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#1 Posted : 19 July 2000 18:25:00(UTC)
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Posted By Peter Barry
During a recent discussion with colleagues in the mental health service the issue at subject was raised and with which I would welcome views. The Health and Safety at Work Act and other H&S related legislation can at times come into direct conflict with the Human Rights Act in the health care setting. This was raised, when after a fire, one control was to deny access to matches & lighters. This would involve asking visitors and casual users to leave such items in a secure area prior to entering the facility. My view is that this is quite acceptable because of the duties to our staff and others under HASAWA etc, others disagree because it comes into conflict with human rights! All views welcome

Regards

Peter
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#2 Posted : 20 July 2000 09:31:00(UTC)
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Posted By Diane Warne
Peter,
My partner works in mental health and I'm a safety officer. We'll have an argument about this tonight and I'll let you know the outcome!
Regards
Diane Warne
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#3 Posted : 20 July 2000 10:41:00(UTC)
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Posted By John Webster
Try telling anybody on an oil & gas installation that confiscating matches and lighters is a violation of their Human Rights!!!

The solution is, however, very similar. I presume that you will be protecting the human rights of the non-smoker by only allowing smoking in designated areas? Then in those areas you provide fixed means of lighting cigarettes eg wall mounted lighters, car type lighters etc. Provide sand bins for dimps, restrict the presence of other readily combustible material (hard floor, leather or wooden seats, metal blinds in place of curtains) and if you still think this is not enough get one of these water fog fire extinguishers which hang from the ceiling.
Hope this is of use
John
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#4 Posted : 20 July 2000 12:39:00(UTC)
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Posted By Laurie
You might just as well say that being asked to turn your mobile off in a hospital is such a violation!!

What about miners? They are certainly not allowed "means of ignition". I worked in an explosives handling field for many years, and being found in possession of anything like this would have not only meant instant dismissal, but probable loss of pension rights as well. I suspect the rigs will be much the same.

Of all the human rights violations in the world, this can hardly be high up the list!

Laurie Richards
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#5 Posted : 20 July 2000 22:34:00(UTC)
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Posted By Ken Taylor
I'm waiting to see information on the Human Rights Act but was informed earlier in the year that where there is a conflict with other legislation it would take precedence. However, this must relate to real basic human rights and not some imagined right to smoke in a firework factory, etc. It may, perhaps be considered a right for a resident to smoke in their own nursing care accommodation - but what if this affects others? I await further information with interest.
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#6 Posted : 21 July 2000 09:36:00(UTC)
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Posted By Philip McAleenan
Below is article 2 (1) of the Council of Europe - (ETS No.5) European Convention of Human Rights and Fundamental Freedoms

Article 2 – Right to life

1 Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

You can read the full convention at:

http://www.coe.fr/eng/legaltxt/5e.htm

Regards, Philip
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#7 Posted : 21 July 2000 15:13:00(UTC)
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Posted By John Webster
Thanks for the URL, Philip. I spent part of my lunchbreak reading the Articles and can find nothing that conflicts with the Health & Safety at Work Act. In fact it is supported.

The freedoms under articles 8,9,10 & 11 (which would need some pretty loose interpretation to include the freedom to smoke and the freedom to carry matches) are in any case all qualified by -

"..subject to such ... restrictions ... as are prescribed by law and are necessary in a democratic society, in the interests of .... public safety..... for the protection of health ...for the protection of the ....rights of others...."etc.

Surely only a lawyer could argue with that.

John
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#8 Posted : 21 July 2000 16:59:00(UTC)
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Posted By Peter Barry
Thanks for the pointer phillip

Peter
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#9 Posted : 27 July 2000 18:39:00(UTC)
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Posted By Kevin
Peter, I have just had a dispute with some of our employees which resulted in their Union making the following statement. "It appears that if the employer is acting reasonably in trying to comply with their statutory duty then the employee has a duty to also be reasonable, despite human rights, it should be remembered that all that is required to dismiss an employee is the failure of that employee to act reasonably"
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#10 Posted : 31 July 2000 00:05:00(UTC)
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Posted By Philip McAleenan
Kevin,

What is the Union saying in their statement? It seems to me quite confused and erroneous in parts. For example, the assertion that an employee's duty to act reasonably follows from the employer acting reasonably to comply with his statutory duty in incorrect. The employee's duty to act reasonably follows from an altogether different premise, namely a common law and statutory obligations that employees must act reasonably, irrespective of whether their employer is acting reasonably or not.

Where does the "despite human rights" part of the statement belong? Does it belong to the preceding assertion, that "the employee has a duty to be reasonable despite human rights", which seems an odd assertion as it implies that human rights may not be reasonable. Or does it belong to the subsequent assertion that "despite human rights all that is required to dismiss...is the failure of the employee to act reasonably", which may imply for example that the employee who unreasonably jeopardises his colleagues lives has, in being dismissed, somehow had his human rights infringed.

Maybe the Union's statement is more comprehensible in the context within which it was made. However, in the absence of that and in the light of comments elsewhere in the IOSH forum, maybe these few comments will prompt some consideration on the purpose of OHS.

Is mise, Philip
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