Health & Safety Management - Getting Started
02 October 2007
Health & Safety Policy Statement
Section 2(3) requires anyone employing five or more persons to prepare and often as maybe appropriate revise a written statement of his general policy with respect to the health & safety at work of his employees and the organisation and arrangements… for carrying out that policy, and to bring the statement and any revision of it to the notice of all his employees.
Additionally under paragraph 5 Management of Health & Safety at Work Regulations 1999 employers are required to:-
5(1) Make and give effect to such arrangements as are appropriate, having regard to the nature of its activities and the size of its undertaking, for the effective planning, organisation control, monitoring and review of the preventative and protective measures.
In theory, the HSE could prosecute over a missing or sub standard Health & Safety Policy. They are unlikely to do so in practice (though they might well serve a formal Improvement Notice). If so, why pay any attention to these requirements? The answer is that a working Health & Safety Policy is much more than a mission statement or high-sounding statement of corporate values. It is a framework for health & safety management within a business. If properly implemented, it should offer a degree of insurance against the costs of accidents, claims and prosecutions. The HSE says a policy is the key to achieving acceptable standards, reducing accidents and cases of work-related ill health and it shows your employees that you care for their health and safety.
The HSE (and Magistrates and Judges) will be unimpressed by a policy which is not followed in practice. The HSE say:-
REMEMBER: what you write in the policy has to be put into practice. The true test of a health & safety policy is the actual conditions in the workplace, not how well the statement is written.
The HSE publishes extensive guidance on preparing a Health & Safety Policy Statement. The previous guidance Stating Your Business (INDG 324) has been superseded by An Introduction to Health & Safety (INDG259), incorporating a sample Health & Safety Policy Document, which is designed for businesses to adapt and complete for their own use. The guidance and sample policy can be viewed and downloaded free from the HSE website at www.hse.gov.uk/pubns/indg259.pdf or obtained free from HSE Books on 01787 881165.
The sample policy statement may appear daunting. Persons with health & safety responsibilities are to be named. The sample policy presupposes that risk assessments are being undertaken and reviewed, consultation with employees is taking place, equipment is being maintained, hazardous substances are being assessed, training is being provided and recorded and first aid, fire and evacuation procedures are in place. The sample policy nominates a person to monitor compliance with safe working practices and investigating accidents. However a business which has gone through the exercise of completing such a document is likely to be well on the way to having health &safety embedded not just in its processes and procedures, but throughout its whole culture. As well as the obvious benefits of reducing the dramatic cost to business of lost productivity due to staff injury, increased insurance premiums and time spent dealing with a civil claim or HSE prosecution, logically reviewing and improving health & safety management should lead to improvements in efficiency and management generally. The same review process can be adapted to embrace other regulatory requirements such as fire safety, control of asbestos and environmental risk.
Clearly some businesses will require much longer and more complex health & safety policy documents than the sample contained in INDG259. There are numerous external health & safety consultants who can assist with drafting a policy in more complex cases. However while it may often be appropriate and worthwhile to use a consultancy, a home grown policy may be best remembering the HSE’s warning that whatever is written in the policy has to be put into practice.
What Happens When Things Go Wrong – A Sentencing Round Up:
In the event of a prosecution, the most common outcome is a fine and an Order for payment of the prosecution legal costs. The more serious breaches will be prosecuted under the following provisions of the Health & Safety at Work Act 1974.
Section 2 Ensuring the health and safety of employees
Section 3 Avoiding risk to the health and safety of non-employees (i.e. visitors, contractors, members of the public etc
Breaches of these provisions attract an unlimited fine on a conviction in the Crown Court, or a fine of up to £20,000.00 in the Magistrates Court where the less serious offences will be dealt with. Sometimes, the HSE will prosecute under applicable regulations, rather than under the Health & Safety at Work Act. The HSE can prosecute several offences at once, for example one under Section 2 HSWA and several more for specific breaches of applicable regulations. For breaches of Regulations, fines are unlimited in the Crown Court, or up to £5,000.00 each in the Magistrates’ Court. As well as prosecuting corporate bodies and partnerships, the HSE can prosecute individuals under section 37 HSWA where an offence has been committed with the consent or connivance of, or to have been attributable to any neglect on the part of any director, manager, secretary or other similar officer. The court has the power to order the disqualification of a director following a conviction under the HSWA. In fatal cases individuals can be prosecuted (and imprisoned) for manslaughter. For example Mark Connolly of MAC Machinery Services was recently imprisoned for seven years for deliberately dismantling the braking mechanisms on his railway wagons, causing them to run away and kill four workers further down the line.
Fines for health & safety offences vary enormously. The average fine in the Crown Court in 2004 was £33,036 (and in the Magistrates only £4,036). There is widespread complaint that these average fines are not high enough. However at the most serious end of the spectrum of offences, the “top five” fines are Transco (£15 million Larkhall gas blast killing four 1999) Balfour Beatty (£7.5 million Hatfield 2000). Network Rail (£4 million (Ladbroke Grove rail crash 31 fatalities 1999\0, Network Rail £3.5 million (Hatfield crash), Thames Trains (£2 million Ladbroke Grove).
There huge fines are a reflection not just of the seriousness of the safety lapses and consequential loss of life, but also of the deep pockets of the defendant companies. This follows guidance in R –v- F Howe & Son (Court of Appeal 6 November 1998) to the effect that:-
The objective of prosecutions … is to achieve a safe environment for those who work there and for other members of the public who may be affected. A fine needs to be large enough to bring that message home where the defendant is a company not only to those who manage it, but also to its shareholders (our emphasis added).
As well as considering the means of the defendant, the court will consider extenuating and aggravating circumstances (a significant example being loss of life resulting from the accident). However recognising that no two sets of accident circumstances (and no two defendants) are exactly alike, the courts do not generally attempt to calculate the fine based on fines imposed in other cases. There may be occasions when it would be appropriate to refer to a fine imposed in another court, but it will always be difficult to draw direct comparisons. It is nevertheless interesting to look at the levels of fine imposed in recent cases and here are a few examples, principally from the British Safety Council’s excellent Safety Management Magazine (subscription only £60.00 per year from this not for profit organisation 0208 741 1231 www.britsafe.org).
Recently AEI Compounds of Gravesend was fined £100,000.00 (plus prosecution costs of £6,479.00) after a twenty five year old worker’s left arm was torn off while cleaning an unguarded machine.
A north east cereals manufacturer was fined what would appear a quite modest £20,000.00 under Section 2(1) HSWA and Reg 3(1) MHSW 1999 after he was requested to drive a fork lift truck although not qualified to do so. As a result of his lack of training, a large waste cereal bin slid onto him, pinning him to the ground, breaking his back, pelvis, leg and ribs and leaving the twenty nine year old father of six paralysed from the waist down. The low fine is perhaps surprising in the light of the injuries sustained a finding that at least ten other employees were allowed to drive lift trucks without adequate training and a previous health & safety conviction.
Following the implementation of the Work at Height Regulations (in 2005), the Control of Asbestos Regulations (November 2006) and the new CDM Regulations (April 2006) the HSE are likely to be keen to prosecute in these areas. Looking first at asbestos Wye Valley Demolition Limited was recently fined £6,000.00 (and ordered to pay prosecution costs of£13,600.00) after admitting breaches of Regulations 10 and 15 The Control of Asbestos at Work Regulations 2002. Asbestos sheeting should have been removed under controlled conditions but was instead smashed to the ground and spread around the site.
The HSE were quick of the mark prosecuting under the new Work at Height Regulations. Only seven days after they came into force a building salvage firm was caught removing tiles from a roof with no risk assessment and no safety equipment such as scaffolding or roof ladders. Even though no one was injured, the company (MB Mills Contractors) was ordered to pay £6,517.00 fine and costs for various breaches.
The new CDM Regulations (in force from April 2007) are perceived as placing increased duties in clients, so perhaps more prosecutions are likely to be seen under the 2007 Regulations compared with their 1994 predecessors. Under the old regs a principal contractor (Allied Construction) was fined £5,000.00 plus costs following the collapse of a wall adjacent to a construction site where excavation was taking place under Allied’s control. The failure to assess foundations prior to excavation, lack of Party Wall Act compliance and poor co-operation with the structural engineer led to a prosecution under paras 14 and 17 CDM 1994. Fortunately the residents of the affected semi-detached house in Leigh-on-Sea were rescued unharmed, when the side of their house collapsed leaving the entire contents on display. More recently in September 2005 Maddox Homes Limited was fined £11,000.00 plus costs for breaches of Section 3 HSWA and additional breaches of the 1994 Regulations relating to planning supervisor competence and adequacy of the Health & Safety plan. If death or serious injury had resulted quite probably there would have been prosecutions under Sections 2/3 HSWA alongside the CDM Regs and far higher fines. The new Fire Safety Order only came into effect in October 2006 and we have struggled to find any examples of prosecutions under the new regime. However under the 1971 Act a restaurant in Whitechapel was recently fined £5,000.00 for each of four contraventions (no fire alarm, no smoke alarm and non fire resistant doors and windows) giving £20,000.00 plus costs of £7,000.00. More examples can be found on Fire Authority websites e.g. www.london-fire.gov.uk\news.
These are just a few examples of the substantial fines and costs imposed on small / medium sizes businesses in non-fatal cases. If the companies concerned had working Health & Safety Policies, the accidents might never have occurred.
For more updates on health & safety and details of forthcoming health & safety environmental seminars and events please contact Andrew Clarke or Judi Underdown for the next issue of our Claims and Health & Safety E Bulletin Accidents Will Happen.
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