The news today about a roll back of the health and safety culture that has pervaded society this past couple of decades is welcome, although I do have some reservations about the rhetoric.
An end to “excessive” health and safety rules that enable councils to cancel popular activities is to be urged by an adviser to the prime minister.
The problem is not necessarily the rules, as it is the people who interpret them inappropriately. The core of our statute legislation is the Health & Safety at Work Etc Act (1974). It is a sensible and pragmatic piece of legislation. It replaced the hotch-potch approach that preceded it and was designed to apply to all workplaces by being broadly framed. In essence, what it is saying is; look at the risk posed by the operation, identify who might be at risk and then manage that risk. The hierarchy applied is to eliminate the risk if possible, thereafter mitigate as much as possible – the term reasonably practicable is used and this has been interpreted in case law to mean a balance of cost, time and effort against the risk being addressed. In other words, be sensible.
The delegated legislation that followed takes the same basic approach; identify the risk and manage it. It doesn’t matter whether it applies to heavy industry or an office environment, the approach is the same; look at the risk and manage it. Naturally, this means that the risks will differ and the management will differ. The legislation allows for this. What I would say is that because it largely repeats the same process, much of the delegated legislation is probably superfluous, given that the umbrella legislation covers the principle anyway.
What it doesn’t mean and has never meant is that local events should be cancelled because of “health and safety”. It does not mean that children should wear PPE when playing conkers, because any sensible assessment of risk will decide that the risks are minimal.
No, what we have seen, is people who have failed to grasp this basic principle hiding behind health and safety because they are unable or unwilling to think for themselves and accept that life comes with risk and sometimes you just have to accept that.
The other problem is the compensation culture.
Lawyers say the legal right to claim damages should remain protected.
Well, yes. Anyone injured at work as a consequence of negligence on the part of their employer should be able to sue. Common law has always applied. A successful prosecution under statue law makes a claim more likely to succeed. However, it really is time that the courts took a hard line on frivolous cases and threw them out, making the plaintiff pay the costs.
It follows a number of well-publicised cases – such as this year’s official cancellation of a 200-year-old cheese-rolling event in Gloucestershire, due to safety concerns.
This kind of activity should be no concern of the local council in the first place. If people want to throw themselves down a hill chasing a cheese, it’s a fair bet they are aware of the risks. They choose to take that risk, they accept the consequences of any mishap.
Speaking to the BBC, Lord Young said that while there was “nothing wrong with health and safety” its remit had spread over the last last ten years to cover “everything.”
“It’s been the same laws that apply to a heavy manufacturing or chemical plant, apply to an office, to a shop and to a classroom and that is nonsense.”
No, actually, that’s how it is supposed to work. It’s just that the risks and their management will differ according to the workplace and a sensible practitioner will apply them accordingly.
“So we find people the whole time filling in forms and spending an enormous amount of time and effort instead of doing what they should be doing which is looking out and using common sense.”
Indeed so. It goes back to my earlier comment about people using it as a shield.
However, Richard Jones, of the Institution of Occupational Safety and Health, said that the regulations were often used as “convenient excuse” for not doing something.
“Most of the crazy stories Lord Young referred to in today’s media interviews are the result of lack of advice, fear of being sued or people not wanting the cost and trouble of running an event properly,” he said.
I’d agree with that assessment. I recall running H&S training for colleagues a few years back. I was trying to get them to think sensibly about the identification of risk and how to manage it. One chap was a union appointed safety rep and the local management group thought he might benefit from one of my courses (they may have had a point). The example I was using was climbing up a ladder to clean a window. I asked the group to rank the risk using the standard 5×5 system. It’s crude, but it is a useful tool to help the thinking process. The upshot was that this individual decided that the score was 25 – i.e. the likelihood of a fall was certain and death would be the result. I asked him how many people he’d come across who used ladders and had fallen to their deaths. None as it turned out.
Did he know anyone who had a ladder?
Oh, yes.
Had they fallen to their deaths?
No.
So, I suggested, falling wasn’t a certainty after all. And, although it’s a fair probability that death could result from a fall, it isn’t certain. Eventually, it dawned upon him that actually, the risk was lower than he was insisting and that providing the ladder was properly secured and the user ensured three points of contact, then the risk could be managed. So we won’t be banning window cleaning just yet.
This individual is not so unusual unfortunately. He had read the legislation and saw it as a blunt instrument rather than an effective means of managing risk. Common sense is a rare commodity.
So, if we can see a little more pragmatism applied along with a reduction in ambulance chasing, then this will be good news. I await events with interest.
I would agree with the broad thrust of your argument here. Thye concept of H&S is entirely benign – as you say, identify risks, balance them against other factors, and minimise them as far as reasonably practicable. No sane person could argue with that. Where it starts to get difficult is in two areas:
1. The basic legislation is added to by secondary legislation like the Management Regs, and that is then overlaid with things like Approved Codes of Practice and Guidance Notes. While these are very valuable in implementing safety measures, especially in unfamiliar areas, they have become de facto regs on their own. If an accident were to occur and someone be injured, the first question the HSE would ask would be – were the ACOPs and GNs being followed? If they weren’t, that would be seen as prima facie evidence that the risk was not being managed adequately (unless you could demonstrate very clearly that your methods were better, which is unlikely). And it’s in these ACOPs and GNs that the massive detail lies – that people must be trained to climb ladders, or use a paintbrush, and so on. They don’t make much allowance for common sense.
2. The role of the courts. Many of the more ludicrous restrictions (banning bonfires on Nov 5, for example) come from insurance companies desperate to avoid exposure to large compensation claims, putting excessively cautious requirements on businesses or authorities in the way they operate. And the inscos only do this because they are terrified of losing a perfectly reasonable case in court. The courts still seem to take the interests of the individual over that of the business (after all, the business can afford it, seems to be the thinking), and common sense flies out of the window. Often, if the lawyers can show just one instance of the business failing to follow ‘official guidance’ (for example, a lack of inspection records, even where the condition of the item was not in doubt) then the court will award in favour of the plaintiff.
(My grand-daughter came back from her Saturday job today with a bruise on her arm. She had hurt herself walking into a projecting handle on an oven in a bakery. Her first question to me was – “look at this – can I claim?” She was joking, but many are not.)
As far as I am concerned, they can leave the HSWA alone. Tackle the imbalance in the courts and the problem will resolve itself. Make it clear (in law) that all of us are responsible for our own conduct, that prosecutions will only be admitted where there is clear and serious negligence on the behalf of business/employer/authority, and that perfect safety is neither achievable nor desirable. The frivolous claims would disappear and the no-win-no-fee lawyers would wither on the vine.
Sorry for the long response, but it’s a long time since anyone in blogland had a good word to say about H&S, and I found your post interesting and thoughtful.
I read that article in the Daily Mail this afternoon. (While waiting for a haircut, but you dont care about that)
It would have been a lot more welcome if it wasn’t accompanied by the announcement that the ConDems are going to bring in Labours equality bill. Any benefits from the slackening of H&S rules will be more than offset by the misery caused by this ridiculus Harriet Harperson nonesense.
Richard, agreed. It is just a matter of how deep you go in a blog post – hence my throwaway comment that there is probably too much delegated legislation. And, agreed, case law can be perverse. Again, I only briefly touched on that. I didn’t want to produce an essay 😉
I saw this first on the BBC news last night. I’m slightly surprised that you didn’t include Lord Young’s comment as it is the first time I’ve ever heard a mainstream politician making a Libertarian argument. Pity he can’t see where else the same argument applies.
He said:
“Frankly if I want to do something stupid and break my leg or neck, that’s up to me. I don’t need a council to tell me not to be an idiot.”
Shameless plug for my new blog: http://libertarianbulldog.blogspot.com/2010/10/argument-blindness.html
I noted it mentally but missed it when writing…
Good post. I’ve done a hell of a lot of risk assessments in the oil and gas businsess and every single one of them starts with the 5×5 matrix. It is a great tool for identifying the high risks, which you can then take on to quantified analaysis.
As long as it means that I can now take and note down a few building site measurements without some gordie brick shithouse threatening to chuck me off the site then it’s fine by me.
These anal cretins seem religiously convinced that the moment my back is turned, a rat is going to materialize, piss on my tape measure and de-materialize, whilst at precisely the same moment some sharp object leaps up and cuts my best tape measure holding hand.
Common sense – these jumped up thugs wouldn’t know it if it kicked them through Newcastle town centre whilst shouting “I am common sense” into their ears through a megaphone.
I empathise with alot of whats been said here, my husband is a plant driver on building sites and nearly everyday he comes home with another crazy over the top story of health and safety gone mad, obviously it is essential in most places and none more than a construction site but as has already been said where has common sense gone and why do politicians think they have the right to take away our right to assess a situation and think for ourselves