01 June 2007
John Gilbertson

Even though the truck overturned, there is every chance he would have survived the incident if he had been wearing his seatbelt."

The quote is taken from an HSE press release following the prosecution of an employer and a contractor for causing the death of a worker on a farm. The vehicle was fitted with seatbelts and rollover protection but the employer's failure was cited as lack of training and proper supervision.

We have an uphill struggle to persuade the organisations we work for to invest more resources in health and safety while trying to resolve their frustration when they present us with case studies of employees doing foolish things that land their employers in court.

Section 7 of the Health and Safety at Work Act says employees have a duty to maintain their own safety, but Section 7 very rarely features in cases in the "in court" pages of the health and safety journals unless the victim of a person's carelessness is another employee.

Courts appear to be less tolerant of employers' behaviour now, while largely maintaining their sympathy with the victims of accidents. One business recently paid out £500 in compensation to a worker who developed a blister wearing safety footwear. The firm's risk assessment showed safety shoes were necessary for the job, and the worker had been instructed fully on where and when they should be worn. There was a choice of several pairs in the factory stores and, if none of those fitted, a catalogue with dozens more.

The worker knew all of this and even agreed in court that if they had returned the shoes as unsuitable they would have been exchanged. Instead they persevered with the discomfort until the blister appeared and then claimed compensation.

The judge was unsympathetic to the employer and ordered a payment. His only concern was why his court was being inconvenienced with such trivia. The firm's owner got the blame for defending the trivia.

Assume nothing

The limitations of assuming workers will take responsibility for their own safety can be summed up by the case of Bux v Slough Metals Ltd. Bux was injured when molten metal splashed up from a ladle he was carrying to a casting mould. He was not wearing goggles. Goggles were supplied and management had made an effort to persuade workers to wear them but, because the eyewear steamed up after 20 minutes, most had stopped using them.

The trial judge found as a fact that Mr Bux would have worn goggles if the management had persisted in their efforts to persuade the men to take to them. Bux's claim was based on the company's failure to make more strenuous efforts to enforce the use of goggles, and he won.

When the employer appealed, the Court of Appeal stated that whether, having provided a safety device, the employer is under an obligation to enforce its use depends on the severity of the risk of injury to the employee.

All of which makes the need for a formal, documented, disciplinary procedure more than just a legal requirement. It is also an integral component of business operations.

Over the years, industry has recognised the importance of policies and procedures to produce consistency, quality, effectiveness and efficiency in the workplace, and that success is ultimately achieved by compliance with the standards set out in such policies.

The difficulty lies in the fact that discipline over safety issues does not sit well with the values of managers or workers, though both groups readily accept that disciplinary action is an appropriate response to breaches of other organisational rules such as poor time-keeping, poor-quality work, stealing and fighting.

But in the management of safety there is a hierarchy of control in which discipline has a place. The courts see employers as liable if their control measures are overridden by employees in circumstances where the real threat of disciplinary action doesn't exist.

In the balance

The general duty on employers under Section 2 of the Health and Safety at Work Act gives ample scope for action. It may be helpful to separate the qualification of the duty from the duty itself as follows: "duty of the employer to ensure ... the health, safety and welfare of all of its employees". The "reasonably practicable" part becomes a second question in the matter of compliance.

There's little point in labouring reasonable practicability, which should be well known to readers of this magazine, but its cost-versus-risk implications need to be accounted for when answering the question of how far you go to ensure employees look after their own safety.

Consider the following: an employee whose job involves pouring ladles of molten metal faces a serious risk of severe injury to the eyes. Our response to the risk is to provide goggles at a cost of £7.50 a pair. Now we have to consider two questions.

• Is spending £7.50 reasonable and practicable?
• If we provide the protective device, will it ensure the safety of the employee concerned?

The answer to the first question is "yes", but to the second it has to be a resounding "no". The provision of protective equipment does not guarantee the safety of the worker. They may not, as we already know, wear it.

The next step is to instruct the employee in the use of the equipment and the circumstances in which they must use it, which may take between 15 and 30 minutes. It sounds a reasonably practicable thing to do but, again, it will not ensure the employee's safety. Employees have a propensity to forget or ignore instructions from management.

From that perspective we then set rules which cost very little to produce but are equally confounded by the employees' wilful opposition to compliance. Rules in themselves do not ensure safety.

Most managers see their duty done by this stage, but our cost/risk balance is still heavily tipped in favour of the risk. So where do we draw the line?

Disciplinary matters

The country's most senior judges have held that the threat of discipline which is never carried through is as much use as no threat at all.

This leads us to drawing lines in the sand and creating boundaries which people will not cross. Having established rules, we need to engage supervisors prepared to uphold the company position. Closer supervision adds another cost burden to our scales but this still doesn't outweigh the risk.

It's a reasonable thing to do, but even so it will not guarantee safety. We just can't supervise all of the people all of the time and, even where physically possible, it would be unreasonable to deliver 100% supervision.

So what counts as reasonable supervision? Supervision means not necessarily the presence of a superior in the workplace, but what they do. The role of the supervisor is to observe and correct less-than-adequate behaviour and reinforce good practice. It is not unreasonable for a supervisor to pick up employees for working outside the boundaries of expected good practice. This could become the first place workers cross a line in the sand.

Almost every organisation has a disciplinary procedure that is engaged after this point. A verbal warning, or even a written one, adds little to the costs of controlling the risk. Taking the employee through these stages makes it easy to show the courts that our intentions to safeguard workers are genuine and that safety breaches are considered as serious as other disciplinary matters.

The ultimate sanction is, of course, dismissal. Once the employee is no longer ours, we owe them no duty and our responsibility is discharged.

The cost of this could be thousands of pounds for the dismissal of the offender and recruitment and training of a replacement. For a serious risk, this money makes little impact on the scales in our cost/risk balance and holds no influence in a court of law. Paying a few thousand pounds to protect someone - and perhaps their colleagues - from their own apathy is a small price.

Certainly it's a lot better security than relying on Section 7 of the Act. I venture that the HSE would not even consider Section 7 in mitigation unless the second (verbal) or third (written) warning markers have been scratched on the ground and you can show the employee has crossed them. Their answer to anyone who says "but I'm always telling them" is likely to be "then you're not telling them hard enough."

John Gilbertson is director of training and development at health and safety trainers Key Consultancy, www.thekeyconsultancy.co.uk

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