The Significance of the Statutory Duties, Proposing Civil Action - Assignment Example

Health and Safety Name Class Unit 1. Identify, and explain the significance of, the statutory duties that apply to the situation described (25) Under the law, the employer is expected to take responsibility for the employee health and safety management (Hughes and Ferrett 2011, 9). The employer is expected to do what is reasonably practical to protect employee health and safety welfare. In this situation, the employer was supposed to make sure that the worker was protected from any harm while performing her work duties. This is through effectively working to control risks and injury which may occur at the workplace. In this case, Mrs Erica Preston duty is visiting the service users. This is a work duty that the employer was expected to ensure the employee was secure and her health was catered for (HSE, 2016). According to the case, the housing estate she was visiting is situated in a socially deprived area. This work duty placed Mrs Preston in danger since the chances of crime were high. Another statutory duty that appears in this situation is Mrs Preston health. At the time of the incidence, Mrs Preston was 23 weeks pregnant. This meant that she was more venerable to attacks which could have affected her health. Under the health and security laws, the employer is expected to assess the risks that can occur in the workplace. Risk assessment by the employer would have prevented Mrs Preston from vising an area prone to crime endangering her health. The employer was supposed to have informed Mrs Preston on the risks in her workplaces and trained her how to deal with them. The employer failed in ensuring health and safety for the employee was catered for (HSE, 2016). The employee suffered health harm while on employment due to employer negligence. The employer failed to ensure that the employee security was well catered for. The employer had exposed the employee to physical harm through understaffing and failing to follow the health and safety laws (HSE, 2016). 2. Review the strengths and weaknesses of the proposed civil action, making reference to the possible defences to the claim that the Council may consider (40) The civil action is based on claim of damages for accident at work. The case document claims that the client (Mrs Erica Preston) was assaulted by unknown person while carrying out her work duty. The defendant claims that the employer is at fault since they failed to ensure that the client was protected from such kind of attack. The injuries suffered by the client are listed as; bruising in the left arm causing significant pain and psychological trauma which led to physical symptoms associated with premature birth leading to more distress to client. Strengths It is clear that the client suffered damage due to the employer breach of duty. This makes it reasonable for the client to bring a civil action towards the employer. The statutes are Cleary expressed and action is always recommended for the breach of statutory duty. Employers have a duty of care to their employees. This can be proved by the case of Wilsons and Clyde co ltd v. English (1937). On the case, Lord Wright explained that the employers have a duty to take reasonable care to the employees. In this case, the employer failed to take reasonable care for the employee health and safety (Cipd 2006, 6). Since the ruling of the Wilsons and Clyde coal co ltd v. English, it is important to note that the house of lords has been treating the duty of care as employer taking reasonable care for their workers safety in all circumstances (Cipd 2006, 6). There was supposed to be safe premises and systems where the employees were working. In this circumstance, the employer did not look at all hazards, evaluate the risks and control potential hazard areas which led to employee being mugged. The case can use this as a strong argument since it is clear that the employer did not have a safe system in place. It is the work of the employer to provide the employee with all relevant information on area of work safety which in this case did not happen. Failing to conduct a risk assessment is a breach of the Management of Health and Safety at Work Regulations MHSWR regulation no 3. This can be supported by the case of TH Clements and sons ltd: case no. F13000454. In this case, it was found out that the firm did not carry out adequate risk assessment before transferring the work into the cold stores. This led to workers being exposed to carbon monoxide leading to three workers being admitted to hospital. The company was fined £13,000 and was asked to pay £9,280.50 (Cipd 2006, 15). Separate risk assessment for pregnant employee is supposed to be carried out. This was not done in this case. If risks to the pregnant employees are discovered, they should be removed or employee moved away from them. In this case, the employee who is pregnant is exposed to risk at work through working on a risky area. Under the maternity protection act, the employee can be given health and safety leaves if they work in a risky area. The employee should also be given an alternative work or a safety leave (Barrett 2000, 46). Another strong point in the case is the fact that the employer failed to look at the employee health status before assigning her the task. The employer is expected to consider employee capabilities especially if the job is considered to be hazardous (Stranks 2006, 17). In this case, the employee was 23 weeks pregnant hence should not have been engaging in unsafe work environment. In case she had to work in the environment, it would have been prudent to ensure she did not go alone. In this case, the employer had shortage of employees which led to overworking the current employees. The letter states that Erica was carrying out the service user visit alone since the firm had staffing problems. This was also a violation of the agreement between the council executive and joint shop stewards. The fact that she was alone exposed her to risks. Lastly, it is clear that the firm lacked policy on violence at work. This was against the union agreement and also violated employee safety and health (Ferguson 2010, 1108). This is a strong point for the civil action against the organisation. Lack of policy on violence at work is a breach of the health and safety act duties of the employers. The employer is expected to prepare and carry out regular revisions on health and safety at work for their employees and organisation. The employer has a duty to take reasonable care to ensure that the employee does not suffer from mental or physical damage (Ferguson 2010, 1106). This did not happen in this case leading to the employee suffering from post-traumatic stress disorder. The impact of this led to miscarriage and further mental issues. This can be justified by the Walker v Northumberland County Council (1995) 1 All ER 737.walker suffered nervous breakdown due to work pressure and was dismissed on permanent ill health. He sued the employer for damages where the court the court upheld that the employer had a common law duty to ensure there is reasonable care for employees so that they do not suffer from mental or physical damage (Cipd 2006, 36). Weakness The weakness lies on the HSWA section seven where employees have general duties. The employee is expected to take care of themselves and others who might be affected by their work (Ferguson 2010, 1114). Mrs Preston was aware that the housing estate she was visiting was in a socially deprived area. This exposed her to risk of getting mugged which was aggravated by her pregnancy. As a pregnant employee, she should have avoided this risk and taken a duty to care for herself. This is a visit that she arranged alone with the social user and did not engage the management. This is against the general duties for the employees at work (Cipd 2006, 5). The council may use this point as a defence against the claim. It also appears that Mrs Preston had poor work attendance. Despite the fact that she was pregnant and suffered symptoms associated with attack and pregnancy, it seems she failed to provide proper communication. The employer may claim that she failed to communicate on her wellbeing when undertaking the tasks which exposed her to harm. The employee is supposed to provide evidence on her wellbeing to ensure that she is not assigned tasks they cannot manage (Cipd 2006, 25). 3. On behalf of the Councils Social Services Department, draft a) A policy statement on the risk of violence at work that sets out the key elements of a strategy for controlling such risk (15) Policy statement The aim of this document is to ensure a safe and healthy working environment for all employees (Chappell and Di Martino 2006, 17). The organisation is committed to safety of the employees through ensuring that best practices are used to minimise the risks and violence at work. Councils Social Services Department does not accept that workers should be subjected to any form of violence while at work and takes all reasonable steps to ensure employees are protected from violence and threats. Councils Social Services Department recognises that the nature of work can place employees at risks from violence. Introduction There have been rising concerns from employees’ representatives and HSE on the rising problem of employee violence. This is especially for the employees working with the public directly or indirectly. Councils Social Services Department will take practical steps that will reduce and where possible eliminate risk of violence at work for the employees. For most of the employees, there is low risk of physical assault. The employees who are at a higher risk are those who deal with members of public or work in areas prone to violence. Scope Councils Social Services Department health and safety states that various health and safety policies will be developed with an aim of supporting the work environment. The policy covers all employees at Councils Social Services Department and incudes accident at work and other relevant health and safety issues. The policy also covers all activities that employees undertake in their work duties. Definition Councils Social Services Department definition of violence at work is: “Any incident in which a person is abused, threatened or assaulted in circumstances relating to their work” (HSE, 2016). Managing risks Based on risk management procedures, all activities that places employee at risk in their normal duties are identified. The management will be required to take assessment of every activity. This will also include assessment of all actions which are supposed to be taken to minimise risks. The Councils Social Services Department can withdraw services in areas where the level of risk is not acceptable until it reduces to acceptable levels. Reporting of incidences Councils Social Services Department reporting policy expects all incidences of violence reported through following the right procedures for an accident at work. The accident occurrence form should be filled and submitted to the respective supervisor. The supervisor will then fully investigate the incidence. Action and recommendations will then be undertaken to reduce or eliminate the risk. Incidences of violence can also supposed to be reported based on the requirements on the HSE. Employee support Councils Social Services Department recognises that victims of violence suffer both psychological and emotional harm in additional to injuries. The management will offer all support required by the employee who has been subjected to violence. Any employee who has suffered violence will be given advice and offered guidance and counselling. Employee undergoing guidance and counselling will be entitled to time off and pay. Employees will also be given leave and advised to see a doctor and obtain appropriate support after the incidence (Ferguson 2010, 1107-12). Police Councils Social Services Department will ensure police are called when called when necessary to protect the employees. Legal action Work violence will be taken as a very serious incident. The case will be referred to police or civil courts as an alternative to ensure the employee is protected. Councils Social Services Department recognises the employees’ right to make complaint to the police at any time irrespective of the action taken by Councils Social Services Department. Responsibilities Managers Managers should ensure that employees are able to report any violence incidence at work and offer the required support. The management should ensure all details leading to the incident are recorded and discussed with the employees. During investigations, the management should discuss how the incident would have been avoided and take actions to prevent it in future. Management is expected to comply with the Accident at Work Policy (Chappell and Di Martino 2006, 107). Employees Employees have a responsibility to report all incidence of violence that occurs at work as soon as possible. Employees should give full and accurate details on the incident without bias. The employees are required to cooperate during the investigation on the incident. Monitoring and review This document is to be monitored and reviewed regularly by the Councils Social Services Department management. b) An information sheet for staff that shows the procedures to be followed in the case of home visits (10) Staff information sheet Procedures for home visits Objective Councils Social Services Department encourages a safe workplace and practices that ensures employee safety is given priority at all times. Policy The home visiting procedures are developed to ensure that the Councils Social Services Department staffs are able to carry out home visits with high level of safety. The employees should always consult with colleagues and management at all times when making home visits. Safe work environment is a responsibility of staff and management Councils Social Services Department will provide training and education to minimise cases of safety risks. When conducting home visits the worker should: Carry out risk assessment The employee should carry out a thorough background check on the consumer at home. Initial risk assessment should be carried out at the facility rather than at the consumer premises. All home visits should be conducted at the office hours. The visit must be conducted by two staff at all times (Ferguson 2010, 1110). When uncertain about the risk level at the home, further consultation is required with the supervisor. The employee should make decision on the visit after identifying all risks involved. When not to visit When there is high level of risk There is history of violence in the area Consumer visit on the way to work or on way home from work Home visits on way to work or from work should only be carried out through management approval and appropriate justification. Staff movements All staff movements must be documented. There should be a detailed in and out office log. This should include expected time of return for the staff member. The management must ensure that employee delays and locations are recorded. When necessary, the management must advice on the issues arising and come up with emergency procedures. Arrival at consumer home Park in a well-lit place-parking should be safe where one cannot be obstructed or parked in. If threatened upon arrival, it is important to leave immediately and look for a safe location where management or police can be contacted. Call from employee at risk Check the address and enquire the nature of risk Call emergency when necessary During home visit Be always cautious Make sure the consumer is at home Never engage in arguments Be aware of exits and layout In case of aggression, leave immediately After visit Report any risk or incidence identified Report to the office after each visit Seek debriefing, counselling or support from employer when necessary References Barrett, B., 2000. Occupational Health & Safety Law Cases & Materials 2/e. Routledge. Chappell, D. and Di Martino, V., 2006. Violence at work. International Labour Organization. Cipd, 2006, Maintaining the Employment Relationship, Employment Law In Practice, Chartered Institute of Personnel and Development, cipd. Chapter 6, p.1-38, retrieved 23rd January 2016 from, http://www.cipd.co.uk/NR/rdonlyres/72A95037-0587-4454-BC0B B8956489EE10/0/ELiP_sampchap06.pdf Ferguson, H., 2010. Walks, home visits and atmospheres: Risk and the everyday practices and mobilities of social work and child protection. British Journal of Social Work, 40(4), pp.1100-1117. Health and Safety executive, HSE, 2016, Employer's responsibilities, Hse.gov, retrieved 23rd January 2016 from http://www.hse.gov.uk/workers/employers.htm Hughes, P. and Ferrett, E., 2011. Introduction to health and safety at work. Routledge. Stranks, J., 2006. The manager's guide to health and safety at work. Kogan Page Publishers. Read More