Posted By Pete Walker Jeff Experience has always required safety advisers to put their findings in writing and also highlight the necessary breaches of Regulations etc and this is the method given in all EH&S training courses. Failure to put your report in writing means your conversation can be denied when it comes to a crunch time, and all too many safety advisers have been left with egg on their faces because of unscrupulous managers. As for the legal advisers they need to consider if the company was in breach of a Regulation then they should not be looking to defend them but support the safety adviser and put the pressure on the managers that put the company in that position in the first place.

Posted By Merv Newman Why would you want to plead "not guilty" when you have written evidence that they ARE guilty ? Why not go for "mitigating circumstances" ?

Posted By John Allen Is there a dilemma? If a Safety Adviser identifies a hazardous situation, he must inform his employer or client. He is under a contractual obligation to do so – it his job. If a member of IOSH, he is under obligation contained in his Professional Code of Conduct. Finally, he is under a moral obligation to do so as well. If he does not act, someone may be hurt or even killed. There will be circumstances where he can pass this information verbally, but in most cases, he will also need to put it in writing. Often, the hazardous circumstances may also involve a breach of statute law perhaps a specific regulation or a general duty under the HSWA 1974. The dilemma then appears to be does the SA add this information to his written report on the basis that if the hazardous situation is not corrected and an accident occurs the duty holder will have no defence to future legal proceedings whether criminal or civil and might as well plead guilty/admit liability. I have seen many cases in the courts both criminal and civil. The existence of previous written advice of a hazard is not universally taken as conclusive proof of guilt or liability. The courts judge every case on their merits with forseeability of danger being the crucial test. The fact that someone has identified a hazard before the accident has occurred can be taken to support the case that the accident was foreseeable but this does not always happen. If duty holders chose to ignore that advice and an accident occurs then perhaps it is a “fair cop.” Of course, no one likes the person who “told you so”. But if we get to the point of not making written reports for fear of future liability we will have lost the game. We should be working from the premise of “what’s the most I can do to prevent an accident”, not “how can I help a responsible person evade their responsibilities”. If to do the former you have to put it in writing then do so.

Posted By Jonathan Breeze All of what Philip has said above... and it may also put you in breach of the Institutions code of conduct for failure to advise. Whilst tact and discretion are generally qualities to be admired, sometimes you have to call a spade a spade when talking to certain managers, otherwise they just don't get the message.

Posted By Jeff Jason - you wrote 'I am currently going to sit on the fence and feel that you should both explain your own methods a little wider before going head on in a public debate. The author of the statement that you have quoted has asked that people should contact him directly if they have any concerns/questions.' I don't understand your first sentence/question (what methods?) and for the second sentence this is a public forum so any comment is valid - indeed the author has answered in public, so there is no restriction on comment. Perhaps you would like to elaborate? Jeff

Posted By Heather Aston Here's an example from my own experience - happened some years ago and I'd rather not say where. Machinery accident happened because guard (should have been interlocked but wasn't despite several warnings to management, verbal and written) was taken off and operator was injured while freeing a jam. HSE did not investigate, although they would have had us bang to rights. The (written) accident investigation pointed out that the guard was off, that it should have been interlocked and that this was a known problem and then advised management to get it interlocked PDQ. As originally written this report had a final paragraph that was very critical of certain managers for not acting earlier and pointed out their responsibility and the likelihood of prosecution/civil claim. I had this paragraph taken out as it was not sticking to the facts, but had strayed into the territory of unsupported opinion. However the managers concerned were left in no doubt by me that they had screwed up. Civil claim (absolutely indefensible) comes along. We admit liability and disclose the accident investigation. Case proved. There was no need for the "internal mud slinging" to be disclosed as it added nothing to the facts. We WERE guilty of negligence and deserved to lose the claim. However it was important to me that only the FACTS were disclosed and nothing else. I often write investigation reports with an eye to the civil claim these days (sad I know) and regularly go to some lengths to record seemingly unimportant facts that I know will support our defence. But I will still say so clearly if something is wrong. Heather

Posted By Stuart Nagle Jeff. Interesting. Where did you find the article? I would presume several things here: 1) that the health and safety advisor has a number of duties, both to employer and employees, but also to himself, to act in a diligent manner and correctly report on audits etc in an appropriate manner (i.e. in writing), and also has a 'professional responsibility' which will govern the way and manner in which s/he acts and conveys the information gleened from an audit so as to ensure the duties to employer, employee and Profesionally, to himself and profesional organisation(s) of which s/he is a member are complied with. Hypethetically speaking, if during an audit a legal non-compliance was observed, and subsequently reported in the audit report, and lets say, that action to ameliorate the non compliance was identified and plans put in place to effect the action, and then there was an accident, whilst the actions necessary were being implemented, would there be a case to answer. Or, more to the point would the employer be in the position of being able to demonstrate, because of the audit findings, the actions identified to remove the non compliance and the fact that these were being implemented, be enough to prove, should there be a legal action, that the employer was doing everything, so far as was reasonably practicable, to prevent the thing happening that had caused the accident! If perhaps there was no audit trail, no records, no action plan, no record of implementation of actions etc, there would be no defence whatsoever. If however, it could be shown that the safe system of work included an audit, review and continuous improvement, that audits were recorded in writing, that non compliances were reported, action plans prepared to remove non compliances and that it could be shown that action was in the process of being taken when the accident occurred, would this affect the outcome of the legal action or not? I think the answer is that it would at least, even if the legal action was successful, lessen the potential outcome for the employer and reduce the level of fines etc that could have been imposed. If, as part of this process, consultation had also been included, with for example a health and safety committee, and it was also minuted that, for example, the reps were to convey details to members/employees, it may hold even more sway for the employer in his duty of care... Whilst such a system of audit may have critics, I think it can be shown in most if not all cases where a properly conducted auditing and reporting system exists, that it has far more beneficial results than negative ones. Regards... Stuart

Posted By Keith Wynn I see no reason why a breach should not be reported in writing. You are only pointing out a failing in your Policy and Arrangements that is already written down..bang to rights for failing to comply with your own policy or lack of it..hope you get my drift. Keith