Ascension : Ask A Lawyer
Submitted by The Islander (Islander Internet Editor) 13.11.2008 (Article Archived on 27.11.2008)

My thanks to all who have emailed in questions - do keep them coming to

My thanks to all who have emailed in questions - do keep them coming to Solicitor@cwimail.sh.  If I get lots that will give me some idea of the sort of things that you want to know.

Question: I would like to ask what the law says about smoking in the workplace for private businesses. I know that government employees cannot smoke in the workplace but is there any legislation in place to protect the rights of those who do not smoke in private businesses?

Answer: Now I know this question is of general interest - I attended a meeting on the Constitution at which two members of the public turned up but I was told that the place was crammed when the issue of smoking was up for discussion.  As I am sure all know there is a ban on smoking in any workplace or building open to the public in England and it has been very well received and the result is that restaurants and pubs are much cleaner places to visit.  That was brought in by an Act of Parliament called “The Health Act” in 2006 and for reasons I deal with in more detail in the next question it does not apply here because only Acts in force on the 1^st January 2006 apply and this one just missed.  So what is the protection for the non smoker in the workplace here and now?  The fact is that long before The Health Act came in the vast majority of employers had banned smoking in the workplace simply because they were at risk of liability if their employees worked in a smoke laden atmosphere and then fell ill with a smoke related condition.  Health and Safety in the UK tends to be driven by the insurance companies and many employers found that they could not obtain insurance against workers claims unless they banned smoking.  There was a gradual change in attitude amongst the public as the non-smokers started to object to going home stinking of cigarettes and the employers listened to them. 

So the position here must be the same as it was in the UK prior to The Health Act.  All employers have a duty to provide a safe place of work and the medical information now available about the risks of passive smoking is so clear that the employer who, in effect, forces his employees to inhale the smoke from others cigarettes takes a risk on claims being made against him later.  In America where they are all barking (except for the vast majority who voted for Obama) there was even a case brought by a smoker who complained that his employers should have banned him from smoking at work and then he might not have fallen ill.  Employers also have a far greater cost in keeping the work premises clean and pleasant.  So for me, as a non smoker, there seems every reason why employers should protect those who work for them but then, I am a non smoker, so what do I know?

Question:  I have a real problem with my boss, if I leave can I claim anything?

Answer: The short answer is that I don’t know - something every lawyer hates to admit.  Here it is not just another example of my personal ignorance.  Another way of putting it would be “no-body knows”.  I will try and explain why and it is linked in with the difficulty in working out what law applies in St Helena.  Where your Legislative Council has passed an Ordinance it is really easy as that sets out the law.  But what, as in the case of all the Employment Protection Legislation, if there is no substantial Ordinance at all that covers it.  Your Council did try and sort that one out in 2005 when an Ordinance was passed that said basically that all English Acts of Parliament (in force by 1/1/06) applied here so again it should be relatively easy as the employment law was indeed in force by then in England. But and it is a big BUT the St Helena Ordinance goes on to say that English Acts apply (and I quote from the Ordinance)

“only in so far as it is applicable and suitable to local circumstances, and subject to such modifications, adaptations, qualifications, and exceptions as local circumstances render necessary.” 

Now if you can work that one out you should become a lawyer and take over my job.  “Well” (you may ask being of keen and analytical mind) “how does one actually find out whether a particular law is “applicable and suitable etc etc”?  For instance is the Employment Protection Act “applicable and suitable” in St Helena and Ascension?  How on earth do I find out?

Well normally we can look and see if the Chief Justice has made any ruling on the issue and in this case the answer is “yes”.   There was a case called Slater v SERCO where it was decided that indeed it did apply.  Yippee that is sorted then – but.... wait a minute ....there is another case where part of it was found not to apply and there was an appeal. So next we look at what happened in the appeal...oh dear... we don’t know yet because it starts on the 12^th November in London. But (and this is where it gets really complicated) not only is the Appeal Court being asked to say whether the one section of the Act applies here but the Ascension Island Administration is opposing the appeal and asking the Appeal Court to say the earlier cases were wrong and that not only the Employment Protection Act does not apply (so bang goes protection against unfair dismissal) but also that the Human Rights Act does not apply (so bang goes the right to have the law interpreted consistently with Human Rights). 

So there are some really important issues being decided in London next week and a decision will be made that could substantially cut back on the rights and protection that each thought they had in St Helena as well as Ascension. In Ascension of course the issue is even more crucial than St Helena as rights to remain on island depend upon continued working and the loss of protection rights would mean that the employee who is treated unfairly has no redress and is not only workless but finds himself leaving an island where he may have lived many years.  I am sure your newspapers will report the result but I will try and answer this question properly once the Appeal Court has told us what law applies – until then I can only say “I don’t know”.  Hopefully I will know the answer and the implications well before my visit to Ascension starting on the 7^th December.

So that is why I can’t answer your question.  I can only hope that the court will not make a decision that means that the rights of the individual are reduced but we can only wait and see.

 Question:  Surely there is something good about Tungi?

Answer:  This is a serious question and, I thought, deserves being taken seriously.  I had a severe word with myself about becoming obsessive about Tungi and determined that I would indeed find something positive.  I was having a dinner party and inspiration struck and an entirely new culinary adventure was born.  I am sure you have all had Rum Barbar – a deliciously sticky sweet of doughnut type cakes soaked in Rum.  Yummy indeed but the genius idea that struck me was “Tungi Barbar”.  Doughnuts soaked in the distilled liquor of the same name poured from its distinctive and famous “ladder” bottle.  Here is the recipe:-

Tungi Barbar Recipe (Part I)

Take doughnuts of a number equal to the number of your guests.

Place them in a deep dish and pour on Tungi Liquor.

Leave them to soak.  Add more Tungi until the doughnuts

can soak up no more.

I produced the well steeped delicacies to a fanfare and presented them as a truly original gastronomic treat, having their world premier that very night and being tasted for the very first time in St Helena and only available here.  A sort of endemic pudding you might say.

Some ate one mouthful others only pretended to.  It was truly the most revolting thing I have tasted in many a long year of eating anything that came my way.  One lady actually ate a whole one and they say that she should be coming out of hospital soon.  It did occur to me that my invention might triumph yet as fire and barbeque lighters but attempts to ignite the Tungi Barbar failed and indeed any flame going near it went out and indeed who could blame it. I hasten to add unless it should be thought that I criticised the “Spirit of St Helena” that I only refer to the fact that when combined with doughnuts it becomes pretty noxious.  The advice being that you should take your Tungi straight as Paul made it!

Tungi Barbar Recipe (Part 2)

When the Tungi spirit is fully absorbed tip whole into a sealable plastic bag

and rush it to the bin as quickly as possible avoiding contact with skin. 

It is advised to take a shower and to scrub yourself all over with a pan scourer

as soon as possible thereafter.

Neil Davidson, Public Solicitor will welcome any questions or comments on Solicitor@cwimail.sh.  Telephone 3008, Fax 3007.