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.
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.
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.
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.
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.