With the rise in UK immigration, employers failing to ensure non-English speaking staff understand health and safety requirements are risking personal injury claims and allegations of race discrimination. Peter Forshaw reports
In the last financial year, figures from the Local Government Authority and other organisations show that approximately 270,000 workers from outside the UK registered to work in this country - many from Eastern Europe. Newspaper headlines over recent weeks have highlighted a perceived national concern over the rise in these figures. However, while politicians seek to gain political points over the issue, the increase in foreign workers brings both immediate rewards and challenges for the leisure industry in particular.
The advantages are obvious - the large numbers of foreign nationals provide a ready, willing and able workforce. But from a practical and legal point of view, the use of foreign workers particularly in venues that serve the public, gives rise to fresh challenges, which need to be addressed.
Any employer must take steps to ensure a potential employee is permitted to work in the UK (either by means of EEA citizenship or work permit) to avoid criminal prosecution. On a practical level, those interacting with the public need to be equipped with the appropriate language and social skills to provide the expected service to the customer.
This can leave those with a poorer grasp of English carrying out less interactive jobs, such as cleaning, food preparation or stock handling. However, as such activities can have greater repercussions for both staff and customers, the need for appropriate management of all workers is essential.
Health and safety trainingIt is sometimes easy to overlook the fact that all workers in this field fall under the protection of the Health & Safety at Work Act 1974 and the various resulting regulations, with breaches giving rise to civil liability. A licensee must therefore take the engagement of any foreign workers into account and comply with his statutory obligations with this in mind. One of the most obvious areas is in relation to training.
The requirement to ensure that workers are appropriately trained is a mainstay of many of the regulations. For example, those using any work equipment from knives in a kitchen to drink-dispensing equipment must be appropriately trained in relation to their safe usage.
But even if the content of the training deals with the appropriate risks, it is not enough to assume that the provision of training in English will necessarily ensure statutory compliance. The duty to train involves not only a comprehensive explanation in ordinary language but also some appraisal as to whether the employee has understood the instruction and training.
This may require producing signs, guidelines and information in other languages or having some objective means of ensuring understanding, including regular review meetings. Pictorial instruction should also be considered, which will cross language barriers. Nothing should be assumed.
As recent case law seems intent on extending the doctrine of vicarious liability and the range of activities by employees for which employers are liable, it is increasingly important that all staff are trained appropriately to understand the dangers in the workplace and the effects that their actions can have on others.
Do they understand?
Employers need to ensure that information and warnings are either translated or have been understood when given in English. Are warning signs appropriately worded for all staff, whatever their nationality, to understand them? It is important that all employees know and comprehend the limit of their authority, based on their ability, and again there must be evidence of effective communication to all staff.
Employers also have an obligation to carry out risk assessments of all risks to health under the Management of Health & Safety at Work Regulations. This must take account of the fact that the workforce comprises staff of all abilities, (irrespective of their nationality).
Any policies introduced should be implemented universally and not targeted against foreign employees, to avoid falling foul of race discrimination legislation. Ensuring that documents and resulting policies are compliant is something where specialist employment law advice may be necessary.
Where there is an obligation to medically examine, for example, those working with hazardous chemicals or in noisy clubs, it is not enough to ensure that foreign workers know when to report problems. The means must be present to be able to report any issues without language difficulties and for them to understand anything asked on assessment. In extreme cases this may require the use of an interpreter.
Whatever the nationality of employees, the risks to insurers of a workforce that has not been appropriately trained in respect of health and safety are obvious. Whether it is injury to the employee themselves or an employee's actions affecting colleagues or visitors (such as a worker undertaking cleaning but not appreciating the need to erect wet floor signs or cordon off), a lack of clear, understood training will result in a greater number of accidents and claims.
Not only does this lead to greater financial outlay for insurers, but also the rise in the employment of foreign nationals can create difficulties in undertaking detailed investigation to establish whether a defence exists.
Again, if an insured has internal translation or other services this may assist the process. Otherwise, in extreme cases, insurers may have to consider engaging their own translator to assist on-site visits and other investigations. Insurers may also want to insist on policy conditions precedent, including documented systems for all workers to show:
Many of the stringent duties imposed on employers under the regulations rely for compliance on each individual worker knowing and understanding what is expected of them and operating their own safe systems of work. This in turn requires any language or cultural barriers being respected and overcome.
Equally, it is incumbent on the HSE to ensure that immigrant workers are not taken advantage of or expected to work in unsafe surroundings. This way the leisure industry will continue to ensure a safe working environment for all and preserve the continued successful trading of licensed premises in the UK. IT
' Peter Forshaw is partner and head of the leisure unit at national law firm Weightmans