Posted By Alec Wood
We have had cases here in the past where persons have failed to report events or conditions which have later resulted in near-miss or accident. In cases where we feel it was negligent on the part of the employee we will invoke the disciplinary procedure but most often only at a very low level. An absolute duty to report all concerns is written into our company handbooks for employees and the company safety policy.

As well as the usual 'verbal-written-out the door' process we have soemthing called "official counselling" which is written into the disciplinary procedure, so that record of it can be retained, but does not automatically form a prelude to an official warning. Generally this option is used by supervisors and managers to register their dissatisfaction with an employee's performance in such a manner that the employee clearly understands the depth of his concerns. We also have the capacity to issue written improvement notices to employees but that is not really helpful in this situation because you cannot know if the employee will have the opportunity to demonstrate a better attitude towards reporting concerns and incidents within the improvement period. "Counselling" also allows us to have a more constuctive two-way discussion with the employee and is less likely to lead to his developing a negative attitude towards the process. We try to portray this process as being more of an official expression of concern than a disciplinary matter. This process is very helpful to us in this organisation in a wide range of areas, and since its introduction gives the supervisors a way of emphasising the gravity of the situation without going through the full disciplinary process, and in most cases without alienating the employee.

In a situation where a condition causing a safety concern had been noted by an employee (and we could prove it) but he had not reported it, and an accident had been caused by that condition, we would use this process. The degree of negligence, and the seriousness of the resulting accident if any, would influence our decision to invoke further disciplinary action. A maintenance tech noting a faulty machine guard interlock and doing nothing about it could expect full discipilinary action to be brought agaist him because he is a specialist and understood the consequences. A line operator could not expect the same because of his lower degree of understanding of the system and would be more likely to receive a stern talking to from his supervisor, or official counselling at most.

In the case of a concern where an accident does not result then it is more difficult. The acid test for us is whether or not the employee concerned was obviously aware of the potential consequences, and the risk factors involved, but we would still be prepared to fully discipline (including dismiss) in the case of gross negligence particularly for high risk conditions.

I don't believe that disciplining people for such things is often helpful, particularly if non-reporting has become cultural within an organisation. You must change the culture first, then use the processes available to you to deal with those last few who cannot be motivated to change in other ways.

Contributions to a culture of non-reporting are many. One I would like to single out, is the idea of using the raw number of accidents, or days since last accident as a key performance indicator as is often done with good intent, but gives the mere reporting of an accident a negative consequence for that department. In such an environment it would be grossly unfair to cane an employee for failing to report.

Posted By Sean Fraser
Ray,

Couldn't let your post slide without sticking my own oar in.

The situation you describe is a classic where the employee is left in a "damned if you do, damned if you don't" situation. I was particuarly interested in the statement "Normally this would be a tangible incident such as infrastructure damage." - the word "injury" was conspicuous by it's absence!

Surely this is one where the abuse of power in the contractual relationship is evident for all to see, due to the ongoing attitudes and behavious exhibited by the organisation. And despite the legal requirements (compulsions, even) to report incidents not only internally but to the enforcement authorities, it is being ignored. In such a blatant situation, the employee would have the statutorily protected right to challenge such a situation and not be persecuted for having done so, yet who is going to do it in reality?

If the situation is really that bad, then a quiet word to the HSE would tip them off and they can arrange a visit. It might not have the desired effect - the sudden and lasting conversion of the management to promote the safety culture - but it might just mark a turning point.

Posted By Jim O'Dwyer
Hi Guys,

Thanks for keeping the thread going.

Sorry about the delay in responding. (p.c. trouble!)

What you guys have said makes a lot of sense and it has been very helpful.

There were a number of reasons behind me asking the original question. These may have been a bit obtuse. Sorry!

I wanted to raise awareness to (and call into question the public's tolerance of) the 'unaccountability' of the NHS Chief Executive for what happens in the NHS.

I also wanted to call attention to the apparent absence of action by enforcement bodies to enforce RIDDOR. According to the NAO Office report, the HSE had estimated that across the NHS, only 40% of RIDDOR reportable incidents were actually being communicated to enforcement bodies - yet no sign of anyone, at any level, being held accountable!

(Statistically the number of "serious incidents" happening in the NHS has been reducing! Evidence of better management = more stars!!)

But, in particular, I wanted to highlight the lack of incentive for workers in any organisation to report concerns about safety inadequacies and I wanted to voice my concern about continuing without any.

A major problem, as I see it, stems from the fact that everyone, it seems, knows that unless you are well and truly to blame for a very serious outcome, the chances of being prosecuted by the HSE for failing to pass on a safety concern are actually pretty slim. The absence of any likelihood of being found accountable makes 'not bothering' the senior management with 'negative news' about 'moans and groans' much more likely; and, this leaves plenty of scope for all manner of harm to occur!

If, however, it was common knowledge that 'failing to report a safety concern' was a recognised discipline 'offence', it would be a lot harder for line managers to ignore or fail to pass on concerns raised by workers to senior management - and help towards more timely improvements in safety.

What I hoped to find was at least one example of a well run organisation that clarified to the workforce that, because the employer is to such a large degree reliant on the workers to alert management (early) to the existence of problems, a failure to report safety concerns is a serious matter which:

1. Is certainly something that can (will and does!) result in a guilty employee's instant(ish) dismissal

2. May be come to be interpreted by the courts as contributory negligence which, in the event that the employee suffers 'injury' could result in any compensation being reduced in proportion to how significantly their own actions contributed to the outcome.

3. If someone else suffers consequential 'injury', may be come to be interpreted by the courts as negligence and could result in the employee being found (proportionately) liable under Common Law to pay damages to the 'injured' party.

4. May be come to be interpreted as a breach of a statutory duty (H&S) and result in the employee being required to pay the injured party compensation.

I also intended to, during some stage of the discussion, invite consideration as to how the recent amendments to the Management of Health and Safety Regulations 1999 might impact on the willingness of organisations to adopt this practice.

The amendments which came into force on 27th October 2003, not only provide for employees to claim damages from their employer if they have suffered harm as a result of the employer breaching the Regulations, they also provide for employers to bring actions against employees for breach of their statutory duties under the 1999 Regulations.

So, what do you think?


Jim


P.S. Statutory Instrument 2003 No. 2457 - The Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003 can be viewed (free) at:

http://www.legislation.h...k/si/si2003/20032457.htm

Posted By Jim O'Dwyer
I agree with all you say John.

Things have got to change, haven't they?

And, I think the amendments to the Management of Health and Safety Regulations may become a primary driver for effecting improvement in safety standards.

Here's why.

Prior to Oct 2003, when the Amendments came into effect, the only way management could be held to account for breaches of statutory Health & Safety obligations was if direct action was taken by the HSE (or Local Authority Enforcement Officers).

Now, when employees suffer injury that arise as a consequence of safety shortcomings they can underpin any claim for compensation from their employer on grounds of negligence (Common Law) with a claim of breach of statutory duty too!

I think that lawyers acting for injured parties will always 'back their horses both ways' and, consequently, this will increase the number of 'convictions' for Health & Safety offences.

I also think that, when push comes to shove, a lot of employers will seek any avenue available to offset/avoid liability.

The 'Amendments' provide one - blame the employees (including individual managers).

As you say John, ".... if you really start trying to make employees "guilty" to, basically, cover management incompetence, you'll quickly find how obstructive a resentful workforce can be."

It is a recipe for conflict and something that everyone should be more aware of.

Do you agree?

Or, have I got it all wrong?


Best wishes,

Jim O'Dwyer

P.S. You can read more about the HSE's assessment of the implications of the Amendments here:

http://www.hse.gov.uk/consult/condocs/cd177.pdf

Posted By Jim O'Dwyer
I accept all you say John.

But, there is a question of 'duty' here.

Duty = What you MUST do

The 'duty' to report (and to keep reporting) safety concerns is there as a vital safeguard to protect everyone (not just one employee) against the negligent or reckless behaviour of others.

'To avoid clashing with management' cannot be sufficient justification to disregard it.

The way I see it, the legislation has been framed in such a way as to leave absolutely no excuse for employees to tolerate unsafe working conditions. So, where a manager/ employer fails to maintain appropriate safety arrangements, there can be no excuse for not performing the duty to report/ whistleblow.

I do appreciate of course that with awareness of employee rights so low, the scope for abuse to happen is very high.

That's why I try my best to raise awareness!

Best wishes,

Jim O'Dwyer

Posted By Sean Fraser
I'm watching this thread develop with some interest. Here are some thoughts on what has been discussed already.

The focus on the employee as the regulator of safety in the workplace is misplaced, as they have little individual influence or control over normal operations. Even collectively, they often find themselves on a back-foot against the managing regime regardless of whether they are uniuonised or not (they DO have more effect in a unionised workplace as compared to a non-unionised one though, which is at least one good reason for recognising and working with the official Trade Union[s]). The over-riding consideration has to be the prevailing corporate culture which stongly infulences how things are done, especially in terms of health and safety. Many organisations talk a good game but many have no actual intention of playing by the rules, either statutorily imposed or self-determined. Even the good ones will ignore "safety" issues when they become politically or economically inconvenient. A significant number actually believe that they have a robust safety regime in place, as reported incidences and injuries continue to decline and they trumpet this as evidence of how safe they are. But look behind much of this and you find a culture of under-reporting, even with those who are perceived to take safety "seriously". Reason? 'Targets' and 'performance measures'. Example - company has a contractor who is judged (or worse, paid) on performance. H&S incidents form part of that measure. Poor H&S results = lower payment (or even a "fine") or a failure to succeed in contract bids or futher work. Jobs are now at risk. To change the situation would take significant investment in the short term for results that will noly be realised over a longer term. Outcome? Obvious - under-reporting. And the same can apply within an organisation, as departments will conceal the real situation in order not to jeopardise budgets, jobs or even just corporate kudos.

So how would disciplining help the employees, assuming that the intention is to improve the safety culture? It won't. Worse, it would create further resentment against a system the employee has little or no real power to influence or control. And this would become an injustice if it were to be factored into any court proceedings as contributory negligence. We cannot allow fear to continue to run our organisations. Legal sanction, for many reasons, doesn't work. We are seeing the results of that already. Over-regulation will make it worse, not better. Any law is only as good as the enforcement that follows. As most of us have already commented, this appears to be happening less often, which only encourages the cowboys to flout the laws. Access to justice can sometimes mean that the most vulnerable, our poorly paid workers, are at most disadvantage as taking matters to court costs money, and there is often no guarantee that you will win. And then there are the appeals. He who has the most money, has the power. You cannot enforce or impose moral and ethical ethos on anyone - you can only foster that through an understanding of how society benefits from such intentions. And hence we get even furhter away from the individual. It has become a societal matter - and to punish the smallest element for the "sins" of the majority is patently unfair and unjust.

Sounds hopeless, doesn't it? Although I am against targets per se, I do believe that objective performance measures can illustrate how effective an organisation's safety culture is actually being. One way would be absence management. If we were required to report on consistent, simple to understand measures then it would be easy to do a comparison agaisnt like-for-like. There are obvious issues that arise in such a scenario - contractual relationships (inc. sub and sub-sub-contractors), temporary and transient workforces, traditionally "high-turnover" industry sectors and so on. But the principle remains sound.

Of course, anyone wanting to massage or misreport figures will still be able to do so. In any case it depends on the honesty of those required to report accurately - even if it is a legal obligation - and how strong all of the influencing factors actually are. Some are factors are stronger than others and will over-ride them. Some are equally strong but diametrically opposite, creating a dilemma that may or may not be resolved to the satisfaction of most (seldom all).

The fact remains that the focus should be on the system, not the individuals involved. The immediate impulse to "discipline" employees to address failures in the organisational culture (read "leadership") is always tempting, but if acted upon simply excacerbates the undesirable situation and may have further unintended consequences later on. If incidences are not being reported, we need to look beyond that and see the true causes, organsiationally, industrially and societally. And under-reporting by employees will seldom, if ever, be a cause, only a symptom.

Posted By Jim O'Dwyer

Goodness John, next you'll be saying they were 'only following orders'.

But seriously, I think we are all agreed that despite the clarity of the law (It has never been so well defined!) and the protection it affords to employees, the scope for abusing them remains huge.

I attribute this to a (deliberate) failure to educate the people affected.

I also think we are also all in agreement that the situation, as it stands, is unwholesome and unhealthy.

Of particular concern is the escalating frustration of those who try to use legitimate means to get justice and fail!

As Akbar Hashemi Rafsanjani, chief of Iran's powerful Expediency Council and chief adviser to Iran's supreme leader said on 26.10.2001

" We must first understand what pressures cause people to believe they are at a dead-end, that they have got nothing to lose and so become radicals. It is only by understanding these and going to the roots that we can counter terrorism,''

Alec said "You must change the culture first, then use the processes available to you to deal with those last few who cannot be motivated to change in other ways."

If you've still got your 'ears on' Alec, how would you achieve it?

Best wishes,

Jim O'Dwyer

P.S. I am sure Shell shareholders would have preferred employees working there to have been a little more in fear of being 'disciplined' for conniving in the failure to disclose concerns!

Posted By Jim O'Dwyer

Most 'Discipline Codes' provide for action (including dismissal) to be taken against employees (at all levels) if they commit a criminal offence and S. 36/ 37 H&S at Work Act 1974 provides for individuals within an organisation, as well as the organisation itself - to be charged with criminal offences where, through consent, connivance or neglect, they contribute significantly to serious harm occurring.

So, failing to report safety concerns (a breach of a statutory Health & Safety obligation) is conduct that can lead not only to prosecution but also to disciplinary action.

The 'punishment' for not reporting can therefore vary from a 'ticking off' to jail.

(It doesn't always have to be a hammer!)



I believe that a 'Zero Tolerance' approach to 'non reporting', which included applying 'disciplinary' sanctions for less serious failings, would help to establish the 'attitude' of the organisation to the dangerous practice of non and under reporting and enable management to gain information early enough to avert serious accidents.

If it was 'common knowledge' amongst the whole workforce) that not reporting (even the slightest concern) was a very serious matter, I think it would be easier for line managers to convey the concerns of frontline workers to senior management - and more importantly - harder for them not to and, if it was clearly stated as Corporate Policy it would be much more difficult for senior management to defer taking appropriate action to mitigate risk.



All that is needed is the will to do it!

Who is going to be first?



Best wishes,

Jim O'Dwyer