On the face of it, the government’s proposals for reform of health and safety legislation are a welcome oasis of common sense. We are told that the bureaucracy will be pared down and regulations will be removed from the statute book.
If anything, the world of health and safety is an object lesson on the downsides of enabling legislation. The original Health and Safety at Work etc (1974) Act said it all. It was a response to what went before, a plethora of knee jerk legislation that was fine if your area was covered and less so if not. It is why the victims of Aberfan saw no prosecutions in the wake of the 1966 disaster and it is why the poacher was tuned gamekeeper and chaired the Robens committee that came up with an act of parliament that was all things to all men. It covered all types of work, all types of employer and addressed the risks to those affected by the organisation’s activities even if not at work or on the premises. It was drafted so broadly it could be used as effectively by the one man band as it could by the multinational.
Great. Terrific.
Well, maybe, maybe not. As is the case with legislation the effectiveness is in the working and in the case of this legislation, we had terms that were not properly defined until it came to court. “Reasonably practicable” for example. And “practicable” both spring to mind. Both were defined by the courts not by the primary legislation. And, this being an enabling act, ministers could produce regulations under the umbrella of the primary legislation and boy, didn’t they just?
Much of this was driven by the EU. Safety driven law from Brussels found its way on the UK stature book via regulations under the act. Yet, for all that, the process is much the same. Whether it is DSE, First Aid at Work, Manual Handling, or working at heights to name a few, the process is always the same – assess the risk, decide who may be affected and mange the risk to as low as reasonably practicable. The guidance provided by the HSE is useful in doing this, but I have often pondered on the necessity for all this regulation when the original act encompasses the principle neatly enough.
So, I guess no one will much weep when some of this stuff goes.
Employment Minister Chris Grayling said the government was accepting Prof Lofstedt’s recommendations and hoped to “put common sense back at the heart of health and safety”.
Given that the principles are built on a foundation of common sense, one wonders where it went in the first place.
Quite apart from the EU driven legislation, we have the other burden placed upon the employer – the rise in prominence of the no win, no fee ambulance chasers.We still see these parasites actively touting for business on the daytime television ad breaks. Yet, if you are subject to a no fault injury at work, the law – both common and statute – is clear. There is a liability and you can sue. Your own solicitor will do the necessary. And if there is a successful prosecution as a consequence of a breach, then a civil suit should sail through.
Realistically, though, this is not what the compensation culture is about, though, is it? It is about getting a pound of flesh even if the accident was caused wholly or partly by the employee using the principle of vicarious lability.
We will also ensure our reforms put an emphasis on personal responsibility. It cannot be right that employers are responsible for damages when they have done all they can to manage the risk.
Not before time. Health and safety is everybody’s responsibility. The next step is for the civil courts to start rejecting spurious claims.
Funny you should bring this up. While channel surfing earlier I came across this TV show (will to live health warning – not for those easily frustrated with modern compo culture). No, it’s not a joke, it’s a real TV show. I can’t say whether it’s good or bad or if it’s balanced or if the lawyers presenting it are ambulance chasers because I didn’t watch, but if I do and I’m overcome by the compulsion to bang my head against the floor until everything goes dark I will of course sue Channel 31 for every cent I can. 😉
As I understand it, currently you can be found guilty on the basis of ‘balance of probabilities’ rather than ‘beyond reasonable doubt’, and you are guilty unless you can prove yourself innocent. Not nice.
You are thinking of section 40 where the defence may claim that it was not practicable or reasonably practicable to do more than was in fact done to satisfy the duty or requirement. A balance of probabilities in that case makes sense as it reduces the burden of proof.
Not that I approve of the reverse burden but we are where we are.
I used to design and construct industrial stapling machines that had, normally hand held, staple or nail guns mounted on them. These would have a jig in which material, usually timber, would be assembled and then by operating a foot pedal the machine would staple or nail the assembly together. The operator would then remove the assembled part and stack it on a pallet before loading it up for the next one. Hand held stapling and nailing guns are potentially quite dangerous and there are accidents from time to time. I sometimes have to write reports on the mechanical condition of a nailer that has been involved in an accident. However, in more than twenty five years I have never heard of an accident involving the machine mounted guns. Despite this I started to have to carry out risk assessements and cover the machines in perspex guards and safety devices, not just to protect the operator but anyone else who could potentially be harmed just by walking past it. The problem as I saw it was that I had to deal with hazards that in the real world were pretty much imaginary. Yes it was possible for someone to sustain an injury but it was about as likely as me becoming the next Pope. Nevertheless I still had to mitigate the possibility as much as humanly possible to cover my arse because all this risk assessing was documented and had my name on it.
I think that health and safety rules have made workplaces much safer overall and if one person gets killed or maimed doing their job that is one too many. I do think though that at some point the whole thing got silly, Maybe because it bypassed common sense.
This is an interesting case from New South wales:
http://www.abc.net.au/radionational/programs/lawreport/the-case-of-graeme-kirk/3115490
Planned Federal harmonisation of Health and Safety laws will remove the NSW reverse burden of proof.
“Hand held stapling and nailing guns are potentially quite dangerous…”
They certainly can be! In the early 70s I got a job in a pallet repositary / repair / manufacturing place in Melbourne. They had nail guns. I’ll never forget them trying to maneuver Some poor sap into the ambulance, 4 ft by 4 ft pallet firmly attached with a three inch nail through the back of his hand! Rather cruelly, we all laughed like drains.
A big problem with a lot of spurious claims is the cost of taking them to court. The last business I had in UK, one of the lads sued me (via one of these ambulance-chasing firms) for an accident entirely of his own making. When the loss adjuster from my insurance company came, he told me that they would pay out (can’t remember how much – 2k I think), even though it was obvious there was no liability on my part, simply because that was the cheapest option, regardless of whether or not they won the case.
It’s no wonder premiums for business are so high.