Event Review Boards & Board of Appeal

by Rudy Pont

As explained throughout this special edition of the Cockpit Flash, BeCA strongly supports the new regulation and believes that it is a powerful piece of legislation that will contribute to the improvement of flight safety – provided we, as the first contributors of the system, feed the report database. However, as every law, it is not perfect. Although the new regulation puts plenty of emphasis on Just Culture (it is mentioned 11 times!) and the protection of the reporter, it does not describe HOW this should be implemented. In other words there is currently no guidance on determining the ‘line in the sand’ between intentional violation and a no-blame error.

As explained throughout this special edition of the Cockpit Flash, BeCA strongly supports the new regulation and believes that it is a powerful piece of legislation that will contribute to the improvement of flight safety – provided we, as the first contributors of the system, feed the report database. However, as every law, it is not perfect. Although the new regulation puts plenty of emphasis on Just Culture (it is mentioned 11 times!) and the protection of the reporter, it does not describe HOW this should be implemented. In other words there is currently no guidance on determining the ‘line in the sand’ between intentional violation and a no-blame error.

Even with signed Safety Policy and Safety Management Manual (SMM) flow-charts in place, we see real-life examples of operators failing to act in a just and fair way (Hudson, et al., 2008). The reason is simple: every incident or accident is different. It is a complex interaction of factors and the justness of the actions depends on the subjective and hindsight-troubled interpretation of the analyst.

In close cooperation with the aviation safety stakeholers, the European Commission finalised in Decemberis the so-called “Guidance Material” of this legislation (it will be published shortly on EASA website. As its name suggests, guidance material are a set of (non-binding) recommendations issued by the European Commission in order to guide Member States and organisations in implementing the (binding) rules laid down in the regulation. The downside is that if airlines and Member States don’t want to apply them, they are free to do so.

National “body of appeal”

Fortunately, the regulation (Art. 16) demands the designation of a body responsible for the correct implementation of Just Culture and the reporter’s protection, where “Employees and contracted personnel may report […] alleged infringements of the rules”. “The designated body shall advise the relevant authorities of its Member State concerning remedies or penalties.” Furthermore, the reporter can inform the European Commission if they think the NAA did not decide fairly, which makes the Commission the final authority on disputed cases.

Even with signed Safety Policy and Safety Management Manual (SMM) flow-charts in place, we see real-life examples of operators failing to act in a fair way.

In theory, all situations are apparently covered. The trouble is that the regulation clearly states that it acts “without prejudice to applicable national criminal law.” This is where the judicial world comes into play. Prosecutors will have a potentially important, but tricky role in the final say on the reporter’s decisions. We can understand now how crucial it is to establish cooperation with the judicial world, to educate them on Just Cultures principles and mechanisms. Despite the laudable initiatives such as the Just Culture Task Force (JCTF) and Just Culture Prosecutor Expert Course (Eurocontrol, 2014), other tools are needed, such as an event review committee.

Event review committee

Here, we have an amazing opportunity to tackle the issue of HOW to assess if a reported occurrence was an act of wilful misconduct or a no-blame error. Because of the complexity and uniqueness of each occurrence, there cannot be a one-size-fits-all solution. The idea is therefore to create an event committee at airline level, where delegates from both the company and labour association(s) – and incidentally the NAA – meet in order to discuss reports confidentially and according to Just Culture principles.

This is not a new concept. In the United States, ASAP  (FAA Aviation Safety Action Program) reports are assessed by a so-called Event Review Committee (ERC) (FAA, 2014). This ERC consists of trained representatives from the company, the authority and the employees. It is responsible for analysing the reports; identifying potential safety issues and proposing corrective actions.

Surely the reporting system in Europe is more fragmented (often due to national interests). However, the idea of having a balanced “group of sages” may avoid many (judicial) escalations. Especially during the time needed for the (just) cultural change in how we deal with human error. Furthermore, it will encourage an open discussion, increase the trust between employees, management and the authorities and be an invaluable source of information for all parties. All of these are pre-requisites to achieve and improve a “Just Safety Culture”.

BeCA calls for the establishment of event review committees at airline level, where staff and management will discuss and analyse occurrence reports.

The way forward

Some operators already have similar structures in place (e.g. within the SAG), but for a lot of other operators, fear still rules. Of course, they have framed safety policies hanging in every office, but what is it worth when it becomes difficult to balance on the thin line of culpability? Especially for smaller operators, a legal requirement of having a review committee in place at company level might help employees to bring external expertise (such as provided by pilot associations) to the table.

In this context, BeCA will keep discussing with the BCAA and management to ensure that:

• The National Board of Appeal is created and includes subject matter experts, human factors specialists and staff representatives.
• Event review committees are put into place in all airlines, composed of representatives of staff and management.

At the same time, we will continue promoting the new regulation and encouraging all pilots to report all occurrences and inaccurate decisions. It is now up to us to make the system work!