6 Recommendations for employers, managers and those in control of undertakings
Health and safety law imposes important duties on employers, managers, occupiers of premises and those controlling undertakings. An ‘undertaking’ can be any form of organisation, whether run for profit or not. On this basis, health and safety law applies to any type of undertaking that manages people including, for example, volunteers at a local hospital, people running a car boot sale and the organisers of a local carnival.
This chapter reviews some of the more important aspects of health and safety management necessary to ensure compliance with, in particular, the Health and Safety at Work etc. Act and the Management of Health and Safety at Work Regulations. Documentation of policies and procedures, together with the keeping of certain records, features strongly in the management process along with:
• regular safety monitoring activities, such as safety inspections;
• risk assessment;
– workplaces, work activities and work groups
– work equipment
– personal protective equipment
– manual handling operations
– display screen equipment workstations
– substances hazardous to health;
• the training and appointment of competent persons;
• the thorough investigation of accidents and occupational ill-health; and
• the provision of information, instruction and training for employees and others in certain cases.
All modern protective legislation – health and safety, food safety and environmental protection – is risk assessment driven. Having completed the risk assessment process, an employer must install ‘preventive and protective measures’ aimed at reducing or controlling hazards. These measures may include health surveillance of specific groups of employees in certain cases.
These important areas of health and safety management are dealt with below.
Health and Safety Management Systems
What is ‘management’?
‘Management’ is defined as ‘the effective use of resources in the pursuit of organisational goals’. ‘Effective’ implies achieving a balance between the risk of being in business and the cost of eliminating or reducing those risks.
Management entails leadership, authority and co-ordination of resources, together with planning and organisation, co-ordination and control, communication, selection and placement of subordinates, training and development of subordinates, accountability and responsibility.
Management resources include people, land, buildings and capital, together with time and the appropriate management skills in co-ordinating the use of these resources.
Key elements of successful health and safety management
The successful management of occupational health and safety includes the establishment of policy and subsequent development of policy, establishing and developing the organisation and arrangements for implementing the policy, planning strategies and implementation of those strategies to eliminate or control risks, measuring performance of managers against agreed health and safety objectives and reviewing management performance. Various forms of health and safety monitoring, such as safety audits, should result in feedback for policy revision and review.
These elements are summarised in Figure 6.
The legal duty to manage health and safety at work
In addition to the general and more specific duties placed on employers under the Health and Safety at Work Act, the Management of Health and Safety at Work Regulations place an absolute duty on employers to actually manage health and safety in the workplace, thus:
Regulation 4 – Health and safety arrangements
1. Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures.
2. Where the employer employs five or more employees, he shall record the arrangements referred to in paragraph 1.
HSC Approved Code of Practice
The Health and Safety Commission Approved Code of Practice accompanying the Regulations enlarges on this duty thus:
’This regulation requires employers to have arrangements in place to cover health and safety. Effective management of health and safety will depend, amongst other things, on a suitable and sufficient risk assessment being carried out and the findings used effectively. The health and safety arrangements can be integrated into the management system for all other aspects of the organisation’s activities. The management system adopted will need to reflect the complexity of the organisation’s activities and working environment. Where the work process is straightforward and the risks generated are relatively simple to control, then very straightforward management systems may be appropriate. For large complicated organisations more complex systems may be appropriate; although the principles of the management arrangements are the same irrespective of the size of an organisation. The key elements of such effective systems can be found in Successful health and safety management [HS(G)65 HSE Books] or the British Standard for health and safety management systems BS8800. A successful health and safety management system will include the following elements:
• Planning
Employers should set up an effective health and safety management system to implement their health and safety policy which is proportionate to the hazards and risks. Adequate planning includes:
(a) adopting a systematic approach to the completion of a risk assessment. Risk assessment methods should be used to decide on priorities and to set objectives for eliminating hazards and reducing risks. This should include a programme, with deadlines for the completion of the risk assessment process, together with suitable deadlines for the design and implementation of the preventive and protective measures which are necessary;
(b) selecting appropriate methods of risk control to minimise risks;
(c) establishing priorities and developing performance standards both for the completion of risk assessment(s) and the implementation of preventive and protective measures, which at each stage minimises the risk of harm to people. Wherever possible, risks are eliminated through selection and design of facilities, equipment and processes.
This includes:
(a) involving employees and their representatives in carrying out risk assessments, deciding on preventive and protective measures and implementing those requirements in the workplace. This may be achieved by the use of a formal health and safety committee where they exist, and by the use of teamworking, where employees are involved in deciding on the preventive and protective measures and written procedures, etc.;
(b) establishing effective means of communication and consultation in which a positive approach to health and safety is visible and clear. The employer should have adequate health and safety information and make sure it is communicated to employees and their representatives, so informed decisions can be made about the choice of preventive and protective measures. Effective communication will ensure that employees are provided with sufficient information so that control measures can be implemented effectively;
(c) securing competence by the provision of adequate information, instruction and training and its evaluation, particularly for those who carry out risk assessments and make decisions about preventive and protective measures. Where necessary, this will need to be supported by the provision of adequate health and safety assistance or advice.
• Control
Establishing control includes:
(a) clarifying health and safety responsibilities and ensuring that the activities of everyone are well-co-ordinated;
(b) ensuring everyone with responsibilities understands clearly what they have to do to discharge their responsibilities, and ensure that they have the time and resources to discharge them effectively;
(c) setting standards to judge the performance of those with responsibilities and ensure they meet them. It is important to reward good performance as well as to take action to improve poor performance; and
(d) ensuring adequate and appropriate supervision, particularly for those who are learning and who are new to a job.
• Monitoring
Employers should measure what they are doing to implement their health and safety policy, to assess how effectively they are controlling risks, and how well they are developing a positive health and safety culture. Monitoring includes:
(a) having a plan and making adequate routine inspections and checks to ensure that preventive and protective measures are in place and effective. Active monitoring reveals how effectively the health and safety management system is functioning;
(b) adequately investigating the immediate and underlying causes of incidents and accidents to ensure that remedial action is taken, lessons are learnt and longer term objectives are introduced.
In both cases it may be appropriate to record and analyse the results of the monitoring activity, to identify any underlying themes or trends which may not be apparent from looking at events in isolation.
• Review
Review includes:
(a) establishing priorities for necessary remedial action that were discovered as a result of monitoring to ensure that suitable action is taken in good time and is completed;
(b) periodically reviewing the whole of the health and safety management system including the elements of planning, organisation, control and monitoring to ensure that the whole system remains effective.
Recording the arrangements
The regulation also requires that employers with five or more employees should record their arrangements for health and safety. The arrangements recorded should include, for example, a list of those competent persons appointed under regulation 6. As with the risk assessment, this record should form part of the same document containing the health and safety policy required under section 2(3) of the Health and Safety at Work Act.
HS(G) 65: Successful Health and Safety Management
The key elements of successful health and safety management are set out below, and the relationship between them is outlined in Figure 6.1.
Fig 6.1 Key elements of successful health and safety management
Policy
Policy is used is used in relation to health and safety and other functional management areas (e.g. manufacturing and human resources) to convey the general intentions, approach and objectives of an organisation and the criteria and principles on which actions and responses are based. The term ‘written policy statement’ is used to describe those documents which record the policy of the organisation.
Organisations which are successful in achieving high standards of health and safety have safety policies which contribute to their business performance, while meeting their responsibilities to people and the environment in a way which fulfils both the spirit and the letter of the law. In this way they satisfy the expectations of shareholders, employees, customers and society at large. Their policies are cost effective and aimed at achieving the preservation and development of physical and human resources and reductions in financial losses and liabilities. Their health and safety policies influence all their activities and decisions, including those to do with the selection of resources and information, the design and operation of working systems, the design and delivery of products and services, and the control and disposal of waste.
Organising
Organisation is used as a general term to describe the responsibilities and relationships between individuals which forms the social environment in which work takes place. Organising is regarded as the process of designing and establishing those responsibilities and relationships.
Organisations which achieve high health and safety standards are structured and operated so as to put their health and safety policies into effective practice. This is helped by the creation of a positive culture which secures involvement and participation at all levels. It is sustained by effective communications and the promotion of competence which enables all employees to make a responsible and informed contribution to the health and safety effort. The visible and active leadership of senior managers is necessary to develop and maintain a culture supportive of health and safety management. Their aim is not simply to avoid accidents, but to motivate and empower people to work safely. The vision, values and beliefs of leaders become the shared ‘common knowledge’ of all.
Planning
Planning is used to describe the process by which the objectives and methods of implementing the health and safety policy are decided. It is concerned with allocating resources (e.g. money, time or effort) to achieve objectives and decide priorities. It ranges from general topics dealing with the direction of the whole organisation to detailed issues concerned with standard setting and the control of specific risks.
These successful organisations adopt a planned and systematic approach to policy implementation. Their aim is to minimise the risks, created by work activities, products and services. They use risk assessment methods to decide priorities and set objectives for hazard elimination and risk reduction. Performance standards are established and performance is measured against them. Specific actions needed to promote a positive health and safety culture and to eliminate and control risks are identified. Wherever possible, risks are eliminated by the careful selection and design of facilities, equipment and processes or minimised by the use of physical control measures. Where this is not possible systems of work and personal protective equipment are used to control risks.
Measuring performance
Measuring means the collection of information about the implementation and effectiveness of plans and standards. This involves a variety of checking or ‘monitoring’ activities.
Health and safety performance in organisations which manage health and safety successfully is measured against pre-determined standards. This reveals when and where action is needed to improve performance. The success of action taken to control risks is assessed through active self-monitoring involving a range of techniques. This includes an examination of both hardware (premises, plant and substances) and software (people, procedures and systems), including individual behaviour. Failures of control are assessed through reactive monitoring which requires the thorough investigation of any accidents, ill-health or incidents with the potential to cause harm or loss. In both active and reactive monitoring the objectives are not only to determine the immediate causes of sub-standard performance but, more importantly, to identify the underlying causes and the implications for the design and operation of the health and safety management system.
Auditing and reviewing performance
Auditing is the structured process of collecting independent information on the efficiency, effectiveness and reliability of the total safety management system and drawing up plans for corrective action.
Reviewing is used to describe activities involving judgements about performance, and decisions about improving performance. Reviewing is based on information from ‘measuring’ and ‘auditing’ activities.
Learning from all relevant experience, and applying the lessons learned, are important elements in effective health and safety management. This needs to be done systematically through regular reviews of performance based on data both from monitoring activities and from independent audits of the whole health and safety management system. These form the basis for self-regulation and for securing compliance with sections 2 to 6 of the Health and Safety at Work, etc. Act 1974. Commitment to continuous improvement involves the constant development of policies, approaches to implementation and techniques of risk control. Organisations which achieve high standards of health and safety assess their health and safety performance by internal reference to key performance indicators and by external comparison with the performance of business competitors. They often also record and account for their performance in the annual reports.
Documentation and Record Keeping Requirements
Current health and safety legislation places considerable emphasis on the documentation of policies, procedures and systems of work and the maintenance of certain records.
The following are some of the documents and records that are required to be produced and maintained:
• Statement of Health and Safety Policy (Health and Safety at Work etc. Act 1974)
• Risk assessments in respect of:
– workplaces (Management of Health and Safety at Work Regulations 1999 and Workplace (Health, Safety and Welfare) Regulations 1992)
– work activities (Management of Health and Safety at Work Regulations 1999 and Workplace (Health, Safety and Welfare) Regulations 1992)
– work groups (Management of Health and Safety at Work Regulations)
– new or expectant mothers (Management of Health and Safety at Work Regulations 1999)
– young persons (Management of Health and Safety at Work Regulations 1999)
– work equipment (Provision and Use of Work Equipment Regulations 1998)
– personal protective equipment (Personal Protective Equipment Regulations 1992)
– manual handling operations (Manual Handling Operations Regulations 1992)
– display screen equipment (Health and Safety (Display Screen Equipment) Regulations 1992)
– substances hazardous to health (Control of Substances Hazardous to Health Regulations 2002)
– significant exposure to lead (Control of Lead at Work Regulations 1998)
– noise levels in excess of 85 dBA (Noise at Work Regulations 1989)
– before a radiation employer commences a new activity involving work with ionising radiation (Ionising Radiations Regulations 1999)
– the presence or otherwise of asbestos in non-domestic premises (Control of Asbestos at Work Regulations 2002)
– where a dangerous substance is or is liable to be present at the workplace (Dangerous Substances and Explosive Atmospheres Regulations 2002)
• Safe systems of work, including permits to work and method statements
• Pre-tender stage health and safety plan and construction phase health and safety plan (Construction (Design and Management) Regulations 1994)
• Planned preventive maintenance schedules (Workplace (Health, Safety and Welfare) Regulations 1992 and Provision and Use of Work Equipment Regulations 1998)
• Cleaning schedules (Workplace (Health, Safety and Welfare) Regulations 1992)
• Written scheme of examination for specific parts of an installed pressure system or of a mobile system and the last report relating to a system by a competent person (Pressure Systems Safety Regulations 2000)
• Written plan of work identifying those parts of a premises where asbestos is or is liable to be present in a premises and detailing how that work is to be carried out safely and without risk to health (Control of Asbestos at Work Regulations 2002)
• Records of examinations and tests of exhaust ventilation equipment and respiratory protective equipment and of repairs carried out as a result of those examinations and tests (Control of Lead at Work Regulations 1999, Control of Substances Hazardous to Health Regulations 2002 and Control of Asbestos at Work Regulations 2002)
• Record of air monitoring carried out in respect of:
– specified substances or processes
– lead
– asbestos
(Control of Substances Hazardous to Health Regulations 2002, Control of Lead at Work Regulations 1998 and Control of Asbestos at Work Regulations 2002)
• Record of examination of respiratory protective equipment (Ionising Radiations Regulations 1999)
• Records of air monitoring in cases where exposure to asbestos is such that a health record is required to be kept (Control of Asbestos at Work Regulations 2002)
• Personal health records (Control of Lead at Work Regulations 1999, Ionising Radiations Regulations 1999, Control of Substances Hazardous to Health Regulations 2002 and Control of Asbestos at Work Regulations 2002)
• Personal dose records (Ionising Radiations Regulations 1999)
• Record of quantity and location of radioactive substances (Ionising Radiations Regulations 1999)
• Record of investigation of certain notifiable occurrences involving release or spillage of a radioactive substance (Ionising Radiations Regulations 1999)
• Record of suspected overexposure to ionising radiation during medical exposure (Ionising Radiations Regulations 1999)
• Major Accident Prevention Policy (Control of Major Accident Hazards Regulations 1999)
• Off-Site Emergency Plan (Control of Major Accident Hazards Regulations 1999)
• Declaration of conformity by the installer of a lift and the manufacturer of a safety component for a lift together with any technical documentation or other information in relation to a lift or safety component required to be retained under the conformity assessment procedure (Lifts Regulations 1997)
• Declaration of conformity by the manufacturer of pressure equipment and assemblies (as defined) together with technical documentation or other information in relation to an item of pressure equipment and assemblies required to be retained under the conformity assessment procedure used (Pressure Equipment Regulations 1999)
• Any technical documentation or other information required to be retained under a conformity assessment procedure and a periodic inspection procedure (Transportable Pressure Vessels Regulations 2001)
• Procedures for serious and imminent danger and for danger areas (Management of Health and Safety at Work Regulations 1999)
• Emergency procedure to protect the safety of employees from an accident, incident or emergency related to the presence of a dangerous substance at the workplace (Dangerous Substances and Explosive Atmospheres Regulations 2001)
• Contingency plan in the event of a radiation accident (Ionising Radiations Regulations 1999)
• Local rules in respect of controlled areas and supervised areas (Ionising Radiations Regulations 1999)
• Written arrangements for non-classified persons (Ionising Radiations Regulations 1999).
Statements of Health and Safety Policy
Under section 2(3) of the HSWA every employer has a duty to prepare, and as often as appropriate, revise a written statement of his general policy with respect to the health and safety at work of his employees and the ‘organisation and arrangements’ for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of his employees.
It is a technical offence under the HSWA for an employer not to have a written Statement of Health and Safety Policy (except in the case where less than five employees are employed).
Importance of the Statement
The Statement of Health and Safety Policy is the key document for detailing the management systems and procedures to ensure sound levels of health and safety performance. It should be revised at regular intervals, prior to, particularly, changes in the structure of the organisation, the introduction of new articles and substances, and changes to legal requirements affecting the organisation. Fundamentally, the Statement must be seen as a ‘living document’ which reflects the current organisational requirements, the hazards and precautions necessary, the individual responsibilities of people and systems for monitoring performance.
There is no standard format for a Statement of Health and Safety Policy. Much will depend upon the structure of the organisation, the nature of the organisation’s activities, the hazards to which employees are exposed and the legislation currently applying to the organisation.
Objectives of the Statement of Health and Safety Policy
There are a number of important objectives for a Statement.
• It should affirm long range purpose.
• It should commit management at all levels and reinforce this purpose in the decision-making process.
• It should indicate the scope left for decision-making by junior managers.
Scope of the Statement of Health and Safety Policy
A well-written Statement of Health and Safety Policy should cover the following aspects:
• The ‘arrangements’ for implementing the Policy
• Individual accountabilities of directors, line managers, employees and other groups, e.g. contractors
• Details of the organisation with respect to both line and staff functions
• The role and function of health and safety specialists, e.g. health and safety advisers, occupational health nursing advisers, occupational hygienists, occupational health nurses, local safety officers, occupational physicians, company doctors and trade union-appointed safety representatives
Principal Features of a Statement of Health and Safety Policy
A Statement of Health and Safety Policy should incorporate the following features:
• A general statement of intent which states the basic objectives, supplemented by details of the ‘organisation and arrangements’ (rules and procedures).
• Definition of both the duties and extent of responsibility at specified line management levels for health and safety, with identification made at the highest level of the individual with overall responsibility for health and safety.
• Definition of the functions of the safety adviser/officer/consultant and his relationship to senior and line management made clear.
• The system for monitoring safety performance and publishing of information about that performance.
• An identification and analysis of the hazards that may arise and the precautions necessary on the part of employees, contractors and visitors.
• An information system which will be sufficient to produce an identification of needs and which can be used as an indicator of the effectiveness of the policy.
• A policy on the provision of health and safety information, instruction and training for all levels of the organisation.
• A commitment to consultation on health and safety and to a positive form of employee involvement.
• The Statement should bear the signature of the person with ultimate responsibility and accountability for health and safety at work, e.g. Chief Executive, Managing Director.
• It is common practice for Statements of Health and Safety Policy to incorporate a series of Appendices, such as:
– Current health and safety legislation (the ‘relevant statutory provisions’) applying to the organisation
– Duties and responsibilities for health and safety of individual levels of management
– Role and function of the health and safety adviser and other health and safety specialists
– Hazards and precautions necessary
– Sub-policies covering:
(i) Smoking at work
(ii) Alcohol at work
(ii) Stress at work
(iv) Bullying and harassment at work
(v) The provision of personal protective equipment
(vi) Joint consultation arrangements
(vii) Risk assessment.
Safety Monitoring
Safety monitoring is a pro-active strategy aimed at assessing and evaluating safety performance. It may take a number of forms.
Safety inspections
This is generally taken to mean a scheduled inspection of a workplace or part of a workplace, such as a factory, office, workshop, construction site or a public building. It can be undertaken by a manager, safety adviser or representative of employee safety.
Whilst the principal objective of a safety inspection is to identify hazards and assess the remedial action necessary, this form of monitoring may also examine maintenance standards, working practices, environmental conditions and compliance with written safety procedures.
A safety inspection is a general examination of the situation at a specific point in time rather than the in-depth approach taken by a safety survey. As with any form of safety monitoring, it is vital that the objectives are clearly defined and the outcome of the inspection in terms of recommendations for action are acted upon by management.
Safety surveys
This can take the form of an examination of a number of critical areas of operation, such as materials handling operations, or an in-depth study of all health and safety related activities in a workplace or within an organisation.
Safety surveys examine a range of issues, such as the effectiveness of the management of health and safety, environmental working conditions, health hazards, the very broad field of accident prevention and the current system for health and safety training.
At the completion of the survey management are presented with a safety survey report incorporating immediate, short-term and long-term recommendations. Implementation of the recommendations is monitored on a regular basis by the safety surveyor and progress reports prepared and issued to management.
Safety audits
The HSE publication Successful Health and Safety Management (HS(G)65) defines the term ‘safety audit’ as ‘the structured process of collecting independent information on the efficiency, effectiveness and reliability of the total safety management system and drawing up plans for corrective action’.
A safety audit is the systematic measurement and validation of an organisation’s management of its health and safety programme against a series of specific and attainable standards. (RoSPA). This type of monitoring subjects each area of an organisation’s activities to a systematic critical examination with the objective of minimising injury and other forms of loss.
A safety audit examines, for instance, the quality of documentation from the Statement of Health and Safety Policy to other documents, such as risk assessments, permits-to-work, contractors’ regulations and employee health and safety information. It will also examine health and safety management systems, management and employee attitudes to health and safety, prevention and control procedures and training arrangements. Safety audits can be designed to cover areas of particular significance to an organisation, e.g. management of hazardous substances, safety procedures for employees working away from base and specific health protection arrangements, in addition to those more general issues which apply to all workplaces.
A Specimen Safety Audit is shown in Figure 6.2.
Fig 6.2 Health and safety audit
Safety tours
This is an unscheduled examination of a workplace or work area, undertaken by a manager, possibly accompanied by safety representatives and/or safety committee members, to ensure, for instance, standards of housekeeping are at an acceptable level, fire protection measures are being observed or personal protective equipment is being correctly used or worn. A safety tour tends to be spontaneous as opposed to, for instance, an audit or survey, which may be planned some time ahead.
Safety sampling exercises
This technique is designed to measure, by random sampling, the accident potential in a specific workplace, or at a particular process or work activity, by identifying safety defects or omissions. Safety sampling entails the use of a safety sampling sheet which lists specific aspects to be observed and assessed, e.g. machinery safety, electrical safety, housekeeping and personal protective equipment. Each of the areas for consideration is numerically graded according to its significance and a maximum number of points are awardable for each aspect. Such a system monitors the effectiveness of the overall programme.
Safety sampling exercises are also used for comparing safety performance in comparable workplaces where, for instance, an organisation has offices, workshops, manufacturing or service units at different locations.
A typical safety sampling sheet is shown later.
Check list systems
Where there is a need to monitor safety standards on a regular basis, many organisations operate a simple check list system. In this case, a trained person, such as a supervisor, goes through the workplace or his department on a weekly basis using the check list. Such as system relies heavily on conscientious use of the check list, regular revision of same, and on the effectiveness of action taken where there is a deviation from the requirements shown in the check list.
HEALTH AND SAFETY AUDIT
Fig 6.3 Safety sampling exercise
Accident and Incident Investigation
The term ‘accident’ is defined as a ‘deviation from the normal, the expected or the planned, commonly resulting in injury’. An ‘incident’, on the other hand, is ‘an undesired event which does, or could, result in loss’.
Investigation of the direct and indirect causes of both accidents and loss-producing incidents is a reactive strategy in safety management. There are very good reasons for the effective and thorough investigation of these events, in particular, namely:
• on a purely humanitarian basis, no one likes to see people killed or injured;
• the accident or incident may have resulted from a breach of statute or regulations by the organisation, the accident victim, the manufacturers and/or suppliers of articles and substances used at work, or other persons, e.g. contractors, with the possibility of civil proceedings being instituted by the injured party against the employer and other persons;
• the injury may be reportable to the enforcing authority (HSE, local authority) under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 1995;
• the accident or incident may result in lost production;
• from a management viewpoint, a serious accident, particularly a fatal one, can have a long-term detrimental effect on the morale of the workforce and employer/employee relations;
• there may be damage to plant and equipment, resulting in the need for repair or replacement, with possible delays in replacement; and
• in most cases, there will be a need for immediate remedial action in order to prevent a recurrence of this type of accident or incident.
Apart from the obvious direct and indirect losses associated with all forms of incident, not just those resulting in injury, there are good reasons for investigating accidents to identify the direct and indirect causes and to produce strategies for preventing recurrences. Above all, the purpose of accident investigation is not to apportion blame or fault, although blame or fault may eventually emerge as a result of investigation.
What incidents should be investigated?
Clearly there is a case for investigating all accidents and, indeed, classes of incident known as ‘near misses’. A near miss is defined as ‘an unplanned and unforeseeable event that could have resulted, but did not result in human injury, property damage or other form of loss’.
However, it may be impracticable to investigate every accident, but the following factors should be considered in deciding which accidents should be investigated as a priority:
• the type of accident, e.g. fall from a height, chemical handling, machinery-related;
• the form and severity of injury, or the potential for serious injury and/or damage;
• whether the accident or incident indicates the continuation of a particular trend in the organisation’s accident experience;
• the extent of involvement of articles and substances used at work, e.g. machinery, work equipment, hazardous substances, and the ensuing damage or loss;
• the possibility of a breach of the criminal law, such as the Health and Safety at Work etc. Act;
• whether the injury or occurrence is, by law, notifiable and reportable to the enforcing authority; and under RIDDOR; and
• whether the accident should be reported to the insurance company as it could result in a civil claim for negligence being made by the injured party against the organisation.
Practical accident and incident investigation
In any serious incident situation, such as a fatal accident, an accident resulting in major injury, e.g. fractures, amputations, loss of an eye, or where there has been a scheduled dangerous occurrence, such as the collapse of a crane, speed of action is essential. This is particularly the case when it comes to interviewing injured persons and witnesses.
The following procedure is recommended:
• Establish the facts as quickly and completely as possible with regard to:-
– the general environment;
– the particular plant, machinery, practice or system of work involved; and
– the sequence of events leading to the accident.
• Use an instant camera to take photographs of the accident scene prior to any clearing up that may follow the accident.
• Draw sketches and take measurements with a view to producing a scale drawing of the events leading up to the accident.
• List the names of all witnesses, i.e. those who saw, heard, felt or smelt anything; interview them thoroughly in the presence of a third party if necessary, and take full statements. In certain cases, it may be necessary to formally caution witnesses, in accordance with the Police and Criminal Evidence Act, prior to their making a statement. Do not prompt or lead witnesses.
• Evaluate the facts, and individual witnesses’ versions of same, as to accuracy, reliability and relevance.
• Endeavour to arrive at conclusions as to the causes of the accident on the basis of the relevant facts.
• Examine closely any contradictory evidence. Never dismiss a fact that does not fit in with the rest. Find out more.
• Learn fully about the system of work involved. Every accident occurs within the context of a work system. Consider the people involved in terms of their ages, training, experience and level of supervision, and the nature of the work, e.g. routine, sporadic or incidental.
• In certain cases, it may be necessary for plant and equipment, such as lifting appliances, machinery and vehicles to be examined by a specialist, e.g. a consultant engineer, with a view to that person producing a report as to the relative fitness and safety of same.
• Produce a report for the responsible manager emphasising:
– the identified direct and indirect causes; and
– remedies to prevent a recurrence, including any changes necessary.
In complex and serious cases, consider the establishment of an investigating committee comprising managers, supervisors, technical specialists and trade union safety representatives.
Other parties involved in investigation
There are other persons who may also wish to investigate this accident, including:
(a) appointed employee representatives;
(b) an insurance company liability surveyor, in the event of a claim being submitted by the injured party;
(c) legal representative of the injured party to establish the cause of the accident, whether there has been negligence or a breach of statutory duty on the part of the employer and further action required; and
(d) officers of the enforcing authority, to establish whether there has been a breach of current health and safety legislation (the ‘relevant statutory provisions’) which may require action, such as:
(i) the service of a Prohibition Notice;
(ii) the service of an Improvement Notice; and/or
(iii) prosecution.
It is essential, therefore, that any accident report produced is accurate, comprehensible and identifies the causes of the accident, both direct and indirect.
The outcome of accident investigation
Whether the investigation of an accident is undertaken by an individual, e.g. health and safety specialist, manager or by a special committee, it is necessary, once the causes have been identified, to submit recommendations to management with a view to preventing a recurrence. The organisation of feedback on the causes of accidents is crucial in large organisations, especially those who operate more than one site or premises.
An effective investigation should result in one or more of the following recommendations being made:
• the issuing of specific instructions by management covering, for instance, systems of work, the need for more effective guarding of machinery or safe manual handling procedures;
• the establishment of a working party or committee to undertake further investigation, perhaps in conjunction with members of the safety committee and/or safety representatives;
• the preparation and issue of specific codes of practice or guidance notes dealing with the procedures necessary to minimise a particular risk, e.g. the use of a permit to work system;
• the identification of specific training needs for groups of individuals, e.g. managers, foremen, supervisors, machinery operators, drivers, and the implementation of a training programme designed to meet these needs;
• the formal analysis of the job or system in question, perhaps using job safety analysis techniques, to identify skill, knowledge and safety components of the job;
• identification of the need for further information relating to articles and substances used at work, e.g. work, equipment, chemical substances;
• identification of the need for better environmental control, e.g. noise reduction at source or improved lighting;
• general employee involvement in health and safety issues, e.g. the establishment of a health and safety committee; and
• identification of the specific responsibilities of groups with regard to safe working practices.
Above all, a system of monitoring should be implemented to ensure that the lessons which have been learned from the accident or incident are put into practice or incorporated in future systems of work, and that procedures and operating systems have been produced for all grades of staff.
Principles of Risk Assessment
A risk assessment is carried out to identify the risks to employees and any other persons arising out of, or in connection with work, or the conduct of an undertaking. It should identify how the risks arise and how they impact on those affected. This information is needed to make decisions on how to manage those risks so that decisions are made in an informed, rational and structured manner, and the action taken is proportionate.
What is risk assessment?
Risk assessment involves:
• the identification of hazards at work;
• the weighing up of the risks from the hazards;
• deciding how to control the risks; and
• implementing a control strategy.
A risk assessment has three purposes:
• to identify all the factors which may cause harm to employees and others (the hazards);
• to consider the chance of that harm actually befalling anyone in the circumstances of a particular case, and the possible consequences that could come from it (the risks); and
• to enable employers to plan, introduce and monitor preventive measures to ensure that the risks are adequately controlled at all times.
Without effective assessment there can seldom be effective control.
Assessment under other regulations
The requirements of, for example, the COSHH Regulations, may need to be considered in conjunction with a work activity risk assessment.
[Further information on risk assessment can be found in The Law and Practice of Risk Assessment (Jeremy Stranks): Pearson Education]
Competent Persons
One way of ensuring the operation of a safe system of work is by the designation and employment of specifically trained operators who appreciate the risks involved, or by the use of external specialists. This may be for undertaking certain inspections, examination and testing of work equipment, or for undertaking certain activities where there may be a high degree of foreseeable risk.
The expression competent person occurs frequently in construction safety law. For example, under the Construction (Health, Safety and Welfare) Regulations 1996 certain inspections, examinations, operations and supervisory duties must be undertaken by competent persons.
It should be noted that the term ‘competent person’ is not generally defined in law except in the Electricity at Work Regulations 1989 and the Pressure Systems Regulations 2000. Therefore the onus is on the employer to decide whether persons are competent to undertake these duties. An employer might do this by reference to the person’s training, qualifications and experience. Broadly, a competent person should have practical and theoretical knowledge as well as sufficient experience of the particular machinery, plant or procedure involved as will enable him to identify defects or weaknesses during plant or machinery examinations, and to assess their importance in relation to the strength and function of that plant and machinery (Brazier v. Skipton Rock Company Limited (1962) 1 AER 955).
Duties and functions of competent persons
These duties and functions are outlined below.
Noise at Work Regulations 1989
A competent person must make a noise assessment which is adequate for the purpose of:
(a) identifying employees’ noise exposure; and
(b) providing the employer with appropriate information as to enable him to facilitate compliance with his duties.
Pressure Systems Safety Regulations 2000
The user of an installed pressure system and the owner of a mobile pressure system shall not operate the system or allow it to be operated unless he has a written scheme for the periodic examination, by a competent person, of the following parts of the system:
(a) all protective devices;
(b) every pressure vessel and every pipeline in which (in either case) a defect may give rise to danger; and
(c) those parts of the pipework in which a defect may give rise to danger.
The user or owner shall:
(a) ensure that the scheme has been drawn up, or certified as being suitable, by a competent person;
(b) ensure that:
(i) the content of the scheme is reviewed at appropriate intervals by a competent person for the purpose of determining whether it is suitable in current conditions of use of the system; and
(ii) the content of the scheme is modified in accordance with any recommendations made by that competent person arising out of that review.
Under these regulations, the competent person:
(a) advises the user or owner on the scope of the written scheme for periodic examination;
(b) draws up or certifies the schemes of examination; and
(c) undertakes examinations under the scheme.
A competent person is defined as a competent individual person (other than an employee) or a competent body of persons corporate or unincorporated; and accordingly any reference in these regulations to a competent person performing a function includes a reference to his performing it through his employees.
Electricity at Work Regulations 1989
No person is to carry out a work activity where technical knowledge or experience is necessary to prevent danger or injury, unless he has such knowledge or is under the appropriate degree of supervision. (Whilst the term does not appear, competence is implied.)
Management of Health and Safety at Work Regulations 1999
Competent persons must be appointed by an employer to assist the employer in, firstly, complying with legal requirements and, secondly, to assist him in implementing procedures for serious and imminent danger and for danger areas, thus:
Every employer shall appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.
A person shall be regarded as competent where he has sufficient training and experience or knowledge and other qualities to enable him properly to assist the employer in undertaking the above measures.
Every employer shall nominate a sufficient number of competent persons to implement those procedures (i.e. for serious and imminent danger and for danger areas) in so far as they relate to the evacuation from premises of persons at work in an employer’s undertaking.
A person shall be regarded as competent for the above purposes where he has sufficient training and experience or knowledge and other qualities to enable him properly to implement the evacuation procedures in the above paragraph.
Construction (Design and Management) Regulations 1994
Competence must be taken into account by:
(a) a client when appointing a planning supervisor;
(b) any person when arranging for a designer to prepare a design;
(c) any person when arranging for a contractor to carry out or manage construction work.
Construction (Health, Safety and Welfare) Regulations 1996
Competent persons must be appointed by an employer for the supervision of:
(a) the installation or erection of any scaffold and any substantial addition or alteration to a scaffold;
(b) the installation or erection of any personal suspension equipment or any means of arresting falls;
(c) erection or dismantling of any buttress, temporary support or temporary structure used to support a permanent structure;
(d) demolition or dismantling of any structure, or any part of any structure, being demolition or dismantling which gives rise to a risk of danger to any person;
(e) installation, alteration or dismantling of any support for an excavation;
(f) construction, installation, alteration or dismantling of a cofferdam or caisson; and
(g) the safe transport of any person conveyed by water to or from any place of work.
Competent persons are also required to inspect places of work as specified in Schedule 7 to the regulations below.
CONSTRUCTION (HEALTH, SAFETY AND WELFARE)
REGULATIONS 1996
SCHEDULE 7
Regulation 29(1)
PLACES OF WORK REQUIRING INSPECTION BY A
COMPETENT PERSON
Prevention and Control Strategies
A basic principle in health and safety is that of preventing exposure to a particular risk. If it is not possible to prevent exposure, then the risk must be controlled by the use of various protective measures. A ‘safe place’ strategy, such as machinery guarding, or the provision of local exhaust ventilation systems to prevent exposure to airborne contaminants, should always be invoked in preference to a ‘safe person’ strategy, such as health surveillance or the provision of information, instruction and training.
Thus, in the process of risk assessment, once the risk has been identified and assessed, employers must either prevent the risk arising or, alternatively control same. Much will depend upon the magnitude of the risk in terms of the controls applied. In certain cases, the level of competence of operators may need to be considered prior to their undertaking certain work, such as work on electrical systems.
General principles of prevention
Schedule 1 to the Management of Health and Safety at Work Regulations outlines the general principles of prevention thus:
(a) avoiding risks;
(b) evaluating the risks which cannot be avoided;
(c) combating the risks at source;
(d) adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effects on health;
(e) adapting to technical progress;
(f) replacing the dangerous by the non-dangerous or the less dangerous;
(g) developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment;
(h) giving collective protective measures priority over individual protective measures; and
(i) giving appropriate instructions to employees.
However, in many cases, it may not be possible to prevent exposure to risks using one or more of the strategies outlined above.
Hierarchy of control
The ideal situation is that all risks should be eliminated.
In many cases, however, it is not possible to completely eliminate a risk. Some form of control must, therefore, be applied.
A typical hierarchy of control, outlining some of the more common techniques, from high risk to low risk, is indicated below.
1. Substitution
Where substances may present a serious risk to employees, substitution of a less toxic material for a more highly toxic one, is a common technique.
Typical examples are the substitution of:
(a) toluene for benzene; and
(b) trichloroethane 1.1.1 for carbon tetrachloride.
2. Enclosure/Containment
This means the enclosure or containment of the risk in such a way that access is denied to same. This strategy is based on the containment of an offending agent or environmental stressor, such as machinery noise, to prevent its liberation into the working environment.
Total enclosure or containment of a process may be possible by the use of bulk tanks and pipework to deliver a liquid directly into a closed production vessel. Similarly, enclosure guarding is used for large machines where guarding of individual risks may be impracticable. Enclosures may take a number of forms, such as acoustic enclosures for noisy machinery, dust enclosures and paint spray booths.
3. Isolation/Separation
The isolation or segregation of a process using potentially dangerous substances or sources of radiation may simply mean relocating it to a controlled area, thereby separating the majority of the workforce from the risk. In this case, a system for limiting access to the controlled area only to trained and competent operators is necessary. In certain cases electrical equipment may be isolated in switch rooms or at such a distance from the floor that operators cannot come into contact with it (secure by position).
4. Environmental control
The employer has a duty to ensure the provision and maintenance of a working environment that is safe and without risks to health. Risks to health and safety may be associated with extremes of temperature, poor levels of lighting and ventilation, noise and vibration, and the presence of airborne contaminants, such as dust, fumes and gases. Control of the environment may be through mechanical ventilation systems, the use of local exhaust ventilation systems, improved lighting and sound proofing.
Structural aspects must also be considered in terms of safe floors, passages and stairways, access to and egress from the workplace, and the storage and disposal of waste items. Planned preventive maintenance systems aim to ensure structural integrity of the workplace. Procedures for waste storage and disposal, particularly in the case of flammable or toxic wastes, should be well-controlled and subject to regular monitoring.
5. Machinery and plant maintenance
The provision and maintenance of appropriate guards and safety devices is essential in preventing injuries associated with operating machinery. The requirements of the Provision and Use of Work Equipment Regulations 1998 and BS EN 292 ‘Safeguarding of machinery’ must be complied with. Electrical services should be maintained and portable electrical appliances examined and maintained according to manufacturers’ instructions.
Planned preventive maintenance procedures should ensure the integrity of all machinery, plant and appliances.
6. Change of process
Improved design or process engineering can bring about changes to provide better operator protection. Employees must be encouraged to report deficiencies in machinery and plant.
7. Controlled operation/safe systems of work
This implies the need for high standards of supervision and control where, in particular, there may be a high degree of foreseeable risk. Controlled operation may take a number of forms:
• the use of mechanical or remote control handling systems, e.g. with radioactive substances;
• the operation of formally established safe systems of work and the use of trained and supervised operators with such systems;
• the use of permit to work systems, e.g. for entry into confined spaces; and
• restriction of certain activities to highly trained and supervised staff, e.g. persons working in high voltage switch rooms.
Risk assessment commonly identifies the need for formally written and adopted safe systems of work. Operators must be instructed and trained in safe systems of work, with regular supervision to ensure operation of same.
8. Competent persons and authorised persons
In certain cases, it may be necessary to designate certain people as competent persons, on the basis of their skill, knowledge and experience, to undertake certain tasks. Such persons must be appointed by law in the case of, for instance, the inspection of scaffolds, excavations, lifting appliances and tackle.
In other cases, the use of certain items of equipment may require a period of training and instruction. It may be necessary to specify that only those authorised to use the equipment, such as lift trucks, may use same. Authorised persons may also be appointed to undertake certain electrical switching operations.
9. Information, instruction and training
There are duties under the Health and Safety at Work Act and the majority of Regulations to provide information, instruction and training to employees and others, particularly with regards to the hazards that may exist and the precautions necessary. This should be linked with effective supervision to ensure the lessons learned are being put into practice.
10. Warning systems
Warning systems take many forms, from simple safety signs posted at prominent points to more sophisticated devices, such as visible and audible alarms.
11. Personal protective equipment
The provision and use of items of personal protective equipment (PPE), such as eye protection, ear protection, safety boots and shoes, should be seen as the last resort, when all other measures have failed or, perhaps, as an interim measure until some more permanent form of protection, such as local exhaust ventilation, is provided.
The sole reliance on PPE as a means of protecting people from risks is a very dangerous strategy and relies on a high degree of supervision to ensure operators use or wear the PPE all the time they are exposed to the risk.
12. Health surveillance
Health surveillance may take many forms, such as pre-employment health screening by an occupational health nurse, on-going health examinations to assess continuing fitness for work or, where people may be exposed to hazardous substances, various forms of biological monitoring, such as blood and urine tests, vision screening of display screen equipment users, etc.
The need for health surveillance may be identified from risk assessments undertaken at an earlier stage.
Information, Instruction and Training
In order to maintain a safe and healthy workplace, it is essential that employees and other persons, such as the employees of contractors, visitors and temporary workers, are adequately informed, firstly of the hazards that could arise and, secondly, the action they may need to take to protect themselves from these hazards.
Most modern health and safety legislation requires employers to provide their employees and other persons with information, instruction and training on a wide range of issues.
The duty to inform, instruct and train
The terms ‘information’, ‘instruction’ and ‘training’ are not defined in law. However, the giving of information implies the imparting of factual knowledge by one person to another. Instruction, on the other hand, involves actually telling people what to do and may incorporate an element of supervision to ensure they do it correctly. ‘Training’ is defined by the Department of Employment as ‘the systematic development of attitude, knowledge and skill patterns required by an individual to perform adequately a given task or job’.
The duties on the part of employers and others to provide information, instruction and training to employees and other persons are incorporated in the Health and Safety at Work etc. Act 1974 (HSWA) and regulations made under the Act. In most cases, this duty is qualified by the term ‘so far as is reasonably practicable’. However, under much recent European Union-driven legislation, such as the Management of Health and Safety at Work Regulations 1999, this duty is absolute or strict.
Health and Safety at work etc. ACT 1974
Duties of employers towards employees
Employers must provide their employees, in particular, with details of the hazards to which they could be exposed and the precautions necessary on the part of those employees to prevent exposure to same. This is an important requirement of HSWA, thus:
Every employer shall ensure the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees. (Section 2(2)(c))
Duties of employers towards non-employees
The giving of information by an employer to non-employees is a matter which is not well-understood by many employers. Typical examples are where contractors’ employees may be working at a second employer’s premises, e.g. roofing contractors, electrical contractors, or where subcontractors are working under the direction of a principal contractor. Section 3 of HSWA is quite explicit here.
In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety. (Section 3(3))
The Swan Hunter Case
The above requirement was classically illustrated in R v. Swan Hunter Shipbuilders Ltd [1981] The Times. This prosecution by the HSE followed the fire on board HMS Glasgow, which was under construction in the Swan Hunter yard. In this situation, oxygen had leaked from a hose that passed down into a compartment on the lowest deck. The last-known person to use the oxygen hose, which was the source of the leak, was an employee of Telemeter Installations Ltd. As a result of an oxygen-enriched atmosphere in confined spaces below decks, there was an explosion and eight workmen were burnt to death.
Here the main contractor, Swan Hunter Ltd, and the sub-contractor, Telemeter Installations Ltd, were fined £15,000 and £3,000 respectively for failing to inform new sub-contract labour of the hazards arising from oxygen-enriched atmospheres, particularly in poorly ventilated spaces below decks.
Duties of manufacturers, etc. of articles and substances
Section 6 of the HSWA distinguishes between the duties in respect of both articles and substances, thus:
It shall be the duty of any person who designs, manufactures, imports or supplies any article for use at work:
to take such steps as are necessary to secure that there will be available in connection with the use of that article at work adequate information about the use for which it is designed and has been tested, and about any conditions necessary to ensure that, when put to that use, it will be safe and without risks to health (Section 6(1)(c))
It shall be the duty of any person who manufactures, imports or supplies any substance for use at work:
to take such steps as are necessary to ensure that there will be available in connection with the use of that substance at work adequate information about the results of any tests which have been carried out on or in connection with the substance and about any conditions necessary to ensure that it will be safe and without risks to health when properly used. (Section 6(4)(c))
It should be noted that the term article is broadly defined as meaning:
(a) any plant designed for use or operation (whether exclusively or not) by persons at work, or who erect or install any article of fairground equipment; and
(b) any article designed for use as a component in any such plant or equipment.
A substance means any natural or artificial substance (including microorganisms) intended for use (whether exclusively or not) by persons at work.
The Product Liability Chain
Principal duties to provide information rest with manufacturers, designers and importers of articles and substances for use at work. Secondary duties, in particular to ensure that the information is passed on, rests with wholesalers, retailers and others in the supply chain.
Duties under Regulations
Construction (Design and Management) (CDM) Regulations 1994
The CDM Regulations impose, in the main, absolute requirements and prohibitions with respect to ‘construction work’. This term is very broadly defined and includes not only construction activities, such as the erection, extension or conversion of a building, but preparation for an intended structure, assembly of prefabricated elements, demolition operations and the installation of services to a structure.
There must be a formal procedure where each of those holding duties, namely clients, designers, planning supervisors, principal contractors and contractors, exchange information on a range of safety-related issues.
Provision of information by clients to planning supervisors
A client, that is, a person for whom project work is carried out, has the following duties.
Every client shall ensure that the planning supervisor for any project carried out for the client is provided (as soon as is reasonably practicable but in any event before the commencement of the work to which the information relates) with all the information mentioned in the paragraph below about the state or condition of any premises at or on which the construction work included or intended to be included in the project is or is intended to be carried out.
The information required to be provided by the above paragraph is information which is relevant to the functions of the planning supervisor under these regulations and which the client has or could ascertain by making enquiries which is reasonable for a person in his position to make (Regulation 11)
Provision of information by principal contractors to contractors
Principal contractors must provide information to other contractors.
The principal contractor appointed for any project shall ensure, so far as is reasonably practicable, that every contractor is provided with comprehensible information on the risks to the health or safety of that contractor or of any employee or other persons under the control of that contractor arising out of or in connection with the construction work.
The principal contractor shall ensure, so far as is reasonably practicable, that every contractor who is an employer provides any of his employees at work carrying out the construction work with:
(a) any information which the employer is required to provide to those employees in respect of that work by virtue of regulation 8 of the Management of Health and Safety at Work Regulations; and
(b) any health and safety training which the employer is required to provide to those employees in respect of that work by virtue of regulation 11(2)(b) of the Management of Health and Safety at Work Regulations (Regulation 17)
Control of Substances Hazardous to Health (COSHH) Regulations 2002
Where employees are liable to be exposed to a substance hazardous to health as part of their work, an employer must undertake a suitable and sufficient assessment of the risks to those employees and of the steps that need to be taken to meet the requirements of the regulations. He must then provide particular information, instruction and training as outlined below. It should be noted that this duty is extended to non-employees who are liable to be exposed.
Every employer who undertakes work which may expose an employee to a substance hazardous to health shall provide that employee with suitable and sufficient information, instruction and training.
The information, instruction and training provided under the above paragraph shall include:
(a) details of the substances hazardous to health to which the employee is exposed including:
– the names of those substances and the risks which they present to health;
– any relevant occupational exposure standard, maximum exposure limit or similar occupational exposure limit;
– access to any relevant safety data sheet; and
– other legislative provisions which concern the hazardous properties of those substances;
(b) the significant findings of the risk assessment;
(c) the appropriate precautions and action to be taken by the employee in order to safeguard himself and other employees at the workplace;
(d) the results of any monitoring of exposure in accordance with regulation 10 and, in particular, in the case of a substance hazardous to health for which a maximum exposure limit has been approved, the employee or his representatives shall be informed forthwith, if the results of such monitoring show that the maximum exposure limit has been exceeded;
(e) the collective results of any health surveillance undertaken in accordance with regulation 11 in a form calculated to prevent those results from being identified as relating to a particular person; and
(f) where employees are working with a Group 4 biological agent or material that may contain such an agent, the provision of written instructions and, if appropriate, the display of notices which outline the procedures for handling such an agent or material.
Every employer shall ensure that any person (whether or not his employee) who carries out work in connection with the employer’s duties under these regulations has the necessary information, instruction and training. (Regulation 12)
Health and Safety (Display Screen Equipment) Regulations 1992
These regulations apply only to defined ‘users’ and ‘operators’ of display screen equipment. A user is an employee who habitually uses display screen equipment as a significant part of his normal work. An operator, on the other hand, is a self-employed person who habitually uses display screen equipment as a significant part of his normal work. The terms ‘habitually’, ‘significant’ and ‘normal’ are important in determining defined users and operators.
Many people use display screen equipment (DSE) as an ancillary aspect of their work. However, where people do not meet one or other of these definitions completely, the regulations do not apply.
Regulation 6 imposes an absolute duty on employers to provide training in specific situations.
Where a person:
(a) is a user on the date of coming into force of these regulations; or
(b) is an employee who does not habitually use display screen equipment as a significant part of his normal work, but is to become a user in the undertaking in which he is already employed,
their employer shall ensure that they are provided with adequate health and safety training in the use of any workstation on which they may be required to work.
Every employer shall ensure that each user at work in his undertaking is provided with adequate health and safety training whenever the organisation of any workstation in that undertaking upon which he may be required to work is substantially modified. (Regulation 6)
Training should be adapted to the requirements of the particular display screen tasks, be adapted to users’ skills and capabilities and be refreshed or updated as the hardware, software, workstation, environment or job are modified.
Users must be provided with information about their daily work routine, the form of training they will receive and the measures taken by the employer to comply with his duties under the regulations, e.g. the outcome of workstation risk analysis. This duty to inform must also be read in conjunction with the general duty to provide information, which is comprehensible, and relevant under the Management of Health and Safety at Work Regulations.
Regulation 7 of the Health and Safety (Display Screen Equipment) Regulations 1992 is quite specific on this issue, thus:
Every employer shall ensure that users at work in his undertaking are provided with adequate information about the measures taken by the employer in order to comply with their duties under regulations 4 (daily work routine of users) and 6(2) (provision of training) as relate to them and their work.
Every employer shall ensure that users employed by him are provided with adequate information about such measures taken by him in compliance with his duties under regulations.
Health and Safety (Information for Employees) Regulations 1998
These regulations require information relating to health, safety and welfare to be furnished to employees by the means of posters or leaflets in the form approved and published for the purposes of the regulations by the HSE.
The poster or form is entitled Health and Safety Law – What you should know and is available from the HSE and HMSO.
Ionising Radiations Regulations 1999
The duty on the part of employers to inform, instruct and train employees and others who could be accidentally exposed to ionising radiation is a significant requirement under the regulations.
Every employer shall ensure that:
(a) those employees who engaged in work with ionising radiation receive such information, instruction and training as will enable them to conduct the work in accordance with the requirements of these regulations;
(b) adequate information is given to others who are directly concerned with the work with ionising radiation carried out by the employer to ensure their health and safety, so far as is reasonably practicable;
(c) classified persons and trainees are informed of the health hazard, if any, associated with their work, the precautions to be taken, the importance of complying with the medical and technical requirements and given appropriate training in the field of radiation protection; and
(d) those employees who are engaged in work with ionising radiation who are women are informed of the possible hazard arising from ionising radiation to the foetus in early pregnancy and the importance of informing the employer as soon as they discover they have become pregnant. (Regulation 12)
Management of Health and Safety at Work Regulations 1999
Every employer shall provide his employees with comprehensible and relevant information on:
(a) the risks to their health and safety identified by the (risk) assessment;
(b) the preventive and protective measures;
(c) the procedures referred to in regulation 8(1)(a) (emergency procedures) and the measures referred to in regulation 4(2)(a) of the Fire Precautions (Workplace) Regulations 1997;
(d) the identity of those people nominated by him in accordance with regulation 8(1)(b) (competent persons for the purpose of emergencies) and regulation 4(2)(b) of the Fire Precautions (Workplace) Regulations 1997; and
(e) the risks notified to them in accordance with regulation 11(1)(c) (shared workplaces).
Noise at Work Regulations 1989
Every employer shall, in respect of any premises under his control, provide each of his employees who is likely to be exposed to the first action level or above or to the peak action level or above with adequate information, instruction and training on:
(a) the risk of damage to that employee’s hearing that such exposure may cause;
(b) what steps that employee can take to minimise the risk;
(c) the steps that the employee must take in order to obtain the personal ear protectors referred to in regulation 8; and
(d) that employee’s obligations under these regulations. (Regulation 11)
Personal Protective Equipment at Work Regulations 1992
Personal protective equipment (PPE) is defined in these regulations as meaning ‘all equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and which protects him against one or more risks to his health and safety, and any addition or accessory designed to meet this objective’.
Information and instruction provided to employees must be comprehensible to those receiving same.
Employers must provide adequate and appropriate information to enable the employees to know:
(a) the risk or risks that the personal protective equipment will avoid or limit;
(b) the purpose for which and the manner in which the PPE is to be used; and
(c) any action to be taken by the employee to ensure that the PPE remains in an efficient state, in efficient working order and in good repair.
The information and instruction provided shall not be considered adequate and appropriate unless it is comprehensible to the people to whom it is given. (Regulation 9)
Pressure Systems Safety Regulations 2000
Any person who:
(a) designs for another any pressure system or any article which is intended to be a component thereof; or
(b) supplies (whether as manufacturer, importer or in any other capacity) any pressure system or any such article,
shall provide sufficient written information concerning its design, construction, examination, operation and maintenance as may reasonably foreseeably be needed to enable the provisions of these regulations to be complied with.
The employer of a person who modifies or repairs any pressure system shall provide sufficient written information concerning the modification or repair as may reasonably foreseeably be needed to enable the provisions of these regulations to be complied with.
Provision and Use of Work Equipment Regulations 1998
Every employer shall ensure that all those who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of that equipment.
Every employer shall ensure that any of his employees who supervise or manage the use of work equipment has available to him similar adequate information.
The information and instructions required by either of the above paragraphs shall include information and, where appropriate, written instructions on:
(a) the conditions in which and the methods by which the work equipment may be used;
(b) foreseeable abnormal situations and the action to be taken if such a situation were to occur; and
(c) any conclusions to be drawn from experience in using the work equipment.
Information and instructions required by this regulation shall be readily comprehensible to those concerned. (Regulation 8)
Every employer shall ensure that all those who use work equipment have received adequate training for the purposes of health and safety, including training in the methods that may be adopted when using the work equipment, any risks that such use may entail and the precautions to be taken.
Every employer shall ensure that any of his employees who supervises or manages the use of work equipment has received similar adequate training.
Safety Representatives and Safety Committees Regulations 1977
An employer shall make available to safety representatives the information within the employer’s knowledge necessary for them to enable them to fulfil their functions except:
(a) any information the disclosure of which would be against the interest of national security;
(b) any information that they could not disclose without contravening a prohibition imposed by or under any enactment;
(c) any information relating specifically to an individual, unless he has consented to it being disclosed;
(d) any information the disclosure of which would, for reasons other than its effect on health, safety or welfare at work, cause substantial injury to the employer’s undertaking or, where the information was supplied to them by some other person, to the undertaking of that other person; and
(e) any information obtained by the employer for the purpose of bringing, prosecuting or defending any legal proceedings. (Regulation 7)
Sources of information
Many sources of information are available to employers and employees. These can be classed as formal and informal sources.
Formal (primary) sources of information
Formal sources of information come from a variety of sources. These include:
EU Directives
These are European Community instruments of legislation and are legally binding on the governments of all Member States. On this basis they must introduce national legislation, or use administrative procedures where applicable, to implement their requirements.
Acts of Parliament (statutes)
Acts of Parliament may be innovatory, i.e. introducing new legislation, or consolidating, i.e. reinforcing, with modifications, existing law. Statutes, in most cases, empower the Minister or Secretary of State to make regulations (delegated or subordinate legislation). Typical examples are the HSWA and the Disability Discrimination Act 1995.
Regulations (statutory instruments)
Regulations are more detailed than the parent Act, which lays down the framework and objectives of the system. Specific details are incorporated in Regulations made under the Act, e.g. the Control of Substances Hazardous to Health (COSHH) Regulations, which were passed pursuant to the HSWA. Regulations are made by the appropriate Minister or Secretary of State whose powers to do so are identified in the parent Act.
Approved Codes of Practice
The HSC is empowered to approve and issue Codes of Practice for the purpose of providing guidance on health and safety duties and other matters laid down in Statute or Regulations. A Code of Practice can be drawn up by the Commission or the HSE. In every case, however, the relevant government department, or other body, must be consulted beforehand and approval of the Secretary of State must be obtained. Any Code of Practice approved in this way is an Approved Code of Practice (ACOP).
An ACOP enjoys a special status under the HSWA. Although failure to comply with any provision of the code is not in itself an offence, that failure may be taken by a court, in criminal proceedings, as proof that a person has contravened the legal requirement to which the provision relates. In such a case it will be open to that person to satisfy a court that he or she has complied with the requirement in some other way.
Examples of ACOPs are those issued with the Control of Substances Hazardous to Health (COSHH) Regulations entitled ‘Control of Substances Hazardous to Health’, ‘Control of Carcinogenic Substances’ and ‘Control of Substances Hazardous to Health in Fumigation Operations’.
Case law (common law)
Case law is an important source of information. It is derived from common law because, traditionally, judges have formulated rules and principles of law as the cases occur for decision before the Courts.
What is important in a case is the ratio decidendi (the reason for the decision). This is binding on courts of equal rank who may be deciding the same point of law. Ratio decidendi is the application of such an established principle to the facts of a given case, for instance, negligence consists of omitting to do what a ‘reasonable man’ would do in order to avoid causing injury to others.
Case law is found in law reports, for example, the All England Law Reports, the Industrial Cases Reports, the Current Law Year Book and in professional journals, e.g. Law Society Gazette, Solicitors Journal. In addition, many newspapers carry daily law reports, e.g. The Times, Financial Times, Daily Telegraph and Independent.
The supreme law court is the European Court of Justice, whose decisions are carried in The Times.
Secondary sources of information
A wide range of non-legal sources of information are available, some of which may be quoted in legal situations, however.
HSE Series of Guidance Notes
Guidance Notes issued by the HSE have no legal status. They are issued on a purely advisory basis to provide guidance on good health and safety practices, specific hazards, etc. There are five series of Guidance Notes – General, Chemical Safety, Plant and Machinery, Medical and Environmental Hygiene.
British Standards
These are produced by the British Standards Institute. They provide sound guidance on numerous issues and are frequently referred to by enforcement officers as the correct way of complying with a legal duty.
British Standard EN 292 ‘Safeguarding of machinery’ is commonly quoted in conjunction with the duties of employers under the Provision and Use of Work Equipment Regulations 1998 to provide and maintain safe work equipment.
Manufacturers’ information and instructions
Under section 6 of the HSWA (as amended by the Consumer Protection Act 1987) manufacturers, designers, importers and installers of articles and substances used at work have a duty to provide information relating to the safe use, storage, etc. of their products. Such information may include operating instructions for machinery and plant and hazard data sheets in respect of dangerous substances. Information provided should be sufficiently comprehensive and understandable to enable a judgement to be made on their safe use at work.
Safety organisations
Safety organisations, such as the Royal Society for the Prevention of Accidents (RoSPA) and the British Safety Council, provide information in the form of magazines, booklets and videos on a wide range of health and safety-related topics.
Professional institutions and trade associations
Many professional institutions, such as the Institute of Occupational Safety and Health (IOSH), the Chartered Institute of Environmental Health (CIEH) and the British Occupational Hygiene Society (BOHS), provide information, both verbally and in written form. Similarly, a wide range of trade associations provide this information to members.
Insurance companies
Most insurance companies provide an information service to clients on a wide range of health and safety-related matters.
Department of Social Security
This Government department publishes annual statistics on claims for industrial injuries benefit and other matters.
Published information
This takes the form of text books, magazines, law reports, updating services, microfiche systems, films and videos on general and specific topics.
Existing written information
This may take the form of Statements of Health and Safety Policy, in-house Health and Safety Codes of Practice, specific policies, e.g. on the use and storage of dangerous substances, and written safe systems of work, methods and operating instructions.
Such documentation could be quoted in a court of law as an indication of the organisation’s intention to regulate activities in order to ensure legal compliance. Evidence of the use of such information in staff training is essential here.
Work study techniques
Included here are the results of activity sampling, surveys, method study, work measurement and process flows.
Job descriptions
A job description should incorporate health and safety responsibilities and accountabilities. It should take account of the physical and mental requirements and limitations of certain jobs and any specific risks associated with the job. Representations from operators, supervisors and trade union safety representatives should be taken into account.
Compliance with health and safety requirements is an implied condition of every employment contract, breach of which may result in dismissal or disciplinary action by the employer.
Accident and ill-health statistics
Statistical information on past accidents and sickness may identify unsatisfactory trends in operating procedures which can be eliminated at the design stage of safe systems of work.
The use of accident statistics and rates, e.g. accident incidence rate, as a sole measure of safety performance is not recommended, however, due to the variable levels of accident reporting in work situations. Under-reporting of accidents, common in many organisations, can result in inaccurate comparisons being made between one location and another.
Task analysis
Information produced by the analysis of tasks, such as the mental and physical requirements of a task, manual operations involved, skills required, influences on behaviour, hazards specific to the task, and learning methods necessary to impart task knowledge must be taken into account.
Job safety analysis, a development of task analysis, will provide the above information prior to the development of safe systems of work.
Direct observation
This is the actual observation of work being carried out. It identifies interrelationships between operators, hazards, dangerous practices and situations and potential risk situations. It is an important source of information in ascertaining whether, for instance, formally designed safe systems of work are being operated or safety practices, imparted as part of former training activities, are being followed.
Personal experience
People have their own unique experience of specific tasks and the hazards which those tasks present. The experiences of accident victims, frequently recorded in accident reports, are an important source of information. Feedback from accidents is crucial in order to prevent repetition of these accidents.
Incident recall
This is a technique used in a damage control programme to gain information about near-miss accidents.
Product complaints
A record of all product complaints and action taken should be maintained. Such information provides useful feedback in the modification of products and in the design of new products. Product complaints may also result in action by the enforcement authorities under section 6 of the HSWA and/or civil proceedings in the event of injury, damage or loss sustained as a result of a defective product or defect in a product.
Health Surveillance
Health surveillance is the regular review of the health of employees exposed to various forms of health risk, for instance from hazardous substances, manual handling operations or as a result of working on specific processes. Whilst there is a general duty on an employer under section 2(1) of the Health and Safety at Work Act 1974 ‘to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’, more specific duties to provide same can be found in Regulations made under the Act, such as the COSHH Regulations 2002 and the Management of Health and Safety at Work Regulations 1999.
Legal requirements
Regulation 11 – Control of Substances Hazardous to Health Regulations 2002
Where it is appropriate for the protection of the health of his employees who are, or are liable to be exposed to a substance hazardous to health, the employer shall ensure that such employees are under suitable health surveillance. Health surveillance shall be treated as appropriate where:
(a) the employee is exposed to one of the substances specified in Column 1 of Schedule 6 and is engaged in a process specified in Column 2 of that Schedule, and there is a reasonable likelihood that an identifiable disease or adverse health effect will result from that exposure; or
(b) the exposure of the employee to a substance hazardous to health is such that:
(i) an identifiable disease or adverse health effect which may be related to the exposure;
(ii) there is a reasonable likelihood that this may occur under the particular conditions of his work; and
(iii) there are valid techniques for detecting indications of the disease or effect;
and the technique of investigation is of low risk to the employee.
Regulation 6 – Management of Health and Safety at Work Regulations 1999
Every employer shall ensure that his employees are provided with such health surveillance as is appropriate having regard to the risks to their health and safety which are identified by the (risk) assessment.
The ACOP outlines the objectives of health surveillance, thus:
‘The primary benefit, and therefore the objective, of health surveillance should be to detect adverse health effects at an early stage, thereby enabling further harm to be prevented.
In addition the results of health surveillance can provide a means of:
(a) checking the effectiveness of control measures;
(b) providing feedback on the accuracy of risk assessment;
(c) identifying and protecting individuals at increased risk.
Once it is decided that health surveillance is appropriate, such health surveillance should be maintained during the employee’s employment unless the risk to which the worker is exposed and associated health effects are short term. The minimum requirement for health surveillance is the keeping of an individual health record. Where it is appropriate, health surveillance may also involve one or more health surveillance procedures depending upon their suitability in the circumstances. Such procedures can include:
(a) inspection of readily detectable conditions by a responsible person acting within the limits of their training and experience;
(b) enquiries about symptoms, inspection and examination by a qualified person such as an occupational health nurse;
(c) medical surveillance, which may include clinical examination and measurements of physiological or psychological effects by an appropriately qualified practitioner;
(d) biological effect monitoring, i.e. the measurements and assessment of early biological effects such as diminished lung function in exposed workers;
(e) biological monitoring, i.e. the measurement and assessment of workplace agents or their metabolites either in tissues, secreta, excreta, expired air or any combination of these in exposed workers.
Aspects of health surveillance
Health surveillance is a very broad area and must be viewed as part of an overall occupational health strategy aimed at protecting the health of people at work. Much will depend upon the risks to which people are exposed. What is important is that the form of health surveillance undertaken should be appropriate to these risks.
Health surveillance should be carried out by suitably qualified persons, such as a doctor with, preferably, a specialist qualification in occupational medicine (occupational physician) or an occupational health nurse. It may involve the assessment of hazardous substances or their by-products in the body (by the examination of urine or blood) or of body functions (e.g. blood pressure, lung function). In some cases, clinical examinations or tests may be necessary. Where medical examinations and inspections are called for, employers must provide suitable facilities on site.
Health protection
It is important at this stage to consider not only the risks to individuals through exposure to, for instance, noise and hazardous chemical substances, but also the risk to food products. The implications of the Food Safety Act 1990 and the Food Safety (General Food Hygiene) Regulations 1994, may necessitate the operation of some form of health surveillance of food handlers.
An appropriate strategy to protect people at work from health risks should incorporate the following elements.
1. Pre-employment health screening
This form of surveillance, carried out by an occupational health nurse, can include not only an assessment of general fitness for the job but also specific aspects of that job, such as vision screening of drivers and VDU operators, initial audiometry for people who may be exposed to noise and the assessment of individual disability levels where manual handling operations are involved. Such screening may also seek information as to previous food-borne illness sustained by the applicant and the possibility that the individual may still be a carrier of that illness.
2. Primary and secondary monitoring
Primary monitoring is concerned largely with the clinical observation of sick people who may seek treatment or advice on their conditions. Such observation will identify new risks which were previously not considered.
Secondary monitoring, on the other hand, is directed at controlling the hazards to health which have already been recognised. Audiometry is a classic form of secondary monitoring whereby the hearing levels of operators are tested on, say, a six-monthly or annual basis to assess whether there has been a further deterioration in hearing due to exposure to noise. On a more general basis, the annual health screening of food handlers by an occupational health nurse is an important form of secondary monitoring.
3. Supervision of vulnerable groups
Certain groups, such as young persons, the aged, the disabled and pregnant women may be more vulnerable to health risks than others. Special attention must be given to these persons in terms of health counselling, assistance with rehabilitation and reorganisation of their jobs to remove harmful factors.
4. Avoiding potential risks
This can involve an examination of the current work layouts and arrangements, taking into account ergonomic aspects of the job and the potential for fatigue. The effects of shift working, long periods of work and the physical and mental effects of repetitive tasks would be taken into account in the assessment of health risks. On this basis shift workers and those working long shifts could well be a subject for health surveillance.
Health records
Under the COSHH Regulations, employers must ensure that a health record, containing particulars approved by the HSE, in respect of each of his employees who have been or may have been exposed to substances hazardous to health, is made and maintained. That record, or a copy thereof, must be kept available in a suitable form for at least 40 years from the date of the last entry made in it.
However, apart from the duty to maintain health records under the COSHH Regulations, there is clearly a case for maintaining health records of all employees. Not only is it possible for the occupational health practitioner to obtain useful information on unidentified health risks from accumulated records, but a health record could well be important evidence where an individual may be taking a civil action for negligence against the organisation many years later, or where the enforcement agency may be taking action under health and safety legislation.
The following records on individual employees may need to be maintained:
(a) pre-employment and subsequent health questionnaires submitted by employees;
(b) details of pre-employment and subsequent health examinations and screening tests undertaken by an occupational health nurse;
(c) relevant medical and occupational history, smoking habits, disabilities and handicaps;
(d) injuries resulting from occupational and non-occupational accidents;
(e) illness occurring at work or on the way to or from work;
(f) history of sickness absence;
(g) details of occupational diseases and conditions diagnosed;
(h) care and treatment provided;
(i) advice given, recommendations and work limitations imposed;
(j) referrals made to other medical specialists or agencies;
(k) correspondence relating to the health of individual employees;
(l) dispersal of cases following emergencies and treatment; and
(m) details of communication between occupational health practitioners and others, including written reports.
The confidentiality of health records must be maintained at all times.
Forms of health surveillance
Health surveillance is, fundamentally, the regular review of the health of persons exposed to hazardous substances or working in specified processes. It should be carried out by a suitably qualified person, such as an occupational physician or an occupational health nurse.
It may involve the assessment of hazardous substances or their by-products in the body by the examination of urine or blood or the assessment of body functions, such as blood pressure, lung function. In some cases, clinical tests or examinations may be necessary.
Where medical examinations and inspections are required by law, employers must provide suitable facilities on site.
Where health surveillance is required, records must be kept listing the personal details of the employee, e.g. name, sex, age and previous and current occupations which involved exposure to hazardous substances. The records, or copies of same, should be kept for at least 30 years after the date of the last entry.
The purpose of health surveillance
1. Objectives
The objectives of health surveillance, wherever employees may be exposed to substances hazardous to health in the course of their work, are:
(a) the protection of the health of individuals by detecting adverse changes, attributed to exposure to substances hazardous to health, at the earliest possible stage;
(b) to help in assessing the effectiveness of control measures;
(c) the collection, maintenance and use of data for the detection and evaluation of hazards to health; and
(d) to assess the immunological status of employees doing specific work with micro-organisms hazardous to health.
2. Outcome
The results of any health surveillance procedure should lead to some form of action which will be to the benefit of employees.
Health surveillance under the COSHH Regulations
1. Biological monitoring
This could entail monitoring to detect, for instance, 2,5-hexane dione in urine (for hexane exposure) or carboxyhaemoglobin in the blood of workers exposed to methylene chloride.
2. Biological effect monitoring
One example is the presence of cholinesterase in the blood of workers exposed to certain organo-phosphorous pesticides.
3. Medical surveillance
This could include, for example, the provision of lung function tests for workers exposed to substances known to cause asthma and chest X-rays of workers exposed to respirable dusts, e.g. quartz.
4. Enquiries, inspection or examination by a suitably qualified person
Typical examples include an occupational health nurse administering a questionnaire covering the symptoms of asthma or rhinitis and visual examination of the hands and arms of employees for evidence of dermatitis.
5. Inspection by a responsible person
In certain cases, it may be common practice for a manager or supervisor to undertake visual examinations of hands and arms of employees for early evidence of chrome ulceration.
Record keeping requirements
To ensure effective health surveillance, it is essential that occupational health practitioners are aware of the hazardous nature of substances, the control methods in operation, air monitoring carried out and personal protective equipment being used by employees.
A record keeping system established in connection with the COSHH Regulations should incorporate the following:
1. Information on hazardous substances
Substances (safety data sheets)
Processes
Potential emission situations
2. Assessments
Details of health risk assessment in specific areas
Results of air monitoring surveys
3. Prevention and control measures
Testing and planned maintenance procedures
Elimination potential
Substitution potential
Storage and distribution arrangements
Totally enclosed processes
Local exhaust ventilation systems
4. Personal protective equipment
Selection, testing and maintenance details
Respiratory protective equipment maintenance
5. Individual personal health file
Health assessment/screening details
Information, instruction and training received
Issue of personal protective equipment
Details of acute exposure situations.
The benefits of health surveillance
Apart from the need to comply with legislation, such as the COSHH Regulations, the regular review of the state of health of employees ensures a fit and healthy workforce, identifies early evidence of not only occupational disease but other non-occupational diseases and conditions of which employees may be unaware at the time.
Health surveillance should be viewed as an essential element of the management process, embracing a range of procedures directed at maintaining the health of the workforce. This should result in reduced sickness absence and claims for work-related disease and ill-health.