Nowadays, there is a huge emphasis placed upon training in the workplace. Employers often devote a significant amount of resources to arranging, delivering and recording training provided to their employees. This is of course important. However, despite the emphasis placed on training, how useful in practice is evidence of a company's training regime in defending allegations of fault when there has been a serious accident in the workplace?
It is estimated that up to 80% of accidents at work may be caused by human error ('Reducing error and influencing behaviour' Health & Safety Executive HSG48). Considering this, it is up to employers to attempt to limit the possibility of human error by focusing on their own management and procedures, as opposed to training, so it is less likely accidents will occur.
There is an industry accepted hierarchy of hazard control which is used to minimise or eliminate exposure to hazards. This hierarchy underpins the bulk of current health and safety legislation across a wide spectrum and it sets out the various risk control measures available in the workplace in descending order of effectiveness, as follows:-
- Elimination - physical removal of the hazard by redesigning the job or substituting a substance so the hazard is removed or eliminated
- Substitution - replacing the material or process with a less hazardous one
- Engineering controls - isolating employees from hazards by adapting or installing work equipment, e.g. installing guarding protecting the dangerous parts of machinery or installing ventilation to remove potentially harmful dust or fumes
- Administrative Controls - identifying and implementing procedures needed to work safely, e.g. increasing signage, performing risk assessments and undertaking training
- Personal Protective Equipment - this measure is deemed the least effective way to control hazards and should be used only where all other measures are considered ineffective.
Therefore, when considering the various risk control measures available in the workplace, eliminating and controlling risks are deemed to be to be most effective with training near the bottom of the list. This means that the employer attending Court and holding up its training records as an indication of compliance may be required to explain why it did not attempt to achieve more effective measures or show that such measures were not reasonably practicable, i.e. possible in the workplace. This may be very difficult to show when, as so often happens the employer has not considered proper compliance at a higher level beforehand.
As an example, many employees require to work at height, however, falls from height are the biggest cause of workplace deaths and injuries. Employers are required to consider the task which requires to be carried out and put the control measures outlined above in place. The employer in these circumstances should firstly consider and act upon whether (1) the need to work at height can be avoided; (2) there is equipment which could be used to prevent a fall, e.g. work platforms or rope access; and (3) the distance and consequences of a fall. Only after these matters are addressed and found impracticable does the question of supply of harnesses and training become relevant in considering fault.
The Enterprise and Regulatory Reform Act, which is expected to come into force later this year, will fundamentally change the civil law relating to damages claims for accidents at work so that employees raising an action will require to establish that their employer was negligent. The employer will in turn have the defence that all reasonable steps were taken to protect their employees. Accordingly, in the future it will be far more difficult for a pursuer to succeed in recovering damages. The statutory regulations and the hierarchy however continue to apply for criminal liability. This may well create the anomalous situation where an employer, successfully prosecuted for a clear breach of statutory regulations is nevertheless able to defend or frustrate a claimant suffering serious injuries because of the same accident.
Currently, training cannot be used as a substitute for proper risk control, e.g. to compensate for poorly designed plant or inadequate work stations. In the future, however, in civil cases proof of adequate training may defeat a civil claim while being largely irrelevant in a criminal prosecution. The implications for employees remain to be seen.