Mrs Harrison v St Helens Borough Council

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Case Background

The Claimant was employed as a Curriculum and Support Manager in the 14-19 team of the Children and Young People’s services department (CYPS). She commenced a period of maternity leave and was still on maternity leave when she was dismissed the following year. Whilst the Claimant was on maternity leave the Respondent re-structured the CYPS, which involved the replacement of the existing staff structure with a new one.

The Respondent used a process of assimilation and ring-fencing to put some staff members in posts within the new structure and made others compulsorily redundant. The Claimant was ring-fenced for a teaching position, which the Respondent conceded was not a suitable alternative vacancy pursuant to Regulation 10 of the Maternity and Parental Leave Regulations 1999 (the ‘Regulations’). As such, when she declined to take up the position she was made redundant. Throughout the restructure and redundancy process there was little consultation. Despite this the Claimant, through her trade union, sought to bring to the Respondent’s attention that whilst her job had been displaced under the new structure she was capable of performing some of the new roles and that, in accordance with the Regulations, she should be given one of these roles in preference to other employees.

The Respondent took the view that these new roles were never available or vacant as there had been assimilation/ring-fencing for employees whose positions were materially identical or closely matched to their old posts. This led to the Respondent’s belief that there was no requirement to consider the Claimant for the roles. In the alternative they sought to argue that the Claimant would not have been suitable for these roles and/or that other employees were more suitable for the roles. The Claimant’s claim consisted of a claim for automatic unfair dismissal and sex discrimination.

The key issues for the tribunal to determine were: 1) did any of these roles constitute vacancies; and 2) if they were vacancies, were they suitable for the Claimant. The tribunal found that it was clear that the Respondent knew that the Claimant’s existing post was to be dispensed with and that she was at risk of redundancy before they made decisions about allocation of posts in the new structure, including the posts in issue. As such, there were vacancies and the Claimant should have been considered ahead of other employees who were not afforded protection under the Regulations. Whilst other employees may have been more suitable for the roles this was not test under the Regulations. The fact of the matter was that the Claimant would have been suitable for two of the roles. Further there had been a failure to consult, part of which was due to the Respondent taking a conscious decision not to involve the Claimant as she was on maternity leave. The Claims of automatic unfair dismissal and sex discrimination succeeded.

Contributors Comments

This case is of particular importance given that many local authorities use assimilation and ring-fencing in redundancy situations. Despite their frequency there are little, if any, reported decisions looking at whether this is a fair mechanism. The reasoning behind the finding that there were vacancies before the assimilation/ring-fencing process took place is relevant to cases involving ordinary unfair dismissal (in particular where there is a failure to consult) and potentially as regards the need to make reasonable adjustments. The case also provides assistance in relation to considering whether a vacancy is suitable where suitability was not considered by the Employer at the time. The tribunal stated as follows:

‘The Respondent now says that it does not consider that the vacancies were suitable, and refers us to the case of Simpson v Endsleigh Insurance as authority for the proposition that it is for the employer to decide whether or not a vacancy is suitable… we are therefore invited to accept the Respondent’s ex post facto assessment as to suitability. As there is no contemporaneous decision as to the suitability of the posts for the Tribunal to review the Tribunal can only, therefore, make its own objective assessment of the matter-taking account, of course, of the Respondent’s ex post facto views.’

The proposition to be taken from this case is that ring-fencing/assimilation is not necessarily an easy shortcut through the redundancy process and that further consideration and consultation will be required in most situations.

Billingham v (1) John Barnsley and Sons (2) Lloyds British Inspection Services Ltd. (3) Vaughan Brothers (Drop Forgings) Ltd. (2013): A legal and scientific commentary

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Case Background

The executrix in this action brought a claim for personal injury on behalf of the deceased (Mr Billingham). Mr Billingham contracted mesothelioma as a result of asbestos exposure while at work and died. Mr Billingham was employed by Lloyds British Inspection Services Ltd., a company that specialised in testing the strength of industrial installation. As part of his role, Mr Billingham was testing the strength of steel girders at Cottram Power station between 1968-1969; this involved throwing chains over the girders and attaching weights to the end to see how much it could withstand. It was accepted at trial that the power station was a dusty place and that each time a chain was thrown over a girder it would shower Mr Billingham with dust.

The defendant sought to argue that the strength of the girders were not tested by throwing chains over them; that the work undertaken by the defendant was conducted before the installation of the lagging; that the claimant had not worked in close proximity to any lagging; and that the level of asbestos exposure was unlikely to have breached the concentration guidance contained in HM Factory’s Inspectorate’s Technical Data Note (TDN) 13.

Bean J concluded that the girders were tested by throwing chains over them and that each time this was done Mr Billingham would have been showered with dust; that the lagging took place on a rolling basis and that at the time of Mr Billingham’s work there would have been asbestos present; that the dust on the girders was likely to contain asbestos; and that Mr Billingham had been allowed to work in an area where asbestos dust had been allowed to form. The court was unable to be precise about the amount of asbestos Mr Billingham had been exposed to but that did not matter in light of the fundamental question: did the defendant employer take reasonable steps to prevent its employees being exposed to asbestos. On the facts it was decided that reasonable steps had not been taken and that the defendant should have known this exposure presented a risk to employees. Bean J explained that comments by Aikens LJ in Williams v University of Birmingham [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2011] EWCA Civ 1242 were not inconsistent with the earlier case of Maguire v Harland & Wolff [2005] EWCA Civ 1.

Contributors Comments

At first blush it might appear that it is difficult to square the results in this case with the decision of the Court of Appeal in Williams v University of Birmingham; reflecting similar difficulty in reconciling the Court of Appeal’s decision in Williams with earlier judicial comments which appears to treat 1965 as a date of knowledge of risk from all asbestos exposure however slight.

The latter difficulty reflects judicial comments such as those of Judge LJ in requiring cases where exposure post-1965 was not an issue and there was no detailed analysis or argument as to the position in this period of time.  In reality, the use of 1965 as a definite watershed for appreciation of asbestos-related risk can be seen to be an over-simplification.  That low levels were not dangerous or not sufficiently dangerous to require prohibition of use was accepted authoritatively throughout the 1970s.  The Factory Inspectorate and then the Health and Safety Executive did enforce the Asbestos Regulations 1969 in accordance with the guidance in TDN 13 of 1970.  There is evidence that they commended employers who were complying with these standards.

The basic question in every case is whether any employer or other person causing exposure could reasonably consider that they might be creating a reasonably foreseeable risk of injury.  The level of exposure established retrospectively is clearly relevant to this question but is not the only factor.  To the extent that the Court of Appeal’s approach in Williams focussed primarily on the level of exposure, it is potentially misleading and has encouraged a view that if exposure can be shown not to have exceeded the levels in TDN 13 of 1969 then no question of breach of duty can arise.

However in Williams, there was the additional consideration that the context in which the exposure arose that is disturbing invisible residues in a contained area was simply not viewed at the material time as a situation in which risk might arise.  Similar considerations arose in other data knowledge cases such as McGuire in relation to secondary exposure and Pinder v Cape plc in relation to environmental exposure.

Whilst the risks of secondary and environmental exposure were clearly identified by the Newhouse and Thompson research published in 1965, the risks arising from the presence of asbestos containing materials in buildings not directly subject to activity was not considered or publicised until much later.  In the early 1970s no one would in fact have considered the risk of Williams  being exposed to asbestos at all.

The Judge therefore was correct to draw distinctions with Williams on the basis that in that case there was no obvious disturbance of asbestos containing materials (paragraph 35) and on the basis that although the guidance in TDN 13 was not overall exceeded, there was nonetheless exposure to levels within the guidance (paragraph 36).  Against this background, he considered that the deceased would have been considered to have been exposed to asbestos and that a prudent employer considering the exposure would conclude that it ought to be voided even if it did not strictly exceed the guidance in TDN 13.

A more difficult case will no doubt arise when it is shown as is known to be the case that an employer effectively complied with the guidance in TDN 13.  In this context, the victim was likely exposed to a very significant amount of asbestos but nonetheless the employer would be shown to be complying with the law and appreciation of risk as understood at the time.  It is difficult to see on the current state of the law following Baker v Quantum and then Williams v University of Birmingham why the Defendant would be held to be in breach in this situation.

Dr Alan Jones, Senior Physicist/ Head of Proficiency Testing, Institute of Occupational Medicine, comments

The judge was unable to be precise about the amount of asbestos that Mr Billingham had been exposed to.  On the judge’s findings, lagging had taken place on a rolling basis and the dust on the girder would have contained some asbestos dust.  Therefore, the Defendant  was found liable because it failed to prevent exposure to a hazard which might have contributed a very small risk that anyone so exposed would develop a mesothelioma.   Both the duration and the concentration were not determined by the judge’s findings of facts.  However, by way of example, if the exposure had amounted to a total of 2 weeks of exposure to a concentration near the exposure limits in TDN 13, then the cumulative exposure would have been about 2 fibres/ml ×  1/24th of a year = 0.08 fibre/ml.years, if the asbestos present was either amosite =or chrysotile.

The asbestos was very unlikely to have been crocidolite (blue) asbestos as the Power Stations were aware of the greater risk from crocidolite and had therefore specified that it should not be used for new lagging – and this case referred to lagging taking place on a rolling basis.   However, if the Court had found that exposure had been to crocidolite and yet accepted that the exposure had been below the limits specified in TDN 13, then the cumulative exposure might have been about 0.2 fibres/ml ×  1/24th of a year = 0.008 fibre/ml.years, if the asbestos present was crocidolite.    By 1968, the Power Stations were instructed to follow a code of practice that specified particular care with blue asbestos, so if exposure was to crocidolite then it would probably have been at a lower concentration (than for other types of asbestos).

The significance, in terms of likely risk to those exposed, may be estimated from the findings of occupational epidemiological studies in the traditional asbestos industries where there were substantial exposures. Estimation of risk from the exposures estimated above (about 0.1 fibres/ml.years of amosite or chrysotile or about 0.001 fibre/ml.years of crocidolite) is an extrapolation to exposures much lower than the average exposures in the industrial cohorts that provide the data for the exposure risk relationships.   Hodgson and Darnton (2000), who undertook an analysis which combined the data from multiple published studies, produced a summary of their estimates of risk (Table 11 in their paper).  It is interesting to quote from that Table 11 of Hodgson and Darnton (2000), as below:

Risk summaries for cumulative exposure of 0.1 fibre/ml.years.

“Chrysotile
Risk probably insignificant, highest arguable estimate 4 deaths per 100 000 

Amosite 

Best estimate about 15 deaths per 100 000 exposed. Highest arguable estimate 80,”

Risk summaries for cumulative exposure of 0.01 fibre/ml.years.

Crocidolite

“Best estimate about 20 deaths per 100 000 exposed. Highest arguable estimate 100, lowest 2”.

The above estimates of risk were based upon the premise that the exposure took place between age 30 to 35.  Essentially, the risk predictions are the estimates of how many deaths from mesothelioma would be expected if 100,000 persons had that cumulative exposure while in that age bracket.  There would be additional risks from any other exposures that may or may not have been recognised.   If the exposure took place earlier in a person’s life, say from age 20 to 25, then the risk estimates would be approximately doubled.

With the benefit of the modern information (which was not available to the Defendant at the relevant time), it is apparent that the risks from a short period of exposure at levels approaching the limits set in TDN 13 leads to a non-trivial risk.

TDN 13 was entitled “Standards…” etc for asbestos and then in the second edition “Hygiene standards”.   Subsequently, the Advisory Committee on Asbestos (1979)  recommended that the terminology be changed to “Control Limits” because “Hygiene standard” implied or was misunderstood as a level that was “safe”.   It is now generally accepted that there is no known safe threshold of exposure below which there is no risk (of mesothelioma), and it would be extremely difficult to prove the existence of such a threshold.  It is generally accepted that the lower the exposure, the lower the risk becomes and extrapolation of models (such as that of Hodgson and Darnton) give a reasonable indication of the risk from an estimated level of exposure.

Health and Safety at Work regulations require that asbestos hazards be managed so as to prevent (in so far as is reasonably practicable) exposure to asbestos.

As Charles Feeny commented:

“A more difficult case will no doubt arise when it is shown as is known to be the case that an employer effectively complied with the guidance in TDN 13.  In this context, the victim was likely exposed to a very significant amount of asbestos but nonetheless the employer would be shown to be complying with the law and appreciation of risk as understood at the time.”

The above estimates of levels of risk from exposure that were relatively short (weeks), and at the “standards” or  “hygiene standards”  set in TDN 13 indicates that a more difficult case is indeed likely to arise.  There may have been many jobs which involved some incidental contact with an asbestos hazard, that was controlled properly by the standards of the time but gives rise to a non-trivial risk of mesothelioma which may develop some 40 to 50 years later.

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Young Austen & Young Limited v Bucon Heating & Ventilation Limited

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The claimant in this case made a claim pursuant to the Civil Liability (Contribution) Act 1978 and Section 3 of the Compensation Act 2006 for indemnity against or contribution in respect out their outlay in prior proceedings. In earlier proceedings, the claimant was among a number of defendants in an action for personal injury arising out of Mr Stratford’s death. Mr Stratford contracted mesothelioma and it was alleged that this was caused through exposure to asbestos during the course of his employment with several employers.

It was agreed that the deceased had probably worked for the claimants in the tax years 1968/69 and 1969/70 and for the defendants in the years 1975/76, 1976/77 and 1977/78. The court was asked to determine whether it was more likely than not that Mr Stratford was exposed to asbestos during his employment with the defendants.

The claimant sought to rely upon the witness statement of the deceased and Mr Bloxham who worked with the Mr Stratford and also died of mesothelioma. The defendant relied upon the evidence of Mrs Ling, a secretary at the firm and subsequently a director, who stated that the deceased was probably not exposed to asbestos as alleged. The court held on the evidence available that the deceased was not exposed to asbestos during the course of his employment with the defendant. Accordingly, the claim was dismissed.

Contributors Comments

Whilst a decision on fact, this case is nonetheless interesting in terms of the logistics of mesothelium litigation.

The claimant seeking contribution, Young Austen, had been one of a number of defendants in the original mesothelioma action and was subject to a show cause procedure as developed in the central registry.  Such procedure is conducted on the basis that unless the Defendant can show some credible evidence or argument to rebut plausible evidence of asbestos exposure, Summary Judgment will be entered.  As Defendant Young Austen was subject to Summary Judgment on this basis.

Bucon Heating and Ventilation Limited were able to produce evidence to challenge the allegations of asbestos exposure which meant that they were not subject to summary judgment and the judge at the trial, the contribution proceedings accepted this evidence as being likely true.

It therefore followed that the Judge considered the evidence of the deceased insofar as it related to Bucon Heating and Ventilation Limited to be unreliable.  It will be appreciated that judgment was entered on a summary basis against Young Austen, as Defendant, as they could not challenge the deceased’s evidence.  It does not follow automatically from this that the deceased’s evidence was inaccurate in relation to Young Austen, nor that they were incorrectly made subject to summary judgment.  However, this situation does indicate the potential for inconsistency and injustice to arise  if there is an overuse of Summary Judgment.

A similar, if not identical, situation arose in the case of Pugh v James Parkes & Sons (2008) EWHC 2964 (QB) where a claim was made against a third party after Summary Judgment had been entered against the Defendant.  On trial of the contribution proceedings, the Judge rejected the claim against the third party, which related to exposure at the third party’s premises where the original claim had been brought, in respect of the same alleged exposure having regard to the Defendant’s status of the claim as employer.  In other words there was clear inconsistency between the finding and Summary Judgment and the finding in the contribution proceedings.

Whether a number of parties and the Claimant is essentially relying upon the same evidence against each party, there is clear danger in entering Summary Judgment against such Defendants who cannot produce evidence if there are some who can.  Whether at a point in time, distant by many years from exposure, a Defendant can produce evidence to challenge exposure may be a matter of happenstance but the fact that one Defendant at least can challenge the Claimant’s account arguably makes the case unsuitable for Summary Judgment.  It might be thought more appropriate in this situation that interim payments be ordered which can be adjusted at final adjudication

Singh v Sheffield Teaching Hospitals NHS Trust

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The Claimant was employed as a specialist registrar on the Yorkshire & Humbar obstetrics and gynaecology training programme. As part of the position it was necessary to rotate between different hospitals; this entailed a degree of travelling. Prior to joining the respective NHS Trust the Claimant suffered with pain in his cervical spine. The pain grew to such an extent that he required an operation on a prolapsed disk at C5/6. After completing his employment the Claimant required a second operation at C6/7.

The Claimant alleged that the Defendants’ actions led to a worsening of his neck which ultimately resulted in a damaged neck and prevented him from pursuing his chosen career as a consultant in obstetrics and gynaecology. The Claimant’s particular complaint was that the Defendants failed to take sufficient notice of his neck problems when assigning him to hospital. This, he maintained, led to excessive driving to and from work which exacerbated his neck. The court was asked to decide whether there was a breach of duty and if the driving, as opposed to his underlying condition, caused the second prolapse.

The court took the opinion that there had been a breach of duty by the defendants in not following up the concerns of Occupational Health, but that this was not a continuing breach. The court, however, did not believe the claimant’s neck deterioration was caused by the requirement to drive to work and that the pain was constitutional. As such, the claim was dismissed.

Charles Feeny comments,

In effect, the issue in this case was causation.  The Defendants had failed to follow their own recommendations in relation to the Claimant’s return to work after neck surgery and a degree of breach was inevitable.  The Judge made a limited finding as to breach and in effect considered that the Defendants did not remain in breach once the Claimant had in effect settled into a working pattern.  This finding might have become relevant if the Judge had taken a different view in relation to causation.

Whilst the Judge’s acceptance of the Defendant’s case on causation essentially involved a preference for the evidence of the Defendant’s expert, Mr Dyson, over the Claimant’s evidence, Mr Jamile, consideration of the issue did involve the topical issue of the Court’s approach to epidemiological evidence.  An important plank of the Claimant’s case on causation was that deterioration in neck pathology could follow from excessive driving and the Claimant relied upon a paper by Jensen et al in the journal ‘Spine’.  It was therefore in issue as to whether this paper really did bear comparison with the circumstances of the Claimant’s case.  The Learned Judge held, not for good reason, that is that the Jensen paper concerned all day professional drivers who would have a number of other risk factors to include manual work and risk of accident.  The Learned Judge was therefore following although not explicitly cited to him, Lord Phillips’ approach and Sienkiewicz v Greif [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2011] UKSC 10,

“the Court must be astute to see that the epidemiological evidence provides a really sound basis for determining the statistical probability of the cause of the disease or the causes of the disease” (at paragraph 91).

It is also perhaps relevant that the Claimant could only produce one paper to support his case on causation.  Given the prevalence of driving and, given the prevalence of degenerative neck disease, if there was a real association between the two it would be reasonable to expect that much stronger evidence from the epidemiology.

Law report

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Penelope Garner v (1) Salford City Council (2) P McGuiness & Co Ltd. (2013)

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Miss Garner contracted mesothelioma as a result of asbestos exposure. It was alleged that the exposure came from the demolition of some swimming baths adjacent to her school as a child. The claimant, and other former pupils of the school, provided evidence that dust from the demolition spread into the school playground and that they were unaware of any attempts to limit the spread of dust. The defendant and his employees provided evidence that the building was demolished one story at a time as was customary in cases such as this. The defendant also stated that water was used to prevent the spread of dust.

The court held that  it was likely some dust from the demolition drifted into the school playground. The court also held it was likely dust from other demolitions within the area drifted into the school playground. The court found on the evidence that the boiler room pipes contained asbestos lagging but that the lagging was removed while still in the boiler room and that it was likely water was used to soak it prior to removal. Given the findings of fact, the court concluded the chances of the dust containing asbestos were minimal. The court could not rule out the possibility of some dust containing asbestos being present in the playground but that the exposure would not have exceeded the controlled levels of the time.