Don’t trip over Health & Safety pitfalls

With this in mind, set out below are of the five most common pitfalls that health and safety lawyers frequently see. Any one of these could prove to be very expensive.

1. Insufficient risk assessments
The risk assessment itself is one of the first documents a regulator will scrutinise. Quite often, it is found that the risk assessment has not been reviewed in a number of years, or has not been updated to take into account changes in the particular operation or any new equipment that is being used, for example.

This failure is often inextricably linked to a failure under (2) below, as if the risk assessment is flawed, there is a high chance that the safe system of work based upon that risk assessment is also flawed.

Organisations should ensure that they diarise regular reviews (at a minimum every 12 months) of all operational risk assessments to ensure they are still current and effective. Additional reviews should also be carried out if ever an incident or near miss occurs, or if employees raise any issues with the way in which the operation is being conducted.

A record should be kept detailing each review - even if no changes are made - so that there is a clear documentary trail demonstrating that risks were regularly being considered.

2. Ineffective work systems
It is a common feature of many cases that safe working procedures either do not go far enough or are not in place at all, leaving the company exposed to prosecution if an incident occurs.

By way of example, Manchester based company Duco International Ltd was recently fined £200,000 under Section 2 and Regulation 3 MHSWR for failing to plan, risk assess and monitor one of its machines after modifications had been made to it.

Operational procedures/safe systems of work should be reviewed regularly, in the same way as for risk assessments. Any changes in the risk assessment for the operation should be reflected in the safe working procedure, if appropriate, and employees should be retrained on that amended procedure.

3. Lack of training
Another common pitfall for many organisations is that they will have (1) and (2) in place, but records then show that not all employees have been adequately trained against them. Often these can be employees that have been with the company for a number of years and are therefore considered highly experienced.

However, it is often long standing employees who suffer an incident, as they become complacent and adopt their own ways of carrying out the operation, which may not necessarily be in accordance with the relevant safety training.

Training records will be the next documents that are subject to close scrutiny by a regulator. They will expect to see that employees have had sufficient induction as well as operational training that is relevant to their role, with regular refresher training or toolbox talks to demonstrate that employees' competencies are frequently being checked and proven.

Details of the training modules should be kept, together with records of attendance signed by attendees.

4. Supervision and monitoring
Effective supervision and monitoring is key in ensuring employees and contractors are complying with company rules and working in accordance with their training, and with the appropriate safe working procedures.

Often there is no clear delegation of responsibility for monitoring health and safety compliance. Many foremen, for example, will see their role as overseeing productivity, but will not necessarily focus on how the work is being done, and whether it is being done safely.

Close supervision is important in engendering the right attitude and culture amongst employees.

HSE Guidance such as HSG65 and INDG417 should be consulted and the principles adopted for good health and safety management in terms of supervision and monitoring. INDG417 recommends that overall responsibility for health and safety monitoring should lie at a senior management level, with appropriate delegation down through the management chain.

This should be supported by appropriate disciplinary action against employees repeatedly found to be non-compliant or running risks.

5. Ignoring previous warnings
Common issues encountered in relation to ignoring previous warning signs of safety issues include:

• Failing to respond to problems highlighted by previous incidents or near misses - particularly if no one is harmed;

• Failing to act upon issues/deficiencies identified during health and safety audits and inspections - either because of cost implications, or because the recommendations from the audit just get left to gather dust on the shelves;

• Failing to comply with enforcement notices served by the authorities.

Meat-producer Tulip Ltd was recently fined £16,000 after one of its workers lost two fingers in a mincing machine, which had previously been identified as unsafe by the company's health and safety manager during internal audits. But this had been ignored.

The company also had a previous conviction relating to a failure to guard machinery, which led to a fine of £65,000, yet it had not carried out a further review of all other machinery to avoid other incidents.

In the event of an incident, a failure to heed warnings will, at least, be considered an aggravating feature of any offence, but in the case of failing to comply with an enforcement notice, this constitutes a separate offence that could lead to imprisonment upon conviction.

At the end of the day
The HSE can of course bring more than one charge against a defendant, as seen in some of the cases above, under both the general duties of HSWA and the various health and safety regulations.

Maximum fines for offences committed either under the general duties or the regulations are £20,000 per offence in the Magistrates’ Court, or unlimited if referred up to the Crown Court.

In the cases of individual offences (such as Section 37), imprisonment is also a possibility (for a maximum of 12 months if convicted in the Magistrates’ Court, or up to two years if convicted by the Crown Court).

The seriousness of health and safety offences and the potential impact upon an employers business should not therefore be underestimated.

Catherine Henney is a senior solicitor in the Regulatory Team at Eversheds, specialising in health and safety