Accidents happen as they say. But that does not stop an employer feeling nervous when they happen in the workplace. We live in litigious times and reputation is key, as is a happy, incentivised workforce. There is always the fear that an accident in the workplace could have negative repercussions for the employer. The natural instinct may be to check everyone is ok, before swiftly moving on. But what if an employee injured in a workplace accident is actually responsible for causing the accident in the first place? Do you simply check that they are ok and do all you can to assist them, or do you follow up with disciplinary action?
Health and safety is of paramount importance in the workplace. Breaches of your health and safety cannot be ignored. They can affect employees directly, and they consume the time and attention of those who have to resolve the issues post-calamity. It is crucial that lessons are learnt, even if the person who may ultimately be disciplined is injured.
Of course, employers should always seek to ascertain the well-being of their employees and whether there is anything reasonably within their power that they can do to help. But a proper investigation and subsequent disciplinary action, where appropriate, should run alongside pastoral care. Any disciplinary action taken should be with reference to Company insurers to ensure that there is no inadvertent admission of liability that could prejudice on-going insurance claims.
ACAS lists the following as acts of misconduct:
- minor breaches of policies including health and safety;
- negligence in the performance of duties; and
- damage to, or unauthorised use of, Company property.
Higher up the scale, acts of gross misconduct can include:
- serious misuse of Company property;
- causing loss, damage or injury through serious negligence;
- serious or repeated breach of health and safety rules or serious misuse of safety equipment; and
- unauthorised entry into an area of Company premises to which access is prohibited.
All of this should be done with reference to insurers to ensure that there is no inadvertent admission of liability
Investigation of the incident
In the event of an act of possible misconduct, employers should conduct a thorough investigation in order to ascertain exactly what happened. If there is a case to answer, a standard disciplinary process should be followed. Timescales can be adapted to accommodate an injured employee who is in recovery mode. However, memories fade so too long a period should not be allowed to elapse before the matter is resolved.
Post-disciplinary, it is important to follow up with the employee in question to pinpoint any gaps in their health and safety, practical, or technical knowledge that led to the mishap in the first place. Training should be arranged where necessary. It is worth extrapolating wider lessons for the Company to learn, and restating or circulating new, clear, health and safety rules and guidance to all employees.
For graver matters of possible gross misconduct, again, the employer should not shy away from digging down into what happened and apportioning responsibility. A full investigation should be conducted with all of the usual opportunities for the employees involved to make representations and defend themselves. But ultimately, where there has been an act of gross misconduct, without mitigating circumstances, the employer should take action proportionate to the incident in question. If that extends to dismissing the employee, the employer should not dodge that by virtue of its own discomfort at the events that have unfolded. It is crucial to demonstrate that such acts of gross misconduct will not be tolerated.
As ever, the best thing to come out of such a situation is that lessons are learnt. Accidents do happen, but it is what you do in response that matters.
If you have any questions or would like more information, please contact Mark Hammerton, Head of Employment.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.