Who needs European Health and Safety?

 Many claims have been made about the benefits of leaving the European Union in recent weeks. Vote Leave invites the UK to “take control” from EU bureaucrats. To counter arguments that there have been many gains in employment rights obtained since the UK joined the European Economic Community, Vote Leave has also claimed that these benefits were gained well before 1975.

Sean Jones QC does a far better job than I could hope to do in dismissing these claims. See Who needs European Employment Rights?

However, what about the development of the UK’s health and safety legislation since 1975? Whilst our principle act of Parliament in this area remains the Health and Safety at Work etc. Act 1974, the EU has been the source of most of the UK legislation in this area. In particularly, the European Commission adopted its first action programme for health and safety in 1978. This followed the adoption of Article 118A of the Treaty of Rome 1957, which gives health and safety prominence in the objectives of the EU. The Social Charter also contains a declaration on health and safety.

To illustrate the effect of the EU, the table below lists the “Key Health and Safety Regulations” as set out in the introduction of Tolley’s Health & Safety At Work Service. Only those regulations in red are not derived from EU legislation.

 

Health and Safety Regulation	Legal Source/Legal Basis
Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 (as amended)	Directive 2008/68/EC of the European Parliament and of the Council of 24th September 2008 on the inland transport of dangerous goods Council Directive 1999/36/EC of 29th April 1999 on transportable pressure equipment  Article 5 of Title II (Prior Information) of Council Directive 89/618/Euratom of 27th November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency
Construction (Design and Management) Regulations 2015	Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites
Control of Asbestos Regulations 2012	Directive 2009/148/EC of the European Parliament and of the Council of 30 November 2009 on the protection of workers from the risks related to exposure to asbestos at work
Control of Major Accident Hazards (COMAH) Regulations 2015	Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC
Control of Noise at Work Regulations 2005	Directive 2003/10/EC of 6 February 2003 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents
Control of Substances Hazardous to Health Regulations 2002	Council Directive 78/610/EEC of 29 June 1978 on the approximation of the laws, regulations and administrative provisions of the Member States on the protection of the health of workers exposed to vinyl chloride monomer Council Directive 89/677/EEC of 21 December 1989 amending for the eighth time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the member states relating to restrictions on the marketing and use of certain dangerous substances and preparations Council Directive 90/394/EEC of 28 June 1990 on the protection of workers from the risks related to exposure to carcinogens at work Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work  Directive 2000/54/EC of the European Parliament and of the Council of 18 September 2000 on the protection of workers from risks related to exposure to biological agents at work Commission Directive 91/322/EEC of 29 May 1991 on establishing indicative limit values by implementing Council Directive 80/1107/EEC on the protection of workers from the risks related to exposure to chemical, physical and biological agents at work
Control of Vibration at Work Regulations 2005	Directive 2002/44/EC of the European Parliament and of the Council of 25 June 2002 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (vibration)
Dangerous Substances and Explosive Atmospheres Regulations 2002	Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work  – measures relating to explosive atmospheres Directive 1999/92/EC of the European Parliament and of the Council of 16 December 1999 on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres
Electricity at Work Regulations 1989	Revoked and replaced a number of regulations from The Electricity Regulations 1908 to those made under the Mines and Quarries Act 1954
Employers’ Liability (Compulsory Insurance) Regulations 1998	Regulations under the Employers’ Liability (Compulsory Insurance) Act 1969
Health and Safety (Consultation with Employees) Regulations 1996	Articles 10-12 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work
Health and Safety (Display Screen Equipment) Regulations 1992	Council Directive 90/270/EEC of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment
Health and Safety (Safety Signs and Signals) Regulations 1996	Council Directive 92/58/EEC of 24 June 1992 on the minimum requirements for the provision of safety and/or health signs at work
Health and Safety (Training for Employment) Regulations 1990	Regulations under the Health and Safety at Work etc. Act 1974
Lifting Operations and Lifting Equipment Regulations 1998	Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work – provisions concerning lifting equipment
Management of Health and Safety at Work Regulations 1999	Revise 1992 Regulations implementing: Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work Council Directive 91/383/EEC of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed- duration employment relationship or a temporary employment relationship
Manual Handling Operations Regulations 1992	Council Directive 90/269/EEC of 29 May 1990 on the minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers
Personal Protective Equipment at Work Regulations 1992	Council Directive 89/656/EEC of 30 November 1989 on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace
Provision and Use of Work Equipment Regulations 1998	Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work
Regulatory Reform (Fire Safety) Order 2005	Replaced regulations made under the Fire Precautions Act 1971
Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 2013	Replaced older RIDDOR made under the Health and Safety at Work etc. Act 1974
Safety Representatives and Safety Committees Regulations 1977	Regulations under the Health and Safety at Work etc. Act 1974
Work at Height Regulations 2005	Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work – provisions for working at height
Working Time Regulations 1998	Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work
Workplace (Health, Safety and Welfare) Regulations 1992	Council Directive 89/654/EEC of 30 November 1989 concerning the minimum safety and health requirements for the workplace

An ardent Brexit campaigner might, of course, argue that this weight of EU-derived legislation has contributed to an ‘elf and safety gone mad’ culture in the UK and demonstrates the overbearing nature of EU interference in national law.

It depends upon your view of the importance of health and safety. As a law student I studied the long history behind the Robens Report 1972 and the Health and Safety at Work etc. Act 1974. The Parliamentary record shows a distinct lack of enthusiasm to enact legislation to protect workers (the first act to protect the welfare of workers was the Factory Act 1802 – only national disasters such as the Aberfan disaster (144 died) or Flixborough (28 died) gave momentum to reform).

More relevantly, I was a health and safety officer before switching to a career in law. As such, I introduced a formal risk assessment system at my place of work, driven by the introduction of risk assessment requirements under the Control of Substances Hazardous to Health Regulations 1988 (‘COSHH’) (made consistent with Council Directive 80/1107/EEC of 27 November 1980 on the protection of workers from the risks related to exposure to chemical, physical and biological agents at work).

Risk assessments are now the standard means to manage health and safety, and arguably the non-prescriptive nature of the Health and Safety at Work etc. Act 1974 needs this approach. However, the legislation to formalize this style of health and safety management comes from a group of Regulations which came into force on 1 January 1993 and which are derived from EU directives known as the Framework and Daughter directives – known as the ‘six pack’ of UK regulations on the management of health and safety at work, work equipment, DSE, manual handling, PPE, and health, safety and welfare in workplaces. Other important regulations requiring more specific types of risk assessment relate to noise, manual handling operations, personal protective equipment, display screen equipment, and vibration.

Campaigners against the Human Rights Act 1998 want to repeal the Act, possibly including withdrawing the UK from the European Convention of Human Rights and Fundamental Freedoms. Lord Bingham famously asked, “Which of these [human rights], I ask, would we wish to discard?”. I would similarly ask, which of these health and safety regulations would you wish to discard, merely because they are derived from EU legislation?

Unfair Parking Contracts

Many NHS and similar public authority car parks are now run by commercial parking companies. However, the terms and conditions of their parking and subsequent enforcement of them is, in my opinion, unfair and unenforceable.

Take, for example, the terms and conditions governing the pay-and-display parking at my local hospital, Queen Alexandra Hospital. These are displayed near the pay-and-display ticket machines (see picture above), or at regularly spaced intervals up lampposts in the pay-and-display parking areas (see picture right).

It is not obvious with whom a visitor to the hospital is contracting for car parking services. The display next to the ticket machine mentions 3 parties: Carillion, Portsmouth Hospitals NHS Trust and, right at the bottom with the least prominence, Parkshield. Parkshield also give themselves the official sounding trading name of PCP Parking Enforcement Agency, but do not be fooled. There is nothing official about this “Enforcement Agency”; it has no statutory powers of enforcement. It is merely Parkshield Collection Limited, a private limited company formed on 12 December 2011, being a service provider at the end of a contractual chain with Portsmouth Hospitals NHS Trust or the landowner of the parking spaces.

Parking without a parking ticket in Queen Alexandra Hospital is not an offence under the Road Traffic Regulation Act 1984 or Traffic Management Act 2004. The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 do not apply. However, Parkshield and many other private operators dress themselves up as being official. They will often use the same terminology as under these Acts and their regulations, particularly in the use of terms such as “penalty charge notice” and regarding an appeals process and their enforcement powers.

The Parkshield terms and conditions themselves are not exactly well written. It would be difficult to state that these were “expressed in plain, intelligible language”, but to the extent that this means there is any doubt, the interpretation most favourable to the visitor must prevail (see reg 7 of the Unfair Terms in Consumer Contracts Regulations 1999). The terms and conditions appear to be made up of the following:

• an obligation to pay and display a ticket purchased at the machine, at the scale of charges shown
• an obligation to pay £60.00 within 14 days if any of a set of terms and conditions are breached. These are listed under the heading “TERMS”:
  1. Failure to obtain/purchase & display face up a valid ticket for the correct period/tariff.
  2. No parking in excess of the time period paid for.
  3. No parking on hatched lines, in roadway or in reserved or permit only spaces.
  4. No parking in disabled parking spaces without displaying a current disabled badge.
  5. Failure to park within a lined bay.
  6. No staff parking.
• an obligation to pay a ‘standard charge’ of £100.00 reduced to £60.00 if payment is received within 14 days from date of issue, with additional unspecified card processing fees

I am particularly interested in the obligation to pay £100.00 (or the discounted £60.00). I believe that this obligation is either a straight forward penalty, and thus enforceable under English contract law, or is an unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs), and so not binding.

Penalty

It is settled law that a penalty is unenforceable under English contract law. So what is a penalty? If a provision is intended to deter a party from breaking a contract and is not a genuine attempt to provide compensation to the innocent party for breach, then it is more likely to be considered to be a penalty, following the most recent case law on penalties (Murray v Leisureplay PLC [2005] EWCA Civ 963). It is clear from Parkshield’s terms and conditions that the parking charge of £60 or the standard charge of £100 only applies if there is a breach (“contravening the terms and conditions stated”).

Imagine that you bought a parking ticket at the QA, but that it slipped off the dashboard, or that you were 5 minutes late getting back to your car. Would £60 (or £100, if you held out on receiving a penalty charge notice) be appropriate compensation for Parkshield where there had been no loss other than possible cost of issuing a penalty charge notice (ticket not displayed, but available for proof of payment) or £5.20 (maximum difference in time bands in scale of charges)? I would argue that that it would be excessive, and therefore a penalty.

Unfair Term

Even if Parkshield were able to claim that their charge of £60 or £100 was not a penalty, would the term be unfair under UTCCRs? Clearly no visitor can negotiate the terms of their parking; this is a take it or leave it deal. The visitor, or consumer, is therefore being required to agree to a “contractual term which has not been negotiated” which is certainly “to the detriment of the consumer” (reg 5(1) of the UTCCRs). As to whether this term would be unfair, perhaps the indicative and non-exhaustive list of terms which may be regarded as unfair at Schedule 2 to the UTCCRs can assist? “Terms which have the object or effect of- … (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;” – gotcha. Under UTCCRs, an unfair term is not binding on the consumer.

Enforcement

I don’t know how Parkshield goes about seeking to enforce its terms and conditions, but if they were to send me a parking charge notice, I’d be inclined to politely refuse their demands until they could show a legal basis for them. In the end, if they got as far as serving a statement of claim (issuing court proceedings), I’d apply for the case to be heard in the Small Claims Court (as way below the £10,000 threshold). In a Small Claims Court neither party is liable for the legal costs of the other, no matter who wins the case. At worst, I’d have to pay the £100 plus Parkshield court fee (about £35).

Note: This is my own take on Parkshield and similar parking companies’ terms and conditions, and is posted here for discussion only and not for anyone to rely upon as legal advice. In particular, I am no expert on Small Claims Courts and whether a defendant’s application to have a small claim transferred to that Court would always be successful.

There is more that could be analysed about this typical scenario. How is it that Parkshield can get registered keeper information from DVLA? Upon what legal basis is a registered keeper deemed to have entered into the contract to pay the excess £60 or £100?

Has the Guardian f****d up?*

Alan Rusbridger at Home Affairs Committee Hearing

* FedEx’d

At the Home Affairs Committee hearing yesterday (3 December 2013), the editor of the Guardian newspaper, Alan Rusbridger, was called as a witness for the Committee’s counter-terrorism evidence session. The Home Affairs Committee is a select committee of the House of Commons.

There will be much comment written about this part of the session. There are some key questions that can be raised. Was it appropriate to call Alan Rusbridger before the Committee? Did his evidence assist the Committee in any way with any aspect of an investigation into counter-terrorism? Where should the balance lie between the privacy of the citizen and mass surveillance by the State for counter-terrorism purposes? To what extent should the freedom of the press be curtailed in the interests of anti-terrorism and the security services?

Here, I am only going to address the key question raised directly or indirectly by the Committee member Michael Ellis MP, the barrister and Conservative MP for Northampton North. Did the Guardian breach FedEx UK terms and conditions by having information  leaked to them by Edward Snowden couriered to the New York Times?

Given that Mr Ellis saved this question to be his last to Alan Rusbridger, it is clear that Mr Ellis considers this is a question of fundamental importance.

FedEx UK Conditions of Carriage (effective 2 January 2013) include at Condition 4.4:

4.4 – The following items are not acceptable for carriage to any destination unless otherwise expressly agreed in writing in advance with the Carrier:
…
4.4.8 – PROPERTY THE CARRIAGE OF WHICH IS PROHIBITED BY ANY LAW, REGULATION OR STATUTE OF ANY COUNTRY FROM, TO OR THROUGH WHICH ANY SHIPMENT MAY BE CARRIED;
…

No other term appears to be relevant. It is difficult to imagine that any physical media that the Guardian may have used for the transmission of the leaked information would be subject to any specific prohibition from carriage. Whilst proving a negative is a tricky exercise, it is safe to assume that the media used was lawful for the purposes of carriage.
So how else might the carriage of the information be prohibited?

Perhaps, by purposive interpretation of section 5 of the Official Secrets Act 1989 (in particular section 5(6)), we can decide that sending information by courier that the sender had reasonable cause to believe has come into his possession in breach of section 1 of the Official Secrets Act 1911, is ‘carriage which is prohibited by law’ for the purposes of the FedEx UK condition.

So can the Guardian be considered to have reasonable cause to believe that the Snowden information was disclosed to it in breach of the section 1 provision? There are some obvious problems here. Firstly, any obtaining of the leaked information by Snowden was done by an American citizen in the United States of America. This must surely be outside of the extent of the Official Secrets Act 1911, as set out in section 10. On this basis alone, it can be argued that section 5(6) of the 1989 Act does not apply.

This leaves only the primary provisions of section 5 of the 1989 Act. In particular, has the Guardian made an unauthorised disclosure of information under section 5(2) of the 1989 Act? Although the Guardian is clearly not a civil servant or government contractor, it is possible to draw a chain of confidence from the UK source of any information, through Edward Snowden, to the Guardian under section 5(1) of the 1989 Act, so that section 5(2) applies. However, there is a defence to a section 5(2) offence at section 5(3). This, in short, would require the Guardian to prove that its disclosure was not damaging. In considering what is damaging, reference has to be made to the defence set out at section 2 of the 1989 Act, which includes, at section 2(2):

… a disclosure is damaging if—
(a) it damages the capability of, or of any part of, the armed forces of the Crown to carry out their tasks or leads to loss of life or injury to members of those forces or serious damage to the equipment or installations of those forces; or
(b) otherwise than as mentioned in paragraph (a) above, it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad; or
(c) it is of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects.

It would be interesting to see this argued before a jury. I suspect a verdict in favour of the Guardian would be returned, even if it would be perverse verdict similar to the not-guilty finding of the jury in the Clive Ponting case (R v Ponting [1985] Crim LR 318 – leak of documents by an MoD civil servant to an MP, which showed that the General Belgrano had been sighted by HMS Conqueror a day before officially reported, and was steaming away from the Royal Navy taskforce outside the Falkland Islands exclusion zone when it was attacked and sunk. It was a result of the failure of this prosecution that section 2 of the Official Secrets Act 1911 was repealed, with the Official Secrets Act 1989 replacing it.)

Lastly, there was a suggestion made during the session in which the Guardian editor was questioned that the Guardian could be under investigation under the Terrorism Act 2000, in particular section 58A of the 2000 Act:

58A Eliciting, publishing or communicating information about members of armed forces etc

(1) A person commits an offence who—

(a) elicits or attempts to elicit information about an individual who is or has been—

(i) a member of Her Majesty’s forces,

(ii) a member of any of the intelligence services, or

(iii) a constable,

which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or

(b) publishes or communicates any such information.

(2) It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action.

Again, it would be interesting to hear the Guardian’s defence of “reasonable excuse” argued before a jury.

However, in the absence of any conviction under the 1989 Act or 2000 Act, with the Guardian reasonably able to believe that it has a defence to any relevant charge, it is hard to see that it has breached the terms of carriage of FedEx. The claim that the Guardian had was clearly a desperate, cheap shot.

Medhi Hasan, the Daily Mail and the lack of Data Protection Act remedies

On the Friday, 3 October 2013 edition of the BBC programme “Question Time”, Mehdi Hasan (left), a journalist for the Huffington Post, criticised the Daily Mail (video here). Subsequently, the Daily Mail published details of an application letter Mehdi Hasan had written to the paper for a journalist position, suggesting that Mehdi had not always been so critical.

Was this publication in breach of the Data Protection Act 1998?

Firstly, if the Daily Mail had the personal information about Mehdi Hasan legitimately, then there is a journalism exemption under section 32 of the Act that would enable the paper to publish non-sensitive personal data for journalistic purposes.

The more interesting question is, “Was the personal data on Mehdi Hasan being processed (stored) by the Daily Mail legitimately prior to it having any journalistic purpose?” Note that the application letter was sent in July 2010, over 3 years ago.

On the facts in the public domain, the most likely answer to this question is, “No”.

The reason is that under the Data Protection Act 1998, personal data can only be retained by a data controller (data owner) for as long as it is required for a particular business purpose or purposes (see Data Protection Principles 2 and 5). Arguably, once a job applicant has been rejected, there is no further business purpose justifying retaining that applicant’s personal data. Claims arising out of discrimination or other employment-related claims as a result of unlawful handling of a person’s application for employment must be made within 6 months of the event giving rise to a claim. This is therefore the standard retention period for personal data concerning unsuccessful applicants. However, where an applicant has agreed upon request by the potential employer that his or her details can be retained on file for consideration for other positions, then clearly this 6 months period can be extended.

The 6 months retention rule is not laid down in any law or regulation. This is derived from the limitation period for bringing claims in the Employment Tribunal and the guidance on retention of applicants’ details set out in the Information Commissioner’s Employment Practices Code (see the ICO employment webpage for links). Where a data controller has a legitimate business purpose for retaining that information, then as well as communicating that purpose to the applicant, the applicant’s information data can be retained for as long as is necessary for that purpose. It is difficult, however, to see under what circumstances information about unsuccessful job applicants needs to be retained for over 3 years by a prospective employer.

However, the real issue here is that even if the publication of details of Mehdi Hasan’s application letter were in breach of the Data Protection Act 1998, Mehdi would have no effective remedy under the Data Protection Act 1998, unless he suffered actual loss or damage, in which case he could sue for these losses or damages, together with damages for distress (as the breach arguably involved a breach of the journalism ‘special purpose’ provisions). It is unlikely that Mehdi suffered any loss or damage, but merely embarrassment.

Corrie and Bankruptcy Law

In this latest episode of a Corrie widower’s law blog, I’m going to say a little about bankruptcy law.

This week everyone’s favourite hard man builder, Owen Armstrong, has been doing some debt collecting. He called on the wife of a customer, Valerie Phelan, at her nail bar. He had apparently done some work at the premises when it was the husband’s travel agents’ shop. The nail bar owner had great pleasure in fobbing off our Owen, but he was not to be deterred.

In the next scene in this story line, he doorstepped Pat Phelan at his luxurious house, demanding payment for his £4k of invoices. The answer he got was a simple “Sorry mate, I’ve been declared bankrupt. I wish I could pay but I’ve got nothing.” It transpired that the nail bar premises and the obviously large house are all in the wife’s name.

So on the back of this episode, it seems the easiest way to run a small business is to run up a load of business debts, transfer every asset into a spouse’s name and go bankrupt. Easy.

Whilst we are obviously being led to expect some, shall we say, unconventional debt recovery techniques from Owen, the boring lawyer’s approach is to question the transfers of assets into the spouse’s name. It should come as no surprise that the law has cottoned on to that basic trick (see the cross heading Wrongdoing by the bankrupt before and after bankruptcy in the Insolvency Act 1986, Part IX, Chap VI), so a simple way to start getting redress might be to contact the Official Receiver (named on the bankruptcy order being flourished by Pat Phelan in Owen’s face), who has a statutory duty to investigate the affairs of the bankrupt. If Owen didn’t catch who the Official Receiver is on the order, he can always contract the Manchester Official Receiver’s office.

Not that I think Owen will – that wouldn’t make for an interesting story line, would it?

PS

As a contract lawyer, I’d point out that if you are in a small business, include a so-called Romalpa clause in your terms and conditions, so that you can get back anything you have sold prior to full payment (see this old post on Romalpa). As a law student, I advised a friend of a friend who supplied stadium speaker systems, who had a Romalpa clause, to get immediately into his truck and recover his equipment from a venue, as he’d been tipped off that his defaulting customer was about to go into involuntary liquidation. If he hadn’t done so, he would have risked become an unsecured creditor, eventually getting back a fraction of what he was owed, instead of recovering his expensive speakers.