EU (Withdrawal) Bill 2017-2019 (Days 1 & 2)

UPDATE : UK Government fact sheets are here.

The European Union (Withdrawal) Bill (EUW Bill – UK law) will repeal the instrument that puts EU law into UK domestic law (the UK European Communities Act 1972) and create a new class of UK domestic law termed ‘retained EU law‘.

Subscribers to Cardinal Environment EHS Legislation Registers and Law Checklists will see this new category appear in their Registers. First, the Brexit Law will be corralled into a single area accessed on the top right (Environment, and Occupational Health & Safety).

The EUW Bill is at the House of Commons Committee stage, an important stage when amendments are considered.

Day 1 of the considerations was yesterday. This considered amendments to Clause 1 and Clause 6 of the Bill.

Day 2 is today. This will consider Clauses 2, 3 and 4 (the EU retained law itself).

Clause 1 repeals the 1972 European Communities Act. No changes were agreed.

Clause 6 addresses the role of the Court of Justice of the European Union (often referred to as the European Court of Justice) after exit day. No changes were agreed.

UPDATE : Clauses 2, 3 and 4. No changes were agreed, Clause 4 was agreed.

Clause 6 (Interpretation of retained EU law) says :

6 Interpretation of retained EU law

A court or tribunal—

(a)  is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and

(b) cannot refer any matter to the European Court on or after exit day.

A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.

Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it –

(a) in accordance with any retained case law and any retained general principles of EU law, and

(b) having regard (among other things) to the limits, immediately before exit day, of EU competences.

But—

(a) Supreme Court is not bound by any retained EU case law,

(b)  the High Court of Justiciary is not bound by any retained EU case law

Etc

CJEU ruling on worker rest periods (EU)

On the 9th November (today), the Court of Justice of the European Union (CJEU) has ruled on the REQUEST for a preliminary ruling submitted by the Portuguese Tribunal da Relação do Porto (Court of Appeal, Oporto) on whether the minimum uninterrupted weekly rest period of 24 hours to which a worker is entitled (in the European Working Time Directive) must be provided no later than the day following a period of six consecutive working days.

The European Directive on the organisation of working time (Directive 2003/88/EC as amended) provides that every worker is entitled, per each seven-day period, to a minimum uninterrupted rest period of 24 hours plus 11 hours’ daily rest. An earlier Directive 93/104/EC is also relevant, and the request raised the matter of the effect of the Charter of Fundamental Rights of the European Union, which had been dealt with by the earlier June Opinion of the Advocate General. 

By today’s judgment, the Court finds that EU law does not require the minimum uninterrupted weekly rest period to be provided no later than the day following a period of six consecutive working days, but requires it to be provided within each seven-day period. See the list of documents here

The earlier June 2017 Advocate General Opinion had found – Article 5 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, Article 5 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time and Article 31 of the Charter of Fundamental Rights of the European Union must be interpreted not as requiring the weekly rest period to be granted at the latest on the seventh day following six consecutive working days, but as requiring such a period to be granted within each seven-day period.

The Opinion is here

CJEU ruling on breastfeeding mothers risk assessment (EU)

On 19th October the Court of Justice of the European Union (CJEU) ruled on a REQUEST for a preliminary ruling under European Union treaty law made by the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia, Spain).

This REQUEST asked for clarification on the matter of the employer’s risk assessment of breast feeding mothers in the workplace.

The court found :

(1) The European Equal Opportunites & Equal Treatment Directive 2006/54/EC must be interpreted as applying to a situation (such as that at issue in the main Spanish court proceedings), in which a breastfeeding worker challenges, before a court or other competent authority of the Member State concerned, the risk assessment of her work – in so far as she claims that the assessment was not conducted in accordance with Europan Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.

(2) On a proper construction of European Directive 2006/54 (in a situation such as that at issue in the Spanish court proceedings), it is for the worker in question to provide evidence capable of suggesting that the risk assessment of her work had not been conducted in accordance with the requirements of Article 4(1) of Directive 92/85 and from which it can therefore be presumed that there was direct discrimination on grounds of sex within the meaning of Directive 2006/54 (in the case). It would then be for the defendant to prove that that risk assessment had been conducted in accordance with the requirements of that provision (risk assessment of breast feeding mothers) and that there had, therefore, been no breach of the principle of non-discrimination.

The CJEU judgment is here

The UK HSE guidance is as yet unchanged. The UK HSE guidance states a specific risk assessment is not required when an employer is notified a worker is a new or expectant mother. This guidance is here.

NB: ACAS is finalising new guidance on preventing pregnancy and maternity discrimination at work. UPDATE : this guidance is here.

The Cardinal Environment EHS Legislation UK websystems contain Law, ACOPs, HSGs and some other health and safety relevant guidance. They do not contain ACAS documents, please refer to legal specialists in Employment Law for further guidance.

High Rise Tower Fire Checks (UK)

Update 29th August : Independent fire specialists order different fire tests – reported in Inside Housing here

Update 6th July : new fire tests are ordered on cladding. So far, tests have covered only the plastic “core” on panels similar to those used on Grenfell Tower (and all but one fire test was a failure – 190 out of 191 samples). The new process will subject a demonstration wall to a “severe fire in a flat breaking out of a window” and aim to establish whether it will then spread up the outside wall. It will also assess how different types of aluminium composite material (ACM) panels behave with different types of insulation in a fire, the Department for Communities and Local Government (DCLG) said.

Update 22nd June : DCLG letter is issued to local authorities and housing authorities of immediate safety tests to be undertaken should the cladding material fail Fire tests – this letter is here

Update 16th June : a public inquiry is announced amid calls for an inquest to be held into the deaths. Scotland Yard will also conduct a criminal investigation. 

A devastating fire started last night in a high rise tower block in Kensington, West London – many of you will be watching the news reels that are covering this.

Nick Hurd, appointed yesterday as Police and Fire Minister, has announced immediate fire safety checks of similar high rise blocks. The scope of these checks is not presently clear. The instruction appears to be to Local Authorities. 

Part B of the Building Regulations 2010 (fire safety) is in the spotlight and has been with the government for review since 2016, following a devasting fire in another tower bloc in 2009 and that coroner’s report issued in 2013. The current Part B documents are here

Please remember that employers’ obligations vis a vis Fire Safety are consolidated by the Fire Safety Order (the Regulatory Reform (Fire Safety) Order 2005), and its equivalent in Scotland and Northern Ireland, these are in EHS Legislation Register systems, in the various Fire Safety Registers. The Building Regulations are found in ENV Energy. I will add the Part B documents to the OHS Fire Registers for completeness.

The Building Regulations are in the spotlight because of eye witness observations of the fast speed of fire spread. 

Concerns over external cladding were raised in the UK as early as 1999, here

This post will be updated, as and when further regulatory information is available. 

Forklift Truck Fatality (Britain)

A worker was killed on his first day of work, when the forklift truck he was driving overturned, crushing him.

Britain’s Health and Safety Executive (HSE) press release is here.

The court was told that the deceased was not wearing a seatbelt and there was no company policy in place to ensure seatbelts were worn.

HSE’s investigation also found that the forklift trucks in use at the company were not suitable for operation on uneven surfaces or over loose material such as that found on the site. Alternative vehicles, such as four-wheel-drive, all terrain shovel loaders, could have been used and were already in use elsewhere on the site. Since the incident, the company now uses these vehicles to move all the material on the site and it is now company policy for seatbelts to be worn at all times in all vehicles.

Recresco Ltd, of Lane End, Urban Road, Kirkby-in-Ashfield, Nottingham, was fined £180,000 and ordered to pay £38,693 in prosecution costs after pleading guilty to a breach of the Health and Safety at Work etc Act 1974 on 17 December 2014.

Speaking after the hearing, HSE Inspector Martin Paren said:

“Ian was just a few hours into his first day at work for Recresco Ltd when this tragic incident occurred. Our investigation revealed a series of failures at the plant, with forklift trucks being used in an area that was completely unsuitable because of the uneven surface created by waste material scattered around the floor. There was also no policy in place for the use of seatbelts.

Sadly it was entirely foreseeable that someone was at risk of being badly injured or killed. If the company had taken some simple measures to reduce the risks, such as using the all-terrain vehicles in use elsewhere on the site, then Ian’s tragic death could have been avoided.”

Port Operator Crew Fatalities (UK – Scotland)

23 September 2014: in the Edinburgh High Court, Clydeport Operations Limited, owned by Peel Ports Limited, admitted breaches of the Health and Safety at Work Act 1974, that had resulted in the death of three tug boat crew members.

The company accepted that between 29 December 2000 and 19 December 2007 there had been a systemic failure in risk assessments and safe systems of work. The company was fined £650,000.

The tug operator Svitzer Marine Limited had previously admitted to proximate cause of the deaths.

The Maritime and Coastguard Agency (MCA) took over the maritime element of the investigation from Strathclyde Police, once it was determined that the deaths were not suspicious. However, the investigation remained under the control of the Crown Office and Procurator Fiscal Service. The MCA found that there were also shortcomings in the application of the Port Marine Safety code in that neither the company secretary, nor the operations/human resources director, received training to adequately fulfil their role as the designated person with responsibility to ensure health and safety.

Sentencing at the High Court in Edinburgh on 29 September the judge, Lord Kinclaven, said:

The charges are severally and jointly very serious and extended for a long period of time, from 2000 to 2007.

Captain Jeremy Smart, Head of Enforcement at the MCA, said:

This was a tragic event and the MCA would like to express its sincere condolences to the families involved, who have endured a very difficult number of years. The investigation highlighted some very serious shortcomings in Clydeport Operations Limited’s safety management.

The MCA Press Release is here.

Vibration Causes Nerve Damage (Britain)

A Nottinghamshire aerospace engineering company has been ordered to pay more than £190,000 in fines and costs for failing to protect its employees from the effects of vibration, after 24 workers were diagnosed with debilitating nerve conditions.

Nottingham Crown Court heard that although HSE was notified of an employee being diagnosed with HAVS in 2010, the issue dated back to 2005 when the company’s health and safety committee asked it to carry out a suitable risk assessment for exposure to vibration, and act on the result. An assessment of the company’s tools took place in 2006 which identified some, including drills, grinders and hammers, posed a high risk from exposure to vibration. However, they were not taken out of service and no controls were put on their use until 2010. In addition, some employees used their own tools, which were also not assessed and therefore no controls put in place. HSE found that although the company provided some health surveillance for employees, it was not sufficient to identify symptoms early and refer individuals to occupational health specialists for timely diagnosis and management.

The symptoms of HAVS syndrome include blanching and numbness in the fingers, especially in the cold, as well as pins and needles, which can be extremely painful. This is due to damage to the small blood vessels and nerves supplying the hands. Sufferers can have difficulty picking up small objects and performing tasks such as doing up buttons. As sufferers cannot be exposed to cold without pain it can restrict some work and hobbies such as fishing, cycling or gardening.

Sufferers of carpal tunnel syndrome also experience pain and pins and needles, especially at night, and a reduction in grip. An operation is normally needed to release the nerve, although this is less successful if they have been exposed to vibration.

Speaking after the hearing, HSE Inspector Dawn Smith said:

“SPS Aerostructures Ltd was, from 2005, regularly being made aware that employees were suffering from vibration-related symptoms. They were being supplied with this information directly from staff and from their Occupational Health Nurse. However, they chose to ignore this information and allowed employees to work unrestricted with high risk tools, or their own tools.”

“The company was slow to implement improvements even after HSE’s involvement and had to be issued with an Improvement Notice in 2011 to ensure compliance.”

“Adequate assessment of the risk from vibration, provision of tools with lower vibration levels, and a good system of work would have ensured workers were not over-exposed to vibration. A better health surveillance system would also have identified problems earlier, and symptoms could have been managed to prevent them getting worse.”

Prosecution was for breach of Section 2(1) of the Health and Safety at Work etc Act 1974, which states: “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

The HSE press release is here.