France Telecom: lessons for UK employers following 'institutional harassment' ruling
Out-Law Analysis | 28 Feb 2018 | 12:56 pm | 6 min. read
In some cases, manufacturers can prepare for spikes in production due to the nature of their business – manufacturers of chocolate eggs can, for example, expect to see demand for their products surge in the lead up to Easter. These organisations can take account of and embed the safety issues that this may create as part of operational planning.
In other cases, demand might rise at short notice, for example due to the latest consumer trends or as a result of manufacturers winning new contracts with retailers. In this scenario it is vital that there is a point in the process where safety considerations are inserted into the plans and risk assessments updated accordingly.
Either way, as manufacturers focus on satisfying orders and driving up productivity, they must be aware of the health and safety risks that spikes and production can raise.
Death or injury could result where manufacturers fail to manage health and safety risks appropriately, with associated prosecutions for those responsible.
Pinsent Masons, the law firm behind Out-Law.com, will be attending the Health and Safety exhibition and conference hosted by the British Safety Council on 10-12 April 2018 in Birmingham. Pinsent Masons partner, Sean Elson, will be chairing a panel discussion on the challenges in modern manufacturing.
Manufacturers often move quickly to add to their workforce to cope with major spikes in production. This can create a number of health and safety issues that they need to manage.
In some industries, it is common for the workforce to be made up of people of different nationalities where English is not their first language. From a health and safety perspective, this needs to be planned for. Manufacturers cannot afford to look only to the production imperatives.
A central challenge is integrating new workers, often recruited through agencies, into the production line quickly whilst ensuring they have had the appropriate induction and training. These processes must be robust rather than superficial and perfunctory and must take account of language and cultural behaviours. For example, the application and use of machinery guarding is not universal – the UK regulator, the Health and Safety Executive (HSE), has a very strict attitude towards the use and/or disablement of machinery guarding.
In our experience, businesses often fail to properly document training and induction procedures. This can cause them a problem when incidents occur and regulators and enforcement agencies ask them to demonstrate what action they have taken to mitigate risk.
Language can be an issue with training. In some cases, manufacturers should consider whether it is practical or worthwhile to issue training materials in another language to English where there is a sufficiently large enough group of workers that speak that language to merit doing so. Wider issues of literacy also need to be considered, including for English speakers in the workforce.
Some businesses have developed innovative ways of addressing health and safety risks in this regard. Pictograms or animations are increasingly being used to highlight risks and best practice behaviours in the construction sector in particular. In some cases, employers have used animations to demonstrate scenarios that have occurred as a means of notifying employees of the behaviours necessary to avoid a recurrence of those incidents.
In some businesses, training supervisors may be able to act as an unofficial interpreter and relay health and safety information where they also speak the language of the workforce. However, this will not be a complete solution given that those supervisors may come and go, may resent acting as interpreter, and may not be very good at it – in this respect it will be difficult for manufacturers to properly satisfy itself that the actions required have actually taken place or messages communicated properly. It also does not resolve what should have when those supervisors are off ill or on holiday.
Manufacturers should establish strong links with the recruitment and employment agencies they use so that they can make sure they are supplied with labour that meets their expectations. In this respect, it is important to supply the agencies with an accurate job specification, otherwise manufacturers will be at the mercy of what the agencies consider competent.
Manufacturers must also be aware of their obligations under the UK’s law on modern slavery. The decent treatment and welfare of employees is linked to measures businesses need to have in place in respect of health and safety law.
There are also a number of physical factors that duty holders must take into account to account for spikes in production.
Space may become more congested where extra workers are hired to help meet the extra demand. Proper planning is required to ensure that people can work safely alongside any machinery in operation. In this context, the management of fork lift movements or lorries within delivery areas is a particular issue. Manufacturers should consider whether it is possible to segregate these areas.
Increased productivity can also have implications for the storage of finished products or raw materials, and present risks to health and safety. For example, insecure and inadequate racking can be unstable and prone to collapse – there have been a number of cases where health and safety breaches have been enforced against businesses for failures of this nature.
Manufacturers should also make sure goods and supplies are stored in appropriate places and do not block pedestrian routes.
In a pressurised environment at times of peak production, it is also important that manufacturers move to address risks presented by the use of machinery. It would be tempting for production increases to result in operatives not shutting down machines for maintenance and trying to clear blockages, or solve problems, by not following the correct procedures. It is vital that manufacturers understand that they are responsible for ensuring that workers follow the correct protocols in relation to the way machinery is operated. Machinery that is obsolete or which has not been adequately serviced or maintained should also be taken out of use.
Consequences of getting things wrong
Gone are the days when a slap on the wrist is the worst employers might expect for being found in breach of health and safety laws.
There are warnings from case law of the consequences for businesses of getting things wrong.
In 2015, Huntley Mount Engineering Ltd was fined £150,000 after admitting corporate manslaughter following the death of an apprentice in 2013.
Cameron Minshull died after being dragged into a revolving machine while performing manual 'de-burring' using emery paper on a steel cutting lathe. His overalls, which were too big for him, caught got in the machine. The interlock had been defeated and the spinning chuck was unguarded.
The owner of Huntley Mount Engineering, Zaffar Hussain, was served with an eight month jail sentence and banned from being a company director for 10 years after admitting to a breach of health and safety laws.
Supervisor at the company, Akbar Hussain, Zaffar's son, was given a four months suspended sentence, ordered to complete 200 hours of community service and fined £3,000. Both men and the company were each also told to pay £15,000 in court costs.
Minshull had been placed at Huntley Mount Engineering Limited by recruitment agency Lime People Training Solutions (LPTS) under a government-funded apprenticeship scheme. LPTS was also found to have breached health and safety laws and was fined £75,000 and ordered to pay a further £25,000 in court costs.
The Crown Prosecution Service said: "If Lime People Training Solutions Ltd. had complied with health and safety requirements, they would have realised that the company was a wholly unsuitable placement for any apprentice, let alone a boy of 16 years, operating a system of work that was grossly unsafe."
The judge ruling on the case at Manchester Crown Court said that they "did not accept the evidence" of LPTS assessor Mark Swales who had claimed that he "told the Hussains that Cameron was not to work with any machinery until he was 18".
The judge said LPTS "placed Cameron in a working environment the dangers of which would have been obvious had they taken time to check".
Sean Elson is a specialist in health and safety law at Pinsent Masons, the law firm behind Out-Law.com. Pinsent Masons will be attending the Health and Safety exhibition and conference hosted by the British Safety Council on 10-12 April 2018 in Birmingham, where partner Sean Elson will be chairing a panel discussion on the challenges in modern manufacturing.
France Telecom: lessons for UK employers following 'institutional harassment' ruling