Rationalising health and safety law

Self-employed people in low-risk occupations will be among the first to benefit from a wholesale revamp of health and safety regulation, which has been promised "sooner rather than later" by employment minister, Chris Grayling, in response to 'Reclaiming health and safety for all: An independent review of health and safety regulation'.

While the review by Professor Lofstedt concludes that the regulatory regime offers vital protection for employees and the public, it identifies factors such as inconsistent enforcement and the influence of third parties that drive businesses beyond what the regulations require and generate excessive paperwork. It makes a total of 26 commendations, of which the following five are being acted upon as a priority:

1. 1) The Health & Safety Executive has been asked to take urgent action to draw up proposals exempting from health and safety law those self employed people in low risk occupations that represent no risk to others.
2. 2) HSE will review its Approved Codes of Practice (ACoP), which, according to Lofsted, are often written in a legalistic manner that confuses, rather than helps, duty-holders. The initial phase of the review should be completed by June 2012.
3. 3) HSE is to undertake a programme of sector-specific regulation consolidation that will reduce the number of regulations by more than 50%, without reducing protection.
4. 4) HSE will be given the authority to direct all local authority health and safety inspection and enforcement, ensuring consistency and the targeting of the most risky businesses.
5. Regulatory provisions that impose strict liability should be reviewed by June 2013 and either qualified with 'reasonably practicable' where strict liability is not absolutely necessary or amended to prevent civil liability attaching to a breach.

Mr Grayling also announced that the government will form a new panel, where businesses can challenge the decisions of health and safety inspectors and get them overturned immediately if they have got it wrong.
'Reclaiming health and safety for ail: An independent review of health and safety regulation' (Cm8219) is available - at £16.75, from The Stationery Office; tel: 0870 600 5522 - or online, at http://tinyurl.com/bizinf51m67 - pdf.

'The Government response to the Lofstedt Report' is at http://tinyurl.com/bizinf516c7 - pdf. Additional background information is at http://tinyurl.com/blzinf5167p (DWP Information Orderline; tel: 0845 7313233: HSE Infoline; tel: 0845 345 0055).

Make sure you regularly inspect equipment

Two construction companies must pay a total of £125,000 in fines and costs for failing to ensure that a cherry-picker, which was involved in a fatality, was safe for use. Amey Infrastructure Services Ltd and Mouchel Parkman Services Ltd were working as a joint venture to carry out maintenance work on the A5036 Princess Way, in Seaforth. A team of six workers were cleaning and replacing the lights on the central reservation when the incident took place on 20 August 2006.

Peter Cole, 61, was employed by Amey Infrastructure Services and was part of the maintenance team working on the dual carriageway. He had repaired one of the lights from inside the basket of a cherry-picker when, as he was being lowered, the vehicle’s lifting arm collapsed. He fell eight metres and landed on the back of the vehicle. He was taken to hospital but died from his injuries the next day.

The HSE’s investigation learned that the cherry-picker, which was one of three identical vehicles rented from Highland Access Ltd, was nine years old and had a lengthy maintenance record. The joint on the cherry-picker’s arm had progressively degraded as a result of exposure to the elements, and, consequently, it could not cope with the force exerted when lowering Mr Cole.

Inspectors also found that Amey Infrastructure Services and Mouchel Parkman Services had a system in place that required the vehicles to be inspected daily, but these checks weren’t consistently carried out. During inspections of the two other hired cherry-pickers, the HSE found faults with the emergency stop mechanism on both vehicles. As a result, both companies were issued with two Prohibition Notices, which required both vehicles to be taken out of service until they were repaired.

HSE inspector Dave Guyers told SHP that both companies should either have ensured that newer cherry-pickers were used, or made sure that regular safety checks on the existing hire vehicles were carried out continuously. He said: “Both companies had a legal duty to ensure Mr Cole remained safe but their checking and maintenance systems were inadequate, and thus allowed him to use a cherry-picker that was in a poor condition.

“Heavy usage and a regular repair record demand that checking and maintenance procedures are carried out thoroughly. This is vital with cherry-pickers, which place users at great risk when working at height.”

Amey Infrastructure Services appeared at Liverpool Crown Court on 1 December and pleaded guilty to breaching s2(1) of the HSWA 1974. It was fined £30,000 and ordered to pay £32,500 in costs. Mouchel Parkman Services appeared at the same hearing and pleaded guilty to breaching s3(1) of the HSWA 1974. It was ordered to pay the same level in fines and costs. In mitigation, both firms said they had cooperated with the investigation and have subsequently hired new equipment, ensuring that daily checks are carried out on the vehicles.

After the hearing, a spokesperson for Amey Infrastructure Services said: “This case arises out of an accident that occurred over five and a half years ago. The judge noted that none of the acts, or omissions were in any way causative of the death of Mr Peter Cole.” The HSE also brought charges against Highland Access Ltd but the company went into liquidation in July and the case is no longer being pursued.

Source: SHP

Government vows to restore clarity to health and safety regime

The Government has announced an immediate consultation on the abolition, consolidation and further review of large numbers of health and safety regulations and aims to remove the first rules from the statute books within a few months.

The announcement follows the publication today (28 November) of Professor Ragnar Löfstedt’s review of health and safety legislation and the Government’s response.

A major change is the establishment from 1 January of a new challenge panel, which will allow businesses to get the decisions of health and safety inspectors overturned immediately if they have got it wrong. However, a DWP spokesperson confirmed to SHP that this is the Government’s interpretation of a specific recommendation in the report, which made no mention of inspectors’ decisions being challenged; rather, Professor Löfstedt proposes that the Government look at introducing a challenge mechanism that allows for cases of incorrect and over-application of health and safety legislation to be addressed.

In general, Prof Löfstedt found that the problem lies less with the regulations themselves and more with the way they are interpreted and applied. Nevertheless, noting that the sheer mass of laws is a key concern for businesses, the report recommends that the HSE undertakes and completes a programme to consolidate sector-specific regulations by April 2015.

In supporting the recommendation, the Government said that, combined with ongoing HSE plans, the consolidation programme would reduce the number of health and safety regulations by more than 50 per cent.

The HSE has also been told to draw up proposals for changing the law to remove health and safety burdens from the self-employed in low-risk occupations, and whose activities represent no risk to other people. The Government said this would bring Britain in line with other European countries and will free around 1 million people from “red tape without impacting on health and safety outcomes”.

It also insisted that where activities of self-employed people could pose a risk to themselves or others – for example, in the building trades – health and safety laws would continue to apply.

Very few laws are to be revoked, but those identified as strong candidates for the scrapheap include the Notification of Tower Cranes Regulations 2010 – because there is no evidence of quantifiable benefits to health and safety outcomes – and the Construction (Head Protection) Regulations 1989 – because they duplicate the responsibilities set out in the PPE Regulations 1992.

The review also recommends amendments to a number of regulations, including: the Health and Safety (First Aid) Regulations 1981 – to remove the requirement for the HSE to approve the training and qualifications of appointed first-aid personnel; RIDDOR 1995 – to provide clarity for businesses on how to comply; and the Electricity at Work Regulations 1989 – regarding the regularity of PAT testing.

In addition, to provide further clarity, especially for smaller businesses, the HSE is recommended to review all its Approved Codes of Practice, and to have completed an initial review phase by June next year.

The role of the HSE in relation to local authorities should also be significantly strengthened, says Professor Löfstedt, not only to address inconsistencies in enforcement but also to ensure it is targeted at workplaces that present the highest risks.

Despite all this extra work sent its way, the HSE said it would meet the timescale for completing all recommendations for which it is responsible. However, asked if the regulator will be given more resources to carry out its expanded role, a DWP spokesperson said it could not comment on budget issues at present.

Professor Löfstedt said: “A transfer of responsibility to HSE may risk losing the synergies with other local-authority enforcement responsibilities but it will ensure that activity is independent of local priorities and concerns and clarify the distinction between health and safety and other regulatory issues, such as food safety and environmental protection. This will, in turn, provide greater assurance and consistency for businesses.”

On Europe, the Professor found no evidence of gold-plating but conceded that the scope for changing health and safety regulation is severely limited by the requirement to implement EU law. His report nevertheless recommends that the Government works more closely with the European Commission – particularly during the planned review of EU health and safety legislation in 2013 – to ensure that both new and existing EU health and safety legislation is risk-based and evidence-based.

Finally, while recognising that the Government is in the midst of undertaking an overhaul of the civil justice system, the review also says the status of pre-action protocols needs to be clarified and strict liability provisions should be reviewed. The Professor found that, often, employers are encouraged to settle compensation claims if all the paperwork related to pre-action standard disclosure lists is not in place, regardless of their overall compliance record and despite the fact that minor non-compliance should not be viewed too strictly.

IOSH said it supported the streamlining and simplification of regulations but is keen to find out how the Government intends to reduce the number by half without increasing the risks to workers and members of public.

Speaking at the launch of the review in Whitehall this morning, the Institution's chief executive, Rob Strange OBE, said: "We are also concerned about the proposed exemption of self-employed people from health and safety obligations. This approach seems to contradict the development of a more risk-aware society, which the report is keen to promote."

The TUC described the report as “a missed opportunity” to consider positive steps to improve Britain’s health and safety record.

Its general secretary Brendan Barber said: “There is little doubt that removing the self-employed from the regulations will increase their risk of illness and injury and lead to a rise in the number of bogus self-employed in sectors like construction.”

Acting general secretary of UCATT George Guy added: “This proposal from Löfstedt would be disastrous if implemented in the construction industry. Workers would not know if they were covered by safety legislation. While, companies would try to divest themselves of safety duties, by increasing the number of false self-employed workers. Already construction companies all too often fail to comply with basic safety legislation and this proposal will make a bad situation far worse.”

EEF, the manufacturers’ organisation welcomed the report, not least the call on the Government to take action at a European level.

On the challenge panel, the body’s head of health and safety, Terry Woolmer, added: “This is a welcome step which will allow businesses to get the decisions of health and safety inspectors overturned immediately if they have got it wrong. However, it is unclear how this will work alongside the existing appeals process for enforcement notices, or the intended appeals process to be set up as part of HSE’s proposals for cost recovery and ‘fees for intervention’. Perhaps more thought is required before this is implemented.”

To download the full report, Reclaiming health and safety for all: An independent review of health and safety regulation, go to: http://www.dwp.gov.uk/policy/health-and-safety/#review

Source: SHP

Proposed changes to Asbestos Regs.

The HSE are proposing 3 categories of work on asbestos. These are:

• Non-notifiable licenced work (NNLW)
  
• Notifiable licenced work
• Licenced work (notifiable by default)

These are the proposed definitions of these categories:

Proposed non-notifiable, non-licenced categories

Regulations 9 (notification of work with asbestos) and 22 (health records and medical surveillance) do not apply where the exposure of employees to asbestos is sporadic and of low intensity; and

1. It is clear from the risk assessment that the exposure of any employee to asbestos will not exceed the control limit; and
2. The work involves:
   

i) short, non-continuous maintenance activities in which only non-friable materials are handled, or

ii) removal without deterioration of non-degraded materials in which the asbestos fibres are firmly linked in a matrix, or

iii) encapsulation or sealing of asbestos-containing materials which are in good condition, or

iv) air monitoring and control, and the collection and analysis of samples to ascertain whether a specific material contains asbestos.

Proposed notifiable, nonlicenced categories

HSE’s initial view is that NNLW will normally include, (assuming in all cases exposure is sporadic and of low intensity and will not exceed the control limit):-

• Minor maintenance work involving asbestos insulation where the work to be done meets the definition of ‘short duration work’, ie. work which does not require a licence. For example, repairing minor damage to a small section of pipe insulation where the exterior coating has been broken or damaged.
• Minor removal work involving AIB where the work to be done meets the definition of ‘short duration work’, ie. work which does not require a licence. For example, removing AIB panels fixed with nails or screws. (Note: the definition ‘short duration work’ will only apply to asbestos insulation and AIB)
• Removal work involving textured decorative coatings where the method of removal requires deterioration of the material. For example, where the material is treated by steam, hydrating gel etc and scraped off the underlying surface.
• Removal of asbestos paper and cardboard products if not firmly bonded in a matrix.
• Maintenance work on asbestos cement (AC) which cannot be described as short and non-continuous, but which does not require a licence because exposure is sporadic and of low intensity and will not exceed the control limit.
  
• Removal of AC which is substantially degraded eg. badly fire damaged material, or where significant breakage (deterioration) is unavoidable to achieve removal, but which does not require a licence because exposure is sporadic and of low intensity and will not exceed the control limit.
  

NNLW will not normally include the following, which will continue to be categorised as non-licensed work, (assuming in all cases exposure is sporadic and of low intensity and will not exceed the control limit) :-

• Short, non-continuous maintenance work involving AIB which is in good condition. For example, drilling holes in AIB to attach fittings or to pass through cables/pipes, cleaning light fittings attached to AIB, repairing very minor damage, eg a single broken corner, lifting ceiling tiles for inspection or access purposes.
• Short, non-continuous maintenance work on AC.
• Removal of AC. Weathered AC is likely to be able to retain the vast majority of fibres in its matrix and so should not normally be regarded as degraded. Most AC can be removed whole and the inadvertent breakage of the occasional piece during manual removal will not attract NNLW requirements.
• Short, non-continuous maintenance work on textured decorative coatings. For example, drilling holes, inserting screws.
• Removal of textured decorative coatings when this can be achieved without deterioration of the material eg. by careful cutting around backing sheets to achieve removal intact.
• Removal, for example, of gaskets or asbestos rope cords from heating appliances which can be left in situ for disposal or can be lifted out virtually intact, without substantial breakage.
• Short, non-continuous maintenance work on clutch discs, brakes, friction products etc unless significant damage (deterioration) is required eg. by power tools.
• Work to enclose or seal asbestos materials which are in good condition (and which does not require a licence).
• Air monitoring and control, and the collection and analysis of samples.

Licenced categories

Licensable work with asbestos is—

• work where the exposure of employees to asbestos is not sporadic and of low intensity; or
• work for which the risk assessment demonstrates that the control limit will be or is liable to be exceeded; or
• work on asbestos coating; or
• work on asbestos insulating board or asbestos insulation for which the risk assessment demonstrates that the work—

(i) is not sporadic and of low intensity; or

(ii) will be or is liable to exceed the control limit; or

(iii) is not short duration work

'Alchemist’ jailed after experiment goes wrong

A man has admitted arson and endangering the lives of others after trying to turn his own faeces into gold.

Paul Moran has been jailed for three months after an experiment caused around £3,000 worth of damage to his housing executive home in a block of flats at Derrin Park in Enniskillen, Northern Ireland in July.

Moran left his faeces, along with other waste products such as fertiliser on a heater, which then caught fire.
Moran admitted arson and endangering the lives of others.

At Enniskillen Magistrates’ Court, his honour Judge McFarland told him: “Rather bizarrely you were attempting to make gold from human faeces and waste products. “It was an interesting experiment to fulfill the alchemist’s dream, but wasn’t going to succeed.”

Moran’s barrister, Des Fahy, agreed that the case was bizarre. He said Moran was a man of considerable intellectual ability but there was a clear problem over the years relating to drug abuse. Moran will spend a further 12 months on licence when he is released.

Source: Info4Fire

Waste Regs. change (already)

The Waste (England and Wales) (Amendment) Regulations 2011 specify a change but this only affects waste with ionising radiation properties, ie nuclear. SSS will not change the register of legislation now but will include it in the next change.

Civil vs. Criminal liability

There's an interesting article in SHP On-Line. This includes the paragraph:

"For a defendant to be guilty of a criminal offence the jury must be sure of his guilt: it must be ‘beyond reasonable doubt’. So, in statistical terms, the probability that the defendant is innocent must be very small. Civil liability, on the other hand, is determined on a ‘balance of probabilities’ – i.e. the defendant is liable even if the probability that he is innocent is 49 per cent."

So, another reason to be beware of civil cases.

RIDDOR phone reporting changes 12th Sept. 2011

From 12th September, you will only be able to use the phone to report fatal and major injuries and incidents to the Health and Safety Executive (HSE). You will have to report all other work-related injuries and incidents via one of a suite of seven online forms available on HSE’s website.

Also, later in September, HSE’s Infoline telephone service which currently provides a basic information service to callers will end.
Instead, from 30 September, those seeking information and official guidance will be directed to HSE's website which the HSE state as being a huge knowledge bank where you can access and download resources and use interactive web tools free of charge.

What are the benefits of OHSAS certification?

Many organisations might have a health and safety policy and manual but, often, they simply pay lip service to health and safety. Increasingly, prospective clients are demanding proof that health and safety controls are also effective.

OHSAS 18001 provides an approved 'best-practice' framework for delivering a practical workable solution to reduce risk across an organisation.

Those organisations that create, implement and comply with a health and safety management system compliant to OHSAS 18001 will have a structure in place that provides reassurance that all necessary policies, procedures and controls are in place to continuously , improve health and safety. Businesses that decide to achieve certification benefit from both an operational and commercial perspective. Operationally, a culture of health and safety will create a greater awareness of risks to the business, employees and stakeholders. As a result, a proactive approach to preventing incidents and reducing risk is embedded into day-to-day working life.

Commercially, organisations benefit not only by demonstrating a commitment to health and safety internally, therefore resulting in cost savings through less absenteeism and claims, but also by showing a commitment to other stakeholders, particularly clients and prospective customers. In many sectors, certification to OHSAS 18001 is so well regarded it has now become a pre-requisite to trade; Indeed, those companies not certified to OHSAS 18001 may, in certain sectors, struggle to even get on the first rung of the ladder in the tender process.

Some organisations choose OHSAS 18001 simply to get the 'badge; so it can be displayed an their company marketing literature and website. However, do not get caught out by buying a cheap certificate on the Internet, as it will be practically worthless. Certification should always be sought through a certification body approved by the United Kingdom Accreditation Service (UKAS).

Certification by such a body can also provide other financial benefits, such as helping to reduce insurance costs. However, one of the biggest benefits from a commercial perspective is that OHSAS 18001 certification will demonstrate credibility and confidence to support the retention of existing clients and help win new business.

Source: SHP September 2011