Fit notes, reasonable  adjustments and return to  work arrangements

The recent Employment Appeal  Tribunal (“EAT”) decision in the case  of Secretary of State for Work &  Pensions (Jobcentre Plus) v Higgins  (17 June 2013, judgement handed  down on 25 October 2013) provides  us with useful guidance on the limits  to which employers must consider  allowing employees to return to work  on a phased basis following absence  caused by long term illness or  serious injury. The case in question  relates to an employee who had  been absent for over a year due to  long term illness but who reached  the point of being able to return to  work, albeit on reduced hours. His  request was supported by a fit note  from his GP which stated that the  employee may benefit from working  reduced hours for a period of three  months. The EAT was asked to  consider whether it was reasonable  for his employer to limit the period of  reduced hours to three months or if  this should have been left as an open  ended arrangement.

The EAT’s decision brings a degree  of certainty for employers, in that it  endorsed the approach taken by  Jobcentre Plus in limiting the agreed  period of reduced hours to three  months, signalling that there is a limit  to the extent to which it is reasonably  practicable for employers to offer  adjusted working arrangements for  returning employees, as part of their  obligations under the Health and  Safety at Work etc Act 1974  (“HSWA”) (and also the Equality Act  2010 in the event that the employee  is disabled). 

However, there is an important  caveat to this decision, which  employers must not ignore. The  EAT’s view was that setting a fixed  period for a phased return does not,  in itself, affect the employee’s ability  to return to work because, if, at the  end of that fixed period, the  employee is still unable to return to  their usual hours of work, the  employer remains under a duty to  consider if it would be reasonable for  the adjusted hours to continue. The  employer must then return to the  question of what is reasonable in the  particular circumstances and if there  is any further action that it can  reasonably be expected to take to  accommodate the returning  employee. For instance, it may be  more appropriate at this time to  consider alternative means of  support such as changes to the job  role, provision of occupational health  support or specific work equipment,  rather than simply prolonging a  period of reduced hours. 

Importantly, in this case, the initial  three month period was supported  by a GP’s fit note and reflected the  period set out in the employer’s  attendance management policy.  Fatally for Mr Higgins he refused to  return to work without explicit  agreement from his employer that  arrangements would be reviewed  after three months if necessary. It is  this explicit agreement that the EAT  has ruled to be unnecessary and  unreasonable.  This case demonstrates to  employers that, provided there is a  suitable absence policy in place,  which allows discretion to consider  each individual employee’s  circumstances, it is reasonable to  instigate a limit on the phased return  to work process. However, this is by  no means a “one size fits all” solution  and as with all questions of  reasonable practicability  the  employer must consider the specific  circumstances it is faced with and be  prepared to react to changes in  those circumstances. In this case,  that meant taking due account of the  views of the employee, supporting  medical opinion and the overall  impact on the work, before reaching  a final decision. 

HSE elect to prosecute  individual but not his  employer

The HSE has successfully  prosecuted an individual under  section 7 of the Health and Safety at  Work etc Act 1974 following a fatal  incident in which the deceased was  pulled under the wheels of a tracked  loader. The case is particularly  noteworthy because HSE took the  very unusual approach of  prosecuting the individual worker  (who was not a senior manager or  director) but did not prosecute his  employer or any other organisation,  in relation to this incident. Following  the case the HSE commented that it  felt the individual, Mr Kenneth Miller,  had “totally failed to take the care  that was necessary when operating  a large vehicle”. Conversely, his  employer, Waste Recycling Group  was not found to have committed  any breaches of health and safety  law which would be sufficient to  justify a prosecution. 

Mr Miller was convicted for failing in  his duty to protect the health and  safety of himself and others whilst at  work and he received a 24 week  prison sentence, suspended for two  years. He was also tagged for three  months, with an overnight home  curfew and ordered to pay  prosecution costs of £600. This  sentence highlights a growing trend  of individuals convicted of safety  offences receiving immediate or  suspended custodial sentences.  The imposition of the curfew also  suggests that the court recognises  that a suspended sentence alone  may not be sufficient penalty to  reflect the seriousness of the crime  committed so additional sanctions  are being considered to increase the  impact of the sentence on the  convicted defendant. Although this is  a very unusual sentence in health  and safety cases, the use of  electronic tagging and curfews does  fall within the range of sanctions that  can be imposed for any offences  which could attract a custodial  sentence. Where the court has the  power to impose an immediate  prison sentence it has the option of  suspending the custodial sentence  for a specified period or imposing a  community order, which could  include unpaid work, adherence to a  curfew or completing a skills or  behavioural change programme. This case is a signal that HSE will not  shy away from prosecuting individual  workers who fail to comply with their  health and safety responsibilities,  even where the individual is not a  senior decision maker within an  organisation. If convicted, individuals  can expect to receive tough penalties  as the courts will not disregard safety  offences as trivial or in any way  different to other crimes which they  deal with. The case also highlights  how it is possible for organisations  who do have robust and properly  implemented health and safety  policies and procedures in place to  avoid criminal liability if one of their  employees disregards these  procedures and causes an accident.

General case law update

A number of recent cases  demonstrate how the Court’s  approach to health and safety  prosecutions can adapt depending on  the circumstances of the defendant.

Princes Sporting Club

Princes Sporting Club has become the  fifth company to be convicted under  the Corporate Manslaughter and  Corporate Homicide Act 2007 following  the death of an 11 year old girl who  was killed after she fell from an  inflatable banana boat ride and was hit  by the boat which had been towing the  inflatable.  The company did not have  emergency procedures in place and  there was no competent adult in the  rowing boat acting as an observer.  

The company pleaded guilty to a  charge of corporate manslaughter  and was fined £134,580. This falls  significantly short of the £500,000  minimum fine suggested by the  sentencing guidelines for corporate  manslaughter.  However, the  company is no longer trading, and  the Judge stated that “I propose to  fine the company every penny that it  has.  I have no greater power to do  anything other than impose a fine  and I cannot impose a greater fine  than all of its assets”.  Although the  fine appears modest on first glance it  is clear that the Court intended and  very much wanted to impose the  toughest penalty possible, which  should act as a warning to others.

Luton Airport

The operator of Luton Airport and a  design subcontractor have been  ordered to pay fines and costs  totalling £372,595 following the  death of an elderly woman at a  pedestrian crossing at the airport.   The woman was using a pedestrian  crossing between a terminal building  and a passenger drop off zone when  she was hit by a delivery vehicle.   The crossing was on private land  leased by the airport’s operator and  had been designed by a  subcontractor.  The HSE  investigation found that the crossing  was poorly positioned, and did not  match the standards expected on  public roads.

Following a trial, the airport’s  operator was found guilty of health  and safety offences and fined  £75,000 and ordered to pay  prosecution costs of £197,595.  The  contractor was fined £70,000 with  costs of £30,000.  The driver of the  delivery vehicle had previously been  acquitted on a charge of dangerous  driving.  

]The airport was ordered to pay  prosecution costs of more than 2.5  times the amount of the fine  imposed. The trial lasted six weeks,  which was no doubt a key factor in  the high level of costs.  Both  defendants will also have been  obliged to pay their own legal costs  in addition to those of the  prosecution, which highlights the  financial risks of trying to defend a  health and safety prosecution.   Increasingly courts offer very little  leniency in payment of prosecution  costs and guilty defendants are  required to pay in full, even where the  amount is considerably more than  the fine.

UK Coal 

The Court adopted a different  approach to prosecution costs in  two recent prosecutions of the  former UK Coal Mining company,  now in administration.  

The first prosecution followed the  death of a miner in 2011.  The miner  was trapped by 15 tonnes of rock  which fell while a powered roof  support was being operated,  resulting in his death by asphyxiation.   A second miner was trapped  towards the edge of the collapse but  was released and allowed home after  hospital treatment.  A similar roof fall  in the same area with the same  powered roof in operation had  occurred six days previously.

The administrators of UK Coal  entered a plea of guilty to a breach of  section 2(1) of the Health and Safety  at Work etc. Act 1974 and fined  £200,000.  However, unusually no  prosecution costs were awarded due  to the poor financial standing of the  defendant.

The second prosecution related to a  methane explosion in a deep mine  caused by a build-up of flammable  gases.  Over 200 miners were safely  evacuated from the area, but had the  incident been even 20 minutes earlier  10 miners would have been in the  area of the explosion.  UK Coal  pleaded guilty to a breach of section  2(1) of the Health and Safety at Work  etc. Act 1974 and was fined £50,000  but again, no prosecution costs were  awarded.  

UK Coal now has very limited assets,  and in both cases, it was agreed that  prosecution costs would not be  awarded so as not to jeopardise  potential future payments to the  Miners’ Pensioners’ coal allowance  scheme, one of the company’s main  creditors. 

These cases illustrate both the  discretion of the Court, and the  limitations of its sentencing powers.   In the Princes Sporting Club case the  Judge was constrained in the  amount of fine he could impose  because of the financial state of the  company, and it is clear that he  would have imposed a higher fine  had he been able to.  In the UK Coal  cases the company may have had  the ability to pay the costs of the  prosecution, but in the  circumstances the Court exercised  its discretion in an attempt to assist  the company’s vulnerable creditors.   This is a very unusual step and is  likely only to arise in exceptional  circumstances.  These cases  contrast with the Luton Airport case,  where the financial circumstances of  the company allowed the Court to  impose a significant costs order and  this, in our view, is the more usual  approach for the court to take unless  there are exceptional reasons not to.

Health and safety statistics

The Health and Safety Executive  (“HSE”) has released its latest set of  statistics which give an indication of  the impact of work related illness and  injury.  According to the figures, 27  million working days were lost overall  in 2011/12 (the most recent figures  available), with 22.7 million of these  the result of work related ill health  and 4.3 million due to workplace  injury.  

Fatalities

In 2012/13 148 workers were fatally  injured, which represents a fatal  injury rate of 0.5 per 100,000  workers.  These figures have levelled  off over the past 5 years, with no  overall trend.  Given the relatively low  levels of activity in many areas of the  economy, workplace fatalities might  have been expected to decrease.   As the economic recovery  progresses and activity increases,  particularly in high risk sectors such  as construction, this figure may start  to rise and it is important that  duty-holders ensure proper safety  precautions are in place to guard  against becoming part of these  statistics.  Where workplace fatalities  do occur, companies should be  aware that the number of cases  being opened by the CPS under the  Corporate Manslaughter and  Corporate Homicide Act 2007 is  increasing every year, with 63 cases  opened in 2012 compared to just 7  in 2009.

Workplace injuries and work  related stress

By contrast with the figures for  fatalities, the figures for workplace  injuries show a strong declining  trend, with 78,222 non-fatal injuries  reported under RIDDOR in 2012/13.   This works out as a rate of 311.6 per  100,000 employees.  Although this  decline can be explained in part by a  change in the legal reporting  requirement from over 3 days  incapacitation to over 7 days,  analysis of the figures indicates that  this does not account for all of the  decline.  The most frequent causes  of injury continue to be manual  handling, slips, trips and falls from  height with the highest rates of injury  in manual occupations, in the  agricultural, construction and  transport sectors with higher rates  for less experienced workers and for  men rather than women.

By contrast, the figures for work  related stress show that the highest  rates are in managerial and  professional occupations, and in the  public administration, health, social  care and education sectors with  higher rates for middle aged workers  and for women rather than men.  It is  estimated that 10.4 million working  days were lost in the past year to  work related stress, with 221,000  new cases in 2011/12 and 207,000  pre-existing cases.  This shows that  it is not just the more obvious  physical injuries which can create  additional costs for businesses.

The contrasting risk profiles for  workplace injuries and work related  stress underline the importance of  businesses taking steps to assess  and address the risks particular to  their business.  For example, an office  manager may be at minimal risk of a  fall from height, but if any issues of  occupational stress are not dealt with  this could result in time off work and  a consequent loss to the business.

Enforcement

A total of 706 prosecutions were  brought under health and safety  legislation across the UK in 2012/13,  resulting in 672 convictions for at  least one offence, giving a conviction  rate of 95% and total fines of £15  million.

In addition to the cost to businesses  of any fines imposed, HSE is now  able to recover certain pre  prosecution costs following the  introduction of HSE’s Fee for  Intervention scheme.  This allows an  HSE inspector who identifies a  “material breach” of the law in the  course of carrying out a health and  safety inspection to impose a fee  based on the amount of time they  have spent identifying the breach,  providing advice on remedying the  breach, investigation and any  enforcement action (up to the point  of prosecution).

A recent freedom of information  request has revealed that fees of  more than £5.5 million have been  collected under the scheme since  October 2012.  The highest fees  were collected from the  manufacturing sector at 38%, closely  followed by construction at 36%,  with the lowest fees from the water  and waste management sectors at  3% and agriculture at 2%.  The high  receipts from the construction sector  is perhaps unsurprising given that  this sector has one of the highest  rates of workplace injury.  However,  what is more notable is the low level  of receipts from the agricultural  sector, which also has one of the  highest rates of workplace injury.   This is likely to reflect the more active  inspection regime on construction  sites.

The HSE has budgeted to receive  £17 million in FFI revenue in 2013/14  but based on the current figures it  looks likely there will be a significant  end of year shortfall.  Judith Hackett,  chair of the HSE, has made it clear  that the budgeted revenue is not to  be viewed as a target but rather a  projection.  However, the likely  shortfall, when considered with the  34% cut in HSE’s grant aid means  that businesses may experience a  more proactive inspection regime in  the months ahead.  As ever, the  message is to look at ways to reduce  risk and ensure health, safety and  welfare at work before an incident  occurs so that even if an inspector  does call, they will not find any cause  for concern.