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Posted By Mike Dallow
Can an employee refuse to give a verbal statement in an accident investigation.
Is it true their only legal duty is to report the incident.
A manual which is our definitive guide states they have a right to refuse but if this happens it should be noted but there is also a policy which states colleagues should aid investigations but for another twist the colleague hand book which is given to the employee when they start mentions nothing about aiding investigations just about reporting.
I m a Union Safety Rep and the reason why i ask is because the purpose of the investigation isn't to find cause but rather to prevent claims and blame the colleague and to bring about punitive action instead of identifying the real cause. this form of investigation is detrimental to my member.
All opinions gratefully received
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Posted By Adrian Watson
Mike,
No, they cannot refuse to give a statement to their employer as this would be breach of an implied term of a contract to cooperate with the employer.
Regards Adrian
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Posted By jom
Mike,
This is a really tough issue.
It must be possible for you to establish legal obligations regarding reporting incidents. That is probably unambiguous.
Submit to investigation? Find the law that makes this compulsory. The interviewers should provide this info.
Some investigations search for evidence for use in blame/prosecution. The person ought to be made aware of this.
No-blame investigations should provide legal indemnity to interviewees.
John.
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Posted By jom
I wrote:
"No-blame investigations should provide legal indemnity to interviewees."
That's wrong - indemnity can't be provided. What I intended was: in a no-blame investigation, it should be made clear that information given in an interview cannot be used as evidence.
If it is a "blame" investigation, the interviewee needs to be aware of the possible uses of the information given.
John.
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Posted By Paul Duell
Sec 7(b) of the Health and Safety at Work Act requires an employee to co-operate with the employer, to the extent necessary to enable the employer to comply with any legal duty (that's my paraphrase, not a direct quote from the Act).
Since an employer is required to ensure safety at work, and investigating accidents forms part of that, I'd say that an employee not co-operating with an accident investigation was in breach of this.
However, off the top of my head I can't think of any case law where this has been proven to be the case. It just seems reasonable.
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Posted By Jimmy R
Yes, the employee can refuse to give a statement if he/she wishes. He/she can also refuse to give a statement even after being cautioned by the enforcing authorities, albeit it may not be in their best interests.
Yes we all have a duty to co-operate with our employers in their legal responsibilities but when did conducting an accident investigation become law? Implied yes but law no.
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Posted By Colin Reeves
Jimmy
You said "Yes we all have a duty to co-operate with our employers in their legal responsibilities but when did conducting an accident investigation become law? Implied yes but law no."
Whilst I agree with you that RIDDOR does not require an investigation, but there are some industries in which there is a legal requirement. As an example SI 2005 No 881 Reg 5 states "The master and ship’s owner shall, so far as is reasonably practicable, ensure that the circumstances of every serious injury are examined" and, as the Marine Accident Investigation Branch (to which this SI refers) was set up to mimic the older Air Accident system I suspect theirs will be similar, as will the later Rail system.
You are not always correct in saying that investigations are not required!!
Colin
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Posted By Jimmy R
Colin,
We are moving away from the original question but,
I beg to differ. As you say:
"The master and ship’s owner shall, so far as is reasonably practicable, ensure that the circumstances of every serious injury are examined"
Question 1; Is examination the same as investigation?
Question 2: If it is not reasonably practicable to carry out an 'examination' do you do one?
If you agree that the answer to either question is 'No' then I believe your statement about always having to carry out an investigation is wrong.
Colin, if you look at the wider picture you will be able to come up with your own examples where an investigation would not or could not be carried out.
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Posted By Paul Duell
*but when did conducting an accident investigation become law? Implied yes but law no.*
Technically, that's right Jimmy. BUT the employer has a duty to ensure SFAIRP the H&S of people at work.
How do you do that without preventing recurring accidents? And how do you prevent recurring accidents without an investigation? OK, you can, but only by the sort of knee-kerk "ban everything" approach which we in this forum are (rightly) quick to mock.
Stone me, I sound pompous this morning...better chuck a smiley in to lighten the mood :-) it IS Friday after all!
Happy NY one and all...
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Posted By Paul Duell
I said...
*by the sort of knee-kerk "ban everything" approach *
Not only pompous, I've lost the ability to type as well. Make that Knee-Jerk.
Is it going-home time yet?
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Posted By Jimmy R
Hi Paul,
I totally agree with what you are saying but the fact remains that an investigation is not always possible.
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Posted By Paul Duell
Yes and no (sorry!). Surely if you've done enough to know that a full investigation isn't possible, you've investigated SFAIRP?
For example - a lone worker is found unconscious - when he recovers he doesn't remember what happened, there were no witnesses and an examination of the area reveals no sign of what happened. No further investigation possible. But if I'd asked him what happened, checked for witnesses and examined the area, I'd say I'd investigated SFAIRP.
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Posted By Jimmy R
Hi Paul,
"I'd say I'd investigated SFAIRP".
and I'd say you had made a couple of observations and decided an investigation is not possible.
As I said earlier this thread has moved on from the original discussion on statements so please forgive me for not wanting to carry on this discussion. If however you feel the need then please email me direct.
Happy new year:)
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Posted By Mike Dallow
I see it as we are co-operating with the employer when we report the accident and fill in the accident book which entails a brief description of the accident and/or injury.
as an employee my only duties are
to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and
as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with
As Jimmy rightly said there is no duty or requirement to investigate accidents but just to record them under the statutory provisions
am i right to tell my members this
Mike
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Posted By Jimmy R
Mike,
please note that I agreed with other forum users when they say that there is an implied duty and as such I would always recommend that employers should conduct an investigation 'where practicable'.
All I'm saying is that it is not always practicable.
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Posted By Mike Dallow
What the original question was if an employee can refuse to give a verbal or written statement?
is this right or wrong
Mike
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Posted By Jimmy R
Mike,
I refer you to my earlier answer.
Yes, the employee can refuse to give a statement if he/she wishes. He/she can also refuse to give a statement even after being cautioned by the enforcing authorities, albeit it may not be in their best interests to do so.
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Posted By jom
Mike,
Seems like you're seeking legal advice. Perhaps a paid-for legal opinion is what you need.
John.
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