As nearly half of UK companies anticipate facing court action over liability issues, Paul Ramone asks if there is a tendency to burden firms with more than their fair share of responsibility
24 February 2007
As long ago as 1977, the Health and Safety Commission's annual report stated its overriding concern was "to stimulate awareness of risks and encourage the joint participation of workers and management in efforts to eliminate them."
Yet there is growing concern among firms that the burden has shifted dramatically from 'management' to 'workers', especially in recent years. The issue of personal responsibility is a staple subject for debate on health and safety message boards and company owners are increasingly frustrated by the way they perceive the world is turning.
Almost a half of UK companies expect to face more litigation during 2006 than they did over the last year, according to a recent report by international law firm Fulbright and Jaworski. The 2005 Litigation Trends Survey revealed that two-thirds of UK businesses stated that they had faced court actions in the last 12 months and were particularly concerned about the increasing frequency of product liability cases.
What this means is that firms that supply to the workplace sector can face a double whammy, according to Mike Bird of breathegroup, a Cambridge-based interior design firm.
"When it comes to managing risk, we have to deal with our own health and safety issues as a business but also address those of clients," says Bird. "In most cases what we are asked to do is reasonable and as a company it's our responsibility to ensure to the best of our ability the safety of our staff and contractors and people connected to our clients. It's our job to help them comply with legislation, stay safe and manage risk. But it can't be our responsibility to second guess every single eventuality of what may go wrong as we feel is increasingly the case. We can never be risk free and I feel that we shouldn't try."
Bill Scholes, an advisor with online publisher Workplace Law agrees: "It's important that we all stay focused on the significant risks," he says. "We should let people make mistakes and face the consequences of those mistakes so long as they are not too risky, damaging or expensive. We need to sort out significant risk."
But according to Bird, there is a problem associated with this and the sometimes dogmatic approach of health and safety professionals to risk. He highlights a debate on Workplace Law's own message board following the news that a hotel had been fined £400,000 after a woman had climbed out of a third floor window and fallen to her death.
In the discussion that followed a contributor claimed that "the company should have ensured that no one could open the window to the extent that someone could have climbed out at that height. I think you are all under the sad illusion that all adult persons are fully compis mentis, sober or can make logical adult decisions. Not so. I can sit here all day proving that the general public are thick as two short planks and need protecting from themselves."
"What are we to do here?" asks Bird. "Are we to seal up all windows in buildings and provide people with totally risk-free environments because people need protecting from themselves? I understand that the details of this case meant it was not as straightforward as some people thought, but it highlights a growing tendency towards adopting a dogma that if something goes wrong and if somebody is hurt, then somebody else has to pay. Too often the burden is not being shared equally because one party is deemed to be more responsible for managing risk than the other - in this case between a company that may have failed in its duty and a woman who put her life at risk by behaving foolishly."
According to Scholes, the finger of blame for 'blame culture' is often unfairly pointed at legislators when there are in fact a number of forces at work. "You have to distinguish between litigation and legislation," he says. "The HSE won't nail firms for every little thing and they often end up on programmes like Newsnight trying to debunk the sort of myths that spring up around their work, as they recently did when it was reported that people were no longer allowed to use ladders. In my view the whole issue is partly a social one but also client driven because somebody wants to hold up a bit of paper and say 'we've done what we can'.
"Most of the bureaucracy involved is 'butt-covering' and people become more interested in the risk management process than in risk management itself. More often than not, it's not legislation that's the problem, but the people who interpret it."
Regardless of how the forces behind such trends are connected, there is a growing and sometimes paralysing fear of litigation among employers. According to Bird, what he perceives as the current imbalance between the ratio of risk accorded to individuals and organisations invariably creates a reaction that can damage the interests of everybody.
A recent news story illustrates his point. Only one in 10 companies in Britain are now prepared to write a full reference for former staff because of the overwhelming threat of litigation, according to a survey by the Employment Law Advisory Service.
Many leading employers are abandoning the practice of supplying references altogether and now limit themselves to nothing more than a confirmation of name, job title, and date of employment.
Scholes points out that risk aversion, whether it's the result of legislation or the fear of litigation, is something that Health and Safety Executive is actively trying to address. He points out the HSE's own initiative in stimulating debate on the topic (www.hse.gov.uk/riskdebate) and its statement that "risk aversion is no bad thing when it is proportional to the level of risk. What we are concerned about is better described as excessive risk aversion, where control measures are wholly disproportionate to the actual level of risk present."
This is clearly one which will run for a while.
Paul Ramone is a freelance journalist