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Connect Issue 31
07 September 2009

 

Welcome to the latest issue of Connect

Hello and welcome to another issue of Connect.

Finally, could business leaders be waking up to the very real and potentially lethal consequences of not investing in appropriate safety training?

It doesn’t look like it. The usual suspects, such as recessionary pressures and the inevitable wringing of budgets by many organisations, have been blamed on staff safety training falling by the wayside.

In fact, one business expert believes that many companies have still to revise their emergency plans, and fears lessons haven’t yet been learnt over large disasters such as the Buncefield explosion.

Let’s hope it doesn’t take another high-profile disaster to make business leaders sit up and take their responsibilities, such as safety training, seriously.

Afghanistan, for all the wrong reasons, has been constantly making the headlines over recent weeks with a steady stream of sad news about servicemen being killed or seriously injured during a particularly bloody phase of the conflict. In this issue, we talk to Roger Moore, Deputy Chief Environment and Safety Officer for the Ministry of Defence, about what lessons can be learnt from deaths and injuries in operations and training.

Two recent court cases have highlighted how difficult workplace harassment can be to manage. We look at what organisations need to do to reduce the risk of civil damages, prosecution and potential health issues to those staff and customers affected by it.

Also in this issue, we hear from the HSE’s Alan Plom, a speaker at the recent IOSH Rural Industries Group event, about improving safety in agriculture and rural industries.

Remember, Connect carries all the latest events and news from your Branch and Group, as well as jobs in your area and details of IPD workshop dates and venues.

Thanks for reading. If you want to contact us about something you’ve read in Connect, or would like to be included in one of our features, then please drop me a line.

Shaun Gibbons,
e-Editor, IOSH.



Spotlight: keeping troops fighting fit

Over 200 British service personnel have died in Afghanistan since 2001. Of these, 21 have died in the past month. Connect talks to Roger Moore, Deputy Chief Environment and Safety Officer for the Ministry of Defence in Whitehall, about what lessons can be learnt from deaths and injuries in operations and training…

Roger said:

“British troops are continuing to conduct fierce fighting against a determined enemy in Afghanistan and sadly some are losing their lives and others are being badly injured. So now isn’t a time to lose personnel through avoidable accidents. Keeping our troops as safe as reasonably practicable, not only from enemy action but also from day to day hazards, is of key importance. We therefore try hard to understand why accidents happen, learn lessons and improve the way we work in order to avoid future tragic deaths and injuries.”

The MoD is subject to UK health and safety legislation, so the 1974 Health and Safety at Work Act applies. But because the MoD is a Crown body, the HSE can’t prosecute.

The substitute for the inability to prosecute is an administrative mechanism called a Crown Censure. Roger said:

“This allows the HSE to bring formal Censure proceedings if we’re seen to have broken what would have been law in a normal context.”

In the past 10 years there has been on average one Crown Censure a year. These can range from accidents on night exercises to weapons and diver training.

In 2005, the MoD received a Crown Censure following the death of a Royal Marine recruit. He was shot during training in Lympstone, Devon, when a rifle was accidently loaded with live ammunition instead of blanks. Roger said:

“The findings showed that there wasn’t an adequate risk assessment for this exercise and some of the key personnel weren’t sufficiently trained. The ammunition could have also been marked more clearly. There were a number of failures, but the HSE charged the MoD under Section 2.1 of the Health and Safety at Work Act.

“On their own, the individual failures might not necessarily have caused a problem, but together they resulted in the death of a recruit.”

Roger gets involved in the preparation for, and attends, each Censure to provide central co-ordination. With every case, Roger and his team will look at what happened and how it happened before putting submissions to the Ministry’s senior safety board with the lessons learnt.

These lessons are then passed to the appropriate service (Army, Navy or Air Force) to make sure they’re aware of these findings when updating work arrangements and planning for future training exercises.

“We also take recommendations from coroners. Take for example a coroner’s inquest into the death of a serviceman in January. While on duty, the bus he was travelling in left the road and overturned on the Trans Canada Highway, and he wasn’t wearing a seatbelt. The coroner in a Rule 43 letter (the rule that deals with learning lessons to prevent deaths) stated that the MoD should make sure soldiers wear seatbelts under those circumstances.

Road traffic accidents are a major cause of deaths and serious injuries, and a great deal of effort, particularly by the Army, has gone into raising awareness. They have produced award-winning films aimed at young soldiers. The Defence Road Safety Committee will reinforce the message about seatbelts in road safety campaigns again this year.

“In operational areas the issue of seatbelts is not as straightforward, as some troops feel uncomfortable about being so restricted. If they come under enemy fire, they may want to be able to escape their vehicle as quickly as possible. Behavioural and psychological elements play a key part in safety, and it’s about balancing people’s perceptions of risk from one hazard to another.

“Understanding of safety and risk is built in from the beginning of training, although it might not use the language of the safety practitioner. Recruits are exposed to hazards as their training progresses. It’s important they’re not injuring themselves through silly and avoidable accidents.

”Safety in operational theatres is in many ways similar to that in the UK. Basic disciplines ensure that fighting capability is not impaired, including good food hygiene, attention to hydration to avoid heat exhaustion, use of personal protective equipment to avoid crushing and lacerations, sensible working at height and manual handling. Together these will underpin the maintenance of an effective fighting force.”

In his day-to-day job, Roger can deal with people from nuclear power plants, the safe movement of high volumes of explosives, the storage of fuels and gases and the safety of aircraft and ships.

“Many corporate organisations will have one of these areas to deal with, but not necessarily all of them, and they might not have to understand the differences and nuances of approach.”

Currently, Roger is working with an Army Lieutenant Colonel in his team on research into accident investigation, looking at what the different approaches are in the various areas of the MoD. They’re pulling together information not necessarily to change what people are doing, but to gain best practice and feed that across to other areas.

“This is an ongoing project and we hope it’ll improve the practice of different people.

“Health and safety is always taken seriously, particularly with the Crown Censures. The senior members of the MoD, who might need to represent a particular department, certainly don’t feel comfortable sitting in the same room as bereaved relatives who all want to know why and how their loved one was killed.”

Factfile:

  • Roger Moore is a Chartered Member of IOSH
  • The MoD is the highest level military headquarters in the UK, providing political control of all military operations

Links:

MOD


From the courts: what you need to know

Workplace harassment can be very difficult to manage; however, failure to do so could expose your organisation to claims for civil damages, prosecution and potential injuries to those staff and customers affected by it.

What is harassment?

Harassment is defined as conduct which includes alarming the person or causing the person distress and can often arise from discrimination on grounds of race, religion, sex, sexual orientation, disability or age.

Harassment and the law

The Protection from Harassment Act 1997 not only created a criminal offence, it also allowed victims to seek civil claims. The Act was originally introduced to make stalking a criminal offence and allow the victim to claim compensation; however, its application has changed significantly over recent years. Victims of harassment at work can claim compensation from their employers. The scope of the Act has also broadened to include harassment by third parties; therefore, employers are now required to protect their workforce from external behaviour targeted against their employees. This is of particular relevance to people who work in occupations that are ‘customer facing’, for example staff in benefit offices.

To prevent frivolous claims from staff who were merely involved in an office spat or the fraying of tempers as a deadline looms, a number of checks and balances were introduced by the courts. In order for a victim of harassment to succeed in their claim, there must be at least two instances – although not necessarily by the same person. In terms of the gravity of the claim, the behaviour must be the equivalent of a criminal offence.

To illustrate this, Lord Nicholls spoke in the 2006 case of Majrowski v Guy’s and St Thomas’ NHS Trust. He said:

“Courts will have in mind that irritations, annoyances, even measure of upset, arise at times in everybody’s day to day dealing with other people. The courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable, the gravity of the misconduct must be of an order which must sustain criminal liability.”

This message seems clear; however, recent cases have reopened the arguments over just how bad must the behaviour be.

Case involving a member of staff

In April 2009, Northumbria Police was only partially successful in defending itself from claims brought by a number of officers. The allegations centred on the conduct of a discredited officer. It was claimed that through a combination of his aggressive manner and inappropriate policing techniques, he caused problems within what had previously been a cohesive team. The claim arose mostly from personality clashes and genuine differences of opinion, in particular the way in which investigations were conducted, which, at first glance, are not matters ordinarily capable of amounting to harassment claims. The case came before the court due to the high level of complaints received against the officer. A full hearing on the case is expected later in the year.

Case involving a customer

In February 2009, Mrs Ferguson made a successful claim against British Gas. Although she had switched from British Gas to another energy supplier, threatening letters and final demands were sent by the company over an eight-month period. Ferguson accused British Gas of harassment. The Court of Appeal agreed, forcing the company to pay compensation and leaving them with the prospect of a criminal prosecution.

The British Gas defence is best summed up as “it wasn’t me, it was my computer.” Can automatic final demand letters give rise to criminal behaviour? The Court of Appeal seemed to think so and awarded an undisclosed figure in damages to Mrs Ferguson.

Conclusion

These two cases highlight some of the problems organisations face in preventing injury to both employees and customers. The cost and disruption from investigating and defending civil claims can be significant and damages for victims of psychological injury can be high – particularly when an employee is unable to return to work. Even with modest awards for “injury to feeling”, employers may have to dig into their own pocket if their Employers Liability policy excludes cover.

Then, of course, there’s the prospect of prosecution. In the Ferguson v British Gas case, Lord Sedley warned the company that “conduct bad enough to justify a civil claim will also suffice for criminal prosecution”.

What does your organisation have in place to reduce the risks?

  • Do you have a policy and clear guidelines on harassment and inappropriate behaviour?
  • If so, how are these communicated to your employees?
  • Are you prepared to enforce your standards against more senior members of staff?
  • Do you have a confidential advice line in place so that relationship problems can be communicated?
  • Do you recognise harassment as an identifiable risk which should be the subject of assessment?
  • How do you identify and deal with ‘risk takers’ – those individuals with personalities that sometimes lead them to overstep the mark?
  • If you’ve employees working off site, particularly if they’re customer facing, what tools do you have in place to enable them to report acts of harassment?

Our thanks to Noel Walsh, Head of Commercial Insurance at Weightmans, who helped with this article.


Quote me

IOSH gets its message across

The Observer

Columnist Henry Porter wrote about the Palio – an Italian parade with costumes and a horse race – and went on to compare it with our “obsessions with health and safety” and how the British would have somehow restricted the event. IOSH President Nattasha Freeman wrote to the newspaper saying:

“If there has been a fatality, then it seems only sensible – rather than sinful – to look at safety. Health and safety is about keeping people safe and not scripting things from on high. Health and safety is also about respect, self-organisation and letting people get on with things.

“It may be used as an excuse to avoid the costs of running an event, prohibitive insurance premiums or the fear of getting sued…but that’s a different story.”

The Independent on Sunday

Fire experts have warned that thousands of holidaymakers are having their lives put at risk every day because British hotels and guesthouses are potential death-traps. In response, IOSH President elect John Holden wrote:

“A diet of ridiculing stories in certain quarters of the national media is setting up health and safety as a great British joke. Yet there’s a real danger that all the cheap sniggering is having a serious consequence, as a tired routine deadens our senses to those issues of genuine danger where ignorance, at best, and defiance, at worst, leads us to human tragedy.”

Evening Courier – The Voice of Calderdale

IOSH immediate past President Ray Hurst hit back at Calderdale Council, which stopped a guide dog from accompanying the Pennine Bowling Club for the Visually Impaired on health and safety grounds. He wrote:

“Whose health and safety rules were the council following? Whether they were their own or their insurer’s, the ‘rules’ certainly had nothing to do with any health and safety legislation.

“If anyone else out there wants to discriminate, save money on insurance or on putting in place the right facilities, treat people disrespectfully or generally come across as barking, then do so under your own rules…please don’t blame your actions on ‘health and safety’.”

Occupational Health

John Holden spoke to Occupational Health about the need to get safety in football grounds right. He said:

“Given the wide variety of roles in football clubs, from ticket sales and warehouse staff to club shops and restaurant facilities, occupational health in football is something which should have greater prominence. After all, football clubs and any other sports club that employs people are subject to the same legislation and duty of care for employees as any other workplace.” 

Education Business

John Holden responded on a series of ‘elf ‘n’ safety’ stories, including how one school cancelled PE lessons due to wet grass and how another banned pupils from wearing plastic hair bands in case they bumped into a classmate. John said: 

“It’s not real health and safety that’s holding children back at school but misguided decisions by some of those working there. We should be showing our children a good example, not encouraging them to treat safety as a bit of a laugh.”


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