Minutes of 169th IOSH Edinburgh Branch Meeting
Craighouse Campus, Napier University, Edinburgh – Thursday 9 February 2006 - 130pm
Sederunt: B Bertram J Fenton R Gunn M Grimmer C Wilmott R Walker
K Lloyd S McMorland C Shiels N Kelly L Crichton P Graham R Hall
M Gorman R McLean R Hunter E Ramsay L Cameron K Hardie J Fell
M Scott-Smith D Stephen G Dick B Hammond S Heesom M Bancroft R M Brown I Murray R Lovering G Moncur T Mellon L Young M Johnstone A Curran R Brownlee R Hunter V Stewart D Brown J Turner S Brown I Munro
K McLaughlan A Polhill I Sinclair J Bathgate C Pender A Reid A Diment P Keogh T Graveson D Cawkwell G Laing A Sharman J Hamilton L MacNeill L Jacomb S Groat G Millar S Boucher D Penman A Baily D Millar
M Crowston L Polson P Brunton S Chisolm J Robertson A James R Bradford J McMahon C Lawson T Elliot A Pittendrigh J Brannigan A White G Macnab
Apologies: Ross Innes, Julian Davis, Graeme Lyall, Dave Sinclair, Allan Dick, Dick Morrison, Jim Hepburn, Scott Page, Harry Garder.
1. Chair: Marion Johnstone took the Chair and outlined the Safety arrangements (Fire)
2. Minutes of previous meeting: January 2005
• Receipt: anyone not receiving them should contact the Secretary.
• Section 4: WEE Directive not EEW. Section 6: Guest Speaker had been introduced by J Davis and not Vice-chair. Otherwise agreed a true record: Proposer – Simon Heesom; Seconder – Vic Stewart.
• Matters arising not on the Agenda: None
3. Correspondence
3.1 Events
• Friday 24th February: The Society of Occupational Medicine, Scottish Group: "Appearing as a Witness": Venue: EGLINTON - Edinburgh. Fee: IOSH members £150
• 6-10th March: HU-TECH: Ergonomics Essentials
• 21 March: Scottish Ergonomics Forum: human factors tools. richard@keilcentre.co.uk
• 10-12 April: Universities Safety and Health Association: Annual Conference: Main day: 11th April. 6 expert presentations & 2 participative workshops: City Quay Apex Hotel, Dundee. £145. www.dundee.ac.uk/safety/conference2006
3.2 Job Spot
• OH&S Advisor, Scottish Executive; Edinburgh; Circa £30,000: Rory Reed: 0131 244 3085: 13 Feb.
• Napier University, Edinburgh: Fire Safety Adviser: Ruth Thin, Telephone 0131 455 3605, e‑mail r.thin@napier.ac.uk 27 Feb
• SAFETY MANAGER: Central Scotland: Edward Bartlett Recruitment Consultant Tel +44 (0)1737 821023 Fax +44 (0)1737 823031 E ebartlett@cbsbutler.com
3.3 HQ
• Branch Membership – 819
• Affiliate 102 CFIOSH 17
• CMIOSH 163 FIOSH 5
• Grad IOSH 11 Life + Retired 20
• MIOSH 222 Tech IOSH 280
4. Group Reports
• Branch Education Development Officer – Liz Young
• Groups
– PUBLIC SERVICES – Marion Johnstone –
– CONSTRUCTION – Allan Dick – reminded people of pending HSE 'Watch your step' slips trips & falls campaign: info available on www.hse.gov.uk/slips. Will be attending the next IOSH SG meeting on the 2nd March.
– FIRE RISK MANAGEMENT – Dave Sinclair
– HEALTHCARE – Martin Scott-Smith. Nothing to report
– ENVIRONMENT – Julian Davies –
– OFFSHORE – Tam Boyd.
CONSULTANCY – Derek Cawkwell: Summary of completed Consultancy 2006/7 plan:
* IOSH Consultancy Good Practice Guide - Committee agrees 2 guides
required: 1 for consultants, 1 for clients. Working groups formed, targets = within 2006.
* Paper to be produced - Where do consultants sit and how can the position be improved?
* Thanks to those who took part in SG survey - results being analysed and will be posted on SG web page.
* IOSH Conference - SG will be represented and run network session - An intro to being and H&S Consultant. Details on IOSH website.
* Proposed seminar Autumn 06 - topic / venue to be decided.
* Network event proposed for Dublin during 2006. Interested? Contact Petrina Beck.
–
– SAFETY SCIENCES – Steve Boucher Nothing to report
COMMUNICATIONS/MEDIA – Graeme Lyall: Wednesday 7th of December, Accenture and BT jointly hosted the Networking Meeting of the Communications and Media Specialist Group of the Institution of Occupational Safety and Health in Edinburgh.
This Group comprises H&S Specialists from major "communications" companies in the UK and amongst the Delegates were Representatives from BSkyB, News International, NTL and Telewest.
The major Speaker, who attended at the invitation of Committee Member and HR Services Safety Consultant, Graeme Lyall, was Miss Annabel Goldie MSP, Leader of the Conservative Party in Scotland and Convenor of the Justice 2 Committee in the Scottish Parliament.
Miss Goldie spoke on the subject of "Corporate Manslaughter", a matter that is progressing through Parliamentary Committees in England.
She explained that, under Scots Law, there are different considerations and the Scottish Parliament was trying not to end up with a Law that was so convoluted that it could not be applied, as against strengthening the existing procedures under Scots Law.
The Chairman of the Committee, Dave Wallington, Head of Safety at BT Group, also introduced Speakers who gave Presentations on "Involving Your Company's Board More in Safety Management" by Ian Clements of Quadriga, "A Union View of Health and Safety" by Steve Catherall of the CWU and the new "Working at Height Regulations" by Richard Hinkley of Total Access (UK) Ltd.
–
– EDUCATION - Chris Lawson –
• Forth & Tay District: AGM held. Well attended meeting. Current committee and officers re-elected. Will be needing new Chair and Secretary from next year’s AGM
5. Members Items
• Scottish Executive: Corporate Homicide: Thanks for all comments on draft IOSH response. Passed on to HQ and final IOSH response duly published – available on National & Branch website. Scottish Exec will be carrying out further consultation in spring. Julian Davis had attended Scottish Executive Conference on this topic as Branch Representative. His report was also available.
• G McGeorge – thanks to all who responded to his query re occupational health
Liz as the Branch Education Development Officer gave a 10 minute presentation on the latest information relating to CPD and in particular to the on-line system to be utilized in the future
Membership Structure
Liz firstly reminded members of the structure which has now been put in place
and pointed out that CPD is now mandatory for all grades of safety practitioners – all IOSH members with designations bearing the IOSH name.
CPD is a formalised scheme to record activities that both maintain and continually build on competence
CPD schemes
There will be 2 online versions of CPD
- The Chartered member and fellow scheme is being rolled out now
- The Technician scheme will come on line soon
The old paper-based system will be phased out once every one has completed the 2yr cycle
The elements of the revised scheme – In four areas
- Development Planning
– Maintenance of core skill & knowledge
– Development of new professional skills
– Development of transferable skills
A- Development planning- to map out what you need to do to keep up to date & expand your skills over a 3 year period
• Normally for three years, but can be reviewed at any time during this period
• States intended activities over the next period
• Recognises that plans can change as circumstances change so these plans can be amended.
• A maximum of three points per three year period only, can be allocated
B- Maintenance of core skills & knowledge - to keep your core competence up to speed
C- Development of new professional skills - focus on building new skills & knowledge to increase your effectiveness
D- Development of transferable skills – to maintain your broader management skills , from communication to change management
Plan –plan your CPD activities
Do –carry out your activities
Review-review your plan in the light of the value that completed activities have given you & to ensure that you are meeting the learning objectives you have set yourself
Reflect-Reflect on what you gained from your activities & award yourself credits
Recording
The online system records will operate via a system of pull down menus such that you will be able to enter the details with ease.
The credit framework over the three year period for each section will be =
|
Section A-Development plan |
3 |
|
Section B-Maintaining score skills & knowledge |
9 (Minimum) |
|
Section C-Developing professional skills |
9 (Minimum) |
|
Section D-Developing transferable skills |
9 (Minimum) |
Gauging CPD credits
• Activities are self assessed for CPD
• Although there is an element of time involved in the allocation of credits it is the outcome that is more important
• A rough benchmark for credits is 2 points per days activity
However………there is the opportunity for flexibility in awards so that …
• Credits may be awarded in different sections for one activity.
• The reflective process of considering how useful an activity is will identify this.
• A reflective statement is required for each activity identified as CPD.
Credits are awarded as follows:-
• 3 credits – an activity that has been extremely useful that has developed new skills and caused you to research and reflect on issues.
• 2 credits – a useful activity introducing new concepts for reflection and putting them into use.
• 1 credit – confirming already known facts but requiring reflection to do this.
• 0 credit – activities which are common place for you as an individual and may be thought of as commonplace and everyday
Example –
• You attend a meeting with a topic you have some knowledge of.
• The presentation confirms what you know but adds considerable new information.
• You allocate
• 1 credit for maintenance (section B) and
• 1 credit for Professional development (section C)
• and reflect on why you did this in your CPD log.
Typical CPD Activities
• Carrying out risk assessments, management projects , accident investigations
• Going on courses/Seminars
• Reading and writing books journals and reports
• Submitting input to IOSH consultation documents
• Mentoring /coaching other H&S Professionals
• And many many more …….
Accuracy and auditing
• There will continue to be a random audit as in the current scheme
• Trained assessors required to undertake this function
• There are NO excuses All FIOSH , MIOSH need to register for CPD before 30th June 2006 (if you are not already registered) - Tech IOSH – will be notified soon
Otherwise you will revert to Affiliate membership
6. Guest Speaker
Laura Cameron of McGrigors
Revision to the Management Regulations
- potential impact on civil liability
Vice Chair Andy Sharman introduced the speaker for the afternoon as Laura Cameron, who had in fact presented a paper previously to the Branch back in 2004 relating to Corporate Killing Law and he was still grateful that she had chosen the law rather than dentistry as she had the knack of making the topic understandable while smiling elegantly. Laura then opened her presentation thanking the members for inviting her back but had to point out that while she was a Partner in McGrigors, she was not a Senior Partner as had been indicated on the Branch Agenda slide.
She then indicated that she aimed during the presentation to include not just prosecution elements, but to delve into the more pro-active areas considering policy elements and would do her best to try and make it interesting, but warned that it was a very dry subject.
Civil Liability: Common Law
The speaker indicated that she did not intend to go deep into the elements of Criminal vs Civil litigation, but was starting by reminding members of the elements of Civil Liability which are built up on -
- Duty of care owed to the employee
- Breach of that duty
- Breach causes loss
To illustrate the detail she used two examples – one based on driving a car and another a past case of a quarry man getting injured due to climbing over a guard rail on a rock crushing machine.
She also reminded members that Vicarious liability – where an employer is responsible for the employees actions providing that they are doing something in the course of their employment may also play a part.
Civil Liability: Statutory Law
Here claims may be made under slightly different circumstances per –
- Breach of Statutory Provision
- Where the Statutory Provision allows for civil claim
- And still the requirement for the Breach causing loss
The example used here related to a visitor slipping on a paving slab and laying claim under the Occupiers Liability Act
Health and Safety at Work Act 1974
• Section 47 (2): breach of a duty imposed by Health and Safety Regulations… shall, so far as it causes damage, be actionable except insofar as the Regulations provide otherwise
Management of Health and Safety at Work Regulations 1999
Present Position:-
Regulation 22: Breach of a duty imposed on an employer by these Regulations shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of persons not in his employment
Current issues
- Regulation 14 – Onus on the employee for his own actions at work – to follow instruction and training – Report dangerous conditions noted
- Liability of employee – Criminally liable AND Civilly liable for his own actions/in-action
- Common Law: vicarious liability – Despite this the individual may be liable
Vicarious Liability Developments
In the case of Dubai Aluminium Co Ltd v Salaam 2002 an action was taken against a firm of solicitors for “sham” contracts being written by the 3rd partner in the partnership of solicitors. The firm of solicitors tried to show that the 3rd partner was “not doing something in the course of his employment” but the House of Lords stated he WAS acting in the course of employment.
In the case of Lister v Hesley Hall 2002 a claim was laid against a Boarding School where claimants had been sexually assaulted by the wardens, but the school tried to say that this “was not part of their employment” , but again the House of Lords stated the school should have been aware of the potential for exposure in this way and as such is shown to have had a sufficiently close connection with employment for them to be vicariously liable.
Views of interest groups
- UNISON and TUC have raised the issue with concern that perhaps employees will need to take out their own Personal Indemnity Insurance if this continues
- Public Concern at Work has shown that there may be this need in the same way as Employers have Employers Liability Insurance
- Health and Safety Commission states there is a need for employees to be held accountable for their own actions, but they do not see this extending to claims from 3rd parties.
Proposed Amendment
Management of Health and Safety at Work and Health and Safety (Consultation with employees) (Amendment) Regulations 2005: Regulation 22(3)
To address this issue, the new Regulations will restrict the ability of third parties to raise an action against an employee, for a violation of the 1999 Regulations. The amended 1999 Regulations at Regulation 22(3) will read:
"Breach of a duty imposed on an employee by regulation 14 shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of a third party."
This amendment should prevent both direct actions against employees by third parties as well as the vicarious liability of employers. Unsurprisingly, the reaction of Public Concern at Work to the proposed amendment has been positive. They predict that the new Regulations will prevent an employee from becoming the centre of attention following work place incidents causing harm to non-employees. They also note that where an employee is liable for a violation of Regulation 14 of the 1999 Regulations under the new Regulation 22, the employer will pick up the bill and be the centre of any legal battle between colleagues through the principle of vicarious liability. Accordingly the focus of attention will shift and the action will effectively be against the employer, not the colleague
Summary of position now
To summarize the position after the new Regulations, the following actions will be possible, as they are now:
- Actions by employees against their colleagues for violation of Regulation 14 of the 1999 Regulations
- Actions by employees against their employers for violations of the 1999 Regulations
- Actions by employees against their employers for violations of Regulation 14 of the 1999 Regulations committed by their colleagues, for which the employer is vicariously liable;
- Actions by employers against their employees
Summary following amendment
These actions will not be possible:-
- Action by a member of the public or a colleague with a different employer, against an employee
- Actions by a member of the public or an employee of a different employer, against an employer
Overall Impact in terms of Civil Liability
In terms of the overall impact of civil liability in the context of the 1999 Regulations, the Health and Safety Commission have always taken the view that there will not be a substantial increase in civil actions. They cite three reasons for this belief.
- First, a pursuer must often contend with complex issues of causation. For example to allege a breach of Regulation 3 against an employer the pursuer must establish that the absence of suitable and sufficient risk assessment caused the injury on the balance of probabilities.
- Second, a pursuer is more likely to base their case on either the common law of negligence and/or the principles of vicarious liability. A violation of the 1999 Regulations is likely only to be founded upon as evidence of a breach of a common law duty of care.
- Third, that civil liability neither actually increases nor changes the content of the obligations on employers. For these reasons the Health and Safety Commission take the view that the changes in the 2003 Regulations and the new Regulations implement the United Kingdom's duties under the Framework Directive, without causing hardship to the business community.
However the validity of these assumptions of the Health and Safety Commission are open to some challenge. In relation to the first point noted above the Court of Appeal decision of Terence Joseph Griffith v. Vauxhall Motors Ltd [2003] EWCA 412 CA (see para. 39 per Lord Justice Clark) recognizes that absence of a suitable and sufficient risk assessment can be the direct cause of an injury. In relation to the second point, in practice a pursuer is likely to allege violations of all applicable legislation as well as the common law, in the hope that either or both stick. The legal merits of an alleged violation rarely reach a court to be properly tested. Employers are often sufficiently concerned with the combination of legal fees and a protracted litigation, that they are keen to settle and are not interested in the likely success of causation arguments. Therefore it might be countered that if an action is competent it will be utilized, even as a last resort when cases based on the common law or more specific regulations, fail. In relation to the third point, although the content of the obligation clearly has not changed, civil liability changes both the likelihood of legal proceedings and introduces the potential for actions being raised between employers and employees.
Health and Safety (Consultation with Employees) Regulations 1996
As with the proposed amendments to the 1999 Regulations the changes to the 1996 Regulations are intended to bring the UK in-line with its obligations under the Framework Directive. Regulation 9 currently prevents obligations under the 1996 Regulations from giving rise to a civil action. Amongst other obligations, the 1996 Regulations require that an employer consult with employees/their representative in relation to their health and safety at work, and provide them with sufficient information necessary to make that consultation effective.
The amended 1996 Regulations at Regulation 9 will read:
"Breach of a duty imposed on an employer by these Regulations shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of persons not in his employment."
Although the drafting is inelegant the effect is that civil actions will only be competent against an employer, by an employee. It is interesting to note that, despite the difficulties with the loophole in the 1999 Regulations discussed, there is no specific exemption for employees. This is likely a reflection of the fact that the 1996 Regulations predominantly place obligations on employers – there is no equivalent to Regulation 14 of the 1999 Regulations.
Impact
In terms of the likely impact of the amendment to the 1996 Regulations, the Health and Safety Commission Regulatory Impact Assessment predicts that there will only be a small number of claims brought. Certainly we have had only limited encounters with the 1996 Regulations to date. The Health and Safety Commission also expect the financial impact of these claims to be soaked up by indemnity insurance taken out by the employer. However this latter argument would appear to overlook the fact that such policies require premiums to be paid.
The Health and Safety Commission also argue that claims under the amended 1996 Regulations are unlikely to be brought in isolation and will usually be combined with claims under the common law, or industry specific legislation which will be easier to establish in terms of causation. This argument seems to be stronger here than in the context of the 1999 Regulations: it will be easier to argue "but for" a risk assessment, than "but for" a consultation, an injury would not have occurred. However, again there is a real possibility that if claims are raised they will be settled before the merits of the case are considered at trial. This suggests that the new reforms may be more than mere technical alterations to bring the UK into line with its EU obligations, as the Health and Safety Commission are currently billing them.
Conclusion
The speaker indicated that it may well be that the changes were in fact a bit of a “storm in a teacup” – perhaps there is just a need to plug a gap in the Regulations.
She has NEVER seen a claim by an employer against an employee in this context
She also believes it is never going to happen in practical terms – any claims are laid where there is the ability to pay and laying claims against employers is where the money is (via the Liability Insurances)
7. Closing details
• Dates of next meetings
Edinburgh Branch
9 March: Corporate Homicide.- how the law in Scotland may develop: David Leckie of Mclay Murray and Spens
• Closure – Tea/Coffee – Mingle
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Max Bancroft, MRSC, MIOSH Branch Secretary |
Richard Lovering, CFIOSH Branch Executive Committee |
