Hello and welcome to the Eighth issue of the Ryder Partnership Limited fortnightly newsletter The Alchemist, in which we will keep you up to date on all the latest developments in the world of health and safety.
METAL WORKING FLUIDS
The HSE are really pressing this one so if you do use metalworking fluids then you do really needs to get all of your ducks in a row.
HSE ebulletin – metal working inspections:
looking after your metal working fluid.
Issued: 21 November 2023
HSE will be inspecting manufacturing businesses that use metalworking fluids or ‘white water’ in their machining processes until March.
Not completing regular fluid quality checks is one of the common reasons that manufacturing companies, particularly smaller businesses, fail compliance.
RUGBY UNION HEADS TO COURT
On another note 300 former Rugby Union players are suing the Rugby Football Union for causing head injuries and brain damage
Dozens of England and Wales rugby union internationals are among more than 200 players taking the game’s governing authorities to the high court next month over the devastating effects of repetitive head injuries amid what their lawyer described as “an existential crisis” for the sport.
The former England hooker Steve Thompson and Michael Lipman, who played for England from 2004 to 2008, are among 234 bringing a claim against the Rugby Football Union, World Rugby and the Welsh Rugby Union in a class action.
The case began this summer, but a hearing on 1 December is likely to decide on which players should go forward as test cases after the players’ lawyers submitted 5,000 pages of medical records detailing brain injuries.
The claim involves 55 players including –
– 6 women from England,
– 77 from Wales,
– 8 from Scotland and
– 5 from Ireland.
Further claims involving professional football and rugby league players are also at early stages in the high court in cases being handled by the same judge, the senior master of the King’s Bench division, Jeremy Cook.
Richard Boardman, the lawyer leading the case, said:
“We believe there has been a systematic failure by the rugby governing bodies to protect players not just from concussions but also sub concussions. This is still a real and serious threat to the sport and unless immediate and substantial changes are introduced, current and future generations will end up with the same chronic traumatic encephalopathy (CTE) and other neurological impairments.”
Boardman said sub concussions were smaller knocks to the head that could happen more than 60 times in a game for a Flanker as they tackle, ruck and maul. These are not fouls but a core part of the sport, and many more occur in training.
Thompson, who won the World Cup with England in 2003 and was later diagnosed with early on set dementia and probable CTE, told the Guardian in 2020 that
“I can’t remember being there at all.”
The rugby authorities are yet to submit their defences, but the RFU, World Rugby and the WRU said:
“We remain saddened to hear the stories of former players who are struggling.
Despite court orders to do so, the players’ lawyers have yet to provide full details of the claims being made against us and therefore we cannot comment on the ongoing legal action, nor reach out to the players directly.
“We would want players involved to know that we listen, we care and continue to champion player welfare as the sport’s number one priority.
“Players and parents can have confidence that rugby is as safe as a contact sport can be. Rugby will always be led by the latest science when taking any action on player welfare.”
BACK TO THE HSE AGAIN !!
NEW STRESS MANAGEMENT TOOL
A “much needed” new online learning tool designed to prevent work-related stress has been launched.
Businesses are encouraged to sign-up to the free-to-use interactive tool, designed by the Health and Safety Executive’s (HSE) Working Minds campaign, to understand what they need to do to comply with the law.
The tool provides the simple and effective guidance employers need to take action to meet their legal duties and begin to understand how to include stress in their workplace risk assessments.
Created as part of HSE’s Working Minds campaign, which promotes good mental health in the workplace, the new tool is made up of six short modules.
These take employers through relatable, everyday scenarios, such as how to recognise the signs of stress in individuals and teams like –
- regular lateness to work,
- being withdrawn, and
- higher staff turnover.
Liz Goodwill, head of work-related stress policy at HSE, said:
“More than half of small and medium sized (SME) businesses recently visited by HSE knew they had a legal duty to assess the risk of work-related stress, but the number who actually did this was significantly lower. This new online tool will help employers understand the steps and actions necessary to help bridge this gap. It is a much needed solution.
“Lack of time, money and know-how are common reasons why businesses can struggle to prevent and proactively tackle the issue.
Now, they have a resource that provides free learning which is simple and engaging and does not take a huge amount of time to complete.
“Businesses will come away with an understanding of what the law requires of employers and what actions they need to take. It provides an opportunity for employers to refresh their existing knowledge and help drive the culture change that the Working Minds campaign is aiming to achieve. I encourage them to give it a go.”
This tool was launched on the 8th November.
ABC MODEL OF BEHAVIOURAL SAFETY.
We introduced the concept of behavioural health and safety in our last issue. Here we look at a particular concept within the philosophy that of the ABC Model of behaviour.
“But they’re a good employee,”
“They’re trained” or “They’ve done this before. Why would they do that?”
We’ve all had this frustrating moment in safety when people do things despite our best efforts to have them do otherwise.
If this sounds familiar, a technique called the “ABC analysis” may help you understand why undesired behaviours occur and how you can influence behaviours to get the performance you want from your workforce.
The ABC model allows us to understand what influences and controls behaviours.
It’s as simple as ABC:
Antecedents:
Factors that come before behaviours. They set the stage for a behaviours or prompt people to act in a certain way.
Behaviours:
An observable act – what people do or say.
Consequences:
What occurs after a behaviours and influences the likelihood of it in the future. Reinforcers increase the future likelihood of that behaviours; punishers decrease it.
To better understand antecedents and consequences, let’s take for example a situation in which a worker reaches into a machine to clear a jam without first locking and tagging out the equipment. Why would someone break this clear safety rule?
The worker has been trained, seen the standard operation procedures and been re-minded (antecedents for the desired behaviours), yet still did the at-risk behaviours.
First, we identify what might have prompted the worker to engage in this undesired behaviours.
In this case, the worker’s supervisor told him to hurry and get the equipment cleared, creating pressure on the worker. Also, he had done the same before and hadn’t been hurt. These antecedents might encourage the worker to take a shortcut.
Second, we analyse the consequences.
The worker completes the task on time. His supervisor is pleased that the equipment is up and running and says so without asking how the task was completed. In fact, the task itself was easier and quicker because the extra steps weren’t taken. This means the worker now can move on to other tasks and go home on time. Could he have gotten hurt? Yes, but in his mind it was unlikely because he’d done it many times before.
What actually controls behaviours?
Do antecedents or consequences control behaviours?
Let’s look at a situation in which a friend invites you to her favourite restaurant. At the restaurant you have great food, excellent service and a good time.
What is controlling whether you go back to the restaurant? Antecedents or consequences?
Will you go back because of your friend’s recommendation (antecedent) or because you had great food and service (consequence)?
Note that the question is “Will you go back?”
What if your experience (consequence) had been the opposite – dirty facilities, poor food and bad service?
Will you go back? No. The antecedent triggered our behaviours the first time, but it’s the consequence that controls the future behaviours.
There’s an important lesson here. Although antecedents are necessary, they aren’t sufficient. The real power for long-term performance is in the consequences.
Engage workers to fully understand what antecedents and consequences are affecting their behaviours. Once you do that, focus on the behaviours you want by building in the appropriate antecedents, removing obstacles that are getting in the way, and building in positive consequences for the behaviours.
It’s important to remember that behaviour is a direct result of its consequences.
As long as a behaviours “works” for a person, he or she will continue to do it.
To change the behaviours, you must change the consequences for it.
Interestingly, there is a paradox that exists in how organisations spend their time. Research shows that consequences have about four times more direct effect on behaviours than antecedents. Yet, most organisations place four times more emphasis on antecedents than on consequences.
We can all think of dozens of examples in which people did things despite our best efforts to have them do otherwise. When this happens, keep calm and remember your ABCs!
FUNFAIR TRAGEDY.
This article just goes to show that whatever walk of life or what ever business is in, if we fail to adhere to health and safety standards tragic results can ensue and although most of us have to ensure that we have LOLER Thorough Examinations in place in this case specific industry standards fail to be met.
An operations manager at a funfair company has been jailed for six months and disqualified as a director for five years after a three-year-old girl died on a Norfolk beach. The funfair company he was working for has been fined £20,000.
The inflatable trampoline Ava-May Littleboy had been playing on exploded, ejecting her high into the air.
Ava-May, from Somersham in Suffolk, had been taken by family and friends to the “Bounce About” attraction that had been set up on the beach at Gorleston-on-Sea in Norfolk, on July 1, 2018.
She and a nine-year-old girl were on the trampoline when the blast happened without warning. While the older child suffered minor injuries, Ava-May was thrown upwards – witnesses described her as being shot up between 20 and 40 feet, or the height of a house. She landed on the beach. In the process, she sustained fatal head injuries.
In a tribute, Ava-May’s mother said a family tradition is now to spend Ava-May’s birthday at her bench in the local park.
Johnsons Funfair Limited, trading as Bounce About, operated a number of bouncy castles, slides and other inflatables on the beach at Gorleston, and at another site on Great Yarmouth beach.
Great Yarmouth Borough Council worked with the Health and Safety Executive (HSE) on a joint prosecution. Charges were brought against Johnsons Funfair Limited and its operations manager, Curt Johnson, whose wife was sole owner and director of the company.
The investigation found that Curt Johnson, on behalf of the company, had imported the inflatable trampoline into the UK from China in 2017 and had put it into use without carrying out any of the required testing and certification to ensure it was safe to be used by the public.
An importer of such an item equipment must ensure that there has been a proper review of the design, verification that the item has been manufactured in accordance with the design, and a detailed test by a suitable expert on the item’s arrival in the UK. None of that had been done here.
In operational terms, there had been no proper risk assess mentor work procedure laid down, and the company used undertrained staff paid cash in hand, some of them too young to work without child work permits which were not sought and would not have been granted for work at such a fairground.
Crucially, the defendants allowed the company’s inflatables (which included a number of other inflatables besides the trampoline which exploded) to be operated despite not having, and not seeking, any operating instructions from the manufacturer, and without having their inflatables properly annually checked and certified by an independent expert under the ADIPS scheme
(a scheme for checks comparable to MoT checks for vehicles).
Johnsons Funfair Limited, of Swanston’s Road, Great Yarmouth, as importer and site operator, pleaded guilty to breaching Sections 6 (1A)(a) and 3 (1) of the Health and Safety at Work etc. Act 1974.
The company was fined £20,000 and ordered to pay £288,475.62 in costs.
Curt Johnson, of Swanston’s Road, Great Yarmouth, pleaded guilty to offences of having consented to or connived in each of the company’s two offences, or those being attributable to his neglect. Johnson was sentenced to six months in custody for each offence, to be served concurrently, and disqualified as a director for five years.
CONTROLLING BULLYING AT WORK
Rachael Maskell MP
We turn to the law to protect us and to provide a recourse to justice. If you have been a target of bullying behaviour, no such framework exists, unless you are able to identify that the detriment you have experienced is associated with a protected characteristic.
There are a few complex legal processes that individuals can draw on, but these are very difficult to prosecute and require the employee to leave their work before embarking on this precarious legal journey through constructive dismissal processes, only accessible after two years of employment, or a claim through the Protection from Harassment Act.
It is therefore widely recognised that there is a gap in legislation to protect workers from bullying.
The Bullying and Respect at Work Bill seeks to break the cycle of bullying at work through providing recourse to justice for those who have experienced bullying, while creating a framework for employers to institute a positive work environment, guarding against such misuses of power.
“For each, bullying has a serious cost; for many, lasting trauma.” – Rachael Maskell
For the first time it will establish a legal definition of bullying at work, currently found in the
ACAS code.
This Bill is needed as bullying is the second biggest issue that the TUC says that its members experience. Around 4.9 million people have experienced such detriment, which can be so severe that it leads to a complete breakdown in the mental health of a target of the abuse and loss of employment. Fifty-three percent of those that experience bullying simply do not report. Without proper processes to deal with this, reporting may just expose you or attract further detriment.
Employers estimate that workplace conflict costs UK businesses £28.5 billion a year. Seventeen million working days are lost due to work-related stress, depression or anxiety, much stemming from negative workplace behaviours, such as bullying at work.
Establish a Legal Definition.
The first step is to establish a legal definition of bullying at work. ACAS has refined its definition over time and has concluded that it does not have to be a repeated act:
“Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.”
Any definition would require a subjective test: what is its impact;
fettered by an objective test: of the behaviours being offensive, malicious, intimidating or humiliating.
Such tests, provide for a robust threshold by which to bring a claim.
Bullying can be by an individual or group; it can also be organisational, like deliberate procedural time delays in grievance management. It can be a frequent occurrence or a one-off act.
Fundamentally it springs from a power imbalance, positional (from a manager), psychological, or relational. It can be direct, or through a third party.
Fifty-three per cent of those that experience bullying simply do not report it.
It can be with intent or without, although remorse is often the judge of this. Often the perpetrator can reverse the blame, as those innocent of bullying are accused of being a perpetrator. This can be the worst bullying of all, as you are publicly labelled by the very people who bully you as they ‘play victim’.
Recourse to restitution.
Once bullying has been established, then there needs to be recourse to restitution. For those with a protected characteristic, section 26 of the Equality Act 2010 provides a route to seek remedy; however, it is wrong that someone should have to depend on their protected characteristic to determine a case of bullying.
For someone who does not qualify under the Equality Act, there is no legal protection.
Further, a dismissal arising from bullying could then seek remedy under the
Employment Rights Act 1996, as an automatically unfair dismissal. The power of this approach is that, once the threshold tests have been met, the burden of proof moves to the employer to demonstrate that resignation of the employee was not necessary because appropriate measures had been taken to protect against bullying.
The Bill follows the tradition of harassment, but for those without a protected characteristic. Like harassment, it will have a six-month limitation to bring a claim.
Promoting positive workplace behaviours.
The Bill then seeks to extend the ACAS Code of Practice to promote positive workplace behaviours. Clearly, failure by an employer to do so could see the compensatory award raised, but moreover see positive change ensue at work.
A perpetrator of bullying is unlikely to target just one individual. My Bill would empower employers to instigate change. Failing to do so, would enable the tribunal to compel an employer to abide by the Code, securing better workplace safety.
Should the perpetrator continue to bully, then this assists employers to manage their behaviour through conduct procedures and, where necessary, escalate a case to gross misconduct.
However, it must be recognised that some places of work have an endemic bullying culture. I have therefore set out a role for reporting, investigation and enforcement in line with the management of environments where discrimination occurs. In extending the role and powers of the EHRC (Equalities and Human Rights Commission) to investigate and report, and to issue enforcement notices, workplace cultures will change. Clearly the involvement of the EHRC would need to be funded.
My Bill, while seeking to promote respect at work and positive behaviours, recognises that legislation is needed to have a chilling effect on negative behaviours and to enable all those at work, whether employee, worker, bogus self-employed or office holders, to seek restitution.
For each, bullying has a serious cost; for many, lasting trauma. Without recourse to justice, many will leave their employment.
HEALTH AND SAFETY LEGAL UPDATE – WESTON PARK
DECEMBER 19TH – 09:30 – 12:30.
Book Here.
If you find our legal updates useful then come and join us at Weston Park for a three hour tour through the latest in health and safety, with a mince pie or two thrown in for good measure!
Our 2024 training diary is under way with plenty of IOSH Managing Safely training courses available!
For all training requirements, please go to our website, where you can see all the open courses we have planned.
2024 TRAINING CALENDAR
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