I. THE ORGANISATION
Ch.1: Setting up an organisation
Ch.2: Unincorporated organisations
Ch.3: Incorporated organisations
Ch.4: Charitable status, charity law & regulation
Ch.5: The organisation's objects
Ch.6: The organisation's name
Ch.7: The governing document
Ch.8: Registering as a charity
Ch.9: Branches, subsidiaries & group structures
Ch.10: Changing legal form
Ch.11: Collaborative working, partnerships and mergers
Ch.12: Members of the organisation
Ch.13: Members of the governing body
Ch.14: Officers, committees & sub-committees
Ch.15: Duties & powers of the governing body
Ch.16: Restrictions on payments & benefits
Ch.17: The registered office & other premises
Ch.18: Communication & paperwork
Ch.19: Meetings, resolutions & decision making
Ch.20: Assets & agency
Ch.21: Contracts & contract law
Ch.22: Risk & liability
Ch.24: Financial difficulties & winding up
III. EMPLOYEES, WORKERS, VOLUNTEERS & OTHER STAFF
Ch.25: Employees & other workers
Ch.26: Rights, duties & the contract of employment
Ch.27: Model contract of employment
Ch.28: Equal opportunities in employment
Ch.29: Taking on new employees
Ch.30: Pay & pensions
Ch.31: Working time, time off & leave
Ch.32: Rights of parents & carers
Ch.33: Disciplinary matters, grievances & whistleblowing
Ch.34: Termination of employment
Ch.36: Employer-employee relations
Ch.37: Employment claims & settlement
Ch.38: Self employed & other contractors
IV. SERVICES & ACTIVITIES
Ch.41: Safeguarding children & vulnerable adults
Ch.42: Equal opportunities: goods, services & facilities
Ch.43: Data protection & use of information
Ch.44: Intellectual property
Ch.45: Publications, publicity & the internet
Ch.46: Campaigning & political activities
Ch.47: Public events, entertainment & licensing
V. FUNDING & FUNDRAISING
Ch.48: Funding & fundraising: General rules
Ch.49: Fundraising activities
Ch.50: Tax-effective giving
Ch.51: Trading & social enterprise
Ch.52: Contracts & service agreements
Ch.53: Financial procedures & security
Ch.54: Annual accounts, reports & returns
Ch.55: Auditors & independent examiners
Ch.56: Corporation tax, income tax & capital gains tax
Ch.57: Value added tax
Ch.58: Investment & reserves
Ch.60: Land ownership & tenure
Ch.61: Acquiring & disposing of property
Ch.62: Business leases
Ch.63: Property management & the environment
VIII. BACKGROUND TO THE LAW
Ch.64: How the law works
Ch.65: Dispute resolution & litigation
UPDATED INFORMATION FOR CHAPTER 40:
VOLUNTARY SECTOR LEGAL HANDBOOK
This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.
To avoid spamming, an email address is not given on screen. If you can't see the word 'here' or have trouble sending an email by clicking on it, the address is bookservice at sandy-a.co.uk, with the spaces and 'at' replaced by the @ symbol.
These websites for each chapter update
the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.
To order a copy of The Russell-Cooke Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking
. It costs £60 for voluntary organisations or £90 for others, plus 10% p&p.
The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.
HEALTH AND SAFETY
The items below formerly appeared on the legal update website for voluntary organisations and are archived here. The content may be out of date and links may not work. For current updates to the chapter, see the legal update website for voluntary organisations at www.sandy-a.co.uk/activities.htm.
HEALTH, SAFETY AND WELFARE PUBLICATIONS & GUIDANCE
Updated 7/10/13. This information updates chapter 40 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Recent resources from the Health and Safety Executive (HSE) include the following:
The Trades Union Congress (TUC) is another excellent source of information about health and safety. Recent resources, all available via tinyurl.com/dxksp8y, include:
Managing for health and safety, available in print (HSG65) from HSE or free download at www.hse.gov.uk/managing/index.htm, was substantially refreshed and enhanced on 1 August 2013. It is intended for larger organisations, and will be of use to governing body members and senior staff, as well as workers and their representatives. It has four key sections: core elements of managing for health and safety; are you doing what you need to?, delivering effective arrangements, and resources.
The Health and safety toolbox: How to control risks at work website, created in November 2012, is intended for small, low risk organisations. It includes brief summaries and links to more detail guidance in relation to the organisation, its workers and its workplaces; electrical safety; fire safety; gas safety; harmful substances; manual handling; noise; personal protective equipment; pressure equipment; machinery, plant and equipment; radiations; slips and trips; vibration; working at height; working in confined spaces; and workplace transport. It is at www.hse.gov.uk/toolbox/index.htm.
The toolbox is intended to be used alongside the health and safety made simple website at www.hse.gov.uk/simple-health-safety, and guidance on specific workplaces such as offices (www.hse.gov.uk/office).
A revised version of HSE's brief guide for employers, Managing upper limb disorders in your business, was issued in August 2013. It can be downloaded as a free PDF at www.hse.gov.uk/pubns/indg171.htm. Upper limb disorders are often called RSI or repetitive strain injury.
The third edition of of HSE's very detailed Maintaining portable electrical equipment, intended for managers, electricians, technicians and users, was published on 27 September 2013. It can be purchased for £15 or downloaded as a free PDF at www.hse.gov.uk/pubns/priced/hsg107.pdf.
For low risk environments, Maintaining portable electrical equipment in low risk environments at www.hse.gov.uk/pubns/indg236.htm is likely to be adequate. HSE continues to emphasise that it is a myth that all appliances must have portable appliance testing (PAT) annually. HSE makes clear that testing appliances to ensure they are safe may be necessary, but for low risk appliances in a low risk environment, simple checks such as looking for frayed cables or other obvious signs of damage may be enough.
For providers of health and social care services, HSE has frequently asked questions (FAQs) at www.hse.gov.uk/healthservices/faqs.htm. These cover fire and electrical safety, infection control, lifting equipment and manual handling, skin at work, slips and trips, falls from height, and much more, and are regularly updated.
Other guides include meningitis in the workplace, working with asbestos, working with lead, working with sewage, driving lift trucks, working in extremes of temperature, and hand-arm vibration syndrome.
New and expectant mothers at work
Mental health conditions
Exposure to chickenpox in the workplace
Preventing aches and pains from using display screen equipment
Working in a noisy environment
Working with substances that cause skin problems
Working with animals
Working in or near water, rivers and seas.
The fourth edition of the TUC's best-selling guide to health and safety, Hazards at work, was published in March 2013. It costs £18 for TUC member organisations, £30 for educational, voluntary and not for profit organisations, and £45 for other organisations. Details are at www.tuc.org.uk/workplace/tuc-22014-f0.cfm.
REVISION OF APPROVED CODES OF PRACTICE
Updated 7/10/13. This information updates chapter 40 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Approved codes of practice (ACoPs) provide guidance on implementation of health and safety law. A breach of a code cannot itself be prosecuted, but may form evidence of a failure to achieve proper standards.
As recommended in the Löfstedt review of health and safety legislation in November 2011, the Health and Safety Executive consulted from 26 June to 14 September 2012 on proposals to revise, consolidate or withdraw 15 ACoPs, and to make minor revisions or no changes to a further 15. Following this, revised ACoPs were drawn up for control of substances hazardous to health (COSHH), dangerous substances and explosive atmospheres, and control of legionella bacteria, with a consultation on the drafts from 13 June to 23 August 2013. The revised ACoPs were expected to come into use in late 2013 and 2014.
Also following the 2012 consultation, a consultation on a revised ACoP on workplace health, safety and welfare took place from 7 May to 30 July 2013, and a consultation on a draft ACoP on working with asbestos from 8 July to 30 September 2013.
A further proposal is for all ACoPs to be limited to a maximum of 32 pages, unless there is a specific reason it needs to be longer.
Information about the consultations is at www.hse.gov.uk/consult/live.htm.
RECENT H&S PUBLICATIONS & GUIDANCE
Added 26/2/12. This information updates chapter 40 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Recent materials from the Health and Safety Executive (HSE) and other sources include the following.
The "Health and safety made simple: the basics for your business" website, launched 26 January 2012, covers a range of topics including appointing a health and safety officer; writing a health and safety policy; managing h&s risks; consulting employees; providing training and information; the h&s law poster; workplace facilities; first aid, accidents and ill health; and getting insurance.
The h&s poster, which must be displayed at all workplaces, is now available in a range of formats including A3 size, and the h&s leaflet is available in easy read, large print and talking versions.
(A new poster was issued in 2009 but the pre-2009 version can continue to be displayed until 5 April 2014, provided the contact details are up to date. For more information see the archived article at www.sandy-a.co.uk/vslh/40h&s.htm.)
The HSE interactive office risk assessment tool, taking about 20 minutes for low-risk office-based environments, was updated 9 February 2012. There are also interactive risk assessments for classrooms, charity shops and other shops.
HSE has issued very short (a bit more than one page) revised guidance on h&s requirements for employees who work at home.
HSE has updated its guidance on h&s requirements for new and expectant mothers.
The Royal College of Psychiatrists launched in June 2011 a new work and mental health website, to help people start or return to work after a period of mental ill health, with guidance and practical tools for employers, workers, carers and clinicians.
H&S ADVICELINE AND RESOURCES
Updated 26/4/10. This information is included in chapter 40 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Employers with up to 250 employees can contact a new Health at Work Adviceline for expert advice and support on employee physical and mental health issues. The service is run by the NHS and also involves the Department for Work and Pensions, Department of Health, health and Safety Executive, Scottish Government and Welsh Assembly Government. It is available from 9am-5pm (4.30pm Fridays in Scotland), with an online callback form for use at other times. Contact details are:
England: Health for Work Adviceline, 0800 077 8844, www.health4work.nhs.uk
Scotland: Healthy Working Lives, 0800 019 2211, www.healthyworkinglives.com
Wales: Health at Work Adviceline Wales, 0800 107 0900, www.healthyworkingwales.com.
The Health and Safety Executive (HSE) website at www.hse.gov.uk, which contains masses of useful information on all aspects of health and safety law and good practice, is gradually being completely updated. Guidance is also available from the Trades Union Congress (TUC), CIPD, and a range of other organisations.
The big news is that since September 2009 many HSE priced publications, including guidance and approved codes of practice (ACOPs), have been free to download in PDF format from the HSE website.
Recent new or updated resources include:
HSE has a mini-website specifically for governing body members (management committee/trustees/directors) in organisations of all sizes, to help them understand their health and safety duties and promote h&s at work. The "Leading health and safety at work" website is at www.hse.gov.uk/leadership.
Revised first aid website. including a first aid at work assessment tool to help employers work out the number and type of first aiders appropriate for their workplace, at www.hse.gov.uk/firstaid/index.htm
Revised website on workplace stress at www.hse.gov.uk/stress/index.htm, with management standards, and guidance for board members, chief executives, HR managers, health and safety representatives, line managers and individual workers
Revised website on RIDDOR (reporting of injuries, diseases and dangerous occurrences) at www.hse.gov.uk/riddor/index.htm
LÖFSTEDT REVIEW OF HEALTH & SAFETY
Added 26/2/12. This information updates chapter 40 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The government's independent review of h&s legislation by Ragnar Löfstedt, professor of risk management at King's College London, was published on 28 November 2011 and concluded that "in general there is no case for radically altering health and safety legislation. ... There is a view across the board that the existing regulatory requirements are broadly right, and that regulation has a role to play in preventing injury and ill health in the workplace."
Löfstedt did find that some businesses go beyond what is required [which surely in general is not a bad thing?] and beyond what is proportionate, and has made some recommendations to deal with this, so that businesses see h&s "as a vital part of their operation rather than an unnecessary and bureaucratic paperwork exercise".
In its response, published on the same day, the government said that though implementing the report's recommendations and other government action already under way, it expects that:
The Löfstedt review recommends that the Health and Safety (First Aid) Regulations 1981 should be amended to remove the requirement for HSE to approve the training and qualifications of appointed first-aid personnel; the current evaluation of the Construction (Design and Management) Regulations 2007 and associated ACoP should ensure there is a clearer expression of duties, a reduction of bureaucracy and appropriate guidance for small projects; the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) and guidance should be amended to make it clearer how to comply; the requirement for portable appliance testing under the Electricity at Work Regulations 1989 should be clarified to stop over-compliance; and the Work at Height Regulations 2005 and associated guidance should be reviewed to ensure they do not lead to people going beyond what is proportionate or what the legislation was originally intended to cover.
by summer 2012 h&s guidance for small businesses will be much simpler; businesses will get simple and consistent guidance from HSE, professional bodies and insurers on whether and when they need to bring in expert health and safety advice; low risk businesses that manage their responsibilities properly will no longer be visited by inspectors; and legislation would be brought forward to abolish the Adventure Activities Licensing Authority;
by 2013 self-employed people whose work poses no threat to others will be exempt from health and safety law; HSE's approved codes of practice (ACoPs) will include clear practical examples of how to comply with the law; and unnecessary regulations will be revoked;
by 2014 a simpler accident reporting regime will be in place; European Union h&s legislation will have been reviewed and if the UK is successful in influencing the review, EU legislation will in future be risk- and evidence based; the nuclear industry will have its own dedicated independent regulator; HSE will have enhanced powers to direct local authority h&s inspection and enforcement activity, so it is consistent and targeted towards the most risky workplaces; regulations will be consolidated by industry sector, making it clear which provisions businesses need to comply with; and the total number of regulations businesses have to comply with will be reduced by 50 per cent.
The report and the government's response are at www.dwp.gov.uk/policy/health-and-safety/.
Speaking at a meeting of the Westminster Legal Policy Forum on 17 January 2012, Professor Löfstedt said he did not support radical reform and was concerned his report could be misused for political purposes.
"COMMON SENSE, COMMON SAFETY" H&S PROPOSALS
Added 25/5/11. This information updates chapter 40 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Common sense, common safety, the report by Lord Young of Graffham, the prime minister's advisor on health and safety, was published on 15 October 2010. Its 38 recommendations on health and safety law and claims for compensation include (this is not a full list):
The "compensation culture"
a simplified claims procedure for low value personal injury claims;
it should be made clear (though legislation if necessary) that people will not be held liable for any consequences due to well intentioned voluntary acts on their part.
Low hazard workplaces
the HSE should simplify the risk assessment procedure for low hazard workplaces such as offices, classrooms and shops, with simpler interactive risk assessments for low hazard workplaces available on the HSE website;
the HSE should develop periodic checklists to enable businesses operating in low hazard environments to check and record their compliance with regulations, and online video demonstrations of best practice in completing forms;
the HSE should develop similar checklists for use by voluntary organisations;
employers should be exempt from risk assessments for employees working from home in a low hazard environment;
self-employed people in low hazard businesses should be exempt from risk assessments.
all h&s consultants should be accredited to professional bodies;
a web-based directory of accredited h&s consultants should be established.
insurance companies should cease to require businesses operating in low hazard environments to employ h&s consultants to carry out full h&s risk assessments;
where h&s consultants are employed to carry out full h&s risk assessments, only qualified consultants who are included in the web-based directory should be used;
there should be consultation with the insurance industry to ensure that worthwhile activities are not unnecessarily curtailed on h&s grounds;
insurance companies should draw up a code of practice on h&s for businesses and the voluntary sector, failing which, legislation should be considered.
the process that schools and similar organisations undertake before taking children on trips should be simplified;
a single consent form should cover all activities a child may undertake during his or her time at a school;
there should be a simplified risk assessment for classrooms;
the system of risk assessment should shift to a system of risk/benefit assessment, and consideration should be given to reviewing the Health and Safety at Work etc Act 1974 to separate out play and leisure from workplace contexts.
officials who ban events on h&s grounds should put their reasons in writing;
citizens should have a route for redress to challenge local officials' decisions;
local authorities should conduct an internal review of all refusals on grounds of h&s;
citizens should be able to refer unfair decisions to the ombudsman, and a fast-track process should be implemented to ensure that decisions can be overturned within two weeks.
the HSE should produce clear separate guidance under the code of practice focused on small and medium businesses engaged in lower risk activities;
the current h&s regulations should be consolidated in to a single document [ARGH! NO! I don't want to have to read through a massive piece of legislation just to find the section that applies to computer screens or manual handling or whatever!].
RIDDOR should be amended by extending to seven days the period before an injury or accident needs to be reported [see RIDDOR changes;
the operation of RIDDOR should be re-examined to determine whether it is the best approach to providing an accurate national picture of workplace accidents.
Combining food safety and h&s inspections
food safety and h&s inspectors should be combined in local authorities;
local authorities should be obliged to participate in the Food Standards Agency's food hygiene rating scheme.
the Adventure Activities Licensing Authority should be abolished and licensing should be replaced with a code of practice [see Abolition of AALA].
The government accepted all of the recommendations in the report, but there is no timeframe for implementation.
The Young report can be accessed on the Cabinet Office website via tinyurl.com/3pew4cs.
HSE INFOLINE TO DISAPPEAR
Added 22/9/11. This information updates s.40.1.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Health & Safety Executive's infoline at 0845 345 0055, which I always found really helpful, disappeared on 30 September 2011 and we now have to depend on the HSE website at www.hse.gov.uk. I think the website is excellent, but it can't replace a real person at the end of a phone line.
In a press release on 12 September HSE said, "Various improvements have been made to HSE's website to coincide with the closure of Infoline. There is clearer information on what HSE does and doesn't do, so people can check that HSE is the right organisation to assist them, and expanded 'question & answer' sections for the most frequent health and safety enquiries such as those on RIDDOR reporting and first aid."
NEW H&S POSTER AND LEAFLET
Added 14/6/09. This information is included in s.40.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
A new version of the HSE poster was published on 6 April 2009, setting out in numbered lists (and with photographs) the obligations of employers and workers in relation to health and safety, and what to do if there is a problem. The H&S leaflet, which has had to be given to employees at workplaces where the employer does not prominently display the poster, has been replaced by a pocket card.
The existing poster and leaflet can be used until 5 April 2014, provided they are readable and the addresses of the enforcing authority and the Employment Medical Advisory Service (both available from the HSE infoline on 0845 345 0055) are up to date.
Welsh, easy read and large print leaflets will be produced, and an MP3 version will be available on the HSE talking leaflets website.
Posters and leaflets can be purchased from bookshops or from the HSE Books on 01787 881165.
Further details are at www.hse.gov.uk/contact/faqs/lawposter.htm.
RISK, LIABILITY AND THE SOCIAL VALUE OF ACTIVITIES
Added 25/5/11. This information updates ss.22.3.1 & 40.2.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The House of Lords decision in Tomlinson v Congleton Borough Council & others (www.bailii.org/uk/cases/UKHL/2003/47.html) in 2003 introduced into negligence cases the concept of balancing the likelihood and potential seriousness of injury from an activity, against the social value of the activity. This was incorporated into s.1 of the Compensation Act 2006, which says that "a court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or discourage persons from undertaking functions in connection with a desirable activity".
This means that if a person is negligent or in breach of a statutory duty and as a result a person is injured, the court will be able to take into account that the activity was, for example, being run by a volunteer or a not-for-profit organisation and that without the volunteers or the organisation, the "desirable activity" might not have taken place at all.
Some cases in recent years illustrate how this principle is interpreted and sometimes reinterpreted by the courts, or illustrate other factors taken into account in negligence cases or cases involving breach of health and safety law.
Charlotte Shaw, aged 14, was preparing for the Ten Tors training expedition in March 2007 when she fell into a swollen stream and drowned. Some of the 11 students in the group had asked for the trek to be stopped because of bad weather but it was decided it should go ahead. In the inquest into her death, considerable emphasis was given to the value of the Ten Tors, and the fact that this was believed to be the first death since the Ten Tors was started in 1960.
However, at the time of Charlotte's fall the three teachers accompanying the group were having breakfast at a cafe in a nearby town; for various reasons none of the teachers went to the checkpoints where the students were to have been met; there were no teachers with the students when they crossed the stream, although a passing Scout leader had stopped to help. The teachers, however, said that the students decided unanimously to continue the trek, and were told not to cross the stream.
The crown prosecution service decided there was not enough evidence to bring a manslaughter charge against Kingsley College, Bideford (called Edgehill College when Charlotte attended) and the two teachers who were overseeing the expedition. But Charlotte's mother is now bringing a civil claim against the school and one teacher, claiming they were negligent in their care. The case will be heard in the high court, probably in 2012, and the "social value" argument may be a factor.
Uren v Corporate Leisure (UK) Ltd and Ministry of Defence emphasises the importance of risk assessments. Taking part in an RAF fun day in 2005, Robert Uren dove headfirst into an inflatable pool with 18 inches of water, to retrieve pieces of plastic fruit from the bottom. Other competitors had done so safely, but Uren broke his neck, is now tetraplegic and sued the MoD and Corporate Leisure (UK) Ltd, the contractor who had supplied the pool.
The high court initially said that even though health and safety risk assessments had not been carried out, failure to do so did not in this case mean there was a breach of duty of care, because the danger of diving into a small pool was so obvious that participants should have acted accordingly, and the social value of the game outweighed the very small risk of injury. The court of appeal disagreed, and on 2 February 2011 referred the case back to a high court judge to reconsider the level of risk.
The original high court decision is at www.bailii.org/ew/cases/EWHC/QB/2010/46.html, and the court of appeal decision is at www.bailii.org/ew/cases/EWCA/Civ/2011/66.html.
In Scout Association v Barnes (www.bailii.org/ew/cases/EWCA/Civ/2010/1476.html), 13-year-old Mark Barnes was injured in 2001 in a game similar to musical chairs where the lights were turned off as the boys ran to grab wooden blocks. Even with the lights off the room was not in total darkness, and the Scout Association argued that risks from the game were balanced by its social value. The court of appeal disagreed, saying that turning off the lights increased the excitement of the game, but did not increase its social or educative value and thus did not justify the foreseeable risks.
When 25-year-old Gary Poppleton fell on a youth centre climbing wall, was paralysed and sued the centre, the high court found the centre was 25% liable for not warning him that matting at the foot of the climbing wall did not provide full protection against injury. The court of appeal overturned the high court, saying the centre was not liable, because it should be obvious to adults who engage in such activities that there is a degree of unavoidable risk, and that matting cannot completely protect against possibly severe injury.
The court of appeal decision in Trustees of the Portsmouth Youth Activities Committee (A Charity) v Poppleton is at www.bailii.org/ew/cases/EWCA/Civ/2008/646.html.
In a case brought by the Health and Safety Executive against John Summerfield, former headteacher of a sixth form college in Liverpool, the crown court accepted that his motives were well intentioned but this could not override his ignoring the risks of his actions. At an end of term party celebrating A-level results, Summerfield took a dozen students, who the court said were "possibly slightly inebriated", onto the roof of the school to look at new buildings. Although he warned them about a skylight, student Joel Murray fell through the skylight, resulting in a fractured skull, several broken ribs, a perforated eardrum and damage to both eyes. Summerfield was fined £20,000 and ordered to pay £22,000 legal costs for ignoring, in breach of the Health and Safety at Work etc Act 1974, the school's rule that the roof was off-limits.
In another case brought by HSE, Mental Health Matters, based in Sunderland, was fined £30,000 and ordered to pay £20,000 costs in February 2010 after employee Ashleigh Ewing was stabbed to death by a service user in 2006. The charity admitted it knew the service user had a history of violence and refusing to take his medication and knew his mental health was deteriorating, but Ewing was sent to visit him at his home on her own, on the last day of her six-month probationary period. It was acknowledged that even if risk assessments had been carried out Ewing might still have been killed, but the likelihood could have been reduced. HSE's head of operations said, "This is an unusual case which shows the need for employers to assess risks to employees who visit individuals in their homes and for arrangements to be revised when changes occur. We believe that if Mental Health Matters had carried out a risk assessment, it would have resulted in the visiting arrangements being reviewed."
Following the case, HSE made the point that working alone is not in itself against the law, but the law requires employers and others to think about and deal with any health and safety risks before people should be allowed to work alone. HSE's guidance on lone working is at www.hse.gov.uk/pubns/indg73.pdf. The TUC also has a guide to lone working, at ww.tuc.org.uk/h_and_s/tuc-17252-f0.cfm.
For summaries and articles about cases, do a Google search on key words in the case name or content.
Go to archived items about liability (VSLH3 chapter 22)
H&S POLICIES AND RISK ASSESSMENTS
Updated 25/5/11. This information updates ss.40.2.6 & 40.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The HSE website now includes a downloadable risk assessment and policy template which brings together an organisation's risk assessment, health and safety policy and record of health and safety arrangements in one document.
The template can be accessed via tinyurl.com/64fafj5. I recommend that volunteer-using organisations change the second item in the template's statement of general policy to "To provide adequate training to ensure employees and volunteers are competent to do their work", and the third item to "To engage and consult with employees and volunteers on day-to-day health and safety conditions and provide advice and supervision on occupational health".
Example risk assessments on the HSE website including for charity shops, food preparation and service, and village halls (also suitable for small community centres and similar premises) can be used as guides for completing the template, or can be used separately from the template. The example risk assessments can be accessed via www.hse.gov.uk/risk/casestudies/index.htm.
Common sense, common safety, the report on health and safety legislation by Lord Young in October 2010, made a number of recommendations on low hazard workplaces such as offices, classrooms and shops. As part of implementing these recommendations:
HSE launched an online risk assessment tool for offices in October 2010, which takes only about 20 minutes to complete (www.hse.gov.uk/risk/office.htm);
a draft version of a similar online risk assessment tool for shops was issued in December 2010, with the consultation ending on 8 March 2011 (www.hse.gov.uk/consult/condocs/risk-assessment/shop.htm;)
HSE launched on 28 March 2011 Health and safety made simple, a website bringing together its guidance for small and low risk employers (www.hse.gov.uk/simple-health-safety/index.htm; there is a link to a PDF printable version);
Voluntary organisations: Managing low risk was launched on 31 March, to bring together links to resources of specific relevance not to voluntary organisations as such, but to organisations that use volunteers (www.hse.gov.uk/voluntary/index.htm.
FEES FOR HSE INTERVENTION
Added 30/9/12. This information updates s.40.2.9 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Health and Safety Executive is responsible for enforcing the Health and Safety at Work Act 1974 and related regulations through a system of inspectors who carry out inspections and investigations and take enforcement action. From 1 October 2012 a new cost recovery scheme is in operation, under which HSE will charge £124 per hour for the time involved in these activities. HSE emphasises that this fee for intervention (FFI) will be charged only where there has been a breach of health and safety legislation.
Information about the fee is at www.hse.gov.uk/fee-for-intervention/index.htm.
The Health and Safety (Fees) Regulations 2012 are at www.legislation.gov.uk/uksi/2012/1652/made. These regulations also include revised fees for certain health and safety-related licences, approvals and notifications, such as mines and quarries, asbestos, explosives and tower cranes.
RISK ASSESSMENT FOR PREGNANT WORKERS
Added 26/4/10. This information updates s.40.3.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
In Hardman v Mallon (trading as Orchard Lodge Nursing Home), the employment appeal tribunal found in 2002 that failure to carry out a health and safety risk assessment in relation to a pregnant employee was not only a breach of health and safety law, but also direct discrimination under the Sex Discrimination Act 1975.
However, in the case of O'Neill v Buckinghamshire County Council in January 2010, the employment appeal tribunal ruled that there is no general obligation under H&S law to carry out a specific risk assessment in relation to a pregnant woman unless three preconditions are met: the employee has notified the employer in writing that she is pregnant; the work is of a kind which could involve a risk of harm or danger to the health and safety of the pregnant woman or her child; and the risk arises from the workplace processes, working conditions, or physical, chemical or biological agents in the workplace.
If these preconditions are met, a specific risk assessment must be carried out and the employee must be provided with comprehensive information on the identified risks. Failure to do this is a breach of H&S law and could constitute sex discrimination. Even where it may not be clear that the work is of a kind which could involve a risk of harm or danger, it is still sensible for the employer to carry out a risk assessment because of the general duty to assess risk, and because a tribunal could find that in fact the work did meet the preconditions.
The O'Neill decision is at www.bailii.org/uk/cases/UKEAT/2010/0020_09_0501.html.
The Health and Safety Executive's website on new and expectant mothers is at www.hse.gov.uk/mothers/index.htm.
For summaries and articles about cases, do a Google search on key words in the case name or content.
RULES EASED ON NO-SMOKING SIGNS
Added 30/9/12. This information updates s.40.4.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Virtually all enclosed and semi-enclosed public places, including workplaces, places of voluntary work and vehicles owned by the organisation, must be smoke-free. Employers must display the proper signage and are responsible for ensuring all staff, service users, customers and visitors are aware of the regulations. Smoking in non-smoking premises, permitting people to spoke in non-smoking premises, and failing to display the required no-smoking signs are all offences.
From 1 October 2012 the Smoke-free (Signs) Regulations 2007, which applied only to England and prescribed the design, the size (A5) and location (at all the entrances to premises) of no-smoking signs, are repealed. They are replaced with an obligation to display one legible no-smoking sign in smoke-free premises and one in smoke-free vehicles. The signs do not need to be in a specific format and in premises do not need to be at an entrance.
The Smoke-free (Signs) Regulations 2012 are at www.legislation.gov.uk/uksi/2012/1536/made. They apply only in England. Wales, Scotland and Northern Ireland have separate legislation on smoke-free premises and vehicles.
MANAGING STRESS AT WORK
Added 25/5/11. This information updates s.40.5.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Work-related stress: What the law says, published in September 2010, highlights the potential legal risks employers face if they ignore their responsibilities to prevent and manage stress at work and includes real cases where employers have faced significant compensation payments. The guide was published by CIPD in association with ACAS, HSE, and the cross-government Health, Work and Wellbeing programme, and includes sections on identifying a problem, preventing harm, protecting individuals, managing the workplace, the management standards for work-related stress, managing stress checklist, and further reading. It is available via tinyurl.com/3r9e8r2.
Further CIPD resources are Stress and mental health at work, introductory guidance updated in September 2010, at tinyurl.com/3w8w4nk, and an information page with frequently asked questions on legal issues relating to stress, added March 2011, at www.tinyurl.com/3mkbwyy.
Some CIPD resources require registration with its website, but this is free.
CHARITY FINED FOR NOT PREVENTING VIOLENCE AND AGGRESSION AT WORK
Added 17/2/12. This information updates s.40.5.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Dimensions (UK) Ltd, a charitable organisation in Reading providing support services for people with learning disabilities, was fined £14,000 and ordered to pay £30,000 in costs in January 2012, for breaches of health and safety legislation which led to a support worker being kicked in the eye by a client who was known to be aggressive and violent.
The incident happened in December 2009. An HSE investigation afterwards found that between March 2009 and December 2010, the organisation did not have adequate processes in place to control the risk of employees and agency workers being exposed to violence and aggression from this client, who during that period was involved in a number of incidents where staff were injured.
HSE inspector Carol Forster said after the sentencing that social care organisations face risks of violence and aggression from clients with challenging behaviour, but have a duty to ensure that proper management systems are in place to reduce these risks to the lowest level possible. "In this case," she said, "Dimensions should have identified the triggers that would lead to this client displaying aggressive behaviour and measures should have been put in place to avoid them. They should also have ensured that staff understood the activities and environments appropriate for this client, to reduce the risk of violent behaviour being triggered. Finally, they should have acted on incidents and near misses which indicated an escalating risk."
An HSE press release is at www.hse.gov.uk/press/2012/coi-ne-00812.htm.
For summaries and articles about cases, do a Google search on key words in the case name or content.
HARASSMENT AT WORK
Added 25/5/11. This information updates s.40.5.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Harassment in employment on the basis of a protected characteristic is unlawful under the Equality Act 2010, and any harassment is unlawful under the Protection of Harassment Act 1997. Case law has confirmed that under the 1997 Act the harassment must be oppressive and unreasonable, must have happened more than once and must have been serious enough to be criminal under s.2 of the Act, and an employer can be liable for harassment by its employees if there is a sufficiently close connection with employment. This would be in addition to the employer's liability under equality law, and under health and safety law for stress caused to the harassed employee.
In Veakins v Keir Islington Ltd, the court of appeal further clarified where behaviour within an employment relationship might fall within the definition under the Protection of Harassment Act. In this case, involving a trainee electrician who said she had been victimised and demoralised by her supervisor, it was held that the supervisor's conduct had crossed the line into behaviour which was oppressive and unacceptable and justified criminal liability. This behaviour included swearing at the employee, requiring her to sign in and out every day when others did not have to, and tearing up a complaint letter without having read it.
However, the court noted that in this case the harassment had been extraordinary, and that usually harassment cases would be dealt with by employment tribunals rather than through the courts.
The decision in Veakins v Keir is at www.bailii.org./ew/cases/EWCA/Civ/2009/1288.htm.
For summaries and articles about cases, do a Google search on key words in the case name or content.
CHILDREN AND YOUNG PEOPLE AS EMPLOYEES OR VOLUNTEERS
Added 30/1/11. This information updates ss.40.6.1, 28.6.3, 31.5 & 39.10.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Many areas of law affect the employment of children and young people up to minimum school leaving age or in some cases up to age 18: the law on what types of work they can and can't do and how many hours per day or week they can work, whether a local authority permit is required to hire the person, the Working Time Regulations, health and safety law, safeguarding, and byelaws imposed by individual local authorities. Some of these rules also apply to volunteering by children and young people.
The Department for Children, Schools and Families (now Department for Education) published in August 2009 Guidance on the employment of children, an excellent summary of the law in this complex field. I recommend it very highly, even though it's taken me nearly a year and a half to include it on this website.
In relation to volunteering, the guidance makes clear that in relation to requirements imposed by the Children and Young Persons Act 1933, a person who assists in a trade or occupation carried on for profit is considered as employed even though he or she may receive no payment. The guidance says, "In today's circumstances DCSF considers that any occupation where the aim is to make a surplus would be considered as trade or occupation carried on for profit so, in DCSF's view, unpaid work at a charity shop would count as employment, but not, for example, unpaid work at a youth club."
Even where volunteering might not be covered by the Children and Young Persons Act, it may still be covered by health and safety law, local authority byelaws or other areas of law.
Guidance on the employment of children is available from the Department for Education via tinyurl.com/4jd4mlt.
Go to archived items about equal opportunities in employment (VSLH3 chapter 28)
Go to archived items about leave (VSLH3 chapter 31)
Go to archived items about volunteers (VSLH3 chapter 39)
GUIDANCE FOR SCHOOLS AND SCHOOL TRIPS
Added 26/2/12. This information updates s.40.6.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Department for Education updated on 10 February 2012 its health and safety guidance for schools. The 16 web pages, which can be accessed via tinyurl.com/4yfs75p, cover risk assessment and management; tackling myths about legal action; duties of employers and employees; training; trips abroad; reporting injuries and accidents; adventure activities using licensed providers; school staff driving a school minibus; parental consent for off-site activities; local authority powers; the role of the educational visits coordinator; power to bar abusive parents; and key elements of a h&s policy.
The guidance summarises the legal duties of head teachers, governing bodies and local authorities on health and safety,covering activities that take place on and off school premises and seeking to tackle myths and teachers’ fears about being prosecuted by making the law clearer.
It makes clear that a written risk assessment does not need to be carried out every time a school takes pupils on a regular, routine local visit, for example to a swimming pool or museum; and clarifies that parental consent is not necessary for pupils to take part in the majority of off-site activities organised by a school, as most of these activities take place during school hours and are a normal part of a child’s education.
On page 1 of the guidance there are links to a DfE parental consent form covering a child's participation, throughout their time at the school, in any of the types of activity where consent is required; the HSE statement on school trips and outdoor learning activities, produced in June 2011 to help tackle myths about school trips; and guidance on h&s legal duties and powers, updated 7 February 2012.
GOOD PRACTICE FOR SCHOOL AND YOUTH GROUP TRIPS
Updated 26/4/10. This information updates s.40.6.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Department for Children, Schools and Families' "Learning outside the classroom" website at www.lotc.org.uk includes good practice guidance and resources on school trips and similar youth activities, aiming to reduce the bureaucracy and culture of fear around such activities. In addition to this website, the Health and Safety Executive has a website specifically about school and similar trips, particularly those involving outdoor and adventurous activities. It is at www.hse.gov.uk/schooltrips/index.htm.
PORTABLE ELECTRICAL APPLIANCE TESTING
Added 26/11/12. This information updates s.40.7.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Löfstedt review of health and safety legislation in November 2011 recommended that the requirement for portable appliance testing under the Electricity at Work Regulations 1989 should be clarified to stop over-compliance. To help implement this the HSE issued new guidance in May 2012 making clear that it is a myth often promoted by companies who offer testing that all appliances must have portable appliance testing (PAT) annually. HSE estimates that up to £30 million may be spent annually on unnecessary electrical safety tests.
HSE points out that the law simply requires employers to ensure that electrical equipment is maintained in order to prevent danger. It does not state that every item has to be tested, or how often testing needs to be carried out. HSE makes clear that testing appliances to ensure they are safe may be necessary, but for low-risk appliances in a low-risk environment, simple checks such as looking for frayed cables or other obvious signs of damage may be enough.
An HSE press release can be accessed via tinyurl.com/d5mfa4y. Maintaining portable electric equipment in low-risk environments is at www.hse.gov.uk/pubns/indg236.htm, with frequently asked questions (FAQs) via tinyurl.com/7f5w8va.
FIRE SAFETY CAPABILITIES
Added 2/4/10. This information updates s.40.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 6 April 2010 all employers have a statutory duty to consider the capability of worker(s) who carry out tasks or assignments related to fire safety. This is in addition to employers' general duties to carry out health and safety risk assessments and fire safety risk assessments, and to review them regularly. An assessment of capability should be an implicit part of those risk assessments, so the new regulations simply serve to make it explicit in relation to fire safety.
The Fire Safety (Employees' Capabilities)(England) Regulations 2010 are at www.opsi.gov.uk/si/si2010/uksi_20100471_en_1.
Detailed guidance on fire safety, including how to carry out risk assessments for specific types of premises, is on the Department for Communities and Local Government website at www.communities.gov.uk/fire/firesafety/firesafetylaw.
FIRST AID TRAINING
Updated 7/10/13. This information updates s.40.9.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 1 October 2013 the Health and Safety (First Aid) Regulations 1981 have been amended, to remove the requirement for the Health and Safety Executive to approve first aid training and qualifications. This change applies to employers of all sizes.
Employers still have the same requirement to assess their first aid needs to establish what provision is required, taking into account factors such as number of employees, location and nature of the activity.
The Health and Safety at Work Act 1974 clearly places a duty on the employer to select a competent provider for first aid training. Revised HSE guidance issued on 2 September 2013 explains how employers can identify and select competent providers. These include providers offering first aid qualifications regulated by the qualification regulators (Ofqual, the Scottish Qualifications Authority and the Welsh Government Department for Education and Skills); providers operating under voluntary approval schemes, such as a trade or industry body with quality assurance schemes accredited by a third party (such as UKAS); providers who operate independently of any such scheme, but can demonstrate their competence to an employer by providing evidence that they meet the criteria set by HSE; or the recognised voluntary aid societies (St John Ambulance, British Red Cross and St Andrew’s First Aid).
The changes follow the recommendation of the Löfstedt review of health and safety legislation, published in November 2011, that it should no longer be a requirement for HSE to approve the training and qualifications of appointed first aid personnel. HSE consulted from 22 October to 3 December 2012 on this and related proposals
The regulations, along with Regulations and guidance (L74), Selecting a first-aid training provider (GEIS3), and a summary of the implications of the changes are on the HSE website at www.hse.gov.uk/firstaid/changes-first-aid-regulations.htm.
Information about all aspects of the first aid requirements is at www.hse.gov.uk/firstaid.
BASIC FIRST AID LEAFLET
Updated 8/1/12. This information updates s.40.9.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
HSE has updated its Basic advice on first aid at work leaflet, setting out what to do in an emergency, including how to deal with a person who is not breathing, severe bleeding, broken bones and spinal injuries, burns and eye injuries, and the records that should be kept. The paper leaflet, available from HSE, is number INDG347; the web version is at www.hse.gov.uk/pubns/indg347.pdf, and a list of all first aid resources is at www.hse.gov.uk/firstaid/resources.htm.
Updated 7/10/13. This information updates s.40.9.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) require employers and other people who are in control of work premises, including self employed people, to report and keep records of work-related deaths as well as some serious injuries, industrial diseases and dangerous occurrences, and near-miss incidents. Dangerous occurrences and near misses are those that have the potential to cause serious harm, even if they don't lead to absence or incapacitation. Some injuries to members of the public affected by the organisation's activities must also be reported.
From 1 October 2013, the rules governing what must be reported to HSE have been simplified and clarified. The classification of major injuries is replaced with a shorter list of specified industries; the previous schedule listing 47 types of industrial disease is replaced with eight categories of reportable work-related illness; and fewer types of dangerous occurrence have to be reported.
HSE emphasises that there has been no significant change to the reporting requirements for fatal accidents, accidents to non-workers and accidents resulting in a worker being unable to perform their normal duties for more than seven days. Nor has there been any change to the current ways to report an incident at work, or the criteria that determine whether an incident should be investigated.
These changes follow a recommendation in the Löfstedt review of health and safety legislation in November 2011, and an HSE consultation from 2 August to 28 October 2012. Critics of the change are concerned that many significant injuries, illnesses and incidents no longer have to be reported, and will thus become statistically invisible.
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 are at www.legislation.gov.uk/uksi/2013/1471/made. Information about the changes and all aspects of RIDDOR are on the HSE website at www.hse.gov.uk/riddor.
The October 2013 changes follow other RIDDOR changes on 6 April 2012. Since then, work-related injury or illness has to be reported to HSE only if it leads to absence from work or the person being unable to carry out their normal work for more than seven days, rather than more than three days as was required prior to 6 April 2012. The days absent or incapacitated do not include the day on which the injury occurred.
This change from over three days to over seven days reporting was recommended by the Young report on health and safety, and brings the incident reporting threshold into line with the period for obtaining a GP's fit note for sickness absence.
Employers and others with RIDDOR responsibilities must still keep records of injury or illness that could have caused absence or incapacity to carry out normal work for more than three days. If the employer has to keep an accident book, as most do, this record will be adequate.
Also from 6 April 2012, the period for RIDDOR reporting to HSE was extended from 10 to 15 days.o archived items about health & safety (VSLH3 chapter 40)
REGISTRATION FOR PROVIDING FOOD IN VILLAGE HALLS AND OTHER COMMUNITY SETTINGS
Added 7/10/13. This information updates s.40.10.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
An organisation involved in the production, supply or sale of food must generally register with the local authority environmental health department. This applies not only if food is prepared on the organisation's premises, but also if it is prepared elsewhere and distributed on the premises.
Where premises are used by more than one organisation that produces or supplies food (for example, a village hall where various organisations provide food to their service users), each organisation that provides food must be registered. The premises do not have to be registered unless they also provide food.
However, registration is only required if an activity has "a certain continuity of activities" and "a certain degree of organisation". Because of a lack of clarity and consistency about what this means in practice, the Food Standards Agency issued guidance on 31 July 2013 to clarify when registration is required for food operations in village halls and other community settings. The guidance is intended to help organisers of community and charity events who want to provide food, and to help local authority food safety officers decide whether activities carried out in the village hall, community and charity sectors need to be registered.
The guidance says that in general, providing food less than once a month is not considered to have "a certain continuity of activities" and would not need to be registered. However, depending on the complexity of food safety controls, vulnerability of consumers and size of event, even an occasional event might have "a degree of organisation" and should be registered. The guidance includes examples of how the FSA interprets continuity and organisation.
Even if food provision does not need to be registered with the local authority, it usually needs to comply with food safety and food hygiene legislation. And even if there is not a statutory duty to comply with the legislation (this could include, for example, occasional handling, preparation, storage and serving of food by private individuals at events such as church, school or village fairs), there is still a general duty of care to ensure food is safe.
A press release on the new FSA registration guidance, with links to that guidance and also to general guidance on food safety and hygiene, is at www.food.gov.uk/news-updates/news/2013/jul/halls.
FOOD HYGIENE FOR STREET PARTIES AND OTHER ONE-OFF EVENTS
Added 27/5/12. This information updates s.40.10.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Food Standards Agency issued on 22 May 2012 basic FAQs on street parties and other one-off events, making clear that one-off events such as these are not usually considered food businesses, even if a charge is made for food, so there are no forms to fill in.
The guidance suggests that the local authority's environmental health team should nevertheless be informed about the event, and makes clear that even if food hygiene legislation does not apply and food hygiene certificates are not necessary, anyone supplying food other than in a purely domestic situation is legally responsible for ensuring that the food they supply is safe.
The Food Standards Agency's FAQs are at www.food.gov.uk/multimedia/faq/parties. The website has links to NHS Choices for guidance on preparing and storing food safely and information about food allergens, and also has a link to find the local environmental health team.
REGISTER OF OCCUPATIONAL SAFETY AND HEALTH CONSULTANTS
Added 25/5/11. This information updates the resources section at the end of chapter 40 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Professional bodies representing general safety and occupational health consultants across the UK have established, with support from HSE, a register of occupational safety and health consultants. The register became available on 28 March 2011. Registration is not compulsory, but HSE hopes the register will become a benchmark for standards in the profession.
In order to register, consultants must be members of a relevant professional body and must confirm that they will demonstrate adequate continuing professional development, abide by their professional body's code of conduct,. provide sensible and proportionate advice, and have professional indemnity insurance or equivalent to cover the nature of their duties.
The register can be accessed free of charge at www.hse.gov.uk/oshcr/index.htm.