Amanda Brown and Tracey Harding gave evidence.

Q 69

We will now hear evidence from Amanda Brown, the assistant general secretary for advice, policy and campaigns at the National Union of Teachers, and Tracey Harding, head of health and safety at Unison. For this sitting, we have until 4.30 pm. Could the witnesses please introduce themselves for the record?

Tracey Harding: My name is Tracey Harding, and I am the head of health and safety at Unison. We represent 1.3 million workers who generally work in the public sector.

Amanda Brown: I am Amanda Brown, assistant general secretary for advice, policy and campaigns at the NUT. We have around 350,000 members, who are qualified teachers working both in schools and in colleges.

Q 70

Amanda and Tracey, before coming here in 2010, I spent 25 years working in education in schools and local authorities, regionally, nationally and all over the country. I have yet to come across a case of a teacher or a support assistant failing to intervene when a child was in an emergency situation. In non-emergency situations, I know that there can be concerns, but in my experience good risk assessment, good medical and psychological advice and training generally mean that staff feel quite happy about intervening, whether it is administering drugs or physical restraint. Have I been asleep on the job, or is there a desperate need out there that I am not aware of?

Tracey Harding: A need for this legislation, you mean? In those circumstances, I do not believe that there is. My concern with the Bill is whether it will cover employees in the workplace as well as in the public domain. For instance, our members regularly, as part of their job, do things that are for social benefit or could be classed as acting in an emergency or heroically. Will the Bill affect them while they are doing their work in an occupational capacity? If it does, that may have some unintended consequences for them and their liability or how their liability is perceived.

Q 71

In what way to you think the Bill will affect employer rights and protections? Can you give us any examples?

Tracey Harding: For instance, we have paramedics as part of our membership. If a paramedic were to give cardiopulmonary resuscitation to a member of the public and accidentally broke their rib while doing that—as it happens, that is not unusual—and the patient felt that they needed to sue because of that, at the moment they would sue the employer. That person would be covered under vicarious liability with their employer taking responsibility for their acts at work. With the Bill in place, an employer could say, as I believe someone said earlier, “We trained everyone but this person may have missed the training and we have generally shown a good approach to health and safety so we do not take responsibility.” Does that liability now stand with that paramedic?

Q 72

So you do not have any concerns about teachers or support staff—

Tracey Harding: Absolutely.

Q 73

Sorry, about them intervening when there are emergencies with children, but you think this may lessen the support around your members of staff.

Tracey Harding: I think it could impact on the paramedic, the teaching assistant and the sports recreation assistant all in similar ways if they have to intervene in an emergency. What happens if everyone is trained, but they missed that training and would not allow an emergency situation to go on without intervention and something goes wrong? Can that employer say that they had a generally good approach to health and safety and therefore that negates their liability so that it falls on the person who is doing that job?

Amanda Brown: I would agree broadly with what Tracey is saying. We certainly do not see that there is any reluctance on the part of teachers, particularly in emergency situations. Of course, people go into teaching because they want to participate in the public good and education for that purpose and to assist and help with the development of children and their education. Obviously, if there is an emergency, people’s immediate response is to react, to help and to try to protect the children in their care. In a less emergency situation people have a bit of an opportunity to think about it and to consider it, we can imagine that there might be some of those, but again that is not the driver for people in those occupations. They want to do the best for children and young people in their care and they will try to respond.

What they do look for, as Tracey said, is good training, and good discussion in advance with employers about the sorts of situations that might arise and how to avoid them. Our main thrust in terms of health and safety, problems at work and health and safety at work is to do all we can to assist employers to make sure their workplaces are safe. You can never remove all risk, but you can consider the likely foreseeable reasonable risks and do what you can to avoid them. That comes from discussion between people on the ground doing the work and those who have the management of that.

Q 74

It is not my area of expertise, but I have a perception that over the years there are fewer outdoor activities and that teachers take children away less than they did. How much of that is to do with concerns about being sued, and how much is to do just with general work load? That used to contribute to promotion, but not any longer.

Amanda Brown: We very much support out-of-school activities, school trips and adventurous activities—again, as long as the risks are assessed and there is some sort of proper but not overbearing avoidance of risk. We very much support that. I think there probably has been some reduction in the amount of adventurous and out-of-school activities. School trips can be anything from a week away to primary schoolchildren walking up the road to the library or swimming pool. It covers a vast number of different types of situation. It is not our experience that the reduction has to do with risk. It has more to do with other things: cost, resourcing, the availability of staff to undertake those activities.

Q 75

Thank you for coming today. Can I use the point about care in the hospital and the paramedic, or perhaps even a less highly trained individual? Paramedics, as you know, are incredibly highly trained. If you were sitting in the room, you may have heard the example of  a carer who effectively has a choice. They might not be prepared for the choice, but it has consequences either way. I used the example of an old lady with fluid on the lung: if they do not sit her up but keep her lying down, she may suffer, but the carer who happens to be on duty is a human being.

That is the problem. Human beings do not all say, “I haven’t got all my boxes ticked; I’m going to stand aside. I’m not going to intervene in a fight in a school, because I haven’t done the course on separating children in a fight.” People do that. By not doing something, they could cause something, and by doing something, they might hurt themselves, but often people do not put themselves before other people, especially in distress. Do you not think that the Bill, in that sense, gives them a defence and not just the employer? Your worry is that the employer will sidestep their employer liability, but if you accept that sidestep, based on this Bill, a similar defence is available for your member. Do you see what I mean? It could also protect your member individually.

Tracey Harding: From?

Q 76

In the example that you used of the paramedic, the paramedic could say to the court, “Could you have regard to the fact that I am doing it under Clause 2, ‘Social action’, to benefit society and people, or that I was generally responsible? I have done my training. I have done as much training as I could do, sometimes. I haven’t done everything. I am not perfect, but no one in court ever is perfect.” That defence will be available for an individual as well as an employer.

Tracey Harding: But at the moment, the individual does not have to go through that litigation themselves. It would go to their employer in the first instance. So, although it is slight support for them if it were to get to that point, at the moment, they do not need to think in those terms; they need to think, “This is my job, this is what I need to do. If something unfortunately goes wrong while I am doing my job and I am doing it to the best of my ability, I will not be the person in the dock at that point in time; it will be my employer. If my employer feels that I have done less than I should have done, they will take internal action towards me.” At the moment, that person does not need to think about being in court.

Amanda Brown: Just to add to that, we have had a very small number of cases where pupils or parents have decided to try to take legal action against the employer, and perhaps also against the individual, but it is a very small number. But we have also found that the current law has protected them equally, so there has been no issue about that. Because all the circumstances had been taken into account by the judiciary and the courts, liability has been covered already within existing law.

Q 77

On that point, maybe I can get a note or some clarification for the Committee. I am not sure that being employed by someone automatically removes them from their own liabilities. It is not a default setting that they are exempt from negligence just because they work for somebody, or maybe they are.

Tracey Harding: No, you do not have that. However, you would not be the first port of call. If you are doing this activity in the line of your work duty it would default to your employer and then work its way back to you, if that were the case.

Amanda Brown: And part of the reason for that would be that, if somebody wants to sue for compensation, they will sue the person who has the financial means to pay.

Q 78

Who has the insurance, perhaps.

Amanda Brown: Or the insurers. So you would not pick an individual, probably not very highly paid, working in the public sector.

In other words, the lawyers will go where the money is. I think that is what you are saying.

Q 79

I am intrigued by your answers so far, because I think the Government may say that your members are exactly the sort of people this Bill is designed to help. If you are engaged in teaching or voluntary activities outside school hours, or indeed in the course of ordinary employment, that should be more taken into consideration, as a consequence of the Bill. You seem to be saying that you are concerned that it will create a less safe environment in the workplace or outside. Could you tell us more about that?

Tracey Harding: I think it would be a more confusing state as opposed to a less safe one. I do not believe that it would possibly change the actions of people in emergencies. However, the consequences of those actions would be more confusing for them. They really do not know, if they intervene in that capacity in their working role, whether it is going to end up on their head. At the moment they have some level of protection inasmuch that they are in their working role. If something happens by accident—not deliberate negligence—they will not be the first person who is called to answer to that. It would be the employers and they would need to answer to their employers as to why they did what they did.

Amanda Brown: I agree with that completely. In addition, when I first looked at the Bill—and I am by background a lawyer, though an employment lawyer not a personal injury one—I was not clear what this was intended to achieve or how it would do it. There is also the wording. I came in just at the end of the previous session and I agree that the wording is very vague. One particular thing that concerns me is in clause 2, the social action clause. It is not clear about the link between the injury or activity that happens and the notion of somebody acting for the benefit of society.

I would be concerned in an employer’s liability situation that, if a teacher falls over or hurts themselves because there is a pothole in the playground, the school could say that it is acting for the benefit of society, therefore it is no longer liable for an injury in which it has been negligent. That is the concern; that there would be a lot of confusion about the legal situation and different arguments about what the benefit to society or any of its members means.

There is also the situation I mentioned before of a parent or in another situation—not employer’s liability—somebody suing a local authority school and perhaps a teacher, where there would be confusion about how the different clauses might apply to a hero teacher and a local authority or school that might be seen to be acting for the benefit of society. There could be a tension there and that would need some looking into. It became more unclear the more I thought about it, which meant it  would result in more confusion about exactly where responsibility might lie and how it might be judged by a court.

Q 80

So it is not that you think this will put less responsibility. I was asking, “Do you think this would put less responsibility on your members and, if it did, would that be good or bad?” You seem to be saying that you are just not sure what the effect of it will be.

Tracey Harding: We are just not sure what it is going to do. If it does—obviously, if the Bill goes through and it applies to our members when they are in the work situation—could that be a point at which it puts people off doing the kinds of jobs that they do, which are generally looked at as to the benefit of the social good? We work as teaching assistantss, police community support officers, paramedics, in general service and not particularly highly paid, and now they would be in a position where this Bill could make them more confused. If you wanted to become a paramedic and do something for the social good, but thought, “If I hurt someone while saving their life and I could be sued, do I want to take that risk?”

Amanda Brown: Sorry to butt in again, but in addition to that, in the employer’s liability situation, if somebody who is employed in the public sector thinks that their employer might have an additional defence because they were acting in the public good and for the public benefit, does that mean that those who are in the public sector, who we want to encourage to join the public sector and work for the public good, are going to be put off because they think that they will be more vulnerable than somebody in the public sector, if they were to get injured, because their employer will have an additional defence.

Q 81

Thanks for coming along today and particularly for giving your thoughts on the impact this will have on employees. I do not have the same experience of work in schools as the hon. Member for North West Durham has, which is clearly quite extensive, but I was taken by the evidence given by the NCVO and the impact that current environment has on volunteering. That was mentioned in other evidence sessions. As a parent with four kids, I am also cognisant of the fact that parents play a huge role in facilitating activities outside of school, including some of the trips that we talked about. Are you seeing any evidence of the engagement of parents on the decline, perhaps by primary school or by secondary school, in light of the culture that we find outside? The NCVOs clearly are and I wondered whether that was true across schools.

Amanda Brown: It is fair to say that we have not looked into that, specifically, but I have not heard any anecdotal evidence of that. We have heard—what was also mentioned earlier—about the safeguarding aspects, and we have heard that some parents might feel slightly put off by having lots of forms to fill in on safeguarding issues. However, I have not had any notifications of any kind about people being worried about risk and those sorts of things.

Q 82

Would that be true for many of your members?

Tracey Harding: I have not heard any evidence of that kind.

Q 83

I would just like to clarify both your assertions about why you think it makes your members more vulnerable, not less. Are you saying that this Bill removes from employers—your view—their responsibilities and is more likely to put it on the individual members and it is for that reason they might be deterred? Is that what you are saying?

Tracey Harding: I do not believe it removes it, but it may give the perception that their duty of care is lessened and, in turn, give that perception to the people who are working there that they become more vulnerable, because the perception would be that the employer’s duty of care is lessened.

Amanda Brown: I agree, and I think that it will give opportunities for all sorts of arguments about what those clauses mean. Therefore there will be the danger of more litigation about it—more threats of litigation about it. I do not think it changes the position much, on the face Bill, but I do think that it could give the perception. People will assume that it is intended to do something, which presumably would be something along those lines. Again, the Compensation Act was mentioned, and people will assume that it is intended to do something different to that.

Q 84

Can I clarify the current position? You talked about vicarious liability of the employer. My understanding is that if an employee does precisely what they have been trained for, and what fits in with the employer’s policies and a child gets injured, then the employee is covered by the employer’s vicarious liability insurance. But if the employee steps outside of that and does something that would not be covered by the policy of the authority or the school, or if they do something that they have not been trained to do, it would necessarily open up the employee to being sued. That is the current position. Is that right?

Tracey Harding: That is the current position.

Q 85

Right. On the subject of Mr Wallace’s old lady, I was involved with the case of a child who had breathing difficulties and brittle bones. The child needed exercise to clear the lungs, but by giving the child exercise bones were very likely to be broken, and were broken. In that situation, the tipping point is the medical advice that says, “On balance, you must give the child exercise, knowing that bones will be broken.” Employees are covered in that kind of situation, but if the employee does something that does not fit in with that, they would open themselves up. What is there in the Bill that will change that?

Amanda Brown: I have a slightly different view on the last question. If an employee deliberately and clearly acts against the instructions, advice, et cetera, that they have been given by their employer, the employer might well say, “We are not responsible. We’ve done all we possibly could.” In my experience, things are not normally that clear. There are normally shades of grey between doing what you are instructed to do. There are all sorts of things. Was the training sufficient? Was it given? Had the situation ever been talked about? Situations sometimes arise that have not been talked about.

I do not agree that it is quite as clear-cut as you express, although perhaps you did not intend it in that way. I do not think the Bill particularly changes that, but, again, it goes back to perception. I believe that people will think that the Bill could change it. Even though the Bill says,

“The court must have regard to”

it, the Bill does not say in what way the court should have regard to it. The Bill does not tell you what to do; it just says to treat it as part of the circumstances, which, as far as I am aware, courts already do. There is a danger of a lack of clarity about what acting for the benefit of society means for employers, because I would say that a school or a hospital is always acting for the benefit of society. So how does that relate to a particular accident that an individual has in their employment? Does it give them carte blanche?

Q 86

So it is more about definition than lack of clarity?

Tracey Harding: Yes. Lots of wording is unclear, which is what makes it difficult for us to interpret the consequences for our members. That, in itself, is an issue because, at the moment, we are quite clear about what we have to do. If we are trained to do a particular thing, we go with our training and something unfortunate happens, we have done what we need to do within the scope of our job. The Bill is bringing in a layer of uncertainty.

There being no further questions from members, I thank the witnesses on behalf of the Committee for their evidence today. That concludes our business for the afternoon.

Ordered, That further consideration be now adjourned. —(Mr Wallace.)

Adjourned till Tuesday 9 September at five minutes to Nine o’clock.

Written evidence to be reported to the House

SA 01 Cheshire Fire and Rescue Service

SA 02 Association of Personal Injury Lawyers

SA 03 St John Ambulance