Hello

I received a disturbing phone call from our MD that we need to stop recording Near Misses. My response was astonishment to say the least & a little concerned. To explain matters, here is a small paragrapth taken from an email sent to me to explain further -

" It was discussed at the last quarterly  meeting for MDs that the legal department of some big  companies were discouraging companies from circulating details of near misses to try and help other companies to avoid the same problem. This was because the HSE had started to prosecute and fine companies base on a fixed sliding scale of fines based on the potential injury that can be caused by an incident and the turnover of the company. One big company said that they had been fined £5M for an accident that resulted in a broken arm but which had the potential to kill and thought themselves lucky. Even a near miss has the potential to cause injury and therefore by publicising them you give the HSE documented grounds to  prosecute and almost everything that happens on site has the potential to kill someone."

I have looked into this but found nothing On-Line  / HSE Website etc.

Technically it may be suggested that a Breach of Duty has caused the Near Miss – Example if a Scaffolder fails to implement Double Handrails then that is a Near Miss as it has the potential to cause harm. The Breach of Duty is that the Scaffolder Breached the Working at Height Regs by failure to provide adequate Edge Protection.

I apprecaite if anyone can confirm this or provide previous Case Examples.

Thanks

Edited by user 12 August 2019 15:28:17(UTC)  | Reason: spelling

Forgot to say certain Near Misses are reportable under RIDDOR : https://www.hse.gov.uk/riddor/dangerous-occurences.htm

If I were a visiting HSE inspector and I found that the organisation had no recorded near misses I would be somewhat suspicious about the monitoring standards in that workplace!

How else will you know - and be able to demonstrae - that the near misses have been identified and action taken if this is not recorded

I went to a legal seminar a while back about the consequences of the new sentencing guidelines. There is a risk of a massive fine for any material breach. It is the size of the fine that is the risk and consequences for the business.

Through trying to do best practice you could leave the company open to a massive fine following a near miss (none RIDDOR) by providing the required proof or admission to the HSE. I have heard of a prosecution following enforcement notice when the company complied in good time.

There appears now to be a conflict between best H&S practice and legal advice. I heard one lawyer say just ensure compliance, do you legal minimum duty and no more.

I believe you have to record and investigate near misses but perhaps the findings are now confidential with caveats and only disclosed under section 20 powers. However it is for the lawyers to draft the caveats.

The other consequence was companies (and individuals) starting to mount defences, arguing mitigation and appealing fines/sentences which has come as a shock to the HSE! Their legal fees have apparently substantially increased.  Recording and investigating near misses however is a mitigation against a larger fine.

I also believe there has been a sea change in the HSE which came with budgets cuts. They are withdrawing from engagement and concentrating on enforcement. I have started to see companies be more guarded with the HSE and I would not freely disclose anything to them.

The HSE have published a policy document(HSG41) describing how they enforce the law. They will prosecute only if it is in the public interest which means:

• death was a result of a breach of the legislation;
• the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it;
• there has been reckless disregard of health and safety requirements;
• there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance;
• work has been carried out without, or in serious non-compliance with, an appropriate licence or safety case;
• a duty holder’s standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk;
• there has been a failure to comply with an improvement or prohibition notice; or there has been a repetition of a breach that was subject to a simple caution;
• false information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk;
• Inspectors have been intentionally obstructed in the lawful course of their duties.

This is quite a high bar for a prosecution. Nowhere does it imply that the HSE are looking to prosecute for ‘near misses’, however you define a ‘near miss ’.  The HSE understand that no Health and Safety system is perfect and they expect near misses to occur. What they are interested in how an organisation manages those near misses and what it learns from them.  If an organisation kept recording similar near misses and did nothing about them other than recording them then the HSE might intervene. The idea that you should cover up ‘near misses’ is contrary  to the spirit if not the letter of current Health and Safety practice.

If this was the optimum solution to avoiding prosecutions I would suggest that you stop recording all accidents and just get rid of Health and Safety altogether on the grounds that if you keep a low profile you won’t get noticed and will probably get away with it.

You must understand that the HSE's intention to prosecute is NOT determined by an event type (e.g. accident, incident, near miss). Neither is the HSE's powers to prosecute limited to RIDDOR related incidents.

For prosecution purposes, the offence is the "risk of creating harm". Therefore, in real terms, the threshold for the HSE to bring prosecutions is low. So technically speaking no accident, incident or near miss has to even happen to bring a prosecution. All they need to prove is that you have not managed a hazard thus creating a risk of harm.

You should not stop reporting near misses on the basis of such arbitary information. Any legal firm worth their money would not issue such nonsensical advice. And as some others have already mentioned, a broken arm is not a near miss! It has result in injury and therefore it is an accident.