Having some involvement with safety management, I was drawn in when I saw an interesting comment in the Telegraph yesterday regarding our current propensity for health and safety legislation and the enforcers; the Health and Safety Executive. This was prompted by a story about the fitting of streetlights in Cumbria.
“The lights may soon be going out in part of the Lake District after health and safety officers said workmen must not climb ladders to replace bulbs.In the past contractors have gone aloft to repair and maintain street lights in Kendal and Kirkby Lonsdale.”
On the face of it, this sounds rather silly. What it is referring to (somewhat obliquely) is the regulations for working at height brought in late last year. This is a consequence of ongoing workplace accidents involving people falling from heights. There was a mini furore as people managed to misrepresent the legislation and decided that workers could no longer use ladders and window cleaners would go out of business and other such nonsense. The regulations do not say that workers cannot use ladders; merely that the risks be assessed and appropriate control measures put in place. So, returning to the streetlights saga:
“But now Amey, the company that carries out the work for South Lakeland district council, has ruled that its staff will no longer be using ladders on certain lampposts.”
The reason will be that whoever assessed the risk decided that the location of these lamp posts made the risk unacceptable. Given that risk assessment is always going to be subjective, another assessor might reach a different conclusion. Whatever; it does not meant that the bulbs cannot be replaced, simply that a different means of accessing them be used – and there are plenty of alternatives to a ladder. This is, frankly, a non-story whipped up to make a point. A point badly made, I feel, because it is such a silly and unsustainable story – the point, however, is one worth making.
In it’s opinion piece, the Telegraph has damning words for the HSE (Health and Safety Executive):
“The aggrandisement of the government inspector, and the accompanying ascendancy of the compensation culture, are making our businesses less enterprising, our people less responsible and our country less free.”
My own experience with this orgainsation was on the railways – here they operate as the HMRI (Her Majesty’s Railway Inspectorate) same organisation, same silliness. I recall an improvement notice being imposed on a level crossing because the white lines were not in accordance with the parliamentary order for that crossing. They were too short, I recall. Well, yes, they were. However, Railtrack didn’t paint the lines, the local authority did. And, more importantly, the effect on the safe operation of the crossing was zero, none, nil, nada, zilch – yet these people were prepared to close it down because it breached “safety rules”.
Meetings with these people were often fraught because they came with the attitude that we were guilty of a breach and were prepared to look for it – it was not unusual for a meeting to conclude with a threat of prosecution being issued somewhere in the proceedings. It was the HSE that decided permissive working (two trains in a platform) was so unsafe that we had to stop drivers at inbound signals to tell them that there was a train in the platform. The driver, naturally would respond by pointing out that the signal told them this – that’s how railway signalling works. Never mind lamp bulbs, I’ve got plenty of stories of HSE stupidity.
But. But. But. I don’t subscribe to the assertion that common law alone is the ultimate panacea.
In the wake of the Aberfan disaster, the Robens committee concluded (among other things) that there was too much law. The outcome was that much of this law was replaced by the Health & Safety at Work Etc, Act (1974). This act applies to all workplaces and work practices. In essence, it places a duty on the employer to assess the risk of the operation and who is likely to be affected and to put in place appropriate management and control measures. It is delightfully simple. Relying on common law alone did little for the victims of Aberfan. And, in the case of large corporations, the cost of litigation may be less than the cost of effective risk management. In such cases, it would be tempting for unscrupulous employers to opt for the minimum risk. Relying on them concluding that their reputation would be tarnished and effective safety systems is in their best interests is naive – and for some, fatal. After all, even with health and safety law, there are still employers who will take shortcuts and risk the safety of their employees. So, I steer a middle course. I believe the HASAWA combined with common law litigation is a pragmatic approach. Also, a successful prosecution will make subsequent civil actions more likely to succeed.
Unfortunately, some twenty years after the HASAWA entered the statute book, employers still didn’t get it. So we had the Management of Health and Safety at Work Regulations (1992) as amended in (1999) and (2001) that specifically state the requirement for risk assessment. There were also other regulations such as Control of Substances Hazardous to Health (1992), (1999) and (2002), PPE, Display Screen Equipment and…. Oh, I could go on, but you get the gist. The problem is that they all say much the same thing; assess the risk and put in control measures.
HSC (Health and Safety Commission) guidance offers a control hierarchy that starts with removing the risk entirely through managing it, using guards and fences, for example, to personal Protective Equipment. Although some of the guidance provided with the regulations is useful to someone carrying out an assessment, common sense will see you though. After all, do you need guidance to tell you that you will look at the proximity to a casualty unit and the hours that the company is working when deciding how many first-aiders to appoint? It isn’t difficult. Do we really need a set of regulations and guidance notes to tell us this?
A colleague of mine recently worked out that there are 11 million words of health and safety legislation on the UK statue book. I suggest that we are back to where Robens was in 1971 and that we have too much law. Consequently, I find myself broadly agreeing with the Telegraph’s conclusion:
“English common law, in particular contract and tort law, has always offered redress to an employee who has been injured because of his boss’s negligence.The difference is that the HSE does not need to prove injury or, indeed, negligence.
Since its powers were bolstered by John Prescott, the HSE has become perhaps the single greatest drag on our competitiveness.
Worse, it has infantilised us, teaching us to blame others rather than take responsibility for ourselves. Yet there is no evidence that it has made anyone healthier or safer.
It should be closed down.”
My own suggestion is that we keep the HASAWA and strip out all the delegated legislation. But that would be too simple.
—–