3. The management of health and safety at work

Changes and developments since last year

• The HSE telephone Infoline closed in October 2011. It will not be replaced and users are directed instead to the HSE website (www.hse.gov.uk). HSE has updated many of the features on its website, and launched new ones, including a new online guide targeting small businesses: Health and safety made simple.

• Reporting arrangements for injuries and accidents changed from September 2011. Telephone reporting is now only possible for accidents involving fatalities or major injuries. All other reporting must be done using an online form available at: www.hse.gov.uk/riddor/report.htm, see Chapter 10: Reporting.

• From April 2012, changes to the reporting requirements under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) increased the threshold for reporting workplace injuries from three to seven days. See Chapter 10: Reporting.

The Management of Health and Safety at Work Regulations 1999

The Management of Health and Safety at Work Regulations 1999 (the Management Regulations) are important because they clarify how employers must comply with their duties under the Health and Safety at Work Act (Chapter 1). The regulations originate in the European Framework Directive 1989 (89/391/EEC).

Risk assessments

A central requirement of the regulations is that employers must carry out a risk assessment. The risk assessment should address what happens in the workplace and must consider all groups of workers and others who might be affected.

The TUC and Unionlearn risk assessment guide for safety reps, Risk assessment — a guide for safety representatives, warns that although there is no single correct way of doing risk assessments, whatever process is used, the risk assessments must be “systematic and thorough” and must look at “what actually happens in the real workplace, rather than just at what the employer thinks happens”.

The risk assessment must identify groups of workers who might be particularly at risk, such as young workers. A risk assessment must be “suitable and sufficient”. This means it must:

• correctly and accurately identify hazards;

• determine the likelihood of injury or harm;

• identify any specific legal duty relating to the hazards;

• remain valid for a period of time; and

• enable decisions to be made about appropriate control measures.

A hazard is something with the potential to cause harm or injury. A risk is the likelihood of harm or injury arising from a hazard.

A 2008 court case reinforced the importance of risk assessment. In Allison v London Underground [2008] IRLR 440, the Court of Appeal emphasised that risk assessments “are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations, and takes steps to remove or minimise these risks”.

The Health and Safety Executive (HSE) guide, Five steps to risk assessment, sets out a step-by-step approach to risk assessment. The HSE says that the most important thing to remember about risk assessments is that they must be acted upon and updated regularly.

A generic list of risks and their possible effects is not a risk assessment, although it is a tool for carrying out a risk assessment. A risk assessment requires a consideration of the particular hazards in this particular workplace (Home Farm Trust Ltd v Nnachi UKEAT/0400/07).

It is the employer’s duty to ensure that whoever carries out the risk assessment is competent to do so. He or she should also have suitable training and the time and resources to carry out the assessment. The TUC says it is better that the competent person is employed directly by the organisation rather than being an outside consultant.

In March 2011, a new voluntary online register was launched, known as the Occupational Safety and Health Consultants Register, creating a searchable database of qualified consultants. It can be found at: www.oshcr.org. Reps can use the database to check the credentials of any external safety consultant engaged by the employer. In May 2012, there were 2,080 consultants named on the register.

Regulation 4a of the Safety Reps and Safety Committees Regulations requires employers to consult safety reps in good time about arrangements to appoint competent people to assist with health and safety and implementing procedures for serious and imminent risk (see Chapter 4: Safety Reps and Safety Committees).

Some employers have asked safety reps to sign risk assessment records as the competent person. The TUC says risk assessments should only ever be signed by management or the workplace safety officer. This is because the legal responsibility is that of the employer. Safety reps should, however, be involved from the earliest stages of the risk assessment process.

Union involvement in risk assessment: hazard mapping

Although risk assessment is the responsibility of the employer, unions can involve their members in trying to identify what hazards they face in their workplace. The TUC recommends a method known as hazard mapping. This method provides a much more visual picture than statistics from surveys and so on, and should help identify and prioritise hazards. A simple map of the workplace is used to highlight where problems are found, using colour-coding for different hazards so that patterns of potential hazards and ill health can be seen at a glance.

HSE guidance on risk assessment

The HSE risk management web pages at: www.hse.gov.uk/risk/, provide examples of what a risk assessment might look like. There are also electronic templates, aimed particularly at small to medium-sized enterprises (SMEs). These combine the requirements of a health and safety policy, risk assessment and written record of health and safety arrangements into one document. In 2011, the HSE added online interactive risk assessment tools for charity shops, offices and classrooms.

The Management Regulations — how to approach workplace risk

Regulation 4 of the Management Regulations requires employers to implement protective and preventative occupational safety measures by following these principles:

• avoid risks altogether;

• evaluate any risks that cannot be avoided;

• combat risks at source;

• adapt the work to the individual, particularly with regard to workplace design, the choice of work equipment and working and production methods, with a view to alleviating monotonous work and work at a predetermined work-rate;

• adapt to technical progress;

• replace dangerous work with safe or safer alternatives;

• develop a coherent overall prevention policy covering technology, work organisation, working conditions, social relationships and the working environment;

• prioritise collective over individual protective measures; and

• give workers appropriate instructions.

Health and safety arrangements

Regulation 5 of the Management Regulations requires employers to monitor and review these measures on an on-going basis, and in response to any changes. Specifically, the employer must ensure adequate arrangements are in place regarding “effective planning, organisation, control, monitoring and review of protective and preventative measures”. The HSE says that health and safety needs must be fully integrated into an effective management structure and that health and safety responsibilities must be understood and acted on at all levels of the organisation. As with risk assessment, these arrangements must be in writing where there are five or more employees.

Health surveillance

Regulation 6 of the Management Regulations requires employers to monitor the health of employees if the risk assessment shows this to be necessary. The Approved Code of Practice (ACOP) to the regulations says that health surveillance should be carried out where:

• there is an identifiable condition related to the work;

• the condition is detectable;

• it is likely that the condition could occur; and

• surveillance is likely to provide health protection for employees.

Appointment of safety specialists

Regulation 7 of the Management Regulations requires employers to appoint competent staff to assist in ensuring that the protective and preventative measures identified as necessary by the risk assessment are in place. The ACOP makes it clear that competent employees should be appointed, in preference to external consultants. It also says that in deciding whether an individual is competent, the employer should examine whether the person has an understanding of best practice, an awareness of their own limitations and a willingness and ability to supplement existing experience and knowledge.

Procedures for serious and imminent danger

Stopping work and proceeding to a “place of safety”

Regulation 8 of the Management Regulations requires all employers to set up procedures to be followed in the event of “serious and imminent danger to persons at work”. A sufficient number of competent personnel, with sufficient training and experience, must be nominated to implement the procedures, which must normally be written down. Employers must make any necessary contacts with the external emergency services regarding first aid, emergency medical care and rescue work.

These procedures should enable employees to stop work and immediately proceed to a place of safety in the event of being exposed to “serious, imminent and unavoidable danger”. The regulations state that the people concerned can take appropriate steps, including stopping work, “in the absence of guidance or instruction, or in the light of their knowledge”.

Workers have some protection if they “stop the job” in these circumstances. Under Section 100 of the Employment Rights Act 1996, it is automatically unfair to dismiss employees or safety reps who withdraw to a place of safety or take other appropriate steps to protect their own safety or that of others because they reasonably fear they are in serious and imminent danger. See Chapter 4, for examples of employment tribunal decisions relating to this right, as well as examples of unions who have supported groups of workers forced to withdraw to a place of safety when faced with serious and imminent danger.

Information and training

Employees must be provided with specific “comprehensive and relevant” information about the risks and how to avoid them (Regulation 9). The ACOP says that special consideration should be given to any employees with “language difficulties”. The duty to train not only involves giving a comprehensive explanation of the dangers of a particular hazard in plain language, but also making an appraisal of whether the employee has understood the instructions and dangers.

Regulation 13 says employers must provide health and safety training during working hours for new recruits and whenever there are new or increased risks, for example, where new equipment is introduced or there is a change in the work being carried out. Employers must take account of workers’ capabilities regarding health and safety.

Safety information

The HSE has published information on workers’ health and safety in 30 languages. In 2008, the TUC published a safety leaflet with the HSE in 19 different languages, aimed at migrant workers.

The TUC also produces up to date guidance on health and safety issues through its Worksmart website at: www.worksmart.org.uk/health/

Co-operation and co-ordination

Regulations 11 and 12 of the Management Regulations deal with employers sharing workplaces or employing contract workers. Employers must co-operate and co-ordinate safety measures and must inform all employees, including any contractors, about risks and health and safety measures taken.

Temporary workers

Employers are required by Regulation 15 of the Management Regulations to provide information to temporary staff about the necessary occupational qualifications or skills required to carry out the job safely. Under the Health and Safety at Work Act 1974, an employer owes the same basic duty to agency workers, self-employed workers, temporary and casual staff and members of the public as it owes to its direct employees to take reasonable care of their health and safety (see Chapter 1).

New and expectant mothers

The Management Regulations contain specific provisions for women of childbearing age in the workforce. Regulation 16 says any risk assessment must take account of how hazards may affect the health and safety of new or expectant mothers.

The obligation to carry out a risk assessment for all employees extends to all women of child-bearing age not just pregnant women (Day v T. Pickles Farms Ltd [1999] IRLR 217). The employer should address risks from any work processes, working conditions or physical, biological or chemical agents.

A worker is not legally obliged to inform her employer that she is pregnant or breastfeeding. However, an employer who does not know about the pregnancy will not be able to address any specific risks that arise as a result. The HSE recommends that women workers inform their employers in writing as early as possible that they are pregnant, have given birth in the previous six months or are breastfeeding.

Several specific pieces of legislation provide additional safety protection to expectant and new mothers in the workplace and are looked at elsewhere in this booklet. These include:

• the Ionising Radiation Regulations 1999; (see Chapter 8: Physical Hazards);

• the Control of Lead at Work Regulations 1998 (see Chapter 6: Hazardous Substances);

• the Workplace (Health, Safety and Welfare) Regulations 1992 (see Chapter 5: the Workplace and working environment); and

• the Equality Act 2010 which provides protection against sex, pregnancy and maternity discrimination (see below).

Is an employer obliged to carry out a specific separate risk assessment as soon as an employee confirms she is pregnant or breastfeeding?

Some workplaces present particular risks to pregnant workers. Whether an employer needs to carry out a separate risk assessment as soon as an employee confirms that she is pregnant or breastfeeding depends on the kind of work she does.

There is no free-standing legal obligation on every employer always to conduct a specific separate risk assessment once a worker confirms that she is pregnant. Instead, whether or not a separate risk assessment is required will depend on the particular circumstances of the individual worker and the kind or work she is doing (O’Neill v Buckinghamshire County Council, UKEAT/0020/09/JOJ).

Even though there is no obligation to carry out a risk assessment whenever an employee confirms she is pregnant or breastfeeding, carrying out a risk assessment is the most sensible way to identify what new risks are presented by the pregnancy and what extra action should be taken.

The employer should always discuss any concerns and ideas about solving them with the worker. It would be sex discrimination to force a worker to accept a change of duties or suspension where the risk is low and does not require such a drastic response:

Workplace hazards for pregnant and breastfeeding women

The kinds of workplace hazard an employer should pay particular attention to when considering risks to pregnant or breastfeeding women will depend on the kind of work being carried out but could include:

• exposure to lead, and certain other chemicals such as drugs and pesticides;

• working with ionising radiation;

• lifting and other physical work;

• exposure to infections;

• exposure to cigarette smoke;

• slips;

• stress;

• standing up for long periods;

• heat;

• inadequate facilities, including inadequate toilet facilities;

• excessive working hours;

• lone working;

• work at heights;

• travelling;

• bad smells which may make morning sickness worse;

• violence, for example if you work with members of the public; and

• exposure to vibration, such as riding in off-road vehicles.

Updated online guidance from the HSE says that if a significant health and safety risk is identified for a new or expectant mother (going beyond the normal level of risk found outside the workplace) an employer must take the following steps:

• Step 1: Temporarily adjust working conditions and/or working hours; or if this is not possible:

• Step 2: Offer suitable alternative work for the same pay, if available; or if this is not possible:

• Step 3: Suspend her from work on paid leave for as long as necessary to protect her health and safety and that of her child.

Any alternative work must be suitable and appropriate for her to do in the circumstances and on terms and conditions no less favourable than her normal terms (Employment Rights Act 1996 (as amended by the Employment Relations Act 1999)).

The kinds of precautions an employer could consider will depend on the work being done. Possible responses include:

• Putting the worker on light duties if the role involves manual handling.

• Letting a worker sit down if the job involves standing.

• Making sure a worker can take regular short breaks.

• Flexible rostering so that a worker can come in late if she suffers from morning sickness or to avoid a busy rush hour.

Pregnancy risk assessment

Extension of the right to a maternity suspension to agency workers

The duties owed to pregnant workers under the Management Regulations cover pregnant agency workers as well as permanent employees. The Agency Workers Regulations 2010 have improved the position of agency workers by extending the right to a “maternity suspension” to all agency workers who have completed a statutory twelve week qualifying period. Any pregnancy-related absence counts towards this qualifying period.

This means that as long as the agency worker has enough qualifying service, whenever health and safety considerations prevent a temporary assignment continuing, the employment agency must provide an alternative assignment. If there is nothing suitable available, the agency must pay the agency worker for the rest of the original assignment.

Pregnancy and night work

Regulation 17 of the Management Regulations says that new or expectant mothers may be suspended from night work where they have a signed certificate from a registered medical practitioner or midwife stating that this is necessary in the interests of health and safety.

Young workers

Regulation 19 of the Management Regulations says that employers must protect young workers (those aged under 18) from risks to their health and safety arising from lack of experience or maturity, and must not employ a young person for work which:

• is beyond their physical or psychological capacity;

• involves harmful exposure to radiation or toxins or carcinogens (cancer-causing agents);

• involves the risk of accidents which may not be recognised or avoided by young people by virtue of their inexperience; and

• involves a risk to health from extreme cold or heat, noise or vibration.

The ACOP says that employers must carry out the risk assessment before the young worker starts work. It adds that when control measures have been taken and there is still a significant risk, a young worker cannot do this work unless:

• it is necessary for their training;

• they are supervised by a competent person; and

• the risk will be reduced to the lowest level reasonably practicable.

The ACOP also says that where significant risks remain, no child under the minimum school leaving age can be employed to do this work. Whenever a child is either employed or on a work experience placement, the key findings of the risk assessment and the control measures taken must be provided to the child’s parents. This does not have to be in writing.

British Safety Council Speak up: Stay safe campaign

In June 2010, the British Safety Council launched a new campaign aimed at educating young workers about health and safety at work called Speak up: Stay Safe. Further details are available at: www.britsafe.org/speakupstaysafe/