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hserc  
#1 Posted : 09 September 2016 09:12:08(UTC)
Rank: Forum user
hserc

Lets say (for discussion's sake) Company A sends a service engineer to a customer (Company B) to service a production line machine. (old machine, out of warranty, under a service contract) Said service engineer notes that certain safety equipment provided on the machine by Company A has been disabled/tampered with/removed etc. He makes a report to this effect to his company and to company B, services the machine and leaves. This happens again at another service visit, once again, the service engineer makes his report. Company A now writes to Company B informing them that they believe the machinery poses safety risks in the condition in which they operate it and that in this condition, it no longer meets their original CE Declaration of Conformity. Service engineer visits again for a routine service but the machinery has not been corrected. Eveyone's assessment of the situation is that Company B are doing this because they don't care. With this prior knowledge (I would say of clear and intended mis-use of safety equipment) What are company A's obligations (if any). I have just been asked this and apart from advising the relevant Company A manager to consult his legal team, I have suggested that their service engineer may want to make an anonymous phone call to the relevant enforcing authority (either HSE or LA) and explain the situation, so that they would make an intervention. Comments, dicsuss please. Any alternative views?
WatsonD  
#2 Posted : 09 September 2016 09:53:54(UTC)
Rank: Super forum user
WatsonD

Go on then I'll bite. I don't think it is company A's obligation to do anything other than to inform. However, if I was company A I would refuse to carry out any more servicing to this machine until the advisory report defects have been resolved. I may even quote them for the cost of rectifiying these, if this was applicable, or put them in touch with a company if not. An anonymous phone call may work, but I think it would have to be last resort.
jwk  
#3 Posted : 09 September 2016 10:06:46(UTC)
Rank: Super forum user
jwk

Might they, at this stage, have duties under s3 HASAWA? Insofar as they are servicing equipment which they know is not safe? I mean, the first time, fair enough, but if there's no evidence that things have improved then I think the company needs to walk away from this job, and maybe lay an information, John
martin1  
#4 Posted : 09 September 2016 10:16:03(UTC)
Rank: Super forum user
martin1

I agree with Watson D.
Roundtuit  
#5 Posted : 09 September 2016 10:22:37(UTC)
Rank: Super forum user
Roundtuit

Company A should refuse in writing to conduct further work until the reported defects (costed quotation) are corrected as they would be placing their employee at risk from a machine being operated other than in accordance with supply design. When I have a service engineer attend equipment it is not unreasonable for me to expect the item to have been left in a safe operating condition - you don't mention if the reporting is immediate during the visit with site personnel or days/weeks after the event. Beware of making that anonymous call - IF the enforcement agents turn up you can be sure when pushed Company B will pull out your reports. Did your engineer clearly state unsafe to operate / customer refused recommended repair or could you be viewed as complicit in their flagrant breach?
Roundtuit  
#6 Posted : 09 September 2016 10:22:37(UTC)
Rank: Super forum user
Roundtuit

Company A should refuse in writing to conduct further work until the reported defects (costed quotation) are corrected as they would be placing their employee at risk from a machine being operated other than in accordance with supply design. When I have a service engineer attend equipment it is not unreasonable for me to expect the item to have been left in a safe operating condition - you don't mention if the reporting is immediate during the visit with site personnel or days/weeks after the event. Beware of making that anonymous call - IF the enforcement agents turn up you can be sure when pushed Company B will pull out your reports. Did your engineer clearly state unsafe to operate / customer refused recommended repair or could you be viewed as complicit in their flagrant breach?
HSSnail  
#7 Posted : 09 September 2016 11:07:39(UTC)
Rank: Super forum user
HSSnail

I'm not sure section 3 would apply does their action of servicing a machine that has safety features missing put persons other than their employees at risk? By telling the company who owns the equipment of the issues do they not have a Section 36 defense? as any injury would be due to the act of the company continuing to run the equipment in a dangerous state? I suspect that legally they have complied with their duties as set down in HASAW, in a civil case could they be classed as negligent to continue to service the equipment? Not sure. Morally I agree they should refused to service the machine. Would definitely be one for complex legal argument!
Steve e ashton  
#8 Posted : 10 September 2016 00:01:41(UTC)
Rank: Super forum user
Steve e ashton

If I pay for a service engineer to attend my machinery, I might expect the machinery to be serviceable (read 'safe') when he leaves. If the service engineer cannot fix any faults he finds during the service, I would expect him to disable the machine, and tell me what was needed to bring it back to a serviceable condition. At the very least remove the fuses and hang a 'condemned' notice on the switch? If a service engineer is walking away from a machine knowing it is unsafe then he (and his employer!) should expect to face the wrath of the law. If the repairs or replacement parts are not available or are going to cost a fortune, then I might expect to get a second opinion, and possibly several quotes.... If the machine is left serviceable (read 'safe') by the engineer, and one of my operators was routinely disabling the safety devices, and the service engineer told me... Someone would get sacked. But the , I take safety seriously! If I employed engineers who told clients they had someone making machinery unsafe after each visit... And the client did nothing... I would hope I would have the moral courage to stop providing service to that client...
paul.skyrme  
#9 Posted : 10 September 2016 12:26:04(UTC)
Rank: Super forum user
paul.skyrme

There have been very good points already made. I’ll tell you what we actually do, & how we actually see it. Mind, we are not Company A, nor Company B in the OP. We will service the machine. On the machine service schedule which is an NCR form that the customers representative has to sign at the end of the work, we highlight that the machine is unsafe to use. We also write why on the form. The client has to sign this. We have to isolate the machine for service, therefore we leave it isolated and refuse to re-energise. This is also entered on the service schedule. The safety issues are also entered onto the site worksheet, for times spent on site, extra comments etc. The safety issues are explained to the client contact and they are made aware that they are signing to acknowledge that the machine is unsafe. The work is then followed up with a typed report emailed to the relevant customer personnel, if there is a serious safety issue that means the machine has been left isolated, this will also be cc’d to the most senior contact we have in the company. We invite the customer to ask us to quote for the remedial works, on all 3 documents. We cannot force them to do this. This cycle then repeats. As a service company, and I’ve worked for a few, both OEM & 3rd party, we have no authority to disable the machine in any form, other than to make safe to work upon when we are servicing. If there is a dangerous situation with respect to BS7671 associated with the machine then we would issue an NICEIC Electrical Danger Notification, NCR form issued on site and signed for. I don’t issue many, as they are really for what would be a Code 1 defect under an ECIR, or IMHO a Code 2 defect on a new installation that is a blatant non-compliance with BS7671, and could result in death or damage to property. Sometimes, I will issue an EDN for machinery, however, as they are NICEIC forms they are aimed at BS7671 works. We feel that the completed service schedule, which has a clear indication that the machine is unsafe for future use, and why, is adequate to advise the client of the dangers. A lot of this depends on the agreement & relationship with the client. One thing we would not get hung up on is CE marking. If we were the OEM, we would advise that the machine no longer complies with our DoC, and we would advise, that the client is in breach of their statute law duty under PUWER, and potentially MHSWR, & EAWR, and thus under HASAWA. This would be stated on the site completed forms and the typed report. The typed report would cite the NCR forms already completed and signed for, and scans may even be attached to the email with the typed report. Depending on the level of servicing agreed, the typed report may even include clauses & quoted from Regulations, Standards & Guidance, e.g. PUWER, the PUWER ACoP, L22, & say BS7671, or EN 60204-1 etc. as appropriate. All this is done in a very matter of fact and almost abrupt nature, it is done as a statement of facts, without any personalisation. However, this is all only the opinion of the person working at the machine, they must be competent to undertake this work, and make these observations and recommendations. This is why it has to be backed up with factual evidence typically from the above sources. This is not an unusual situation, the second time it happens, this is re-iterated on the documents, the third, that it has been observed previously twice, and that the client is not undertaking their statute law duty to ensure that the equipment is safe to use. However, we rarely have carte blanche to repair equipment, there is a difference between repair and servicing. How would you feel if your car went into a garage and as the brakes were worn they just went ahead & replaced them without telling you, then presented you with the bill for work that was not agreed? Yes, I would expect the garage to inform & advise, but, not to undertake works without authority. If you were informed that the brakes were dangerous, then chose not to have them repaired that is your choice, the garage cannot stop you. In the same way if your car fails an MOT even in a dangerous manner, the garage cannot “confiscate” your car, they cannot stop you from driving it away from the MOT station, even if it is a danger to yourself & other road users. Yes they could film you, or call the police & tell them what you were doing, but, they do not have the right to stop you. Unless they feel that a citizen’s arrest is in order. Good luck with that one! It is a very awkward position. However, also very common. As Company A is the machine OEM, then really their word cannot really be doubted. However, the machine is the property of Company B. Steve e ashton, Don’t forget, the service engineer may not be competent to remove the supply fuses, as these would not be part of the machine. If he were to remove fuses from inside the machine he would have to leave them with the client, else this would be theft, after all the machinery & fuses belong to the customer. If fuses were removed, then this would require significant explanation and justification, as he is then overstepping his authority by deliberately disabling a piece of equipment, i.e. this could be construed as industrial sabotage, whether the fuses were removed from the machine or the supply. Remember, the service engineer may be accused of simply trying to upsell, rather than simply undertaking their duty. Also, I can see where you are coming from with the moral aspect, but, the OP states that there is a service contract in place. Therefore the customer could try to sue for breach of contract if you didn’t undertake all of the requirements of the contract in full.
hserc  
#10 Posted : 15 September 2016 11:14:25(UTC)
Rank: Forum user
hserc

Some good points and I will consider them carefully. Particular thanks to paul.skyrme for particularly well thought out and detailed comments. Some great information and pragmatic solutions included there. Regards G.R
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