News for 2008
September
The risks of risk assessment
Exeter firefighters and paramedics were called to rescue a man after he fell from a ladder onto a flat roof while carrying out a risk assessment. Bad luck or what? The accident occurred at a Friends Provident building and involved a member of their facilities management team.
A spokesman for the organisation said they would be 'carrying out a full assessment of how this happened'. The HSE argues that risk assessments are essential to prevent accidents – but it is difficult to say quite where to start the process.
HSE Chair Judith Hackitt, speaking earlier this month at the National Safety Symposium, took a pragmatic line. More inspectors or enforcement personnel are not the answer to good practice because bodies like the HSE are not responsible for managing health and safety. That's the job of employers and individual staff, she said.
"To do anything properly and well and embed it into the culture requires that you believe it is the right thing to do. The experts in health and safety then provide the framework for you to do the right thing in your business or organisation in a way that you know will work because you have thought about it and are committed to it," Hackitt told her audience.
More freelancers might be taxed as employees after High Court ruling
An IT contractor has been hit with a £99,000 tax bill after the High Court ruled that he should be taxed as an employee of the company he undertook work for. Jon Bessell, 50% owner and sole director of Dragonfly Consulting, carried out work for motoring organisation AA for three years until 2003.
Bessell is an IT systems tester and worked almost exclusively for AA in the three year period, providing his services as Dragonfly Consulting via an agency for IT contractors, DPP. A set of rules known as IR35 were introduced by Inland Revenue in 2000 to ensure that individuals were not using a corporate structure to avoid paying tax and national insurance as individual employees.
Bessell was deemed by Inland Revenue to be an employee of the AA according to the IR35 rules. The Special Commissioner had looked at the fact that Bessell operated under the control of AA, had only one other client who provided only a little income and was "integrated into the AA's business, and who had a role similar to that of a professional employee".
Bessell appealed to the High Court, arguing:
- that the Commissioner had made legal errors in the assumptions made about the notional contract imagined between Bessell and the AA;
- that the intentions of both parties were not, as the Commissioner deemed them, "irrelevant"; and
- that there exists a status between being in business and being an employee, and that is the state of being "a worker".
The High Court found that the relationship was essentially that of an employee and employer. Mr Justice Henderson found:
- that Bessell's work could not be substituted for another's;
- that the control, appraisal and assessment of his work undertaken by AA manager's was like that undertaken in relation to an employee;
- that the parties' view of what they wanted the status to be was indeed irrelevant; and
- that Bessell fell "on the employment side" of the dividing line between employee and non-employee.
Mr Justice Henderson upheld the Special Commissioner's view that Bessell should pay the tax and national insurance contributions he would have been due to pay as an employee, which amount to £99,000. Bessell released a statement through contractors' body the Professional Contractors' Group (PCG) saying he was "devastated" by the ruling. "Not only does it affect my family and me, but all the other freelance professional consultants who are trying to earn an honest living," he said. "I was never an employee of the AA and I simply cannot understand how the High Court has reached its decision."
PCG was formed specifically in reaction to the IR35 rules, which are named after the number code of the Inland Revenue press release that announced them and are now part of the Income Tax (Earnings and Pensions) Act.
PCG managing director John Brazier said that the ruling had potentially significant implications. “This is a potentially massive blow to freelancers throughout the country," he said. "This case threatens the long-established defences against IR35; we will be looking at the judgment in very close detail to work out its full implications.”
Confusion over Rememberance Day parades
Police guidelines insist Remembrance Day parades are so sacrosanct that everything should be done to ensure they go ahead. In advice published by the Association of Chief Police Officers (ACPO) in its public safety policy, it says events of national significance are particularly sensitive within the community and it is imperative that they should be allowed to proceed, even where the police action required would be outside normal policy.
But the guidelines also say the public perception that it is the police’s responsibility to manage traffic at public events is wrong, and that it is up to the event organiser or council to arrange for someone to stop traffic to put up barriers.
Police support for public events, in particular Remembrance Day, was singled out for mention in the guidelines where it said police forces should plan short-term traffic management with the local highways authority.
But the threat of legal action has confined the police to carrying out its core responsibilities only, such as preventing and detecting crime.
“Police powers to regulate traffic for planned events are extremely limited. Furthermore, the Police have no general duty to preserve public safety at any public event, except where there are imminent or likely threats to life,” the guidelines advise.
In addition, they suggest police resources should not be routinely deployed to tasks where there are no legal responsibilities.
In briefing notes given to Harrogate councillors ahead of an overview and scrutiny commission meeting in April, Acting Chief Supt Alison Higgins said the responsibility for public safety rests with the organisers of an event and the local authority.
She said North Yorkshire Police has been gradually introducing charging for providing additional policing services beyond their public duty obligations.
“Whilst the Traffic Management Act clearly outlines that traffic management is the responsibility of the local authority, there is nothing stipulating that the police cannot still attend these events,” Supt Higgins added.
Music festival cancelled
A music festival planned for Great Yarmouth has been called off after borough council officers refused to give permission for it to go ahead.
The St Nick's Music Festival was due to take place at St Nicholas Recreation Ground tomorrow and Sunday and the organisers had already advertised the bands that were due to play, which included tribute acts to AC-DC and the Prodigy.
But the council, which owns the site, has not received an adequate health and safety risk assessment from the organisers and decided to shut down the festival yesterday fearing it could be liable for any incident which happened.
Simon Mutten, the council's environmental strategy manager, said the health and safety assessment submitted by the organisers was inadequate and lacked information on first aid, how it was going to be supervised and managed and the communication structure on the night.
He said there were risks involved with holding an event that was expected to attract between 1,000 and 1,500 people in a small venue, especially as there was going to be a licensed bar.
“With the size and scale of the event being proposed, normally we would be in receipt of a health and safety risk assessment weeks in advance, but we were simply not given that information in advance.”
Mr Mutten added the decision to close the festival had to be taken to give people enough notice it would not be taking place.
“If we were not satisfied and allowed the event to go ahead then the council would have a liability as well, The health and safety of everybody using our facilities is paramount,” he said.
The festival, a fundraiser for the annual Town Centre Music Festival (TCMF), would have featured the AC-DC and Prodigy tributes High Voltage and Jilted Generation as well as a funfair, bouncy castles, a variety of stalls, fast food and a bar.
Organiser Chris Anson said he had been given licensing permission to hold the event between 11am and 11pm, but council officers backtracked earlier this week and only granted permission up to 9pm.
But Mr Mutten said the organisers needed both licensing permission and an agreement from the landlord, in this case the borough council, before the event could go ahead.
Mr Anson said: “My personal opinion is that this is an event for the town. It is to raise money for the TCMF. The council, instead of putting this off, should be trying to find ways of putting it on.
“If they cared about the people of the town then they would let this event go ahead.”
New Safety Passport Course announced
STAGESAFE are please to announce a new Safety Passport Course for 10th November to be held in Glastonbury, Somerset. For further information and to download the booking form, please click here.
Newcastle club fined for fire safety breach
The owners of a nightclub have been found guilty of breaching the Regulatory Reform (Fire Safety) Order 2005 (RRO) after a man suffered serious injuries on a night out. Ultimate Leisure Limited, which owns the Sea Nightclub in Newcastle, was found to have breached its duty of care to take general fire precautions in the event of a fire on the premises. The nightclub’s fire risk assessment for the premises was also deemed to be unsuitable and insufficient.
The prosecution is as a result of an incident where a man suffered serious burns on a night out at the nightclub on 23 June 2007. Andrew Reilly was standing against a shelf on a balcony overlooking the dance floor on the first floor of the club just after midnight. On the shelf was a tea light candle. As Reilly leaned against the shelf he felt his back getting warm and discovered that his shirt was on fire. He ran to the toilets and took his shirt off and attempts were made to put out the fire.
Reilly was taken to Newcastle General Hospital where he received initial treatment and later transferred to the Royal Victoria Hospital Burns Unit. He had received severe burns to his back in the incident. The nightclub's risk assessment made no mention of the use of tea light candles and staff had not been given any training on how to deal with an incident involving naked flames.
Kevin Hepple, Tyne and Wear Fire and Rescue Service's area manager for community safety, says: "There is no doubt that on this occasion Ultimate Leisure failed in their responsibility to protect their customers against fire and as a result someone has been badly injured. The outcome of this case is absolutely the right one.
"I would like to take this opportunity to drive home the message to owners and managers of public premises that it is their responsibility to ensure staff and customers are safe from fire. This includes carrying out regular fire risk assessments, ensuring there are adequate fire exits and that there is a suitable fire alarm system."
Ultimate Leisure Limited was issued with a £4,000 fine and ordered to pay £975 costs.
Death of worker leads to fine
A Scottish construction company has been fined a total of £125,000 after a breach of health and safety caused the death of a Polish worker. Witold Jellen, 56, was working in a disused cinema in July 2007 when he fell 25ft from the balcony into the stalls below. He suffered severe head injuries and several fractures to his skull and was pronounced dead on arrival at Stirling Royal Infirmary.
Mr Jellen had been working with the site manager David Cairney at the former ABC Cinema in Falkirk when the incident occurred. Mr Cairney also fell, suffering cuts and bruises. Firm Curot Contracts Limited, based in Bishopbriggs, pleaded guilty to failing to ensure the health, safety and welfare at work of their employees, as well as failing to maintain a safe system of working. The site, which had been purchased by leisure chain Castle Leisure Group, was being renovated to build a news nightclub and sports bar.
Falkirk Sheriff Court heard that the men had been carrying out work with powerful drills on a balcony to prepare it for new steel work to be installed. Sub-contractors who had previously worked at the site had used “crash decks”, intended to prevent worker injury should a fall occur. However, these had been removed, and were not reinstalled before the incident occurred.
The court ruled that the lack of crash decks was a significant factor, required by law to ensure the safety of men working at heights. Neil Bowie, prosecuting, said: “It was identifiable that a further hole needed to be cut for steelwork to pass through, and Mr Cairney decided to carry out that work along with Mr Jellen rather than getting the subcontractors to come back. This was in an attempt to help other workers at the site.
“But at the time of the fall, there was no scaffolding in the building that crash decks could be built on; these would have prevented injury.”
Fining the company, Sheriff William Gallagher described Mr Jellen's death as an "extraordinary case" due to the required precautions being put in place in advance, then removed. He continued, "No penalty that I can impose is capable of remedying the impact on Mr Jellen's family.”
The HSE has launched its Ladder Exchange 2008, which will run throughout September and which aims to reduce the number of ladder-related accidents by encouraging employers to trade in their unsafe equipment. The initiative, which will allow employers to exchange risky ladders for new ones at a discounted price, is designed to highlight the risks involved with using substandard ladders by boosting employer knowledge of health and safety issues.
In order to participate in the Ladder Exchange, employers must visually check the ladders and stepladders in the workplace, and make sure that workers are competent to use ladders, providing appropriate training if necessary. Throughout the initiative, local authorities will be visiting workplaces to assess – and take action on – risks posed by ladders and stepladders.
The HSE says that on average 13 people die at work every year due to falls from ladders. In addition, nearly 1,200 people suffer major injuries. Under the Work at Height Regulations 2005, every employer should ensure that work is not carried out at height where it is reasonably practicable to carry out this work safely otherwise.
According to the regulations, where work at height is carried out, employers should take adequate steps to prevent falls. Where the risk of falls is not eliminated, the employer should provide sufficient work equipment to minimise the distance and consequences of a fall, as well as providing training, instruction, or other suitable measures to prevent falls occurring.
A number of crucial factors apply when deciding whether it could be appropriate to use a ladder or stepladder. Consideration must be given to:
- whether the type of ladder used is correct;
- the procedures to ensure that ladders are used safely;
- ensuring that employees are correctly trained in how to use ladders;
- ensuring that they remain fit for the task through regular maintenance and inspection;
- how to prevent unauthorised and improper use; and
- any secondary risks that the use of the ladder may give rise to.
Music fan calls for festival prosecution
A music lover believes Reading Festival organiser Festival Republic should be prosecuted under health and safety laws. Peter Bond is planning to contact Reading Borough Council and ask it to take a private prosecution against the company.
Mr Bond, who works in health and safety and had weekend tickets, said he was appalled by how crowd management was handled. He attended with his wife Muna Roberts and 12-year-old son Joshua Bond.
The 47-year-old, of Southampton, said the family did not even bother to go to the festival on Saturday because it was so dangerous. Mr Bond said: “I feel the event is getting dangerous. I’ve been going to the festival for quite a long time. The last time I went a few years ago the crowd was about 60,000. Now there are 80,000 people and the facilities remain the same.
“There were many instances of dangerous crowd surging at exits and toilet facilities. This is the first time I have ever been scared at the festival and I’m a big guy.
“I very much regret taking my wife and son. They were terrified and totally traumatised by the crushes. At some point in the future this festival will end in tragedy unless the numbers are reduced back to 60,000, which is safe.”
Mr Bond said he feared Reading could experience a disaster like at Roskilde in Denmark – where nine people were killed at a music festival – unless action is taken. He is now campaigning for the number of tickets released to Reading to be reduced.
He continued: “We left early on Sunday after the massive crushes in both the gents and ladies toilet facilities, my sister-in-law got buried under a dozen people and was so traumatised she didn’t stop vomiting until 4am Monday morning. The security guy admitted there were too many people to control.”
Another woman, who did not want to be named, said: “I am angry. My sister – who has been to 16 Reading Festivals – said she wouldn’t go back.
“She said it’s not safe. There were people running round putting gas canisters on tents and shouting and screaming, trampling on tents and trampling on people in the tents. They were all over the place.”
Mr Bond is also contacting festival director Melvin Benn, Thames Valley Police and the National Outdoor Events Association about safety at the event. Reading Borough Council spokesman Chris Branagan said: “We take the health and safety of everyone who attends the festival very seriously, and we will be discussing the concerns Mr Bond has raised with the organisers.”
At the time of going to press Festival Republic had not responded.
Nightclub fined over confetti cannon
A Bristol nightclub that left a visitor to call an ambulance for himself after he was injured and later failed to report the incident to the council must pay nearly £8500 in fines and costs.
Kieran Lynch was at the Syndicate nightclub in February when he was struck on the head by 11kg confetti cannon which fell from a height of three meters. A contractor had installed the cannons on shelving rather than on the floor as recommened.
Staff took Lynch out of the back door but he insisted on being allowed back to use the first aid room, which had holes in the wall, stained sofas and no running water. After waiting almost an hour for an ambulance staff said they had called he phoned 999 himself.
Bristol Magistrates heard how the club did not have a pyrotechnics license, had not tested the confetti cannons and failed to put up warning signs. Nexum Leisure admitted four safety breaches, failing to ensure the safety of the public, failing to assess the pyrotechnic risk, failing to inform the Local Authority of the injury and failing to provide adequate first aid.
