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#101-04-2011 10:52:21

@ Flounderbout

Just picked this up on another forum. The poster is a nice kid and he's terrified. I've suggested to him to not admit any liability or resign, as even though he has a duty of care to himself and his fellow employees, its his employer who's primarily responsible for H&S policy at his place of work - hope that's correct. Anyway, this is his post, he'd appreciate your advice.

"Hi all,
This is a long shot but I really need some legal advice.
Basically there was an accident at work yesterday that led to somebody going to hospital.  I went to work this morning and was sent home, my manager blames me for the accident but I know that I was not responsible.  I have been told to reflect on my position at work, and return Monday morning for a meeting with my manager and the owner of the company.  I'm really worried and feel upset that they have out the blame my way, I believe that they are trying to use me as a scapegoat. 
I have been to citizens advice but they said that there is not a lot that they can do until after the meeting.  I believe that my employer is looking for me to resign so he can blame me to any investigation.

IF ANYONE ON HERE HAS ANY EXPERIENCE IN EMPLOYMENT OR CONSTRUCTION LAW PLEASE PLEASE HELP ME.

I'm in a bit of a mess "

#201-04-2011 11:00:53

Re: @ Flounderbout

Further info...Sounds to me like the buck stops with the company.

"I need as much information over the weekend that I can gather. Your exactly right, I'm sure anyway, that their h&s is not up to scratch.
The long and short of it is that I was footing a ladder for somebody twice my size, it slipped out backwards pushing me back and sending my poor colleague to the floor.
I'm so upset that this has been put on me, my manager even told the ambulance staff yesterday that I was on the bottom of the ladder 

I had no site induction, so when the incident happened I didn't even now who to get., I.e first aider. I just ran screaming for help and then phoned an ambulance."

#301-04-2011 11:17:07

Re: @ Flounderbout

The buck always stops with the company.  He mentions construction so, depending on the size and duration of the contract, the work may well be subject to the Construction Design and Management regulations.  The company need to understand that they can put the blame on him all they like but it won't stop them from being liable for the accident. 

I wouldn't be surprised if the meeting was about them wanting him to agree to take the blame, say he had a site induction etc so that he can keep his job, or tell the truth and lose it.  That being the case, it's going to be a moral judgement for him.

Personally, my advice would be to stick to his guns that it was an accident.  I wouldn't accept any liability, nor would I challenge my employer about their liability.  I would simply state that it was a work-related accident.  It's quite possible that the HSE will never turn up and equally possible that the victim won't employ an ambulance chaser.  If either of those happens, though, I would again stick to my guns and let them make their own decisions on the H&S on the site.  I certainly wouldn't, however, accept 'the blame' under any circumstances.  It won't help the company's case in any way and would be his first step on the slippery slope to being as dodgy as they sound.

#401-04-2011 11:23:35

Re: @ Flounderbout

It seems he had no induction, and has never seen a HS policy, let alone been asked to read / sign such.

Sounds exactly like they want him out of the way if HSE do turn up.

#501-04-2011 11:56:56

Re: @ Flounderbout

He needs to speak to a union and he does not attend the meeting unless he has suitable representation with him.His employers cannot refuse him his rights to have someone with him in the meeting.I know this as i was a H&S Rep with NetworkRail and when i had my accident in 2005 any meetings i had then i had someone there as witness to what was said and to take notes and have them signed by both parties

#601-04-2011 12:05:09

Re: @ Flounderbout

Also if he wants to talk to a solicitor i can pass on my solicitor's details that dealt with my claim as he works for the RMT group of solicitors

#701-04-2011 12:10:50

Re: @ Flounderbout

If a ladder is set up properly and fit for purpose why would it need a 'footer'?  That's a general question, I've never understood why one is needed.

#801-04-2011 12:12:54

Re: @ Flounderbout

Poor kid - his boss sounds like a dick.

Firstly, a big proviso - I can't offer him "legal advice" for three reasons;
1) am not an expert on either employment or H&S law; 2) I am not allowed to offer him formal legal advice without jumping through a whole series of hoops; and
3) withoput knowing any of the details I am not in a position to advise him anyway
However I am happy to tell you from an informal point of view what my thoughts on the position are, and feel free to pass them on.  I know that the distinction between legal advice and advice given by someone who is a laywer in a social context may seem a subtle one - but it is quite important.  If this sounds like an arse covering exercise, that is because it is!

There are two main issues as I see it. 

First, who was responsible for the accident?  Options are a) no-one, it was an unforeseeable/unpreventable accident, b) the company, since the accident could have been avoided if proper procedures/equipment etdc were in place, c) an individual whose negligence caused the accident, e) the company, because it is responsible for the actions of its employees, f) some combination by way of e.g. vicarious responsibility.

Assuming that the kid was engaged in his employment when the accident took place it is very difficult to see how the company could avoid liability for any negligence, whether it was due to a) lack of training on the part of the staff, b) inadequate or wrongly used equipment, c) improper safety procedures (e.g. footing a lagger >5m long) etc.  Even if it was plain negligence on the part of the kid (e.g. he wandered off to do soemthing and left the bottom of the ladder - which I appreciate is not what he says happend) I would have thought it very likely the company would still be responsible - it is their job to ensure that their staff carry out proper procedures. 

The fact that he had no site induction suggests that procedures were lax to say the least, and if he was footing a ladder in circumstances where he could not hold it (due to the weight or height of the ladder, the floor material, the type of ladder, the position of use etc etc), then it is difficult to see how he could be at fault, and difficult to see how the company could escape liability.

The upshot is that it is difficult to imagine a situation where the kid would be left with a claim against him personally which was not a claim for which the company was responsible (it would probably only make financial sense for the victim to sue the company anyway - a claim against an individual in those circumstances would almost certainly cost more than any likely recovery).  If I were him I wouldn't be too concerned about any claim by the victim therefore. 

Second, is he going to lose his job?  That is a harder question for me to answer, since employment law is a pretty specialist field.  The impression from what you have said is that they are looking to blame him for the accident or even fire him.  Whether they can fire him depends on his contract of employment (if any), and the statutory position under employment rights legislation, and in particular the Employment Rights Act 1996.  That Act says that an employee must not be unfairly dismissed, and section 98 (I paraphrase) says that whether or not a dismissal is unfair depends on the circumstances.  Even if the accident was the kid's fault, it is quite hard to imagine circumstances in which it could give rise to a right to dismissal without any further steps. 

He should definitely not resign.  They would love that, since they probably know perfectly well there are no proper grounds for dismissal.  If they try and fire him, then I would have thought there is likely to be a good case for wrongful dismissal and he could sue.  At that stage he would want to get proper employment lawyers to deal with it (there are loads of no-win no-fee specialists in employment, so he can do it at no cost).

From my perspective he is probably spot on.  The company are bricking themselves because they can see a big claim on its way, and they would like to pass the buck.  They see him as an easy target.  But a) it probably wouldn't help them, and b) f*ck them.

The kid must have had a horrible time - it is bad enough seeing one of your colleagues get badly hurt, without this.  I would tell him not to worry.  Accidents happen, and he should not blame himself.  He should go the meeting on Monday, tell them exactly what happened in the accident (it would be wise to write all the details down as soon as possible so that he doesn't forget them), and then sit tight.

Hope this helps some...

H

#901-04-2011 12:20:54

Re: @ Flounderbout

Icon - Post link Sancho wrote:

I wouldn't be surprised if the meeting was about them wanting him to agree to take the blame, say he had a site induction etc so that he can keep his job, or tell the truth and lose it.  That being the case, it's going to be a moral judgement for him.
I'm sure you are right Sancho, but there is no moral judgment required.  He shouldn't take the blame (not that it is likely to make any difference to a claim against the company), and they can either suck it, or fire him and then pay him off handsomely under a pretty much cast iron wrongful dismissal case!

#1001-04-2011 12:24:20

Re: @ Flounderbout

Icon - Post link Albannach wrote:

If a ladder is set up properly and fit for purpose why would it need a 'footer'?  That's a general question, I've never understood why one is needed.
Elf and Safety Guidelines re ladders:

SECURING A LADDER
9 The foot of the ladder should be supported on a firm and level surface and should not rest either on loose material, or on other equipment to gain extra height. Attachments for levelling up the feet on sloping surfaces should be properly fixed and used. In no case should the bottom rung be placed so that the total weight is carried on the rung; only the stiles are designed for this purpose.

10 It must be ensured that the ladder cannot slip and wherever practicable the top should be securely fixed. Slip may be prevented by the use of a lashing, strap or proprietary clip secured to both stiles or where suitable by equipment such as tie restraining straps or tensioned guys. On slippery floor surfaces special care is necessary to prevent the ladder foot from moving. Whilst lashings etc are being fixed the ladder should be footed.

11 A ladder fitted with a proprietary spreader arm may be accepted as complying with 32(2)(a) of the Construction (Working Places) Regulations 1966, provided that:

•the ladder is in good condition;
•the ladder is of suitable quality for industrial use;
•the ladder is fitted with non-slip feet; and
•the inclination of the ladder conforms with the one-in-four rule.
12 Although there is no evidence that such proprietary devices cause wear or induce stresses that might make them unsuitable for use with a particular ladder, users are nonetheless recommended to ascertain from the ladder manufacturer whether a ladder is suitable for use with them. If the surface on which the foot of the ladder rests is not firm and level and does not provide adequate purchase for the non slip feet, additional precautions should be taken to prevent outward movement of the foot of the ladder.

13 The head of the ladder should rest against a solid surface able to withstand the imposed loads. Where the surface may be frangible or brittle so that it cannot with stand such loads, equipment such as ladder stays must be supplied and used.

14 Where securing at the top is impracticable, arrangements must be made to prevent the ladder from slipping outwards or sideways. Methods of securing at the base include fixed blocks or cleats, sandbags or stakes embedded in the ground. Additionally, to help prevent slipping, most ladders can be fixed at the foot with pads, caps or sleeves.

15 In circumstances where it is impracticable to fix the ladder at the top or at the foot, a second person should be stationed at the foot to prevent slipping; this precaution, however, is considered to be effective only for ladders not more than 5 m (16 ft) in overall length. The person `footing' should face the ladder with a hand on each stile and with one foot resting on the bottom rung.




Actually looking at this lot the company looks bang to rights on any claim...

#1101-04-2011 12:39:41

Re: @ Flounderbout

All the above is (unsurprisingly) sound. Think just the one thing he needs to remember is it's liikely they will try and scare him with a variety of bullshit in the meeting on Monday with a view to making him resign.
Whatever he does he should not do this. As Flounder says. If they want to fire him, fine, they'll be opening up a can of worms for themselves.

If he's bothered I would have thought that he could take someone else to the meeting with him if he wished.

Regardless, during and after the meeting he should make detailed notes of what was said and by whom. 


Re: the running around then calling an ambulance. Even the most highly trained first aiders would say that the most effective thing they would do in any first aid situation is calling an ambulance, so he did OK.  smile

#1201-04-2011 12:45:03

Re: @ Flounderbout

Icon - Post link Albannach wrote:

If a ladder is set up properly and fit for purpose why would it need a 'footer'?  That's a general question, I've never understood why one is needed.
There are occasions where it's totally impractical to secure or lash a ladder, and even if securing in some way, (unless the bottom itself is bolted down), there's always a window where a ladder may slip upto the point of it being secured.

By the sounds of it in the above scenario however, the bloke who was up the ladder is a cock for setting too steep an angle on the ladder. He basically created his own accident. Unless they were on an ice like surface, that's the only reason a ladder will slip out at the bottom. All this HSE crap is fine, (I'd like to see one of those HSE tossers, (present company exempted big_smile), explain to a customer why they're driving a massive bloody stake into their masonry work, for example), but common sense alone makes it nigh on impossible for a ladder related accident to happen except under exceptional circumstances, (for example gusting wind), but even then, operator cock status for trying to work unaided in those conditions. It's pretty damned simple to tell what's safe and what's not.

#1301-04-2011 12:52:48

Re: @ Flounderbout

Icon - Post link Matt wrote:

It's pretty damned simple to tell what's safe and what's not.
http://www.hiluxsurf.co.uk/showthread.php

whistle

#1401-04-2011 12:55:31

Re: @ Flounderbout

Icon - Post link biosurf wrote:

Icon - Post link Matt wrote:

It's pretty damned simple to tell what's safe and what's not.
http://www.hiluxsurf.co.uk/showthread.php

whistle
One can never counter/cater for the mental retards in a common sense argument. big_smile

#1501-04-2011 12:56:27

Re: @ Flounderbout

lol

Darwin can use all the help he can get big_smile

#1601-04-2011 12:58:12

Re: @ Flounderbout

What I'm getting at is that if the ladder can't be used safely and secured properly, then it shouldn't be used at all.  A scaffold, Scissor Lift or Cherry Picker should be used instead.

#1701-04-2011 13:02:49

Re: @ Flounderbout

Icon - Post link Matt wrote:

Icon - Post link biosurf wrote:

Icon - Post link Matt wrote:

It's pretty damned simple to tell what's safe and what's not.
http://www.hiluxsurf.co.uk/showthread.php

whistle
One can never counter/cater for the mental retards in a common sense argument. big_smile
Seriously though, it really does piss me off with these tossers who go up ladders, feck it up and then everyone makes a song and a dance about it. End of the day, even if a company supplies the wrong kit, the fucktard who is using the ladder should make the final decision on whether they use it or not, and if they mount it incorrectly and suffer for it, they shouldn't be so f'ing thick. No sympathy for them whatsoever.

Out of all the riggers I know, I can only recount one actually having died or being injured from a fall. They manage it in the most shitty weather conditions, hellish sloping surfaces, shonky buildings and chuff knows what other situations, and then some numpty tw@t comes along and makes everyone else have to suffer the HS shit just because they were too f'ing thick to be at a level where they can even wipe their own arse unaided. They really, really do piss me off.

#1801-04-2011 13:07:51

Re: @ Flounderbout

Icon - Post link Albannach wrote:

What I'm getting at is that if the ladder can't be used safely and secured properly, then it shouldn't be used at all.  A scaffold, Scissor Lift or Cherry Picker should be used instead.
In a perfect world, yes. In reality, that ain't ever going to happen. The cost perspective makes it non viable for something like a couple of hour job with a slim profit margin. A two man team or merely common sense is all that is generally needed. The other equipment you mentioned above will rarely enter domestic situations except for building work related tasks.

#1901-04-2011 13:15:27

Re: @ Flounderbout

I know.  But this company (and many other smaller companies) seems to be picking and distorting pieces of legislation and common sense to suit individual cases.  Domestic situations apart, the safest method of access to the job site should be factored into the price of the job.

Anyway, the lad has nothing to worry about.  But in reality, he can't continue to work with that company; they'll just make his life hell until he eventually leaves.

#2001-04-2011 13:15:37

Re: @ Flounderbout

Matt, NEVER form a company doing anything remotely risky - you'd be penniless and behind bars within days!  lol

However, I DO fully understand and appreciate where you're coming from. 'Stuff' requires an element of common sense!

#2101-04-2011 13:26:22

Re: @ Flounderbout

Icon - Post link Albannach wrote:

I know.  But this company (and many other smaller companies) seems to be picking and distorting pieces of legislation and common sense to suit individual cases.
They always do. Some of the shit they try pulling is unbelievable. Ironic thing is, even when companies stick to the regs like zealots, they usually create such a retarded lot of employees, safety wise, that it's counter productive.

As a prime example of the train of thought. One of the engineers I used to work with. He always refused point blank to ever use an isolation tx at his bench, for the simple reason that it gave a sense of safety/security. He said that if he went out on site and forgot there was no isolation, taking shortcuts which he may start to use in the workshop if he knew he was protected could have a vastly different outcome on site, hence he always worked from a raw supply.


Domestic situations apart, the safest method of access to the job site should be factored into the price of the job.
Actual conditions on site can also make it unfeasible though. Take a warehouse, for example. Unless they already have a maintenance system in place, sometimes there physically isn't the space to get anything like that in there, if working in narrow walkways or between closely spaced shelving racks, for example. Even in the largest of companies, you end up monkey climbing to some positions for maintenance or installation work.


Anyway, the lad has nothing to worry about, but in reality, he can't continue to work with that company; they'll just make his life hell until he leaves.
Probably. big_smile

#2201-04-2011 13:29:35

Re: @ Flounderbout

Icon - Post link Apache wrote:

Matt, NEVER form a company doing anything remotely risky - you'd be penniless and behind bars within days!  lol

However, I DO fully understand and appreciate where you're coming from. 'Stuff' requires an element of common sense!
Aye, I doubt my old stiff upper lip style 'stop wussing and be a man' attitude would go down well. 'Are you dead? No, then stop being a pussy' probably wouldn't be classed as the standard to aim for. big_smile

#2301-04-2011 13:54:08

Re: @ Flounderbout

Icon - Post link Albannach wrote:

Anyway, the lad has nothing to worry about.  But in reality, he can't continue to work with that company; they'll just make his life hell until he eventually leaves.
This is a sound point - the reality may well be that he is forced to leave.  If it is because of the conduct of the company, then he may in due course have a strong case of constructive dismissal.

The important thing is to make sure that he doesn't resign or walk out (at least not at this stage) since then he will have no basis for recovering what he stands to lose by doing so.  It may also be the case that once the company stops flapping about the potential claim (for example after they have spoken to their insurers), they actually start treating him properly again and he can get on with his job.

#2401-04-2011 14:13:00

Re: @ Flounderbout

HSE will not investigate unless it is a RIDDOR or if the company has a history of accidents , If the person in question has had no site induction and no instruction in the correct use of ladders it is then down to the employers and the controler of premises.

http://www.hse.gov.uk/pubns   Ladders

http://www.hse.gov.uk/construction  Site induction

To me it sounds as if he he being used as a scape goat for their failure to implement Health and safety

#2501-04-2011 14:31:59

Re: @ Flounderbout

Icon - Post link Albannach wrote:

Anyway, the lad has nothing to worry about.  But in reality, he can't continue to work with that company; they'll just make his life hell until he eventually leaves.
This was my point on him making a moral judgement.  He may just want to walk away, although Henry's point on constructive dismissal kind of overrides that.  If I were him, though, I would start looking for another job now.

Ian's point on reportable incidents is an interesting one, in that the HSE won't turn up unless it's reported, so the company will probably try to avoid that by simply not reporting it on the grounds that no-one will ever find out.  If that's the (illegal) route they've chosen to go down, they would be better advised contacting the bloke who's in hospital and begging him not to sue them than they would be trying to bully this lad.
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