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Posted By Jim Walker
We are having problems with employees refusing to wear ear defenders in Mandatory Ear Protection Zones. Unfortunately we are having to resort to disciplinary procedures.
My directors have asked me if a signed disclaimer from the people involved would be a way around this. I’ve told them this is does not relinquish the liability and they have accepted my advice.
On thinking about it, I’m not sure exactly why this is so. Can anyone point me to the case law or whatever that defines this.
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Posted By Nick Higginson
Jim,
Unfair Contract Terms Act 1977.
As the employer, you are obliged by common law to ensure the health, safety and welfare of your employees. A signed contract to the contrary would not be recognised in law.
Hope this helps,
Nick
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Posted By Barry Wilkes
Agree with Nick,
This is a mandatory legal requirement and the employer can not abidicate this responsibility.
Barry
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Posted By Jim Walker
Thanks for your responses.
Is there a specific case that defined the common law resonsibility and that you cannot abdicate it.
I've got this niggle in the back of my head that I should be able to quote (know of) a specific case.
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Posted By Nick Higginson
Jim,
The Unfair Contract Terms Act 1977 is a statute which applies to Civil law.
Nick
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Posted By David Scott
The only defence the Company could try to claim by asking an employee to sign a disclaimer would be 'volenti non fit injuria' which, according to the Court of Appeal in Bowater v Rowley Regis Corp [1944] 1 All ER 465, recognised that there would be few cases where this defence will succeed.
I am sure that there is another case but for the life of me cannot put my hand on it.
Have a look at Wheeler v New Merton Board Mills Ltd [1933] 2 KB 669 also.
Whatever, if you do not enforce your Company rules then the Company (and Manager) is guilty and can only plead Contributory Negligence.
Failure of an employee not to conform to Company Rules especially H&S rules, let alone the Law of the Land (S7(a)&(b) HASAW), should be and can classed as Gross Misconduct and the employee can be sacked!
Hope this helps!
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Posted By David Scott
As a secondary line of attack;
The Company has a S2 Duty under the HASAW 74 S2,2(e) 'the provision and maintenance of a working environment for his employees that is SFARP, safe etc.
Under the Noise at Work Regulations 89 there is statutory responsibility to reduce hearing damage caused at work.
Normal risk assessment controls would be the way in which this is done, Eliminate, Substitute, Engineer and finally PPE.
Employees have a duty under HASAW 74 S7(a) and (b) by (a)Take reasonable care for the health and safety of himself and of other persons who may be affected by his act or omission and (b) as regards any duty imposed on his employer or any other person by or under any relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.
Therefore it is worth pointing out that the individuals who refuse to wear hearing protection are in breach of these duties and can themselves be prosecuted under the Act.
This statement/condition should be written into employment contracts and disciplinary action taken if they fail to comply with H&S requirements as Gross Misconduct.
It is also a requirement that this is enforced by Managers and Supervisors and any failing on their part should also warrant disciplinary action!
I agree its a sad day when we have to resort to these remedies but all of us have only 1 pr of ears and as a NIHL sufferer I appreciate the need to protect what hearing I have left!!! So should they!
The information could be distributed as part of a 'Safety Theme Week' demonstrating the noise issues, show videos and the protection that is available.
Best of luck!
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Posted By Jim Walker
David,
I've done all you have said and more!!
I think my H&S techniques are as good as any, unfortunately sometime the "theory" does not work in practice.
Obviously you have never worked in a macho industry where reasoning does not get though to a minority.
By coincidence, I'm profoundly deaf from birth. Can you imagine the frustration these people generate in me?
Nick,
Now I've read the Act and I now see it is quite specific about personal injury. Just what I needed.
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Posted By peter gotch
Jim,
My experience over 20+ years with HSE and since, is that where an employer is prepared to use their teeth, and go all the way through an appropriate disciplinary process they have never got to the stage of dismissal.
Either the employee realises that the employer means business and toes the line, or they self-select and take themselves off to an employer who is less capable of managing this issue (and probably lots of other issues which impact on management objectives)
Examples:
Eye and foot protection in engineering
Hearing protection in cooperages
Hard hats on construction sites - in successfully prosecuted HSWA Sections 2, 4 case in 1987, the Sheriff did not accept the defence either from employer or main contractor that
"You can take the horse to water but you can't make him drink"
This was in a situation where the prosecution did not contest the defence position that the injured party was at risk of head injury for a cumulative total of about 2 minutes per day.
The usual argument on eg housebuilding sites dealt with that rare commodity the competent bricklayer (typically in late 80s on £1000 per week). "If we insist that they wear a hard hat they will just go to the next housebuilder". Answer let them and then complain to HSE but unfair competition. Eventually they will run out of sites to go to".
The problem your Directors are possibly faced with at present is that the employees do not believe that management mean business?
However, ask a different question. Suppose the workforce start at 8am, what would management do about someone who consistently turned up at 10am? Why is there any difference between H&S and other aspects of the contract between employer and employee?!
Peter
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Posted By peter gotch
Oh, and ps,
Agree entirely with other respondents.
Disclaimer at best a waste of paper, but more likely disbeneficial from employer's perspective.
Erects a smoke screen where employer may think that they have taken action to manage risk (in the broad sense of risk!.
A false sense of security is very dangerous!
Peter
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Posted By John Ridd
Notwithstanding all that has been said above - I do not believe that 'disclaimers' are a waste of paper. Of course it depends on what is written down and signed up to, and it should follow all reasonable attempts to overcome the employee's objections/concerns (including ensuring that they are fully aware of the risks to which they may be exposing themselves).
But to get an employee to sign up to admit that they have been offered the necessary PPE or equipment or assistance or whatever might be at issue (if indeed they have been offered it) will always prove useful if the problem should later result in legal action.
Whilst the employer might still be found liable, such a signed document would demonstrate to a Court how far the employer had gone (or tried to go) to protect the individual at the time (and in particular, whether they had done all that was reasonably practicable); it would also introduce the issue of contributory negligence on the part of the employee.
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Posted By Bill Fisher
John
Whilst I understand your point of view I believe you are following a dangerous path. Today's management of hazard and risk, as you will be well aware of, is to either remove the hazard and to control the redisual risks. Telling people to be careful (or indeed getting them to sign away the company's responsibilities) is a non starter. In reality if an employee fails to abide by a requirement to follow the requirements of the RA/SSoW then the only course of action open to you is to remove the person from the hazard/residual risk.
I may even suggest the an aspiring Inspector, following an accident, would be liable to use the signed disclaimer to prove "consent, connivance, negligence" our old friends from S37 area.
To sum up if identified as necessary the only lee way is to find suitable alternative PPE or to review the RA to do the job another way.
Bill
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Posted By Lee Ainsworth
Jim,
I must agree with the other comments that have been posted thus far.
In addition to these have you investigated, as to the reasons why your employees are refusing to wear the ear protection?
Mentioned earlier, is it the fact that it's a macho industry?
Do they find the PPE uncomfortable, if so have you tried alternatives.
I've had a similar problem also working in a macho indusrty and now moving to moulded ear plugs and/or acoustic enclosures to remove the operators from the source.
As an ex union safety rep I found it frustrating that employers always reversed the heirachy of controls and went to PPE as a first resort not last. Now that I have more involvement with H&S, when assessing controls I think back to my days on the shop floor and what I would have found acceptable, but always keeping a balance.
Regards
Lee
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Posted By George Wedgwood
Well done Lee - I think this is touching on the problem! I wondered how long we would debate the finer points of law (which is not even understood by the users, never mind the managers!) before reaching the more functional aspects of good management and communication. I have worked in the 'macho' industries and am about to change roles again and move into one of the most macho of all - scrap! However, this problem is only representative of others, where general ignorance of the workforce and lack of management leadership are usually key factors.
Others have touched on an important aspect also - the involvement of the users - having the workforce co-operate in the solving of a H&S problem is very powerful (witness some of the successful behavioural programmes) and once they opinionate, discuss and propose mutual solutions, it will always come out that there are quite a few underlying problems that have precipitated the 'unrest'. Perhaps they are disgruntled at 'having' to sign legal disclaimers as a result of the Working Time Regulations, so that they can work up to 100 hours per week to earn a 'decent' wage! Or perhaps they are just plain tired and sick of being treated like slaves.
This is an ideal chance to try and identify what the root causes are - and we are good at that, are we not? - and put together an action plan for improvements that actually involve some of the workforce. I think you will find, when management get over their superiority complexes and become 'felt leaders', and the workforce feel they are actually being listened to, some of the problems will disappear and the others can be worked through to a reasonable conclusion.
Some say the law is an ass but some managers may also think the employees are asses, and should be kicked! i'll leave you to decide which could be true!
Regards, George
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