Health and Safety at Work: Who’s responsible…?

Health and Safety at Work: Who’s responsible…?

When most of us hear of workplace accidents and injuries, we look on from the sidelines with a general ‘it will never happen to me’ attitude, turning up to work comfortable in the knowledge that our health and safety is being well cared for by the organisation in which we work.

Aside from the fact that many companies have poor safety records and your health and safety may well not be in a ‘safe pair of hands’, it is also not just the responsibility of your employer or those in charge of health and safety to look after you.

The Health and Safety at Work etc. Act 1974 (HSWA) imposes general duties on employers, the self-employed, controllers of premises, and manufacturers to ensure health, safety and welfare but the final group that makes up this list and the one which many of us do not realise exists is - employees

From the many convictions and cases that are brought by the Health and Safety Executive (HSE), it seems reasonably understood, if not carried through, that the HSWA imposes general duties on all employers and the self-employed to ensure the health and safety of those who may be affected by their business activities. Employers may also be liable for negligent acts committed by fellow employees acting in the course of their employment.

However, the HSWA also imposes a duty on employees to look after their own safety.

Section 7 of the Act clearly states that, while at work, all employees have a duty not to endanger themselves or others through their acts or omissions; and to cooperate with their employer, e.g. by wearing protective equipment.

7. It shall be the duty of every employee while at work-

(a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and

(b) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.

Section 8 also states that no person (whether an employee or not) shall misuse anything provided in the interests of health, safety or welfare.

Where an offence is committed due to an act or default of some other person (not being an employee), that person shall be guilty of the offence and may be charged and convicted of it whether or not the employer is also charged. This means that an individual employee can be charged with a health and safety offence without the company being charged of that offence.

An employer may be responsible for the negligent acts or omissions of employees committed in the course of their employment. A claimant can sue an employer on the basis of vicarious liability, provided he can show that the employee was negligent and this caused his injury. However, an employer will escape liability if it can show the employee was acting 'on a frolic of his own' outside the course of his employment.

Breaches of health and safety legislation in the workplace can give rise to criminal liability. In addition, the reality is that a workplace accident may also give rise to a civil, personal injury claim. Whilst a breach of the HSWA does not give an automatic right to a civil claim, in many cases the evidence used against a company in a criminal prosecution may similarly be used against a company in a civil claim.

Successful prosecutions can lead to six months’ imprisonment and a £20,000 fine, or if the case is escalated to the Crown Court, two years’ imprisonment and an unlimited fine can be imposed.

The message should be clear then, that we are all responsible for health and safety in our workplaces and the HSWA imposes duties on us all alike – employers, the self-employed and employees. As an employee it is your duty to look after your own welfare and that of the colleagues around you. In reality this should take no more than some common sense and knowledge of the systems in the area in which you work. If a task requires PPE then use it. If it is faulty then make someone aware. If you are unsure then check with someone first. There are plenty of experts inside and outside the workplace to make sure accidents don’t happen.

Some employees take on training courses, such as IOSH Working Safely, to help them improve their awareness.

Either way, make sure you stay safe!

Article by the Workplace Law Network

Corporate Manslaughter: The First Case by Workplace Law Network

The first trial to be brought under the Corporate Manslaughter and Corporate Homicide Act 2007 will open in Bristol Crown Court on February 23 2010 and is expected to last six weeks.

In June 2009 the Crown Prosecution Service authorised a charge of corporate manslaughter against Cotswold Geotechnical Holdings Ltd, in relation to the death of Alexander Wright on 5 September 2008.

Mr Wright, who was employed by Cotswold Geotechnical Holdings as a junior geologist, was taking soil samples from inside a pit which had been excavated as part of a site survey when the sides of the pit collapsed, crushing him.

Peter Eaton, a Director of the company, has been charged with gross negligence manslaughter and with an offence contrary to Section 37 of the Health and Safety at Work etc. Act 1974. Cotswold Geotechnical Holdings Ltd has also been charged with failing to discharge a duty contrary to Section 33 of the Health and Safety at Work etc. Act 1974.

The Act

The Corporate Manslaughter and Corporate Homicide Act 2007 came into effect on 6 April 2008. Until then there was a common law offence only, which, in order for a company to be found guilty of it, required the conviction of an individual person for gross negligence manslaughter and for that person to be so senior within the company that he or she represented its 'directing mind'. Whilst attempts were made to prosecute big companies under the old law these attempts were all unsuccessful.

The new Act is an offence-creating statute rather than a duty-setting one and itself imposes no new health and safety duties. In other words, the Act is solely designed to make it easier to prosecute organisations where their gross negligence leads to death.

The wording of the Act is that an organisation is guilty of an offence if the way in which its activities are managed or organised: causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. An organisation is only guilty if the way in which its activities are managed or organised by its senior management is a substantial element in the breach.

Under this new law it is no longer necessary to convict one individual alone. The aggregated failures of a number of senior managers, who form the senior management, are sufficient.

In addition, the second part of the definition of senior management within the law catches people lower in the management chain than those who represented the ‘directing mind’ under the old law, meaning that a much wider part of the workforce could be considered by the prosecuting authorities when looking at whether the offence has been committed.

Having said that, the new offence continues to have a number of safeguards ensuring that the offence is likely to be restricted for the worst cases. In particular, in big companies the requirements for senior management involvement and for any breach to be gross.

The result of this is that to date the Act has not had the fearsome effect that some predicted and the safeguards that the Act provides is likely to mean that the floodgates will not open in terms of the number of prosecutions brought.

Convictions

Under the Act a conviction for gross negligence manslaughter carries a maximum sentence of life imprisonment, while a conviction for corporate manslaughter attracts an unlimited fine. Along with this goes the stigma of being a ‘corporate killer’.

The Home Office paper that went with the original Bill stated that the offence would be targeted at the worst cases of management failure causing death. If this is so, it is likely that fines for conviction will be set at a very high level and probably significantly in excess of record fines under HSWA.

A consultation guideline published in October 2009 by the Sentencing Guidelines Council, proposed that c ompanies and organisations that cause death through gross breaches of care could face fines of more than £500,000 and be forced to make a statement about offences on their website.

The publicity of a statement is designed to ensure that the conviction becomes known to shareholders and customers in the case of companies, and to local people in the case of public bodies, such as local authorities, hospital trusts and police forces.

The fines proposed in the consultation are not linked to turnover and some critics have claimed that this is a gross undermining of the Act and that the opportunity for a clear message to employers which might prevent deaths has been lost. The main reason for criticism of a minimum fine is that it may lead to the closures of smaller companies whilst being a drop in the ocean for much larger organisations.

Responses to the consultation should have been received by 5 January 2010, at which point the Council will consider any responses received and then issue a definitive guideline.

Conclusion

The outcome of the first case, while unlikely to be known for several months, will shed some light for employers on how this critical new legislation is likely to be interpreted by the courts. However, as the company is relatively small in size, many experts believe that the real test for the legislation will be when a substantial corporate body faces prosecution and that those expecting that this first case may provide some guidance on how the legislation will be interpreted will be somewhat disappointed.

Large or small, however, this is a timely reminder that companies that fail to keep their workers safe are liable to prosecution on a grand scale. Directors and senior executives need to act now if they want to avoid the heavy penalties and bad publicity that come from cases like this.

Although the Act has brought no new duties, it poses a natural reason and opportunity for organisations to review their safety management approach, their organisational framework and the systems underpinning them.

Guidance published by the HSE / IOD, defining what private and public sector directors should do to lead and promote heath and safety should be examined against organisations' existing safety management procedures to establish how they measure up and also to identify any weaknesses.

Bearing in mind the reach of the Act beyond the boardroom, organisations should not think that the principles set out in the guidance do not apply lower down the management chain.

It would also be prudent for organisations, particularly those in high-hazard industries, to review their liability insurance cover to ensure the legal defence costs for the new offence are covered. Many employers and Public Liability policies will provide such cover but some may not. Dependant on makeup and size the organisation may wish to explore the possibility of purchasing additional Directors' and Officers' cover or another form of management liability cover.

Experienced advice is important in the immediate aftermath of a workplace fatality, particularly as decisions made at this early stage can set the tone for the criminal investigation and can prejudice an organisation’s position and that of its directors and employees. In the circumstances, it is sensible to factor this in to the pre-planning of a major accident response.

If you are in any doubt about your responsibilities and how you should implement safe working practices then you should contact health and safety consultants.

Article by the Workplace Law Network

The Commitment to Health and Safety

In a year that has seen the 35th birthday of the Health and Safety at Work etc Act (HSWA) and the 30th anniversary of NEBOSH, health and safety in the workplace still remains a highly sensitive issue but one that is crucial to the wellbeing of Britain’s workforce.

The HSWA has remained the framework for all health and safety legislation and has also managed to adapt to change since its implementation in 1974. In a society which has moved from a largely manufacturing-based industry to a service driven economy and with a more transient and diverse workforce, it remains crucial that employers and health and safety professionals also adapt to changes in working environments and employment patterns.

The HSWA has clearly contributed to saving many lives, with the number of deaths from workplace accidents falling from 651 when it came into force to 180 between 2008/9. This record low is also a significant drop from the previous year where there were 233 fatal injuries. There has also been a reduction of more than 7,000 in the number of workplace injuries classified as serious or incurring more than three days absence from work. This, however, is for all involved in health and safety still too many and more must still be done to reduce the average of over 200 workers dying each year in Britain’s workplaces. The HSWA and bodies such as the HSE can only do this with the support of those actually within the workplace.

One of the biggest challenges in recent times is the media perception of ‘elf and safety’. The myths which perpetuate this perception often arise through a misunderstanding of health and safety requirements, failing to get proper advice and because sometimes it appears easier to ban something than to find a way to make it work safely with the proper precautions.

This lack of understanding of the principles and regulations of health and safety is dangerous and threatens the safety of workers because it can directly create unsafe working conditions and also undermine the importance of regulations by creating a feeling that they are a hindrance rather than a help. This increasingly popular view that the ‘health and safety brigade’ are to blame for almost all of modern Britain’s ills is acknowledged by health and safety professionals as one of the biggest threats to their ability to effectively tackle real issues that endanger life.

In addition to this, the impact of the economic downturn has created the potential issue of health and safety being given lower priority and corners cut in order to save money. Apart from the obvious consequences from failing to follow a health and safety policy it can actually be financially damaging if an injury or fatality takes place and you are then liable to pay compensation through neglect.

The key responsibilities of any employer, facilities manager, director or health and safety professional, therefore, is to make sure they fully understand the requirements of health and safety, support its aims by communicating issues in the workplace clearly and thus challenge poor misconceptions. Employees must be encouraged to take the issues seriously as it only takes one person who does not, to result in an unnecessary accident.

Remember that the key phrase of the HSWA is “so far as reasonably practicable” and so this allows you to take a risk based approach to health and safety in your workplace. Blanket bans are never popular and normally not necessary. Instead, by fully assessing risk, you should be able to take a balanced view between sensible protective measures and cost. Health and safety is based on the key conviction that no one involved in the profession wants to see someone hurt or made ill, particularly when this is avoidable. With good practice and common sense you can help dispel those tabloid myths and help keep Britain’s workers safe from harm.

If you are responsible for health and safety in your workplace or simply have an interest in it and you don’t know where to begin there are plenty of people who can help you. As well as professional consultants who can take the ‘burden’ from you, there is also plenty of useful information to be found from organisations such as the HSE. An example of one of their useful tools is the Health and safety leadership checklist which is designed to help you check your status as a leader on health and safety.

Health and safety leadership checklist

• How do you demonstrate the board's commitment to health and safety?
• What do you do to ensure appropriate board-level review of health and safety?
• What have you done to ensure your organisation, at all levels including the board, receives competent health and safety advice?
• How are you ensuring all staff – including the board – is sufficiently trained and competent in their health and safety responsibilities?
• How confident are you that your workforces, particularly safety representatives, are consulted properly on health and safety matters, and that their concerns are reaching the appropriate level including, as necessary, the board?
• What systems are in place to ensure your organisation’s risks are assessed, and that sensible control measures are established and maintained?
• How well do you know what is happening on the ground, and what audits or assessments are undertaken to inform you about what your organisation and contractors actually do?
• What information does the board receive regularly about health and safety – e.g. performance data and reports on injuries and work-related ill health?
• What targets have you set to improve health and safety and do you benchmark your performance against others in your sector or beyond?
• Where changes in working arrangements have significant implications for health and safety, how are these brought to the attention of the board?

http://www.hse.gov.uk/leadership/checklist.htm

A recent survey, ‘The Value of Safety and Health’ published by Safety and Health Practitioner magazine and IOSH found that nine out of ten health and safety professionals would recommend a career in health and safety to others. For anyone that wishes to follow this career path there are recognised qualifications, such as the NEBOSH general certificate, which can be attained to increase your knowledge and ability.

On the topic of working in the industry, Rob Castledine, Associate Director at Workplace Law, said:

"Having spent over 20 years in the industry, I've met an awful lot of Health and Safety Practitioners and those that stick out to me are those that have a 'can do' attitude. Of course, any form of advice or guidance that a Health and Safety Advisor gives out needs to be balanced between risk, legal compliance and the practicalities of any control measures. But managers and organisations, as a whole, welcome sensible risk management which provides a solution to an issue, rather than another excuse not to do it.

"In particular, it's essential for those just starting out on their safety career to ensure they fully develop their qualifications, be it a NEBOSH Certificate or an NVQ, with lots of sound and real life work experiences, which will help them to make more informed judgements concerning managing health and safety risks in the workplace."

Article by the Workplace Law Network

New Articles Added by Leading Law Firm - McGrigors LLP

HSfB has been given permission to publish the following articles and e-bulletins from the leading law firm McGrigors LLP.

We would like to thank McGrigors LLP for this fantastic contribution and we hope you will find the articles both helpful and interesting.

17 October 2009

• New articles added to Your Articles by McGrigors LLP.
  • Challenging HSE Enforcement Notices After Chilcott v Thermal Transfer Ltd.
  • The Changing Face of Sentencing for Health & Safety Offences.
  • Does UK Health and Safety Law Apply to Offshore Wind Farms?
  • Health and safety Refurbishment projects – Is your site in good order?
  • Health and safety alert: Penalties Enhanced.
  • Health & Safety... the buck stops here.

Our guide to health and safety in the kitchen

The kitchen is the focal point of the British home; the social hub of a party; the place where culinary delights are created; and the location for families to exchange dinnertime stories. It is a well known fact that the majority of accidents happen in the home, and it is no surprise that most of these occur in the kitchen. The elderly and children are particularly susceptible when navigating around the various surfaces, often greeted with unstable objects and protruding corners.

Whichever relates to you, health and safety in the kitchen applies to everyone. If you have a kitchen at work, you are constantly reminded of the potential hazards with the help of animated signs, reinforced by the HR manager. Unfortunately, these guidelines do not exist in the average home, so we all have to be more vigilant of the dangers that can happen in the kitchen in order to enjoy our time in it.

Your kitchen should be ergonomically designed to reduce unnecessary movement and awkward manoeuvres. This applies particularly to the hob and oven area. Burns and scalding usually occur as a consequence of distraction, but there is some further protection if you use triple-glazed or cooling system ovens. These have a low surface temperature as they operate, and so prevent burning through accidental touches or leaning by children.

Hob areas are the most potentially dangerous, though they should all now have an automatic cut off installed so that the gas stops if the flame accidentally goes out. The hob should never be placed in front of a window precisely to prevent this from happening, and also to prevent curtains or blinds flapping dangerously near naked flames. When cooking, ensure that pan handles are not receiving heat from another hob or ring, and that you do not leave the handle hanging over the edge.

Always allocate sufficient space around the cooking surface. You will need an amount of worktop by the oven and hob so that hot and heavy items can be put down quickly. Fit plug sockets on either side of the hob so that appliances and their leads won't need to be pulled across the hot surface. Lastly, always position the hob near to the sink so that it won't be necessary to carry full pans very far and never put the units either side of a door. You do not want to collide with someone coming in whilst you are carrying boiling water.

Store your kitchen items wisely to minimise the risk of accidents. Heavy items and awkward pots and pans should be stored in the lower cupboards, while glassware and other lighter goods can be stored in wall cupboards. If items are exposed, they musty be positioned on a level worktop and so it cannot be dislodged.

Kitchens can easily become the dirtiest room in the house, but it is vitally important that they are also one of the most hygienic. Using certain materials in your fittings can make the kitchen easier to clean; granite and quartz worktops for example, are smooth, seamless and stain resistant. A well designed kitchen will try to avoid the common dirt and grime traps such as the joins around the sink and between worktops.

Changing your kitchen work surfaces is not only a good way to improve overall heath and safety, but one of the simplest methods of upgrading without being a major upheaval. John Porter worktops and kitchens understand the significance of health and safety, and offer a comprehensive range of quality kitchen worktops that guarantee peace of mind for their customers.

“Health and safety in the kitchen can and does get forgotten, particularly when rushing in back from work, or preparing a stressful dinner for the family, so we try to ensure that our worktops are fitted to the highest standard,” says John Porter. “This is why we recruit expert fitters, use the finest materials and adhere to the rigorous safety standards that are set. If all of this is achieved, then we know our customers are receiving the best possible service.”

So remember, the kitchen can be safe place to inhabit, we just need to be aware that accidents can and do happen. That reminds me, I have a dinner party next weekend….

Matthew Crick

Your Guide to Smoke Detectors and Fire Alarms

Smoke detectors and fire alarms give you vital extra time to escape from a building if a fire breaks out. Most businesses and institutions have a combination of smoke and fire alarms to alert people of a fire. Whether you run a business from a tiny office or if you’re responsible for the safety of an entire school, you need to be sure that you have the correct smoke detectors and fire alarms fitted in the building. Below is a quick guide to smoke detectors and commercial fire alarms.

What types of smoke detectors are available?

The type of smoke detector you require will largely depend on the size and type of your premises. The cheapest type of smoke detectors are ionisation detectors which can detect small particles of smoke before the smoke gets too dense. Ionisation smoke detectors are not ideal at detecting substances which are slow to burn but are quick to detect high flaming fires such as liquid fires so they are a good choice for workshops, garages and kitchens.

Optical smoke detectors are better for detecting slow burning fires which produce larger smoke particles. Optical smoke detectors are a good choice for rooms or buildings which have a lot of wiring such as server rooms or computer suites as these substances can create a lot of smoke during a fire. Combined smoke detectors will be triggered by slow burning and high flaming fires so are a good all round choice.

What types of fire alarms are available?

There are many different types of commercial fire alarms available which means you will be able to find the right system for your building, whether you are upgrading or installing a system for the first time. A conventional fire alarm system would be suitable for smaller premises such as shops, small offices and bed and breakfasts. These conventional systems have detection zones which are connected to a number of fire alarm smoke detectors and break glass units.

Addressable fire alarm systems transmit data to a panel which allows you to see exactly where the fire is in the building which makes them a good choice for larger premises. Wireless commercial fire alarms offer the most flexibility and are ideal for premises which are spread out over a number of buildings such as schools or university campuses. Wireless commercial fire alarms can be fitted without any disruption and are installed without wires so they are also a good choice for busy offices, stately homes and public buildings such as libraries and museums.

Make sure you have the correct smoke detectors and commercial fire alarms fitted in your workplace so that you know the people who use the building will have enough time to escape in an emergency.

This article was written by Assured Fire & Security for Health and Safety for Beginners.

Common causes of an office fire

The acute “beep, beep, beep, beep...” of the office fire alarm resonates around the room and a momentarily look of concern presents itself on every face that has risen in unison. This, for the incalculable time, is a test alarm and one that arrives each week with wonderment. We are all aware, however, that this scheduled blast has a serious agenda; a job that we can’t resent and a role that could save our lives. The fire alarm is possibly the most understated colleague in any office.

For anyone who’s experienced the horror of a real-live, raging fire – whether in the office or at home – it is something I’m sure they will not want to experience again. Businesses across the UK have introduced additional safety equipment, upgraded facilities and implemented more coherent training for their personnel to prevent such incidents meaning fire safety in the work place has never been more prominent, with more vigorous checks being recommended by fire officials to make properties impervious to fire.

The First Statistics Monitor, which is published quarterly by Communities and Local Government, encompasses provisional figures on fires, fire fatalities, injuries and false alarms. During 2007/08, The UK Fire and Rescue Services attended 799,000 fire and false alarm incidents (at both domestic and commercial properties) – noting an 8 per cent decrease on the previous 12 months. The total number of UK fires fell by 11 per cent to 382,000 and are at their lowest since 1988. The figure for UK fire deaths, however, increased by 8 per cent to 500, and embedded within this statistic, 373 deaths occurred in England; the latter being contrary to the long term downward trend.

In July 2003, over 100 fire fighters spent hours contending with a fire that broke out in a prodigious office block behind Paddington Station. Resilient fire crew tackled the blaze continuously for two days, and five were treated in hospital for injuries. It later emerged that the building had recognised electrical problems and insufficient fire safety appliances, mainly fire extinguishers and blankets. Five floors of the structure were lost that day, but fortunately no lives.

In May 2007, Council headquarters in Leicestershire were obliterated by a fire which was caused by an electrical fault on a light fitting. The building hosted over 150 staff, and although every staff member was safely evacuated successfully, over three quarters of office space was lost. Local emergencies praised the speed in which everyone left the building and the manner and organisation they did so. After a rigorous post-mortem check of the buildings smouldering carcass, fire officials applauded the overall safety equipment that was in place at the time. Malise Graham, Leader of Melton Borough Council, made the irrefutable point: “We may have lost most of the office, but we still have all our staff in one piece. I’m glad that we can plan for a new building and not for human loses.”

The office is a perfect breeding ground for a fire. Electrical equipment such as fax machines and photocopiers are both potential heat-generating threats, and although there are constant warnings about monitoring and upgrading fire safety devices, often old or defective machines like the humble photocopier can be fire hazards. Even a kettle or fridge should be considered and documented.

“Appropriate fire training for all staff is essential to ensure that the correct action is taken in the event of a fire,” says Active Fire Management, who provide a professional fire consultancy service for all aspects of fire safety and training requirements. “ The Fire Safety Order 2005 requires timely and effective training for all personnel. Any training provided should also be repeated at regular intervals. Organisations should ensure that details of training and names of those who have received it is recorded in the fire log book.”

Combustible objects such as books, magazines and bags of materials waiting to be recycled act like fire lighters on a log fire, and should be stored properly and not piled up around the office. All storage areas should be adequately located away from heat sources, for example; servers, computers and plugs. Be extra conscious of having excessive electrical outlets and try to reduce the amount of extension cables that weave across the floor.

“Effective management of electrical cables in the workplace is essential in order to avoid trip hazards to staff, but also to reduce the possibility of an unwanted fire,” continues Active Fire. “Ensure that all electrical equipment undergoes a regular PAT test and maintain appropriate records.”

If you are sat at your desk as you finish reading this, take a few minutes out of your busy day to distinguish who is one of the most undervalued team mates in the office. The fire alarm? And let’s not forget your other assistants: fire safety equipment. All of you are in the same team and one day may really depend on each other.

For more information visit www.activefiremanagement.co.uk

Words by Matthew Crick