Just a quick question for all of you that haven’t gone to Harrogate!!
Theoretically, if a trained spraying operator was to have an accident in any such way while spraying i.e. accidental contamination of another area, water course or Joe public and it was found that the correct safety procedures weren’t in place due to the company either a) not providing them or b) not enforcing them, who would be at fault? Could the sprayer operator be held responsible for knowingly spraying outside of the law in which he passed his proficiency test or would it stop with the company?
I’m guessing that most of you will say that the operator should refuse to spray without the correct safety procedures in place but unfortunately it does happen!
This is honestly theoretically and I am just interested in the legalities of this area
19 Jan 2009 by Mike
The operator and the company are both at fault. Initially, the operator should not be asked to spray illegally, it is the operators duty to refuse. If the operator refuses to carry out the task, the employer cannot victimise or discipline the employee, to do so would be a breach of contract. By asking an unqualified oprator to undertake such a task is a further breach of contract on the employers part. If the employee goes ahead with the spraying then he too, could be held liable.
And yes, this type of thing does happen.
19 Jan 2009 by GaryA Last edited 19 Jan 2009
You've partly answered your own question.
It is most likely that both the company and the operator would be at fault
Hope this helps!
Edit to add - beat me to it Mike!
Be Just and Fear Not
Thanks guys,
Another question would be, what would the consequences be?
19 Jan 2009 by Steve63 Last edited 19 Jan 2009
A custodial sentance and/or fines for both parties upto, I believe £5000, depending upon the consequences of the "incident". For instance if a full container of pesticide was tipped down a drain then the full force of the law would be envisaged.
This is only from discussions about this from some 10-15 years ago so please do not take it as gospel, I am sure it was from a reasonable source though.
Best Regards
Steve
edit p.s. Maybe Jon Allbutt would know, he is as well informed as anyone in this particular field.
Don't talk to me about Contractors Wonka, I am one myself......
The operator would be held liable, as mike says it is the operators duty to refuse if conditions are wrong or safety measures not met -it is his/her name on the spraying licence.
It is down to the company to provide adequate safety measures for the task to be carried out safely, if safety boots for example are needed for jobs then it is the companys responsibility to provide them.
Carry out a risk / coshh assessment, and list the control measures on this, if you cannot or the company will not control these then refuse to carry out the job, i know it is easy to sit here and say that, but the consequences are far worse, upto , i believe, a 20K fine and or imprisonment.
19 Jan 2009 by Mike
To add to what Neil and Steve said regarding the consequences, you could also kiss goodbye to your career, and that is something that you can't put a price on.
Thanks for all your responses so far.
I just want to make something a bit clearer, I am by no way in this position myself, as i said itis purely theoretical. It has been a topic of conversation that has been raised in recent weeks at work. We are looking at 'tweaking' our methods of spraying and storing and transporting pesticides but we are certainly within the law at the moment.
I think its a fasinating area where 'old school' methods of greenkeeping meets fast becoming H&S mad world. The extent to which I have seen spraying techniques change over the last 10 years as awareness and education has increased is huge!!
This is still an area where i believe many courses will probably still be behind current legislation, but also an area that I haven't ever seen enforced!
Thanks for all the replies and keep them coming if anyone has anything else to add, maybe where the penatlies for illegal spraying can be found, I'd like to get some printed info on this for our spraying H&S board!
20 Jan 2009 by Mike Last edited 20 Jan 2009
Are we in a H&S mad world? Most would say yes... until an accident happens, and when it an accident does happen, its the biggest reality check you could ever wish to see.
I view H&S as reinforcement of common sense. If you apply common sense to every task, nine times out of ten you will be satisfying the H&S criteria, so what is the big deal? Yes, there can be a lot of red tape nowadays, but that's not the fault of H&S. It is part and parcel of the world we live in today, blame the compensation culture. Basically, we have created a monster, but in all fairness, that monster will only bite the backside of those who are negligent.
If you want to look at the possible penalties for spraying illegally, go and have a look at http://www.emplaw.co.uk/emplaw/employee/research-employee.aspx
Don't just focus on the coshh regs, to do this you would only be scratching the surface of what could happen. Say you do spray illegally and or dangerously, you are immediately looking at breach of the Health and Safety at Work Act 1974 (this can be a criminal offence, civil liabilty is also a possibilty), breach of the Management of Health and Safety at Work Regulations 1999 and breach of the Control of Substances Hazardous to Health (Amendment) Regulations 2004 .
Say you refuse to spray, what can happen? If your employer follows the letter of the law, they cannot take any action against you, unfortunately this is not always the case. What usually leads on from refusing to carry out a requested task is victimisation, possible dismissal, bullying, subject detriment etc. Such treatment can lead onto stress, increased staff turnover, reduced productivity - the costs to an organisation can be enormous, and that's before you even consider the legal aspect. If you do get harrassed/dismissed for refusing to carry out a task, you are potentially looking at breach of the Health and Safety at Work etc Act 1974, Management of Health and Safety at Work Regulations 1999, repudiation of contract, breach of Employment Rights Act 1996, breach of The Protection from Harassment Act 1997 and breach of the implied terms of the contract of employment.
Any lawyer worth his salt would probably be able to find a lot more than I have listed above. This is a potentially very serious matter, and as an employee, it would be very wise to know your rights, and to know your duties regarding H&S.
ajames, I'm not sure that the fines are limited to 5K I think they can go way way above that and custodial sentences are certainly possible depending on the severity of what happened.
I believe both the Operator and the Employer can be held responsible and either or both can face imprisonment.
Of course there's no bounce, bend your back and put some bloody effort in.
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