Dorset Council (20 000 010)

Category : Environment and regulation > Other

Decision : Not upheld

Decision date : 24 Feb 2021

The Ombudsman's final decision:

Summary: the complainant complained the Council failed to properly consider and use its enforcement powers to remedy failures by his employer to comply with Working Time Regulations and health and safety legislation. The Council says it investigated the issues raised and considered the enforcement powers it shares with other agencies before deciding not to issue enforcement proceedings. We found the Council acted without fault.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains the Council failed to properly investigate his complaint about his working conditions. Mr X says the working conditions imposed on him broke the Working Time Regulations and Health and Safety legislation. Mr X says the Council failed to properly examine and consider all relevant information and took too long to complete the investigation.
  2. Mr X says this caused him significant distress, leaving him feeling abandoned with no support. Mr X wants the Council to re-investigate his concerns, improve its investigations, and recognise the distress caused to him.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. In considering this complaint I have:
    • Contacted Mr X and read the information presented with this complaint;
    • Put enquiries to the Council and reviewed its response;
    • Researched the relevant law, guidance, and policy;
    • Shared with Mr X and the Council my draft decision and reviewed any comments received before making my final decision.

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What I found

The law, guidance, and policy

  1. Under the Health and Safety at Work Act 1974 enforcement of health and safety regulations is divided between local authorities and the Health and Safety Executive (HSE).
  2. The HSE issued a National Local Authority Enforcement Code (the Code) in 2013. It sets out the risk- based approach councils should take to target their health and safety interventions. Councils may provide advice and guidance to individual businesses or business groups. They may inspect businesses to ensure they comply with the law and may investigate an accident or complaint.
  3. The Council’s health and safety team will inspect workplaces to ensure they are safe and compliant with the law. The team will investigate complaints about unsafe workplaces, and accidents and dangerous occurrences in the workplace. Councils have discretion on whether to prosecute an offence.
  4. The Working Time Regulations 1998/2003 (WTR) set out rights and entitlements for employees. These impose distinct legal duties on councils and other agencies. The Council has responsibility for investigating and enforcing WTR rights. It is not responsible for enforcing entitlements, even though entitlements usually set out how the employer may provide opportunities to exercise those rights, such as a right to a rest from work. Entitlements are enforced through Employment Tribunal procedures and therefore outside councils’ remit.
  5. WTR restricts employees to working an average of 48 hours per week over a 17- week period (Regulation 4(2)). This is a right and therefore enforceable by the Council.
  6. WTR says an employee qualifies as a ‘night worker’ if they work regularly at least 3 hours during the ‘night period (defined as between 11pm and 6am) for the majority of the days they work. Employers must consider an employee’s health problems when setting working and shift patterns. The Regulations do not say an employer must reduce the hours worked on medical grounds.
  7. WTR give employees the right to rest from work. The WTR also sets out an entitlement to rest breaks of 20 minutes after six hours of work. This is an entitlement and as such not enforceable by the Council.
  8. WTR Regulation 7 says employers wishing to assign a worker night work following a positive health assessment may do so provided there is no reason to question the validity of that assessment. The regulation does not allow an employer to disregard a previous negative assessment.
  9. Under the Council’s Enforcement Policy, the Council says it will not hesitate to take enforcement action against those who flout the law or refuse to be advised by the Council on how to achieve better compliance. The policy says it recognises that ‘prevention is better than cure’ and will help businesses to meet their legal duties. Where the business breaks the law, the Council says it will consider all relevant circumstances before deciding what action is appropriate.
  10. The Policy says the Council will take enforcement action it considers is necessary and proportionate to the risks involved. To achieve compliance the Council will consider issuing a verbal warning, written advice, or written warning and finally penalty or statutory notices or prosecution.

What happened

  1. In July 2019 Mr X complained to the Council about conditions at the business where he had worked since 2017. In his complaint Mr X said he had been left to work alone, resulting in the risk of violence from customers and that his employer had not trained him in security and safety procedures. Despite the employer saying it assigned two people to a shift, Mr X says this did not happen. On two occasions in March 2019, he and another staff member had to work alone and both experienced accidents. Further, Mr X complained he could not take rest breaks, and the employer had inadequate toilet and drinking water services. Mr X said his employer had assigned night shifts to him when he has a fitness for work certificate from 2017 that says he should not work nights. The certificate says Mr X should not work more than 40 hours day shifts and should not work night shifts. Mr X says he worked more than 40 hours per week and the employer often put him on night shifts. This Mr X says caused health problems. Mr X asked the Council to ensure his employer whose employment he then left, complied with WTR and health and safety legislation.
  2. In response to the complaint a Council officer communicated with Mr X by email but did not meet with him. The Council officer met Mr X’s employer. The Council officer inspected the company records and noted the induction for employees included the lone working policy and basic health and safety advice. The company says nobody works alone until they satisfy their supervisor, they are safe to do so. When asked about assigning night shifts to Mr X contrary to his fitness certificate the employer said they did not know about the certificate. Mr X says he had presented the fitness to work certificate to his employer and so he knew Mr X should not work night shifts. The employer said Mr X asked for night shift work. The officer noted Mr X worked more than 40 hours in some weeks.
  3. On an initial inspection the Council found problems with the toilet facilities. Mr X says the toilet often became blocked and so staff could not use it. On a later inspection the Council’s officer noted the panic buttons worked, toilets appeared in good order and found drinking water available in the staff area. The Council’s officer inspected records showing the company had tested the panic button alarms monthly without any faults occurring. It has a lone working policy and asked employees to undertake training on-line for health and safety. Notices in the office told employees which numbers to call in emergencies and instructions on how to seek refuge in the office if at risk.
  4. On the issue of the employer asking Mr X to work night shifts contrary to the fitness for work certificate, the Council’s officer took advice from the Council’s legal services. The Council’s legal services said that where an employer believes a health assessment may no longer be valid, then before assigning the employee to night work they should offer a free health assessment. The Council’s legal service also advised the employer may still ask the employee to work night shifts provided they offer regular free health assessments. There is no evidence of the employer offering a free health assessment. However, the Council says shortly afterward the employer removed Mr X from night-time work thus complying with the regulation. Mr X says his employer never offered him or conducted a health assessment and so he questions why the Council did not consider this a breach which it should prosecute.
  5. The employer told the Council they did not know Mr X still had a fitness to work certificate when assigning him to work night shifts as well as day shifts in 2019.
  6. As part of its investigation the Council sought information and advice from:
    • Visiting the employment location, inspecting the toilets, staff areas, safety measures and records including case incident records;
    • Contacting Mr X and reading the information and comments he presented,
    • Mr X’s former employers, including responding to a challenge from them over rights to access information without a Subject Access Request;
    • the Council’s legal service;
    • HSE.
  7. The Council’s lead officer did not have large experience in the area and so sought advice before deciding what the Council could and should do.
  8. In September 2019, the Council wrote to Mr X explaining it could not take any action on the issue of rest breaks. Another Council officer visited the employment location. They found no actionable issues therefore the Council had no evidence of the employer failing to comply with health and safety legislation so it would not issue proceedings.
  9. Mr X complained about the decision and the time taken for the Council to complete the investigation. In October 2019, the Council responded at stage 1 of its complaints’ procedure. Mr X asked for a review and the Council wrote to him in December 2019 X closing its investigation. In that letter the Council explained the complexities of the legislation and why it believed it did not have grounds for issuing enforcement proceedings.

Analysis – was there fault leading to injustice?

  1. My role is to decide if the Council properly considered exercising its enforcement powers not to decide whether it should issue enforcement proceedings. Where I find the Council acted with fault, I must decide what impact that had on Mr X. I must then consider what the Council should do to put that right.
  2. Mr X raised important questions about how his employer complied with WTR and health and safety legislation placing him at risk of harm or poor health. The Council visited the business, questioned staff, inspected records, and saw the panic alarm working. The Council viewed the toilet and sanitary services available to staff, and the training given. Records showed Mr X worked long hours and the employer asked him to work night shifts. The employer denied knowing about his fitness for work certificate. However, the records show the employer never offered free health assessments or conducted them. That is a matter of concern and had Mr X continued working for the employer the Council would have to consider if it should exercise its powers. The Council took advice from HSE, its own legal services and explained to Mr X what powers it had and what it could and could not enforce. The Council’s lead officer expressed her own lack of direct substantive knowledge and experience. She sought advice from senior managers, the Council’s legal service, and from HSE. The Council had therefore appropriate advice on which to decide if it could and should exercise its enforcement powers.
  3. Where an employer acts in breach of the law a prosecution will not automatically follow. Councils have discretion on when to exercise powers of enforcement. The duty imposed on the Council is to consider if prosecution is appropriate. In deciding that question councils will usually consider legal advice and their own enforcement policy. They will consider the strength of evidence and whether it is likely to help the Council successfully prosecute an employer and the guidance in the prosecutor’s code.
  4. If satisfied, the employer following a council’s intervention has made changes to comply with the law, councils may decide not to prosecute. It is a matter for the exercise of professional judgement on when to prosecute or not.
  5. The Council explained why it believed in the areas it has enforcement powers it did not have grounds to use them. Where issues have improved such as the toilet facilities the Council considered it could not exercise its powers because those improvements had been achieved and would lessen the likelihood of success in a prosecution.
  6. Mr X believes he set out enough evidence of breaches of the law to warrant prosecution. However, it is not my role to say when a council should prosecute a company that is a decision for the professional officers to take based on the information they have gathered. Councils should always consider exercising their enforcement powers where there is evidence of a breach of the law for that may suggest a risk to employees and the public.
  7. Mr X suffered accidents at work. Mr X’s employer had scheduled him for night- time work when he had an existing certificate to show he had a medical need to only undertake daytime work. Mr X disputes his former employer’s assertion it did not know about his certificate because Mr X presented the certificate to his employer and that should be in his employment records. The Council decided the employer’s response to the challenge about night-time work suggested it would comply in future. The employer told the Council it would only schedule Mr X for daytime work. It was still open to the Council to prosecute the employer for the previous breach, or if it again asked Mr X to work nights.
  8. The Council had before it all relevant information and advice, including Mr X’s challenge to its interpretation of its legal powers, when deciding whether to exercise those enforcement powers. Under the Council’s policy it is for the professional officers to decide if it is proportionate to start or continue with enforcement procedures. The Council’s officers gathered and considered all relevant information and advice when deciding whether to take further action. Therefore, I find the Council acted without fault.
  9. Mr X first complained in July 2019. In responding to the complaint, the Council sent its stage 1 response in October 2019 and the stage 2 response in December 2019. We usually expect the procedure to last no longer than twelve weeks, and it took longer here. However, I find the Council responded to the complaint without any significant delay.

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Final decision

  1. In completing my investigation, I find the Council acted without fault.

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Investigator's decision on behalf of the Ombudsman

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