David There are many arguments for and against prosecuting employees. In the main employees do not get prosecuted although I would argue that more should. The authorities take the view that employees are subject to company discipline for any h&s breaches, they often do not have the resources to pay a substantial fine, employers are ultimately responsible for the conduct of their staff, ie training, monitoring, supervision, etc. Generally supervisors and managers are expected to show a higher level responsibility and accountability than rank and file employees. Other questions need to be asked ie the degree of risk and recklessness, did they put themselves at risk, others or both, was the breach common practice or a one-off and so on? I don't think it is such a simple matter of should the person be prosecuted.

I heard many years ago that an employee in a light engineering works in Worthing East Sussex refused to wear safety goggles as detailed in a risk assessment for a particular task. He said they were uncomfortable and didn't fit properly. His manager brought along the next day a dozen or so different makes of goggles and invited the employee to try them all. He did and still refused to wear goggles. In exasperation the manager reported the employee to the HSE who after an investigation prosecuted the employee who was fined £500 by the courts. I don't know how much credence to attach to this case, but if true it shows the law works both ways. Rich

There was on last year when the fork lift driver was fined after an employee fell when he had been hoisted into the air. There was no cage and the FLT driver was fined for incorrect use of work equipment from what I remember.

his is the case I highlighted earlier, if it doesn't read correctly it's because i have taken references to the person and the company out. A man sustained major injuries in a fall from the forks of a lift-truck on which he was balancing in a metal stillage 10-12 feet from the ground. He had been raised up to repair a loading bay curtain by a colleague, who was fined £450 and ordered to pay HSE costs of £250 by Solihull magistrates on 1st September. The FLT driver pleaded guilty to a breach of s7 of the HSWA 1974 in failing to take care of the safety of other persons at work. The court was told that the incident occurred on 11 January 2005 at the premises of his colleague’s employer, The lift was executed using the forks of the truck, despite the correct lifting equipment being available from the company. The court heard that the employee had previously been given training on risk assessments and on fork-lift truck driving – courses that use examples of bad practice, including the one he indulged in of lifting people up in stillages or pallets balanced on the forks of such trucks. He was also qualified to teach fork-lift truck driving to others. The company said in mitigation that he had admitted responsibility promptly and had been no previous convictions. The incident had been an isolated lapse of judgement and the correct equipment had been at a different site. Further lifting equipment has now been purchased on behalf of the company. The HSE warned that fork-lift trucks should only be used to lift goods, rather than people. Jenny, the HSE inspector who investigated and prosecuted the case, said: “Using a fork-lift truck as a way of elevating people is a highly dangerous practice and creates an imminent to risk safety. Both employers and employees have a duty to ensure that appropriate safety measures are taken when carrying out work that involves working at height in order to prevent injuries such as these.”

You can sack them and the HSE can prosecute them. This fact might focus certain minds

Whilst the rest of what you say is true the bit I've quoted isn't Ray. Fines are proportionate to how much money they have and the point of a prosecution is not to get a substantial fine it's to get the conviction. Whether employers also take disciplinary action is irrelevant. Prosecutions are not taken because most of the time the employer has not done enough, becuase there is not enough solid evidence or it is not in the pubkic interest. I did prosecute an employee. The company had done everything expected of them but the employee had done something too serious to ignore. But I didn't like doing it. The effects of prosecuting an employee are far more devastating than prosecuting a company. It's still a bad day in my career. He'd been punished enough without me taking him to court too.

And now, in line with the furore about the possibly criminal behaviour of so many police officers at Hillsborough, comes the question "If you thought it was wrong, why did you go ahead and do it?" That question has salience in so many different areas, and is particularly relevant when the police blindly follow instruction that they believe, or should believe, to be wrong or similar action from a junior regulator. I have always been taught that the Nuremberg trials established the invalidity in English law - and presumably in other jurisdictions also - that just following orders is no defence if you know or should have known that that instruction was wrong. It goes still further. If you instruct an employee or guide the public into a dangerous situation, few would doubt that you should feel the full force of the law. But what if you do something, knowing it was wrong or dangerous, but do it anyway because you were told to do it? And then you or someone else, or the environment, was harmed as a consequence. Those defending a prosecution, or seeking to avoid a compensation claim will have no hesitation of reminding the Court that the claimant should have input in their final decision, to take responsibility and care, and not to simply follow the signs that lead over the cliff edge. I have no doubt that there will be occasions when, through belligerence or stupidity, an individual does something wrong and should face some penalty. There are many others when those providing instruction should also face a penalty for their insistence on something so foolish - some will recall here the H&S consultant referred to by the HSE myths panel: who might hope that he or she faced some penalty for patently incorrect advice given? In this last case, someone, a shop floor worker as I recall, raised the issue and was proved right. Good for them. But if they had concerns and carried on anyway, and it was a dangerous occurrence rather than one of over-caution, should they too be considered at fault for going ahead anyway? There comes a time when individuals must stand for what they think is right. Blindly following orders is not acceptable if those orders are know or reasonably suspected to be wrong. I guess when that starts to happen there may be a lot more challenges of H&S 'advice'. But it is good to challenge advice, to bring additional knowledge and share opinions, but only if someone is then prepared to distil the accumulated wisdom and act upon it.

Clairel I can only assume that there is something wrong with your computer, or perhaps it's the way you read from the screen. Who has mentioned anything about emotion? Either something is right or wrong, or sits somewhere in the middle ground and is subject to differences of opinion. The decision to go with an instruction, or to challenge it if you believe it to be wrong, may be emotionally challenging for you and some others. But for anyone with the knowledge to recognise an instruction as being palpably incorrect it really is a matter of integrity. Moreover, it's a matter of obligation to do the right thing. Failing to meet that obligation may be answerable in law.

"There comes a time when individuals must stand for what they think is right. Blindly following orders is not acceptable if those orders are known or reasonably suspected to be wrong" Not your job or career on the line though is it ? When you have a large "workforce" and that "workforce" depend on each other for their safety, or lives, you have to overcome the team "bonding".... The nice trite answer is " do what's right and the hell with it"... Yeah....no legal aid, most not in a union so no legal assistance (what there is is puerile most of the time, and biased towards the employer in large organisations).....and no money...and no help or interest from other employees. Plausible deniability. Lots of it about.

Polite seems to be cause difficulty with words. I still can't make head nor tail of what you are talking about. But the issue remains, and at times it is important to step forward and do the right thing in circumstances where you have been told to do something that you fully believe to be anything but right AND which would otherwise have grave consequences. If that is a difficult concept, think of it as just telling the truth. Under caution or in court perhaps. Do you really take the easy option, protect your job, just say what you were told to say, when you know that it is blatantly wrong? Do you ignore the condition of critical but obviously defective safety equipment just because you were told to shut up and stay quiet? This is not about trivia. It is the more practical comparator to the whistleblower who may step forward in similar fashion, and is now protected in law when doing so. Not for the trivial, not for the inconvenient or simply mischievous, and certainly not for the blatantly belligerent, but for the most serious of events that should not be permitted to proceed. It is a dilemma that any of us may face at some time or other, and when it happens it is unlikely to be a comfortable situation. Some may just get emotional and not know what to say or do; it appears that others may just go with the flow, ignoring the issue to protect their job. I don't know what I would do, until the occasion arises. But I do hope that I could manage to put emotion to one side and deal properly with the issues involved.

If you think that you shouldn't have done something when instructed to do so, the next question is, would it be right or wrong to carry on. You admit it was right, though had some emotional concerns. Emotions do make it any less right, or do they? The issues here are not if you like doing it - following an instruction to proceed - but whether it was right to do. As I have stated, and need not reiterate in detail, there may be times when the opposite situation places an individual in the situation where, having been told to do something you know it is wrong, perhaps dangerously or criminally wrong, it is not right to proceed. That is the matter under debate and I'm not sure why you are confusing it with this side issue of emotion. Now, in the course of this debate, it seems there are some who admit to set aside their integrity and preserve their job ahead of refusing to do something that was patently dangerous. I don't know what I would do - I hope I would take a far better course but until in that situation none of us really know. It's a tough situation. But it is radically different from your emotional response to do something that even YOU think was right. That is NOT what I have been discussing and if you take the time to read carefully you will see that is made perfectly clear.

There are situations where, in a hierarchical organisation and especially in relation to enforcement of the law, that two courses of action can both be correct. They are not necessarily diametrically opposed - they can be different levels of severity of action. In other words, warning with a pocket book entry is lower in severity that a formal caution at a police station. But they are in essence the same action - enforcement. Just different levels. As you say Ian you have not been in the situation, but that does not mean that your opinion is not valid. In this instance however, you are as Jane noted going off on a tangent. In a hierarchy the final decision on the course of action to be taken will not often be the person who investigated. Rightly, the decision on whether or not to prosecute was taken away from the police years ago with the final decision being given to the CPS. So impugning another person's integrity/questioning their moral standpoint really is missing the point. It really is not about that. And I do believe that you are missing the point regarding emotion. I get the feeling(pun intended) that you think that emotion played a part in the decision making process - it does not. But a superior taking a decision that you do not agree with will inevitably result in some negative feeling, especially if you are the one who has to go through that process with the knowledge that this would not have been your own preferred course of action. The superior is not the person who will have to inform the person that they are being prosecuted, and they will not be the person who stands up and give evidence. Having to do that knowing that this is not what you wanted to happen, but it is the action that your superior has determined will take place - does that not strike you as something that would cause you an unhappy feeling? Nothing to do with standing up for what you think is right - again, harking back to it, there are many potential prosecutions that have taken many, many hours of time for the case to be prepared and the CPS decide not to go ahead with it, yet you do not often have members of the CID accusing the CPS on moral turpitude. Not about standing up for doing the right thing. It is not whether it is right or wrong to carry on. It is simply not normally your decision. This is not a Milgram or Zimbardo experiment, it is real life, when others higher up than you have the final say. I know a former very senior member of a fire service who has told me in the past of his frustration with his seniors when a prosecution which he recommended did not happen, but he did not throw a hissy fit and storm out of his job and career, he argued his case and if the senior person did not agree, then sometimes so be it. If this was about someone not prosecuting someone because they knew them personally(say), then you going along with it, I would agree with you. However, this is not about that - it is the opposite, where more severe action is taken than you thought necessary.