Example Case study Grievous business harm


MR JONES RUNS a successful decorating business with a crew of painters and often undertakes large commercial jobs. Some of his clients have in the past included children’s nurseries and carehomes. Whilst flicking through his local newspaper Mr Jones was alarmed to see that one of his best painters had been convicted for grievous bodily harm. The report stated that the employee had fractured someone’s jaw following a punch up outside a pub, for which he received a 12 week prison sentence suspended for 2 years’. Unfortunately, the report also advised that he was employed by Mr Jones.


What should Mr Jones do?


Mr Jones was extremely unhappy to see that his business was named in the news. His first reaction was to call the employee and sack him for causing embarrassment to the business. But after taking stock, he remembered he had access to the legal helpline, so he called for advice. The advice line established that the employee had over two years’ service and had the right not to be unfairly dismissed. Mr Jones was worried about the reputational damage this situation may cause his business and the risk of losing contracts.


The solution


Mr Jones was advised that whilst there are implications arising from the conviction, all is not lost in terms of a continuing employment relationship. Implications that Mr Jones may encounter, are that when he is contracted to work in a setting such as a school or carehome, his crew may come into contact with children or vulnerable adults, such places have statutory safeguarding obligations towards these vulnerable groups – they must ensure that any individuals working in close proximity to the groups are not likely to place them in danger through acts of violence or other harmful conduct. Any contractor who regularly comes into close contact with vulnerable


groups may need to undergo a criminal records check (otherwise known as DBS check). It is possible that the revelation that this employee has a


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criminal record may either put an organisation off using Mr Jones’s crew altogether or cause them to object to the employee working on the contract. However, with careful negotiation this objection could be overcome.


Mr Jones could discuss and agree with the organisation to work within a segregated zone, this is ideal for the carehome situation. If segregation is not possible then another good solution is for Mr Jones to make arrangements for the crew to paint when the children are off-site (i.e. weekends or holidays). Alternatively, Mr Jones could consider only assigning the employee to work on contracts where contact with any vulnerable groups is unlikely.


Reputational damage Great care has to be taken before making any decision to dismiss an employee based on reputational damage. Within the scope of the law an employer can dismiss an employee fairly if they can show that there is, ‘some other substantial reason’, for the dismissal. However, before a dismissal could be sanctioned on this basis the


employee’s previous character and the circumstances surrounding the incident has to be taken into account. Mr Jones would need to provide the advice line a clear explanation of the details of the incident and the actual financial damage he thinks he would definitely suffer arising from public knowledge of the incident. Although someone’s jaw was broken during the pub brawl it does not necessarily follow that the employee would repeat this behaviour again in the future. And as discussed above concerns for the safety of vulnerable groups are usually manageable or avoidable. The advice line would be able to guide Mr Jones through all these matters and give advice as to whether any proposed dismissal would be reasonable and fair.


Legal Helpline 0345 313 4141 Claims 0345 350 1099


Abbey Legal are proud to be appointed by the Painting & Decorating Association to provide legal expenses protection for their Members. Further Legal Protection bulletins relevant to your industry will appear in future editions of The Decorator.


New occupational health framework makes progress


B&CE HAVE BEEN working hard to develop a new, simplified occupational health scheme that works for the construction industry. This summer, they consulted with the industry on the proposed three-year plan that clarifies the complex health and safety legislation that employers need to comply with. By implementing it, employers will have confidence that they are legally compliant, and that workers’ health is being consistently assessed as they move from job to job. The framework was developed in collaboration with an Occupational Health (OH) Steering Group made up of employers, occupational health professionals, regulators and Federations. Through both face-to-face events and an online


consultation, B&CE received feedback that the framework provides a simple, clear and robust


16 decorator


approach to managing workers’ health. Many agreed that the term ‘Safety Critical Worker’ has caused confusion, leading to overuse, and that removing it would be beneficial. B&CE’s proposed approach ensures that the effects of health conditions will be appropriately considered for everyone undergoing a framework assessment. Respondents also challenged B&CE on the


proposed framework cycle, legal compliance, availability and accessibility, training and of course, cost. These points are all being considered as they develop the next iteration of the framework. A number of respondents asked why mental health


is not included. Raising awareness of, and improving mental health outcomes, is vital for an industry with worrying levels of stress, anxiety and suicide rates. However, there is no one, simple, evidence-based


You can keep up to date with developments at www.bandce.co.uk/occupational-health.co.uk


way for occupational health professionals to assess the many types and forms of mental health conditions. B&CE will continue to work with the Steering Group to review developments in this area, and include them when appropriate. Chief Executive Patrick Heath-Lay said, “Industry


is eager for a solution, and we are working hard to make sure we get one that is absolutely right. Work has started on the digital platform, as using the power of technology is vital to achieving our goal of an efficient, cost effective solution. We’ve got a lot to do, and we will continue to collaborate with the industry as we make progress.”


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