Keep your business and employees out of harm’s way
Monday, October 1, 2018
The backbone to the present health and safety regime is over 40 years old and to some it’s generated nothing but a culture of blame while to many others it has made the workplace markedly safer.
No matter the view, few realise that the UK’s tradition of health and safety law spans nearly 200 years, harking back to 1833 with the appointment of factory inspectors.
As for print, statistics from the Health & Safety Executive (HSE) state that some 120,000 work in the sector, mainly in SMEs, and the most common types of accidents involving manual handling (27%), slips and trips (22%) and machinery (22%). The headlines in PrintWeek bear this out. A severed finger at Kenray Forming, death at UPM Shotton, a severe arm injury at GD Web Offset, man killed at RRS Waste Papers and most recently, a fatality at Wyndeham Bicester, show why for print, health and safety cannot be ignored.
The current law
As Mandy Robson, head of health, safety and environment at the BPIF, points out, the present system came into being with the Health and Safety at Work etc Act (HSWA) in 1974: “The effect of this was to provide a unified institutional structure and legal framework for health and safety regulation. While the Act is reviewed over time, there have been many regulations made under the Act.” She points to one in particular, the Management of Health and Safety at Work Regulations 1999, which requires “the employer to carry out risk assessment to identify hazards and controls needed for compliance with the many other health and safety legal requirements.”
Stuart Ponting, a partner in regulatory and compliance at law firm Walker Morris, says the Act places wide ranging responsibilities on business: “There are general duties on employers (and the self-employed) to look after their own safety, that of their employees, and others including members of the public.”
As he notes – and those in print will understand – health and safety law is in most cases enforced by the HSE and local authorities. “These organisations employ specialists who have significant powers to ensure businesses comply with health and safety legislation and will take action when businesses don’t.” What should worry employers is that the powers of inspectors include rights of access, the right to obtain or retain evidence, prohibit activities where there are serious and uncontrolled risks of harm and, in appropriate circumstances, prosecute for breaches of the law.
The impact on print
The problem that printers face is that the law introduced a reverse burden of proof. “The principle at play here,” says Robson, “is that the law requires a business to show that it did everything that was ‘practicable, or so far as reasonably practicable, or to use the best practicable means to do something’.” If they cannot show this then guilt is established.
Even so, Bud Hudspith, national health and safety adviser at the union Unite, considers the problem for print from another angle – the lack of any national forum for the subject. He explains that the HSE withdrew from a forum that debated the matter some years ago – “Unite has been attempting to re-introduce such a forum, but this has been resisted by the HSE, because, we believe, of a lack of resources.”
From Unite’s perspective, he says that “the HSE is seriously under-resourced at present and Unite believes that the government needs to reverse the cuts and that there should be a greater emphasis on enforcement against those print employers who fail to meet basic health and safety standards.”
With this in mind, Ponting says that firms must look at the risks that exist in their business and either eliminate them completely or reduce them to a tolerable level. “Firms ought to appoint a specialist health and safety manager – known as the competent person – and create clear, documented policies and procedures on a whole host of health and safety issues.” He adds that businesses need to ensure that employees are competent for the work they are undertaking and that they are properly supervised and managed.
Robson adds that it is vital that employers make sure that processes are in place to minimise the risks employees are exposed to – “this may be through performing risk assessments, looking at control methods and ensuring competence through ongoing training and development.”
Significantly, she says that if a company employs five or more people they must have a written health and safety policy along with providing a health and safety law poster or leaflet.
Training, supervision and monitoring are also critical. Ponting thinks that businesses “should develop a positive and open safety culture, should invest in proper accident reporting and investigation and where things don’t always go right, swiftly learn their lessons and take corrective actions to avoid a recurrence.”
Naturally policies and process involve cost and it’s understandable, as Ponting explains, that businesses often assess risk according to a cost/benefit analysis. Even so, there’s no getting away from the need to “properly manage the risks they identify, whenever and wherever possible.”
Further, with certain regulations applying to given sectors, Ponting says that the onus is on the business to “always check whether there are any specific regulations that apply to them and have in place a mechanism for identifying any new legislation which may affect them.”
He warns that some of the regulations involve strict liability, “which means a business must meet the requirements of the regulations whether or not it is difficult, or expensive, to do so.”
And Robson agrees. She says that clearly print is no different to any other industry as far as health and safety is concerned. She outlines the likely risks as including work equipment, guarding controls and inspections; COSHH and hazardous substances; fire safety; workplace transport and management of forklift trucks; working at height; noise management; manual handling and repetitive work; slips, trips and falls; electricity and gas; and asbestos management and controls.
But Ponting puts individuals on notice too. “It is a mistake to assume that health and safety legislation only applies to businesses, this is far from true. HSWA places duties on individuals as well as businesses and perhaps most importantly, places legal duties on each and everyone as employees.” Section 7 of the Act is the marker here – it places a clear legal duty on everyone to take reasonable care for their own safety whilst at work and those who might be affected by their acts or omissions – directors, managers and those in similar positions have additional duties. “So,” says Ponting, “we can’t solely rely on our employers to ensure our safety – it is a joint effort and a joint responsibility.”
Ignorance of the law is no excuse, especially as, Hudspith comments, “the vast majority of health and safety duties fall to employers.” In Unite’s experience, the answer to health and safety problems “lies with employers putting right their systems for dealing with health and safety. Far too many employers are ignorant of their basic duties”.
Robson reckons the counter to this is a suitable safety management platform that controls operational procedures and arrangements throughout the business. If this isn’t in place she says, “urgent help should be sought to create a gap analysis of current working procedures.” The importance of this cannot be understated: it protects employees within the business from injury or illness, but also ensures the company remains on the right side of any claim or HSE visit to site.
It’s for this reason that Ponting advises that not following the law is not an option. “Failing to adhere to safety legislation places everyone at risk and has numerous serious consequences not least of which is the risk of an accident leading to injury or death.” But failing to comply also results in both individuals and businesses being prosecuted and convicted for their failures – “after long protracted criminal investigations, uncomfortable interviews, as a defendant in the Crown Court.”
The most obvious consequence of non-compliance is the possibility of being fined. Robson warns that “fines for the most serious safety breaches can routinely fall within the hundreds of thousands of pounds. And they can end up being a costly exercise as those convicted will need to pay not only their own legal costs but also those of the prosecution.”
As already noted, while a business will face the music, so will individuals who can be imprisoned for breaches of health and safety law, with sentences of up to six months in the Magistrates’ Courts and up to two years in the Crown Courts. Both employers and employees can be prosecuted under criminal law, sometimes simultaneously.
There’s also the risk to the company brand and reputation which can result in the loss of business. Robson points out that “customers are now asking for the completion of tender questionnaires as standard which will review the company safety arrangements, with the review of any safety convictions prior to engaging in business with them.” She warns that the damage caused to a reputation by a criminal conviction could last longer than the initial financial outlay.
Further, breaches may result in the company being closed down until errors have been rectified with the consequent loss in production.
From experience Ponting says that “it is often businesses who have established a good safety culture and achieved low accident rates who then seek to reduce their investment based on the perception that there are few safety risks – but this is exactly the wrong time to reduce investment.” It’s something that Hudspith might see reason in; he reckons that it is extremely rare for accidents or incidents to be caused through the fault of workers. In his view, “workers are generally the victims of failings on the part of employers.”
The harsh reality is that the law cares not for excuses.
PUTTING POLICY INTO PRACTICE
Risk assessments are at the core of good health and safety management. In practical terms, a risk assessment is the process of looking at places and processes, those who could be affected, analysing the hazards and risks involved, and how to control them. Risk assessments should be carried out by a competent person.
There are five aspects to consider.
Identify the hazards Employers have a duty to assess the health and safety risks faced by their workers including possible physical, mental, chemical and biological hazards.
Example physical risks involve lifting, awkward postures, slips and trips and noise. For mental risks excessive workload, high-need clients and bullying should be examined. Chemical risks include asbestos, cleaning fluids and aerosols. Biological risks are not likely to be an issue for print.
Who might be harmed, and how? This includes full and part-time employees, agency and contract staff, visitors, customers and members of the public on the premises.
Employers must review work routines in all the different locations and situations where their staff are employed. Employers also have special duties towards the health and safety of young workers, disabled employees, nightworkers, shiftworkers, and pregnant or breastfeeding women.
Evaluate the risks and decide on precautions Employers must consider how likely it is that each hazard could cause harm. This will determine whether or not the employer should reduce the level of risk. Even after all precautions have been taken, some risk usually remains. Employers must decide for each remaining hazard whether the risk remains high, medium or low.
Record your findings and implement control measures Employers with five or more staff are required to record in writing the main findings of the risk assessment. This record should include details of any hazards noted in the risk assessment, and action taken to reduce or eliminate risk. This record provides proof that the assessment was carried out and is used as the basis for a later review of working practices. The risk assessment must be available for all to read; it should not be locked away in a cupboard.
Regularly review assessment A risk assessment must be kept under review in order to ensure that agreed safe working practices continue to be applied (e.g. that management’s safety instructions are respected by supervisors and line managers); and take account of any new working practices, new machinery or more demanding work targets.
Create method statements
Risk assessments may show a need to document a safe system of work to reduce risk. In contrast, a method statement is not required by law but describes in a logical sequence exactly how a job is to be carried out in a safe manner and without risks to health. It includes all the risks identified in the risk assessment and the measures needed to control those risks. This allows the job to be properly planned and resourced.
Bring in competence
A competent person is someone who has sufficient training and experience or knowledge and other qualities that allow them to assist the employer properly. The level of competence required will depend on the complexity of the situation and the particular help that is needed.
Being investigated by the HSE?
The most important thing to do is to remain calm, welcome the inspectors into the business and respond to any of their questions without diverting into differing areas of the business which could cause confusion.
An inspector on site may ask about the workers and what they do; look at any possible health risks arising from the work they are doing; look at any machinery or other equipment that is used; ask to see records or other documents; and take photographs
The inspector may want to know about the main health and safety issues in the workplace; the management teams knowledge or experience of health and safety; and health and safety standards, guidance and everyday practices within both the company and the industry.
It’s important, therefore, for the firm to ensure that relevant employees are aware of the best contact within the management to respond to an HSE inspector visit and to ensure their contact details are available to prevent delay. It’s also vital that those responding to the HSE visit remain focused and do not hide any information following the HSE request.
Allow the HSE to set the agenda whilst on site as they may charge for their time on site if they find any significant uncontrolled hazards.
Time is of the essence, so employers should remain focused and ensure all health and safety information is to hand to provide any documentation quickly and efficiently. Do not discuss subjects not highlighted by the HSE as this may defer the HSE’s agenda and create additional costs for the company.
Being investigated following an incident requires specialist support from experienced safety professionals and legal support from specialist solicitors. Handling an investigation properly can both limit and potentially avoid any subsequent enforcement action being brought. Immediately after an issue arises, employers should seek out professionals for support and guidance; waiting until it is clear there is a significant issue is usually too late. Businesses shouldn’t wait until an incident occurs either. One of the keys to survival is being prepared, practising how to be prepared for and respond to an incident rather than having to try and get it right, first time, in the aftermath of an incident.
The HSE has a dedicated webpage for the sector at hse.gov.uk - Health and safety in the printing industry. There are pages with detail on matters such as manual handling, chemicals, noise, dermatitis, fire and explosion.