Employment law places fresh onus on the role of risk
assessors in the workplace, but can references be relied on to find the right
experience and skills for the job? By Linda
Goldman and Joan Lewis
The Health and Safety at Work Act (HSWA) Newsletter1 is constantly brimming
with reports about accidents which have arisen through breaches of HSWA and
subsidiary regulations. The reports skim the tip of the iceberg of successful
prosecutions, covering a few of the most serious incidents which result in
convictions for companies or individuals found guilty of breaches of the
legislation.
It would appear many incidents could have been avoided had a suitable risk assessment
been carried out. On a spot-check of 37 cases reported in the newsletter
between January and May 2000, however, only three cases mention failure to
assess for risk under the Management of Health and Safety at Work Regulations
1992, of which only two refer to convictions for actual failure to assess.
The new Management of Health and Safety at Work Regulations 1999 came into
force on 29 December 19992, accompanied by a revised Approved Code of Practice
(ACOP)3. Employers are now advised wherever possible to appoint a competent
person from within their workforce to advise on health and safety in the
workplace 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 to
existing employees. This places a greater burden on the OH team which may need
supplementary training in order to ensure competence.
Competence in new employees
General competence is a topical subject at a time when the medical
profession as a whole is considering revalidation of qualifications.
Successful revalidation would be a reasonable way of relying on established
competence in a given field. Until that happens, the profession remains reliant
on proven track record which, for a new employee, means a good reference.
References for OH professionals are of crucial importance in securing and
maintaining 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 references
before offering or appointing a person to a job. There are then potential
problems if a job offer is made subject to references.
Third parties normally give references in confidence and revealing the
nature of them to a prospective employee can cause problems of breaches of that
confidence. Caution should be adopted before using a minimal written style
supplemented by verbal information. Any system that includes covert references
should come under scrutiny, particularly if discrimination issues could be
raised.
Whether covert or overt, over-optimistic references can cause their own
problems when a manifestly unsuitable applicant is appointed. In health and
safety 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. An
unfavourable reference based on incorrect and/or detrimental information could
render both the donor and the employer, who would be vicariously liable,
subject to legal proceedings and liable for damages if harm has resulted from
their lack of care.
References in respect of capability to carry out risk assessments carry an
inherent requirement for their own assessment. Even if an employee was capable
of carrying out the necessary investigations and recommendations in a previous
job, it would be wise to assess their capabilities by practical tests rather
than rely on another organisation’s experience.
Perhaps the most common general references with which OH professionals are
involved relate to fitness and attendance. This should be restricted to
objective and factual information. In addition, checks should ensure compliance
with standards imposed by professional confidentiality standards, the Data
Protection Act, and discrimination legislation.
Cost of accidents
The issues involved in references are now sufficiently diverse, complex and
potentially costly to employers as to warrant their own review for risk
assessment purposes. After completing this most employers are revising or
developing a references policy to comply with current standards and to mitigate
their exposure to risk.
Even though failure to employ competent personnel has expensive
consequences, a report of the Environment Transport and Regional Affairs Select
Committee4 shows employers are still finding it cheaper to risk breaking the
law than pay for health and safety improvements. Further, the insignificant
number of convictions in important cases for breach of the requirement to
assess for risk could be indicative of the perception that too few workplace
injuries are investigated by the HSE.
Nevertheless, every case that leads to conviction has one or several persons
who could and should have carried out risk assessments or whose work in respect
of risk exposure was inadequate.
In either scenario, the question of competence arises in respect of future
employment of the culpable individuals. Provided that any reference containing
an opinion about their capability of carrying out the job that they were
employed to do is based on accurate and factual information, it will be
reasonable for adverse comment to be made.
Policy needed on references
Refusing to provide references to third parties may not remove exposure to
risk. There may be serious consequences if the employer refuses unreasonably to
provide any reference at all as is shown in Coote v Granada Hospitality. That
case, for which a tribunal awarded the applicant £175,000 in damages, reflects
an extreme effect of apparent management wish to have nothing more to do with
an employee who had involved them in litigation.
However, a reference could have been given in neutral terms in accordance
with 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’s
reference under the rules of the Data Protection Act 1998 if it is contained in
a document on file. The mere fact that a reference perceived as negative by the
employee has not prevented them from getting the new job does not necessarily
deter the individual from seeking redress.
Conversely, a new employer who takes a bad employee on the basis of an
untruthfully glowing reference can claim damages for negligent or even
fraudulent mis-statement. It is a question of taking the risk of the accuracy
of the reference and making an objective decision based on all the facts.
It is clear that employers need to have a policy on this increasingly
complicated subject. It can be made clear that the policy on the giving side is
for only the dates of employment and nature of the post held to be given while
seeking references for prospective employees will be in a standard format which
seeks factual information only prior to any conditional job offer being made.
References
1 Published by the British Safety Council: e-mail [email protected]
2 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 the
Select Committee, ISBN 01021 1700 4
Case Roundup
HSE v Special Steels, HSWA Newsletter, January 2000,
An employee was using a furnace charging machine to remove hot steel bars
from a furnace, to a table and then a storage pen. The latter operation
required 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 protectors
on the table to contain items. The court described the incident as having
revealed "a culture of lax management" in which an aggravating factor
was 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 and
safety of the company’s employees) and £5,000 under regulation 3(1) of
Management of Health and Safety at Work Regulations 1992 (failure to carry out
a 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 an
office block in Reading. He was using a bosun’s chair attached to a metal rig
which fell from a parapet. He had been trained to use a similar rig in 1989 but
had 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 caused
erosion of paint on the rig that had not been noted at annual inspections. The
company 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 in
Manchester on 10 October 1998 when a pile of iron railings, to be used for
fencing, fell on him.
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The managing company had opened the centre without carrying out appropriate
risk assessments under the Management of Health and Safety at Work Regulations
1992.Â
It was fined £100,000 plus £13,000 costs. The charge was brought under
section 3(1) of HSWA (failure to keep a workplace safe for non-employees).
