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#1 Posted : 02 September 2003 09:50:00(UTC)
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Posted By Benedict Thierry
Take an issue such as PPE.

In the event of staff not following the findings in a risk assessment or following company policy on wearing PPE, it was suggested that the member(s) of staff be asked to sign a waiver on the lines of "I accept the responsibility etc of not wearing the PPE etc".

Is there a body of opinion or experience out there?

What are likely implications - known or anticipated?

Benedict
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#2 Posted : 02 September 2003 10:11:00(UTC)
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Posted By Stewart Dean
Don't think the HSE would look to kindly to this if there was an accident. They will point to the HSWA as the employee has a responsibility for their own health and safety and the employer has a duty to enforce the wearing of PPE where required.
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#3 Posted : 02 September 2003 10:12:00(UTC)
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Posted By Richard Webber
Benedict,

Employers have a duty to ensure that their employees work safely. Where a risk assesment indicates that safe systems of work are necessary or that PPE must be worn etc, then the law requires the employer to ensure that this occurs.

It is not legally possible for an employer to discharge this duty by getting the employee to sign away his/her rights or to take responsibility for the conseqences of non-compliance.

The flip side is that employees have a duty to cooperate with their employers to enable their employers to discharge their duties.

Have a look at Section 2 of the Health and Safety at Work Act for clarification.

Hope this helps

Richard

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#4 Posted : 02 September 2003 10:21:00(UTC)
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Posted By Jonathan Breeze
Surely it depends very much on the waiver being signed and it's meaning.

If as you suggest someone signs a document saying "I accept responsibility for the consequences of not wearing PPE" - and one of those consequences is disciplinary action which is enforced by management, then it could be argued by lawyers that management have fulfilled their duties.

If however the waiver says somthing like "Management accept no responsibility for X occurring to employees". Then X does happen and it was evident in a court of law that management could have reasonably done more to prevent X from occurring (like for example disciplinary action or a whole host of other measures) then your waiver is probably worthless.

It's all to do with circumstance, semantics & who your lawyer is.

Ultimately if your safe system of work relies on a waiver, there is probably something wrong with it.

Apologies if this is a cynical point of view, but it should get the ball rolling at least.
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#5 Posted : 02 September 2003 10:40:00(UTC)
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Posted By Sean Fraser
I agree in part with Jonathan - it can depend on semantics. However, the waiver would be completely useless in court anyway, so there is little point in trying to use one to abrigate managerial responsibility that is so clearly enshrined in safety law.

We had a similar situation recently where a member of staff had recurring problems wearing safey shoes - the answer was to place her on light duties until we could source an alternative shoe to the ones we normally issue. This tailors the job to the person, as required in the PPE regs, but the upshot is that shoes were identified in the Risk Assessment as being a necessary part of the PPE - if it turned out she couldn't wear them at all, and the RA couldn't be revised accordingly, then she would have been unable toc ontinue in that particular line of work.

First step is to review the Risk Assessment - does it say what PPE must be worn and why, or does it state PPE generally? If it doesn't justify it, is it because it looks good or there is a fear that if we didn't have it then it would look bad if there was an accident, even if the provision of that PPE was superflous to the work done and accident involved? Perhaps simply restricting access to hazardous areas would then alleviate the need for some, if not a majority, of the staff from having to wear PPE at all - and save money in provision too!

I doubt anyone on the forum would support the idea of a waiver, in any form - and as I said, it wouldn't survive in court anyway so why bother? It would only be false assurance for management which will be shown up quite quickly when you think you need it most.

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#6 Posted : 02 September 2003 13:08:00(UTC)
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Posted By Karen Todd
As mentioned, the waiver is no use in court. Under the Unfair Contract Terms Act, a person cannot exclude liability for death or personal injury resulting from negligence.

I have heard of people being injured through not wearing their safety footwear, then they try to sue their employer for both breach of statutory duty and also for negligence, for not making them wear it.

Regards,
Karen
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#7 Posted : 02 September 2003 14:24:00(UTC)
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Posted By Neil Pearson
There have been cases of employees suing their employers for not managing to force them to wear PPE. But you won't get round that problem with a waiver. It is not possible to waive your duty of care, nor your statutory duties. This is not a contract!

Plus of course it's an incredibly negative thing to do. Of course you should record all the steps you take to try to secure the co-operation of the worker (e.g. minutes of meetings, memos, letters etc). This will help with any civil action. But getting them to sign a waiver can only be a bad thing.

Of course we could now turn to the thorny question of whether you have to sack a worker in this situation who puts only himself or herself at risk......
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#8 Posted : 03 September 2003 21:30:00(UTC)
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Posted By Robert M Edwards
A lot has been said about the law on this area and the clarity of the responsibility in law to ensure the wearing of PPE.

Getting an employee in a court case waiver in hand on a negligence claim would do the employer no good, as it would be proof in favour of the employee showing a problem which they, the employer both knoew about and had failed to rectify.

On a contractual (employment contract) basis the Health and Safety policy/rules should deal with the duty of employees to comply with H&S legislation imposed on the employer.

With persistant offenders who breach those rules and place themselves at risk then it can become a disciplinary and grievance issue.
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#9 Posted : 09 September 2003 13:34:00(UTC)
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Posted By Dave Wilson
The law is quite clear!

The person shall comply with the provisions of the HASAW Act / PPE Regs etc

As part of his T&C's of contract it should state that he must comply with employer etc.

The employer should have deliberate negligence as part of their Discipline procedures.

If he wont wear it, do not see his union supportinhg him in any subsequent tribunual.

HSE/LA can prosecute.

Volenti may be invoked.

Insurers may not pay out

Contributory negligence could be assumend.

Show him the door, there is no place for this behaviour in todays modern working society!

Also the employer needs a slap for even going down this route!
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#10 Posted : 10 September 2003 09:38:00(UTC)
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Posted By Benedict Thierry
Hello,

Thanks to everyone for ther interest.

Jonathan - thanks you for the follow-up.

Just to clarify a point - the suggestion was made to my employer by a consultant being considered to do some works for the company.

Personally, I was horrified that a qualified & experienced person would even think such a thing let alone voice it as a serious option - but I was interested to see if it was a current technique being adopted or if it was something that had been tried & failed or whatever.

My understanding of HASWA sect. 2 is that it is an "absolute duty" on both the employer & the employee and this must be achieved in a co-operative way.

In the risk control hierachy PPE is not supposed to be the first and only option considered by the employer - but if the process has been gone through and other controls introduced as best possible and PPE is still considered a requirement I recognise that for the person doing the job this, in certain circumstances, can be perceived as a nuisance or an infringement of their freedoms or whatever.

But, then I ask, why do they bother to get up, why do they bother to get dressed, why do they bother to come to work and alot of other questions.

In other words - why are they picking on this and what's their problem?

The recent hot weather - umm.

Yes - heat does make the wearing of some items of PPE - but check this out with other occupations - firefighters, steelworks, repairing ovens (industrial sized walk - in), work in a glasshouse and many others I'm sure - and frankly, to me, the objection sounds pathetic.

The other item in this forum about the person with balance problems & the wearing of hearing protection I can see exactly the problem - the current design of hearing protection or is this an absolute design limit that unfortunately with current materials available etc is unavoidable and the only option is a change of occupation - this is not a unique situation but an unfortunate biological limiting fact of life.

As to Sean Frasers comment on safety footwear - with the number of manufacturers' in this market place, the number of designs & styles - I may question hoe thoroughly this question has been examined. For years I argued with manufacturers' about their lack of meeting the need for footwear built on lasts purpose designed for womens feet to be told it can't be done to meet the 200 joule, but easy for 100 joules - I have never accepted this as they could never provide evidence for this assertion - look around today.

Feet are a problem as people from different places in the world have different sized and shaped feet - but hey - modern times call for modern, inclusive manufacture and design - we may still be an island geographically but not in terms of diversty of populations.

Ethically - at the moment doctors are not legally allowed to assist in suicides - so how could an employer put themselves in circumstances where this may be argued as the outcome of their actions.

If the company can't muster a positive attitude to H&S I question is this a root problem or a means for those witout a say to raise their frustration at other root cause(s).

Then comes the dear old disciplinary codes - may as well face it - they have a place when dealing with unacceptable behaviours - and I think non- co-operation in the wearing of PPE needs to be challenged and this is probably the fairest way to do it.

Dave Wilson - your summary is ok with me on this.

Benedict

Benedict
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#11 Posted : 10 September 2003 10:24:00(UTC)
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Posted By Ian Minter
Under the Health & Safety at Work Act section 7, at the beginning it states "It shall be the duty of all employees" this makes it an absolute duty for employees to cooperate with their employer in matters regarding H&S. Bearing this in mind the signing of a waiver would be of no consequence should a court case arise, as I believe a court would want to know what action the company had taken against the employees for breaching this. Therefore I believe that the company and employee would both have action taken against them.
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#12 Posted : 10 September 2003 10:38:00(UTC)
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Posted By Jonathan Breeze
So Benedict,



I think the body of opinion & experience out here is saying:

"You're wasting your time in drafting up a document that will be worthless in both contract & safety law and your management would be better employed making the wearing of PPE or otherwise a disciplinary matter."

This in fact backs up what you thought in the first place & you were right to stick to your guns.



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#13 Posted : 10 September 2003 10:54:00(UTC)
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Posted By Linda Westrupp
I absolutely agree with everyone else that getting people to sign waivers is not an option. What really worries me is the statement that this was suggested by a Consultant engaged to do some work for the company. I would advise this company to check this persons qualifications and report them to the relevant institute, if indeed, they are a member of one. I would regard this as incompetence in any professional.
By the way, has anyone explained why the PPE is needed to the people refusing to wear it?
Linda
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#14 Posted : 10 September 2003 15:25:00(UTC)
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Posted By Ian Lynch
the provision of PPE is not a question of choice in the your rish assessment you will have included providing and wareing PPE as a course of action to reduce and hopefuly eliminate the risk

It is there must be company policy that all employees adhere to the wareing of ppe
if employees are found not to adher to this then you can follow a course of action such as a verbal warning written warning then dismissal. PPE is a serious matter and not one looked likely on

You could not expect it to be ok if you were to say to someone that that scaffold is on safe but you can work on it if you sign this waver.

There for you can not expect it to be seen as ok if you permit some ome to work in an area or task that has clearly been assessed as a risk (must have been to say ppe is to be worn)with out PPE just cause theu signed a waver effectivly you have given promission to do so and you clearly know the danger which makes you neglagent
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#15 Posted : 10 September 2003 15:42:00(UTC)
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Posted By Benedict Thierry
Hello Linda - repeatedly. So much so the old nag is weary.

The consultant is a member of IOSH and other august bodies which is one of the reasons I posted this thread to see if I was in the dark ages of enlightenment and we had progressed backwards to a time I remember from before - when ignorance was bliss.
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#16 Posted : 12 September 2003 01:35:00(UTC)
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Posted By James Sneddon
Benedict,

Your company should make it a condition of employment that employees are required to co-operate with the employer for OH&S matters. Failing that they will be subjected to disciplinary action and possible summary dismissal.

Why go to all the effort of conducting the risk assessment for it to be ignored by means of a waiver?

At the end of the day the employer would still have to do everything as reasonably practicable to safe guard the H&S of its employees.

Jim
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#17 Posted : 12 September 2003 07:15:00(UTC)
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Posted By Adrian Watson
Dear All,

Just a few points that I would like to add:

1. The majority are correct in noting that the waiver, albeit being signed, is worthles both in criminal and civil law?

2. You cannot, cannot go straight into the disciplinary mode. You must first carry out reasonable investigations and then take appropriate actions based on the findings.

EG a person is found not wearing safety glasses in area where it is a mandatory requirement.

If the glasses were not available - no disciplinary action for the employee - take action to make them worn.

If the glasses were not worn because they are unsuitable or uncomfortable - no disciplinary action for the employee - take action to find suitable glasses.

If it common practice not to wear glasses in that area - no disciplinary action for the employee - investigate supervision and management actions.

If the individual does not know of the reason to wear glasses - no disciplinary action for the employee - take action to provide information, instruction and training.

If the individual does not wear glasses and knows the rules and decides to not wear - discipline employee.

Regards Adrian Watson
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#18 Posted : 12 September 2003 12:32:00(UTC)
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Posted By Dave Wilson
Quite right mate, when I mention 'disciplinary' action it of course means going through the proper process for this.
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#19 Posted : 12 September 2003 12:34:00(UTC)
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Posted By Patrick Teyhan
Is it me? or has no one else heard of the Human Factors within occupational Health and Safety and the importance of investigation to establish the root causation of behaviour?

Not being abraced of all the facts, I have to ask was a risk assessment undertaken to assess the suitability of the PPE provided for

i The individual

ii the work process? where any remedial actions required and undertaken?

iii how much involvement did the individual have in the process?

iii Where there any other suggestions made such as an improvement or update to current Occupational Health and Safety information supervision and training?

Benedict, in the interests of reputable Occupational Health and Safety Professionals reputations, I believe you should name and shame the purveyor of this possibly lethal advice.

I have contacted member services whom inform me that this can be done by a number of means

i) this forum is our forum and we can publish what we want within reason.

ii) by writing to IOSH CEO, Mr Rob Strange, with details of this (so called) professional.

I would recommend the second action.

I look forward to your reply

Regards

Patrick
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