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Let’s never stop being ‘starry eyed’ about safety and health 26/04/2022

HALF A century ago a controversial committee report was published by the government in Britain, which led to momentous change and radically altered our approach to occupational health and safety. NEBOSH CEO Chris Payne offers his thoughts on the Robens Report and its lasting legacy.

Fifty years on, it’s easy to get nostalgic and “starry eyed” about the Robens Report of 1972. After all it was a report that led to the ground-breaking Health and Safety at Work Act (HSWA) 1974, which has influenced regulatory approaches around the world. It took work-related deaths in Britain from an undoubtedly underestimated figure of over 1,000 in the early 1970s, to around one tenth of that now. Of course, it also ultimately led to the creation in 1979 of the organisation I’m now proud to be part of, NEBOSH. 

However, at the time of publication, and ever since to some extent, the report has had an air of controversy about it. For example, author Patrick Kinnersly once argued that the report pedalled a “dangerous myth” that accidents can be eliminated if we all just “pull together”1. In his book ‘Rules & Government’ Robert Baldwin, claimed the Robens Report offered a “distorted” view of rules and enforcement and he too used the phrase “starry eyed”, but in a negative rather than positive context.

In the main, criticism surrounded a key aspect of the report, that “those who create the risks are best placed to manage it.” At the time, this firmly placed the onus on employers and employees to work together towards an over-arching aspirational goal of providing a safe place of work. Some regarded this as seeking to blame and shift responsibility away from regulators. However, I would argue that history has shown this not to be the case at all. Through NEBOSH, I see regulators, employers and employees cooperating every day to improve safety and health and a tremendous willingness to succeed. 

Of course, it would be naïve for me to say this feeling is universal and that we do not have a significant way to go in reducing workplace deaths, injuries and ill health. However, I firmly believe in the tripartite system of cooperation proposed by Lord Alfred Robens fifty years ago and most importantly the example it sets. We all have a responsibility to keep each other safe and healthy. It’s that simple! 

Let’s use the 50th anniversary of the Robens Report to re-emphasise this message, particularly as we emerge from a global crisis that has threatened us all in one way or another. If ever there was a time for “pulling together” around a “starry eyed” vision for better safety and health, it is now.

References
1 Patrick Kinnersly, The Hazards of Work: How to Fight Them (London: Pluto Press, 1973)
2 Robert Baldwin, Rules & Government (Oxford: Clarendon Press, 1995)

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A greener future 15/11/2021

EDUCATING INDIVIDUALS and workforces is key to ensuring a greener future says Brenig Moore.

Guy Ryder, director-general of the International Labour Organisation, stressed that climate education is central to making a transition to greener economies that guarantee a "sustainable future for current and new generations." Ryder also pointed out that the transition to a carbon-neutral economy will require new skills, training, and qualifications: "Many new jobs will emerge. Others will have to adapt. This makes climate education for the current and future workforce a priority."

It's essential that individuals and businesses take steps to improve climate education – and pressing. Not least because it's the ethical thing to do, but also because becoming more environmentally friendly is often deeply entrenched in companies' values and business strategy. Corporate Social Responsibility (CSR) targets, for instance, are public for all to see – including stakeholders – and often underwritten by law. For example, the UK's Climate Change Act 2008 and the European Climate Law made the bloc's goal of reaching climate neutrality by 2050 irreversible and legally binding.

The fact is, we all need to do our bit to ensure a greener future and amplify the conversation on sustainable development. But not everyone has necessarily been given the right tools and support to help deal with these global challenges. That's why training that helps shape competent, confident environmental sustainability professionals is so necessary. Completing courses certified by highly reputable organisations (like IEMA and NEBOSH) demonstrates a commitment to developing crucial skills that will help make the world of business more sustainable.

But how, as a training provider, do we pique and maintain interest and stimulate people to, firstly, want to learn, and secondly, learn better? Let's take a look.

Strike the right balance

Workers need to feel motivated to learn new skills, and those who can be most vulnerable to labour market changes are not always receptive or willing to reskill. So uncovering what drives motivation to learn – and designing courses accordingly – is crucial.

Many factors, of course, drive people to learn. On the one hand, learners are motivated by external rewards, such as improved job opportunities or approval from a manager. On the other, learning also needs to be personally rewarding to feel worthwhile. This is why, regardless of external rewards like accreditation or incentives, it must strike the right balance of being enjoyable, challenging and exciting.

Ensure relevance

Central to achieving this is keeping course material relevant. According to adult learning theorist Jack Mezirow, a "defining condition of being human is that we have to understand the meaning of our experience." From a neurological perspective, that means that when the brain receives new information, it searches existing neural networks for a place for the data to "fit." If there's a connection, the latest information makes sense.

It's why training providers should work with businesses to tailor course material for their own unique needs. Courses that are customised for individual companies, the sector(s) they operate in, and the specific challenges workers face daily will help ensure students can relate to the importance – and relevance – of what they're learning. This will likely improve learner motivation, which can subsequently contribute to better results.

Keep it engaging

The best courses are the ones that keep learners engaged. It's why, as far as possible, an "active learning" approach should be adopted. This will ensure students remain cognitively active – something that helps learners form connections between existing knowledge and new experiences and reflect on how their understanding has changed.

For several reasons, adopting elements of gamification can help with this. Gamification in learning involves using game-based features such as point scoring, peer competition, teamwork, and score tables to drive engagement. All of which can help students assimilate new information and test their knowledge. It works for several reasons:

  • It's familiar mainly. We live in an increasingly virtual world. Technology permeates many of our day-to-day lives, and most people either play or have previously played video games of some description.

  • It can be fun, and learners learn best when they are also having fun.

  • Players/learners have an element of control – to a certain extent, they are in charge of their learning journey.

  • It can trigger powerful human emotion, such as happiness, intrigue, excitement and accomplishment

Gamification also lends itself to our previous point: customisation. Training providers can implement simulation training using real-life workplace examples and gamification elements by working closely with businesses. This provides a greater sense of authenticity, helping to bring courses to life for learners.

The time is now to invest in climate education

I've walked you through just some of the principles that guide us (Astutis) when we design and deliver environmental training courses. Arguably, they're all as important as each other – but what's most important is that businesses and individuals do take steps to upskill their workforce/themselves when it comes to climate education. It's never been more important or pressing – so choose a provider you can rely on. One whose courses will always remain relevant and keep learners engaged by being entertaining as well as educational.

Brenig Moore is founding member and technical director at Astutis. For more information, visit www.astutis.com

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Gas leak hazards: the development of safety and sustainable strategies 14/10/2021

Refrigeration gas plays a critical role in many facilities and in many sectors, most commonly in heating, ventilation and air conditioning (HVAC) systems. These systems operate to maintain equipment’s cooling or heating capacity. Shaun Evers discusses the inherent risks of refrigerant leaks, ongoing health and safety concerns, and the latest gas detection and alarm system technology that leading businesses are adopting.

Businesses in the facilities management sector understandably look for the best price but don’t always consider the suppliers’ safety standpoints. The refrigerant gases used in all refrigerant systems can pose a significant threat to the health and safety of workers should a leak occur. For example, if exposed to these leaking gases for prolonged periods of time employees may be at risk of frostbite, chemical burns and even organ damage. However, it is not just the gases that are a concern as extended periods of time in cold environments, without the suitable protective clothing, can lead to arthritis, rheumatism, bronchitis and more seriously, hypothermia.

Poor ventilation is another concern and potential hazard. Any gases or contaminants in the atmosphere, will not easily escape and could be dangerous for those working in the room.

These dangers are often the result of poorly maintained equipment, leading to a gas leak, or from human error and employees becoming trapped within the affected space.

The regulation of refrigeration

In early 2020 the European Commission brought in F-gas regulations as part of a policy to combat climate change. The plan is to phase down the CO2 equivalent emissions from Hydrofluorocarbons (HFCs) by 79% (relative to 2015) by 2030. As the UK has now left the EU, the UK government has specified that businesses will have to apply for a new GB HFC quota while they follow the same CO2 phase down as was specified by the European Commission.

As refrigeration manufacturers commit to developing environmentally compliant products without compromising on performance they are also seeking to address health and safety concerns as are their customers.

These regulations place a greater focus on carrying out regular gas leak checks on refrigeration systems. Operators of stationary refrigeration equipment, heat pumps, air conditioners and refrigeration units of refrigerated trucks and trailers that contain F-gases in quantities of 5 tonnes CO2 equivalent, or more, must ensure that equipment is routinely monitored. For apparatus without gas leak detection installed, the period between mandatory gas leak checks lessens. 

While most legislation seems to focus more on the environment there are mandatory regulations to protect employees specifically, such as the Workplace (Health, Safety and Welfare) Regulations 1992.

A technology led future

The key to limiting exposure to F-gas and risk of injury lies in the early detection of any gas release. The latest generation of sophisticated yet compact gas leak detectors can pinpoint a comprehensive range of refrigerants including Hydrofluorocarbons (HFCs), Chlorofluorocarbons (CFCs) and Hydrochlorofluorocarbons (HCFCs). This ensures not only a company’s workforce remains safe but also the environment.

It is worth considering that a small continuous leak, left unrepaired for three months, could use an extra 10kW in electricity – equivalent to approximately £1,400 in energy bills – once the leak becomes critical. This is why some leading detection systems on the market have a proven return-on-investment of just two years, and that is without taking into consideration the cost of repairs to an existing faulty system.

Refrigerant gas leaks are the foremost contributor to energy loss in modern HVAC stores. When a leak occurs, an HVAC system or cold store needs to work harder to maintain the equipment’s cooling or heating capacity, using more energy than normal, leading to a potentially large rise in electricity bills. 

As well as leak detectors, sophisticated refrigerant sensors equipment is available with signalling alarms, LED lights that indicate the presence and status of each sensor and also audio/visual alarms to alert staff of trapped personnel. 

A gas detection system will help ensure that leaks are quickly identified and repaired at the first opportunity. This minimises the risk to the health and safety of employees, complies with the requirements of the EU F-Gas Regulations, supports the DSEAR legislation and can save businesses money. 

In an age where so many businesses are being made accountable for general health, safety and environmental concerns it makes sense to invest in robust gas detection and alert systems to help manage ongoing risk, maintain compliance and maintain a strong positive reputation.

Sustainability competences and environmental awareness is a priority in many organisations now. 

Integrating health and safety into sustainability provides an opportunity to better protect workers, improve productivity and achieve a truly sustainable organisation. In short, sustainability looks to protect our natural environment, human and ecological health, while driving innovation for your business.

Shaun Evers is managing director of Stonegate Instruments. For more information, visit www.stonegate-instruments.com

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Rent or buy? 15/07/2021

Richard Ryan explores the case for renting over buying safety equipment.

INVESTMENT IN safety equipment for businesses, particularly those operating in more hazardous environments, is an essential expenditure to secure both employee and corporate wellbeing.

Here we explore the economic and operational considerations involved in hiring rather than purchasing corporate safety gear. This is particularly important as more of the UK workforce start heading back to work facilities following the lifting of Covid-restrictions.

Economics

Historically safety equipment, such as gas detectors and fire safety equipment, has been purchased outright, with businesses owning and storing safety kit on their own premises, and managing tasks such as the maintenance and calibration of safety equipment. 

However, many businesses take a different approach when it comes to other key equipment. Take company vehicles for example: most companies now lease vehicles on short-term basis, or they may have used asset finance to acquire large ticket items like production lines, recognising the cash flow benefits of doing so.

As with leasing vehicles, using hiring rather than buying has a range of economic benefits, namely that it gives more control over cashflow, particularly in times of business uncertainty, and preserves working capital. This is particularly important at a time when greater flexibility and access to cash is likely to have significance. While an individual gas detector may cost £25,000 rather than a seven-figure sum for plant and equipment, if you need multiple detectors the cost will soon add up to a point where it is significant to company cash flow.

So instead of raising capital to buy safety equipment every few years, an option open to UK businesses could be to use a rental service.

Considerable innovation has taken place in the space over recent years. ‘Rental robots’ - an automated warehouse for safety equipment is one such example. It reliably supplies registered users with the correct safety technology from its shelves, near the place of use, perhaps within a large plant or an industrial area, offering 24/7 availability, and clear tracking of all assets. This saves on both time, cost and resources while providing complete transparency and accountability.

The equipment in the rental robot is also updated regularly – the responsibility of doing so resting with the equipment hire company – ensuring the very latest, fully working technology on site exactly when it is needed.

Operational and Training Aspects

Another fundamental benefit of hiring vs buying – whether using a rental robot service or simply hiring the kit for a specific project or period – is that while a company’s own equipment will date, using rental equipment provides access to the latest models and means that it is also often possible to access higher specification kit.

An additional benefit is that newer equipment is often less complex and easier to use, dramatically reducing training requirements and allowing staff to get up to speed quickly as training can be carried out easily and swiftly online.

Some may question how accessible rental equipment is if you need an item at short notice. After all, you are relying on a third party to supply essential equipment rather simply going to your own storeroom. However, particularly when hiring from a safety manufacturer, access to the equipment is almost immediate. With many companies holding considerable fleets of equipment available for rent, delivery can often be much faster – in some cases 24 hours – than if a company purchased the same product outright. While, if you use the rental robot service, you’re likely to have ready access to most items. So, by accessing safety equipment to meet business needs, renting allows companies in the sector to be more flexible and responsive to their safety needs.

Maintenance

When it comes to maintenance, calibration and testing of equipment, this can be very labour intensive, taking up valuable employee time. Maintenance can also be very costly once the warranty has expired.

Rented equipment, such as gas detectors or breathing apparatus, means that devices arrive fully serviced and calibrated to ensure accurate readings and performance, in other words, ready to be used immediately. As a result, employees can focus on their core role, rather than getting involved in the distraction of maintenance.

So when you next need to replace your safety equipment, whether hydrogen detection devices within science parks, or fire and escape equipment in heavy industry, it is worth weighing up the options. 

Richard Ryan is marketing manager, Dräger Safety UK, and Dräger Hire. For more information, visit www.draeger.com/en_uk

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The forgotten risk to safety 29/03/2021

EMPLOYERS ARE still responsible for the health and safety of their workers while they work from home, which is particularly relevant as many still do so due to the pandemic. Charlotte Dowson looks at their legal responsibilities.

Just over a year ago, businesses up and down the country hastily downed tools as the lockdown came into effect and working from home was actively encouraged. For many businesses, this meant a scramble to ensure employees had the right equipment to do their job from home, as well as assessing privacy risks, testing technology infrastructures and getting to grips with Zoom.

By law, employers remain responsible for their staff’s health and safety at work, even if that work is taking place from home. This means that risk assessments should be carried out to ensure the employee’s safety.

With social distancing, these risk assessments can be carried out virtually or self-assessed by employees, and should consider physical and mental health and the impact of working from home. For example, the Health and Safety Executive recommends employees using laptops or other display screen equipment should be advised to take regular breaks, change position, get up and stretch and change focus and rest eyes to prevent eye strain or fatigue. For those employees with specialist needs, the employer should think about providing dedicated equipment, such as ergonomic chairs or height-adjustable desks. 

However, with the circumstances of the lockdown and enforced working from home for many, employers have sometimes neglected these important risk assessments – especially as many hoped the arrangements would only have to be for a few months, rather than a year and counting. As a result, risks have been missed. The charity Versus Arthritis found that 35 per cent of office workers received no equipment, support, or advice from their employer on home working and four in five who are homeworking as a result of lockdown had developed some form of musculoskeletal pain. 89% of those suffering with back, shoulder or neck pain have not told their employer about it and the charity pointed to nervousness over job security and uncertainty over employment rights as a reason behind the lack of conversations about this issue.

Employees that are working from home should ensure that their desk chair, monitor, keyboard and mouse are set up ergonomically correctly. If they haven’t had an assessment of their work station they should request one from their employer. 

It’s not just physical injury which employers and employees need to be mindful of, but mental wellbeing too. Both bosses and their staff should be making sure they’re regularly talking about stresses and strains as a result of working from home. Employers need to make sure they’re following the law on working hours too – which is harder to monitor with everyone based remotely. Domestic abuse has also sadly risen over the past year and again, employers need to be aware of this issue, fulfil their legal duty of care and ensure their employees are properly supported. ACAS recommends arranging code words and alternative places of work if home isn’t safe, for example. 

If it was found that an employee had been injured while homeworking as a result of an employer’s negligence, a claim could be made. This could be due to faulty equipment, but it could also be if a repetitive strain injury is sustained for instance and it could be proved that this was due to a lack of proper training from the employer.

Whilst it could be difficult to make a claim against an employer concerning injuries sustained while working from home, especially with the unusual circumstances of the pandemic, it is not impossible and both employees and employers need to be aware of the risks and their responsibilities. 

Working from home is likely to be a lasting legacy of the pandemic. Recent figures from the Office of National Statistics found that 29 per cent of working adults will continue to undertake their jobs from home more often in the future. Both employers and employees need to be aware of the potential risks to health this poses, and take action to keep safe.

Charlotte Dowson is a senior solicitor at Bolt Burdon Kemp. For more information, visit www.boltburdonkemp.co.uk

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Avoidable cases of negligence that caused harm 16/03/2021

WORRYING ABOUT damaging our health at work should be the least of anyone’s problems. When going to a place of work, we should be guaranteed safety regardless of the situation. However, in cases of negligence, employers can fail to properly protect their employees. Here, Lucy Victoria Desai looks at companies that failed to protect their employees.

Marks and Spencer’s duty of care failure

In 2011, major multinational retailer Marks and Spencer was faced with a £1m fine for exposing customers and employees to asbestos in Reading and Bournemouth stores during refurbishments. The judge accused the retailer of choosing profit over health and safety and neglecting to ensure a safe environment.

The UK’s asbestos industry ended on 24th August 1999 after being used heavily from the 1950s to 80s. Over 20 years on, we’re starting to see the delayed latency period taking effect as asbestos deaths have peaked over the last year or so. 

Although asbestos was banned in the UK two decades ago, the dangerous carcinogen lingers. It is the leading cause of occupational death, with 5,500 deaths caused last year. A new report revealed that there are an estimated six million tons remaining inside around 1.5 million buildings. Some of these buildings include schools and hospitals built before 24th August 1999.

Negligence like this can be more costly than conducting an asbestos audit. It can tarnish an organisation’s reputation by failing to provide a duty of care. If you’re a duty holder and are unsure of the risk in your building, find out more about asbestos survey types.

Amazon’s failure to protect

People working for Amazon have faced significant health and safety risks during the COVID-19 pandemic. According to a report by Amnesty International that investigated the treatment of employees across the UK, France, Poland, and the US, surveillance technologies have been used to track workers and failed to act on important health and safety issues.

In October last year, Amazon commented that 19,816 of its workers in the US had been infected with COVID-19 since March. Amazon has been faced with backlash from employees, unions, and politicians for risking employees’ lives. The company was hit with a lawsuit after a former employee accused Amazon of failing to provide personal protective equipment (PPE) to Black and Latina workers in New York City.

Employers are responsible for carrying out an assessment of the risk of COVID-19 transmitting to others in the workplace. Suitable controls must be put in place to reduce the likelihood of transmission taking place. In the UK, employers could be at risk of prosecution and potential litigation.

Delphi Diesel Systems’ failure of risk assessment

A common theme in negligence appears to be a lack of risk assessment.

Last year, Delphi Diesel Systems was fined £1m and ordered to pay £10k in costs after two employees were severely burnt in an explosion while cleaning a distillation tank.

The vapour of a flammable chemical used to clean the distillation tank ignited and caused an explosion. Both of the employees suffered injuries, with one employee unable to return to work for over two months.

An investigation by the Health and Safety Executive (HSE) reported that the incident occurred because a risk assessment wasn’t carried out before cleaning the distillation tank. There was also no planning for the use of the flammable chemical which ultimately caused the explosion. This incident could have been avoided if a risk assessment was carried out and employees were given a proper plan.

Often, accidents at work occur due to negligence. With proper risk assessment carried out, lives can be saved and pain prevented.

Lucy Victoria Desai is a copywriter at Asbestos Audit, which provides asbestos surveying, sampling, and removal across the North of England and Scotland. For more information, visit www.asbestosaudit.co

Sources

https://techcrunch.com/2020/11/12/amazon-faces-lawsuit-alleging-failure-to-provide-ppe-to-workers-during-pandemic/

https://www.managementtoday.co.uk/employees-sue-catch-covid-work/leadership-lessons/article/1696634

https://www.amnesty.org/en/latest/news/2020/11/black-friday-rush-must-not-cost-amazon-workers-their-health-and-safety/

https://www.bbc.co.uk/news/uk-england-berkshire-15081278

https://www.bbc.co.uk/news/business-54381928

https://www.stroudnewsandjournal.co.uk/news/17795288.delphi-stonehouse-fined-1m-two-workers-burnt-explosion/#:~:text=Delphi%20in%20Stonehouse%20fined%20%C2%A31m%20after%20two%20workers%20burnt%20in%20explosion,-Delphi%20Diesel%20Systems&text=A%20Stonehouse%20company%20has%20been,while%20cleaning%20a%20distillation%20tank.

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Cognitive bias and defending health and safety investigations 15/02/2021

MUCH IS now understood about cognitive bias and the implications for decision-making. Unfortunately, that understanding is rarely applied in the criminal justice process, says Tom McNeill.

The Health and Safety Executive (‘HSE’) is more advanced than some investigating authorities in that it recognises and even provides some limited guidance on the issue. Their guidance ‘Investigating accidents and incidents’ (aimed principally at organisations but also reflective of HSE practices) provides: “The investigation should be thorough and structured to avoid bias and leaping to conclusions. Don’t assume you know the answer and start finding solutions before you complete the investigation. A good investigation involves a systematic and structured approach.” 

But how far does a structured investigation go in combatting cognitive bias?

Health and safety investigations are particularly susceptible to bias because they are frequently more subjective and complex than other criminal investigations. The fundamental question is usually ‘why’ (rather than for example ‘who’); and the ‘why’ concerns the behaviour of organisations and not merely individuals. As Daniel Kahneman explained in his brilliant book, Thinking, Fast and Slow, the brain is a machine for jumping to conclusions; and while difficult problems are by their nature hard to solve, the brain is no less inclined to use cognitive shortcuts to ‘solve’ them. Indeed, complex problems may produce additional shortcuts (such as substituting a simpler question to the one being asked).

Particular problems arise when emotions are involved, such as in relation to policy preferences. Kahneman writes: “Your political preference determines the arguments that you find compelling. If you like the current health policy, you believe its benefits are substantial and its costs more manageable than the costs of alternatives…Your emotional attitude to such things as irradiated food, red meat, nuclear power, tattoos, or motorcycles drives your beliefs about their benefits and their risks. If you dislike any of these things, you probably believe that its risks are high and its benefits negligible…[A] search for information and arguments is mostly constrained to information that is consistent with existing beliefs, not with an intention to examine them.”

It is, therefore, instructive that the HSE ‘Investigating accidents and incidents’ guidance provides: “Investigations that conclude that operator error was the sole cause are rarely acceptable. Underpinning the ‘human error’ there will be a number of underlying causes that created the environment in which human errors were inevitable. For example, inadequate training and supervision, poor equipment design, lack of management commitment, poor attitude to health and safety…The root causes of adverse events are almost inevitably management, organisational or planning failures.”

If the guidance should be understood to mean ‘Do not assume that an individual is to blame, assume that an organisation is’, that at least would be consistent with how health and safety cases are usually investigated and prosecuted. In any event, it seems hardly the recipe for an open-minded and unbiased search for what went wrong.

Fortunately, health and safety cases do not often result in the dramatic miscarriages of justice where an entirely innocent person is convicted, such as might happen in a murder enquiry (when detectives pursue a suspect based on a hunch to the exclusion of all evidence to the contrary). However, that does not mean that blame cannot be allocated unfairly. In addition to the commonplace where employees recklessly breach established safe systems of work but only their employers are prosecuted, there are not uncommonly cases where more than one organisation has breached its very onerous duties under the Health and Safety at Work etc. Act 1974 to similar degrees but where one organisation avoids prosecution altogether. 

What causes such differing outcomes? There may be myriad reasons, not all of them irrational, and these may differ from one case to the next. A constant however is that where investigators have formed a view about your organisation, it is very difficult to change that view. As with the blinkered murder detective, evidence will be searched for and interpreted to confirm that view (‘confirmation bias’). Once a decision to prosecute is made, even if it can be proved that the investigating authority’s entire understanding of what happened was wrong, they may move from one theory to another without reversing that decision or even reducing the seriousness of the breaches alleged. 

Investigations gain momentum and the longer they go unchecked the less likely they are to change direction. Accordingly, organisations should defend their position from the outset. They will be required to respond to information requests. They may be required to respond to an enforcement notice. They will have opportunities to instruct expert witnesses. In due course, there will be an invitation to an interview under caution, and opportunity to make representations before charge. In short, there will be opportunities for organisations to persuade to their view of what went wrong and why at a time when it is most likely to shape the view of investigators. 

If there is a decision to prosecute your organisation, ‘hindsight bias’ poses particular difficulties. This is where knowledge of the outcome causes people to overestimate the likelihood of past events. As Kahneman puts it with comic understatement: “When an unpredictable event occurs, we immediately adjust our view of the world to accommodate the surprise.” 

There are numerous studies on hindsight bias. Kahneman cited a study of students predicting the likelihood of various potential outcomes of President Nixon’s visits to China and Russia in 1972: “The results were clear. If an event had actually occurred, people exaggerated the probability that they had assigned to it earlier. If the possible event had not come to pass, the participants erroneously recalled that they had always considered it unlikely.” In addition, “Further experiments showed that people were driven to overstate the accuracy not only of their original predictions but also of those made by others.” In summary: “The tendency to revise the history of one’s beliefs in light of what actually happened produces a robust cognitive illusion.” 

Hindsight bias can be manifest throughout the investigation stage and impact a charging decision; but it is at court that its impact is most felt. The sentencing guideline for health and safety offences requires an assessment of harm risked and the likelihood of harm, upon which all else follows. The first question a judge must determine when sentencing an organisation for corporate manslaughter is ‘How foreseeable was serious injury?’ The potential for a “robust cognitive illusion” to adversely impact the sentencing exercise is plain. For large organisations, that impact could be hundreds of thousands or millions of pounds.

Sentencing judges are no more immune to hindsight bias than investigators; and have been known for example to rationalise their way around decades of safe operation to find an ‘accident waiting to happen’. Hindsight bias goes hand-in-hand with outcome bias, where an evaluation of pre-accident systems is coloured by the fact that they did not prevent the accident. Combine these factors with a predisposition to blame organisations and not individuals (on the assumption that it is almost inevitable that root causes are management, organisational or planning failures), and it can explain why organisations even with reasonable health and safety systems risk being aggressively prosecuted following a serious incident. 

The challenge for those defending health and safety investigations is to persuade and counterbalance with evidence, with a view to investigations and prosecutions not being biased. But be warned: like negotiating Brexit, in serious cases this is usually a process, not an event.

Tom McNeill is senior associate at BCL Solicitors LLP. For more information, visit www.bcl.com

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Time to face facts 15/12/2020

Carl Waring looks at five accident at work facts that every employer should know.

There’s nothing worse than reading an article that starts by blinding you with facts, figures and statistics. We apologise, therefore, for the fact that this one does just that. There are some occasions where the sheer scale of a problem, dictates that the bad news comes at the start.

Take the annual HSE Health and Safety Statistics, for instance. Each year a report is produced by the HSE that contains a voluminous amount of information on the numbers and types of accidents at work, industrial disease and work-related ill-health.

Some of the key figures revealed in the report are mind-blowing. For instance, the last produced HSE figures for 2019/2020 tell us that during that year:

  • 693,000 workers suffered an injury at work
  • 559,000 workers suffered new cases of ill health which they believed to have been caused or exacerbated by their work
  • 38.8 million working days were lost due to workplace injury or work-related illness
  • The total costs of workplace injuries were said to be £16.2 billion, split as to £9.6 billion borne by individuals, £3.2 billion being employers costs and £3.5 billion representing the cost to the country.

Quite startling numbers, unless you read the annual HSE reports every year, in which case you will be familiar with accident figures of such magnitude.

Preventing accidents at work happening in large numbers, cannot be beyond the wit of all concerned. After all, in each case, they are at such a high level because of someone being negligent, or careless, if you prefer. That ‘someone’ who was the cause of the accident, might be an employer, it could be the worker who got injured, or it could be a colleague of the injured worker. 

What’s the best way to start trying to reduce the number of accidents at work? 

One place to start would be to get back to basics, with each individual employer leading the way. After all, if an accident at work happens as a result of an employer’s negligence then not only does the business face an accident at work compensation claim from the injured worker, it could also find itself on the receiving end of an HSE prosecution too.

When trying to find a solution to a problem, we can all sometimes be guilty of over-complicating things, when what we really need to do is keep it simple.  With that in mind here are five facts that we think every employer should know and use as a basis of looking at ways to reduce the level of workplace accidents in their own business.

1.      Employers owe a duty of care to all their employees.

Employers have a common law duty to take reasonable care of the health and safety of their employees’ (during the course of their employment). That duty has been defined as requiring an employer to provide:

  • competent staff
  • adequate equipment and plant
  • a proper system of work with adequate supervision 
  • a safe place of work

The common law duty of care is supplemented by acts of parliament, such as the Health and Safety at Work Act 1974 and a plethora of others.

Employers should focus on:

  • maintaining a workplace that is staffed by employees who are both capable of doing the work that they are employed to do and of doing it in a manner that does not endanger the health of their co-workers 
  • ensuring that they provide their employees with adequate equipment and plant. By ‘plant’ we are not just referring to heavy machinery. The definition also includes such items, for instance, as a workstation in an office. 
  • Providing a proper system of work, i.e., one that has been put together after identifying potential hazards, to produce a formal procedure that eliminates the risks associated with those hazards. In other words, one that ensures that the job gets done safely. Supervision and monitoring of the system of work will ensure compliance with that safe system.
  • Keeping a safe and healthy environment for employees to work in. This entails ensuring that:
    • the workplace buildings are in good repair,
    • faulty equipment is repaired or replaced,
    • floors are kept free from hazards,
    • safety gates and fences are in place,
    • the lighting in the building is satisfactory,
    • cleanliness and hygiene facilities are adequately maintained, and
    • the workspace is comfortable in terms of heating and ventilation.

Employers who read this, doubtless nodded an affirmatory, ‘yes, we do that’, as they went through the points above. Yet, every single case of an accident at work that was the fault of an employer, will have been caused by a breach of duty of care, that originated from failing to take one or more of the precautionary or preventative measures, we have just outlined.

2.   Slips, trips and fall accidents accounted for 29 % of all non-fatal accidents at work last year, according to the 2019/2020 HSE stats.

If ever there was a pressing reason for employers to look again at the four components that define an employer’s duty of care, then the fact that over 200,000 workers got injured from slips, trips or fatal accidents at work last year, should be the catalyst for doing so. 

The incidence of the most common type of workplace accident; slips, trips and falls, could be significantly reduced by employers;

  •  recruiting competent staff and maintaining that competence by providing ongoing training,

  • making sure that employees have adequate plant and equipment,

  • operating and enforcing a safe system of work, and 

  • providing safe places of work

3.   The concept of vicarious liability

An oft-forgotten fact is that as well as employers owing a duty of care to their employees, workers also owe a duty of care to their employer and their co-workers. This duty is imposed by the Health and Safety at Work Act(1974) (HASAW).

The duty extends to co-operating with an employer to enable it to fulfil its legal responsibilities in respect of health and safety regulations.

What if despite all the best efforts of a diligent employer, his/her efforts are undermined by the negligent act of one employee, that causes injury to another? 

Examples

A forklift truck driver injures a colleague who is walking along the factory floor, by driving into him, because the driver’s view was obstructed by the load he was carrying. 

An employee spills liquid onto a hard floor and then fails to either get it cleaned up or to notify anyone about the hazard, with the result that another employee slips on the wet floor and suffers an injury.

Vicarious liability means that in each of those cases, the employer could be held responsible for the actions of their negligent employee.

Suppose the injured person decided to make a personal injury claim? In that case, they could bring it against the employer on the basis of vicarious liability, in the knowledge that any compensation awarded, would be met by the employer’s liability insurance policy.

4.   The effect of the Enterprise and Regulatory Reform Act 2013

S. 69 of The Enterprise and Regulatory Reform Act 2013 amended s47 of the Health and Safety at Work Act 1974 and in doing so, removed any possibility of civil liability arising from a breach of statutory duty in the case of accidents at work taking place, after 1st October 2013.

Employers had long argued that the doctrine of strict liability produced some very unfair consequences. Sometimes employers found themselves having to pay out compensation for workplace accidents that were ‘freak accidents’ that the employer could do nothing to prevent. 

These were cases where, whilst the employer had not been negligent, they had been in breach of the HASAW, e.g., a failure to keep maintenance records up to date. In such cases, as a result of the breach of statutory duty, strict liability applied. The employer was held liable for the accident, without any need to prove that they had been negligent.

The introduction of the Enterprise Act has meant that for accidents happening after 2013, the doctrine of strict liability no longer applies to any civil case brought by an injured employee, against their employer. Instead, the employee has to prove that the employer was negligent.

Employers are cautioned against thinking that the Enterprise Act is their saviour in every case where they have been in breach of a statutory duty (that is a duty imposed by an act of parliament).

Whilst a breach of statutory duty might no longer give rise to an employer being held strictly liable for an accident at work claim brought by his employee, there are still two other factors to take into account:

  • Breach of a statutory duty could still see an employer prosecuted for that breach in the criminal courts
  • In a civil workplace accident claim, an experienced accident at work solicitor will be quick to seize upon the fact that an employer has been found guilty of a breach of statutory duty. It is most likely that he or she will ask the civil court to take the breach of statutory duty into account as evidence of the employer’s negligence.

5.   Training is the key

Creating robust health and safety policies after conducting rigorous risk assessments, providing employees with the right equipment, recording accidents properly and inspecting and maintaining equipment, all play a significant part in keeping, places of work safe and employees free from harm. 

However, to paraphrase former Prime Minister, Tony Blair, we’d suggest that the three main priorities for any employer aiming to ensure that accidents in the workplace are kept to a minimum, should be:

“Education, education, education” (or “training, training, training”)

For whilst employers can buy the best equipment possible for their workforce, have carried out the most in-depth risk assessments and have the best health and safety policies possible, if employees do not receive any, enough or adequate staff training, the numbers of preventable accidents at work, will remain at consistently high levels. So too will all the associated costs. 

Employers via their insurers will continue to pay out millions of pounds in accident at work compensation. Workers will continue getting hurt at the very place they go to earn a living.

Carl Waring is a solicitor at Mooneerams, The Personal Injury Solicitors in South Wales. For more information, visit www.mooneerams.com


 

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Six steps to improve mental well-being in the workplace 08/10/2020

AWARENESS OF the importance of good mental health at work is growing, but action is also important; CHAS shares some steps for improving mental well-being in the workplace:

1. Produce, implement and promote a mental health plan

According to Thriving at Work: the Stevenson/Farmer review of mental health and employers published in 2017 https://www.gov.uk/government/publications/thriving-at-work-a-review-of-mental-health-and-employers all employers, regardless of size or industry should create, implement and communicate a mental health plan.

Formulating a plan can help to demonstrate your commitment to supporting workers’ mental health and enable you to continually review your approach to ensure it’s up-to-date and accounts for changing work conditions - such as those brought about by COVID-19.  

For information on what to include in your mental health plan, as well as details of the other core standards employers should follow to effectively manage mental health, see the HSE’s management standards approach workbook, Tackling work-related stress https://www.hse.gov.uk/pubns/wbk01.pdf and Mind’s, guide to implementing mental health standards: https://www.mind.org.uk/media-a/4659/how-to-implement-the-thriving-at-work-mental-health-standards-final-guide-online.pdf

2. Encourage staff to complete a Wellness Action Plan (WAP)

Wellness Action Plans (WAPs) are gaining popularity as a tool individuals can use to manage their mental health and become more resilient regardless of whether they have a mental health problem. 

Workplace WAPs are an adaptation of the Wellness Recovery Action Plan (WRAP) system created by mental health recovery advocate, Mary Ellen Copeland, which focuses on mastery of five key principals - hope, personal responsibility, education, self-advocacy and support.

When shared with a manager, a Wellness Action Plan (WAP) can help foster ongoing discussion over what keeps an employee well at work and when and why they might become unwell.

An example WAP template is available from the mental health charity MIND here: https://www.mind.org.uk/workplace/mental-health-at-work/taking-care-of-your-staff/employer-resources/wellness-action-plan-download/ 

3. Consider offering an Employee Assistance Programme 

An Employee Assistance Programme (EAP) is a benefit programme offered by some employers. It can help support employees dealing with personal issues that might impact their work by providing access to counselling and referral services.

Those without an EAP who work in construction in the UK and Ireland can make use of the Construction Industry Helpline:  www.constructionindustryhelpline.com

4. Stay social

The necessity to find new ways of working during the Coronavirus lockdown shone a light on the fact that we are social creatures at heart. 

Many businesses increased their use of online communication tools such as Slack, Zoom and Microsoft Teams during the lockdown period, not just to keep their businesses operational, but also to engage their staff and stave off feelings of social isolation through events such as quizzes. 

Social engagement tools designed to unite the workplace are also growing in popularity. Yammer, part of Office 365, for example enables everyone to share everything from company initiatives to personal achievements.

5Invest in mental health first aiders as well as physical first aiders

According to HSE Guidance, employers might want to consider covering Mental Health First Aid training in addition to First Aid at Work training www.hse.gov.uk/firstaid/needs-assessment.htm

Mental Health First Aid involves spotting the signs and symptoms of common mental health issues, providing non-judgemental support and reassurance, and guiding a person to seek professional support.

Buddy and mentoring systems can also provide an opportunity for employees to support one another’s mental health. 

6. Prioritise mental health throughout your supply chain

Look for evidence that your supply chain takes mental health as seriously as you do by checking that they are accredited by an organisation such as CHAS, or in the case of the construction industry, that they have been assessed to the industry’s Common Assessment Standard. This will give you confidence they have the processes in place to manage and promote mental well-being within their organisations. 

To find out more about how to become a CHAS Client free of charge which includes instant access to CHAS’s database of pre-qualified, accredited contractors, see https://www.chas.co.uk/clients/

To find out more about how to become an accredited CHAS contractor, see www.chas.co.uk/contractors/

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Top tips for returning to the workplace 16/09/2020

COUNTRIES AROUND the world are at different stages of their coronavirus response. Many are still in the grip of lockdown, but some are starting to look at how to re-emerge from it.  Ius Laboris, the world’s largest HR and employment law firm alliance has listed some general tips  to help manage the process of getting staff safely back to the workplace.

Health assessment

Check for COVID-19 symptoms before travelling to work (e.g. a high temperature of 37.5C or more or a continuous cough). If you have symptoms (however mild), you should not travel to work and you should self-isolate. If a member of your household or someone you have been in proximity with develops any of the COVID-19 symptoms, you should also not travel to work and should self-isolate. If you are unable to attend work, HR and your line manager should be contacted. If you are well enough to work and your job allows it, you should work from home.

Attending meetings

You should avoid arranging meetings in small rooms or with a large number of people. During meetings, please keep a distance from others and wash your hands or use a hand sanitiser before and after attending meetings. Avoid meetings with clients or customers, unless business critical and comply with social distancing rules (i.e. no physical greetings and the requisite distancing), if they do take place.

Office area management

Ensure that you wash your hands upon your arrival at work and after visiting any other places. Carry a hand sanitiser and use it throughout the day. Avoid touching your face (particularly your eyes, nose and mouth) as much as possible. Catch coughs and sneezes with a disposable tissue and wash your hands or use a hand sanitiser afterwards.

Avoid the common areas of the office as much as possible. When using office equipment or the kitchen, wipe the surfaces with the anti-bacterial wipes. Wash your hands or use a hand sanitiser after touching common touch-points, shared equipment and before you touch food. Follow social distancing rules when in the office. Avoid face-to-face work and avoid sitting at a desk adjacent to a colleague (where possible). Try to minimise handling of physical documents and paperwork as much as possible.

Travelling to and from work

If you can, avoid public transport and car shares or taxis. Where possible, try to walk or 4 cycle for all or part of your journey. If you can’t avoid public transport, we will discuss your working hours with you and try to avoid you needing to travel during peak time. When on public transport, you should wear a face mask and protective gloves. You should try to keep social distance from other passengers, e.g. by avoiding sitting next to or standing close to other passengers. Carry a hand sanitiser and use it as often as needed (especially before touching your face). Wash your hands before and after your journey. 

Follow instructions 

Instructions may be given to help everyone reduce the amount of contact with others. This might involve instructing staff to use a particular entrance, stairwell or lift, to arrive and leave work at a particular time or to use hand sanitiser before entering the building. 

Note: these tips are not based on the rules of any particular country - and specific advice should be taken locally about those - but do cover some general themes. 

For more information, contact www.iuslaboris.com

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