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This
material will shortly be available at our web-site (http://russellcookesolicitors.createsend4.com/t/1/l/kddyj/l/www.russell-cooke.co.uk)
together with an archive of past updates.
TOUGHER TEST FOR
TRUSTEES RESPONSIBLE FOR HEALTH AND SAFETY
A lack of knowledge of a health and safety risk
is no defence.
The Court of Appeal allowed an appeal brought by the Health and
Safety Executive against a ruling that an offence of the Health and
Safety at Work, etc Act 1974 required actual knowledge of the
material facts by the officer concerned.
A company was responsible for management of an area where a child
died as a result of an accident involving a forklift truck which was
carrying an unsecured load.
The Court held that an officer of a body corporate that
contravened health and safety legislation committed an offence if
either:
- he
knew of the relevant facts giving rise to the offence; or
- where
he had no actual knowledge of the facts whether he, nonetheless,
should by reason of the circumstances, have been put on inquiry as
to whether the relevant safety procedures were in place.
Regina v P Ltd and Another [2007] The Times 13 August EWCA Crim.
(s 37(1) Health and Safety at Work, etc Act 1974)
For further information,
please contact:
JAMES McCALLUM on 020
8394 6481, mailto:James.McCallum@russell-cooke.co.uk
EMPLOYMENT
CONTRACTS
An employment contract can be made up of a number
of documents including the written contract itself, oral variations,
practice established by custom and incorporated documents.
Commonly policies and procedures perhaps contained in a staff
handbook or manual or on the organisation s intranet become
incorporated by reference to them in the employment contract.
Generally incorporating policies and procedures is to be avoided
as the consequence is that any variation thereafter constitutes a
contractual variation and has to be agreed by each and every
individual member of staff.
In a recent case the Court of Appeal considered whether an
integrated equalities policy and a document called a procedure
for stopping harassment in the workplace had become contractually
binding by incorporation as the contract was not clear on this
point.
The court found that the equalities policy was insufficiently
precise to be contractual and was to be regarded simply as guidance.
The harassment procedure however contained a formal procedure about
complaint handling and those parts were held to be incorporated
because they had been published and implemented with the agreement
of staff representatives. The court explicitly disregarded the fact
that the procedure was established to implement a non-contractual
policy.
In order to mitigate the risk of policies and procedures becoming
contractually binding it is sensible for organisations to avoid
references to outside policies in the employment contract or to
specify clearly that they are non-contractual.
The handbook or other document containing policies and procedures
should specify clearly in its introduction that it is not a
contractual document or, if elements are intended to be contractual,
the handbook should clearly so specify.
Even with these protections, policies and procedures and staff
entitlements contained in the handbook may be found to be
contractual if they have been regularly followed by the organisation
and claims for breach of contract can arise.
Deadman v Bristol City Council [2007] EWCA Civ 822
For further information,
please contact:
JANE KLAUBER on 020 8394
6483, Jane.Klauber@russell-cooke.co.uk
LANDLORDS AND
TENANTS LIABILITY FOR WHAT OTHERS DO ON YOUR PREMISES
Occupiers owe a common duty of care to keep their
premises safe for visitors under the Occupiers Liability Act
1957.
It is important to highlight to the occupier, who may be either a
landlord or tenant, that only appropriate procedures and safeguards
will prevent liability for claims brought by someone who suffers an
injury on their property.
In a recent case, a man slipped on some petals outside a florist
shop on a station concourse. He brought a claim against both the
shop owner, as tenant, and the railway company as landlord of the
site.
The court ruled that only the tenant was negligent in this case.
The landlord had taken steps to supervise the tenant s activities
and had sought to ensure they didn t create a hazard.
This case highlights that if you control premises as the
landlord, you must effectively monitor your tenants to ensure that
they fulfil their obligations under the tenancy, or risk facing a
negligence claim.
Piccolo v Chiltern Railway [2007] All ER (D) 251 (Jul)
For further information,
please contact:
JAMES SINCLAIR TAYLOR on 020
8394 6480, James.SinclairTaylor@russell-cooke.co.uk
BUILDINGS AND THE
ENVIRONMENT
The government has announced its intention to
delay the implementation of energy performance certificates (EPCs)
for non-residential property.
It has now been confirmed that, from 6 April 2008, only those
buildings with a floor area over 10,000 square metres will require a
certificate when built, sold or let. The previous requirement was
500 square metres.
The revised timescale requires EPCs to be provided for the
construction, sale or letting of non-residential buildings with a
floor area over 2,500 square metres from 1 July 2008. From 1 October
2008 they will be required on the remainder of non-residential
buildings.
Display energy certificates will be required from 1 October 2008.
For further information,
please contact:
KATE SLATTERY on 020 8394
6458, kate.slattery@russell-cooke.co.uk
OTHER
EVENTS:
For a full list of forthcoming events
see the Charity Team s web-site at:
http://russellcookesolicitors.createsend4.com/t/1/l/kddyj/l/www.russell-cooke.co.uk/serv_charities_events.htm
The Charity Team
Russell-Cooke Solicitors, 2 Putney
Hill,
Putney, LONDON
SW15 6AB
Tel: 020 8789 9111
http://russellcookesolicitors.createsend4.com/t/1/l/kddyj/l/www.russell-cooke.co.uk
This material does not give a full statement of
the law. It is intended for guidance only, and is not a substitute
for professional advice. No responsibility for loss occasioned as a
result of any person acting or refraining from acting can be
accepted by Russell-Cooke.
To subscribe to this
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and fill in the online request form, or send an email including your
name and email to, charitylegalupdates@russell-cooke.co.uk
An archive of past
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