Health and safety: What does the law actually say?

Show notes

Join James Muller and Crispin Kenyon as they discuss the duties that employers have under health and safety law, and why those duties may be more stringent than they first appear.

Transcript

James Muller: Well, hello, and welcome to Weightmans' safety season of podcasts.

James: I'm James Muller, a principal associate in Weightmans' specialist health and safety law team. And across eight podcasts, released weekly on Mondays, my colleagues and I are going to be taking you through various topics that we hope will be of interest to you and your organisation.

James: Keep an eye out for our podcasts on responding to serious accidents, giving evidence to inquests, workplace transport risks, and much more.

James: We would also invite you to comment with any questions you might have as in our eighth and final episode, we'll be answering some of your questions from throughout the series.

James: Well, today we're going to be discussing Health and Safety. What does the law actually say?

James: And I'm joined today by my colleague, Crispin Kenyon. Crispin, why don't you tell us a little about yourself?

Crispin Kenyon: Yeah. Hello, James. Well, I'm a regulatory lawyer.

Crispin: I spend my time advising clients really across the spectrum of business in both private and public sectors, as well as looking after individuals, covering the widest range of interventions by regulators such as Health and Safety Executive, Environmental Health, and police. So it's a wide brief.

James: Excellent. Well, why don't we crack on them with with really what is health and safety law? And and certainly, from my perspective, I think one of the biggest misconceptions that I come across is that people often think that health and safety law is going to be a a set of prescriptive rules. Do this, don't do this. And that's not really it, is it?

Crispin: No. I mean, there there are general duties under our old friend, the Health and Safety at Work Act, which will be coming up for its fiftieth birthday, next year. But the general duties in respect of employees and non employees, and those who are steeped in the safety world will be familiar with the so far as his reasonably practicable mantra, but it's really for the the dutyholder, and that means that the person who's actually operating the business or actually carrying out the conduct of of their work, they have to decide on what is going to satisfy the law.

Crispin: We'll talk a bit later about how they do that, but it's using published guidance, external advice when necessary, and that will help them get pointed in the right direction.

Crispin: But as I said, we'll we'll cover that in a bit more detail in a moment, James.

James: Yeah. And I and I think as well that self regulation, it's up to you to work out how you comply with the law. It is certainly HSE's position now.

James: It may may have always been that position, but it certainly is now that it's that sort of they they will give general guidance in terms of official published guidance, but they won't be drawn into providing specific advice to any dutyholder on how they should comply with the law. And they'll say that's up to them. And then of course, if they get it wrong, they will then, they will then seek to reinforce that action.

James: Does that sort of accord with your views?

Crispin: Yes, I think, the the old days, the business would have their local health and safety inspector, used to be called a factory inspector, and they would call in from time to time, and that was a working relationship. And they would help them meet their obligations under the under the 1974 Act.

Crispin: But, time and tide has changed a great deal, and, for various reasons, which we won't go into in this podcast, there isn't the capability really out there for the HSE to adopt the advisory role, which perhaps, it was originally envisaged it would do. So I I certainly agree with the idea that, the guidance is there. We'll tell you when you've got it wrong, but we're not really able in the meantime to tell you how to get it right in the first place.

James: Yeah. Yeah. Agreed.

James: So let's move on then, shall we, and look at the provisions on the Health and Safety at Work Act which you've mentioned.

James: And the first and and I think the key one, general duty to employees section 2.1 of the Health and Safety at Work Act.

James: It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all of his employees.

James: And I think there's really sort of two steps in there, aren't there?

Crispin: Yes. I mean, there there's a failure to ensure safety. Is there a material, risk to safety?

Crispin: Some time ago in the in the house of the House of Lords, which shows you how long ago it was, Lord Hope, defined that a risk would be a material one if it's one which would be recognised by any reasonable person, and that person would want to take steps to guard against. So obvious risks.

Crispin: However, that's often not the way the law is interpreted as we see it at the moment. But it is about reduction perhaps rather than elimination of risk. But again, that from a day to day practical point of view in the health and safety enforcement world doesn't really seem, to be how it works.

James: Yeah. I definitely agree with that.

James: And and so we talked about two steps there. Is there a material risk? And then that second step, has that risk been reduced so far as as is reasonably practicable?

James: And we'll we'll come on to discuss that that bit in a bit more detail soon because that's often where most cases seem to, live or die, isn't it?

Crispin: Yes.

James: In our experience.

James: So that section 2.1 that we discussed there, that's the duty to employees. There is a similar duty, to non employees under section 3.1. So that's it shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not exposed to risks to their health and safety.

James: And I think that has that similar two step approach with material risk and then reasonable practicability.

James: Obviously, it's got that slightly additional step of whether something falls within the scope of someone's undertaking. And that's certainly been interpreted quite widely, hasn't it?

Crispin: Yes. I mean, what does undertaking mean? It's a grand, word, in the Act, but it really means how you're getting on with your business. Your business may be, and some clients we deal with would say, well, I'm not really a business, I'm providing education.

Crispin: So, it could be manufacturing.

Crispin: It could be construction.

Crispin: As I said, education or medical sector. So, undertaking just really means what  you're doing as a business, and that that's where the duty is created to the non-employees, and that is judged in the same way as it is to employees as well. So, undertaking is a sort of catch all word which sometimes makes it difficult to define for clients but it does, of course, include work done by subcontractors but we might have a talk about that later.

James: Yeah, and I think that's often surprising to some people, isn't it? That the undertaking includes things sort of done on your behalf. And sometimes that can be subcontractors who are just there for labour, but often that can be specialist subcontractors who are there doing something that, that you're undertaking doesn't necessarily have the competence to do itself.

James: I mean, if you think of every office, if it gets an electrician or a boiler repairman in, things like cleaning or any specialist subcontractor.

James: And I think some people are often surprised that those things can fall within the scope of undertaking.

James: Obviously, the way in which that duty might be discharged in those cases might be different to what it would for the core undertaking of the business.

James: But I think a lot of people are often surprised that that falls within the remittance section.

Crispin: Yeah, and clients often say to us, well, if I've got to look after my subcontractors or contractors, am I not the dog who's been barking and I'm paying someone else to bark as well?

Crispin: If I have an escalator or a lift in my building, do I really have to supervise the lift engineers to make sure they wear their harnesses in the lift shaft? And there is guidance, as there is in a lot of these things from the HSE about selection of contractors, but often the clients find it hard that they're being criticised effectively in respect of the conduct of their undertaking because a perfectly competent and sensible operation, who they've used for years have employees who take risks, and they don't control them properly and then accidents occur.

James: Excellent. Should we move on then and look, as we said we would, at reasonable practicability?

James: And, I mean, you said earlier that it's not about eliminating risk, but it's certainly a very high hurdle, isn't it?

Crispin: Yes. And I think that in the kind of high jump analogy, a lot of our clients get very close to the bar, and they often hit the bar, but it's quite difficult just to flip over and get over it because, of course, you're looking at all these things with the benefit of hindsight.

Crispin: And a simple example, if you walk down the street using your mobile phone and WhatsApping your best friend about a meeting in the pub and you bang into a street sign, you learn the lesson there and you do things differently in future or one hopes one would. So, it's easy to say, well, we start from, it’s not risk elimination, but inevitably with hindsight, by regulators, it's easy to see. And clients often say, well, we didn't recognise that risk. We now see it was a risk, but we don't think that it was one that was so obvious that we ought to have taken steps to guard against it. So, we talked earlier about it having to be a material risk.

Crispin: And, well, how do we decide on that? Well, it's our old friend, the risk assessment. And again, safety practitioners and even those who are not in that world but maybe, just at work or do leisure activities which involve those sort of things, they will be familiar with the concept of assessing a risk.

Crispin: Some people say, well, I've never done a risk assessment in my life. If you hold a driving license, you will be conducting risk assessments every second you are behind the wheel of your car. You're looking right or left. Can I pull out? Can I not pull out?

Crispin: That's just a risk assessment, but not put in writing, but in the work context, then you're balancing that risk against the measures which are needed to control the risk and the cost involved. Again, that is something you have to be careful of because you don't want to say, well, I'm not controlling that risk because it's cost me too much money to do it. But there may be a cost element to consider if it's a risk that doesn't arise very often and is considered to be relatively low.

Crispin: In that process, again, we come back to what I mentioned before, looking at the HSE's guidance and industry guidance, and you will find that the HSE's position, I think, is that, well, compliance with the published guidance would usually demonstrate meeting the required standards of reasonable practicability, But I think you would probably have a view about how that works in practice, James.

James: Well, definitely.

James: And I have I have indeed had a case once where we complied with the letters of the guidance and then HSE sought to sort of undermine the guidance because they didn't like the outcome.

James: So, I think that's, you know, whether matching industry standards automatically make something comply with the reasonable practicability requirement is something I think that varies between HSE inspectors.

James: Obviously, you talked there about risk assessment and that's obviously always the start of the process, isn't it?

James: But it's certainly not the end. And I think one of the things that often goes to showing whether you've done all that is reasonably practicable is, okay, we've assessed the risk, so we've identified what the risks are. Have we then found a safe way to do that task? To specify the safe way to do that task?

James: Usually obviously in a safe system of work.

James: But it will also involve maybe designing particular bits of equipment or something.

James: Then have we actually told and trained our staff how to carry out that system. There's no good having a system on paper if we've not trained those individuals to do it. And I certainly think we've had quite a few cases where even, you know, the gap between those stages has not been bridged. And there is a very fancy looking system that's not been trained out.

James: But then obviously there's almost two more steps, I think, or certainly things that inspectors will often look at. The first is whether there is a business reason that employees wouldn't follow that system of work.

James: And the classic examples there would be time pressures.

James: So, if you've if you've got something that, requires certain steps to be taken to safety, that means realistically you can't undertake the job at the rate that the employer requires, then clearly, you're almost encouraging people to depart from your own systems there.

James: And then even more generally, and the second point is monitoring.

James: Checking that those individuals are actually doing it in accordance with their training in the safe way you've told them to do it.

James: And I think, you know, we've all been in cases where employees have departed from what they've been trained to do. But they have been departing from that for some while and monitoring might have picked that up.

Crispin: Yes. It's a headache for employers.

Crispin: An anecdote here, of a work at height, a platform being used to repair some brickwork on a high street.

Crispin: And the senior, the manager was present when they did the first two days of work.

Crispin: They did it all competently, and he left another experienced person in charge. He went off to do another job. And in the meantime, they set up a system which, didn't secure the area underneath the platform, and they knocked some brickworks that fell and nearly smashed in the head of a pedestrian walking by. And he was exasperated because he had monitored them. He trusted them. They were regular employees.

Crispin: They'd set up the proper system on every day up to that point, and we were still not able to defend that.

Crispin: And I think that was really down to the reverse burden of proof.

James: Yes. So that applies to reasonable practicability, doesn't it?

James: It's almost one of the few times in in English law where that classic you hear innocent until proven guilty or it's for the prosecution to prove its case where that goes out of the window.

James: Because Health and Safety at Work Act says that, when you're running the I have done all that was reasonably practicable defence, the burden shifts onto you to prove that, doesn't it?

Crispin: Yes. And that's why statistically, the annual statistics from the HSE show that the conviction rate is, well north of 90, usually, I think in the region of about 95%.

Crispin: Statistics should always be treated with caution.

Crispin: That statistic doesn't indicate, or they never indicate, how many of those cases are guilty pleas or fought to a full trial. And one suspects because of that reverse burden of proof, that the majority of them will be pleaded guilty at first shot or shortly thereafter.

Crispin: So, yeah, I think that's a very strong factor in how the cases are finally disposed of.

James: And I think it's that in combination with what you said earlier, which is hindsight.

James: You know, we are always told that you shouldn't judge reasonable practicability with hindsight. But, of course, most HSE health and safety prosecutions are bought in the context of an accident that has occurred.

James: And when the jury's there judging it, it knows the accident has occurred.

James: And it's much more difficult there, isn't it? To talk about things being unforeseeable, or for measures not being reasonably practicable through that lens, looking back through that accident. And particularly in combination with, with that reverse burden on dutyholders for them to prove, on the balance of probabilities, that they did all that was reasonably practicable.

Crispin: Yes, and there was a case where a fitter in a factory adjusted the belt on a conveyor belt, and he knew that he should in shut it down, operate the interlock, and then adjust it and start it and see if it was fine. But instead, he chose to run the belt and adjust it at the same time, and it either smashed his arm, or he had had it amputated. And when he gave evidence at the trial because the employers felt that he'd done something which he should not have done, and he was asked by leading counsel for the defence, whether he thought that was a good idea what he did, and he agreed that it was not a sensible thing to do, and may well have described his actions in a more vernacular or Roman, or Anglo Saxon, manner. But nonetheless, they were convicted. And I think even on appeal, the conviction was upheld.

Crispin: So, despite the folly of the individual, that reverse burden of proof really put them in the guilty verdict area, which I'm sure the clients found it hard to take on board.

James: So, drawing that all together then, Crispin, and really just some final thoughts before we finish today's podcast.

James: Certainly, from me, it's health and safety is not a set of prescriptive rules. It's an aim to be achieved.

James: And it's really for individual dutyholders to work out how they achieve that aim.

James: The duty is almost split into two. It's that, is there a risk? And secondly, have I done all that's reasonably practicable to reduce that risk?

James: And as I said, the focus is on individuals on how to do that, but the HSE will be there looking over the shoulder, for any dutyholder that it considers has got it wrong. And often, of course, that's going to be in the context of an accident, where, as we talked about earlier, hindsight and that reverse burden are going to make it quite an uphill struggle for any dutyholder.

James: Any final thoughts from you, Crispin?

Crispin: Yes. I think that I would say, do your best in respect of assessing those risks. And, don't forget that the risk assessment is an ongoing, it's a living process, a living document, and, it isn't something to put in the filing cabinet or in the dusty drive on your computer.

Crispin: You need to keep on top of that, and make sure that you are reconsidering things and taking a practical approach to it. And, good luck with that, really, I think.

James: Well, thank you for joining me today, Crispin. And thank you all for listening to Weightmans' safety season of podcasts.

James: The next podcast will be on Don't Panic, Responding to a Serious Accident in Your Business.

James: So, make sure you don't miss that one, which will be available from 5 February.

James: Thank you.