Too Much Law

I commented albeit in passing on the matter of health and safety the other day.

Health and safety has become an industry all of itself these days. Indeed, the Health and Safety Practitioner has pages of appointments with juicy salaries that neatly underlines the point. Law requires employers to have competent health and safety management (management of Health and Safety at Work Regulations 1999) :

 Health and safety assistance
     7.  – (1) Every employer shall, subject to paragraphs (6) and (7), appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.

On the face of it, this is common sense. An effective enterprise will only be effective if its employees are competent to carry out their duties – and those charged with safety management are no exception. So, is regulation 7 merely stating the obvious? For me, yes, but if we took a totally libertarian approach and had no law at all, would employers apply common sense? Would they regard killing their employees, contractors and customers as bad business practice to be avoided? In the majority of cases, probably so. But experience tells a different story.

Those of a certain age will recall the horror of Aberfan forty years ago next month. An employer is required under modern legislation to exercise due regard for the safety not only of his employees, but contractors, visitors, clients and neighbours. Indeed anyone who may be affected by the business’ undertaking. The occupants of Pantglas Junior School were neighbours potentially affected by the undertaking of the National Coal Board. At the time, safety legislation that existed did not provide any protection for neighbours. As no miners were killed or injured, no prosecutions took place because there was no effective law with which to prosecute. Nowadays, doubtless, someone would suggest corporate manslaughter, but as recent attempts have demonstrated, a successful prosecution needs to show a clear audit trail from the consequence to the person in the dock and that is not always manageable.

The Health and Safety at Work etc Act 1974 is a sensible piece of legislation given what went before. The hotch-potch of statutory instruments were replaced with one all encompassing act that made health and safety management simple, manageable and enforceable. As it applies to all places of work, no matter what the enterprise and covers everyone who may be affected by that work, it is all that is really needed – assuming, of course, that you accept the principle of health and safety legislation in the first instance. In essence, it requires the employer to analyse what the risks are in relation to his operation, decide who may be affected and put into place suitable control measures. The law does not say what they should be as they will be appropriate for the business.

It took twenty years and the introduction of the European imposed “six pack” for employers to finally get the message about risk assessment. I’m not going to get into the EU argument here; simply to point out that this is where the legislation came from. These regulations made under the enabling statutory instrument essentially say much the same thing as the original act:

Display Screen Equipment regulations; risk assess the work station and put into place suitable control measures

Control of Substances Hazardous to Health regulations: Identify and assess the risks associated with substances employees may come into contact with and put into place control measures (including advice and information).

Management of Health and Safety at Work Regulations: do the risk assessment you should have been doing for the past twenty years and put into place suitable control measures. Oh, and while we are at it, an added duty is placed on employees.

The Health and Safety at Work etc Act 1974, section 7 has this to say for employees:

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

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

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

And section 8:

8. No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions.

How many people, I wonder, are aware that they also have a duty to report breaches of health and safety (Management of Health and Safety at Work Regulations 1999, regulation 14)?

(2) Every employee shall inform his employer or any other employee of that employer with specific responsibility for the health and safety of his fellow employees – 

(a) of any work situation which a person with the first-mentioned employee’s training and instruction would reasonably consider represented a serious and immediate danger to health and safety; and

(b) of any matter which a person with the first-mentioned employee’s training and instruction would reasonably consider represented a shortcoming in the employer’s protection arrangements for health and safety,

in so far as that situation or matter either affects the health and safety of that first mentioned employee or arises out of or in connection with his own activities at work, and has not previously been reported to his employer or to any other employee of that employer in accordance with this paragraph.

That apart, the management regulations are pretty much saying what was in the original act; but tightening up on some of the specifics.

Manual Handling – assess what has to be lifted and put into place suitable control measures

Provision and use of work equipment – asses the risks imported by the equipment and put into place suitable control measures.

Notice a trend here, or do you want me to continue? No, point made, I think.

A colleague of mine once observed that we have something like 11,000,000 words of health and safety legislation on the statute book. You might think he needs to find something else to occupy his mind, but there’s a point there.

Yet it goes on – and in part it is the fault of those who miss the point of good safety management. About eighteen months ago we has the working at height regulations dumped upon us. I recall much complaining that this would stop window cleaners carrying out their business. No, it does nothing of the sort. What it does require is that people working at height assess the risks involved and ensure that those risks are adequately managed. That is why Amey refused to use ladders to replace light bulbs in Kendal. Despite the blindingly obvious method being imposed by successive regulation, people are still more likely to be killed or injured at work due to a fall, so now we have legislation that specifically require risk assessment of jobs that involve working at height.

Much as I deplore ever more regulation – and I believe we have far too much, until people start to apply the principles properly, then government will intercede with greater enforcement.

Much of this regulation is telling us the same thing – look at the risk, identify the hazards and put suitable control measures in place. It was saying that in 1974.