Managing Health and Safety

The blog aims to provide leaders within organisations an understanding of their health and safety role and how this should influence their strategic thinking and holistic risk management systems/procedures.

Why Manage Health and Safety?

Health and safety needs to be managed to protect employees, and others, from potentially harmful effects of work.

Health: Was defined by the World Health Organisation (WHO), in 1948 as:

“a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”

Safety: May be considered to be the state of being safe, i.e. free from the unacceptable risk of injury, danger, or loss.

Drivers for Effective Management of Health and Safety

Society exerts pressure through three overlapping and interacting spheres of influence, as shown in Figure 1.

Moral – What is right and wrong

Morals are the codes of conduct, or rules of behaviour imposed by a society regarding what is right and wrong.

For people to be killed, or seriously injured, or to suffer illness as a consequence of work is clearly wrong.

Although, in the UK there are generally good standards of workplace health and safety a lot of harm is still caused each year.

The Health and Safety Executive (HSE) publishes annual statistics of reported cases of workplace injury and illness. As can be seen the numbers of cases of occupational illness is significantly higher than the numbers of injuries.

Typical numbers of reported accidents are below

Injury Type Typical numbers each year
Fatal injuries (all workers) 150
Notified major injuries (e.g. broken arm or leg) 20 000
Reported ‘over 7 day’ injury (unable to do normal work for more than 7 days) 60 000

Typical numbers of cases of ill health each year are below

Type of ill health Typical numbers of cases over recent years
All occupational illnesses 1 200 000
Musculoskeletal disorders 520 000
Stress, depression and anxiety 440 000

Below are numbers of workplace deaths attributable to occupational cancers. The total is more than 30x that for fatal injuries.

Causes of death Estimate of deaths each year
Occupational cancers (general) 8 000
Asbestos related cancers 4 000

Legal

There are two systems of law that influence the management of health and safety.

The criminal law establishes a set of rules for acceptable behaviour. In the workplace the main duties are covered by the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999.

If the necessary standards are not met the enforcement agencies (the HSE, the Office of Rail and Road – ORR, or the local authority environmental health department – EHO’s, depending on the nature of the work) may take action to secure improvements and / or punish offenders for breaking the rules.

The civil law allows an injured person to sue a third party for compensation for their injury or loss if the injury was caused through the third party’s negligence.

Financial

Accidents clearly cost money as a consequence of injured people, damaged plant and machinery and wasted product.

HSE research showed that occupational injuries and illnesses cost the UK £14.3 billion pounds in 2013/14 considering the total costs to individuals, employers and society.  The costs arise from 23.3 million days lost due to work-related ill health and 4.1 million due to workplace injury.

The costs of highly visible accidents involving large scale loss of life or major property damage as a result of fire and explosion are often determined by official inquiries.

  • The BP Texas City fire and explosion in 2005 cost over $21million in fines, $2billion in civil claims, and $1billion in reinstating the site.
  • The Buncefield oil refinery fire in 2005 is believed to be the most expensive accident in UK history with a total cost of over £1billion, including £9.5 million in fines.

Over thirty years ago the Confederation of British Industry (CBI) gave evidence to the Robens Committee on Health and Safety at Work, stating:

“At the company level, if a readily applied and simple formula could be devised by which the financial loss caused by accidents and diseases could be measured, it would make a valuable contribution towards reducing industrial accidents and occupational ill health”.

In 1989 the HSE began a series of five case studies with organisations from different industrial sectors with the aim of developing a means accurately identifying the full cost of accidents.

The study findings were published 1993 in a HSE Guidance booklet “The Costs of Accidents at Work (HSG96)”.

The five participating organisations / projects were: a construction project; a creamery; an independent transport company working with the creamery; a North Sea oil platform; and an NHS hospital. All had a history of average, or better than average health and safety performance.

The study used a definition of ‘accident’ covering a broad range of losses including: injury and ill health; damage to property, plant, materials and the environment; and the loss of business opportunity.

All personal injury accidents were included as were all other losses above a minimum reportable level which was set at the minimum unit of product or its financial equivalent.

The study accounted separately for financial and opportunity costs.

Financial costs are the basic costs incurred to return the situation to what it was before an accident happened.  This covers both material and labour costs.

Opportunity costs (or lost opportunity costs) include those incurred through: people stood idle or being unproductive as a result of dealing with the consequences of an accident; and energy costs from plant running idle and buildings being lit and heated.

HSE Guidance from 2002 “Reduce Risks – Cut Costs” (INDG355) identified three methods for quickly and crudely estimating uninsured costs of accidents:

  • The uninsured costs of an accident are approximately 10x the insurance premiums paid;
  • Uninsured losses from accidents in smaller firms add up to £315 per employee per year; and
  • The average uninsured cost of an accident causing absence from work is approximately £2100.

 Making the costs of accidents explicit and drawing the information to managers’ attention may not be sufficient on its own to motivate managers to consider health and safety factors as part of their business decision making processes.

Unless the answers to the following variables are positive the calculation of health and safety costs are unlikely to help:

  • The significance of health and safety costs relative to other cost categories or company turnover in the company;
  • The level of direct influence management action has over health and safety costs;
  • The lag between management action and the effect on health and safety costs (so that managers can see the benefits of their actions); and
  • Management access to information about the effects of management initiatives on health and safety costs.

 Insured and Uninsured Costs

HSE Guidance on the real costs of accidents at work indicates that the uninsured costs of an accident may be more than 10x the insurance premiums paid. Figure 2 shows examples of accident costs that would not be covered by employers’ liability insurance.

Employers Liability Insurance Claims

The Employers’ Liability (Compulsory Insurance) Act 1969 requires most employers to have at least £5 million pounds of insurance cover (most policies offer at least £10 million of cover) available for compensation payments to employees injured or made ill as a result of work.

The exceptions to the Regulations include businesses with no employees, family businesses and public organisations such as a local authority or NHS Trust.

The number of civil claims for compensation against employers as a result of accidents fell steadily in the early twenty first century and the total cost of compensation cases in Britain has remained, in real terms, static since 1989.

More than 850,000 people are injured or made ill as a result of their job each year. The Association of British Insurers (ABI) put the numbers who gain compensation from their employer at around 60,000 a year.

Average damages for an ELI claim are £7,500. Britain pays out much less on civil compensation (as a percentage of GDP) than other major European countries and about a third of the USA figure.

The average cost of EL insurance is 0.25% of total payroll costs and is the lowest in Europe.

In 1999 the ABI reported that the cost of claims and costs was 54% higher than the amount that the insurance premiums. Since then the costs of ELI have been seen to rise significantly. The major driver for this has been the global economy, not an increase in the number of claims or the size of compensation awards.

Other factors include major increases in legal and medical costs (50% more than inflation) largely because of failure to follow the civil procedure rules resulting in unnecessary costs.

Costs and Benefits of Health and Safety Management

“If you think safety’s expensive, try an accident” is an often cited maxim which was brought back to the fore by Sir Stelios Haji-Iaonnou in his 2004 interview on BBC Radio 4s “On the Ropes.”

Example: The Troodos shipping company tanker M/T Haven (formerly Amoco Milford Haven) exploded, caught fire and sank off the coast of Genoa, Italy in 1991, killing six Cypriot crew members and leaking 50,000 tonnes of crude oil into the Mediterranean.

 

Stelios (and his father) faced manslaughter charges in Italy before eventually being cleared in the Italian Supreme Court.

Stelios also reflected that “it takes years to build a reputation, but it can be destroyed overnight.”

Health and safety costs can be classified broadly into two overall categories:

  1. The costs of control: Risk assessment; and the development and implementation of a health and safety management system to manage preventive and protective measures. These costs tend to be relatively stable; and
  2. The costs of failure: The consequences of occupational accidents or work related illnesses including direct expenditures, raise in existing costs, potential reduction in income as well as opportunity costs, which will vary with the type and number of consequences.

Health and Safety Law

Introduction

Laws are written codes of conduct setting rules for individual behaviour for the good of society have existed since Egyptian times, some 3000 years BC.

The law is the cement of society and an essential medium for societal change.

The law is divided into two branches (or systems), civil and criminal which have different purposes. Any given event may give rise to both civil and criminal consequences.

Criminal law: if minimum legal standards are not met the enforcing authority may prosecute the offender in the criminal courts.

Civil law: if an individual suffers loss (injury / ill-health or death) the victim, or his dependants, may sue for damages (compensation) in the civil courts.

Civil and Criminal Consequences

 Consider an accident where an apprentice carpenter cuts off his fingers using an unguarded band saw.

He may well take a civil action against his employer, blaming the employer for negligently causing his injury and seeking compensation (damages) for his loss.

A criminal prosecution may also be taken by the HSE (assuming the accident was reported, or the HSE was otherwise made aware). The purpose of the prosecution would be to punish the employer (through a fine and/or imprisonment) for failing to comply with health and safety legislation (the guarding requirements of the Provision and Use of Work Equipment Regulations – PUWER).

The key differences between civil and criminal law are shown in table 5.

Civil Law Criminal Law
·    Tort e.g. negligence ·    Crime e.g. breach of Health and Safety at Work Act or specific regulations
·    Civil wrong ·    Criminal offence
·    Wrong to an individual ·    Offence against society
·    Action taken by injured party ·    Prosecution taken by enforcing authority / Crown Prosecution Service
·    Heard in civil court ·    Tried in criminal court
·    Loss necessary for action ·    Loss not necessary
·    Seeks compensation for loss ·    Seeks to punish for breach of law
·    Liability proved on the “balance of probabilities” ·    Guilt proven “beyond all reasonable doubt”
·    Can be insured against (Employers Liability Insurance is generally compulsory) ·    Cannot be insured against fines

Civil Law

When an employee is injured at work and seeks to make a personal injury claim the employee may sue under the tort of negligence, or the tort of breach of statutory duty.

Negligence

Negligence may be explained as careless conduct injuring another. For the injured party (claimant) to succeed in a negligence claim, he must prove:

  • That the defendant (usually the employer) owed him a duty of care;
  • That this duty was breached; and
  • That the claimant was injured as a result of the breach.

1.   The Duty of Care

Prior to 1932 there was no generalised duty of care in negligence. The tort was only applied in particular situations where the courts had decided that a duty should be owed, such as road accidents or dangerous goods.

In Donoghue v Stevenson (1932) Lord Atkin attempted to lay down a general principle which would cover all the circumstances where there could be liability for negligence. He said:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

The requirements that must now be satisfied before a duty of care is held to exist were established by Lord Bridge in Caparo Industries v Dickman (1990):

  • Foreseeability of the damage, i.e. whether a ‘reasonable person’ would have foreseen damage in the circumstances;
  • A sufficiently ‘proximate’ relationship between the parties (i.e. a neighbour relationship); and
  • It must be fair, just and reasonable to impose such a duty.

Relationships that are sufficiently proximate to be deemed a neighbour relationship include:

  • Employer to employees;
  • Employer to contractor and contractors employees; and
  • Occupier to authorised visitors.

The common law duty of care owed by an employer to its employees was defined in the case of Wilson’s and Clyde Coal Co v English (1938). In this case, the employer was compelled by law to employ a colliery agent who was in charge of safety in the mine. Nonetheless, when an accident occurred, the employer was held liable. The case confirmed that the employer’s duty of care to his employees was personal and could not be delegated to a manager or safety advisor.

 

The case also determined that employers must provide:

  • A safe place of work and equipment;
  • Safe systems of work; and
  • Reasonably competent co-workers.

2.   Breach of the Duty of Care

The duty of care is breached if the defendant has failed to exercise the reasonable care expected of a reasonable man in the circumstances.

 3.   Breach Caused the Injury

The claimant must prove, on the balance of probabilities, that the defendant’s breach of duty caused the harm and that the harm would not have occurred “but for” the negligence of the defendant.

 

 

Other Considerations

 

Contributory Negligence

 

Contributory negligence arises when the claimants own carelessness, or disregard for personal safety, contributes to the injury or loss which arises partly because of the claimants own fault and partly because of the fault of another (the defendant).

 

Damages recoverable in respect of the claim will be reduced to the extent the court thinks is fair having regard to the claimant’s share of responsibility for the damage.

 

 

Vicarious Liability

 

In general terms vicarious liability is a legal liability imposed on one person making them liable for torts committed by another.

 

With regard to a personal injury claim for an accident in the workplace if an employee, acting in the course of normal employment injures another employee the employer will be held vicariously liable for the losses incurred.

 

 

Limitations Act 1980

 

The Limitation Act 1980 sets a time limit for starting proceedings for claiming compensation for personal injury.

 

This is primarily three years from the date of the negligence that caused the harm, or in the case of disease three years from the date of diagnosis.

 

This primary limit may be extended in the following circumstances:

  • If the injured person is suffering from mental disability then the time limit does not start to run until mental capacity has returned; and
  • For minors (under 18 years of age on the date that they were injured) the three year period does not start running until the eighteenth birthday.

 

The courts also have discretionary powers to alter the time limits but such discretion is rarely exercised.

 Damages

‘Damages’ refers to the payment of financial compensation for a tort. In principle the claimant is entitled to full compensation for any losses incurred. The intention is to put the complainant in the same position as if the tort had not been committed.

The damages that can be recovered as a result of a successful personal injury claim fall into two categories:

  • General Damages – Actual and/or probable loss of future earnings, to be incurred after the case; and
  • Special Damages – Quantifiable losses incurred before the case, mainly loss of earnings and medical expenses.

 Employers Liability Insurance

The Employers’ Liability (Compulsory Insurance) Act 1969 requires most employers to have at least £5 million pounds of insurance cover (most policies offer at least £10 million of cover) available for compensation payments to employees injured or made ill as a result of work.

The exceptions to the Regulations include businesses with no employees, family businesses and public organisations such as a local authority or NHS Trust.

 

 

Civil Procedures Rules

 

The Civil Procedure Rules came into action in 1999 with the aim of ensuring that cases are dealt with in a just way and removing control of cases from legal professionals to the court.

 

In addition Lord Woolf’s Access to Justice Report of July 1996 recommended the development of pre-action protocols in order to establish:

  • More pre-action contact between the parties;
  • Better and earlier exchange of information;
  • Better pre-action investigation by both sides;
  • Enable cases to be settled fairly and early without litigation; and
  • Enable proceedings to run efficiently to the court’s timetable if litigation is necessary.

 

Pre-Action Protocol for Personal Injury Claims

 

Early notification – Notifying the defendant as soon as they know a claim is likely to be made, but before they are able to send a detailed letter of claim.

 

The Letter of Claim – Should contain sufficient information for the defendant to assess liability and the likely size of the claim.

 

Disclosure of Documents – Early disclosure of documents by the defendant to promote an early exchange of relevant information to help in clarifying or resolving issues in dispute.

 

Alternative Dispute Resolution (ADR) – Both parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, e.g.:

  • Discussion and negotiation;
  • Early neutral evaluation by an independent third party; or
  • Mediation assisted by an independent neutral party.

 

The letter of claim should contain a clear summary of the facts on which the claim is based together with an indication of the nature of injuries suffered and financial loss incurred.

 

The letter should ask for details of the insurer and that a copy should be sent by the proposed defendant to the insurer where appropriate.

 

The defendant should reply within 21 calendar days of the date of posting of the letter identifying the insurer (if any) and, if necessary, identifying specifically any significant omissions from the letter of claim.

 

If there has been no reply by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings.

 

The defendant(’s insurers) will have a maximum of three months from the date of acknowledgment of the claim to investigate and reply stating whether liability is denied and, if so, giving reasons for their denial of liability including any alternative version of events relied upon.

 

If the defendant denies liability, he should enclose with the letter of reply, material documents which would be likely to be ordered to be disclosed by the court.

 

If the defendant admits liability he will be bound by the admission for all claims up to a total value of £25 000.

 

Criminal Law

 

The framework of criminal health and safety legislation in the UK is illustrated in figure 5 and explained below.

 

Legal Framework – Criminal Health and Safety Law

 

Europe

·    Regulations e.g. REACH apply directly

·    Directives usually implemented as UK Regulations

 

Health and Safety at Work Act
Regulations

e.g. Management of Health and Safety at Work Regulations

Approved Code of Practice (ACoP)
Guidance

 

Health and Safety at Work Act

 

The Health and Safety at Work Act is still the main health and safety legislation in the UK. It is an Act of Parliament (primary legislation) that prescribes general duties to all at work, regardless of the work activity or context. Failure to comply with a duty under the Act is a criminal offence which may be punished by fine or imprisonment (see table 7).

 

 

Regulations

 

Section 15 of the Health and Safety at Work Act enables the relevant Secretary of State to make health and safety regulations. Regulations (statutory instruments / secondary legislation) are usually more detailed than the general duties of HASAWA and are usually problem specific (e.g. noise, hazardous substances) many regulations are prompted by European Directives. Failure to comply with a Regulation is a criminal offence which may be punished by fine or imprisonment (see table 7).

Approved Code of Practice (ACoP)

 

An Approved Code of Practice (ACoP) gives practical advice on how to comply with the law.

 

If the advice in the ACoP is followed compliance with the law is assured in respect of those specific matters on which the ACoP gives advice.

 

The ACoP has special legal status. In a prosecution for a breach of health and safety law, if it is proved that a relevant provision of the Code was not followed; compliance with the law in some other way must be proved.

 

 

Guidance

 

Following guidance is not compulsory and other action may be taken.

 

Following guidance will normally be enough to demonstrate compliance with the law.

 

Health and safety inspectors are likely to refer to guidance as an illustration of good practice.

 

 

Levels of Legal Duty

 

Duties in health and safety law may be absolute (i.e. must be done) or may be qualified. The two major qualifications of health and safety law are those imposed by the phrases ‘practicable’ and ‘reasonably practicable’.

 

Absolute Duties

 

Usually preceded by the word ‘shall’ an absolute duty must be complied with. The employer has absolute duties to prepare a safety policy and to undertake risk assessments.

 

Practicable

 

If a duty applies so far as is ‘practicable’ it is a less onerous duty than an absolute one. Practicable means feasible in the light of current knowledge and invention, i.e. if it can be done it must be done.

 

 

Reasonably Practicable

 

Reasonably practicable requires the degree of risk (likelihood x severity) of a particular activity or environment to be balanced against the costs (time, trouble and physical difficulty) of taking measures to avoid the risk.

 

The greater the risk, the more likely it is that it will be reasonable to go to very substantial expense, trouble and invention to reduce it.

 

If the consequences and the extent of a risk are small, the same substantial expense would be considered disproportionate to the risk and it would be unreasonable to have to incur them to address a small risk.

 

The size and financial position of the employer are not taken into account in consideration of what is ‘reasonably practicable.’

 

Health and Safety at Work etc. Act 1974

 

Introduction

 

The key objectives of the Health and Safety at Work Act 1974 (HASAWA) that are still relevant today are:

  • Securing the health, safety and welfare of people at work; and
  • Protecting people other than those at work against risks to their health and safety arising out of work activities.

 

HASAWA applies to all types of work activity and situations and imposes duties on everyone concerned with work and workplace activities, including: employers, the self-employed and employees; manufacturers, designers and suppliers; and people in control of premises.

 

Duties are imposed on individuals and employing organisations be they corporations, companies, charities, or government departments and are intended to encourage employers and employees to take a wide ranging view of their roles and responsibilities.

 

 

Main Duties

 

Section 2 – General duties of employers to their employees

 

  • Every employer has to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

 

  • Examples of the extent of the general duty include (so far as is reasonably practicable):
  • The provision and maintenance of plant and systems of work that are safe and without risks to health;
  • Arrangements for ensuring health and safety with the use, handling, storage and transport of articles and substances;
  • The provision of information, instruction, training and supervision to ensure, the health and safety at work of employees;
  • Maintenance of any workplace, under his control, in a healthy and safe condition, including any means of access and egress; and
  • The provision and maintenance of a safe and healthy working environment with adequate facilities and arrangements for the welfare of employees at work.

 

Section 3 – Duties to non- employees

 

Every employer has a duty to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment, who may be affected, are not exposed to risks to their health and safety.

 

 

Exmple R v Associated Octel Ltd (1994)

Associated Octel Ltd maintained its plant and equipment during factory shutdown each year. In 1990, this work was carried out by Resin Glass Products (RGP) Ltd as contractors. An employee of RGP cleaning the inside of a tank was badly burned because of an explosion inside the tank.

RGP Ltd was convicted under section 2 of the Act and Associated Octel Ltd was convicted under section 3 for failing to protect non-employees from health and safety risks from their “undertaking.”

Associated Octel appealed arguing that RGP was an independent contractor and that the work was not part of Associated Octel’s ‘undertaking’ and that s.3 did not involve liability for the actions of independent contractors.

The appeal was dismissed. The word “undertaking” means “business” or “enterprise” and this activity was clearly part of Associated Octel’s ‘undertaking’ as the tank was part of their plant and the work formed part of their planned maintenance programme.

Associated Octel should have specified the necessary requirements for avoiding risks to health and safety.

 

 

 

Section 4 – Duty of person in control of premises

 

Any person who has, to any extent control of:

  • Work premises;
  • The means of access or egress; or
  • Any plant or substance in such premises.

 

Has a duty to take all reasonable measures to ensure that all are safe and without risks to health of non-employees who use non-domestic premises as a place of work or as a place where they may use plant or substances provided for their use.

 

The duty overlaps with the general duties of sections 2 and 3, which would take precedence when there is clearly an employer’s duty. The aim is to place a duty on whoever has the power to remedy a particular source of hazard.

 

Section 6 – Duties of designers, manufacturers, importers, suppliers and installers

Any person, who designs, manufactures, imports, or supplies any article or substance for use at work has duties to ensure, so far as is reasonably practicable:

  • That the article or substance is safe and without risks to health when properly used;
  • Any necessary research and testing or examination of the article or substance is properly undertaken; and
  • Adequate information is provided to ensure its safe use.

 

Erectors and installers have a duty to ensure that nothing about the way in which an article intended for work is erected or installed makes it unsafe or a risk to health when properly used.

 

 

Section 7 – General Duties of Employees at Work

 

Every employee has the following two duties while at work:

  • To take reasonable care for the health and safety of himself and of other persons who may be affected by his work ; and
  • To co-operate with his employer so far as is necessary to enable the employer to comply with his own duties.

 

 

Section 8 – Duty to not interfere with or misuse anything provided in the interests of health, safety or welfare

 

No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare whether for the protection of employees or other persons.

 

NB This duty is imposed on all people, including children, be they at work or members of the public.

 

 

Section 36 – Offences Due to Fault of another Person

 

If person ‘A’ commits an offence because of an act or default of person ‘B’, then person ‘B’ may also be charged and convicted of the offence as well as, or instead of person ‘A’.

he section also allows Crown servants, such as civil servants, to be prosecuted even though the Crown as employer is immune from prosecution.

Example:  R v Lockwood (2001)

Lockwood, an occupational hygienist, was successfully prosecuted under section 36 for failing to carry out a proper assessment of workers’ exposure to hazardous dust at a woodworking factory.

The woodworking company was also prosecuted under section 2. The court held that the company had not selected the best occupational hygienist for its needs. “… when relevant competencies are absent, it shows in the end result.”

 

Section 37 – Offences by a Body Corporate

 

Where an offence committed by a body corporate is proved to have been committed with the consent, connivance, or neglect of any director, manager, secretary or similar officer, the director may also be charged and convicted of the offence.

Example: Director Prosecution (2011)

 

Anglia Lead Ltd and its director have been fined after workers were exposed to high levels of lead at its factory in Norfolk. Staff suffered the exposure as they cast molten lead into lead sheeting, sold for various uses including roofing old buildings, such as churches.

 

Anglia Lead Ltd had numerous health and safety failings. The HSE investigation found that the company and its director had:

  • Failed to provide suitable and sufficient assessment of the risks to health created by work involving lead;
  • Failed to adequately control exposure to lead;
  • Failed to provide sufficient control measures, including lack of adequate personal protective equipment (PPE), no adequate local exhaust ventilation system to remove lead fumes from the workplace, no adequate clothes washing system and no adequate hygiene controls;
  • Failed to provide employees with suitable information, instruction and training;
  • Failed to suitably investigate when occupational exposure level limits were exceeded and action levels reached; and
  • Failed to provide air monitoring as regularly as required.

 

The company appeared at Norwich Magistrates’ Court and admitted failing to ensure the health and safety of its workers, breaching Section 2(1) of the Health and Safety at Work Act.  Director Carlton Edwards admitted committing the same offence in his capacity as a company director.

 

Magistrates fined the company £10,000 and Mr Edwards a further £10,000. The company was also ordered to pay full prosecution costs of £10,556.

 

 

Section 40 – Onus of proving limits of what is practicable etc.

 

In proceedings for an offence consisting of a failure to comply with a duty or requirement to do something so far as is practicable or reasonably practicable, the accused has to prove that it was not practicable or not reasonably practicable to do more than was done.

 

 

 

 

Enforcement of Health and Safety

 

The enforcement of health and safety depends upon the main activity undertaken at a place of work.

 

The HSE typically enforces at higher risk workplaces such as construction sites and factories.

 

The Office of Rail and Road (ORR) enforces on the railways.

 

Local Authorities (Usually Environmental Health Officers – EHO’s) enforce at lower risk premises such as retailers, offices and warehousing.

 

 

Powers of Inspectors

 

All authorised inspectors have the same powers, regardless of the area of enforcement. Inspectors can:

  • Enter any premises which they think it necessary to enter for the purposes of enforcing health and safety law. The power of entry can be exercised without permission or prior notice, at any reasonable time or at any time if dangerous;
  • Take a police constable with them if they have reasonable cause for thinking they might be seriously obstructed;
  • Take any other person authorised by their enforcing authority, such as a specialist, and any equipment needed;
  • Order that areas be left undisturbed; take measurements, photographs and samples, carry out tests on, and/or confiscate articles and substances; and inspect and take copies of relevant documents;
  • Seize any article or substance which they have reasonable cause to believe presents an immediate danger of serious personal injury and have it made harmless, by destruction if necessary; and
  • Interview and take written statements from anyone they think might give them information relevant to their examination or investigation.

 

 

Enforcement Action

 

Inspectors have a range of enforcement options and tools available including:

  • Informal advice;
  • Improvement Notice;
  • Prohibition Notice; and

The best option(s) will be chosen in each case. There is no hierarchical escalation route from informal advice to prosecution.

 

 

Informal Advice

 

Based on level of risk and level of management cooperation an inspector may deal with a situation informally by verbal advice or an explanatory letter. Provided agreed actions are completed on time no formal action will be taken.

 

 

Improvement Notice

 

An improvement notice may be served whenever health and safety legislation is being contravened. An improvement notice will specify the breach of legislation and may specify a means of complying. It has to allow a reasonable time (minimum 21 days) to complete any specified works.

 

Any appeal against an improvement notice must be made to the Employment Tribunal with 21 days of the date of service. The requirements of the notice would be suspended until the appeal was heard.

 

The Employment tribunal may uphold, cancel or vary the improvement notice as a consequence of the appeal.

 

 

Prohibition Notice

 

A prohibition notice maybe issued when the inspector considers that there is a risk of serious personal injury. The notice prohibits the carrying on of the work activity giving rise to the risk of injury.

 

If the risk of injury is imminent, the notice must take immediate effect and stop the work activity at once. If not, the prohibition notice is deferred, specifying the time by which the work activity must cease.

 

Any appeal against a prohibition notice must be made to the Employment Tribunal with 21 days of the date of service. The notice would stay in effect until the appeal was heard.

 

 

Prosecution

 

Any breach of legislation may give rise to a prosecution in the criminal courts. Health and safety offences are usually ‘triable either way’, this means the case may be heard in a magistrates court or a crown court.

 

The sanctions available to a crown court are greater than in a magistrate’s court. Table below shows the maximum sentences available to each court for breaches of HASAWA and health and safety regulations.

 

Breach

Magistrates Court*

Crown Court

HASAWA Section 2-8

·      Term not exceeding 6 months and/or

·      Unlimited fine

·      Term not exceeding 2 years and/or

·      Unlimited fine

Regulations

·      Term not exceeding 6 months and/or

·      Unlimited fine

·      Term not exceeding 2 years and/or

·      Unlimited fine

* For offences committed after 12th March 2015 (Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012)

 

 

 

Fees for Intervention (FFI)

 

The HSE now operates a Fee for Intervention (FFI) cost recovery scheme, which came into effect on 1 October 2012.

 

Under The Health and Safety (Fees) Regulations 2012, those who ‘materially’ break health and safety laws are liable for recovery of HSE’s related costs, including inspection, investigation and taking enforcement action.

 

The fee payable by duty holders found to be in material breach of the law is £124 per hour.

 

 

 

HSE Enforcement Policy

 

The HSE has published its Enforcement Policy Statement in accordance with the Regulators’ Compliance Code and the regulatory principles required under the Legislative and Regulatory Reform Act 2006.

 

Enforcing authorities are required to give regard to the principles when allocating resources.

 

 

The Principles of Enforcement

 

The HSE believes in firm but fair enforcement of health and safety law informed by the following five principles.

 

Proportionality

 

Enforcement action should be proportionate to the risks, or to the seriousness of any breach, which includes any actual or potential harm arising from a breach of the law.

 

The enforcing authorities should take particular account of how far the duty holder has fallen short of what the law requires and the extent of the risks to people arising from the breach.

 

Duty holders will be expected to follow relevant good practise.

 

Targeting

 

Enforcing authority efforts should be targeted primarily on those whose activities give rise to the most serious risks or where the hazards are least well controlled.

 

Action should be focused on the duty holders who are responsible for the risk and who are best placed to control it – whether employers, manufacturers, suppliers, or others.

 

Consistency

 

Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve similar ends.

 

In practice consistency is not a simple matter. Decisions on enforcement action are discretionary and require consideration of a range of variables including the degree of risk, the attitude and competence of management, any history of incidents or breaches involving the duty holder, previous enforcement action, and the seriousness of any breach.

 

All enforcing authorities are required to have arrangements in place to promote consistency in the exercise of discretion.

Transparency

 

Transparency means helping duty holders to understand what is expected of them and what they should expect from the enforcing authorities. The enforcing authorities should make clear to duty holders not only what they have to do but also what they don’t by distinguishing between statutory requirements and advice or guidance about what is desirable but not compulsory.

 

Accountability

 

Regulators are accountable to the public for their actions. This means that enforcing authorities must have policies and standards against which they can be judged, and an effective and easily accessible mechanism for dealing with comments and handling complaints.

 

Investigation

 

The following factors should be considered in determining which complaints or reported incidents to investigate and in deciding the level of resources to be allocated:

  • The severity and scale of potential or actual harm;
  • The seriousness of any potential breach of the law;
  • Knowledge of the duty holder’s past health and safety performance;
  • The enforcement priorities;
  • The practicality of achieving results; and
  • The wider relevance of the event, including serious public concern.

 

Prosecution

 

Enforcing authorities should normally prosecute in the public interest, i.e. where, one or more of the following circumstances apply:

  • Death was a result of a breach of the legislation;
  • The gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it;
  • There has been reckless disregard of health and safety requirements;
  • There have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance;
  • Work has been carried out without or in serious non-compliance with an appropriate licence or safety case;
  • A duty holder’s standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk;
  • There has been a failure to comply with an improvement or prohibition notice; or there has been a repetition of a breach that was subject to a simple caution;
  • False information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk; and
  • Inspectors have been intentionally obstructed in the lawful course of their duties.

 

Prosecution of Individuals

 

Enforcing authorities should identify and prosecute individuals if they consider that a prosecution is warranted. In particular, they should consider:

  • The management chain; and
  • The role played by individual directors and managers.

 

Action should be taken against them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part and where it would be appropriate to do so.

 

In 2010/11 there were 43 prosecutions of directors under section 37 of the Health and Safety at Work Act with 35 convictions. Seven faced charges as a result of a fatal incident; 15 were prosecuted after non-fatal incidents; and 21 resulted from an investigation where no incident of any nature had occurred.

 

Five of those convicted were given prison sentences; and three also received prison sentences for perjury.

 

Fines imposed ranged from £150 to £99 900.

 

Where appropriate, enforcing authorities should seek disqualification of directors under the Company Directors Disqualification Act 1986.

 

 

Company Directors Disqualification Act 1986

 

The sanction of disqualification for company directors is available to the courts in England, Scotland and Wales under the Company Directors Disqualification Act 1986 (CDDA). An equivalent regime operates in Northern Ireland.

 

The court has the power to make a disqualification order in relation to a person who has been convicted of an indictable offence in connection with the promotion, formation, management, liquidation or striking off of a company, with the receivership of a company’s property or with his being an administrative receiver of a company.

 

In the context of health and safety enforcement and sanctioning, the relevant part is the conviction of an indictable offence “in connection with the management… of a company.”

 

“Management” is interpreted contextually. The court’s jurisdiction will only arise if there is a demonstrable link between:

  • The offender and the company’s management; and
  • The offence itself and the company’s management.

 

To be disqualified, the offender must be someone who identifiably performs a management role, or discharges or assists in the discharge of a managerial function, and the particular offence must be attributable to the activity of management.

 

The maximum period of disqualification is 15 years if the order is made by the crown court or 5 years if made by a magistrate’s court.

 

Disqualification proceedings are civil and not criminal although the disqualification order may be made following criminal proceedings by the court which convicted the person concerned.

 

The purpose of disqualification is directed at the protection of the public and not punishment.

 

In the period between the introduction of the Act in 1986 and 2005 just ten directors had been disqualified for health and safety reasons, compared to more than 1 500 for financial reasons.

 

In 2010/11 three directors were disqualified for periods of between four and five years.

 

Between 2011 and 2014 a further seven directors were disqualified for health and safety reasons.

Corporate Manslaughter Legislation

 

Manslaughter by individuals is a ‘common law’ crime. The case of R v Adomako (2005) sets out the current test to prove the offence. An individual commits (involuntary) manslaughter when he causes a death through gross negligence.

 

The test of whether a “company” could be found guilty of common law manslaughter was intrinsically linked to the ‘identification doctrine’. A director or senior manager (a controlling mind and will) of the company had to be found guilty, for the company to be found guilty.

 

There were a number of disasters in the 1980’s and 1990’s which lead to failed prosecutions for corporate manslaughter.

 

The Southall rail crash on 19th September 1997 resulted in 7 deaths and 151 injuries, leading to Great Western Trains (GWT) pleading guilty to contravening Section 3(1) of the Health and Safety at Work Act, and receiving a record fine of £1.5 million.

 

Mr Justice Scott-Baker expressed his concern regarding “a serious fault of senior management”. However a charge of manslaughter could not succeed because no individual could be prosecuted and found guilty of gross negligence manslaughter.

 

The HSE commented that death or personal injury resulting from major disasters was rarely due to the negligence of a single individual but was more likely to be the result of the failure of systems controlling the risk, with the carelessness of individuals being a contributing factor.

 

 

The Corporate Manslaughter and Corporate Homicide Act 2007

 

After much lobbying to address the shortcomings of prosecutions of corporate bodies under common law the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) was introduced.

 

Under CMCHA, corporate manslaughter:

  • Can only be committed by organisations and not by individuals;
  • Requires a breach of the duty of care under the law of negligence;
  • Requires that the breach is a gross breach, i.e. where the conduct of the organisation falls far below what should reasonably be expected;
  • Requires that a substantial element in the breach is the way in which the organisation’s activities are managed or organised by its senior management; and
  • Is committed only where death is shown to have been caused by the gross breach of duty.

The sanctions available to the courts include unlimited fines, publicity orders and remedial orders.

 

The Sentencing Guidelines for Corporate manslaughter suggests that an appropriate level of fine will seldom be less than £500,000 and may be measured in millions of pounds.

 

Publicity Orders may require publication in a specified manner of:

(a) The fact of conviction;

(b) Specified particulars of the offence;

(c) The amount of any fine; and

(d) The terms of any remedial order.

 

Remedial Orders

 

Any specific failings involved in the offence ought to have been remedied by the time of sentencing and if not will deprive the defendant of significant mitigation.

 

If, the failings have not been addressed a remedial order may be used if it can be made sufficiently specific to be enforceable.

 

As the remedial order requires only what should already have been done the cost of compliance with the order should not be considered in setting the fine.

 

 

Prosecutions under the Corporate Manslaughter and Corporate Homicide Act 2007

R v Cotswold Geotechnical (Holdings) Ltd. (2011)

 

Cotswold Geotechnical (Holdings) Ltd was found guilty at Winchester Crown Court of the corporate manslaughter charge relating to the death of Alexander Wright, and fined £385 000.

 

Mr Wright aged 27, was working alone in the 12.6ft (3.8m) deep unsupported trial pit when it caved in at a development site near Stroud, Gloucestershire, in September 2008.

 

The company director Peter Eaton was personal charged with common law gross negligence manslaughter and a breach of section 37 HASAWA. Mr Eaton was seriously ill with cancer and was unable to stand trial.

 

The judge said that Peter Eaton was in substance the company and his approach to trial pitting was “extremely irresponsible and dangerous”.

 

R v JMW Farms Ltd. (Northern Ireland) (2012)

 

Robert Wilson was washing the inside of a large metal bin which was positioned on the forks of a forklift truck. He jumped onto the side of the bin which then toppled. He fell to the ground with the bin falling on top of him resulting in his death. The forklift truck was a replacement for the normal truck which had gone for servicing a number of weeks earlier. The position of the forks on the replacement truck did not correspond with the position of the sleeves on the bin and therefore the bin was unstable.

 

The company was held to be aware of the danger as it had carried out a risk assessment which included instructions for anyone operating the forklift truck. However no assessment had been made of the position of the forks of the replacement truck and the sleeves on the bin.

 

The Recorder said that the appropriate fine would have been one of £250,000.00. He reduced that by 25% to reflect the plea of guilty. He thereby imposed a fine of £187,500.00. He allowed the company 6 months to pay the fine and the costs of the prosecution (which amounted to £13,000.00 plus 20% VAT).

 

R v Lion Steel Equipment Ltd. (2012)

 

Steven Berry died from his injuries after an accident on 28th May 2008 when he fell through a fragile fibreglass roof panel thirteen metres to the factory floor at the Lion Steel site in Hyde, Cheshire.

 

The company pleaded guilty to the offence on the basis that three directors were not prosecuted for common law manslaughter or section 37 offences.

 

Mr. Berry was expected to go up on the factory roof to make roof repairs, unsupervised, with no training and with no safety equipment such as crawl boards or a fall-arrest harness. The roof, which had been patched up at various times over the previous decades, had no warning notices about fragile sections — despite the firm being warned on this point by an HSE inspector in 2006.

 

In sentencing Judge Gilbart noted that though the company was in profit, it had substantial loans, the directors were not paying themselves extravagant salaries, and shareholders had not received a dividend for three years.

 

The fine was set at £480 000 but mindful of the jobs of Lion’s 140-strong workforce the  judge specified that Lion Steel should be allowed to pay the penalty in four instalments over three years. The prosecution’s claimed costs of £140,000 were reduced to £84,000 and the company were given two years to pay.

 

 

 

 

 

R v Mobile Sweepers (Reading) Ltd. 2014

 

Malcolm Hinton suffered fatal crush injuries on 6 March 2012, while attempting to repair a hopper on a road sweeper operated by the defendant company Mobile Sweepers (Reading) Limited.

 

The sweeper was elevated from the ground by a hydraulic function but was not propped.

 

Mr Hinton accidently cut through a hydraulic hose while attempting the repair and the sudden loss of hydraulic pressure caused the half tonne hopper, to fall back on to the sweeper chassis and crush him.

 

Mobile Sweepers (Reading) Limited ceased trading soon after the fatality and a new company, Owens Sweepers Limited was set up by the company’s sole director, Mervyn Owens around six months later.

 

In response to the issue of businesses being put into administration and subsequently resurrected as new or ‘phoenix’ businesses Mobile Sweepers (Reading) Limited was fined a mere £8 000 whereas Mervyn Owens was fined £183 000 and disqualified under the Company Directors Disqualification Act  for five years.

 

Owens was convicted of an offence under section 2 / section 37 of the Health and Safety at Work etc. Act 1974; and a charge of gross negligence manslaughter was left to lie on file.

 

The case is also significant due to the first imposition of a publicity order which was drafted by Judge Boney and published in the legal notices of the Basingstoke Gazette and Newbury Weekly News; on the10th April 2014.

 

 

 


Corporate Governance

The UK Corporate Governance Code

(September 2014)

 

The context of the UK Code on Corporate Governance (the Code) was explained by the Cadbury Committee, on its creation in 1992:

  • Corporate governance is the system by which companies are directed and controlled;
  • Boards of directors are responsible for the governance of their companies;
  • The shareholders’ role in governance is to appoint the directors and the auditors and to satisfy themselves that an appropriate governance structure is in place;
  • The responsibilities of the board include setting the company’s strategic aims, providing the leadership to put them into effect, supervising the management of the business and reporting to shareholders on their stewardship; and
  • The board’s actions are subject to laws, regulations and the shareholders in general meeting.

 

Corporate governance is about setting the values of the company, and is distinct from the day to day operational management of the company.

 

The Code is based on the underlying principles of all good governance:

  • Accountability;
  • Transparency;
  • Probity; and
  • Focus on sustainable success over the longer term.

 

 

The Turnbull Guidance on Internal Control

 

The main principle of Section C.2 of the Code is that the board should maintain a sound system of internal control to safeguard shareholders’ investment and the company’s assets.

 

Provision C.2.1 requires the board to conduct an annual review of the effectiveness of the system of internal control and to report to shareholders.

 

UK Listing Authority’s Listing Rules specify the required content of the annual report and accounts for companies incorporated in the UK.

 

The Turnbull Guidance, originally published in 1999, sets out best practice on internal control for UK listed companies.

 

 

In determining its policies with regard to internal control the board should consider:

  • The nature and extent of the risks facing the company;
  • The extent and categories of risk which it regards as acceptable for the company to bear;
  • The likelihood of the risks concerned materialising;
  • The company’s ability to reduce the incidence and impact on the business of risks that do materialise; and
  • The costs of controls relative to the benefit obtained in managing the related risks.

 

 

An internal control system encompasses the policies, processes, tasks, behaviours and other aspects of a company that, taken together:

  • Enable an efficient and effective response to significant business, operational, financial, compliance and other risks including the safeguarding of assets from inappropriate use or from loss and fraud and ensuring that liabilities are identified and managed;
  • Ensure the quality of internal and external reporting through the generation of timely, relevant and reliable information and the maintenance of proper records; and
  • Ensures legal compliance and compliance with internal business policies.

 

 

 

The internal control system should reflect the organisations control environment and include:

  • Control activities;
  • Information and communications processes; and
  • Processes for monitoring the continuing effectiveness of the system.

 

A sound system of internal control provides reasonable, but not absolute, assurance. It reduces, but cannot eliminate, the possibilities of poor judgement, human failure or unforeseeable circumstances.

 

 

Reviewing Effectiveness

 

The process for reviewing effectiveness should have three aspects:

 

  • Continuous monitoring as part of the businesses embedded management systems;

 

  • Receipt and review of regular management reports, in which management should provide a balanced assessment of:
  • The significant risks;
  • The effectiveness of risk control systems;
  • Significant control failings or weaknesses;
  • The impact or potential impact on the company; and
  • The actions being taken to rectify them.

 

  • A board level annual assessment of all significant aspects of internal control prior to making its public statement on internal control.

 

The review process should be defined and documented to encompass both:

  • The scope and frequency of reporting and reviewing; and
  • The process for its annual assessment.

 

Upon becoming aware of a significant failing or weakness in internal control the board should determine how the failing or weakness arose and reassess the effectiveness of the internal control systems.

 

Health and Safety in Annual Reports

 

Although there are legal requirements to monitor and review health and safety performance there is no legal requirement to publish the information in annual reports.

 

There is however HSC guidance suggesting how health and safety issues should be addressed in published annual reports on business activities and performance. It was published as part of the Revitalising Health and Safety (RHS) strategy with the intention of helping the drive to achieve the RHS national targets for reductions in the rates of occupational injuries and illness.

 

As a minimum the annual report should include the following information:

  • The broad context of the health and safety policy;
  • The significant risks faced by employees and others and the strategies and systems in place to control them;
  • The health and safety goals, as per the safety policy;
  • Report on progress towards achieving health and safety goals in the reporting period, and on health and safety plans for the forthcoming period; and
  • The arrangements for consulting employees and involving safety representatives.

 

In addition, the report should provide the following data on health and safety performance for the reporting period:

  • The number of RIDDOR reportable injuries, illnesses and dangerous occurrences (presented as the rate of injuries per 100,000 employees);
  • Brief details of the circumstances of any fatalities, and of the actions taken to prevent any recurrence;
  • The number of cases of illness, disability or health problems that are caused or made worse by work;
  • The total number of employee days lost due to all causes of occupational injury and illness;
  • The number of enforcement notices served on the company and detail of the requirements;
  • The number and nature of convictions for health and safety offences, their outcome in terms of penalty and costs, and measures to prevent a recurrence; and
  • The total cost to the company of the occupational injuries and illnesses suffered by staff in the reporting period.

 

Companies are encouraged to go beyond the minimum standards and include additional information such as the outcome of health and safety audits, and on the extent and effectiveness of health and safety training provided to staff.


 

 

 

 

Health and Safety Management Systems

 

HSE research has shown that approximately 70% of workplace accidents are attributable to a management failure.

 

Therefore before outlining the components of an effective health and safety management system (designed to reduce the numbers of accidents) it is important to have an understanding of how accidents happen.

 

“For the want of a nail, the shoe was lost; for the want of a shoe the horse was lost; and for the want of a horse the rider was lost, being overtaken and slain by the enemy, all for the want of care about a horseshoe nail.”

Benjamin Franklin, (Poor Richard’s Almanack, 1752)

 

Domino theories of accident causation suggest that accidents result from a chain of sequential events like a line of dominoes falling over.  When one of the dominoes falls, it triggers the next one, and the next, eventually resulting in an accident and injury or other loss.

 

Accident prevention strategies involve removing one of the dominoes from the chain to prevent the sequence progressing to the accident.

 

The current HSE version of an accident domino theories shows that the root causes of accidents are largely management planning and organisational failings.

 

Health and safety is managed in the same way as any other aspect of business. Management control is typically exerted through a cycle of Planning, Doing, Checking and Acting (PDCA).

 

There are a number of recognised safety management systems, notably:

 

HSG65 (2013)              HSE Guidance on managing for health and safety (3rd edition) – now constructed around P®D®C®A.

 

ILO-OSH (2001)           International Labour Organisation (ILO) Guidelines on Occupational Safety and Health Management Systems

 

BS 18004:2008            Guide to achieving effective occupational health and safety performance

 

OHSAS18001 (2007)  Occupational Health and Safety Management Systems – Requirements

 

All essentially follow a continual improvement cycle in accordance with the principles of planning, doing, checking and acting.

 

Overview of HSG 65

 

HSG65 is the HSE’s guidance on “Managing for Health and Safety” and is structured around a Plan ® Do ® Check ® Act model.

 

The model is intended to strike a balance between the systems and behavioural aspects of management; and to treat health and safety management as an integral part of good general management rather than as a stand-alone system.

 

 

  1. Plan

 

Health and Safety Policy

 

An effective health and safety policy should:

  • Determine clear organisational goals and set a clear direction for the organisation to follow;
  • Demonstrate senior management commitment continuous improvement;
  • Identify roles and responsibilities for implementing the policy;
  • Explain the organisations approach to fulfilling its legal and moral obligations to that satisfaction of interested stakeholders; and
  • Show that cost-effective approaches to preserving and developing physical and human resources will reduce financial losses and liabilities.

 

Plan for Implementation
  • Establish the organisations current level of health and safety management and the future state of best practice;
  • Decide how performance will be measured using both active (leading) and reactive (lagging) indicators;
  • Establish effective plans for dealing with fire and other emergencies;
  • Co-operate with other organisations sharing the workplace and co-ordinate plans with them; and
  • Plan for changes and identify any specific applicable legal requirements.

 

 

2.   Do

 

Identify the organisations risk profile
  • Identify what could cause harm in the workplace, who could be harmed and how;
  • Assess the risks and determine what needs to be done to manage the risk; and
  • Identify the most significant risks and decide what the priorities are.

 

 

Organise for health and safety

 

This refers to activities in four key areas (the “4 C’s” that together promote positive health and safety outcomes:

  • Controls within the organisation: the role of supervisors – leadership, management, supervision, performance standards, instruction, motivation, accountability, rewards and sanctions; and controls for managing contractors;
  • Co-operation between workers, their representatives and managers through active consultation and involvement;
  • Effective communication across the whole organisation through systems that effectively manage the flow of information, coming into the organisation; being shared within the organisation; and going out from the organisation; and
  • Competence of individuals through recruitment, selection, training and coaching, to ensure that workers have the necessary skills and knowledge to carry out their work safely and without risk to their health; and access to competent health and safety advice including specialist help where required.

 

Implement the plan
  • Ensure any necessary preventive and protective measures are put into place;
  • Provide suitable tools and equipment and maintain them in safe working order;
  • Train and instruct all workers as necessary to ensure they are competent to carry out their work; and
  • Provide an appropriate level of supervision to ensure that all preventive and protective measures are properly utilised.

 

 

3.   Check

 

Measure performance
  • Check that the plan has been properly implemented – ‘paperwork’ on its own is not a good performance measure; and
  • Determine how well aims and objectives are being achieved.

 

There are many different types of monitoring but they can generally be categorised as either ‘active’ or ‘reactive’:

 

Active methods monitor the design, development, installation and operation of management arrangements. These tend to be preventive in nature, for example:

  • Routine inspections of premises, plant and equipment by staff;
  • Health surveillance to prevent harm to health;
  • Planned function check regimes for key pieces of plant; and
  • For larger more complex organisations, or organisations with significant hazards formal auditing may be required.

 

Reactive methods monitor evidence of poor health and safety practice but can also identify better practices that may be transferred to other parts of a business, for example:

  • Investigating accidents and incidents; and
  • Monitoring cases of ill health and sickness absence records.

 

4.   Act

 

Review performance
  • Learn from accidents and incidents, ill-health data, errors and relevant experience, including from other organisations; and
  • Revisit plans, policy documents and risk assessments to see if they need updating.

 

Act on lessons learned

 

Learning lessons involves acting on:

  • Findings of accident investigations and near-miss reports); and
  • Organisational vulnerabilities identified during monitoring, audit and review processes.

 

 

 

 

Overview of OHSAS 18001

 

 

Policy

 

The health and safety policy should establish the overall sense of direction and set the principles of action for the organisation.

 

It should also demonstrate the formal commitment of the organisation’s top management, towards good health and safety management and set objectives for levels of responsibility and performance required throughout the organisation.

 

The policy should be appropriate to the nature and scale of the organisation and its hazard profile. In order to be appropriate, the policy should as a minimum, include statements about the commitment of the organisation to:

  • The prevention of injury and ill health;
  • Continual improvement in health and safety management;
  • Continual improvement in health and safety performance;
  • Compliance with applicable legal requirements; and
  • Compliance with other requirements to which the organisation subscribes.

 

The policy should also be:

  • Signed and dated by the Managing Director / Chief Executive / or equivalent;
  • Communicated effectively to all staff and other stakeholders;
  • Periodically reviewed; and
  • Documented, if five or more people are employed.

Planning

 

The processes of hazard identification and risk assessment will need to be applied to determine the controls that are necessary to reduce the risks of incidents.

 

The overall purpose of the risk assessment process is to recognize and understand the hazards that might arise in the course of the organisation’s activities and to ensure that the risks to people arising from these hazards are assessed, prioritized and controlled to a level that is acceptable.

Implementation and Operation

Resources, Roles and Responsibilities

 

Roles, responsibilities and accountabilities should be defined and allocated, to facilitate effective health and safety management; the details should be documented and communicated.

Competence, training and awareness

 

Any person performing tasks that can impact on health and safety should be competent by way of appropriate education, training or experience, and evidence of competence should be recorded.

Communication, Participation and Consultation

 

Effective communication and consultation processes should be used to garner employee support for the health and safety policy and objectives and to encourage employee participation in good health and safety practices.

Documentation and Document Control

 

Sufficient up-to-date documentation is required to ensure that the health and safety management system can be adequately understood and effectively and efficiently operated.

 

All documents required for the operation of the health and safety management system and the performance of the organisation’s health and safety activities should be identified and controlled.

 

Operational Control

 

Effective operational controls are required to manage the assessed risks and to assure compliance with applicable legal and other requirements. Examples of specific controls required include:

  • Controls related to purchased goods, equipment and services; and
  • Controls related to contractors and other visitors to the workplace.

 

Emergency Preparedness and Response

 

Suitable procedures are required for the identification of the potential for emergency situations and responding to such emergency situations.

 

 

Checking and Corrective Action

 

Performance Measuring and Monitoring

 

A systematic approach for measuring and monitoring health and safety performance on a regular basis is an integral part of an organisations overall management system. Proactive and Reactive measures are required.

 

Non-conformity, corrective action and preventive action

 

Procedures are required to identify actual and potential nonconformities, make corrections and take appropriate corrective and preventive action. The aim is to prevent problems before they occur.

 

A ‘non-conformity’ is a non-fulfilment of a requirement stated in relation to the OHSAS 18001 management system or in terms of health and safety performance.

 

 

Management Review

 

Management reviews should focus on the overall performance of the Health and safety management system with regard to:

  • Suitability (is the system appropriate to the organisations size and risk profile?);
  • Adequacy (is the system fully addressing the organisation’s health and safety policy and objectives?); and
  • Effectiveness (is it accomplishing the desired results?).

 

NB OHSAS 18001 will be replaced by ISO 45001 in 2017. ISO 45001 will follow the same high level structure as the recently revised ISO 9001:2015 quality management standard and ISO 14001:2015 for environmental management.

 

This will be based around a plan do check act cycle with increased emphasis on leadership and risk management.

 

 

 

 

 

 

Module 5 – Culture and Leadership

 


Culture and Leadership

 

Culture

Introduction

 

Research into organisational culture goes back almost forty years. The concept is confused by the interest of various academic disciplines.

 

A sociologist would consider that an organisation has a culture, an anthropologist would define an organisation as a culture whereas a management researcher would use the term as a metaphor, identifying an organisation as a ‘mini-society.’

 

Organisational culture has been defined as:

 

“a pattern of shared basic assumptions that was learned by a group as it solved its problems of external adaptation and internal integration, that has worked well enough to be considered valid, and therefore, to be taught to new members as the correct way to perceive, think and feel in relation to those problems.” 

 

Culture will inevitably form in any group, through spontaneous interactions between the members, leading to patterns and norms of behaviour.

 

In a new or small Organisation the personal vision, goals, beliefs, values and assumptions of the leader will be imposed within the group, and reinforced as members are recruited and promoted on the basis of consistent thoughts and values.

 

When a new employee is “learning the ropes”, “the ropes” represent the Organisational culture, or “the way we do things around here”.

 

Organisational culture can be analysed at different levels, related to the degree of visibility to the observer.

 

 

 

Safety Culture

 

The Confederation of British Industry (CBI) describes the culture of an organisation as:

 

“the mix of shared values, attitudes and patterns of behaviour that give the organisation its particular character” or “the way we do things round here”.

 

They suggest that the safety culture of an organisation could be described as:

 

“the ideas and beliefs that all members of the organisation share about risk, accidents and ill health”.

 

The HSC defined safety culture as:

 

“The safety culture of an organisation is the produce of individual and group values, attitudes, perceptions, competencies, and patterns of behaviour that determine the Commitment to, and the style and proficiency of, an organisation’s health and safety management.

 

Organisations with a positive safety culture are characterised by communications founded on mutual trust, by shared perceptions of the importance of safety and by confidence in the efficacy of preventive measures.”

 

Every group of people develops a ‘culture’. In an organisation with a good safety culture everyone puts health and safety high on the list and adopts the same positive attitudes to health and safety. This influences the ways in which individuals in the group handle new events and decisions.

 

The lack of an effective safety culture has been highlighted as a significant cause of numerous major disasters including:

  • The Kings Cross fire (1987) – “A cultural change in management is required throughout the organisation”; and
  • Piper Alpha (1988) – “It is essential to create a corporate atmosphere, or culture in which safety is understood to be, and is accepted as, the number one priority.”

 

Some essential pre-requisites for the development of an effective culture include:

 

 

Management Commitment

 

Management commitment should be demonstrated by the proportion of resources (time, money, people) and support allocated to health and safety management and by the relative status of health and safety against other business priorities such as production, cost etc. The active involvement of senior management in the health and safety system is very important.

 

 

Visible Management

 

Managers should lead by example when it comes to health and safety. Good managers appear regularly on the ‘shop floor’, talk about health and safety and visibly demonstrate their commitment by their actions – wearing PPE, following safety rules, where appropriate putting health and safety concerns over commercial considerations.

 

In reality more than visibility is required. Leadership must be ‘felt’. Workers must not only see senior managers taking health and safety seriously but must also believe that they are taking it seriously.

 

 

Good Communications

 

Open two way communications are essential. Questions about health and safety should be part of everyday work conversations. Management should listen actively to what they are being told by employees, and be seen to take what they hear seriously.

 

 

 

 

Active Employee Participation

 

Ownership of health and safety has to be built at all levels and the knowledge that employees have of their own work is a valuable resource. Employees should be actively involved safety workshops, risk assessments, plant design etc.

 

 

Effective Health and Safety Training

 

Training has an important role to play in improving employees understanding of not just site specific hazards and controls but the principles of sensible risk management.

 

 

The 5 ‘C’s’ of Health and Safety Culture

 

The above pre requisites can be summed up as the ‘5 C’s’:

  • Control – of risks;
  • Commitment – at all levels, starting with directors;
  • Competence – knowledge, skills and experience to work safely;
  • Communication – relevant, timely, quality; and
  • Cooperation – internally between business units etc. and externally e.g. contractors.

 

 

Leadership of Health and Safety Management

 

Inquiries in the aftermath of several major accidents / disasters have identified the lack of leadership as a critical causal factor.

 

Lord Cullens report into the Ladbroke Grove (Paddington) train crash (1999) noted that:

 

“ The commitment to safety of senior executives is not visible at the working and operational level and the safety policy lacks credibility in the eyes of the employees”.

 

“ … conviction needs to come from the top, needs to be broadcast from the top, needs to be continually refreshed from the top and the top needs to be seen, visibly seen as active in its representation of its value…..”

 

The Hidden Report into the Clapham Junction train crash (1988) concluded that:

 

“a concern for safety which is sincerely held and repeatedly expressed but, nevertheless, is not carried through into action, is as much protection from danger as no concern at all.”

 

 

The general management literature suggests that the key difference between leaders and managers is that:

 

“Managers are people who do things right and leaders are people who do the right things”

 

and that the:

 

“unique and essential function of leadership is the manipulation of culture.”

 

If leadership is viewed as a process rather than an innate personal quality, the key requirements for a leader are to:

  • Set a clear and credible vision of the future state the organisation is trying to achieve;
  • Establish the style and tone of communication, the social architecture and organisational culture;
  • Create an atmosphere of two way trust between leaders, managers and the workforce; and
  • Visibly demonstrate commitment, persistence, and willingness to take risks / accept losses, consistency, self-knowledge and above all learning.

 

Leadership of changes in health and safety behaviour and culture utilises the same framework as any other change management process.

 

 

HSE research has shown that:

 

“Directors exert a fundamental influence over either standards of health and safety management or levels of health and safety performance.”

 

The research also estimated that effective board leadership can deliver a 5 – 10% reduction in workplace accidents and ill-health.

 

In light of the difficulties of prosecuting directors for health and safety offences under section 37 of the Health and Safety at Work Act (consent, connivance, neglect) there has been much debate over the need to introduce proactive duties for directors to lead health and safety management. The debate is ongoing.

 

Currently there is joint guidance (INDG417) from the HSC and Institute of Directors (IoD) on leading health and safety at work.

 

 

HSE / IoD Guidelines – “Leading Health and Safety at Work”

 

Failure to include health and safety as a key business risk in board decisions can have catastrophic results. Many high-profile safety cases over the years have been rooted in failures of leadership.

 

Health and safety law places duties on organisations and employers, and directors can be personally liable when these duties are breached: members of the board have both collective and individual responsibility for health and safety.

 

 

Essential Principles

 

Strong and Active Leadership from the top:

  • Visible, active commitment from the board;
  • Establishing effective ‘downward’ communication systems and management structures; and
  • Integration of good health and safety management with business decisions.

 

 

Worker Involvement:

  • Engaging the workforce in the promotion and achievement of safe and healthy conditions;
  • Effective ‘upward’ communication; and
  • Providing high quality training.

 

 

Assessment and Review:

  • Identifying and managing health and safety risks;
  • Accessing (and following) competent advice; and
  • Monitoring, reporting and reviewing performance.

 

 

Legal Responsibilities of Employers

 

Health and safety law states that organisations must:

  • Provide a written health and safety policy (if they employ five or more people);
  • Assess risks to employees, customers, partners and any other people who could be affected by their activities;
  • Arrange for the effective planning, organisation, control, monitoring and review of preventive and protective measures;
  • Ensure they have access to competent health and safety advice; and
  • Consult employees about their risks at work and current preventive and protective measures.

 

Failure to comply with these requirements can have serious consequences – for both organisations and individuals. Sanctions include fines, imprisonment and disqualification.

 

Under the Corporate Manslaughter and Corporate Homicide Act 2007 an offence will be committed where failings by an organisation’s senior management are a substantial element in any gross breach of the duty of care owed to the organisation’s employees or members of the public, which results in death. The maximum penalty is an unlimited fine and the court can additionally make a publicity order requiring the organisation to publish details of its conviction and fine.

Plan

 

The board should set the direction for effective health and safety management.

 

Board members need to establish a health and safety policy that is much more than a document – it should be an integral part of the organisation’s culture, of its values and performance standards.

 

All board members should take the lead in ensuring the communication of health and safety duties and benefits throughout the organisation.

 

Executive directors must develop policies to avoid health and safety problems and must respond quickly where difficulties arise or new risks are introduced and non-executives must make sure that health and safety is properly addressed.

 

 

Core Actions

 

To agree a policy, boards will need to ensure they are aware of the significant risks faced by their organisation.

 

The policy should set out the board’s own role and that of individual board members in leading the health and safety of its organisation.

 

It should require the board to:

  • ‘Own’ and understand the key issues involved; and
  • Decide how best to communicate, promote and champion health and safety.

 

The health and safety policy is a ‘living’ document and it should evolve over time, e.g. in the light of major organisational changes such as restructuring or a significant acquisition.

 

For many organisations, health and safety is a corporate governance issue. The board should integrate health and safety into the main governance structures, including board sub-committees, such as risk, remuneration and audit.

 

 

How it can be done

  • Health and safety should appear regularly on the agenda for board meetings;
  • The chief executive can give the clearest visibility of leadership, but some boards find it useful to name one of their number as the health and safety ‘champion’;
  • The presence on the board of a health and safety director can be a strong signal that the issue is being taken seriously and that its strategic importance is understood;
  • Setting targets helps define what the board is seeking to achieve; and
  • A non-executive director can act as a scrutineer – ensuring the processes to support boards facing significant health and safety risks are robust.

 

 

Do

 

Delivery depends on an effective management system to ensure, so far as is reasonably practicable, the health and safety of employees, customers and members of the public.

 

Organisations should aim to protect people by introducing management systems and practices that ensure risks are dealt with sensibly, responsibly and proportionately.

 

Core Actions

 

To take responsibility and ‘ownership’ of health and safety, members of the board must ensure that:

  • Health and safety arrangements are adequately resourced;
  • They obtain competent health and safety advice;
  • Risk assessments are carried out; and
  • Employees or their representatives are involved in decisions that affect their health and safety.

 

The board should consider the health and safety implications of introducing new processes, new working practices or new personnel, dedicating adequate resources to the task and seeking advice where necessary Boardroom decisions must be made in the context of the organisation’s health and safety policy; it is important to ‘design-in’ health and safety when implementing change.

 

 

How it can be done

  • Leadership is more effective if visible – board members can reinforce health and safety policy by being seen on the ‘shop floor’, following all safety measures themselves and addressing any breaches immediately;
  • Consider health and safety when deciding senior management appointments;
  • Having procurement standards for goods, equipment and services can help prevent the introduction of expensive health and safety hazards;
  • The health and safety arrangements of partners, key suppliers and contractors should be assessed: their performance could adversely affect yours;
  • Setting up a separate risk management or health and safety committee as a subset of the board, chaired by a senior executive, can make sure the key issues are addressed and guard against time and effort being wasted on trivial risks and unnecessary bureaucracy;
  • Providing health and safety training to some or all of the board can promote understanding and knowledge of the key issues in your organisation; and
  • Supporting worker involvement in health and safety, above your legal duty to consult worker representatives, can improve participation and help prove your commitment.

 

 

Check

 

Monitoring and reporting are vital parts of a health and safety culture. Management systems must allow the board to receive both specific (e.g. incident-led) and routine reports on the performance of health and safety policy.

 

Much day-to-day health and safety information need be reported only at the time of a formal review (see action 4). But only a strong system of monitoring can ensure that the formal review can proceed as planned – and that relevant events in the interim are brought to the board’s attention.

 

 

Core Actions

 

The board should ensure that:

  • Appropriate weight is given to reporting both preventive information (such as progress of training and maintenance programmes) and incident data (such as
  • Accident and sickness absence rates);
  • Periodic audits of the effectiveness of management structures and risk controls for health and safety are carried out;
  • The impact of changes such as the introduction of new procedures, work processes or products, or any major health and safety failure, is reported as soon as possible to the board; and
  • There are procedures to implement new and changed legal requirements and to consider other external developments and events.

 

 

How it can be done

  • Effective monitoring of sickness absence and workplace health can alert the board to underlying problems that could seriously damage performance or result in accidents and long-term illness;
  • The collection of workplace health and safety data can allow the board to benchmark the organisation’s performance against others in its sector;
  • Appraisals of senior managers can include an assessment of their contribution to health and safety performance;
  • Boards can receive regular reports on the health and safety performance and actions of contractors; and
  • Some organisations have found they win greater support for health and safety by involving workers in monitoring.

Act

A formal boardroom review of health and safety performance is essential. It allows the board to establish whether the essential health and safety principles – strong and active leadership, worker involvement, and assessment and review – have been embedded in the organisation. It tells you whether your system is effective in managing risk and protecting people.

Core Actions

The board should review health and safety performance at least once a year. The review process should:

  • Examine whether the health and safety policy reflects the organisation’s current priorities, plans and targets;
  • Examine whether risk management and other health and safety structures have been effectively reporting to the board;
  • Report health and safety shortcomings, and the effect of all relevant board and management decisions;
  • Decide actions to address any weaknesses and a system to monitor their implementation; and
  • Consider immediate reviews in the light of major shortcomings or events.

How this can be done

  • Performance on health and safety and wellbeing is increasingly being recorded in organisations’ annual reports to investors and stakeholders;
  • Board members can make extra ‘shop floor’ visits to gather information for the formal review; and
  • Good health and safety performance can be celebrated at central and local level.

Conclusions

To be effective safety leadership must be visible and tangible. It can be demonstrated through a range of activities including:

  • Setting realistic, achievable targets for health and safety;
  • Ensuring that health and safety performance is a key performance measure for senior managers;
  • Making consistent business decisions to show the relative importance of health and safety against other business objectives such as production and quality;
  • Being actively involved in proactive monitoring through safety tours etc.;
  • Encouraging open and honest learning from experience and a ‘fair blame’ culture;
  • Visibly demonstrating expected standards of behaviour e.g. wear PPE where required;
  • Providing adequate resources (time, equipment and competent staff);
  • Providing a good working environment and welfare facilities; and
  • Providing and supporting means of consultation and communication with the workforce.

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