Tangerine Principle (When is the employee to blame)

Two big legal decisions should trigger a fundament review of your risk assessments.

1. Tangerine confectionary was prosecuted and fined after an employee became trapped in jelly-bean making machinery in its factory, and died. The appeal raised questions of whether the employee had placed himself in a dangerous position, and was it foreseeable to the employer that he would or could act in such a way.

In other words, is the employee without blame and does the employer have to foresee and manage all risks.

2. In Veolia, an agency worker had been litter-picking while an employee drove a Veolia van behind him, when a lorry hit the car, propelling it forward and killing the agency worker and injuring the employee. The company appealed, arguing that the accident was caused by poor driving rather than Veolia.

Again raising the question about employee responsibility for risk?

These are good questions that were rejected by the court. The Court dismissed both companies’ appeals against their convictions under the Health and Safety at Work etc. Act 1974 (HSWA 1974).

Michael Veal, prosecuting solicitor from Lester Aldridge LLP, who acted for the Health and Safety Executive, said: “Apart from where the allegation includes welfare of an employee, the decision of the Court of Appeal in Tangerine and Veolia is that the duty towards employees under section 2(1) of HSWA 1974 requires the same level of response from employers as the duty towards non-employees under section 3(1).

“They impose, in effect, a duty on employers to think deliberately about things which are not obvious.”

This decision should impact employers approach to risk assessing. There needs to be a due diligence approach to risk that is not immediately evident or apparent. So your risk assessment forms, tool box talks, inspections, pre-task brief should all ask the “what if? question. In addition, the “what if?” question should cover avoiding potential accidents to employees and non employees. Additionally, risk assessment’s need to account for human behaviour such as; bad attitudes, perceptual blindness, fatigue, cognitive dissonance, lapse of attention, under the influence and medical conditions.

Control paperwork

Do not build up and extra lair of risk control documents based on the Tangerine decision. But, build up a lair of smarter people asking smarter questions more often. Or should I say “silly questions” if the silly questions were asked in Veolia and Tangerine we would have saved two lives. So safety culture is a key determining factor to avoid falling foul of the decision in Tangerine and Veolia. Where is your domain in the culture ladder below?

Opportunities arising from Tangerine

If you build a proactive questioning safety culture in the blue to green bands above, it will pervade the whole business, reduce risk and increase moral and profitability. A good behavioural safety course can achieve this by providing techniques and approaches to investigative a generative culture where safety is natural and dynamic.

Is your safety management modern?

Under HSG 65 you should be working Plan, Do, Check, Act in all that you do.

The Plan, Do, Check, Act approach achieves a balance between the systems and behavioural aspects of management. It also treats health and safety management as an integral part of good management generally rather than as a stand-alone system. The new IOSH Managing Safely course is built around PDCA and will demonstrate a due diligence approach to risk control.

Safety is not a paperwork task to justify our job. It is a matter of life and death. It is the sum of our contributions to safety management that determines whether those we work with live or die.

Andrew Monaghan

Training is an investment for success