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Health and Safety - Caveat Emptor

Edward Hodson, rradar’s Senior Health and Saftey Consultant in the Business Crime and Regulation Team, responds with lawyers following accidents or incidents. His investigations have identified what he describes as an ‘uncomfortable deficiency’ in the provision of some health and safety services.  Together with the IOSH Consultancy Group it is considered timely to explain these concerns to ensure that directors and IOSH members are aware of the risks.

As part of the Regulatory Team, I support our lawyers in investigations involving health and safety accidents assisting in providing a focus on health and safety systems and procedures.  What has become evident during these investigations is that several clients, and not just SMEs, have been found to be seriously ‘exposed’ in their health and safety management.

As to be expected, the regulators are not slow in finding these omissions when they visit the site.  The accidents I have investigated have included a fatality and = life =-changing injuries to employees; others were fortunate and suffered no physical injury at all.  Some of these accidents I believe were foreseeable, and others less so. Nevertheless, all have been subject to regulatory investigations from the HSE, Police or Local Authority Inspectors. The investigation process is a stressful one for directors, employees and their families, and for the health and safety consultants providing advice.

So, what is the problem?

For some directors, the outsourcing of health and safety competency, and specifically the level of health and safety services that is being procured is a business transaction, but one which in the cases I refer to has been found to be a poor one. This has led me to challenge the suitability of some business models which may inadvertently be limited in the depth and quality of the health services being offered. This in turn is exposing directors to a risk during which has become evident during the investigations. The HSE and Local Authority inspectors, and other in the legal profession have expressed similar concerns.

A case in point

In several cases, a client’s management of health and safety systems has failed to address the risks which have materialised into accidents; these included serious incidents with forklift trucks or other vehicles; lifting and loading incidents; and falls from height. In all cases, health and safety had been ‘outsourced’ to health and safety consultants or consultancies. 

Whose risk is it anyway?

In two cases, the consultants had clearly identified the risk and complied with the IOSH Code of Conduct at 4.6, which requires the member to:

Inform any person overruling or neglecting their professional advice of the potential adverse consequences and keep a written record of the date, time and nature of this action.

The consultant brought it to the attention of the Managing Director concerned on more than one occasion. He failed to act on that advice.  That Consultant is now a prosecution witness.  Not a comfortable position to be in, but everything that could be had been done.

Unfortunately, in other cases I investigated, the directors had procured health and safety as a ‘packaged service’ with a belief that they have appointed a ‘competent person’ to assist to meet their legal duties under The Management of Health and Safety at Work Regulations 1999. Regulation 7 (1) under Health and Safety Assistance, requires that;

 “Every employer shall, appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the relevant statutory provisions…”

These directors may have believed that they are legally compliant. However, the reality is that they are making a safety decision, which will prove to be costly in terms of the business, its employees and their families… and their own health.

The problem

I am satisfied that the consultants (or employees) providing consultancy services have sufficient training and experience or knowledge and other qualities to enable them to properly assist the employer. The question is, whether they have the time to deliver it!

The accidents in many cases were reasonably foreseeable and the risks arising materialised. However, investigations identified that the requirements of Regulation 7 (3), of Management of Health and Safety at Work Regulations to be a factor in most cases under investigation, and this has given rise to my concern;

Regulation 7 (3) is an ‘employers’ duty and it requires that:

“The employer; shall ensure that the number of people appointed and the time available for them to fulfil their functions, and the means at their disposal are adequate, having regard to the size of the business, the risks to which employees are exposed and how those risks are distributed throughout the business”.

In five of the investigations, Regulation 7(3) had not been complied with. In three cases it is difficult to argue that providing a maximum service of one day a year could meet the legal requirements even with someone on the end of a phone and a report provided advising what needs to be done, an employer will be reliant on the competence of others to respond.

If a company has such competency then this must be determined. Sadly, I have found that some do not. As consultants, we must be aware of agreeing to provide a limited or skeleton service as it may be a breach of the IOSH Code of Conduct.

IOSH Code of Conduct

3.3 Cooperate with employers or clients in fulfilling their legal duties under the terms of their employment or consultancy contracts.

As a competent person, you have an obligation to provide appropriate advice concerning the health, safety and welfare of employees and others in assisting employers and clients in fulfilling their legal duties.

The directors in all these cases has the ultimate legal responsibility, and we must ensure that those directors making a financial decision, and getting a ‘good deal’ are aware of the consequences.  Of course, if that employer has the means to address the report’s recommendations with internal resources and competency that is a factor which can be considered. However, attending after the accident to address the risk which has materialised is a case of closing the stable door after the horse has bolted!

Health and Safety Services - Caveat Emptor

John Ruskin in 1819, well before the Health and Safety at Work Act was thought of, addressed the matter…

There is hardly anything in the world that some man cannot make a little worse and sell a little cheaper, and the people who consider price only are this man’s lawful prey. It's unwise to pay too little.

When you pay too much, you lose a little money - that is all.

When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing it was bought to do. The common law of business balance prohibits paying a little and getting a lot - it can't be done.

If you deal with the lowest bidder, it is well to add something for the risk you run.

And if you do that, you will have enough to pay for something better.”

John Ruskin 1819 to 1900

Summary

The reality is that safety decisions are a fact of business, and as some businesses are discovering, they can prove to be very expensive. But more importantly some employees and their families are paying a higher price.

We have a duty to tell an employer if they have not got the resources to manage health and safety and comply with the law. Providing a service of a half to one day a year could not demonstrate compliance with Regulation 7 (3) and may undermine the competency of a health and safety consultant agreeing to provide it. We must be prepared to say no -it can’t be done.

In summary, it is essential that when a director appoints a health and safety consultant, they are made aware that the business understands its risks. Employers looking for a low-cost solution may be achieving their aim; however, consultants delivering the services to employers must ensure those employers are aware of the law.

Ed Hodson

Ed Hodson is a Chartered Health and Safety Practitioner (CMIOSH) with a Master of Laws Degree (LLM) and a First-Class Honours Degree in Occupational Health and Safety Management. He has extensive experience in manufacturing, construction, rail, and legal services.