5. The workplace and the working environment

Changes and developments since last year

• Smoking: the Welsh Government has called for a ban on smoking in all cars, to protect children and non-smoking passengers from the effects of second-hand smoke.

• The Prison Officers Association has called for prisons to be smoke-free workplaces.

• Driving: Changes to the driving licence regime for bus and lorry drivers (Group 2 licence holders) came into force in April 2012; and changes to the law on driving with diabetes came into force in November 2011.

• Protecting women through the menopause: New guidance was published by the TUC in March 2011.

• Temperature: Bakers’ union the BDAWU launched its campaign for a maximum workplace temperature: Cool it!

Regulation of minimum standards for the workplace

The Workplace (Health, Safety and Welfare) Regulations 1992 (Workplace Regulations) lay down minimum standards for workplaces, the working environment and welfare facilities. Many sectors also benefit from separate guidance published by relevant professional institutions that may improve on these minimum standards.

The Workplace Regulations apply to all workplaces. The regulations state that where a workplace is in a building, “the building shall have a stability and solidity appropriate to the nature of the use of the workplace”.

Temporary work sites are also included. They must have “so far as is reasonably practicable”, toilets and washing facilities, drinking water, changing facilities and accommodation for clothing, and facilities for rest and eating meals. Outdoor sites must have toilets, washing facilities and drinking water. Employers must take account of those parts of the workplace “including doors, passageways, stairs, showers, washbasins, lavatories and workstations”, used by disabled workers.

Maintenance

The workplace, equipment, devices and systems must be maintained in an efficient state and working order and kept in good repair. This includes, for example, ventilation systems, emergency lighting, seating and workstations, guards to prevent falls and escalators. Where appropriate, they must be subject to a suitable system of maintenance (Regulation 5).

Ventilation

Regulation 6 states that, in enclosed workplaces, employers must provide effective and suitable ventilation to supply a sufficient quantity of fresh or purified air. Ventilation plants must give warning of failure if it is necessary for health and safety reasons. The Approved Code of Practice (ACOP) says that ventilation systems should not cause uncomfortable draughts, and that ventilation should be sufficient to provide fresh air for breathing, to dilute any contaminants, and to reduce odour. Air inlets should not be situated near contaminated air (for example, from vehicle exhausts or flues). Recycled air systems should be filtered and mixed with fresh air.

Temperature

Employers must ensure the temperature in all workplaces inside buildings is “reasonable” during working hours. This means providing reasonable comfort without the need for special clothing.

The ACOP says that workrooms should normally be at least 16°C for most types of work, and at least 13°C for work involving considerable physical effort. For most kinds of work the acceptable range of thermal comfort lies between 16°C and 24°C.

Although a maximum temperature is not specified, a workplace must be “adequately thermally ventilated” and the “excessive effects of sunlight on temperature shall be avoided”. The World Health Organisation says that in temperate climates, the optimum indoor temperature is between 18°C and 24°C, and reps can use these figures to negotiate better standards than those laid down by law.

Other factors such as draughts and humidity must also be considered when aiming for a comfortable temperature. The ACOP says all reasonable steps should be taken to achieve a comfortable temperature, including insulating hot pipes and equipment, providing air cooling plants, shading windows, siting workstations away from hot areas and using fans and increased ventilation in hot weather.

As a last resort, in unavoidably hot or cold areas, employers should provide suitable protective clothing and rest facilities, and should limit the amount of time individuals spend working in these areas. Regulation 7 says that a sufficient number of thermometers must be provided to enable workers to check temperatures in indoor workplaces.

Union campaign for legally enforceable maximum temperature

In 2010, the HSE completed its review of the law relating to limits on workplace temperature. The review decided against the introduction of a legally enforceable upper limit on workplace temperature, despite campaigning by the TUC.

In September 2011, the Bakers Food and Allied Workers Union, BFAWU launched its “Cool it” campaign at the TUC Congress. The campaign aims to continue the pressure on the government to introduce a maximum workplace temperature. It wants to build support for an Early Day Motion for the government to provide clear and enforceable requirements for employers to combat heat in the workplace. The union wants a maximum working temperature of around 30°C, or 27°C for those doing strenuous work.

Women and the menopause

In March 2011, the TUC published guidance highlighting the needs of menopausal women at work, including a new guide Supporting women through the menopause.

The TUC guide recommends:

• ensuring line managers have been trained to understand how the menopause can affect work and what adjustments may be necessary to support women experiencing the menopause;

• promoting awareness of the menopause as part of a wider occupational health awareness campaign, reassuring staff that the employer has a positive attitude and that women should not feel embarrassed, and ensuring guidance is freely available at work;

• employers recognising that many women are reluctant to approach a male line manager for support, by offering alternatives such as a female HR worker or access to an employee assistance programme if available;

• making sure sickness absence procedures do not penalise workers who need to take time off because of menopause related sickness;

• making sure working arrangements are sufficiently flexible, remembering menopausal women may need more frequent breaks; and

• risk assessments should consider the needs of menopausal women, including issues like temperature and ventilation with easily adjustable temperature and humidity controls, toilet facilities, access to cold drinking water, and supply of uniform.

Lighting

Regulation 8 states that employers must ensure every workplace has suitable and sufficient lighting. It should be natural light, so far as is reasonably practicable. Employers should provide suitable and sufficient emergency lighting where needed. The regulations do not define “suitable and sufficient”, but the ACOP says that the lighting should enable people to work and move about safely. Where natural light is utilised, windows and skylights should be regularly cleaned, although they may be shaded to reduce glare and heat.

Cleanliness

Workplaces, furniture, furnishings and fittings must be kept sufficiently clean. Floors, walls and ceilings must have easily cleanable surfaces, and waste materials must be stored in suitable containers (Regulation 9). Floors should be cleaned at least once a week.

Space

Every workroom should have sufficient floor area, height and unoccupied space (Regulation 10). The ACOP says that, as a minimum, 11 cubic metres should be allowed per person working in a room, discounting any room height over three metres.

The ACOP also says that the number of people who can work in any room at the same time will depend on the size of the room, the space taken up by furniture, fittings and equipment, and the layout of the room. So 11 cubic metres may not be sufficient if the room is crowded with equipment or furniture.

The guidance suggests that in a typical room with a ceiling height of 2.4 metres, a floor area of 4.6 square metres per person is needed. Where the ceiling is 3 metres high or more, the minimum floor area will be 3.7 square metres.

Workstations and seating

Regulation 11 says that every workstation must be suitable for the worker using it and the work carried out. Outdoor workstations should provide protection from bad weather, allow the user to leave quickly in an emergency and ensure that the user is not likely to slip or fall. Suitable seating must also be provided at workstations where the work can be done sitting down, with a footrest where necessary.

Condition of floors

Floors must be suitably constructed without uneven or slippery surfaces; be free from obstructions and other slip, trip or fall hazards; and have effective drainage in wet areas (Regulation 12). In addition, stairs and steep slopes must be provided with handrails where possible. Traffic routes for pedestrians and vehicles in workplaces should be kept free from obstructions and free from slip, trip or fall hazards.

Falls or falling objects

Precautions must be taken to prevent people being injured through falling or being struck by falling objects, by means other than by providing personal protective equipment (Regulation 13).

Transparent surfaces and windows

Windows and other transparent surfaces should be made of safety material and marked to make them apparent where this is necessary for health and safety reasons (Regulation 14). Where windows, skylights and ventilators can be opened, they should be able to be opened safely (Regulation 15). Windows and skylights should be able to be cleaned safely (Regulation 16).

Doors and gates

Safety features should be incorporated into particular types of doors and gates, such as sliding or powered doors (Regulation 18).

Organisation of traffic routes

Pedestrians and vehicles should be able to circulate safely (Regulation 17). Employers must make traffic routes “suitable” for the people and vehicles using them, using measures such as speed limits and one-way systems where necessary.

Escalators and moving walkways

These should function safely and be equipped with the necessary safety devices and easily identifiable and accessible emergency stop controls (Regulation 19).

Sanitary, washing and drinking facilities

Regulation 20 states that suitable and sufficient toilets must be provided, adequately ventilated and lit, kept clean and maintained in an orderly condition. The ACOP recommends that toilets should contain toilet paper in a holder or dispenser; have a facility for hanging coats; and, where used by women, contain the means for disposal of sanitary towels.

Regulation 21 states that suitable and sufficient washing facilities must be provided, including showers where necessary due to the nature of the work or for health reasons. Washing facilities will be considered suitable if they are in the immediate vicinity of toilets or changing rooms, provided with a clean supply of hot and cold (or warm) water, soap, and towels, and are sufficiently ventilated, lit and kept clean and orderly.

Separate toilet and washing facilities must be provided for men and women, except where the facilities are provided in a room intended for the use of one person at a time and which can be secured from the inside. This last provision does not apply to washing facilities intended for the hands, forearms and face only.

The regulations also specify that an adequate supply of drinking water and cups must be provided.

TUC campaign — Give us a (Loo) Break

In March 2010, the TUC launched a campaign for a change in the law to prevent employers being able to penalise staff for using the toilet in work time. It’s Give us a (Loo) Break report provides examples of staff having to put their hands up to use the toilet, record the number of times they go to the toilet each day or travel a long way for access to a toilet.

Give us a (Loo) Break calls for:

• HSE and local authority inspectors to ensure employers are complying with their obligations under UK safety laws by providing suitable, sufficient and accessible toilets and washing facilities that are clean, well ventilated, lit and stocked with soap and towels; and

• a change in the law so that employees can go to the toilet whenever they need to, in work rather than their own time, so long as they are not endangering the safety of their colleagues.

Clothing and changing

Employers must provide suitable and adequate facilities for storing clothing not worn during working hours, and for clothing worn at work but not taken home. Such accommodation must be secure, in a suitable location and, so far as is reasonably practicable, include drying facilities. For changing clothing it should be “easily accessible, of sufficient capacity and provided with seating.”

Separate facilities for men and women must be taken into account. The ACOP recommends that they should be accessible to workrooms (and eating facilities if provided) and should contain seating.

Where special clothing must be worn at work, or for reasons of health or propriety a person cannot change in another room, then changing facilities must be provided.

In Post Office v Footitt [2000] IRLR 243, the High Court held that “special clothing” is “any clothing which would not ordinarily be worn other than for work and which is designed to relate to the employee’s work, such as a distinctive uniform” and is not restricted to clothing worn only at work. Clothing worn while travelling to and from work could still be special clothing within the meaning of Regulation 24.

The Court also said that the concept of propriety is not confined to gender. In this case, women postal workers could change in the women’s toilet area, but this meant they had to undress in front of other women. The employers had originally appealed against an improvement notice requiring them to provide a separate changing room for women postal workers.

Rest and eating facilities

Regulation 25 states that readily accessible, suitable and sufficient rest facilities must be provided. Where food eaten in the workplace is liable to become contaminated, suitable facilities for eating meals must be included in the rest facilities.

Canteens may be used as rest facilities if there is no obligation to buy food. These areas must include suitable rest facilities for pregnant women and nursing mothers.

The ACOP recommends that rest facilities should include sufficient seats and tables. Work seats in offices or other clean environments may be acceptable, provided workers are not subjected to excessive disturbance during rest periods. Eating facilities should include the means of preparing or obtaining a hot drink and, where hot food cannot be readily obtained, the means for workers to heat their own food.

The regulations add that “an adequate number of tables and adequate seating with backs” should be provided, and that this seating must be adequate for any disabled persons at work.

LRD Canteen Survey

A survey of union reps by LRD in December 2010 found a significant fall in the proportion with access to a workplace canteen compared with a decade ago. The results of the survey can be found at: www.lrd.org.uk/issue.php?pagid=1&issueid=1426

Pregnancy and breastfeeding

The updated HSE Guidance for new and expectant mothers reminds employers that they are legally required to provide a place for pregnant and breastfeeding mothers to rest, and that where necessary, this should include somewhere to lie down.

There is no right to paid time off to breastfeed, but under the Equality Act 2010, it is sex discrimination to treat a woman less favourably because she is breastfeeding. Although an employer is not obliged to provide facilities for expressing and storing milk, the HSE advises that any facilities that are provided should be private, healthy and safe. It cautions: “It is not suitable for new mothers to use toilets for expressing milk”.

Under the Agency Workers Regulations 2010, agency workers have the same rights to use shared facilities provided by the hirer as a permanent member of staff. These could include, for example, a mother and baby room, a staff room or an on-site crèche. Agency workers are also protected against sex discrimination during pregnancy and after childbirth, which includes protection from less favourable treatment because she is breastfeeding.

Smoking at work

The Health Act 2006 banned smoking in most enclosed workplaces and public places. The Act created the offences of “smoking in a smoke-free place” and “failing to prevent smoking in a smoke-free place” for anyone (for example, an employer) who “controls or is concerned in the management of smoke-free premises”. There is a separate duty on the drivers of smoke-free vehicles to prevent smoking.

The European Commission is now considering whether there should be an EU-wide initiative to protect workers from environmental tobacco smoke.

Premises and enforcement

Smoking is prohibited in any workplaces or public places which are “enclosed” or “substantially enclosed”. This means premises that have a ceiling or walls at least half the way around, including doors and windows. Temporary or moveable walls or roofs (such as awnings) also count as substantially enclosed. Local authorities enforce the regulations.

Exemptions

There are some narrow exemptions to the smoke-free law, such as private accommodation; accommodation for guests and club members such as hotels, other residential accommodation such as care homes, performers, specialist tobacconists, offshore installations, and research and testing facilities.

In July 2008, the smoking ban was extended to mental health units. These were initially given a 12-month exemption because of evidence of very high levels of smoking by in-patients.

Private homes are exempt from the ban with some caveats. Smoking is not banned on premises where the owner or resident requires personal health care services or assistance with domestic or maintenance services. However, the ban does extend to homeworkers in their own homes if any part of the dwelling is used solely for work purposes and is also used by a person who does not live there. Communal areas in blocks of flats that are also a place of work for porters, cleaners and postal workers are not exempt from the ban.

There are some limited exemptions for workplaces where people also reside, such as care homes and prisons. In these workplaces, smoking is allowed in either a bedroom or a designated smoking room, but only by residents and their guests. Employees are not allowed to smoke on the premises (except in smoking rooms on offshore platforms). Hotels and guest houses may allow smoking in designated bedrooms.

To gain these exemptions, the rooms have to be designated in writing by the person in charge of the premises as rooms where smoking is permitted. The rooms must not have a ventilation system which vents into other parts of the premises.

Vehicles

The regulations also cover work vehicles. Vehicles that are only ever used by one person with no passengers are exempt from the ban. An employee’s own vehicle is also exempt unless it is being used for hire, or as a work vehicle by more than one person. The regulations impose a duty on the driver and on any person with management responsibilities for a smoke-free vehicle to prevent smoking in the vehicle.

Signs

Employers must display at least one no-smoking sign in a prominent position on the premises (such as the entrance) and in appropriate vehicles. The sign must be at least A5 size, contain the no-smoking symbol and wording such as “No smoking. It is against the law to smoke in these premises”.

Evaluating the health effects of the ban

In 2008, the Department of Health published an evaluation of the smoke-free regulations. It found that after the introduction of the smoking restrictions, nicotine levels — an indicator of exposure to tobacco smoke — in the blood of non-smoking bar workers were on average reduced by about three-quarters (-76%). Prior to the smoke-free legislation, non-smoking bar workers were found to be inhaling up to six times as much cigarette smoke as the average non-smoker member of the public.

In 2012, the Welsh Government called for a complete ban on smoking in all cars, to protect children and non-smoking passengers from the effects of second-hand smoke.

Call for prisons to be Smokefree workplaces

In November 2011, the Prison Officers Association (POA) called for all prisons to be made smoke-free workplaces, in line with all other workplaces in the UK and for the government to conduct an urgent survey of prisons to establish the extent of the problem.

A prisoner’s cell is currently classed as a “home” and is exempt from the ban. The Ministry of Justice has so far refused the POA’s request, or to conduct independent monitoring of the prisons to establish the risk to health. Results from a pilot study suggest a significant problem, with prison staff “exposed to considerable quantities of secondhand smoke during their working time”, and one prison in particular recording non-smoking prison officers with continine levels (a biomarker for exposure to tobacco smoke) close to the levels measured in bar workers before the smoking legislation was introduced.

Smoking shelters — additional guidance

The government’s Smokefree England website advises that employers are not obliged to provide smoking shelters: “It is common for health-focused employers not to spend money creating places for smokers to congregate. If you do have an outside smoking shelter or area, you will need to be sure that it is not ‘enclosed’ or ‘substantially enclosed’.”

The regulations do not cover open public spaces and there is no legal requirement to stipulate a distance away from the building where smoking can take place.

Smokefree England also states that it is up to employers to resolve issues such as breaks and matters such as paid time off to help smokers give up.

Driving at work

The HSE guidance, Driving at work: managing work-related road safety, is aimed at employers whose staff drive or ride a motorcycle or bike at work.

The guidance says that health and safety law applies to on-the-road activities as it does to all work activities. The Health and Safety at Work etc Act 1974 requires employers to ensure, so far as reasonably practicable, the health, safety and welfare of all employees while at work (See Chapter 1). Under the Management of Health and Safety at Work Regulations 1999, employers must assess risks to the health and safety of their employees, including while driving at work (See Chapter 3).

The HSE guidance makes a number of suggestions on how to prevent work-related road incidents. It says employers should consider alternative means of transport and “avoid situations where employees feel under pressure”, such as “making unrealistic claims about delivery schedules which may encourage drivers to drive too fast or exceed speed limits.”

Employers should organise maintenance work so as to reduce the risk of vehicle failure, and ensure vehicles are fit for the purpose for which they are being used. They should also ensure that seatbelts and airbags are correctly fitted and work properly. Cycle and motorcycle riders should be provided with crash helmets and protective equipment of the appropriate standard.

The guidance specifically addresses the issue of tiredness while driving. It asks employers: “Are you satisfied that drivers will not be put at risk from fatigue caused by driving excessive distances without appropriate breaks?” It suggests employers should eliminate long road journeys and plan to avoid long days.

A House of Commons Transport Select Committee report published in October 2008 urged the government to involve the HSE in work-related road deaths. The report, Ending the scandal of complacency: Road safety beyond 2010, pointed out that around a third of all road deaths occur during a work-related journey.

The Hazards safety campaign estimate that about 778 workers were killed nationally during 2010-11 in work-related road traffic accidents. Work-related road deaths are not included in the HSE’s annual calculation of workplace fatalities in the UK (HSE Statistics 2010-11).

Mobile phones

It is illegal to use a hand-held mobile phone while driving, or to “cause or permit” that use. Both employer and user can be held liable. “Use” includes holding the phone in the driver’s hand and cradling it between head and shoulders. Use is prohibited even when in stationary traffic if the engine is running.

It can also be illegal to use a hands-free mobile phone set while driving. Depending on individual circumstances, drivers could be charged with “failing to have proper control of their vehicle” and in more serious cases, the use of either type of phone can result in prosecution for careless or dangerous driving. The police can check phone records when investigating serious and fatal crashes, to decide whether phone use contributed to the crash.

The Road Safety Act 2006 (Commencement No. 4) Order 2008 created the offences of “causing death by driving without due care and attention, or without reasonable consideration for other persons” and of “causing death by driving when unlicensed, disqualified or uninsured.” Drivers who kill while distracted by an avoidable activity at the wheel could face up to five years in prison. Avoidable distractions include, for example, calling or texting on a mobile phone, drinking and eating, and applying make-up.

Guidance from the Royal Society for the Prevention of Accidents, produced in collaboration with the Department of Transport, Driving for work: Mobile phones, strongly discourages the use of hands-free mobiles when driving, indicating that “a substantial body of research shows that using a hand-held or hands-free mobile phone while driving is a significant distraction and substantially increases the risk of the driver crashing”. Mobile phone users are four times as likely to crash, injuring or killing themselves or other people.

The report states that drivers using a mobile phone, whether hand-held or hands free:

• are much less aware of what’s happening on the road around them;

• fail to see road signs;

• fail to maintain proper lane position and steady speed;

• are more likely to tailgate the vehicle in front;

• react more slowly and take longer to brake;

• are more likely to enter unsafe gaps in traffic; and

• feel more stressed and frustrated.

The Royal Society for the Prevention of Accidents (RSoPA) has produced a model mobile phone policy available at: www.rospa.com/roadsafety/info/workmobiles.pdf and encourages senior managers to lead by example by refraining from using a mobile phone when driving themselves.

Driving vision

Driving with uncorrected vision is an offence under the Road Traffic Act 1988. From April 2012, changes to the law have been brought in under the Motor Vehicles (Driving Licences) (Amendment) Regulations 2012. These regulations bring UK driving licensing standards for vision, diabetes and epilepsy into line with the requirements of EU Directive 91/439/EEC, which must be implemented in the UK by 19 January 2013.

The regulations introduce more frequent health testing for Group 2 drivers (drivers of heavy vehicles, including medium to large lorries and buses). Group 2 drivers are currently assessed at age 45. However, with effect from the first new photo card issued after January 2013, Group 2 drivers will be assessed every five years, irrespective of age.

Under new rules, bus and lorry drivers will be able to take their driving test wearing spectacles and spectacle wearers will need to provide evidence at their five yearly assessment (such as an optician’s prescription) to demonstrate that their glasses meet the vision standards in the Directive.

There is no statutory entitlement to paid time off for the five yearly medical tests, and there is no plan to introduce such a right once the new law takes effect. Neither is the employer obliged to pay the costs associated with any testing. Reps should try to negotiate either reasonable paid time off, or access to an on-site occupational health provider (where available) during working hours for these tests. LRD has received reports of workers being required to use their annual leave to attend this test.

Eyesight and best practice

Experts recommend that all drivers of any class should have an eye test at least every two years, and whenever there is cause for concern. However, survey results from March 2011 indicate that one in six drivers cannot see well enough to pass the basic eyesight test, according to the Fleet Safety Forum, a division of road safety charity Brake.

Driving with diabetes

Changes to the law on driving with insulin-treated diabetes were implemented in November 2011, through the Motor Vehicles (Driving Licences) (Amendment) Regulations 2011. These changes make it possible for an insulin-treated diabetic to hold a Group 2 driving licence, as long as the condition is properly controlled and monitored. In particular, applicants must use a glucose meter with a memory function and must attend an annual review by a consultant diabetologist, with at least three months of blood glucose readings stored on the meter.

Legislation covering particular industries

In addition to the Workplace Regulations, there are a number of regulations that apply to certain types of high-risk workplaces and industries such as mines and quarries, offshore and nuclear installations, construction sites, and the railway industry. These regulations contain specific health, safety and welfare requirements relating to the hazards in those workplaces and industries.

The HSE website contains detailed guidance on the applicable regulations by sector, which can be accessed via the worker involvement pages at: www.hse.gov.uk/involvement/hsrepresentatives.htm or /www.hse.gov.uk/guidance/industries.htm

Notification of Conventional Tower Cranes Regulations 2010

One such set of regulations that it is important to highlight is the Notification of Conventional Tower Cranes Regulations 2010. These regulations came into force on 6 April 2010. They require certain information about conventional tower cranes used on construction sites to be notified to the HSE. The regulations were introduced following campaigning by the families of workers and others killed in incidents involving tower cranes on construction sites. An HSE leaflet explaining what information has to be notified to them is available on its website at: www.hse.gov.uk/pubns/indg437.htm.

To the anger of unions and safety campaigning groups such as the Construction Safety Campaign, the Löfstedt review Reclaiming health and safety for all has recommended the repeal of the Notification of Conventional Tower Cranes Regulations, suggesting that an impact assessment has demonstrated “no quantifiable benefits”. Professor Löfstedt has indicated that he is willing to reconsider any recommendation made in his report, when writing a follow-up report later in 2013 (see Chapter 12), as long as he is provided with evidence to justify a change of view.