Sederunt: R Brownlee R McLean L Johnson P J Colqhuon A Reid S J Millar P Conway G MaGregor G McGlade A Milne D Millar J Brannigan C Wilmott B Byrne N Doherty B Davies N Oliver C Black A White B McCracken M Bancroft R Lovering K Lloyd R Hunter G McGeorge G Pearson Dick Mxxxxxx (WLC) T Sayer M Scott-Smith V Stewart D Gillespie E Galloway A Diment K Shaw I M Murray L Crichton J Fell Susan XXXX (Standard Life) Yvonne XXX (Standard Life) Gesina Tait K Miller

Apologies: Charlie Ralley, Davie Duff, Liz Young, Chris White, Karen MacDonnell, David Brown, Cathy Cave, Neal Robertson, John Usher, G MacNab, D Sinclair, Jim Hepburn, Peter Quill, Brian Sweeney, Jim McCraith, Sandy Chisholm, Bob Stainton, Karen McDonnell.

1.0 CHAIR: Richard Lovering took the Chair and outlined the usual arrangement for safety, parking etc.

2.0 MINUTES OF PREVIOUS MEETINGS (May 2003)

2.1 Receipt: All present had received their copies but Max commented that a few emails had "bounced" so if some members were expecting the electronic version and it hadn’t arrived, they should contact him.

2.2 Accuracy: Prof Miller in Item 10 was incorrectly described as Prof Mitchell. With this change the Minutes were agreed a true record – proposed by Roddy McLean and seconded by Larry Johnson.

3.0 MATTERS ARISING NOT ON AGENDA : None.

4.0 CORRESPONDENCE

4.1 SAL (Scientific Analysis Laboratories) Ltd (with base in East Kilbride) offers accredited services for the Environment, safety, chemical, petrochemical and manufacturing sectors of industry throughout the UK and Europe especially for sonsultants who don’t have their own analytical facilities.

4.2 Fife Chamber of Safety: their new website now includes a link to Barbour Briefing

4.3 Borders Construction Industry Forum – details of a Safety Seminar: 17th June: Working at Heights.

4.4 Falkirk College are working on the delivery and development of the NEBOSH Diploma in Occupational Safety and Health and are currently developing accreditation documents for delivering the NEBOSH Construction Certificate and NEBOSH Specialist Diploma in Environmental Management. If there are any members of the branch who are interested in becoming involved in the delivery of any of these NEBOSH programmes then they would be glad to hear from them.

4.5 HQ - New Services for Members: H&S Legal Helpline & Careers Guidance.

4.6 Safe & Healthy Working Initiative for SMEs have a variety of jobs as Regional Advisor - Scotland West, Tayside, Grampian, Orkney. Details on website or from Secretary.

5.0 BRANCH EDUCATION DEVELOPMENT ADVISOR - Liz Young. No report.

6.1 PUBLIC SERVICES - Marion Johnstone. At the last meeting there had been an update from the HSE who were looking at the topic of the circumstances under which Councillors could be prosecuted under HASAW. The SG were also looking at benchmarking tools for best practice. Articles were required for PS News and the National Safety Symposium was due to be held on 1/3 Sept 2003. There was an indication that the Revitalising Targets might be adjusted.

6.2 CONSTRUCTION - Roddy McLean. Roddy reported that HSE were starting to check that personnel wearing RPE on construction sites had had a "face fit" test to ensure a good seal as required by the new COSHH Regs. From the start of 2004 CTA cards will be reinforced by a driver’s log book. 300 hours were required to maintain certification.

6.3 FIRE RISK MANAGEMENT - Dave Sinclair: No report.

6.4 HEALTHCARE - Martin Scott-Smith. No report.

6.5 ENVIRONMENT - Max Bancroft. Max is now passing on information via email which may be of interest to members of the SG. If you are in the SG but receiving nothing send Max you up-to-date email address. Two members had volunteered to represent the Branch on an ad-hoc basis at the quarterly HQ meetings of the SG and the Exec would finalise this.

6.6 OFFSHORE - Tam Boyd: No report.

6.7 RAILWAYS - Need a representative

6.8 CONSULTANCY - Derek Cawkwell: No report.

6.9 SAFETY SCIENCES - Steve Boucher: No report.

6.10 TELECOMMUNICATIONS – need a representative

6.11 EDUCATION - need a representative

Programme for 2003/2004 was now finalised and will go out in the summer mailing to all members.

8.0 MEMBERS ITEMS

8.1 Treasurer's Report: from AGM: Kevin reported that this now conformed with the new system set out by HQ post 1 April 2003. The books did balance and he would append the statement to the minutes once the auditors had finished their task.

8.2 Roger Midson Challenge Trophy: Branch Exec decided to run in May 2004 – also considering possible "sport" to play.

8.3 Site Visit: 27 June: Scottish Courage Brewery: - some places still left so be in touch with Marion.

8.4 Transport Safety Seminar in November: progressing – will be confirming before summer whether all in place for it go ahead.

8.5 Secretary’s Sipper: Chris White had made the initial booking but the date chosen was not suitable for any member of the Exec to organize it. Event was postponed while Exec look for a volunteer from the golfing fraternity who will take on the organization of this event.

8.6 One member commented on the idea of mutual help propounded by the Chair and given concrete expression in the encouragement of members to relate their own experiences in a 10 minute presentation. He suggested that this be extended further by enabling members to access the membership list and contact each other directly. It was noted that some other professional organizations did this. It was also noted that members would have to agree, under Data Protection, to make their names and details generally available.

8.7 Roddy McLean would be glad if members who had a safety induction procedure could supply him with a copy to assist him in developing his own.

8.8 It was noted that the new RoSPA Accident book had been published and was starting to be used and was being well received.

8.8 RoSPA were continuing to gather information on road transport safety as it applied to work and this might be published in November. Their Congress would eb 10/11^th Spt in Glasgow.

Roddy McLean introduced the speaker as Professor Miller as a Professor in Law at Strathclyde University, at which stage he speaker indicated the members should call him Kenny the same as everyone else did (except his mother on occasions).

Kenny then started by saying he should apologise for being late – despite the usual comment from his wife that he was always late, he did feel that on this occasion as he had originally been booked to speak to the Edinburgh Branch in June of 2002, but had to cry-off at short notice, he felt that being 12 months late did require an apology.

The speaker indicated that he intended to cover two recent issues covering case law from –

1. Exposure to asbestos claims (Mesothelioma)

2. Claims based on stress-related illness

Both of these issues he felt were demonstrating changes from the original judges’ rulings on the issues.

The major issue here revolved around six cases in all (Fairchild et al) all heard in England, but were based around cases where the plaintiff had contracted Mesothelioma after admittedly negligent exposure to asbestos during employment with a number of employers.

With Mesothelioma it is considered only to be triggered by a single event, it is not dose related like other forms of asbestos related diseases such as Asbestosis and Pneumoconiosis and as the plaintiffs had in fact worked at a number of different employers it was not possible to pin-point exactly which employer was to be held accountable for the illness. With other forms of asbestos related illnesses it tends to follow that if an employee worked at one Company for a period of 3 years out of a total of 30 years of exposure to asbestos, that Company could be held accountable for 3/30ths or 1/10^th of the award, but this proportionate arrangement does not work for Mesothelioma where each one of the employers may be guilty or not of the actual exposure which caused the illness which did not show until perhaps 30 years after the exposure.

The claims failed and following going to the Court of Appeal it was stated that they failed because the plaintiff could not establish when the asbestos was inhaled which generated the disease. They then went on to explain the reasons for the failure as –

The case was taken to the House of Lords, utilizing another case to show it was not fair to expect an employee to actually identify the disease causing exposure. The case used was – McGhee v NCB, where an employee working in a hot and dusty environment, who had to cycle home after work before he was able to wash off caked on dust and sweat as there were no washing facilities in the factory, such that he contracted dermatitis. The employer claimed that as there were a number of conditions, some of which would be out of the work environment, which could create dermatitis so it could not be established that it was purely the employer’s failure to provide washing facilities that caused the disease.

However the House of Lords held that the Court of Appeal erred in applying the normal "but for" test, (but for the lack of washing facilities, he would not have contacted dermatitis). The House of Lords held that the test can be departed from when justice requires it and this they held was the issue for the claim for Mesothelioma, where the special circumstances were - multiple employers, - each with a duty to protect the employee – risk arises out of the employer’s failure, - limitations of medical science prevent the plaintiff from establishing exactly when the disease occurred. They held that the approach used in the McGhee case was to be applied – viz – liability will be established where a breach of duty materially increased the risk to the employee of contracting the disease.

The effect is that the entire damages are awarded against the employer who is sued for the event. The House of Lords admitted that this approach could mean that an employer could be held 100% liable where it did not cause the disease, however such an approach was preferable to one which denied the employee a remedy because medical evidence could not identify the exposure which caused the event

Stress-related illness claims

Kenny started off by stating that the members may not like to agree with some of the viewpoint issues dealt with here as they are based from a compensation viewpoint rather than a Safety viewpoint, which follows the practice that prevention is better than cure.

The principle case being defined here was to be Sutherland v Hatton although there were in fact four cases – all were successful in the first hearing but only one was upheld by the Court of Appeal.

The key issues for consideration fell into three categories – General duties to all employees, Specific duties to those who have been identified as being at risk, and extra specific duties for those employees shown to be suffering from stress-related illness.

• Sabbatical leave
• Transferring the employee
• Redistribution of the work
• Providing extra help
• Treatment or counseling provision
• Use of mentoring schemes

NOTE: Reasonable steps may depend on – employer size (they expect more from the larger organization), resources, public/private sector, and the interests of other employees

Crucial Point : The Court of Appeal held that an employer who tries to balance all these interests by providing a confidential advice service, with referral to appropriate counseling or treatment, to employees who are worried about stress, is unlikely to be found to be in breach of duty.

The only exception would be where an employer has placed wholly unreasonable demands upon an employee in a case where the risk of harm is clear

It is not necessary to show that the employer’s breach of duty was the whole cause of the stress: it is enough if the breach made a material contribution

Whilst the Hatton case may be favourable to employers since they can assume that an employee can withstand normal pressures of the job, successful actions are still possible as shown in a recent case – Young v Post Office where the employee had been off work through stress and returned to work on a flexible working basis. The arrangement was not maintained by the employer and the stress returned

It was held that the employer was in breach of duty as they did not ensure that flexible arrangements were implemented properly. The basis of the decision was that where an employee returns to work after stress-related illness, it is foreseeable that there will be a recurrence if proper steps are not taken

Hence it was necessary for stress-related illness issues that the employer has good information about his staff and makes the provision of treatment and counseling a part of the precautionary measures

Site Visit – 27^th June: Scottish Courage Fountain Brewery

Watch out for the summer mailing with details of next year’s programme.

Richard closed the meeting wishing everyone a safe journey home and a pleasant summer break.