CPA Bulletin

www.cpa.uk.net CPA Bulletin > May 2019 61 Legal NEWS LEGAL: 1 Diabetes is an invisible condition posing often unrecognised health and safety risks to companies. Civil and criminal liability could follow if steps have not been taken to identify and eliminate the risk. Diabetes is the fastest-growing health threat facing our nation. It affects 7%of the population and can cause sudden loss of consciousness, eye and kidney damage, impaired awareness and concentration leading to devastating consequences. 4.6million people are living with diabetes in the UK, 700 people are diagnosed with it every day and there are over 170 amputations fromdiabetes a week. Diabetes is progressive, slowly impacting people’s health. As it cannot be seen in the early stages and the symptoms can be put down to late nights and other lifestyle factors, helping people and companies understand andmanage the risk is crucial to today’s busy workforce. Many people have heard about diabetes, yet employers seem reluctant to take steps to manage the risk. Employers have a duty to ensure, so far as is reasonably practicable, that their employees and those affected by what the employer does are not exposed to risk to their health and safety (Health and Safety at Work Act 1974). If diabetes related symptoms contribute to a workplace accident and an employer has taken no steps to assess and reduce the risk, then the employer will commit a criminal offence and face a significant fine. People with diabetes have a legal obligation to inform the DVLA and for those on insulin they must test before driving. That doesn’t always happen, even though the consequence of uncontrolled diabetes can be fatal. For example, Brian Docherty admitted causing the death of a woman in North Lanarkshire after suffering a diabetic fit while driving. He was jailed for six years and eight months, but the risk of criminal and civil litigation applies both to the employee and the employer. The Equality Act 2010 provides an additional challenge for employers. Type 1 diabetes will be a disability for the purposes of the Act, but the position is not so clear cut when it comes to type 2 diabetes. If, however type 2 is a progressive condition then the employee is likely to satisfy an employment tribunal that they are disabled for the purposes of the Act. There is a practical challenge for employers. The Act doesn’t place a requirement on the employee to disclose that they are diabetic yet where the employer knew or ought to have known that the employee was diabetic the duty to make reasonable adjustments will apply. In order to meet the obligations imposed by the Equality Act 2010 employers also need to consider how to encourage employees to share information about their condition. That will allow the employer to assess whether adjustments are needed. It will also support an ongoing open discussion with the employee enabling the employer to nimbly accommodate the employee’s changing needs. As diabetes continues to rise, the Diabetes Safety Organisation working with the international law firm, Gowling WLG, believe it’s high time that employers started to understand the risk that their employees and they themselves face and work together to eliminate it. For more information please visit https://diabetessafety.org/ or contact the Diabetes Safety Organisation on 0345 350 3690, enquiries@diabetessafety.org Diabetes Risk and Liability at Work Her Majesty’s Revenue and Customs (HMRC) has published a consultation (which closes on the 27th May 2019), where it is proposing to change its status to a secondary preferential creditor, for the recovery of certain tax debts on the insolvency of a business. The proposals, announced in the 2018 Budget, would give HMRC preferential status where an insolvent business owes VAT, PAYE, Income Tax, Employees’ National Insurance Contributions (NICs) or the Construction Industry Scheme (CIS) deductions. The new rules are intended to come into force for insolvencies on or after the 6th April 2020. Previous ‘Crown Preference’ rules, which were abolished in 2003, gave HMRC preferential creditor status on insolvency for certain taxes. The 2002 Enterprise Act reduced HMRC’s status to non-preferential creditor for all forms of tax, meaning that it must attempt to recover any taxes owed from the remaining assets of the business once preferential creditors have been paid. As a result of this change, the Treasury has suffered increased losses through company insolvency struggles since 2003, according to HMRC. The Government is now proposing to move HMRC up the creditor hierarchy in respect of taxes held by an insolvent business “on behalf of” its customers and employees. HMRC would remain a non-preferential, unsecured creditor for recovery of direct business taxes, including Corporation Tax, Capital Gains Tax and Employer NICs. The Government does not propose to impose any time limit on outstanding taxes, meaning that any debts in respect of the named taxes would be treated preferentially regardless of how old they are. Any penalties or interest on outstanding tax debts would also form part of HMRC’s preferential claim. HMRC Status Changing to Preferred Creditor