When there is a disaster, like an aeroplane or train crash, it is not unusual for media reports to attribute the incident to 'human error'. The employee making the error can then expect to be blamed for the whole matter and in some cases vilified. Although there may be management failures these will be seen as secondary, or even insignificant, compared to the acts or omissions of the individual.
Fortunately disasters are few and far between. However incidents at the workplace that lead to injury, or could have led to injury, happen every week. Management, like the media reports, has a tendency to blame incidents on the errors of individuals directly involved. This in turn can culminate in disciplinary action against them. The basic assumption is that people are able to choose between safe and unsafe acts. Therefore if something goes wrong, then it must be the fault of that individual.
Given this approach, how can individuals in these circumstances be defended? It is suggested that putting the error into context, looking for the underlying causes and considering the management of human error by the company will be important for defending disciplinary proceedings (and also criminal proceedings if these are brought).
The Health and Safety Executive (HSE) estimates that human error is involved in approximately 80% of accidents. In its publication Reducing error and influencing behaviour (1999), more often called by its reference HSG48, it states:
"Many accidents are blamed on the actions or omissions of an individual who was directly involved in operational or maintenance work. This typical but short-sighted response ignores the fundamental failures which led to the accident. These are usually rooted deeper in the organisation's design, management and decision-making functions"
It goes on to say:
"Organisations must recognise that they need to consider human factors as a distinct element which must be recognised, assessed and managed effectively in order to control risks."
HSG 48 is quoted by Lord Cullen in his report into the Ladbroke Grove crash of 1999, published last June. One of the train drivers passed a red signal (known as a SPAD signal passed at danger) which resulted in the collision. The signal in question had been passed on eight previous occasions in six years and each had been attributed to 'driver error'. Lord Cullen found that the industry investigations into these incidents had failed to identify root causes. Lord Cullen's analysis explains how the driver's error was a consequence of poor infrastructure and management failures rather than looking at his error as a cause of the crash.
There are now proposals to amend the Management of Health and Safety at Work Regulations 1999 (MHSWR) to require employers to investigate the causes of certain workplace accidents. In addition the findings of the investigation will have to be taken into account when reviewing any relevant risk assessments.
Annexed to the Health and Safety Commission's Consultative Document setting out these proposals, there are extracts from a contract research report detailing a survey carried out of current industry practice in incident investigation. The report, entitled Accident investigation - the drivers, methods and outcomes (CRR 344/2001) and published by the HSE, says that the survey found the incident investigation of companies ranged from a largely unstructured approach to one supported by clear procedures and associated analysis tools. Approaches to investigation varied from 'system' based (which examine all potential contributory factors) to 'traditional' methods (focusing on the individual concerned and the most immediate cause). Overall, companies were found to favour the traditional approach. The findings also suggest that that the majority of companies do not differentiate between immediate and underlying causes.
Human error can clearly be a hazard which may need to be risk assessed in appropriate circumstances (as required by Regulation 3 MHSWR). HSG 48 gives guidance as to how this type of hazard should be risk assessed. Therefore in any disciplinary proceedings it is important to consider any relevant risk assessments. It is important to also consider how the company took human fallibilities into account when designing the task, activity and/or workplace relevant to the incident. In other words, was it possible that these elements made an error by an individual more likely?
It must be ensured that those carrying out the investigation into the incident have the appropriate training and understanding or have expert advice available to them so that all contributory factors can be identified and understood. That is to say an organisational approach needs to be taken to the investigation, finding the underlying causes so that the nature of the error can be understood and any culpability determined fairly.
It is interesting to note another publication by the HSE, Successful Health And Safety Management, referred to as HSG 65, (1997) which states that the prime responsibility for accident and ill health prevention rests with management. It says:
"Accidents, ill health and incidents are seldom random events. They generally arise from failures of control and involve multiple contributory elements. The immediate cause may be a human or technical failure, but they usually arise from organisational failings which are the responsibility of management. Successful policies aim to exploit the strengths of employees. They aim to minimise the contribution of human limitations and fallibilities by examining how the organisation is structured and how jobs and systems are designed."
The approach set out above does not seek to justify a blanket immunity from sanctions for all acts and omissions by individuals involved in incidents. This would clearly be undesirable as it might be seen as encouraging unreasonably reckless, negligent or even malevolent behaviour. However the problem lies in distinguishing between truly bad conduct and unsafe acts and omissions for which discipline, it is suggested, is neither appropriate nor useful.
Professor James Reason, a human factors expert, in his book Managing The Risks of Organisational Accidents (Ashgate 1997) refers to the substitution test put forward by Neil Johnston as a way of determining when there should be disciplinary action. If the unsafe acts of a person are implicated in an incident then the following test should be applied. Substitute the individual concerned for someone else coming from the same area of work and having comparable experience and qualifications. Then ask the question: 'In the light of how events unfolded and were perceived by those involved in real time, is it likely that this new individual would have behaved any differently?' If the answer is 'probably not' then apportioning blame, Professor Reason argues, has no material role to play. He adds that this test can be expanded upon by asking the individual's peers: 'Given the circumstances that prevailed at the time, could you be sure that you would not have committed the same or similar type of unsafe act?' If the answer again is 'probably not', then blame is inappropriate.
So far these theories are being examined in the context of major disasters and criminal litigation and have a crucial role to play. In addition, the understanding of these concepts in employment law - particularly in disciplinary and unfair dismissal cases - could alter the law and perception of the very meaning of capability and conduct.