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Accident at work, disciplinary hearing

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Hey all, hoping I can get some more experienced views on some things.

 

My Father in Law was involved in a very serious accident at work a few months ago. He survived, although he may not recover full use of an arm or leg (he was at risk of loosing them). He was dragged into a machine and crushed while trying to clear a jam.

 

He's now received a letter from his work saying that their internal investigation has concluded and that he will be invited to a Disciplinary Hearing (date to be arranged).

 

Government Health and Safety officials were there on the day, however he hasn't heard anything from them since. Is this normal?

 

He was called by another member of staff on his day off and went in to help as this person was working alone and he knew how dangerous a jam like this could be (and indeed was). He was stood on a tiny platform with no guard rail and had to put his head and shoulders in the machine to poke at the jam until it came loose. While doing so the pole he was using was grabbed by the machine and he was dragged into it, then being crushed by the rubbish that was previously jammed.

 

He's very angry that he's now got this hearing as he feels they're to blame for poorly designed equipment and unsafe practices (one person on their own). They have put a stop to the machine ever being worked alone since this happened.

 

I'm trying to let him know that the hearing will just be a meeting to establish what, if any, responsibility lies with him (and the other worker). What are the likely outcomes though? Should the work be waiting until H&S have even spoken to him?

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Be very careful about what he admits to. Under no circumstances admit personal blame.

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He feels like he's got no blame in this anyway so no fear on that :p He's laying the blame entirely on the company and the situations they got put in. In his words 'This would never have happened with the old machine'. (Old machine was replaced with this model within the last couple of years).

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Did he receive any training for working on this new machine?

Was a risk assessment carried out for that job ?


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My advice is based on my opinion and experience only. It is not to be taken as legal advice - if you are unsure you should seek professional help.

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This would not be the first time i've seen an employer think blaming a member of staff is the correct way to deal with a breach of H&S and think this is what the HSE expect or that it will get them off the hook. The last one the employee i was with was told by the manager they were being disciplined, the HSE inspector took a very dim view of this due to the circumstances and took enforcement action on the firm, the employee sued and won for personal injury.

 

He needs to curb any anger, lose your temper, lose your argument.

 

If i was him i'd be asking what the findings of the investigation were and why they have now instigated remedial measures after he was injured.

 

PUWER is your friend here

 

http://www.legislation.gov.uk/uksi/1998/2306/regulation/11/made

If the employer did not fulfil the regulations around dangerous parts of machinery (link above) this would be a breach and then potentially enforceable by the HSE (really does depend how many people have been maimed that week as to if the HSE will even look into it if they have been made aware).

 

Did they report it to RIDDOR (he must have been off over 7 days because of the accident) and did he tamper/remove/alter any safety devices, ignore normal or written safety procedures to do what caused the accident? This is usually where the disciplinary comes in. If they do go for him and he is blamless he can ring the HSE up and ask them if they were notified of it.

 

As always the devil is in the detail here.

 

Also employer will be expecting a PI claim so will be looking to mitigate and even if they know they are at fault (10% -100%) maybe looking at contributory negligence where they can lower any PI award.

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I would be reading through the employment handbook on this one as I cannot believe that 2 people using a dangerous machine werent told about how to work safely and trained on it when installed.

However, if it is the case them the disciplinary is just a wheeze to get the person out the door to limit the amount it is going to cost this company in damages, fines and possibly jail time. Is the workplace unionised? If so, even if FiL is not a member it will be in their interests to be very involved in this case so get in touch with the local rep AND the regional office. Your FiL would be well advised to enquire about instructing their solicitor as well, apart from being expert in this field they will often absorb the cost of a lot of the work that coincides with their members interests. Make sure that he is represented at the disciplinary meeting, even if it is just a colleague to take note. If that is the case take notes as the meeting progresses and only sign off their version if it is aproper true record of what was said. A pocket tape recorder may be handy so things can accurately be written up afterwards.

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Did he receive any training for working on this new machine? When the new machine was installed they were instructed on its normal use. They were never shown what to do in the event of a jam.

 

Was a risk assessment carried out for that job? Unknown, how would we find out?

 

Did they report it to RIDDOR (he must have been off over 7 days because of the accident): It has been reported to HSE, if this is the same thing. I called HSE not long after posting and they said they were aware of the incident and if he wanted he could put in a request under the Freedom of information act to receive what they have so far. They said that some cases take years. I said we hadn't heard from them at all and, while I didn't get a direct reply, she seemed like this was normal. Maybe slightly evasive but maybe because I wasn't a person involved...?

 

...did he tamper/remove/alter any safety devices, ignore normal or written safety procedures to do what caused the accident?

No to the safety device question, there is a hatch in the side of the machine that they can open to try and shift things along when there's a jam, but no actual safety device he would have to circumvent. He dealt with the jam exactly the same way he or any colleague would normally deal with it. There was a pole used that had been used for this same purpose for over 6 years.

 

A pocket tape recorder may be handy so things can accurately be written up afterwards. If they record it do they have to state they are recording it? If the worry now is that they're trying to get away with it then I wouldn't put it past them to say something 'off the record' and then deny it ever happening :-\

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Did he receive any training for working on this new machine? When the new machine was installed they were instructed on its normal use. They were never shown what to do in the event of a jam.

 

Was a risk assessment carried out for that job? Unknown, how would we find out?

 

[/Quote]

 

These are the points to focus on. There should be a training record, and the employer should have a risk assessment. Ask to see both documents - you can guarantee that HSE already have.

 

The issue here is that both the employer and employee have equal responsibility under HSAWA to maintain the safety of self and others. The employer will be investigated by HSE for any failings in policy or procedure (or equipment safety) which may have contributed to the incident, and in order to satisfy HSE that they have taken remedial action they will almost certainly be looking to establish that your FIL failed to ensure his own safety by placing himself in a position where he could come to harm. The employer will most likely be served with an improvement notice (or worse) and part of the required improvement will be to change practices to avoid a similar incident occurring in future. That isn't to say that they are blameless, but more to do with making improvements. If it can be established that FIL acted recklessly then they are entitled to take disciplinary action.

 

I recall a case where an employee of ours misused a forklift truck and suffered a serious injury. The company found itself in trouble with HSE because the risk assessment for FLT use did not specifically identify what occurred as being a potential safety risk so there was no specific instruction that FLT operators should NOT do what this particular employee did. Despite sympathy for the employee's injury, the company had to be seen to be not only updating the risk assessments for all equipment, but also to be taking disciplinary action against the employee for acting recklessly and endangering his own safety. This satisfied the requirements of HSE.

 

Your FIL needs to stress that what he did was accepted practice to clear a jam - possibly even that it was the only means that he had ever been shown if that was true, and that there is nothing in the company's risk assessment or his training record which indicated otherwise. If he was instructed in how to clear a jam using the pole and while the machinery was running and this was acceptable to management then the employer will find it difficult to argue that your FIL acted contrary to his training, against their express instructions and placed himself in danger.


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I'm sorry, but he wasn't shown how to clear a jam, and yet cleared it anyway. Was he told to donit or just did it to save time? That is his failure to adhere to HaS if he just did it anyway.

 

There should be a risk assessment held by the company BUT that's if the company are supposed to fix jams themselves. Usually its a call out job on big machines now

 

You say there were no guards and then go on to say that they had to open a panel to get to the jam, so clearly there was a guard?

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To be honest i would not comment until the HSE have issued their report into the accident

 

Speak to a solicitor first and see what he says as any comment might limit any compensation payment if they try for equal liability or gross misconduct for breach of health and safety.

 

Your employer will be governed under the Management of Health and Safety at Work regulations, especially regulation 3.

 

http://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made

 

A safe Systems of Work/Risk Assessment also needs to be documented, ask for a copy of this prior to the conduct disciplinary meeting. It needs to be updated a minimum every 12 months

 

I would also be asking for a copy of the companies own Root Cause Analysis of the accident prior to the disciplinary meeting

 

 

Do you belong to a Trade Union. Their health and safety reps will be all over this in your defence

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To be honest i would not comment until the HSE have issued their report into the accident

 

Speak to a solicitor first and see what he says as any comment might limit any compensation payment if they try for equal liability or gross misconduct for breach of health and safety.

 

Your employer will be governed under the Management of Health and Safety at Work regulations, especially regulation 3.

 

http://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made

 

A safe Systems of Work/Risk Assessment also needs to be documented, ask for a copy of this prior to the conduct disciplinary meeting. It needs to be updated a minimum every 12 months

 

I would also be asking for a copy of the companies own Root Cause Analysis of the accident prior to the disciplinary meeting

 

 

Do you belong to a Trade Union. Their health and safety reps will be all over this in your defence

 

Agree. I would not attend such a hearing without someone with me to witness and record the meeting. Does not need to be a Solicitor, but someone they trust to be a reliable witness should they need them and someone who can offer support.

 

They call them disciplinary meetings because they have to have some formal process, but does not mean they will blame him. Really the workers using this machine should have stopped using it if there was a safety issue or at least logged a health & safety concern in writing. There are also outside bodies you can report H&S issues with if your employer is ignoring concerns.

 

It is quite possible they will say he was partly responsible, if he had not reported the issue of the machine jam before and how they were fixing it.


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If you voice record the conversation for your own purposes you need no permissions and dont have to tell people that you are doing so. The recording cannot be used as evidence for anything other than a criminal evidence but youare alled to write up notes from the recording as a true record of the meeting.

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And if they find out you are using a covert recording device without their prior permission??

 

That can be seen as a fundamental breakdown of trust between the employer and employee

 

They can also have it as a contractual term in the contract of employment that no recording devices are used on work premises

 

T+Cs cannot remove statutory rights.

In this case the use of covert recording equipment for own personal use in providing a transcript and nothing more is governed by the Data Protection Act.

Remember it is MUTUAL trust and confidence.

 

IF the equipment is used sorly to provide an accurate transcript then their minutes should reflect the transcript. If the employer thinks there is a breach of trust that could be argued to be down to the fact the employer did nto want the meeting recorded in the minutes accurately. A Breach on their side as well.

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Indeed, although there is case law where employee's have covertly recorded a hearing and it has been accepted by the tribunal, i only have to count the fingers on my right hand for the amount of times it's fallen in the employees favour and i'll have a couple left to count!

 

A couple of things i noted, RA's and SSOW's do not need to be updated every 12 mths unless this is the companies policy via their own H&S policy. It is advised by the HSE "periodically" but of course the longer you leave them not reviewed the less chance you have of showing good safety systems.

 

The management regs acop was removed and no longer has any standing in tribunal from its quasi legal status in the past meaning much of the usuful advice is now irrelevant. Section 10 is the goto part for getting the risk assessment, however there is no legal duty to provide the RA, they must provide the following

 

Information for employees

10.—(1) Every employer shall provide his employees with comprehensible and relevant information on—

(a)the risks to their health and safety identified by the assessment;

 

Therefore he needs to work out what they have provided him with via training, notices and instruction on how to safely unjam the machine, for example was there a safety sign on it in white and blue stating (do not remove, shut it down first etc.)

 

The ket part is he if walks in and says you are legally obliged to give me a copy of the RA, they can say no your not and there is nothing worse in my experience than someone stating facts that are not. He asks the employer to provide him with suitable information to show that they have communicated the risks to him and also the procedures to fix a jam safely.

 

usually that means he gets a copy of the RA or SSOW but it's how you ask that matters.

 

I would be co-operating with their hearing totally to ensure i was fulfilling my contractual obligations but they would get nothing out of me for free which helps their case unless i divulged it for my own defence. Don't give them anything you don't have to, for a case of this nature i would be on the front foot telling the employer it was their case to prove their actions were not negligent for my member, not for him to prove his innocence. *caveat, prove/innocence isn't really good terminology in this area as there isn't a need to prove either as the employer decides "on the balance of probabilities" for the burden of proof.

 

One potential optimistic view (it's a first for me for a while) is that if an employer knew they were negligent and covered it up then unless they were insane they would also know dismissing that person would add a significant weight to any legal case due to the detriment it would cause for him in addition to the injury. This means often there is a written or final written issued instead of dismissal. it's their way of getting something in black and white to say "it's his fault" without taking the chance a tribunal will nail them!

 

Good luck

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One potential optimistic view (it's a first for me for a while) is that if an employer knew they were negligent and covered it up then unless they were insane they would also know dismissing that person would add a significant weight to any legal case due to the detriment it would cause for him in addition to the injury. This means often there is a written or final written issued instead of dismissal. it's their way of getting something in black and white to say "it's his fault" without taking the chance a tribunal will nail them!

 

Absolutely! It is all about appearances


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Atlas, i must disagree. You say risk assessments SSOW etc cannot be given to you as it is not law and not statutory duty.

 

The SRSC Regulations 1977, Regulation 4, 6 and 7 gives legal persuasion to inspect those documents

 

This will also come under the MHSWR 1999,

 

Risk assessments are not one off events. Regulation 3 MHSWR states that risk assessments must be reviewed if it is believed the previous assessment are no longer valid, or there has been significant changes to which it relates.

 

The poster mentioned this was a new machine so needs its own independent risk assessment.

 

Refusal in denying inspection of these documents by the employer may well be "Quasi" Regulatory crimes, Not exactly criminal, but they are strict liability offences in refusal to comply with such a request

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I can't see anything in this thread where the injured person is an appointed safety rep or has one representing him, therefore the srsc regs are probably a red herring here (have not checked but would expect every one of those sections you referenced to start along the lines of "safety reps must be.....")

 

The employer probably will on request put up the documents as they would need to be disclosed under legal privileged once a claim went in anyway. In most cases as soon as they are requested, My point was and remains, it is very dangerous to say "you are legally obliged to give me this" when technically they are not, it undermines the persons credibility in a hearing.

 

Feel free to prove me wrong and show me a line in any regs where it says employee's (not safety reps) must be given a copy of the RA, I'd love to be wrong on this one.

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I agree, Atlas, i was talking with my Area Health and Safety Rep hat on in my distant past. Sometimes i tend to forget not all employers have Trade Union representation

 

It is OK employees saying unions are useless, but this is a prime example where their knowledge is worth its weight in gold on such matters.

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Section 10 of the MHSWR 1999, whilst not explicitly stating 'Risk Assessment', does state that

Every employer shall provide his employee with comprehensible and relevant information on — (a)the risks to their health and safety identified by the assessment

 

Could that not be construed as the RA? If not, what is the 'assessment' that is talked about.

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