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ADALE  
#1 Posted : 13 August 2017 10:36:53(UTC)
Rank: Forum user
ADALE

Hi all,

since the changes last February, organisations and H&S practitioners are even more tentative regarding what they put in reports. For persuasion, I see the value in referencing and giving examples of the guidelines potential outcomes, this would be supported by relevant cases if applicable and in the public domain yet.

But legal updates from branch meetings often advise caution is giving too much away. What is too much in your experience? Pointing out potential breaches must surely be standard and fines etc. that may very well be applicable seem part of the argument to allocate resources. 'If we think safety is expensive....' etc.

Any experiences and thoughts welcome

Waz  
#2 Posted : 14 August 2017 07:33:14(UTC)
Rank: Forum user
Waz

Given your situation, I would consider that 'Breaches' is a little bit abrupt, even 'Potential Breaches' isn't really what the management want to see. Key for me is about the language used here, and it is a subtle change that affords a different, but potentially more positive response. In my experience, managers are audited/inspected regularly and therefore, instead of putting 'breaches' as a terms and identifying health and safety issues - why don't you term the breach as per any other audit e.g. non-compliance or requires correction (if less significant)? May change the management's thinking, but still afford you the credibility in driving change. I had a similar issue when working with a major UK organisation, when I put '....repeated failure....', being advised that this would put executives on the defensive, and the language wasn't conducive to generating consultation. It was suggested to me to write '...a number of non-conformances related to....' - the message is the same, but softer. Kind Regards Waz

Edited by user 14 August 2017 07:34:09(UTC)  | Reason: Spelling error

RayRapp  
#3 Posted : 14 August 2017 09:32:38(UTC)
Rank: Super forum user
RayRapp

ADALE

I would be interested to learn what evidence you have based your assertion that 'organisations and H&S practitioners are even more tentative regarding what they put in reports.' I would also be interested why you think the SC Guidance would affect investigation reports.

H&S practitioners have a duty to ensure their reports are a true reflection and account of an incident with appropriate remedial actions. We can use softer words but if the investigation report is used in evidence the solicitor or court will not be concerned with semantics.

ADALE  
#4 Posted : 14 August 2017 10:03:04(UTC)
Rank: Forum user
ADALE

Hi Waz and Ray

Thank you both for commenting, I noticed the post got a few views before anyone ventured a response. 

Waz, I'm not unfamiliar with the approach of softer language, though I lean more towards Ray in presenting true (no implying of false by using that) headings etc. It may cost me relationships down the line. But your point is valid.

Ray, I'm not sure who got up on the wrong side of bed, me or whether your tone is unhelpful. My evidence is experience of discussions and networking after such as legal updates and relevant cases being discussed at the 2 safety groups I attend, including IOSH where we have trained legal practitioners deliver sections.

If you've no concern the sentencing guidelines have polarised certain organisations or individuals, I have no opinion on that, only that whilst I actually uphold your views on accurate reporting, most of the 'bustle' around me is of reports being extremely carefully worded for fear of intervention and doing the HSE's job for them. I'm aware of our duties as practitioner thanks - and regarding solicitors etc. I trust you're talking from your experiences and not just hypothesising. So I'll value them accordingly

Thanks all

RayRapp  
#5 Posted : 14 August 2017 10:30:21(UTC)
Rank: Super forum user
RayRapp

ADALE

Apologies if my questioning appeared a bit blunt but it was not meant as a criticism. I am not aware and would not myself be influenced by SC Guidance and the increase in penalties in court. Like yourself, I do not concern myself with the feelings of others and use the term failure or failings ubquitously in my investigation reports. True, I might not use this term in a conversation with an individual, possibly shortcoming(s) instead.

I would like to think that H&S practitioners are more impartial and objective when writing investigation reports rather than be concerned whether their reports are used in evidence against the company.  Otherwise there is a danger that reports do not properly reflect the causal factors, severity and any remedial actions may get watered down - just my personal opinion.

ADALE  
#6 Posted : 14 August 2017 10:39:26(UTC)
Rank: Forum user
ADALE

no apology needed - I couldn't agree more.

One of a few different hats we have to wear, and people may think we H&S practitioners suffer multiple personality disorders if we could balance each approach corrcetly. Moving from encouraging and persuasive to compliance and accident report writing isn't easy.

I have concerns of pandering to Senior management and worse, being unduly influenced. The main point I'm asking with this question is experiencially, have report sections been removed or rephrased? I have some accounts from some practitioners without disclosing details, self-employed or otherwise, and I'm finding  mixed results. 

djupnorth  
#7 Posted : 14 August 2017 12:12:13(UTC)
Rank: Forum user
djupnorth

Adale,

Rarely do I disagree with Ray but I do so on this occassion.  I totally agree that H&S practitioners have a duty to ensure that their reports are a true reflection of events and they should give appropriate advice on the required remedial actions.  However, defending clients is generally about 'semantics', particularly when it comes to the courts.  If you have ever seen an advice note drafted by a barrister, you will know that the language and individual words used are extremely important and can make the difference between conviction and acquittal.

That said, when advising your employer/client, I would never advise a health and safety practitioners to be overly concerned about what might or might not happen in the event of a prosecution but, instead they should concentrate on giving high quality, practical health and safety advice.  

I would add that being a good wordsmith never hurts and being able to draft well-worded reports is, in my view, a skill that we should all strive to improve.

I trust this is of assistance.

DJ

Ian Bell2  
#8 Posted : 14 August 2017 12:38:08(UTC)
Rank: Super forum user
Ian Bell2

When writing reports, I try to adhere to the principals stated at the front of aircraft accident reports by the AAIB.

' The sole objective of the investigation of an accident or incident under these Regulations is the prevention of future accidents and incidents. It is not the purpose of such an investigation to apportion blame or liability. Accordingly, it is inappropriate that AAIB reports should be used to assign fault or blame or determine liability, since neither the investigation nor the reporting process has been undertaken for that purpose.'

It is for the lawyers to argue to legal merits etc. for a Court to approportion blame.

thanks 1 user thanked Ian Bell2 for this useful post.
ADALE on 14/08/2017(UTC)
ADALE  
#9 Posted : 14 August 2017 13:10:52(UTC)
Rank: Forum user
ADALE

Excellent and useful couple of responses. My aims haven't changed, relationship management will always be tricky when critically apprasing someone's performance. 

I try present systematic failures that can be learnt from. My reports have never been considered any different. But I genuinely thought the SGC's had left me out on a limb - good to see a mixture of responses.

RayRapp  
#10 Posted : 14 August 2017 14:44:01(UTC)
Rank: Super forum user
RayRapp

Some interesting comments, especially by djupnorth. I have attended an IOSH recognised accident investigation and evidence gathering course and don't recall anything which might have dissuaded me from using particular terms in an incident report. That said, I'm not a lawyer and therefore I do not appreciate machinations of the courtroom.

I agree that investigations should not seek to blame individuals or organisations. It is an inevitable consequence, however, that a report will identify individual and corporate failures. Some may not be too happy with that. Moreover, where those failings are minor the report should reflect that, but where those failings are a major contributory factor and if the report is to be robust then it must also identify severity of those failures. Words can hurt, but not as much as being crushed by a digger. 

sappery760  
#11 Posted : 16 August 2017 07:22:53(UTC)
Rank: Forum user
sappery760

listen to Ianbell2; and

my view [after completing hundreads of investigations [including deaths] and dealing with hundreads of lawyers over many many years is that an investigation report should only deal with the facts of the case and nothing [nothing!] more inclusive of recommendations nor examples etc.  -anything more can incriminate and lead to other negative things which is not the purpose of such an investigation the purpose of which is to get to the facts

additional comments can be given in a separate statement etc.; a statement that does not individually reference the event so they cannot be connected thus do not lead to additional negatives on any side but can lead to better management practices thereafter its a management issue - dont worry the lawyers and management will blame and look to pass across negatives to others  + charge excessive money to do so 

best of luck

RayRapp  
#12 Posted : 16 August 2017 08:53:53(UTC)
Rank: Super forum user
RayRapp

Sappery760

That's an interesting perspective on investigations - only stick with the facts. On the aforementioned course I intended the tutor made a persuasive argument that contemporary investigation processes do not just 'stick with the facts' but rather, to include anecdotal evidence on the proviso there is robust evidence to support it - which may appear to be an oxymoron.

The counter argument is that police (the tutor was ex-police officer and Home Office investigator) stick with the facts because courts are only interested in evidence which can be proved 'beyond reasonable doubt'. The incident investigator is not bound by the same rules.

Waz  
#13 Posted : 18 August 2017 15:02:47(UTC)
Rank: Forum user
Waz

Some years ago (2012) an incident happened (whilst I was presenting CDM in Glasgow) at my then employers site, whereby a supervisor and a member of staff attempted to lift a burner unit from a trailer which had travelled from Felixstowe or Harwich (can't remember which). With the time nearing 4:30pm, the day shift was readying itself to go when the load arrived. A method of unloading was determined by a supervisor and the removal of the cylindrical burner unit was started.. Method of unloading was via ForkLift(s) and guess-what they dropped it and £50k resulted. I was advised on my drive home by one of my team members and he did the provisional aspects of the investigation and we continued the following day. Of the 2 drivers, both had certification for a B1 category Counterbalance, however one of the vehicles was a 20T Counterbalance a B3 category truck. The incident investigation identified 2 key aspects: 1. Driver of the 5 tonne truck wasn't authorised to drive, nor was he familiarised; 2. Driver of the 20 tonne truck wasn't competent to do so. On presenting the investigation report to the MD he called the company insurers who said that this should go under legal previlage (we cannot use the word incompetent - which was used in the latter context of the report in reference to the 20 Tonne truck driver). My argument was he was incompetent, he had received no training on the vehicle, was not familiar and thus no experience, so unfortunately deemed in-competent. I then supported the argument by asking if the insurer's team could drive? Yes, so your competent to drive a car - Yes; you competent to drive a HGV - no, haven't had the training.......... MY POINT EXACTLY. Strangely enough, I don't work there anymore, as they didn't accept anything you said (Business nor insurance company). Waz
RayRapp  
#14 Posted : 19 August 2017 06:15:56(UTC)
Rank: Super forum user
RayRapp

Waz

That's interesting from your insurers, legal privelige can only apply if the report had been commisioned for legal purposes and by a lawyer. 

thanks 1 user thanked RayRapp for this useful post.
ADALE on 19/08/2017(UTC)
ADALE  
#15 Posted : 19 August 2017 06:21:46(UTC)
Rank: Forum user
ADALE

Thanks all,

we're all shaped by our experiences, and all yours are valued in my eyes. There is no wrong or right. My favourite subject area at the moment is peoples experience with the HSE.

I must be at the opposite end of the scale as the relationships I've built with them appear based on integrity and forthcomingness. I wouldn't risk those relationships by blurting anything on here but they''ve always been straight down the line with me so far - never a bad experience (touch wood).

The good luck wishes are welcome, but not needed ha ha. It was more topical given some online articles and discussions. I've been moving from compliance and 'this must' ..... to 'how can we' and 'whats in it for us' (teamwork and belief based decision making) persuasion for some time now. That said, report contents and headers are exactly that - headings that guide decision makers to what and why. I won't be shirking dififcult discussions if needed and accidents reports are not to attribute blame as mentioned earlier.

Thanks all so far - more experiences welcome

ADALE  
#16 Posted : 19 August 2017 06:26:16(UTC)
Rank: Forum user
ADALE

RayRapp,

I spotted that, but don't believe that to be attributable to Waz. It's not unknown for 'discussions' to take place over the phone and lawyers advise nothing makes it to paper until instructed under legal privilege.

I'm not saying that's applicable to Waz' timeline or in anyway that I condone it, but then again, given some of the opinion on the HSE using our reports to 'do their work' when the better intended organisations do want to put things right, well their discretion and perogative are exactly that I guess.

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