Posted By Jim O'Dwyer
Hi,

Public Concern at Work have just published an "impact assessment" of the recent Amendments to the Management of Health and Safety at Work Regulations.

It is alarming!

http://www.pcaw.co.uk/po..._pub/speakuporpayup.html

Your comments are invited.


Jim O'Dwyer

Posted By Ken Taylor
Interesting! One would hope that the principle of vicarious duty would override in considering action but a clear statement in law (eg amendment to the Regulations) would be most welcome. In the event of related legal action, I suppose that defence would turn to lack of knowledge, foreseeability or provision of training and instruction to recognise serious and immediate danger or shortcomings in the employer's protection arrangements or whether such consideration would have been reasonable. The more vulnerable employees would appear to be those specifically appointed to recognise such dangers and shortcomings (such as health and safety practitioners) and, although the self-employed are likely to have professional indemnity insurance it will not protect them from the consequences of prosecution. Those who are employees are likely not even to have such personal insurance and safety representatives may well be considered to also have been adequately trained and instructed to fulfill this duty - even if not by their employers.

A clear message from this is to report everything in writing.

Posted By Eric Burt
Ken seems to have read this the same way as me. I found Tim Kerr's opinion at the end of the paper to be the most helpful - the rest of the report was heavy going and repetative. It took me several readings to establish what all the fuss was about.

In my opinion, the ascertion that Ken made about the employees who SHOULD be able to spot H&S hazards (i.e. H&S Practitioners)as being the ones in the firing line seems to be correct. Imagine the scenario whereby the H&S Practitioner had recently carried out an inspection then an accident occurred. The injured person would seek damages from the employer, who then passes it over to the employee (H&S Practitioner).

Tim Kerr QC suggests that vicarious liability would dictate that it would come back onto the employer, however, he warns that "the arguements are finely balanced......but there is the strong posibility that the courts may take a different view". (Fence, sitting-on, etc etc)

Given that the legislation IS in place, I have an uncomfortable feeling about this - not because I am worried about being sued, but the repercussions for the huge amount of paperwork that this may generate by H&S Practitioners having to record every little thing they ever comment on, so that it can be later produced as a defence in a civil case.

Does IOSH have a view on this legislation?

Regards


Eric

Posted By Adrian Watson
Dear All,

What's new? A fellow employee, including a safety practitioner, has always been able to be sued if they were negligent. The thing was in the past was that there was no reason because the safety officer was another silly bu**er with no cash.

However with house prices what they are, most homeowners have a lot of assets tied up in their property. Therefore is someone wanted to, it may be worthwhile for a person to sue a fellow employee, where they have been negligent. Conversely, it may be feasible for an employer to counter-sue an employee for breach of contract where they have claimed for a vicarious breach of tort.

Regards Adrian Watson

Posted By John Allen
There are two strands of law - criminal and civil.

Breaches of criminal law for which statutory penalties exist (ie fines, imprisonment) are normally initiated by the authorities. This would be either the Procurator Fiscal or the Crown Prosecution Service on behalf of the police, HSE etc. Sometimes private criminal prosecutions are allowed but these are rare and exceptional cases.

Where an individual has been injured or suffers loss as a result of someone else’s negligence he can seek redress in the civil courts. There are two main routes of claim. He may aver that there has been breach of the common law duty of care ie the duty that one person owes another to take reasonable care in his undertakings so as not to injure anyone else.

However where the statute permits it, he may commence civil proceedings for breach of a statutory duty. Like a claim under common law, if successful this will result in compensation, usually monetary, being paid to the injured party. This is not a fine and does not result in the person claimed against receiving a criminal record. It is generally considered that where a breach of a statute can be proven, the claimant’s case is more straightforward so civil liability for breach of statutory duty aids redress for negligence.

The old Factories Act like most statutory provisions of the time, permitted right of civil claim. Sections 2-9 of The Health and Safety at Work etc Act 1974 did not include this provision as they were closely modelled on the existing common law duties of care. Most of the”six pack” when introduced also included a right civil of claim. The main exception was the risk assessment requirement in the Management Regs; an anomaly now corrected by the 2003 amendment.

This in its turn appears to have created a new anomaly of employees being held civilly liable for failing to report hazards although as previously stated I think the circumstances where this could occur are unlikely. Even if such a case ever got to court the bench would be very quickly invited to consider the primary intent of the legislation which did not involve making employees liable.

In any event the change in legislation will not involve any criminal prosecutions being taken by solicitors acting for injured parties. Sorry for the long lecture but there seems to be a basic misunderstanding of the role of civil and criminal law.

Posted By Jim O'Dwyer
Thanks to all for your input to date.

I think we have established:

1. There are aspects to the legislation that give cause for concern

2. Reporting of safety concerns may increase dramatically - imagine if everything was reported!

3. The number of employers convicted of breaches of Health & Safety obligations is likely to rise as awareness of the Amendments increases.

4. Insurance premiums for 'convicted' employers are likely to be hiked up.

5. Employees are going to need to be insured (at least) for legal advice and representation in case they are sued.

6. Employers can expect to have to allocate more time and resources to answering "fishing expedition" enquiries from solicitors acting for potential claimants - as well as deal with increased reporting etc.

7. Standards of Workplace Safety will improve.


Does everyone agree?


Best wishes,

Jim O'Dwyer

Posted By Jim O'Dwyer
John,

My understanding is that if an employee fails to report a safety concern they would be in breach of their statutory duty under Section 14 of the Management of Health and Safety Regulations 1999.

So, please can you expand a bit on what you mean by "...when word of this gets out NO employee is going to tell anyone about a H&S risk. If they don't tell anyone they cannot be 'done' for anything!"

Best wishes,

Jim O'Dwyer

Posted By Jim O'Dwyer
Thanks for the clarification John.

I don't think proving "failure to report a safety concern" allegations would be as difficult as you think! (Where there's a will there is always a way!)

But, you are absolutely right about the reasons why so many people presently choose not to report safety concerns - and I'm sure you will agree, it is high time that things changed.

Under reporting is a major factor holding back improvement in safety standards - and ultimately we (the public) pick up the costs.

I believe the public are entitled to expect employees, as duty holders, to live up to their legal expectations (e.g. report safety concerns) and for guilty employees to have pay a (proportionate) penalty if, through any failure to do their duty, someone else suffers injury.

In my opinion the Amendments to the MHSW Regs make it more likely than ever before that employees will be called to account for their actions / inaction in court.

Is anyone able to suggest the best way to inform / advise employees about the increased risk of litigation they're facing?


Best wishes,

Jim O'Dwyer

Posted By Adrian Watson
Dear Jim,

I have to agree with John, these regulations will not make a jot of a difference.

This regulation is unlikely to be enforced and unless it is enforced it is another regulation that will do nothing, but waste paper. Furthermore if an employee perceives that he will be made a scapegoat by his employer for reporting risks or prosecuted by the authorities for not reporting risks, then I bet that most will avoid knowing so they don't have to report anything. Sad but true!

One last point, it must be remembered that these regulations impose a criminal liability so the enforcers have to prove their case beyond reasonable doubt. This not as easy as you may think.

Many regards Adrian Watson.

Posted By John Murgatroyd
It's mainly the employers insurers who pay the compensation, although there is a trend for the insurer to pursue civil litigation to recover some of the liability. It seems increasingly likely that some insurers may pay-out on a claim and then use the courts to recover some of the money from their client/s.
The legislation is so badly worded that it seems highly likely that any court will have major problems with any case taken to them. And the appeals will go on for years anyway.
It will make no difference to employees, many of who have long since given-up on h&s anyway.
It is just an increasingly useless and impotent hse trying, again, to make others do its work for it. After all, its main work now is sponsoring large and [even more] useless research into the obvious (such as why more people are injured in "team" lifting than individual lifts)(this is a puzzle to the hse idiots)
As I said, more crap.

Posted By Jack
This is certainly an interesting one.

As Adrian says it has always been possible for employers to sue their employees who have caused damage for which they are vicariously liable. (eg Hudson v. Ridge Manufacturing [1957]) but in practice it does not happen (because employees don’t have the money and it wouldn’t be good from an HR point of view!)

Isn't the classic case Lister v Romford Ice and Cold Storage Co. Ltd, 1957 where Lister was employed by Romford Ice as a truck driver and his father worked with him. While reversing his truck the son accidentally ran over his father. The HoL held that the son had been negligent and he owed a duty of care to exercise his skills with due care and competence and he had broken that duty of care by running over his father. He was therefore in breach of his employment contract and should therefore have to indemnify the company for the loss that they had suffered. (ie the insurance co was getting back the money they had paid out to the father!).

There was a gentleman’s agreement between insurance companies to avoid legislation in the wake of that case. Taking Adrian’s second point (many employees now have significant resources) and the changing climate perhaps now is the time for that legislation?

Re Erics point I understand some employers, eg some local authorities, already indemnify employees should they be sued as individuals.

Posted By Jim O'Dwyer
I have just re-read .

Section 1.2.1 of the info posted on the Public Concern at Work web site, titled "How far this provision changes existing law" confirms that an Employee's duty under S14(2) of the MHSW Regs

1. is one of strict liability (there is no negligence element);

2. it arises not only when the employee is aware of a danger or a shortcoming in the employer's health and safety arrangements, but when he should be aware of one; and

3. applies not only to dangers to and shortcomings affecting the health and safety of fellow workers but, in the context of the UK legislative scheme, applies also where the danger or shortcoming impacts on consumers, passengers, patients or the public.

The URL below takes you straight there.

http://www.pcaw.co.uk/po.../speakuporpayup.html#s12

From that, I think that where an employee's failure to report a safety concern contributes in a significant way to someone else suffering injury, the question of breach of statutory duty will be decided on the basis of whether others in the same position would have reported - and not the 'beyond all reasonable doubt' standard of the criminal court.

(I.E. In the same way that medical negligence claims are judged.)

A failure to report where others would have done might also indicate (or prove) incompetence - and result in restricted employment opportunities.


What should employees do if their employer fails to remedy safety shortcomings after they've been reported?


Instead of keeping quiet and carrying on working - they should do their duty!


UNISON have published helpful advice to assist members in raising concerns about excessive workloads, poor staffing, inappropriate grade mix, and a bullying culture which may prevent concerns being raised.

It explains what employees should do and, whilst the advice is aimed at NHS Staff, it applies to everyone.

Everyone can access the publication. It is titled "The duty of Care" and it is available free on the UNISON web site.

http://www.unison.org.uk...are/dutyofcare/index.asp

Also, if an employer is not carrying out legal duties, and this has been pointed out without getting a satisfactory response, employees can contact HSE or the local authority if the place they work is inspected by them.

They can get CONFIDENTIAL help and information via the HSE Infoline
Tel: 08701 545500
or email: hseinformationservices@natbrit.com


And, of course all employees should be aware of their duty obligation to withdraw from dangerous situations (S44 Employment Rights Act)

See the discussion on this Forum on S44 -

http://www.iosh.co.uk/in...m=1&thread=5959&page=181

The way the legislation has been drafted leaves absolutely no excuse whatsoever for either not reporting safety concerns - or for tolerating unsafe working conditions.

So, the way I see it, employees called to account are going to find it hard to justify inaction.

They need suitable advice.

Interested to hear your views.

Best wishes,

Jim O'Dwyer

Posted By Ken Taylor
Following on from Eric's point: If employee 'B' is injured at work due to an unsafe condition of which employee 'A' was or should have been aware but did not report, then employee 'A' can now be prosecuted for failing to report it and employee 'B' can sue employee 'A'. This will be more likely if the employer would not reasonably have been aware of the unsafe condition if not reported to him and particularly so if employee 'a' has it within his job description to look for and report such conditions (eg a H&S practitioner).

Posted By Ken Taylor
I suspect that it will be generally ignored as you say, John - until something happens and the clever lawyers (HSE and others) reach for every legal 'stick' they can wield to get a conviction or extract money.

Posted By Jim O'Dwyer
Whilst we probably will have to wait for court cases to establish the full regulatory impact of the Amendments to the MHSW Regs, I believe that the absence of an official response from IOSH is a good indication of just how far reaching the 'hidden' (and possibly unintended) effects are going to be.

This thinking is supported by the inexplicable failure of the Health & Safety Commission and Ministers at the Department of Work and Pensions to answer PCaW's request for answers about the potential ramifications.

(PCaW officially raised concerns as long ago as 25th June 2004.)

Meanwhile, until it is repealed, the law is going to be in force.

What kind of advice could be provided to employers and employees right now?

Your suggestions please -


Best wishes,

Jim O'Dwyer

Posted By David Sinclair
PLEASE NOTE THIS IS ONLY MY PERSONAL OPINION

I am not sure if the article and everybody here has not got the wrong end of the stick on this one.

There are I believe two issues here:

i. Criminal liability; and
ii. Civil liability

To paraphrase:

Regulation 14(2)states that employees shall inform their employer or any other employee of:

(a) situation which the employees training and instruction would reasonably consider represented a serous and immediate danger; or

(b) a shortcoming in the employer's protection arrangements.

i. Criminal liability

The ACOP says it all, the employees duty stems from section 7 HSWA and as we all know, an employee can only be convicted of a section 7 breach if the employer has complied with all his section 2 HSWA duties.

It is the same with Regulation 14. Unless the employee has had "sufficient" training to allow him to recognise the hazard or shortcoming he/she cannot be prosecuted.

ii. Civil liability

In order for an employee to be sued for failing to report something, there has to be negligence on his/her part (you cannot be sued for breach of statutory duty alone).

Negligence can only occur if:

a. the employee had sufficient knowledge / training / experience, to be able to identify the problem;

b. he/she had failed to use that knowledge, etc. in reporting the problem; and

c. that failure was a contributory factor in the cause of the accident.

I can see very few cases where an employee can be prosecuted or sued under Regulation 14 MHSWR.

However, where an employee has genuinely been in breach of Reg. 14 and/or negligent, then I would argue they deserve to be held accountable.

What I do believe is the change in the MHSWR will place even more pressure on employers to comply with their section 2 HSWA duties, or face the consequences, as was the case before this change in the law.

It will also however place even greater pressure on health and safety practitioners with regard to holding themselves out as "experts".

I do foresee more health and safety practitioners being prosecuted or sued.

Regards.

David

Posted By David Sinclair
The problem is, David, that a breach of the s14 duty looks very much like negligence (ie failure to exercise a duty of care by someone knowing the hazard and the risk, having a duty to report it and not doing so)

Ken,

My apologies for not making it clear.

My point is that it will be almost impossible to prosecute an employee in these circumstances because the enforcing authorities (and the employer) will have to show, beyond reasonable doubt, that the employer complied with ALL his section 2 HSWA duties in this regard.

How often do you come accross an employer who has complied with ALL his section 2 duties?

With regard to suing the employee, the claimant (the injured party) will have to show that the employee was negligent (i.e. prove using the normal test). Unless the claimant can rely on a statutory breach of Reg. 14, which is highly unlikely, this will also be almost impossible to do.

The vital part to remember here is that it is for the prosecution and/or the claimant to prove its case. It is not for the employee to have to defend. There is no reverse burden of proof (s. 40 HSWA) here.

Regards.

David