Posted By David Gault
Making some assumptions from your post it would appear from the fact that the case was prosecuted that it was a reportable. As it is a legal requirement to report such accidents the employers are forcing the person to break the law. I believe that in itself is illegal but it goes somewhat out of the realms of H&S and more into HR and even police action. I would imagine that would make a reaonable constructive dismissal case, though I may be corrected by others.

Posted By lisa mccaulder
hi there

Sorry mate but without knowing the exact nature of the information provided to the HSE, confirming its accuracy (in terms of the investigation), and assessing to what extent it led directly to the prosecution, no one in their right mind is going to try and answer this for you. Too many shades of grey.

For example - if the report said something like - and this is the fourth time we've had this sort of accident and nothing has been done about it..... and that was given to the enforcement agency then I think I'd be having strong words with the investigator too.

Personally I would never provide any information about an accident to an enforcement agency without a specific request under appropriate law - which we all know they can do. Then I would provide exactly and only what was requested. It certainly goes well beyond RIDDOR this.

You could always argue that HSE would have been entitled to the information anyway under section 20 (k) and that it was a tactical move to try and persuade them that the business was cooperating. Thus the prosecution did not arise out of the investigator's actions but only happened more quickly because of them. Then you argue that by providing the information there was some small chance that HSE would agree not to prosecute given that there was little benefit - the business having demonstrably learnt its lesson. You go on to argue that had HSE been forced to require the information then prosecution would have been inevitable and, as such, this investigator acted in the company's best interests even though the outcome wasn't the one that he hoped for....?

that really does depend what was said in the report though!

there you go, I've now proved I'm not in my right mind by trying to answer. oh Dear.....

hope it helps hon

Lisa..

Posted By Martyn Hendrie
If I have read the initial posting correctly this is more to do with whether or not the HSE should be provided with the outcome of an internal accident investigation report.

What should and should not be disclosed is a complex area which I can't say I have seen a definitive answer to. Putting aside the rights or wrongs of passing this information to the HSE.

I cannot imagine an industrial tribunal would uphold a dismissal (were that to be the outcome of the discliplinary proceedings)on the grounds of gross misconduct.

Posted By Raymond Rapp
As the previous posts have indicated this is complex situation and the 'devil' is often in the details.

Prima facie facts suggest the initial investigator has good grounds for complaint, but seeking legal advice might prove to be prudent here.

Shooting the messenger is not uncommon in today's world. I once was asked to alter a h&s investigation report by a senior operating manager so that it was fit for the client's consumption. I refused but said I would send him my report and he could...do as he chooses with it, but my original report would go head office.

Ray

Posted By Steven Sanchez
This is quite tricky due to the lack of information, most of the responses have focussed on the reporting to the HSE but there could be more to it, such as, after prosecution an organisation is going to look inwards to avoid any future similar occurances, so it is feasable that the reportee is also the organisations H&S bod and was culpable for some failure(within his roleas H&S)which resulted in this accident, I know this is speculative but there is always another side, equally it could be the organisation is trying to partition blame, as mentioned the lack of info just makes for conspiracies.

Posted By Carl B Wil
Oh what a pickle
Yes it seems someone wants someone gone here
The management as you said had a chance to review the report and given that they instructed the investigation and that the report was also to be forwarded to the HSE it appears they also have little to complain about
Could this be a claim soon for unfair dismissal, am I correct that the compo is still uncapped for whistleblowing in H&S circumstances as it looks likely that the employer is suggesting that this was done by the employee

Posted By Pete48
"A few days later he sent the investigation to the HSE." And so one is led to believe this happened without the explicit approval of the report contents by the executive of the company.

Therein lies the root of the issue IMHO. Why would one do so without the prior approval of responsible management? Why send such an important report to the managers and then when they do not acknowledge its receipt, just forward the report to the enforcing authority?
What are the formal procedures within the company, if they exist. If they do and this action contravened them there is a clear case. If they do not I would suggest it was less than prudent to send any report on your own authority, especially one that is clearly critical of the company and its management. Whether the report findings are factually correct or not is irrelevant to the point of a disrepute allegation.
The duty is to report, not commit commercial suicide. The form of words, context and even content can be absolutely fundamental in such circumstances. In larger businesses such investigation conclusions would usually not be released until after management and legal advice had approved their content. If you interpret this as interference with your investigation, then you are missing a huge slice of professional competence. H&S staff are employed by employers and it is reasonable to expect them act at all times in the best interets of that company. That may be the reason for the disrepute allegation, the comany may feel that the employee has failed in this area of their duty. To suggest that this is some form of conspiracy to remove the employee is a touch far fetched. If such an aim did exist, ther are far easier ways to acheive it than in these circumstances.
I offer these thoughts as a view from the other side of this distressing situation. Distressing I imagine for all parties.

And still spellcheck is not there to keep me lucid.

Posted By Tabs
A lesson to all here, do not pass things to the enforcing bodies unless they request it in writing and you have received agreement from senior management (Director or above). Be polite when telling the inspector that you need it in writing - blame the 'management' for needing it ... email is fine.

As for this instance, I would suggest a trip to citizen advice or an employment lawyer and take a look at whistle-blowing protection, but I am not sure it is a sound defence in this case.

One thing is foor sure - unless they can convince the people around them that this was an innocent event that did not hurt the reputation - or merely accelerated such process - the career at that company is shot.

Posted By garyh
The safety officer involved may have been asked (in the view of management) to report to HSE, meaning do the RIDDOR report only.

In the past (when I was a Group Safety manager) when notifying HSE of a RIDDOR incident I would phone the local inspector and inform them, since they would get the case anyway. The RIDDOR reports themselves I always kept sparse and minimal (the investigation is not usually complete at this time anyway).

If the HSE inspector asked for a copy of the investigation report, I would agree to this. However, I always checked with the Management BEFORE I made the phone call that this was acceptable.

Possibly the management in this situation think that the officer has gone too far, ie beyond RIDDOR reporting.

If I was the safety officer in question, I would stay calm, get assistance in defending my case and make it evidence based, I was doing my job, there was a lack of control and communication (ie a gap in the Organisation section from HSG 65!) and that my intentions were to do my best for the organisation.

Or just ask for a year's salary and walk......!

Posted By John Richards
I feel that having to split your care between your career and the employees is likely to lead to far too many compromises.
At the end of the day, it is unlikely to be the employer whose health, safety and welfare is damaged.
I've always regarded my H&S as more important than my employers feelings.

Posted By Jonathan Sandler CMIOSH
This one makes interesting reading.
Why send the report to the HSE?????
Was it a RIDDOR, nobody has stated, have we all read the terms of being a member of IOSH? have he given advice? have he recorded it? what action has been taken?
If the report was that serious then did the author send it to the HSE?
As it has gone to court the name of the company can be released and we can read the court report.
Constructive dismissal, minimum.
What happened to the IP?
Would like to read the reply by M Kirby.
TA