The AGS are pleased to announce a new webinar will take place on Wednesday 25th September. Chaired by Emma Cronin (Socotec), the webinar will focus on Cone Penetration Testing and the latest guidance note on this topic.
More details regarding content, timings and speakers will be announced in due course.
The phone rings, it’s our seventeen year-old daughter’s school. They have excluded Mandy and sent her home. She has been caught “selling” her homework to kids in her class.
Just as we hang up the phone Mandy comes through the front door.
What are we going to say/ do?
1. Tell her off/ punish her
2. Ask her why she did what she did in a very parental style (raised voice/ pointing finger etc), and then do 1 above.
3. Do nothing, ignore what the school has reported, for fear of conflict
4. Concentrate on the positive ……. We never realised how entrepreneurial she was!
The first two options above are likely to negatively affect the relationship with her, and probably won’t solve the issue/ problem. Options 3 and 4 avoid dealing with the problem, and therefore won’t solve it either.
So what can we do?
5. We can choose the right time to have the conversation …. Maybe we have to calm down after the conversation with the school before we can have an effective conversation with her about it. Then we need to discuss what happened in a private and comfortable setting. We can ask for Mandy’s side of the story, and listen carefully to what she has to say. We can use open questions (Who, What, When, Where, How, Why (curious not accusing) and Which) to elicit as much information as possible. We can probe around the undesired behaviour to try to find out as much as possible the reasons behind it. We can then move the conversation on to the consequences of this behaviour, with “What if?” questions. We can also introduce praise and encouragement for the desired behaviour(s).
So, let’s say that Mandy was selling her homework for £1 per subject per night’s homework. When we probe a bit deeper we find out that she was selling it across 5 subjects and to twelve of her classmates, each of whom needed two nights homework to copy in a week. Wow! Mandy has earned well over £100 in a week with the expense of virtually no time, effort and energy on her part.
Whilst a part of us might be impressed by the entrepreneurial nature displayed here, we would also been concerned about what Mandy was doing with £100 a week, when there are no visible signs of her having spent a lot of money. Maybe she’s been bullied for the money, or has a habit she needs to feed!!!
Again only through calm questioning, where we aim to elicit as much information as possible, without blame, can we find out the real reason, rather than jumping to conclusions. One way to do this is to use the TED technique. Where we might ask “Tell me some more about that?”, or “Explain how that would work?”, or “Describe what success would look like here?” With the TED technique we ask questions that encourage the other person to open-up, and then we listen …… remembering the 30:70 rule (where they talk more than twice as much as us).
It turns out that Mandy was trying to raise £700 for a car, so she could give her mum a lift to/ and from work in the evenings and save her standing at bus-stops in the dark and rain. We can then discuss with her the consequences of her actions, for example she could be permanently excluded from school and the knock-on consequences this could have on her gaining qualifications and the job/ career/ study opportunities she wants. Also that her classmates won’t learn if they merely “copy” her homework, and will therefore probably fail their exams. Then we can ask about other ways that Mandy could earn £700. She may suggest being paid to “tutor” her classmates so that not only do they hand in correct homework, but have also learnt the subject when it comes to exam time, and therefore stand a better chance of passing. She may also suggest doing jobs around the house that we could pay her for. Notice how the suggestions should come from her? People commit more strongly when it’s their own idea/suggestion.
With options 1 to 4 above we were fulfilling one of the strongest habitual behaviour patterns known … the Parent: Child relationship. With Option 5 we were instigating an Adult to Adult conversation. With this option, we:
• Gain an understanding of the reasons behind a specific behaviour (desired or not),
• Praise, reward, share desired behaviours,
• Identify ways to change the environment (Physical and Cultural) to help prevent undesired behaviours,
• Discuss the consequences of undesired behaviour(s), and therefore gain commitment from the person not to repeat them, and
• Encourage the adoption of desired behaviours.
These are just some of the potential benefits of having effective Safety Conversations. Others include keeping people mindful, engaging them, giving them ownership and asking for their ideas and input.
So that’s the theory – what about the practice? Well, it is a skill that can be taught and developed – and I do!. Whilst it’s best done in a workshop environment here’s a principle and top five tips that will help you have those conversations you’re tempted to put off.
The general principle is that we need to start by looking at human nature and understanding human behaviour, communication is most effective if the context is understood. So, start from the mindset -that for almost every behaviour, there is always a reason
1) The main focus of an effective safety conversation is to be “curious”. To find out “why” people have behaved the way they have, so that:
(i) If it’s good we can look to share it, and positively reinforce it through praise, encouragement and/ or reward.
(ii) If it’s not good we can investigate the root cause(s) and change the environment in an effort to make improvements. Through effective questioning and support we can also elicit a glad , not grudging promise, to do it differently next time.
2) There are different types of Safety conversations and it’s important to pick the appropriate type. Pre-work and Post Incident are just two of them, and their very different styles and content, will be more/ less effective depending upon the situation.
3) Make time to practice, preferably in an “emotionally safe” environment with people you can trust.
4) Feedback is key and two-way of course so you need to practice:
(a) Receiving feedback on safety conversations facilitated,
(b) Giving feedback to others on safety conversations observed, and
5) Build a useful checklist of the steps to holding an effective safety conversation to keep as a handy reference to refer to when you’re planning your next conversation.
Article contributed by Quentin Emery, Principal Consultant of RyderMarsh OCAID Limited
Written by AGS Loss Prevention Group Working Member, Zita Mansi, BLM
An AGS Member called the AGS Contracts helpline to enquire whether she could legitimately include, in her standard terms and conditions, a clause which limited her contractual liability to a period of 6 years from the date of the contract. The AGS Loss Prevention Working Group considered this an opportune moment to remind AGS Members of some key principles:
Statutory Limitation Periods
The Limitation Act 1980 sets out “limitation periods” for various types of claims. The precise calculation of a limitation period can be complex but, in essence, the Act provides for a limitation period of:
Once the relevant limitation period has expired, the defendant has a complete defence to the claim.
In the caller’s case, the six year period provided for in the standard terms ran from the date of the contract (rather than the date of the breach) and was therefore likely to expire sooner than the statutory limitation period.
Agreeing a Different Limitation Period
Contracting parties may contract out of the statutory limitation periods, either by agreeing a longer or shorter limitation period than that prescribed under the Act.
A contractual term that imposes a shorter limitation period than provided under the Act may be subject to the reasonableness test under the Unfair Contract Terms Act 1977 (UCTA) particularly where parties are doing business on one of the parties’ written standard terms of business. The court’s decision on the enforceability of a clause will depend on the specific facts in each case, please see Amec v Elvanite article here. Broadly speaking, the clarity of the wording of the clause, the relevant bargaining position of the parties, and whether the client knew or ought reasonably to have known of the existence of the limitation clause will be important considerations.
Note: Limitation Periods are not the same as Defects Liability Periods!
As stated above, once the relevant limitation period has expired, the defendant has a complete defence to the claim.
The defects liability period (“DLP”), however, is the period of time within which the contractor is contractually obliged to return to the construction site to repair defects which have appeared in the contractor’s works. It is important to note, however, that the expiry of the DLP does not provide a defence to any claims for breach of contract. On the contrary, it would be unusual for the client to sue the contractor within the DLP unless the contractor had made clear his refusal to carry out the remedial works requested.
The DLP usually commences on practical or substantial completion and extends for a specified period, commonly 12 months. The DLP provides a mechanism for the making good of defects which either do not need to be completed prior to practical completion or which become apparent after practical completion without the need for the parties to resort to dispute resolution. A DLP will not be implied by statute: it will only feature in the contract if the parties expressly agree to include it.
Introduction
This new Act came into force on 6th April 2008. An offence is committed if the manner in which an organisation manages or organises its activities causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. This is a corporate crime and not an individual crime. There is now no need to identify a person controlling or directing the mind of an organisation, who is also guilty of the offence of gross negligence manslaughter, before the corporation can be convicted of the same offence. The only sentencing option available to the court on a corporate manslaughter conviction will be a fine. However, it is envisaged that considerable stigma will attached to a conviction. In addition senior management might feel compelled to resign and if they do not resign there are likely to be grounds for dismissal of some or all of the senior managers responsible for the gross breach of duty.
Details of the ‘new’ offence
The way in which the organisation is managed by its senior management has to be a substantial element in the breach of the duty of care. It is a matter for the judge to establish whether a duty of care is owed.
Factors to be taken into account by the jury are whether there has been a breach of any relevant health and safety legislation, the seriousness of the breach and how much of a risk of death was posed by it. The jury may consider whether the culture, policy, systems and procedures in the organisation encouraged failure to comply with health and safety regulatory legislation or guidance.
Senior management means either those who play a significant role in making decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised, or those who play a significant role in the actual managing or organising of the whole or a substantial part of those activities.
Under Section 9 of the Act it is open to any court convicting of corporate manslaughter to make an order, called a remedial order, requiring the organisation to take specified steps to remedy the breach, to remedy any matters which contributed to the cause of death, and to remedy any deficiency in the organisation’s policy, systems or practices relating to health and safety.
Under Section 10 of this Act the court has a power to order an organisation to publish the fact that it has been convicted of the offence, to specify the particulars of the offence, the amount of any fine imposed and the terms of any remedial order made.
Commentary
The Act is clearly a reaction to a long held belief that those who put profit before safety at the expense of lives should suffer a sanction more significant than can be imposed by the Health and Safety at Work Act 1974. The clear target at the time of the consultation and publication of the bill was large organisations whose activities cost life where there should have been no such risk.
The offence will now be committed if the breach that is a substantial cause of the death can be placed at the door of senior management who make the decisions about how an organisation is run from a strategic level, or is made by those at a senior operational level. The Act is not designed to produce a prosecution in circumstances where appropriate strategic management exists, and appropriate operational management exists, but a significant failure is made at a junior operational level.
A more detailed version of the above article will be incorporated into the AGS Loss Prevention Working Group Tool Kit, but until then, if more details are required, please contact Berrymans Lace Mawer on the AGS Legal Helpline.
All too often Site Investigation work is seen solely to provide soil strength parameters to enable economical foundation design. There is a need for the site investigation industry to make clients more aware that the aggressive nature of the ground should also be accurately determined if adequate precautions are to be taken in the design of a durable concrete for use in the foundations.
The problems associated with the thaumasite form of sulfate attack (TSA) have been well documented and in August 2001 BRE Special Digest 1 was published. Part 1 of the digest is particularly relevant to the site investigation industry. Without the necessary soil and ground water testing to determine the extent of those aggressive chemicals present at a particular site the concrete cannot be designed in accordance with best practice. It is where possible beneficial to have results from both groundwater and soil samples.
Many Site Investigation reports are issued without fundamental site-related parameters to enable the adequate design of the concrete.
The site assessment procedures should vary depending on whether the site can be defined as natural ground, brownfield containing industrial wastes or pyritic ground, reference to BRE Special Digest 1 should be made for full details.
In general it will be necessary to determine the water soluble sulfate in 2:1 water/soil extracts and the pH in 2.5:1 water/soil extracts. Many Site Investigations where they report any chemical testing only show an occasional soluble sulfate result which is often inadequate to determine the Design Classification for the concrete mix. Where the sulfate in the soil extract exceeds 3.7 g/l SO4 or in the groundwater sample exceeds 3.0 g/l SO4 it is necessary to also determine the Magnesium content. The mobility or otherwise of the groundwater on site also has an affect and should be established.
Where a site is brownfield it will generally be necessary to obtain the Chloride and Nitrate content in both the soil and groundwater samples if the aggressive chemical environment for the concrete is to be accurately determined. Where Pyritic ground conditions are anticipated more substantive testing is required to enable the total potential Sulfate and hence the concrete design requirements to be determined, for full details reference should be made to BRE Special Digest 1.
It should be apparent from the above that greater consideration needs to be given to determining the aggressive chemical environment at the site investigation stage than is currently the case, to determine site-related parameters for strength in one site investigation and then undertake further work at a later date to enable the Aggressive Chemical Environment for Concrete to be determined is no way for the industry to improve its standards or its advice to clients.
It should also be noted that BRE Special Digest 1 has superseded BRE 363.
D.Brightman Technical Manager, Rock & Alluvium
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