Working at Height
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IN THIS ISSUE |
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WELCOME |
In this issue I want to bring your attention to the latest developments regarding working at height. It is an aspect of health and safety that is of great concern to the HSE because of the number of accidents and incidents that are still occuring.
For example, according to HSE figures for 2003/2004, there were 67 deaths in the UK and almost 4,000 serious injuries associated with working at height. That makes it the major cause of workplace deaths in the UK. It is little wonder, therefore, that it is central to the HSE’s Injuries Reduction Programme.
Another piece of legislation that has been in the news lately, though it is still some way from being added to the statute book, is the draft Corporate Manslaughter Bill. You need to be aware of current government thinking on this matter and at present, you can still express your views on its content and maybe influence its final form. Consequently, I have included a few comments about it under the Legal Monitor section.
Pick up the phone and give us a call if you want to know more about any of the items in this issue, or contact us by using our convenient Enquiry Form.
David Skews, (CEO)
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WORKING AT HEIGHT |
April of this year saw the introduction of revised health and safety regulations for working at height. The aim of the revision is to consolidate previous legislation as well as to implement a European Council Directive concerning the use of equipment when working at height.
As a general principle, the revised regulations apply to most work situations where people are required to work at height. They do not apply, however, to most recreational activities such as climbing or caving.
One of the most discussed items that changed with the introduction of the revised regulations is that the ‘two metre’ rule has been dropped. This stated that the original Work at Height regulations applied to any work that was carried out at two metres or more above ground level. Effectively, two metres was the definition of working at height.
This has now changed such that work at height is defined as working at a place from which a person could be injured by falling from it, regardless of whether it is above, at or below ground level. The reason for the change is that, from past experience, there have been more injuries from low level falls (i.e. less than 2 metres) than from high level falls. Consequently, organisations must now take precautions under the new regulations, regardless of the height.
The Problem
Whilst faulty equipment is responsible for some accidents arising from working at height, experience shows us that this is not the major cause. It would seem that most accidents occur as a result of poor management control, which includes such failures as:
- Not recognising that a problem exists before it results in an accident
- Not designing and enforcing safe systems of work
- Not providing adequate information, instruction or training
- Poor supervision
- Not providing appropriate equipment or not using the right equipment for the job
Taking Precautions
When it comes to taking precautions to avoid accidents, the HSE proposes a simple hierarchy of measures, namely:
- If possible, organise the work to avoid the need to work at height
- If working at height cannot be avoided, implement measures to prevent falls
- If falls cannot be prevented, employ equipment and measures to minimise the height and the consequences of a fall, should it happen.
The new regulations lay down specific responsibilities for the employer and the employee:
Employers’ Responsibilities
As with all health and safety, when working at height, safety begins with the employer, who is expected to do all that is reasonably practicable to avoid accidents and minimise the adverse consequences of any accidents that do occur. This requirement implies that Risk Assessments have been carried out in accordance with the Management of Health and Safety at Work Regulations.
Doing what is reasonably practicable includes such actions as:
- Planning the work properly
- Taking account of prevailing conditions such as poor weather.
- Providing a safe place to work, which includes taking additional precautions where there are fragile surfaces to contend with.
- Ensuring employees are properly trained and are competent to carry out the work safely
- Conducting adequate inspections of workplaces, equipment, means of access, etc
- Eliminating any risk of injuries as a result of falling objects
In addition, the employer should maintain adequate records of risk assessments, inspections, precautions that have been put in place and, of course, any accidents or incidents that occur in spite of everyone’s best efforts.
There’s a range of schedules attached to the regulations that provide guidance on the requirements that apply to each aspect of working at height such as fall prevention, working platforms and use of ladders.
In some cases, employers may be able to apply for exemptions to aspects of the regulations if it can be shown that strict adherence would prevent the work from being done or might result in other types of risk. However, if such exemptions are granted, it will only be on the basis that additional precautions have been implemented that are sufficient to compensate for the exemption.
Employees’ Responsibilities
Not all the responsibilities lie with the employer. Employees must also take care of their own health and safety and that of their colleagues.
In particular, every employee must, by law, report any health and safety hazards that they identify in regard to working at height. Merely ignoring a hazard and “hoping for the best” is not an option. Employees must also make proper use of all equipment that is provided for their safety.
Finally employees must follow the training and instruction they have received unless the circumstances would render it unsafe to do so. When this appears to be the case, the employee must report the fact and seek further instruction before continuing with the work.
Conclusion
It is probably true to say that very little change is needed for any employer who has managed work at height in a responsible manner in the past. However, based on the accident figures, it seems that there are still too many instances where the standard of management leaves much to be desired.
If you are responsible for a site and you are unsure whether or not you comply with the law, you need to conduct a comprehensive risk assessment as a matter of priority.
Pick up the phone now and give us a call. Describe your situation and what you consider may be a cause for concern and let us advise you about the best way to proceed.
See edpFRAMEWORK for a broader perspective on Managing Health & Safety
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CASE LAW |
Falling from Height Injury
When it comes to health and safety, you cannot be too careful. If an accident occurs, it is no defence to claim that everything was “almost” correct.
Take, for example, a recent case in which a 42 year old window cleaner was left wheel-chair bound after falling 25 feet from an elevated platform.
The intention was that the worker would clean the windows from a cage that was attached to a spider lift. However, he failed to attach the cage correctly and when it swung against the wall it became detached – resulting in the accident and the back injury.
The employer, Mitie Cleaning, had all their paperwork in order, including a risk assessment and a method statement, which stated that only trained operatives should use the spider lift.
In addition, the shopping mall that had contracted to have their windows cleaned had their own risk assessment, which required that a permit to work system should ensure that only trained operatives used the equipment.
The employee had used similar equipment in the past but only in the presence of a trained operator. He had not received the appropriate training himself. Consequently, when he was permitted to operate the equipment, resulting in the accident, both his employer and the shopping mall were fined (a total of £65,000), along with prosecution costs of £30,000 each.
In this case, risk assessments, method statements, permits to work, combined with previous experience of the employee were not considered sufficient by the court. The man should have been trained and he hadn’t, resulting in a very expensive court case.
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LEGAL MONITOR |
Corporate Manslaughter Bill
On 23rd March 2005 the government published its long awaited draft Corporate Manslaughter bill. This was first mooted as long ago as 1997 and has seen a number of “false dawns” since then.
The reason for the bill is that in spite of more than 300 deaths a year due to work related incidents, under current legislation it is particularly difficult to secure a conviction when corporations are involved. At present this area is covered by the crime of involuntary manslaughter – an offence that’s difficult to apply to companies and corporations.
Under existing legislation it is necessary to first demonstrate that a senior person within the organisation is responsible for a fatality (i.e. guilty of gross negligence) before any case can be made against the corporation. The bigger the organisation, the more difficult it is to prove a case against an individual director or senior manager and therefore it is rare for a successful case to be brought against a corporation.
As a consequence, despite such high profile disasters as the Zeebrugge Ferry disaster, the Bradford City fire, the Southall and Paddington rail crashes, and others, it has proved impossible to prosecute those responsible.
The draft bill aims to address the problem through a new offence that targets a company’s strategic management for failures that result in death. However, it needs to be appreciated that the title of the bill is Corporate Manslaughter. In other words it addresses the responsibilities of corporations rather than individuals and therefore the only viable penalty is an unlimited fine rather than a custodial sentence. If individuals are to be prosecuted then it must happen under existing legislation.
The bill is still in draft form and the government has set a date of the 19th June 2005 for comments to be made about the proposal. Consequently, it is not possible to state precisely what will be included in the eventual legislation. However, the draft document indicates the following:
- The legislation will apply throughout England and Wales. The Scottish parliament has its own plans for legislation in this area. Furthermore, the bill does not cover fatalities that occur abroad, even if the company is registered in the United Kingdom.
- The bill only addresses the prosecution of corporations and government departments (with a few exceptions). It does not apply to individuals such as company directors or other senior people in the organisation. For this reason, there are some voices that question the effectiveness of the proposed bill in terms of reducing the level of work related deaths, since management failures are ultimately due to the acts of individuals rather than organisations.
- In terms of penalties, these are restricted to fines though there is no limit on the level of fines that can be imposed. In addition, it will still be possible to impose remedial orders on a company to ensure that the cause of a fatality is properly addressed.
So where does the proposal go from here? First of all the draft bill will be subject to scrutiny with the aim of improving it before it is formally presented to parliament. The committee that is set up to undertake this scrutiny will be able to receive written submissions from any persons who wish their views to be taken into account. Once this ‘pre-legislative scrutiny’ is complete, the bill will be submitted to parliament through the normal process.
No timetable has yet been set for these steps and consequently it is not possible to forecast when the bill will eventually become law. However, the process now appears to be well under way and it is time for every employer to consider what the implications are likely to be for their organisation.
For informed professional guidance on what the new bill might mean for you, give us a call or e-mail your requirements.
All our legal pages are worth a visit, but Changes to Health and Safety Law is particularly useful since it alerts you to upcoming new and amended acts and regulations for which you may need to be making preparations.
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David Skews, (CEO)
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EDP Health Safety & Environment Consultants Ltd
Lakeside, Alexandra Park, Prescot Road, St. Helens, Merseyside, UK
Telephone: +44(0)1744 766000
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