘risk of a fall through the roof was an obvious one, and those running the company should have appreciated it’ the judge found difficulty with the individual charges brought, ruling that two of the directors had no case to answer on the manslaughter charge and that ‘a weak but arguable case on manslaughter [on the third director] disappeared during the prosecution case’. The prosecution of one of the directors he considered was ‘a case that should never have been brought’.

The role of external inspections from the HSE and Lion Steel’s insurers played an interesting part in the prosecution case, with the HSE having previously visited the site and given advice about warning notices, and the insurers having provided advice on the need for training and risk assessment. The prosecution argued that the failure to follow the insurer’s advice was causative of the accident, however the judge identified that despite identifying a need for risk assessment the insurer ‘didn’t refuse cover on the grounds that the precautions were inadequate’.

Finally the level of fine is significantly higher than would have previously been expected for a health and safety offence. The judge applied the sentencing guidelines in detail, considering aggravating and mitigating factors together with the financial position of the company and the potential loss of 142 jobs if the company ceased trading as a result of the fine. He made it clear that this was a company that had not ‘engaged in extravagance’ and at best ‘was holding its own financially’. Similarly none of the Directors could be seen to have significantly profited from the business in recent years. The level of fine, and its staged nature, would appear therefore to be carefully calculated to impact on the business without putting it out of business. However the reputational damage of corporate manslaughter being inextricably linked to the company name will incur a significant hidden cost.

From my perspective R v Lion Steel appears to be a case where the specific nature of the facts prevent a full assessment of the efficacy of the Act at this time. In truth not much has changed, only when we get a very large company, having committed an offence well after its enactment date will we know if it has achieved its aims.

As well as being charged under the Act, three of the firms directors were charged with gross negligence manslaughter, implying a continued connection with the actions of individuals that the Act was supposed to resolve. However at the start of the trial, on the 12th June, the corporate manslaughter offence was severed from the others due to the timing of evidence applicable to both health and safety and corporate manslaughter offences.  This left the trial continuing with the individual manslaughter and section 37 health and safety offences, as well as the company’s health and safety offences. It came to a conclusion this week with the judge ordering the individual charges against two of the directors to be dropped, and the prosecution then dropping all remaining charges in return for a guilty plea for corporate manslaughter.

In one sense this resolves finally the need to identify guilty individuals when holding the company to account. Hooray for that I hear you say, the identification doctrine is no more. However in dropping the health and safety offences, particularly the section 37 offences against the directors that would have resulted in them being disqualified from being a company director, the worst critics of the new Act may come back to haunt it. In short this leaves a company whose activities were managed in such a serious way that they resulted in the death of one of its employees still being run by the directors who oversaw the ‘senior management failure’ that by way of its guilty plea can be deemed to have contributed to the offence.

I imagine the experience of being put on trial for gross negligence manslaughter will have such an effect on the individuals that health and safety will rise up their list of priorities, however the message that this sends to other organisations and their directors is seriously compromised. Sure, Lion Steel are in for a significant fine which could be accompanied by a publicity order, but there will be those that will examine this case and think the Act has failed. Despite it being a success.

Footnote – I spent a day in court following the trial. At the end of the days hearings, which mainly involved expert witnesses on roof access, the judge summed up the progress so far. “It would seem clear that this case revolves about the extent of knowledge people had about what was going on” he said. Nobody on either bench disagreed with him.

*in order to find a corporate body guilty of manslaughter an employee also had to be found guilty of gross negligence manslaughter with that employee being sufficiently influential as to have acted as directing mind of the whole organisation. In practice this limited the chance of successful prosecution to very small companies. See R v Kite and OLL Ltd 1994.