Between management fees and incorrectly apportioned service charges – SMART has recovered £17,000 for the tenant in overpaid fees across a three year period, and successfully negotiated a fully capped 19% reduction in overall fees for 2010/11.

So frequently this is completely overlooked by tenants and they just go along paying whatever is asked of them. I would urge all commercial tenants to carefully examine the audited figures supplied by the Management Co, or the Landlord’s representative. They can be quite wrong when you start digging into it!

Service charges in the UK have always been considered an enigma. Though the tenant pays for services within the building they do not instruct the contractors, or have control over either the amounts spent – or standards of service. It is of course in the landlord’s interest to charge his tenants for building improvements which ultimately enhance the landlord’s value in the building.

SMART will thoroughly investigate the arrangements between all parties; during this process the following brief list is considered to be ‘essential’ for auditing purposes.

• Common parts and or reception upgrading
• External works
• New fittings (Why, where and to whose overall benefit?)
• Works to vacant areas and not common parts
• New CCTV (Frequently charged elsewhere)
• Erroneous percentages used to assign costs
• Building Defects
• Fees charged by Managing agents or Management Co directly
• Initial set up fees
• Cappings in the lease not taken into account
• Liability for lifts for ground floor tenants
• Building layout and proportioned sq ft demised responsibilities
• Poor and or unessential maintenance
• Electrical / Gas / Water upgrade works
• Sinking or depreciation fund (can be time limited)
• Benefits to some tenants and not to others
• Air conditioning installation or upgrading
• Plant or heating upgrading

Areas where SMART audit to potentially recover or reduce costings:

• Extensive works to the building may constitute ‘improvements’ and are not generally recoverable from tenants who are only liable for ‘repairs’
• Incorrect allocation of costs among tenants
• Items that are being reclaimed from the tenant that are not recoverable under the terms of the lease
• Limitation of recovery of fees and costs within the lease
• Service charge caps in leases not correctly calculated or used

Brian Nixon of Evesham, Worcestershire, and managing director of Transtore (UK) Ltd was also fined £17,000.

Workers at Transtore (UK) Ltd in Stratford-upon-Avon were exposed to lead and other harmful chemicals while paint was sprayed at the plant without the correct safety measures in place. Workers were also put at risk of falls from height with no safety equipment provided.

Inspectors from the Health and Safety Executive (HSE) investigated and prosecuted Mr Nixon and Transtore (UK) Ltd in Stratford-upon-Avon, after a receiving a complaint from a concerned employee.

Mr Nixon was also ordered to pay £9,169 costs after admitting breaching Regulation 4(1) of the Work at Height Regulations 2005 and Section 33(1)(g) of the Health and Safety at Work etc. Act 1974 at Stratford-upon-Avon Magistrates’ Court today.

The company, Transtore (UK) Ltd, based at Long Marston Storage, Campden Road, Stratford-upon-Avon was fined £70,000, with costs of £27,507 after being found guilty of eight separate breaches of health and safety law. The company is now in administration.

During HSE’s investigation, specialist inspectors took air samples as well as blood and urine samples from the workers to assess their exposure to lead, among other harmful chemicals in the plant that was being sprayed unsafely.

The company was condemned for allowing workers to spray paint, containing toxic lead chromate, without adequate controls in place, leaving them to breathe in harmful fumes and absorb lead into their blood.

Five workers needed blood and urine tests, with the fumes having the potential to cause headaches, tiredness, and stomach pains. Long-term exposure can led to irreversible central and peripheral nervous system damage, kidney damage and gastrointestinal problems.

All results from the workers showed higher levels of lead than the UK population average.
A worker balances precariously while working on top of one of the fuel tanks.[3]

A worker balances precariously while working on top of one of the fuel tanks.

Workers were also expected to stand beneath the half-tonne fuel tanks they were painting during the spraying process with nothing to prevent them from being crushed if the lifting equipment, which had not been maintained or checked properly, had failed.

The company was also criticised for allowing its employees to work on top of the tanks with no safety equipment to prevent them falling two metres on to the concrete floor. The workers received no training or instructions and were left to devise their own systems of work.

HSE served four prohibition notices on the company during its investigation to immediately stop unsafe work. It also issued four improvement notices. Mr Nixon ignored the notice prohibiting work at height and continued to instruct his employees to work on top of the tanks.

HSE Inspector Peter Snelgrove said:

“Mr Nixon deliberately flouted health and safety laws and paid scant regard to the safety of his employees. I agree with what the District Judge said in court about it being a lamentable situation and it was very fortunate that there were no injuries before we carried out our investigation. Legal proceedings highlighted that there was a complete flagrant lack of attention and as we heard in court, a gross dereliction of duty by the management of this company.

“Companies and their managing directors have a legal responsibility to protect their employees. No one should be expected to work in the conditions found at Transtore and it is quite right that an employee contacted HSE to complain. Failure to properly manage health and safety can have catastrophic results.”

Transtore (UK) Ltd was found guilty of breaching:

* Regulation 6(1) of the Control of Lead at Work Regulations 2002;

* Regulation 4(1) of the Work at Height Regulations 2005;

* Regulation 8(1)(c) of the Lifting Operations and Lifting Equipment Regulations 1998;

* Regulation 21(1) of the Workplace (Health, Safety and Welfare) Regulations 1992;

* Regulation 13(2) of the Management of Health and Safety at Work Regulations 1999;

It was also found guilty of contravening on three occasions prohibition notices that had been issued under section 22 of the Health and Safety at Work etc. Act 1974.

1. Business use Insurance

2. A correct driving licence

3. MOT certificate (if relevant).

A common question is about refusals to submit said information to the employer, and where does it state that they should be permitted to see this information?

To be straight it does not say it anywhere et al. However, with the Road Traffic Acts, HSW Act, Associated Management Regulations , this should be more than sufficient for an employer to hold, retain and update this information on individual employees. A refusal to submit this information usually means one thing…

I advise my clients, if an employee refuses to supply this information,  he/she does not drive on work business…period!

It is law that an individual should be insured and suitably licenced to drive on the highway. The vehicle also should be suitably safe (MOT) to use.

I heard this today…”well, it is not really driving at work, they only go to town to pick up copy paper or provisions, they don’t need business use insurance for that…do they?”  Well yes siree Bob they do, an accident and claim makes no definition between a trip to the shops on business or a trip between work locations. Be absolutely certain before you let an employee drive his/her own vehicle on company business that you have treated the process just the same as you would with any other work whilst in your employ.

Driving is no different, all employers have a duty to provide training; with driving you need to know the individual is trained and permitted to use the roads…and a vehicle for same.

Be warned if you decide to ignore this. You could be on the end of a hefty fine, and or a custodial sentence, and even the loss of your company should the Corporate Manslaughter Act be considered…and yes it can for road related in certain circumstances so don’t believe all the nonsense you hear that road related is solely a Police interest; it is not!

Above and beyond though…you have a moral duty. Can you imagine living with it for the rest of your life…if an employee was killed on the roads whilst in your employ, and you forgot to make certain they were qualified and competent to drive…makes you think doesn’t it?

I received a call from a potential client (tenant) with this problem in mind. We met and they explained  what they were allegedly paying for, and that they were not receiving what had been detailed.

With many years of experience in this particular area, I immediately set to work on the tenants instruction. It took almost three days to unearth everything relating to their concerns, and much I had to find for myself as no-one was available to assist me. A further two days was spent disseminating the information – and comparing the costings against what the tenant was paying for.

The deeper I delved the more I uncovered. As a consequence, we have written to the landlord and insisted on a refund for the last three years S/C & M/F amounting to almost £21,000. this figure represents the overpayment my client has made during a three year occupancy period. It is likely of course that this will go back and forth for some considerable period of time (and attract further penalties by way of interest payments?.

This one is an extremely blatant one,  and clearly demonstrates how carefully a tenant should examine the audited accounts annually. The upshot of this particular audit has revealed that what the tenant was being charged for was not provided, nor were proportional figures in the slightest bit accurate or realistic to the occupied footprint.

The tenant will almost certainly need to take this through a court of law if the landlord does not see reason, and make the necessary refund of overpayments during the thirty-six month period in question (since occupation).

The landlord will almost certainly come back with one reason after another why it is accurate. I will in that case recommend a further independent audit for final arbitration.  At that juncture the landlord will have two alternatives. Refund the overcharge – or go to court to argue the toss.

Having worked on both sides of the fence in recent years I know only too well how certain things can slip through the net.

SMART can either make a charge for my time spent, or agree a percentage payment based on what they find is genuinely owed to the tenant or work to a performance fee based on the amount of recovery.

Frequently I know the wrong percentage has been used for the client’s demise, and it has been said that up to 50% of service charge statements are inaccurate. In this particular case I found that charges had been made to the tenant that were solely those of the landlord, and in addition they were paying on a square metre basis which accounted for some 28% more that they occupied. There was more of course; these though were the rather more obvious ones I came across.

The Health and Safety Executive’s (HSE) new campaign ‘do your bit’ is in response to workplace research which provides evidence to suggest that involving workers has a positive effect on health and safety performance.

The ‘do your bit’ campaign is a year long initiative offering free or subsidised training courses to help businesses get their employees more involved in improving their health and safety.

To support the campaign, HSE has launched a new website which provides practical advice and materials for businesses and details of the upcoming series of training opportunities. In addition, it features first hand accounts from businesses who are already reaping the rewards from actively involving workers in health and safety.

Judith Hackitt, Chair of HSE, said: “Where businesses have good workforce involvement they also often achieve better performance in health and safety and experience better productivity because their staff are motivated and feel engaged in the organisation.”

Katja Hall, CBI Director of Employment Policy, said: “Good health and safety performance relies on employees and employers working together. The HSE worker involvement campaign will not only play an important role in boosting people’s understanding of their role in health and safety management, but can also help businesses understand and remove barriers to good worker involvement.”

HSE is initially aiming the campaign and subsidised training for new potential health and safety representatives at the construction, manufacturing, transport and motor vehicle repair sectors.

Any organisations seeking to improve on their existing consultation and worker involvement arrangements can express their interest in a fully funded training package.

Organisations can register for either of the above offers of training at www.hse.gov.uk/doyourbit.

Held

The Judge had to decide whether the evidence showed, on the balance of probabilities, that a seat belt would sufficiently have reduced the injuries to require a reduction for contributory negligence. The Court of Appeal held that this decision was a fine one and she was entitled to say that the issue of causation had not been proved.

Comment

This case is an important reminder that, when seeking to argue contributory negligence for not wearing a seatbelt, it is vital that there is clear expert evidence that a seatbelt would have reduced the severity of the injury. This evidence should come from an appropriately qualified medical expert. Only once causation has been proved will a court decide whether a reduction of 15% or 25% for contributory negligence should apply.

The decision is also the latest in a long line of attempted challenges to the guidance set out by Lord Denning in Froom v Butcher [1976]. Given the Court of Appeal’s findings, it was not necessary for the Court of Appeal to review Froom v Butcher in detail. However, in a clear endorsement of this decision, Lord Justice Hughes stated that no indication should be taken “that I would otherwise have welcomed the opportunity to re-visit the judicial anticipation of modern public attitudes which underlay Froom v Butcher.”

What would it take for Froom v Butcher to be overturned? As the Court of Appeal pointed out in this most recent decision, there is a powerful public interest in there not being an enquiry into fine degrees of contributory negligence, but this would not necessarily prevent the figures of 15% and 25% being increased. It is clear that there is judicial resistance to any changes being made. However, that is not to say that if an insurer picked the right case, and collated strong evidence from appropriate experts, another challenge could not be made.

With thanks to Kennedys for this article.

Kennedys is one of the leading dispute resolution firms in the City of London. The firm has 109 partners. It has seven UK offices; one in the City and one each in Belfast, Birmingham, Chelmsford, Cambridge, Maidstone, Manchester and Taunton. Worldwide the firm has offices in Spain, Dubai, Hong Kong, Singapore, Sydney and New Zealand and associated offices in India, Ireland, Pakistan, the US, France, Australia, Poland, Portugal, Dubai and UAE.

The firm is a major player in the insurance/reinsurance dispute resolution field and also has a great depth of expertise in areas such as employment law, health & safety,   clinical negligence, construction, corporate recovery, regulatory defence and company and commercial law.

SMART Health & Safety Solutions would not hesitate to recommend – and work jointly with this specialist law firm on matters related to professional legal representation.

The last twenty years have seen a dramatic rise in the number of cases of skin cancer. In the UK alone, the number of new cases has nearly doubled. We now have over 40,000 new cases – and over 2000 deaths every year from skin cancer. Though statistically it is the second most common form of cancer, many experts think it is probably the most common because many minor cases are not officially registered.

Nowadays however most cases of skin cancer are completely curable. Nine out of ten cases are NON-MELANOMA of which there are two types, basal cell carcinoma and squamous cell carcinoma. These are rarely fatal if treated early, and they tend to appear on the more exposed parts of the body in later life. It is thought that they arise as a result of cumulative exposure to the sun and are therefore more common in older people and those who have spent much of their time outdoors, for instance agricultural workers.

One in ten cases, however are the more dangerous MALIGNANT MELANOMAS. These spread rapidly and can kill if not treated quickly. They can often be linked to sunburn or occasional overexposure, and are more common in younger people. For this reason children and infants, who tend to spend more time outdoors, need special care.

Employers have a legal duty to protect the health and safety of their employees.

Health and Safety at Work Act (1974)

Management of Health and Safety at Work Regulations (1999)

There is information about employers’ legal obligations on the Health and Safety Executive website.

If you are an employer or manager responsible for people whose work keeps them outside for most of the day, please read this leaflet. It gives advice on reducing the health risks for your employees when they are working in the sun.

Exposure to ultraviolet (UV) radiation from the sun can cause skin damage including sunburn, blistering, skin ageing and in the long term can lead to skin cancer. Skin cancer is the most common form of cancer in the UK, with over 40 000 new cases diagnosed each year.

UV radiation should be considered an occupational hazard for people who work outdoors.

Who then is at risk?

People with pale skin are most at risk of skin damage, especially those with fair or red hair, with a lot of freckles or with a family history of skin cancer.

People with brown or black skin are at low risk but people of all skin colours can suffer from overheating and dehydration.

Include sun protection advice in routine health and safety training. Inform workers that a tan is not healthy – it is a sign that skin has already been damaged by the sun.

What can I do as an employer?

Encourage workers to keep covered up during the summer months – especially at lunch time when the sun is at its hottest. They can cover up with a long-sleeved shirt, and a hat with a brim or flap that protects the ears and neck.

Encourage workers to use sunscreen of at least SPF (Sun Protection Factor) 15 on any part of the body they can’t cover up and to apply it as directed on the product. They might prefer to use a spray or an alcohol-based (non-greasy) sunscreen.

Encourage workers to take their breaks in the shade, if possible, rather than staying out in the sun.

Consider scheduling work to minimise exposure.

Provide water points and rest areas in the shade.

Encourage workers to drink plenty of water to avoid dehydration.

Keep your workers informed about the dangers of sun exposure – make use of the Health and Safety Executive (HSE) leaflet Keep your top on (see ‘Further information’). See links at the end of this article.

Encourage workers to check their skin regularly for unusual spots or moles that change size, shape or colour and to seek medical advice promptly if they find anything that causes them concern. Consulting your employees and their safety representatives is important. Take their views into account when introducing any new sun safety initiatives.

What benefits are there?

Fewer absence days through sunburn.

A healthier and better-informed workforce.

Reduced risk to employees of skin cancer from
long-term sun exposure.

Sun Protection six-point code.

Keep your top on. Clothing forms a barrier to the sun’s harmful rays- especially tightly woven fabrics;

Wear a hat with a brim or flap that covers the back of neck and ears- avoiding sunburn;

Stay in the shade, whenever possible, especially at lunchtime;

Use a high factor sunscreen of at least factor SPF 15 on exposed skin. Apply as directed on the product;

Drink plenty of water to avoid dehydration;

Check your skin regularly for unusual spots or moles which may have changed. See a doctor immediately if you see anything that is changed in shape, size, colour, itching or bleeding .

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]]> http://www.smarthss.co.uk/2010/03/11/skin-safety-in-the-sun/feed/ 0 http://www.smarthss.co.uk/2010/03/11/farming-safely-2/ http://www.smarthss.co.uk/2010/03/11/farming-safely-2/#comments Thu, 11 Mar 2010 09:42:08 +0000 SMART http://www.smarthss.co.uk/?p=517 With the fine weather just around the corner (says who?) Farmers face long days over coming months to once again generate sufficient income to survive. Needless to say, accidents are not something wished upon the community, but these long days and temporary workers put great strains on farmers. The HSE have launched a new website dedicated to helping the farming community. I would urge everyone in this industry to take advantage of this service.

SMART Health & Safety Solutions can also assist Farmers to achieve a zero tolerance and expectation to accidents during their farm based activities.

(SHAD) Safety & Health Awareness day.

Too many farmers are dying as a result of work activities. A Safety and Health Awareness Day (SHAD) provides an excellent opportunity for those working on farms get practical advice free of charge from trained instructors with an industry background and take often simple and cheap precautions to avoid people being killed, injured or made ill on their farm.

HSE Wins award for ‘Make the Promise’ campaign.

The campaign urging farmers to ‘Make the promise. Come home safe’ in a bid to reduce the high rate of death and injury in the sector, has won a prestigious marketing award

Campaign press release

Make the promise

Rail Crossings.

User-worked rail crossings (i.e. those without automatic barriers, etc) pose a significant risk to road and rail users. As farm vehicles and machinery get wider, longer and higher, it takes more time to cross rail tracks and the risk of a collision is increased. This topic has been featured at several ‘transport safety’ events this year and Network Rail and the Office for Rail Regulation (ORR) hope to run further events for authorised users (mainly farmers) and others such as contractors, utility companies, etc. If you would be interested in attending one of these sessions please contact alan.plom@hse.gsi.gov.uk

Meanwhile, if you have an issue or need advice concerning a specific crossing contact Network Rail on 08457 114141.

Pesticides Annual Report.

Figures published in HSE’s annual Pesticides Incident Report 2008/09 show a decrease in the total number of incidents and complaints involving pesticides reported and investigated by the Field Operations Directorate (FOD) of HSE between 1 April 2008 and 31 March 2009.

During the year, FOD staff investigated 92 reported pesticide incidents, including 33 cases involving allegations of ill health. The majority of people involved in reported incidents were, as in previous years, members of the public.

The report comprises statistical information on complaints and enforcement, a report on alleged ill-health incidents reviewed by HSE’s Pesticide Incidents Appraisal Panel (PIAP) and environmental and other complaints not alleging ill health.

PIAP considered all 33 of the reported incidents involving allegations of ill health. The panel assessed 12 of these cases as ‘likely’ to be linked to pesticide usage.

Full report

New Agricultural Website.

In line with changes to HSE’s website the site is here;  Agriculture webpages.

In addition to ‘Farmwise’ HSE’s suite of free guidance covering a wide-range of agriculture health and safety topics and issues are also available on HSE’s website.

Agriculture publications

Overhead Power-lines: Incidents.

Outdoor workers are being urged to take extra care near overhead electricity lines after two men suffered 11,000-volt electric shocks and burns.

Two Norfolk teenagers suffered electric shocks while working on a farm near Thetford

Remember also to keep machinery in tip top working condition!

Vickers Construction Limited, of Yarm Road, Eaglescliffe, was today (8 March) also ordered to pay costs of £3,178.10 at Darlington Magistrates’ Court after it pleaded guilty to breaching section 2(1) of the Health and Safety at Work etc act 1974.

The court heard how on 25 November 2008, an excavator was being used to dig a trench for drainage pipes on a sloping bank at the Allanbrae site, near Newton Aycliffe, County Durham.

Construction worker, John Taylor, 44 of Thornaby was laying pipes when the trench wall collapsed. Mr Taylor was trapped from the waist down for more than two hours and also suffered bruising to his legs.

An investigation by the Health and Safety Executive (HSE) showed that the driver of the excavator had not received suitable training in its use.

After the case, HSE Inspector Dr Dave Shallow, said:

“Trench collapses are a well-known cause of serious injuries and deaths in the construction industry and this incident could have easily been avoided.

“The employee using the excavator should have been properly trained and industry guidance, which recommends providing shoring or trench boxes, should have been followed.

“Companies need to recognise the dangers of excavations and ensure safe systems of work are in place before workers enter excavations.”

Oxford Cambridge and RSA Examinations is a Company Limited by Guarantee Registered in England.

Company number: 3484466

Level five includes;

Competence that involves the application of a range of fundamental principles across a wide and often unpredictable variety of contexts. Very substantial personal autonomy and often significant responsibility for the work of others and for the allocation of substantial resources features strongly, as do personal accountabilities for analysis, diagnosis, design, planning, execution and evaluation.

The UCA state it is;

Equivalent diploma, Master’s degree PhD, PGC.

So now you now;-)

OCR level five