Legislation Updates
Changes in legislation can influence the buying policies of plant hire companies. Companies must take into consideration a variety of legislative and environmental requirements such as management responsibilities for health and safety, exhaust emissions, noise, vibration, rollover protection etc. This section of the website is devoted to reporting this kind of news item.
Legal | Health & Safety | Transport
Legal
Employment Rights (Increase Of Limits) Order 2009
This Order increases the limits for statutory redundancy payments and tribunal awards which came into effect on the 1st February 2010.
The limit that the employment tribunals apply when calculating compensatory awards for unfair dismissal has reduced from £66,200 to £65,300.
Redundancy payments are calculated on the age of the employee and their length of service. The maximum amount for a “week’s pay” remains at £380, which means the maximum amount awarded is £11,400.
The Statutory Guarantee Payment has been reduced from £21.50 to £21.20 per day for a maximum of 5 days in any 13-week period.
In addition, the weekly Statutory Maternity Pay (SMP) will increase to £124.88 from the 4th April 2010; whilst Statutory Sick Pay (SSP) will remain at £79.15.
National Minimum Wage
The National Minimum Wage (NMW) increased on 1 October 2009 to £5.80 for workers aged 22 and over.
For workers aged 18 to 21 it has increased to £4.83. More information on the National Minimum Wage can be found on the HM Revenue & Customs website: http://www.hmrc.gov.uk/nmw/.
The Employment Act 2008
The key points are:
- There will no longer be an obligation to follow a mandatory dispute resolution procedure. This means that a dismissal will not be automatically unfair where there has been a failure to do so.
- The unfair dismissal test will revert to the position pre-2004.
- The Code sets down minimum standards for dealing with disciplinary and grievance issues and so still mirrors the statutory procedures in many respects. Employers with greater resources will be expected to meet higher standards when conducting disciplinaries and grievances.
- The Code and guidance are not legally binding, so a failure to follow them will not have legal sanctions. However, if a tribunal considers that an employer or employee has unreasonably failed to follow the Code, it may adjust the compensation awarded by up to 25% if it is just and equitable to do so.
- Employees will not have to bring a grievance before submitting a tribunal claim.
- The complex time limits and extensions will be removed; and will now revert back to the pre-2004 position - the normal three month period, in most cases.
- Parties are urged to resolve disputes informally and consider mediation.
How the Code will impact on disciplinaries and grievances
Overall, the new regime should not have significant implications for employers in terms of how they handle workplace dispute issues. The Code essentially retains the three step process found in the current statutory procedures. However, the current position will differ as follows:
- The Code does not apply to redundancy dismissals, the non-renewal of fixed term contracts, collective grievances or, arguably, ill health capability dismissals (these will still be covered by unfair dismissal laws and other existing relevant legislation).
- Disciplinary warnings will now be covered, so employers should allow an appeal against a warning (as well as against a dismissal).
- An Employment Tribunal may vary any settlement awarded by up to 25% if either the Employer or Employee has unreasonably failed to comply with the Code.
- Employers must consider if it is appropriate for an employee to be provided with copies of written evidence, including witness statements, prior to a disciplinary meeting.
- There is an obligation on employers (previously it was just good practice) to advise employees of their right to be accompanied by either a Trades Union representative or a works colleague.
- Employees must be given a "reasonable opportunity" to call witnesses at a disciplinary hearing.
- Employers can proceed with a disciplinary hearing in the employee's absence where an employee has been persistently "unable or unwilling to attend without good cause."
_ There is no equivalent to the statutory modified procedure but the Code includes an obligation to follow a fair procedure before dismissing an employee for gross misconduct.
- An employee no longer needs to raise a grievance before bringing a claim to an Employment Tribunal; but the Code states an employee should initially exhaust the Company's grievance procedure. The employer must treat any written complaint (from the employee or their representatives) that identifies a potential Employment Tribunal claim as triggering the Grievance procedure; this is regardless whether the word "grievance" is used or whether it complies with any contractual grievance procedure and regardless of the employee's intentions.
- Employers may no longer be under an obligation to hear grievances from ex-employees (although it may be sensible to investigate if it is likely that they may bring tribunal proceedings).
- Overlapping grievance and disciplinary issues that proved difficult to deal with under the statutory procedures will be replaced with a less complex system.
- Employees should be involved in the development of rules and procedures (although rules do not need to be 'agreed' with employees). So where an employer is proposing to amend its current disciplinary and grievance procedures; consideration should be given to whether to consult with employees and, if appropriate, their representatives.
Transition period
Although the statutory procedures will be repealed from the 6th April 2009, there will be a transition period during which they will work in parallel with the new Code regime.
The Statutory Disciplinary and Dismissal Procedures will continue to apply even after the 6th April 2009 if, on or before the 5th April 2009 the employer has:
- dismissed the employee;
- taken relevant disciplinary action against the employee; or
- complied with Steps 1 or 2 of the standard procedure, or Step 1 of the modified procedure.
As to the Statutory Grievance Procedures:
- These will continue to apply even after the 6th April 2009 where the date of the whole action about which the employee complains takes place before the 6th April 2009;
- If the action forming the basis of the grievance continues beyond the 6th April 2009, the statutory grievance procedures will still apply, provided that the employee presents a complaint to a tribunal in relation to that grievance on or before the 4th July 2009, or, in the case of an equal pay or redundancy claim, 4th October 2009.
A copy of the ACAS Code of Practice can be found on: www.acas.org.uk
Health & Safety
Quick hitches - what you need to know
Quick hitches on excavators continue to be a source of concern in the industry, and CPA, ConstructionSkills, HSE and other bodies have been working to help owners and users tackle the problem. Semi-automatic quick hitches are not "illegal" or banned - you can continue to supply them on hire equipment. Provided they are used in accordance with the manufacturer’s instructions, they can be used safely. However, all hire companies must check that all quick hitches are in full working order and are complete - the proper safety pin must be supplied with semi-automatic hitches. Any hire company or other supplier that provides incomplete or inadequately maintained quick hitches will almost certainly be prosecuted by the HSE.
Hire company operators must be trained and competent to use any quick hitch fitted to their machine. They need to have read and understood the manufacturer’s instructions about attachment, pin placement on semi-automatic hitches, and how to check visually and through operating the controls that the bucket is attached properly. They also need to know how to carry out daily checks on the hitch mechanism - and most important, they need to understand and recognise that all these procedures are essential and must be done. Otherwise, they may face prosecution and jail for causing the death of another worker.
Hire companies that provide equipment with quick hitches fitted for their customers to use must provide the hitch manufacturer's instructions on attachment, pin placement, checking and inspection. Again, any failure to do so is likely to lead to prosecution.
CPA have produced a summarised guidance sheet aimed at helping your customer understand their duties - this is available free from CPA. Stickers are also available from CPA to go inside the cab to help remind the driver to check that the pin is in.
Training materials for excavator drivers using quick hitches are available from CPCS. Because of the serious safety implications in the use of quick hitches, ConstructionSkills have agreed to make the materials from relevant module from their CPCS training programme available to the industry at no charge - see www.cskills.org/centreandschool/cpcs/index.aspx.
Quick hitches - what CPA is doing
At the end of 2008, CPA were asked to organise and chair a new Plant Safety Group, to be part of the Strategic Forum for Construction.
The Plant Safety Group - chaired by Colin Wood - called industry experts together for a special meeting concerned with quick hitches on 16 January. Nearly 50 people attended, including manufacturers, operators, unions, principal contractors, safety specialists, clients, CPA Members and HSE.
The first part of the meeting was an open forum and heard some very candid descriptions of experiences with quick hitches, and useful explanations from all parties. The group then identified the steps to take next, and looked at the whole range of engineering, management, operational and training issues. After a lot of discussion, the group agreed to priorities that need to be dealt with.
- The Construction Equipment Association (CEA) has agreed to act as liaison for users to be able to pass information and contribute to the process of re-writing the relevant European Standard, EN474.
- CEA will organise a meeting of quick-hitch manufacturers to explore any engineering, provision of information, or other steps they can take.
- CPA will write guidance on hire companies' responsibilities for provision of equipment and information.
- A task group will draft guidance on best practice when using quick hitches, including working practices, management and supervision issues as well as driver behaviour and competence.
- Other sources of supply of second-hand hitches in the UK will be tackled to ensure that quick hitches are complete and appropriate information is passed on.
A smaller focussed group will meet to take the projects forward, with the larger group who attended the first meeting being kept in contact by email. Future meetings will look at communication and implementation of the Best Practice Guidance.
Tower cranes register
A call for a register of tower cranes was made by the DWP Select Committee in 2008, after they had taken evidence from the Battersea Crane Disaster Action Group. Although Government initially rejected these proposals, the Select Committee did not withdraw their concern. As a result, towards the end of 2008 the Secretary of State asked HSE to revisit the issue of register. HSE then asked CPA for input, to help identify options.
HSE's initial report was considered by the HSE Board on 28 January, together with issues of public concern over tower crane safety. The HSE Board decided to recommend to the Secretary of State that a voluntary register should be established first, maintained by HSE or the Health and Safety Laboratory. After the register had been developed to run efficiently and effectively, it should then be put on a statutory footing. No timetable for implementation was discussed by the HSE Board.
CPA will continue to work with HSE as the register is developed.
Transport
Driver CPC (Certificate Of Professional Competence)
Members are reminded of three important points when looking at purchasing Driver CPC periodic training.
- For existing goods vehicle drivers, any periodic training delivered before the 10th September 2009 will not count towards the 35 hours of total training needed to be completed by September 2014. Periodic training must be delivered within a fixed five-year period, which for LGV drivers does not start until the 10th September 2009.
- There is no direct public funding available for Driver CPC periodic training. It may be possible for some training undertaken to achieve a National Vocational Qualification (NVQ) to double-up as Driver CPC periodic training - provided the course meets the criteria to be approved by the Joint Approvals Unit for Periodic Training (JAUPT) and is delivered by an approved training provider (known as the 'centre'). In some cases it may be possible to obtain funding for NVQs, but it should be remembered that an NVQ is a very different type of qualification to the Driver CPC. Gaining an NVQ requires the driver to reach a certain standard and this can take time in preparation and assessments. This commitment should be fully understood before a driver embarks on this type of qualification.
- Ensure that any periodic training undertaken (after the 10th September 2009) is approved and the training centre is approved to deliver that particular course. This can be checked by visiting www.drivercpc-periodictraining.org/approved-centres-courses.
Further information on the Driver CPC can be found in the FTA's compliance guide, which can be downloaded at http://www.fta.co.uk/information/driver-cpc/.