Help and advice
Ignoring health & safety can land you in jail
Catherine Henney on common health & safety pitfalls - part 2
AS I explained last month health & safety is now at the top of the legal agenda. Whilst some breaches are deliberate, some errors are avoidable. This month I will outline more common mistakes:
1 . Failure to implement safety measures for dealing with working at height (Work at Height Regulations 2005 (WAHR)/ Sections 2,
3 HSWA):
Work at height has been tackled with initiatives and prosecutions launched to encourage employers to focus on the dangers. In June 2011 RWE nPower and contractor AMEC were fined £450,000 after a maintenance worker died following a 12m fall.
The Court heard that there was confusion as to who was responsible for controlling the work. RWE was fined £250,000 under Section 2 HSWA, while AMEC was fined £200,000 under Regulation 11 MHSWR. Both had to pay £30,000 in costs.
HSE Guidance INDG401 supports WAHR, while other HSE guidance relates to the use of ladders.
2 . Failure to provide appropriate personal protective equipment (PPE) for the task in hand. (Personal Protective Equipment at Work Regulations 1992 (PPEWR) / Section 2 HSWA)
While the use of PPE seems to have improved, frustratingly, in most cases, relatively cheap forms of protection are found wanting, leading to disastrous consequences. Demolition company Dovestone Contractors was fined £8,000 under Regulation 4 PPEWR for failing to give one of its employees £5 safety goggles. The employee was left permanently blinded in one eye when a splinter of wood hit him during demolition.
Regulation 4(1) of PPEWR states: ‘Every employer shall ensure that suitable personal
protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective’
3 . Failure to guard machinery appropriately (Provision and Use of Work Equipment Regulations 1992 (PUWER))
The case of Tulip, referred to last month, shows the dangers of failing to guard machinery. However, it is not just where employers have failed to install appropriate guarding; employees sometimes tr y to circumvent guarding because it is considered to be an obstruction, or to slow down production.
Employers must be vigilant – backed by disciplinary action – to ensure not only that appropriate machinery guarding is in place, but also that employees comply with use of the guarding.
4 . Lack of appreciation of duty to protect visitors to site (Sections 3 and 4 HSWA).
Businesses fail to appreciate that temporary visitors – say contractors – to site also require protection even though they are not employees. Responsibility for contractors rests not only with their own employers, but also with the site owner, or the business that hired
the contractors.
The key case highlighting contractor responsibility is R v Associated Octel, which in 1996 held that where contractors were on site to carry out work considered to be part of the site owner's ‘under taking’, the site owner could also be held liable for the health & safety of the contractors. Employers using contractors should refer to the guidance INDG368.
5 . Bad culture towards health & safety among workers (Sections 7 and 37 HSWA).
Employees sometimes say, following an incident: ‘We’ve done it this way for years, and never had an accident’. Managers must be aware of these sorts cultures developing among their workforce, as they may be held personally liable if they are found to have allowed bad practices to manifest.
Regular, unannounced spot-check assessments of employee compliance with policies and procedures should help highlight any issues, as should regular competency tests and retraining. This should be accompanied by a zero-tolerance management policy towards non-compliance, with appropriate disciplinary action taken against employees, if necessary.
Employees should regularly be reminded that a failure to act safely could result in them being personally prosecuted - and even imprisoned. Managers should also recognise their role in engendering the right culture, and that they too may face personal criminal action.
• The penalties: The maximum fines for offences committed either under general duties or regulations are £20,000 per offence in the Magistrates’ Court or unlimited if referred up to the Crown Court.
With individual offences, imprisonment is a possibility (maximum of 12 months if convicted in the Magistrates’ Court, or up to two years Crown Court sentence). The seriousness of health & safety offences and potential impact on the business should not be underestimated.
Catherine Henney is a senior solicitor in the regulatory team at Eversheds, specialising in health & safety.
E: CatherineHenney@eversheds.com.
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