This week: Katy Dunn considers the importance of monitoring and auditing in health and safety compliance

Life's greatest learning opportunities often come from things that go wrong. Only businesses that are properly vested in learning from mistakes are truly positioned to maximise their potential.

The aviation industry has this down to a fine art. When things go wrong, the black box flight recorder ensures that their errors are "data rich". That industry's ability to learn from its mistakes has taken it from one of the most dangerous forms of transport to one of the safest.

The law is no different. As part of the world's largest law firm, our disputes team is also "data rich": so here we use our knowledge of why things go wrong to help you to either avoid disputes in the first place, or to identify opportunities for fighting your client's corner.

Health and safety compliance

Workplace accidents are caused by a multitude of factors. If we look back at the health and safety prosecutions which we have handled over the last few years, very few of them involved a complete failure to comply with health and safety duties. The organisations being prosecuted all conducted risk assessments, they trained their staff and they implemented safe systems of work. The mistake that we most commonly encounter is thinking that is the end of the process.

It is human nature to innovate. Give anyone a process to follow and, inevitably, they will develop a variation that they think is quicker, more efficient or more profitable. There is nothing wrong with that – all health and safety processes must be living documents that evolve with the business, and employee involvement in that evolution is essential. The problem arises when the quicker or more efficient process is less safe, as it so often is. All too frequently, management takes comfort that all of the required documents are in place, whilst on the shop floor the team has, over a number of years, developed its own way of working that no longer properly follows the corporate policies and procedures.

It is this divergence that becomes the focus of the HSE investigation which follows an accident. Why did senior management not know that the situation on the shop floor was different? Why did they not have a process for spot checks, audit and retraining to identify any divergence?

So, our key black box tip, drawing on our experience in health and safety cases is this: do not just take comfort from having the risk assessments, method statements and standard operating procedures in place. Only take comfort when you also have assurance that those processes remain suitable and sufficient for the work your business is doing and, most importantly, that your team continues to follow them on a daily basis. 

Previous Black Box Tips

• 5 October, 2022 - Black box tips from Dentons' Scottish Disputes team: The benefits of exclusive jurisdiction clauses
• 21 September, 2022 - Black box tips from Dentons' Scottish Disputes team: Interim interdict – proceed with caution
• 7 September 2022 - Black box tips from Dentons' Scottish Disputes team: Drafting dispute resolution clauses to avoid protracted disputes
• 24 August 2022 - Black box tips from Dentons' Scottish Disputes team: The duty to preserve evidence where litigation
• 10 August 2022 - Black box tips from Dentons' Scottish Disputes team: Ensuring the enforceability of exclusion and limitation clauses
• 27 July 2022 - Black Box Tips: Maintaining privilege over legal advice within an organisation
• 13 July 2022 - Black Box Tips: Ensuring your terms and conditions apply in a "battle of the forms"
• 29 June 2022 - Black Box Tips: No oral modification clauses