Dismissal?

jonathanmccomb · Post by **jonathanmccomb** » Fri Jan 25, 2008 10:03 am

Hi

Anyone refer me to case law/advise on the legalities of dismissing an employee who knowlingly and intentionally bypassed a safety device on a machine but was not officially trained on performing the operation.

twister · Post by **twister** » Fri Jan 25, 2008 12:46 pm

first thing is what did the risk assessment say.

Why was he using the machine that he was not trained in using? What does your policy say about using machines not trained on? Do you have authorisation sheets? Did he put anyone else at risk? Is it a sackable offence in your business?

Case law may not help as you will have to look at your internal policies before any case law.

sidestep45 · Post by **sidestep45** » Fri Jan 25, 2008 4:38 pm

Can you clarify whether

an employee who knowlingly and intentionally bypassed a safety device on a machine but was not officially trained on performing the operation

means that this operation of bypassing the safety device is carried out by other trained employees for maintence or other purposes or whether this employee carried out an operation the is unequvocally forbbiden.
Toby

jonathanmccomb · Post by **jonathanmccomb** » Mon Jan 28, 2008 8:08 am

Bypassing is not normal praactice

twister · Post by **twister** » Mon Jan 28, 2008 8:50 am

Really it is your risk assessment and authorisation sheets that will matter in this case

Twinkle Toes · Post by **Twinkle Toes** » Tue Jan 29, 2008 6:45 pm

All i can find is

http://www.safetyphoto.co.uk/subsite/ca ... _Arrol.htm

Which isn't strictly what you are looking for.

Ian Rienewerf · Post by **Ian Rienewerf** » Tue Jan 29, 2008 8:40 pm

Hi Johnny - you will be aware of this already.
The Provision and Use of Work Equipment Regulations 1998 (S.I. 1998 No. 2306)
http://www.opsi.gov.uk/si/si1998/19982306.htm
Training
9. - (1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken.

If the dismissal goes ahead, the next person is likely to walk into the exact same situation.
Some re-training (including managers and supervision) might be a more useful option.

Post by **HelenPJ** » Wed Jan 30, 2008 7:06 pm

Similar thoughts to Ian's, above.

who knowlingly and intentionally bypassed a safety device on a machine

But did he know what the Safety Device was for?
As

not officially trained on performing the operation

So, did he know what might happen if anyone put hand/arm/leg/foot/head/whatever in the unguarded machine?
Would they knowingly & intentionally have disarmed any safety mechanisms/guards if aware?

Education of his supervisor, education of individual, a good look at current procedures would be beneficial.
I would file this as a Near Miss - and look to prevent a Real One.

Any repetition of this behaviour after training is a whole new ball game and definitely Section 7 of HSWA would indicate Formal Disciplinary Proceedings up to and including dismissal, for placing his own and/or other workers' H&S at risk.

Hope this helps

Gladiator · Post by **Gladiator** » Mon Feb 11, 2008 7:07 pm

One must conduct a full blown investigation of events and if you are 'fairly' certain this was deliberate event then you may like to consider suspension whilst the investigation is conducted. You must offer the individual the opportunity (witnessed) to attend a series of interviews and permit the grievance procedure of the company to the employee if the individual so wishes.

At first sight this may seem a fairly easy request for further guidance, I can assure you it is not! Having so said, some times it is easier to offer something to get an end result that the company desires.

Far to complex to go into in any depth, here on the forum.

G

Phil · Post by **Phil** » Thu Feb 14, 2008 7:45 am

Wouldn't this be a section 8 HASAWA matter?

No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions

Gladiator · Post by **Gladiator** » Thu Feb 14, 2008 11:47 am

Phil

Not quite as simple as that, you need to precisely read the original post to see why.

G

Phil · Post by **Phil** » Thu Feb 14, 2008 5:27 pm

I get the bit about the worker not being trained being a potential problem but the original posting also uses the words "knowingly and intentionally". Trained or not meddling with machinery you aren't trained on seems to fit the category of reckless.

The wording of section 8 has an 'or' between intentionally and recklessly so it would seem that if either one applied then section 8 has been breached and the employee has failed in their duty. Surely enough to invoke the disciplinary procedures.