Oil & Gas UK recently announced its intention to publish new guidelines with respect to the somewhat contentious practice offshore colloquially known as “NRB”, or “not required back”.
This latest move follows repeated calls from unions representing offshore workers for an end to this practice whereby the duty-holder of the installation, represented by the offshore installation manager (OIM), can require removal of any person where this is considered necessary – the OIM acting, in this respect, in a similar manner to a ship’s captain.
Unions argue that, once an individual is “NRB” from one installation, they have effectively been “blacklisted” and that, in effect, an “NRB” event removes an individual not just from a particular installation, but also from the entire offshore industry in the North Sea.
The reason why this power has attracted so much attention is that most personnel on board the installation will not be employees of the duty-holder, but will be engaged indirectly through a contract with a service provider.
This means that, in the majority of cases, an individual who is removed will have very limited ability to challenge the decision of the duty-holder.
The contracts in place between the duty-holder and the companies providing personnel and other services will usually contain a clause relating to the removal of personnel.
These can vary widely: in some instances, there will be a total discretion available to the duty-holder, while others will include detailed provisions setting out the (limited) circumstances in which the power can be exercised and the process by which the contractor can question or challenge its use.
Even if there is no contractual clause, the OIM will still have his inherent ability to remove a person he believes causes a risk to safety.
In either case, where the power is exercised, the worker’s employer cannot rely solely on its client’s decision to remove the worker as also justifying bringing the employment to an end. It must ensure that the correct process is followed, and also that the reason it relies upon for dismissal is one which justifies dismissal in the particular circumstances of the case.
This may be relatively simple in a case where, for example, the worker has been removed due to misconduct which has been established through a full investigation.
However, some removals will not provide a fair reason, in themselves, for dismissal. In these cases, the employer must consider whether it can either challenge the client decision or find alternative duties for the affected worker.
Some commentators have questioned how far a contractor can go in practical terms in challenging the decision of its client, but this is clearly the safest approach for an employer in managing its risk of employment claims. However, if a challenge is unsuccessful and/or other duties unavailable, the employer may be able to dismiss fairly, not because of the client decision directly, but rather due to the resulting lack of work available to offer the worker.
The Aberdeen employment tribunal has seen numerous challenges to such dismissals following the removal of an individual by the duty-holder, but where the employer has complied with the duties described above, the employee’s rights are likely to be limited. For this reason, employers are well advised to seek employment-law advice before proceeding with dismissal.
The guidance proposed by Oil & Gas UK, like the guidance introduced in 2004 by UKOOA before it, will seek to control, rather than prevent, the “NRB” process, by requiring a proper procedure to be followed and reasons to be given for any removal. Oil & Gas UK recognises that the previous guidelines have had limited impact due to a lack of buy-in from all sides, and it is this that it has indicated it will seek to rectify. It remains to be seen if this will be possible, given the conflicting priorities of the various parties and the limit to which any such guidance could be imposed on companies, but only time will tell.
Penelope Warne is head of energy at CMS Cameron McKenna, which has 55 offices in 24 countries