Posted By AF I am sure someone will correct me if I am wrong. It is my understanding employers liability would cover any negligence on the advisors part. Any decent employer worth his salt, would ensure his advisor was classed as competent, by stiulating the requirements required for the post, and setting out in a person spec/job description. Should the advisors standard fall below what is required, then formal discussions can take place to establis why! Training needs can be identified and implemented at this stage. Should the poor standards continue then perhaps disciplinary could follow. But again, how does an employer determine what levels of competency are required for his business? No point in over elaborating here! This argument could possibly go on and on! Seem to remember a case a few years back, but not sure if it was an employer suing an employee or employer suing H&S Manager. Cannot remember the exact specifics, but was to do with a resturant? or something? can anyone elaborate? Alex

Posted By Robert K Lewis Undoubtedly the employer here would be admiting a breach of the management regulations as he had no competent H&S advice. But still it might be unintentional and as government ministers are saying such unintentional actions are not really crimes. Competent employers employ competent people and if they do not they use their disciplinary procedures to remove the problem. A judge is most unlikely to even entertain the case let alone hear it. Bob

Posted By Jay Joshi There was a similar fear when the civil liability exclusion in the Managemnt Regulations was to be removed --the reality is that:- 1) It will be extremely diificult for the employer to prove that the employer is not liable as it is the employers duty to ensure that the appointed person is competent!!! 2) Vicarious liability as mentioned by others. That is the very reason why employees do not take out personal indeminity insurance. Interestingly, Regulation 21 of Management of Health & Safety at Work Regulations 1999 :- Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of - (a) an employee of his, or (b) a person appointed by him under regulation 7. The reference to appointment under regulation 7 is for safety advisors. Obviuosly, you are referring to a civil case and an employer seeking compensation from an employee.

Posted By Adrian Watson Yes an employer can sue another employee in contract for failure to exercise reasonable skill or care or in tort for negligence. However, it would not be normal practice. Regards Adrian Watson

Posted By Robert K Lewis Jay We need to remember that the courts recently held that regulation 21 does not prevent an employer putting forwards a defence of sfrp and that the employers responsibility copuld be discharged if they had met this duty. The case has not yet come to trial for the incident itself I think, but you can probably fiond the reference using A66 as a search - it was related to the moving of a temporary lighting column. The HSE contested it strongly and I think are still smarting over the decision. Bob

Posted By Tabs A more likely avenue would be breach of contract - assuming the contract stated that good advice was to be given (not just "advice"); or stated that the employee would give best advice on compliance issues, etc ... and that the advisor actually signed such contract. Quite unlikely though.

Posted By Adrian Watson Vicarious liability is of no relevance whatsoever in this case. Vicarious liability is only of relevance in respect of third parties suing the employer for injury resulting from breaches committed by an employee in the course of the employment. Where the employee fails to meet the duty of care expected towards the employer then the employee is potentially liable for any loss incurred by the employer. Regards Adrian Watson

Posted By Adrian Watson Pete, I have an injury as a result of A's activity as an employee of B. I can sue A or B, as B is vicariously liable for A. However, B can sue A to recover his loss, as a result of A's actions. In this case vicarious liability is irrelevant. Regards Adrian Watson

Posted By Paul Bibby I agree that technically the employer could sue the advisor but to what end? Seems like a pointlessly expensive venture to me. I hope the adviser would counter-sue and lets face it the employer would have much more to lose. After all the adviser is unlikely to have much money as s/he is so poorly paid. If I was to advise the employer on an appropriate course I would suggest they lose the advisor asap and settle out of court with both the injured party and the adviser, who would rightly sue the employer for unfair dismissal. Vicarious liability always seems to cause confusion. I'm with Adrian on this one. If there are any employers out there reading this thread take my advice and leave your safety advisor well alone but listen to his wisdom at all times. Oh and before I forget pay him more money; he is worth it you know. Even if he has no dress sense! Regards, Paul

Posted By Tabs "who would have blamed if the balcony came down and hit/killed a site operative or a member of the public" (sic) The employer and/or the provider of the balcony. I am worried if you think you somehow acquire liability for things when you point out their flaws. You do have obligations, and these are nicely described in the IOSH Code of Conduct for members - if you are a member, have a read. You would have the option to "whistleblow" and you would the protection of the law.