Posted By John Webster Under the HSWA, the employer still has the duty to safeguard the Health & Safety of anyone who might be affected by their operation, irrespective of whether they were actually at work or not, so if it happened on their premises they are responsible. If the employee was in breach of company or safety rules, then he might rightly be subject to disciplinary action, but the employer cannot ignore the accident and use disciplinary action as a silencer. The accident should be reported. Whether or not your colleague should also be disciplined will depend not only on whether he broke the rules, but also whether employees were in the habit of breaking the rules and the employer never did anything about it - until someone had an accident! Is this really what this is about? John

Posted By Raymond Rapp John and Jay, Interesting but conflicting views if I am correct. The accident was entered in the accident book on the same day. I agree, the accident and disciplinary action should be two separate issues. However, that is not the reality of the situation. Supplementary evidence:the area was checked by an H&S Rep, who found that there was a tripping hazard above the normal tolerated level. I must be sure that I have a good case before I pursue this matter further. If I win the argument re: industrial accident, I believe I can overcome the disciplinary argument. Are there any precedents or case laws that I could refer to? Ray

Posted By Roger Smith Ray, The Workplace Regulations state that so far as is reasonably practicble, every floor in a workplace should be kept free of obstructions articles and substances which may cause a person to slip, trip or fall. An accident has happened in a workplace. Whether or not the peron who had the fall normally worked at the site of the accident is irrelevant. Any subsequent investigation done by the employer and/or by the H&S representative should seek to establish the details of what happened and why (and hence whether there is likely to be any liability on the part of the employer or contributory negligence on the part of the worker). The injured party may be subjected to internal discipline if the rules have been broken but this does not negate the employers responsibility to provide a safe place of work. Roj

Posted By Raymond Rapp Thanks to all those who have contributed to this discussion. There is a clear consensus of agreement, that the onus is on the company. The operative twisted his ankle and ruptured a ligament, but is not seeking compensation - only that the item should be removed from his Attendance at Work record. I have asked my colleague as his TU Rep (and a registered SP with IOSH) to consider the ramifications, but should he wish to pursue this matter I would back him 100%. After reading the comments I hope he decides to pursue this matter. Either way I will be printing a copy of your comments and showing them to my manager, with probably some rather choice comments of my own. Ray

Posted By Robert M Edwards Raymond, Can you just elaborate a little on the comment in your posting "However, he was not actually working at the time and was in a designated area not normally within his remit." Did you mean he was on a rest break or within normal working hours? Or was it he was returning to the workplace when it was closed and he was not there lawfully? Was the designated area usually open to workers or was it sealed off in some way and he was in there again unlawfully? I ask as I really do not see how advice can be given until there is a bit more known.

Posted By Robert M Edwards Hi Raymond, I did indeed and was interested as to the response. It sounds like the area was still open to staff therefore normal reporting of work accident applies. The disciplinary can only be about the employee's behaviour such as is relevant to the contract and staff rules. It cannot be a negotiating issue in accident reporting. No doubt rules will now follow to tighten up employee movement on site? Without knowing a bit more I cannot comment but the employee should take some independant legal advice on his own claim. His solicitor can then look into the contract and the rules and give him specifics to the case, seems a shame not to claim when he has been injured though. He also should retain his sickness on the records and be encouraged to do so. Good luck with this it sounds like you have an 'interesting' time of it!

Posted By Raymond Rapp Robert, Geoff et al, Indeed, the purpose of arguing for the incident to be recorded as a industrial accident is to prevent an 'item' on his Attendance at Work record, which is in itself is a disciplinary measure for attendance per se. Perhaps I am going down the wrong road and should advise the operative to claim for compensation !! Now that would put a few managerial noses out of joint. Ray

Posted By Laurie Yet again we are discussing whether money is involved, rather than whether an employee has been injured as a result of his/her employer breaching the Health & Safety at Work Act. How sad! Have the bean counters really got hold of our health and safety souls so much? Laurie

Posted By Tony Campbell This has been an interesting thread... with all this talk about money and claims! However.... as safety professionals should not the root cause be looked at in prvention of a similar accicent occurring? also the fact that the individual may have reason for litigation.... I would be also interested how the employer is recognizing that something has happened and what steps they may put in place to ectify the situation. Once again the human element is involved I as keep telling my workforce .... most often than not there is usually a 'motive' to committ an unsafe act or condition.

Posted By Raymond Rapp Jim, Thank you for steering the thread back on course, it is interesting to sit back and read the various opinions and thoughts. Management have said "it is better if this one just goes away." Should provoke a response? Of course there is a plethora of health and safety legislation that one could refer to, in truth that is probably half the problem. If we are to be honest how many organisations actually comply with all of them? Not too many I suspect. Perhaps it is peculiar to my organisation, but clearly any form of goodwill, guilt or consideration will not be forthcoming. It is unrealistic to expect a regulator (HSE) to become embroiled in what is in effect a slips, trips and falls episode. On the 'Richter' scale this incident hardly measures a bump. The only way I can win the argument is by guile. Also, there is a wider implication that I must consider for all the colleagues that I represent.

Posted By Raymond Rapp Hi Adam, nice to hear from you. The incident that I refer to involves an area just off the platform where there is no physical barrier but the usual notice for members of the public. Basically, the chap was looking to see if a freind was driving another train on a adjacent platform. Management have have alleged that the T/Op was about to cross the track, when he 'tripped' and did his ankle, which he denies. I think I have enough evidence to make a good case, but as ever their are other considerations that must be taken into account. We also have a new TOM and it is quite likely that the conviviable relationship will turn a little sour if this is pursued. I think you have been there... Best regards Ray and good luck with your ET etc.

Posted By Roger Smith Ray, Assuming he was still on the ramp leading up to/down from the platform then he was not "on or near the track". If he had left the ramp then he needs to possess a current a Personal Track Safety Certificate and to be wearing his hi-vis orange vest. Assuming he is a train driver then he should be in possession of both anyway. It is an accident regardless of whether your colleague was an employee at work, or a member of the public who couldn't be bothered to use the footbridge to cross between platforms. It is an incident that should be reported on the Railway Safety Management Information System (SMIS). I recommend that you contact the safety department of your Train Operating Company head office and report the incident yourself. A proper investigation can then be conducted into the events surrounding the incident and appropriate action taken to prevent a recurrence. The Railway Group Safety Plan for 2003/04 (Section 5A.7)states that: "The 2002/03 Plan identifies slips, trips and falls as the principal risk contributor for the railway workforce. During 2003/04, work will continue to reduce these risk contributors,..." Your colleagues incident as you have described it would seem to fit within an area that the Safety Plan seeks to address. regards Roj