Debunking health and safety myths

Adam Bernstein

Writer/researcher for independent businesses.

Debunking health and safety myths

— part one

Health and safety law is central to

regulatory intervention. But this wasn’t always so and as a result, myths have become entrenched leaving some unable to tell fact from fi ction. But as soon as an incident occurs, management quickly see the myth-based traps that they have just walked into.

In seeking to counter some of these myths, Adam Bernstein, in a two-part feature, sought the views from two lawyers on where they see problems appearing. In the fi rst part he spoke to Laura Shirley, Head of Eversheds Sutherland Birmingham EHS team.

Myth No.1: We can delegate our liability to our contractor

Many fi rms see the attraction of using contractors. But for Shirley, the ability to pass on liability is not one of them; she observes that for decades there have been prosecutions of those that have failed to properly manage contractors.

As she explains: “The use of contractors forms part of a client’s ‘undertaking’ – that is, the way it runs its business — and therefore invokes a duty of care under Section 3 of the Health and Safety at Work etc Act 1974.”

The natural question is that if the appointment of contractors does little to mitigate liability, why use them at all? There are, of course, two good reasons: contractors are often the experts in what they do; and contractors may be able to ‘bulk buy’ labour in a way that a client cannot.

Nevertheless, Shirley sees a conundrum — accepting a duty of care in a situation when the client does not have the expertise and/or the resource necessary to provide constant specialist support. Helpfully, she says that “the legal duty of care requires clients to do only what is ‘reasonably practicable’.” To this she adds: “There is an acceptance that clients need to rely on the expertise of a contractor in the right circumstances and that a client may need to trust a contractor to ‘do the right thing’ when they are not around.”

As to what is regarded as ‘reasonably practicable’, Shirley points to what has been laid out by the Health and Safety Executive (HSE) — the need to plan work appropriately; select the most suitable contractor; ensure the contractor is provided with the right information; provide suitable monitoring and supervision; and regularly review the contractor’s performance.

Shirley explains that each of the steps should be “proportionate to the risk of the work being performed as well as other factors such as previous experience with the contractor.”

Myth No.2: Mental health at work isn’t regulated and therefore we don’t have any duties under safety law

In the last few years, awareness and education around mental health and wellbeing has improved societal attitudes. This, according to Shirley, “has assisted in reducing the stigma and prejudice associated with these unseen illnesses; the shift in attitudes has encouraged organisations to direct focus on the ‘health’ in health and safety management.”

None of this should be new to management for, as Shirley says, “organisations have a duty to assess levels of work-related mental health issues and implement measures to remove or reduce identifi ed risks as far as reasonably practicable.”

She details how guidance from the HSE focuses on work-related stress but also acknowledges that work can aggravate pre-existing conditions and can bring on symptoms or make them worse. “Organisations,” says Shirley, “often fail to address these risks and frequently well-being in the workplace is forgotten.” She continues, noting that “the number of suicides has increased year on year since 2013. As an unnatural death, they are referred to the Coroner’s Service for investigation.”

Shirley tells how, when considering such cases, enquiries will often extend to the suitability and implementation of workplace well-being frameworks: “A focus on training, signposting of services, disciplinary communications, and line manager checkins to consider workloads and concerns, are all matters that I would seek to explore.” And if there are inadequate procedures and assessments, failures in training managers and educating the workforce on mental wellness, she warns that an organisation may fi nd itself subject to a Prevention of Future Death Report.

Myth No.3: Only companies that don’t care about health and safety have accidents

Any organisation can have an accident have an accident and Shirley knows that accidents at accidents happen when a series of of events or circumstances es come together. Referring ng to what is known as Reason’s Swiss cheese e model, she explains that “an organisation that prioritises health and safety will often have more layers of defence to those factors lining up, but it it does not mean that they ey cannot or won’t line up.” p.”

As she says, “no employer can eliminate te all risks — even the best are est are vulnerable to unwanted events and sometimes the events that lead to an incident are only a hair away from no incident happening at all.”

So why do incidents happen? In answer, Shirley says that there is never usually one reason, but there is usually complacency, stagnation, or a culture that the health and safety job is done. That is why she says that “it is so important for organisations to regard health and safety as an ongoing business critical risk, monitored at the highest levels and periodically revisited.”

A key point she makes is that the “wellknown health and safety risks have been joined by psychosocial risks around work related stress, mental health and well-being that employers are obligated to manage.” For her, it’s only a matter of time before these new risks become subject to enforcement – “the legislation is there to do it.”

In her view, “the real measure of an organisation is how it evolves its culture after an accident to make what is an awful situation into one which puts health and safety at the heart of everything it does.” operation with th their buy-in arrangem encou with sa p p h m t ca “un rules enforce seek to en involve the wo

Myth No.4: Good health and safety advisers just tell people off when things go wrong

For many, references to health and safety conjure up negative stereotypes, and “quite often,” Shirley says, “this includes descriptors about health and safety advisers being ‘fun spoilers’, ‘killjoys’, or ‘bureaucrats.’”

However, in her view, “it’s an unfair, misleading and an unhelpful myth that needs busting.”

She refers to 1972 when Lord Robens published his report into health and safety regulation in the UK. Written in the wake of the Aberfan disaster, six years earlier, “the report recommended wholesale revisions to the old Factory Inspectorate regime which led to the 1990s introduction of new health and safety regulations, and an increase in corporate governance, leadership, and a standards-driven approach to health and safety.”

Further, Shirley notes, “the Management of Health and Safety at Work Regulations 1992 introduced responsibilities upon employers to carry out risk assessments and health surveillance as well as requirements relating to the sharing of information with employees; and competence, capabilities and training.”

Turning to the role of the health and safety adviser, Shirley says it’s “to assist organisations in implementing strategies and control measures that appropriately address risks arising in the workplace, and to ensure that hazards are controlled.”

Notably, she says, the regime requires advisers “ensure that all employees understand the health and safety systems in place within the business, importantly, why and how these are designed to protect them, and what they must do to protect themselves.” The role, says Shirley, necessarily requires “engagement and cooperation with the workforce, to secure their buy-in to those safety arrangements, and thereby encourage compliance with the organisation’s safety policies and procedures.” From her perspective, good health and safety management systems recognise that compliance cannot be achieved by “unilaterally imposing rules and seeking to enforce them.” Rather, they seek to engage, discuss and involve the workforce in those rules and procedures.

Myth No.5: Even if the HSE investigates, unless it prosecutes, we won’t be hit with costs

Following a conviction for a health and safety offence, the HSE will seek to recover its investigation and legal costs. However, it often comes as a surprise that it can also charge for time spent investigating matters that do not result in legal proceedings.

Shirley says that since its controversial introduction in 2012, “when the HSE inspects a company and identifi es a material breach of the law, the company will have to pay a fee for intervention — FFI.” She details how work undertaken by the HSE is recorded on an hourly basis and includes time spent identifying the breach, the provision of advice to rectify the breach and also investigate and take enforcement action.

Shirley explains that a material breach occurs where “the HSE inspector deems it to be serious enough to notify the company in writing… normally in the form of a Notifi cation of Contravention.” That said, HSE inspectors are required to apply HSE guidance to their decisions and any enforcement decision should be based on the principles of the HSE’s enforcement decision-making frameworks. Even so, Shirley says that “the subjective nature of the FFI regime has attracted much criticism.”

She tells how many labelled the scheme as unfair and argued that “it was particularly unjust for the HSE to play judge, jury, and executioner.” But having faced the threat of a Judicial Review in 2017, the HSE introduced an independent panel to decide invoice disputes — “this,” she says, “is generally accepted to be working well and has provided much needed transparency.”

Her advice to companies is to carefully scrutinise FFI invoices upon receipt and raise any queries promptly with the HSE: “With a current hourly rate of £160, FFI invoices can be signifi cant, particularly where multiple site inspections or specialist support is engaged by the HSE for complex issues.”

Next month: More myths are debunked including those relating to COVID, the actions of employees, and fi nes levied.