Safety match

first_img Comments are closed. Employment law places fresh onus on the role of riskassessors in the workplace, but can references be relied on to find the rightexperience and skills for the job?  By LindaGoldman and Joan Lewis The Health and Safety at Work Act (HSWA) Newsletter1 is constantly brimmingwith reports about accidents which have arisen through breaches of HSWA andsubsidiary regulations. The reports skim the tip of the iceberg of successfulprosecutions, covering a few of the most serious incidents which result inconvictions for companies or individuals found guilty of breaches of thelegislation. It would appear many incidents could have been avoided had a suitable risk assessmentbeen carried out. On a spot-check of 37 cases reported in the newsletterbetween January and May 2000, however, only three cases mention failure toassess for risk under the Management of Health and Safety at Work Regulations1992, of which only two refer to convictions for actual failure to assess. The new Management of Health and Safety at Work Regulations 1999 came intoforce on 29 December 19992, accompanied by a revised Approved Code of Practice(ACOP)3. Employers are now advised wherever possible to appoint a competentperson from within their workforce to advise on health and safety in theworkplace and the avoidance of risks, whether at the employer’s premises or,increasingly, the employee’s home if the employee is a homeworker. The responsibility of health and safety has shifted from external sources toexisting employees. This places a greater burden on the OH team which may needsupplementary training in order to ensure competence. Competence in new employees General competence is a topical subject at a time when the medicalprofession as a whole is considering revalidation of qualifications. Successful revalidation would be a reasonable way of relying on establishedcompetence in a given field. Until that happens, the profession remains relianton proven track record which, for a new employee, means a good reference. References for OH professionals are of crucial importance in securing andmaintaining employment, but the recipient must be able to rely on its accuracy,just as much as the donor must be reliable in giving information. Nothing but the truth Many organisations are adopting a policy of obtaining written referencesbefore offering or appointing a person to a job. There are then potentialproblems if a job offer is made subject to references. Third parties normally give references in confidence and revealing thenature of them to a prospective employee can cause problems of breaches of thatconfidence. Caution should be adopted before using a minimal written stylesupplemented by verbal information. Any system that includes covert referencesshould come under scrutiny, particularly if discrimination issues could beraised. Whether covert or overt, over-optimistic references can cause their ownproblems when a manifestly unsuitable applicant is appointed. In health andsafety matters, reliance on a bad reference could have disastrous results. There is a duty of care on the referee to ensure that facts are correct. Anunfavourable reference based on incorrect and/or detrimental information couldrender both the donor and the employer, who would be vicariously liable,subject to legal proceedings and liable for damages if harm has resulted fromtheir lack of care. References in respect of capability to carry out risk assessments carry aninherent requirement for their own assessment. Even if an employee was capableof carrying out the necessary investigations and recommendations in a previousjob, it would be wise to assess their capabilities by practical tests ratherthan rely on another organisation’s experience. Perhaps the most common general references with which OH professionals areinvolved relate to fitness and attendance. This should be restricted toobjective and factual information. In addition, checks should ensure compliancewith standards imposed by professional confidentiality standards, the DataProtection Act, and discrimination legislation. Cost of accidents The issues involved in references are now sufficiently diverse, complex andpotentially costly to employers as to warrant their own review for riskassessment purposes. After completing this most employers are revising ordeveloping a references policy to comply with current standards and to mitigatetheir exposure to risk. Even though failure to employ competent personnel has expensiveconsequences, a report of the Environment Transport and Regional Affairs SelectCommittee4 shows employers are still finding it cheaper to risk breaking thelaw than pay for health and safety improvements. Further, the insignificantnumber of convictions in important cases for breach of the requirement toassess for risk could be indicative of the perception that too few workplaceinjuries are investigated by the HSE. Nevertheless, every case that leads to conviction has one or several personswho could and should have carried out risk assessments or whose work in respectof risk exposure was inadequate. In either scenario, the question of competence arises in respect of futureemployment of the culpable individuals. Provided that any reference containingan opinion about their capability of carrying out the job that they wereemployed to do is based on accurate and factual information, it will bereasonable for adverse comment to be made. Policy needed on references Refusing to provide references to third parties may not remove exposure torisk. There may be serious consequences if the employer refuses unreasonably toprovide any reference at all as is shown in Coote v Granada Hospitality. Thatcase, for which a tribunal awarded the applicant £175,000 in damages, reflectsan extreme effect of apparent management wish to have nothing more to do withan employee who had involved them in litigation. However, a reference could have been given in neutral terms in accordancewith policy guidelines provided that it was “true, accurate and fair”without being misleading and with no need for being full and comprehensive. Employees in a new job may be entitled to see their previous employer’sreference under the rules of the Data Protection Act 1998 if it is contained ina document on file. The mere fact that a reference perceived as negative by theemployee has not prevented them from getting the new job does not necessarilydeter the individual from seeking redress. Conversely, a new employer who takes a bad employee on the basis of anuntruthfully glowing reference can claim damages for negligent or evenfraudulent mis-statement. It is a question of taking the risk of the accuracyof the reference and making an objective decision based on all the facts. It is clear that employers need to have a policy on this increasinglycomplicated subject. It can be made clear that the policy on the giving side isfor only the dates of employment and nature of the post held to be given whileseeking references for prospective employees will be in a standard format whichseeks factual information only prior to any conditional job offer being made. References 1 Published by the British Safety Council: e-mail [email protected] Management of Health and Safety at Work Regulations 1999 SI No 3242 3 The Management of Health and Safety at Work Approved Code of Practice,L21, ISBN 0 7176 2488 9 4 The Work of the Health and Safety Executive. Report and Proceedings of theSelect Committee, ISBN 01021 1700 4 Case RoundupHSE v Special Steels, HSWA Newsletter, January 2000, An employee was using a furnace charging machine to remove hot steel barsfrom a furnace, to a table and then a storage pen. The latter operationrequired a crane to move the bars. While he was moving the bars from the table,they rolled, crushing him to death. A sufficient risk assessment would have shown the need for edge protectorson the table to contain items. The court described the incident as havingrevealed “a culture of lax management” in which an aggravating factorwas permitting the operation to be carried out by a single, unassisted worker.The fines were £20,000 under s2(1) of HSWA (failure to ensure the health andsafety of the company’s employees) and £5,000 under regulation 3(1) ofManagement of Health and Safety at Work Regulations 1992 (failure to carry outa suitable and sufficient risk assessment).HSE v OCS Cleaning South, HSWA Newsletter, January 2000, A window cleaner fell six floors to his death while cleaning windows at anoffice block in Reading. He was using a bosun’s chair attached to a metal rigwhich fell from a parapet. He had been trained to use a similar rig in 1989 buthad not been trained in the use of the specific type at the office block.The system of work they had adopted was inherently unsafe and had causederosion of paint on the rig that had not been noted at annual inspections. Thecompany was fined a total of £19,000 and prosecution costs of over £3,000.HSE v Trafford Centre, HSWA Newsletter, April 2000, Samuel Adams, aged six, was crushed to death in the Trafford Centre inManchester on 10 October 1998 when a pile of iron railings, to be used forfencing, fell on him. The managing company had opened the centre without carrying out appropriaterisk assessments under the Management of Health and Safety at Work Regulations1992.  It was fined £100,000 plus £13,000 costs. The charge was brought undersection 3(1) of HSWA (failure to keep a workplace safe for non-employees). Previous Article Next Article Related posts:No related photos. Safety matchOn 1 Aug 2000 in Personnel Todaylast_img

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