NEWS EXTRA ON EDGE ABOUT HEALTH AND SAFETY


The backbone to the present regime is over 40 years old, Adam Bernstein looks at the crucial importance of being up to date with health and safety laws...


TO SOME IT’S generated nothing but a culture of blame while to others it’s made the workplace markedly safer. Few realise that the UK’s tradition of health and safety law spans nearly 200 years and harks back to 1833 with the appointment of factory inspectors.


Statistics from the Health


and Safety Executive (HSE) for construction – the nearest sector to merchants – in 2018, found that 82,000 suffered from work- related ill health, 38 were killed, and there were 58,000 non-fatal injuries.


The current law The present system came into being with the Health and Safety at Work etc. Act (HSWA) in 1974. The effect of this was to provide a unified institutional structure and legal framework for health and safety regulation. While the Act is reviewed over time, there have been many regulations made under the Act.


Stuart Ponting, a partner in regulatory and compliance at law firm Walker Morris, says the Act places wide ranging responsibilities on business: “There are general duties on employers (and the self- employed) to look after their own safety, that of their employees, and others including members of the public.”


As he notes, health and safety law is in most cases enforced by the HSE and local authorities. “These organisations employ specialists who have significant powers to ensure businesses comply with legislation and will take action when businesses don’t.” What should worry employers is that the powers of inspectors include rights of access, obtain or retain evidence, prohibit activities where there are serious and uncontrolled risks of harm and, in appropriate circumstances, prosecute for breaches of the law.


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Impact on the sector The problem that merchants face is that the law introduced a reverse burden of proof. The principle at play here is that the law requires a business to show that it did everything that was ‘practicable, or to use the best practicable means to do something’. If they cannot show this guilt is established.


Ponting’s advice to firms is that they must look at the risks that exist in their business and either eliminate them or reduce them to a tolerable level. “Firms ought to appoint a specialist health and safety manager and create clear, documented policies and procedures on a host of health and safety issues.” He adds that businesses need to ensure that employees are competent for the work they are undertaking and that they are properly supervised. It is also vital that employers make sure that processes are in place to minimise the risks employees are exposed to, by performing risk assessments, looking at control methods and ensuring competence through ongoing training and development.


Significantly, if a company employs five or more people they must have a written health and safety policy along with providing a health and safety law poster or leaflet.


Training, supervision and monitoring are also critical. Ponting thinks that businesses “should develop a positive and open safety culture, invest in proper accident reporting and investigation and where things don’t always go right, swiftly learn their lessons and take corrective actions to avoid a recurrence.” Naturally this involves cost and it’s understandable, as Ponting explains, that businesses often assess risk according to a cost/ benefit analysis. Even so, there’s no getting away from the need to “properly manage the risks


they identify, whenever and wherever possible.” Ponting says that the onus is on the business to “always check whether there are any specific regulations that apply to them and have in place a mechanism for identifying any new legislation which may affect them.” He warns that some of the regulations involve strict liability, “which means a business must meet the requirements of the regulations whether or not it is difficult, or expensive, to do so.” Clearly merchants are no different to any other industry as far as health and safety is concerned. The likely risks include work equipment, guarding controls and inspections; COSHH and hazardous substances; fire safety; workplace transport and management of forklift trucks; working at height; noise management; manual handling and repetitive work; slips, trips and falls; electricity and gas; and asbestos management and controls.


But Ponting puts individuals on notice too. “It is a mistake to assume that health and safety legislation only applies to businesses. HSWA places duties on individuals as well and perhaps most importantly, places legal duties on everyone as employees.” Section 7 of the Act places a clear legal duty on everyone to take reasonable care for their own safety whilst at work and those who might be affected by their acts or omissions - directors, managers, etc have additional duties. “So,” says Ponting, “our safety is a joint effort and a joint responsibility.”


The risks


A suitable safety management platform that controls operational procedures must be in place throughout the business. If this isn’t, urgent help should be sought to create a gap analysis of current working procedures. The importance of this cannot


be understated - it protects employees within the business and ensures the company remains on the right side of any claim or HSE visit to site. “Failing to adhere to safety legislation places everyone at risk and has serious consequences not least of which is the risk of an accident leading to injury or death.” But failing to comply also results in both individuals and businesses being prosecuted for their failures. The most obvious consequence of non-compliance is the possibility of being fined. Cases have shown that fines for serious safety breaches can fall within the hundreds of thousands of pounds. And they can end up being a costly exercise as those convicted will need to pay not only their own legal costs but also those of the prosecution. As already noted, while a business will face the music, so will individuals who can be imprisoned for breaches of health and safety law, with sentences of up to six months in the magistrates’ courts and up to two years in the crown courts. There’s also the risk to the company brand and reputation which can result in the loss of business. Further, many corporate customers are now asking for the completion of tender questionnaires as standard which will review the company safety arrangements, with the review of any safety convictions prior to engaging in business with them.


To conclude


From experience Ponting says that “it is often businesses who have established a good safety culture and achieved low accident rates who then seek to reduce their investment based on the perception that there are few safety risks – but this is exactly the wrong time to reduce investment.”


The harsh reality is that the law cares not for excuses. BMJ


www.buildersmerchantsjournal.net April 2019


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