Non-compliance with Health and Safety Legislation is set to become more expensive from April 2012.

From that date, ‘fee for intervention’ arrangements are due to come into force whereby the HSE will be legally obliged to recover costs from duty holders who are found to be in breach of health and safety laws to the point where formal intervention is required.

Intervention in these circumstances includes such actions as:

• Issue of an Improvement or Prohibition Notice
• Other communication by letter or e-mail

Intervention fees are estimated to come in around £133 per hour, which has been calculated as an average rate for all levels of HSE staff except those who work at the Health and Safety Laboratory. In addition, if non-HSE specialist services are required or work by the Health and safety Laboratory, the actual costs of these services will be passed on directly to the duty holder.

These costs don’t only apply to the initial intervention but continue to accrue for any follow up activities that the HSE considers necessary such as writing letters, drafting reports, additional telephone calls or site visits.

It is easy to see that organisations that fall foul of an HSE inspection could be facing significant costs and if they don’t act quickly to correct any breach that has been found, the costs will continue to mount up. Furthermore, this is a legal requirement on the HSE so that their inspectors will have no room to exercise discretion, whatever mitigating circumstances there might be.

Exceptions to Intervention Fees

At the present time, this legal requirement applies only to inspections undertaken by the HSE. It does not apply to inspections undertaken by local authority officers, although this could change and the government is actively seeking the views of local authorities on this matter.

There are also a number of industry sectors where the fees would not apply, in particular where costs are already recovered under existing legislation, such as top tier COMAH sites, offshore gas and oil installations, licensed nuclear installations and some pipeline activities.

There are a few other exceptions, for example work with high-hazard biological agents, due to the fact that separate legislation is in the pipeline for these sectors that will include cost recovery.

We should emphasise that intervention fees apply where there is a material breach of health and safety legislation that requires intervention on the part of the HSE. If there is an HSE inspection that does not identify any non-compliance or something that is a mere technicality, then no fees are payable under this legislation.

Consultation Exercise

The imposition of Intervention fees across England, Scotland and Wales is already agreed by the government so it is definitely coming. However, the exact systems whereby such fees will be imposed and collected are still a matter for consultation.

The consultation period runs from 22nd July to the 14th October 2011 and if you want to contribute your views you can find full details of the consultation and how to respond on the HSE Website at – http://consultations.hse.gov.uk/consult.ti/cd235/consultationHome.

The primary message is that non-compliance is becoming a more costly option. The HSE’s Programme Director is quoted as stating:

“The Government has agreed that it is right that those who break the law should pay their fair share of the costs to put things right – and not the public purse. These proposals provide a further incentive for people to operate within the law.”

The clear aim of the government is to encourage all organisations to be pro-active in ensuring they comply with health and safety legislation rather than waiting for an HSE inspector to call and identify problems before acting to correct them.

This is the realm of Health and Safety Audits that examine all aspects of your health and safety. One objective of an audit is to identify areas of non-compliance. Another is to recommend changes that can save costs in other areas of your organisation such as sickness absence, recruitment, training or insurance costs.

Just like your financial systems, your health and safety systems can benefit from being audited and there has never been a greater incentive for doing so than now.

Contact one of our sales team to discuss how we can help you to comply with the law and save yourself money at the same time.

It seems incredible that when we are looking forward to an event that is of world-wide interest – we’re referring to the Royal Wedding of course – that a government department finds it necessary to warn officials not to use Health and Safety as an excuse for suppressing celebrations.

Not everybody, of course, is in favour of royalty but even the most ardent anti-royalist would prefer to make their case on the basis of facts, and reasoned argument rather than seek to disrupt the event by calling on regulations that are designed to save lives in the workplace rather than constrain national celebrations.

Nevertheless, the Health and Safety Executive felt it necessary to issue a press release advising how to respond to officials who attempt to cite Health and Safety as a reason for constraining celebrations of the royal wedding.

This is another attempt by the HSE and the government to re-focus attention on the true reason for, and the genuine benefits from Health and Safety legislation. It is another step in the government’s campaign, which began with the publication of Lord Young’s report in October 2010, to free health and safety from the unhealthy and unhelpful reputation that has developed in recent years.

Chris Grayling – Minister for Health and Safety – is quoted as saying:

“The Royal Wedding will be a great national occasion, and I want to reassure everyone that they can have street parties with friends and family and bring out the bunting to celebrate in time-honoured British tradition. There is no reason whatsoever for anyone to ban these celebrations on the grounds of health and safety.”

The overall message, therefore is to use common sense, take care and thoroughly enjoy the occasion,

Read the HSE Press Release

Last year we ran an article announcing a review of Health and Safety headed up by Lord Young and asking for your opinions about the current state of Health and Safety legislation.

Recommendations accepted

Lord Young has now moved on, but the report was published and we have seen some developments on the back of what he had to say, including, for example, the establishment of a register of Health and Safety professionals who are sufficiently well qualified to offer advice to businesses.

In fact, the government accepted all the recommendations in Lord Young’s report and is busy implementing them. They have published a report in which they document their progress against each of the proposals.

Launch of a new review

This month, the government has announced the launch of a further review, entitled “Good Health and Safety, Good for Everyone” that is focusing on Health and Safety regulation.

In this review, the government is aiming to strike “the right balance” between, on the one hand, protecting people’s safety and health in the workplace and, on the other hand, avoiding excessive and unnecessary red tape and bureaucracy.

As the government sees it, there are three primary areas that need to be addressed:

• The first area concerns the poor advice to businesses from rogue health and safety advisers. It is to address this aspect that the register of Occupational Safety and Health Consultants has been introduced.
• The second area is concerned with putting more effort into policing high risk industries, along with those businesses who are responsible for serious breaches of the regulations. At the same time the aim is to reduce the burden on low risk organisations that comply with the rules – and then make those who flout the law pay for the harm they cause.
• The third area is concerned with legislation and regulation of Health and Safety with the aim of reducing complexity and easing the burden on businesses.

Wide differences of opinion

As you might imagine there’s much disagreement as to where exactly the “right balance” should be struck. For example:

• Chris Grayling, who took over responsibility for reviewing Health and Safety from Lord Young, is quoted as saying,“Of course it is right to protect employees in the workplace, but Britain’s health and safety culture is also stifling business and holding back economic growth. The purpose of health and safety regulation is to protect people at work and rightly so. But we need common sense at the heart of the system”.” By reducing unnecessary red tape we can encourage businesses to come and invest in the UK, creating jobs and opportunities when we need them most”.
• On the other hand, TUC General Secretary, Brendan Barber stated:“Removing proactive inspections from a large number of workplaces means that employers can get away with ignoring the law until they kill or seriously injure someone. This is in no-one’s interests and will mean an increase in deaths and injuries, leading to a rush to the bottom as cowboy companies undercut responsible employers by cutting back on safety.’‘The proposals are not only bad for workers’ health and safety, they will also be bad for the economy as the health service and benefits system have to deal with the aftermath of more injuries and illnesses caused through unsafe work.

What is your view?

The last time we asked for your opinions, we received an interesting mix of responses, some of which we published (with permission) in a subsequent newsletter.

If you have views about this latest initiative we would really appreciate receiving them if you have a few minutes to drop us a line at feedback@edp-uk.com.

As on the previous occasion, unless you ask us to withhold your views, we will look at publishing them in the next few weeks. It will be particularly interesting to see if there is any discernable shift in attitudes over the intervening months.

Work at height has always been hazardous and in spite of everything that has been done over recent decades to improve this record, it is still a major cause of death and serious injury in the workplace.

With the introduction of new Work at Height Regulations in 2005, the definition of the term “at height” was changed to mean any place from which a worker could injure themselves from falling – even if the workplace is at or below ground level.

A couple of recent cases in the media highlight the issues around working at height:

• In one incident, a worker was standing on the roof of a house without any form of scaffolding, edge protection or other safety equipment. The person was using a power washer to clean the roof, creating a particularly hazardous surface. The man’s employer was prosecuted and had to pay more than £17,000 in fines and costs.More information about this case is available at
  http://www.hse.gov.uk/press/2011/coi-nw-84mdroofcoatings.htm
• In another case, a member of the public was seriously injured by scaffolding that collapsed on top of her because it was not properly secured to the building where it was being used. Part way through the work, the scaffolding had been lowered in height but no inspection carried out to ensure it was still secure. This was in contravention of the Work at Height Regulations. Both the scaffolding company and the construction company were found guilty and between them paid £19,000 in costs and fines.More information about this case is available at
  http://www.hse.gov.uk/press/2011/coi-ne-04211.htm

Who is Responsible?

The Work at Height Regulations define duties that apply to employers and to anyone else who controls the work of people who are working at height including, for example, the owners of buildings where work is being carried out.

Employees are also responsible for their own health and safety and, under the Work at Height Regulations, they have a specific duty to use safety equipment correctly and to report any safety issues that they notice.

How are You Required to Discharge these Duties?

Work at height needs to be properly managed. The risks are far too high and the history of accidents is too grim for a careless attitude.

The overriding priority is to do everything that is reasonably practicable to avoid someone falling and injuring themselves. Consequently, if possible, the job should be planned to avoid the need for working at height. If this is not practicable then everything should be done to minimise the risks, including:

Training

First of all everyone who is required to work at height must be trained and competent to do so in a safe manner. If not yet fully competent then they must be supervised by someone who is. Training must cover the risks, the safety precautions and how to avoid or minimise injury.

Planning

Risk assessments should be carried out and the work planned so that it can be undertaken safely. Planning includes an appropriate level of supervision and the procedures to follow should an emergency arise.

If the work is outdoors, planning must also take account of the weather, including the possibility of interrupting work should weather conditions be such as to endanger health and safety.

Safe Place of Work

Use work equipment and safety procedures that are designed to prevent anyone falling. When selecting equipment, take account of the nature of the work and the working conditions. All safety equipment must be inspected by a competent person before work begins and at regular intervals during the project to ensure there is no deterioration.

It is also important to manage the risk of people being injured from items of equipment falling from above. Safety precautions must take account of everyone who may be present on site as well as those who are actually working at height.

Individual Safety

If it is not practicable by general safety precautions to eliminate the risk of a fall, other measures should be put in place to minimise the consequences should there be a fall. There’s a wide range of equipment that can be used for this purpose including, for example, nets, airbags and fall arrest systems.

Fragile Surfaces

Fragile surfaces, such as glass roofs, skylights or old brittle roofing materials are a particular hazard for the unwary. Whenever practicable, avoid anyone going onto or even near a fragile surface and ensure everyone is aware of the dangers by posting prominent notices, for example.

If work on a fragile surface is unavoidable, then additional precautions should be put in place to minimise the specific risks associated with the work.

Additional Help

Whilst the general advice in this article applies to all situations where people are required to work at height, the variety of circumstances is such that there are always risks that are specific to each workplace.

If you are responsible for people working at height but you are not confident that you have all necessary precautions in place, then give us a call to discuss your situation with one of our consultants.

When most people think about lifting equipment, the first things that typically come to mind are the huge tower cranes that swing through the air over construction sites or perhaps the large transportable cranes that we often pass when driving down the motorway.

However, lifting equipment is far more pervasive, being used in a wide range of circumstances such as delivery and storage of goods in retail outlets, working beneath vehicles in a local garage or using a sling to lift a disabled person in a care home. In practice, there are probably few workplaces where lifting equipment is not used at one time or another.

The problem is that when things go wrong with lifting equipment, the consequences can be anything from mild inconvenience to catastrophic.

This is where the Lifting Operations and Lifting Equipment Regulations (LOLER) come into play. When these regulations became law, they superseded a number of earlier legal requirements and brought clarity to reducing risks associated with lifting equipment in the workplace.

The reason for LOLER is that there is a temptation to take lifting equipment for granted with the potential that gradual deterioration can go unnoticed until it fails with potentially tragic consequences. In fact incidents are regularly reported in the media where employers have been prosecuted for failing to properly maintain or use lifting equipment.

For example, there was a recent incident in a Newcastle warehouse where a 4 tonne girder that was being moved from one end of the warehouse to the other narrowly missed workers when the slings used to attach the girder to the crane failed. Because of inadequate planning, the wrong equipment was used for this operation and although nobody was actually injured it cost the company more than £15K in fines and costs, not to mention loss of time and damaging publicity.

Another case earlier this year involved a public house in West Bromwich in which the publican was prosecuted for failing to carry out routine checks on cellar lifting gear. Under the regulations routine examinations must be carried out by an independent and competent person. The results must be documented and retained by the employer as evidence that the checks have been carried out.

So what are the legal requirements in regard to lifting equipment?

In general, the regulations require that:

• Lifting equipment, which may be powered or manual, is sufficiently strong and stable for the work it is required to do. That means, of course, that it must be able to handle the heaviest load rather than the most typical load for which it is to be used.
• The equipment must be clearly marked to indicate what is the safe working load for which it can be used.
• Installation of the equipment or, if it is moveable, the positioning must be such as to minimise any risks associated with its use.
• All lifting operations must be properly planned and supervised by competent persons and the persons operating the equipment must be trained in how to use it safely.
• Thorough examinations of the lifting equipment must be carried out on a regular basis, along with accessories (such as slings, hooks or chains) and any devices use to secure it in position. Such examination must be carried out by a person who can demonstrate competency in such work.

Who is responsible for these legal requirements?

Employers have primary responsibility under LOLER for ensuring compliance with the regulations, whether they supply lifting equipment for use in the workplace or control the use of such equipment.

There is no mention in LOLER about responsibilities for employees but these responsibilities are adequately defined in the Health and Safety at Work Act, which requires employees to take reasonable care for their own safety and that of others who may be affected by their actions. This requirement applies when using lifting equipment every bit as much as in any other aspect of safety.

Those workplaces that make wide use of lifting equipment are likely to be most familiar with the regulations. They are likely to be less well understood by organisations and businesses that only use lifting equipment on an occasional basis.

It would be wise, therefore, to spend a little time identifying lifting equipment and operations in your workplace to ensure you are fully compliant with the Lifting Equipment and Lifting Operations Regulations. Failure to do so could prove expensive if an inspector calls and finds that you have not been carrying out routine checks or, even worse, you are using equipment that proves to be unsafe.

At EDP we include the requirements of LOLER whenever we undertake risk assessments in workplaces where lifting operations occur. If you are unsure about your own compliance or how to discharge your duties, then please get in touch with us for advice.

The winter is largely behind us and we are either in spring or soon will be, depending on which authority you listen to.

For many organisations this is the time of year to start thinking about corporate events. You know, the kind of activities we indulge in because we want to boost the morale of our workforce, perhaps team building events or maybe we want to organise something as part of our programme for Corporate Social Responsibility (CSR). Of course, whilst the warmer weather tends to be more conducive for such events, we may also organise them at other times of the year such as a firework display and bonfire around the 5th November or a staff party around Christmas time.

In recent years, many organisations have cut back on such activities – in part for financial reasons but also out of a fear that something might go wrong, which could damage the organisation in a variety of ways. The fear of litigation and all the negative consequences that could bring has become a real restraining influence.

Adopting a safety approach

There are, however, well defined procedures that can be put in place to minimise safety risks. There is no way to ensure risk is eradicated entirely but then neither is it possible to completely eliminate risk from the workplace but that fact doesn’t prevent entrepreneurs from continuing to establish and run businesses.

It would be unwise to embark on any event that involves substantial numbers of people without careful thought and planning beforehand. The problem for most of us is that while we may be experts in our field, most of us are relative novices when it comes to planning events beyond domestic celebrations for birthdays, Christmas and the like.

Advice is available from the Health and Safety Executive and from some local authorities. However it is often helpful to retain the services of a consultant who has more extensive real world experience in this area and who is able to apply and adapt that experience to the specific circumstances of what you have in mind.

At EDP we like to become as familiar as possible with the prevailing culture of our clients and very importantly, what the ultimate aim is for each event so that our advice is as specific and pertinent as possible.

The broad approach

In general terms, the procedure we follow is straightforward and follows the general principles of health and safety management in most other scenarios:

• It cannot be emphasised enough that comprehensive planning before the event is crucial and adequate time must be allowed for this activity. You need to do some background work, taking into consideration such aspects as:
  • the people who will be invited to attend, who will be running the event and who will have overall responsibility for monitoring what is happening and, if necessary, reacting correctly to an adverse incident. If you are hiring another organisation to run the event for you, then you need to check them out to ensure they have the expertise and the knowledge to handle all the health, safety and welfare aspects.
  • the location may be anything from your own premises, a dedicated location for the type of event you want to run or maybe even the open countryside. Accessibility may also be a factor if you need to organise transportation, for example, or special protective clothing.
  • the time can also be important since this might determine the nature or extent of any hazards that may be present. Risks can vary according to the time of day and may be affected in very different ways, for example according to the time of year.
  • what you are planning to do is an obvious concern. If your event involves a number of different activities, they may each have risks associated with them that differ in nature and extent.
  • clearly identify the objective or reason for the event and to ensure everyone involved has a clear understanding of what it is. This will affect all the general considerations listed above and may introduce other, more specific, issues that you need to take into account.
• Having done your research, you need to assess the risks, following the well-proven methods that apply to most every health and safety situation. Very simply, you need to identify the hazards, the degree of risk associated with each one, who may be affected and the precautions that are in place to manage the risks.It’s worth bearing in mind that your risk assessment may need to take into account how and when people get to the venue and how they get home afterwards as well as the actual event itself.

  Depending on the nature of what you have in mind, you many also need to consider the provision and setting up of equipment beforehand along with safe dismantling and removal after the event.

• Having identified the risks and precautions that may be already in place, you need to consider what other precautions are needed to reduce risks to acceptable levels, how these are to be implemented and who will be responsible for them.
• Even when all risks have been reduced as far as is practicable, there may well be residual risks for which you need to have emergency procedures in place. It should be stressed, however, that emergency procedures are not intended as a substitute for proper risk management. They are intended to kick in if something goes wrong in spite of our best efforts.
• To gain maximum profit from all this work, it is worth scheduling an opportunity after the event to discuss what went well, what went wrong and what could be done better. De-briefing sessions are invariably more profitable if held soon after the event rather than waiting until you plan to repeat the activities the following year, by which time many of the valuable lessons will have been largely forgotten.

Don’t be put off

This might all seem to be too much effort and in some cases, that may be so. However, if an activity appears to be too fraught with danger, the answer may be to find an alternative that has less attendant risk but which will achieve the same objectives.

Putting in a bit of effort beforehand means that the event is likely to be more successful than might otherwise be the case, less likely to end in tragedy and much more enjoyable for everyone, including those with responsibility for organising it.

It should also be emphasised that previous experience in assessing the risks associated with corporate events can be invaluable and a good consultant can often suggest cost-effective solutions that will more than compensate for their consultation fee.

Health and Safety Culture has been variously defined as

• “The way we do things around here”
• A set of attitudes, beliefs or norms
• A safety ethic

However, a comprehensive definition that seems to have gained wide acceptance is:

‘The safety culture of an organisation is the product of individual and group values, attitudes, perceptions, competencies, and patterns of behaviour that determine the commitment to, and the style and proficiency of, an organisation’s health and safety management’

What is certain is that the culture existing within an organisation plays a major role in determining the general level of health and safety. It is useful, therefore, to be able to assess and measure the level of health and safety culture and identify means by which it can be boosted.

Reason for Assessing Culture

The problem with so many efforts to assess the safety culture within an organisation is that there is no clear objective in view and therefore the outcome is also uncertain.

If the aim is simply to “measure” culture, the chances are the management team will read the results and find them “interesting” but then do little with them. If that is the only result then there is little value in undertaking the exercise in the first place.

Much better to start off with clear objectives so that you know the range of possible practical actions that might follow, based on the results of the assessment.

Examples of the kind of objective that you may have in mind are:

• Given limited budget, in which areas should we concentrate our efforts to improve health and safety performance.
• What factors might account for a worse accident record than the average within our sector and therefore need to be addressed
• How can the organisation reduce the amount of lost time due to sickness, accidents and the investigations that follow.

Whatever your objectives, it is important to be clear about them up front since it will determine how you go about the exercise for best results.

Assessing Culture Using a Questionnaire

When considering how to assess an organisation’s culture, an obvious option that springs to mind is to use a questionnaire. Of course, if the results are to be of value, then it needs to be carefully crafted to properly explore important aspects of people’s behaviour such as their:

• attitude toward safety
• understanding of risks
• understanding of safety measures

It makes sense to use an existing questionnaire that already has a track record rather than attempting to construct something from scratch.

A good example of a questionnaire that is applicable over a range of sectors is the Safety Climate Tool that has been jointly developed by the Health and Safety Laboratory (a government agency set up to support the HSE) and Snap Surveys Limited.

• Information about this tool is available from http://www.hsl.gov.uk/health-and-safety-products/safety-climate-tool.aspx
• This is not a free tool but the cost is not prohibitive, starting at £500 for a five year licence if you have less than one hundred employees
• The tool is customisable to a limited degree so that it can be tailored to the needs of your particular organisation.

There are other tools that have been developed for use within specific industries such as:

• RSSB Safety Culture Improvement Toolkit for use across the rail industry.
• Loughborough University Safety Climate Assessment Toolkit for use in the offshore industry

Whichever tool you opt for there are a range of factors that you need to take into consideration when deploying it, such as:

• A potential issue may be a poor response rate if the workforce has a low level of interest in Health and Safety and therefore you may need to employ incentives to encourage participation. It’s important, however, not to use methods that are likely to distort the responses.
• Another potential weakness of this approach, particularly if used in isolation, is that the results may say more about what the culture is and less about why it is that way.
• To maximise responses, make it convenient for employees to complete the questionnaire by, for example, ensuring sufficient time is allocated during the working day rather than expecting them to use their own time.
• Because this is a mechanistic approach to collecting information, it is better to have other inputs that provide a degree of confirmation and confidence in the results of the survey

Other Potential Sources of Information

There are other ways of assessing an organisation’s culture such as:

• Reviewing accident reports that include investigation into the circumstances leading up to and surrounding each accident.
• Interviews with selected employees.
• Direct observation of work areas and the conduct of employees
• Discussions with Safety Representatives

For the most part, these options may not be as precise or all-encompassing as a survey questionnaire but they can help to validate the broad results of a survey.

Changing Culture

Having measured the level of Health and Safety culture, the next step is to implement a strategy for improvement. This can be approached in a variety of ways but is likely to include some or all of the following:

• Desired behaviour must be modelled by management starting at the highest level. The example of management must be consistent and ongoing if it is to have any persuasive value.To reduce the likelihood of standards slipping it is a good idea if members of the Board and the Management Team are made accountable for their conduct. A possible mechanism for achieving this is by using 360 degree reviews, which serve to emphasise the importance of health and safety culture through all levels of staff.
• Review existing safety procedures to ensure they are commensurate with the level of risk they are addressing, that they are practicable and as convenient as possible to encourage compliance.
• Safety messages need to be clearly communicated through multiple channels to ensure everyone understands what is required of them and, more importantly, why.
• When defining intervention strategies, involve specifically interested parties such as members of the Safety Committee
• Personal involvement of employees is also good in developing action plans so that they have a sense of ownership and have personally thought through the practicality and benefits of each strategy.
• Implement some form of ongoing monitoring of the culture to identify which actions are working most effectively
• Encourage a just culture in contrast to a blame culture that is predisposed to seek out some person to blame for an incident when in fact the fault has more to do with systems, procedures, management structures or organisational factors.

Ultimately, the ideal is to encourage throughout the workforce a sense of anticipation and excitement in seeing the positive benefits of a constantly improving health and safety culture.

If you have concerns about the safety culture in your organisation then why not contact us to discuss how you may best go about assessing and addressing the issues.

In this case the company on trial – Cotswold Geotechnical Holdings – is relatively small with just eight employees, one of whom was a young geologist by the name of Alexander Wright.

Nature of the Accident

An accident occurred in September 2008 when Mr Wright was working in a 12.5 foot deep trench taking soil samples. Contrary to well recognised industry guidance, the trench was not supported by timbers and the sides collapsed, burying Mr Wright.

The owners of the plot where the work was being carried out happened to be present at the time and were alerted to the collapse. While one called for the emergency services, the other attempted to rescue Mr Wright but the walls of the pit collapsed a second time resulting in the death of Mr Wright from traumatic asphyxiation.

The director of the company was charged with an offence under the Health and Safety at Work Act and with gross negligence manslaughter. At the same time, the company itself became the first to be charged under the Corporate Manslaughter and Corporate Homicide Act 2007. Due to the director’s severe ill health, it was decided not to pursue the personal charges. However the company was convicted of Corporate Manslaughter in February this year.

Significance of the Case

This case has attracted a great deal of media attention simply because it is the first prosecution under the Corporate Manslaughter Act. However, because it is a small company, it provides little if any indication as to how effective the Act will be against large corporations for which the Act was originally designed.

The Hazards Campaign is unimpressed. In regard to the operation of the Act they stated:

“A fundamental flaw with the new corporate manslaughter legislation is that it holds the company responsible, not the individual directors who make the decisions which lead to these disasters, and therefore no-one can be jailed, which is the appropriate sentence for taking a life by gross negligence. Currently, individual company directors can escape legal accountability and the only way to make them take protecting workers’ safety and health seriously is to implement a law making them legally responsible for the health and safety of their organisations.”

In the event, the company was fined £385,000, payable in ten equal annual instalments. This needs to be viewed against the sentencing guidelines that were published in February 2010, which state that fines should rarely be less than £500,000. The fact that this first case is one of the rare exceptions is a reflection of the company’s very poor financial situation and that it will probably go into liquidation as a consequence of the case.

In April 2008 when the Act came into force, it was suggested that there might be an average of 12 cases a year. In practice, this is the only case that has come to court so far, although the Crown Prosecution Service state that they are “considering a number of other files of evidence in relation to further possible prosecutions for the offence”.

Increasing Fines

A point of potentially greater significance to businesses is that the sentencing guidelines don’t just apply to Corporate Manslaughter cases. They also apply to other Health and Safety offences that result in someone losing their life. The sentencing guidelines may be viewed on the Sentencing Council’s website

In practice, since the introduction of the sentencing guidelines the level of fines imposed for health and safety failures that result in death have risen significantly. In addition, now that courts have definitive guidelines, there is greater consistency of fines across the country.

Dangerous Construction Sites

This was a particularly tragic case that resulted from poor standards of health and safety on a construction site. According to the judge, “This approach to trial pitting was extremely irresponsible. Peter Eaton thought he knew better. In this he was gravely and culpably mistaken”.

The Health and Safety Executive also take the general standard of health and safety in the construction industry very seriously. For the past few years they have been visiting thousands of sites across Britain and in many cases have issued orders to stop work until safety issues have been properly addressed.

This year, they are targeting refurbishment and maintenance activities, which will involve many of our readers at one time or another. It is worth remembering that if the Health and Safety Executive find that a principal contractor is not taking adequate measures to safeguard workers, the HSE will also require the client to demonstrate that they have taken adequate steps to hire a “competent” contractor.

What must be provided?

Some employers appear to be under the impression that a cold water supply and chemical toilet are all that they are obliged to provide for the workers. The law, however, sets down the absolute minimum provision as:

• Adequate toilet and washing facilities
• Place to warm up and eat food
• Place to store clothing

The provision of these facilities, which includes ensuring they are located conveniently for the workers and adequately maintained, is an essential element of the planning and preparation stages of a project.

In planning the facilities, it is vital to take account of the maximum number of people who will need to use them and of any requirements that are specific to the particular project. For example, if the work is particularly dirty, showering facilities must also be provided.

Furthermore, it is not sufficient to set up the minimum facilities and then neglect them. They really must be up to standard, be adequately maintained and cleaned.

Whose responsibility?

So who is responsible for providing these facilities? The answer is that responsibility is shared by a number of parties. That is not to say that everyone can leave responsibility to ’somebody else’. It means that if welfare provision is not up to standard then everyone is held responsible, for example:

• The CDM Coordinator is responsible for advising the client on what welfare facilities are required during the construction phase of the project.
• If the work is notifiable (i.e. lasts more than 30 days or requires more than 500 person days of work) the client must not permit construction work to start until contractors have adequate welfare facilities in place for their employees.
• Contractors must ensure adequate welfare facilities are available to cater for the workers for whom they are responsible. In particular, the Principal Contractor has overall responsibility for providing the welfare facilities for the site.

There is some flexibility in terms of how the welfare facilities are provided, for example it may be possible to use facilities that are already available on site or close to it. However, everyone is responsible for ensuring they are available throughout the construction phase of a project.

You can access the new leaflet on the HSE website.

Proposed Changes

At present the enforcing authorities must be informed about any work-related accident that results in someone being off work for more than three days. If the proposed changes are adopted, the period of three days will be extended to seven days.

This change would only affect reporting of accidents to the enforcing authorities. The need to record all accidents in the locally held accident book would remain the same.

The perceived benefits of implementing these proposals include:

• The administrative burden on employers would be less since they would have to submit substantially less reports than at present.
• The reporting period would be in line with the requirement for employees to obtain a fit note from their doctors following absence from work. Conceivably bringing these two time periods in line might be considered less confusing.
• Theoretically, statistical information derived from RIDDOR reports should be more accurate and consistent. At present, statistics tend to suffer from significant under-reporting of accidents. Although it isn’t possible to be precise, best estimates suggest that compliance with the current arrangements is only around 50%.

Reasons for Under-Reporting

Of course, apart from the administrative burden, there are all kinds of possible reasons for under-reporting. In a recent case it seems that a perceived fear of repercussions was enough to discourage employees and contractors from reporting a substantial number of minor injuries over a number of years.

As a result, the organisation’s safety record appeared to be better than it was in reality. This went unnoticed because they had been investing in a range of measures to increase safety and were therefore expecting to see an improving situation.

This case demonstrates the importance of carefully examining all safety improvement initiatives to ensure they are not creating unintended side effects.

If we are to see genuine improvements in occupational health and safety, we need accurate statistics that we can rely on and it is hoped that the proposed changes to RIDDOR will help in this.

If you have any views on the proposals, the consultation is still open until May 2011 and you can contribute by going to the HSE Website