The mystery of the green box ….

UK businesses of all kinds have a green box on the wall. Why?

The reason can be found in my latest article on Constructaquote:

http://www.constructaquote.com/2492/section.aspx/1475/First-aid-It%E2%80%99s-More-Than-Just-A-Green-Box

Out of sight, out of mind … out of business?

Recently I have been researching the health & safety hazards facing lone workers in high risk business sectors such as the security (manned guarding) industry.

During this research I read through numerous prosecution reports including two different cases involving manned guarding companies. These in particular caught my eye because both incidents had so many similarities.

Both investigations resulted from the death of the security officer, and in each case the cause of death was carbon monoxide poisoning due to the use of a petrol generator in an unventilated area. Furthermore, in both cases the root cause of the accident was a failure to carry out an adequate risk assessment prior to installing the generator, which meant that the resulting deaths were totally preventable.

Thankfully I could only find a couple of cases involving the misuse of petrol generators, but these cases still got me thinking about this general problem: how many companies with lone workers ever consider the possibility that their staff – to whom they owe both a legal and moral duty of care – are being put in harm’s way by the company’s activities?

Unfortunately, I think that the answer to that question is “Not many”.

Many businesses, in areas such as manned guarding and the retail sector, are under severe pressure to keep costs down as their profit margins get thinner and thinner. Hence the last thing the employer wants to do in such circumstances is to increase their costs by (say) sending a manager to a site to do a formal risk assessment, or employing two members of staff in a shop when (in theory) there is only enough work for one.

What is often forgotten when making these decisions is that measures used to save money in the short term could actually cost you not just money but your business if things go wrong.

Let’s look again at the two fatal cases I mentioned above. Had the companies concerned done a proper risk assessment of the dangers of using petrol generators in a confined space, and had they maybe issued the staff with appropriate safety instructions, then those accidents would not have happened. Their security officers would still be alive, and the companies would still have a clean health & safety record.

And it’s not just manned guarding companies who cut corners with lone workers.

Within the past few weeks a leading UK retail network has been prosecuted by a local Council and fined for failing to protect its employees from workplace violence. The incident which triggered the prosecution was a robbery in which the female manager, who was working alone, was attacked, forced to open the safe, and then beaten unconscious.

And this had not been the first robbery at the store. It had been robbed only a month previously, but the company had ignored police advice on improving their security, the CCTV and alarm systems were still faulty, and the staff had not been given training in how to handle violent situations.

Only now – after a manager has been beaten unconscious and fines imposed – has the company improved its safety procedures, including ensuring two members of staff are always on duty.

Why do companies still not understand that health & safety management is an integral part of any business? Indeed, it’s probably the most important part since if you get it wrong the damage to your reputation, and the acquisition of a criminal record, can mean the end of the company.

This is especially true of companies who tender for work from major clients. They will have to complete a health & safety questionnaire as part of the tender process, and how do you think the client will react to an admission that the company has been prosecuted for a health & safety breach resulting in an employee’s death? That application is heading straight for the bin – as is the future of the company.

Let’s go back to the title of this article for a moment.

It’s tempting for firms with lone workers to assume that they can somehow muddle through, that they can ignore basic health & safety requirements, and that nothing will happen. Their lone workers are out of sight and effectively out of mind – but if something does go wrong the company could well be out of business.

Brutal – but true.

Article on health & safety penalties

I have just written an article for “Constructaquote.com” about the penalties which can be invoked for breaching UK health & safety legislation. It looks in particular at the provisions of the Health & Safety Offences Act and the Corporate Manslaughter & Corporate Homicide Act.

As the article demonstrates, health & safety law must not be taken lightly. It has teeth, and if it bites it will hurt!

The article can be seen in full at:

http://www.constructaquote.com/2492/section.aspx/1407/Penalties-for-breaching-health-and-safety-law

Risk assessments – size doesn’t matter!

I recently received a comment in response to my last posting – “Are your company drivers safe?” – which implied that small companies in the UK were somehow exempt from the legal requirement to carry out risk assessments. Unfortunately, nothing could be further from the truth!

To help smaller companies keep out of trouble I thought it might be useful to summarise the legal requirements concerning risk assessments, and to look also at the penalties which can be invoked for lack of compliance.

The requirement to conduct a risk assessment is laid down by the Management of Health & Safety at Work Regulations 1999. Regulation 3(1) says that:

Every employer shall make a suitable and sufficient assessment of -

(a)  the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b)  the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

And the self-employed cannot avoid their responsibilities either. Regulation 3(2) lays down a similar duty on them in respect of risks both to themselves and to those affected by their business activities.

It is very important to note that the Regulations refer to “Every employer …” so there is no exemption for small or part-time businesses. However, and I feel this may be the cause of some confusion, there is some leeway for smaller businesses in the way they record their risk assessments.

The risk assessment needs to be recorded only when -

a) the risk has been assessed as significant, and

b) the firm employs five or more persons (whether that be full- or part-time, or a mixture of both).

As a matter of best practice I always recommend that companies always record their risk assessments – regardless of company size – because then they have an obvious defence if the risk assessment is challenged.

Which brings me neatly to the issue of penalties for non-compliance.

Put simply, since the introduction of the Health & Safety Offences Act 2008 the penalties for most health & safety offences have increased dramatically. Failure to provide a “suitable and sufficient” risk assessment can be met by a fine at the Magistrates’ Court of up to £20,000, and if the case goes to the Crown Court a judge can impose an unlimited fine and up to 2 years’ imprisonment.

And it gets worse!

Failure to provide a suitable and sufficient risk assessment means that your method of working can also be challenged as unsafe – because you haven’t worked out the risks involved.

Can you see where this is going?

Yes, you guessed it – failure to provide a safe system of work is a breach of Section 2 of the Health & Safety at Work Act 1974, and can be punished using the same tariff as given above, i.e. a £20,000 fine at the Magistrates’ Court, or an unlimited fine and up to 2 years’ imprisonment at the Crown Court.

Just to complete the picture have a look at my previous blog posting – “You’re guilty – now prove you’re not!” – which I published on 27^th July 2010. This explains how health & safety law can be biased against the accused company, thus making any legal challenges more difficult to fight.

Risk assessments are a vital tool in health & safety management, and are treated as such in law. Ignore them at your peril.

Are your company drivers safe?

A fellow member of the 4Networking group, John Armitage of 1-2-1 Vehicles, recently published a posting regarding safety in the UK haulage industry (http://www.4networking.biz/forum/5/71711.htm).

In his posting John quoted comments concerning driver safety which had been made by a Nottingham based firm of lawyers, Rothera Dowson. In essence the concern was that reported attacks on heavy goods vehicles were on the increase and some drivers were having to seek medical/ psychological attention as a result of being assaulted.

Both John and the legal firm offered good advice on driver safety, but I thought I would take the opportunity to take a closer look at the whole topic of driver safety, and not just in the haulage sector.

 Any UK company employing a driver for any purpose, irrespective of whether the job is full- or part-time, has to meet certain health & safety criteria. Put briefly these are:

• the role of the driver has to be subjected to a risk assessment
• this risk assessment must take into account all aspects of the job, from lone worker safety to vehicle maintenance to manual handling etc
• once the risk assessment has been done, and the significant risks noted, the employer has to devise – and then implement – a safe system of work.

However, it is not enough just to complete a paper exercise, tick a few boxes and then leave the drivers to their own devices. A key (and often forgotten) requirement of the underpinning Health & Safety at Work Act 1974 is that the employer must provide appropriate health & safety information, instruction, training and supervision. And it is in the area of supervision that busy companies could easily fall down.

Let’s look at a couple of examples where lack of supervision can lead to safety breaches which, in turn, could lead to the employer being prosecuted.

Consider a haulage driver working long distance runs who has a vehicle fitted with a sleeper cab. It is quite acceptable for him to sleep in the cab overnight (it’s designed for that very purpose) but where is he supposed to park while he is taking his rest break?

A prudent risk assessment will stipulate that he parks in a secure lorry park for his rest periods, especially at night, and his delivery schedule should take that factor into account. The secure park will not be free, so the company may well give the driver a cash “float” so he can pay the parking fees.

There should be some form of accounting system in place to match parking costs with receipts, but what happens if that system is not in place, or is not enforced? The driver may be tempted to park in a lay-by off the main road and pocket the parking fees as an additional “bonus”.

Leaving aside the dishonesty/ disciplinary aspect of such behaviour the driver also leaves himself  (or, indeed,  herself) vulnerable to robbery and associated violence, which could be construed as a breach of health & safety. Should the worst happen then the employer might face prosecution for failing to provide adequate supervision – an offence which carries a maximum penalty of a £20,000 fine at the Magistrates’ Court, or an unlimited fine at the Crown Court.

A similar scenario could be applied in the case of (say) a sales representative with a national remit. The company may have a policy of paying for an ovenight stay at a motel to prevent long, and therefore tiring, journeys, but what happens if that procedure is not enforced?

If the sales representative decides to ignore company policy and instead to drive a long distance home after a heavy day, and then has a serious accident caused by fatigue, will the company be held liable? The practical answer is “Probably, yes” because it may be argued that the company did not have an effective safety management system in place.

This short article cannot possibly deal with all the permutations and combinations of factors which can affect professional drivers. The above are just a couple of examples of where companies can find themselves in serious trouble if they fail to plan and then manage driver operations properly and with due regard to health & safety.

Just as a sombre footnote I should point out for UK readers that – following the House of Lords judgement in R v Chargot & others [December 2008] - the Court will assume that the employer is responsible for any accident which occurs in the workplace. It will be necessary for the employer to prove that they did all that they reasonably could to avoid the accident (which includes providing adequate supervision). Failure to prove this point will probably result in conviction and substantial fines.

What does “unlimited fine” really mean?

Penalties for breaches of health & safety are governed, in the UK, by the Health & Safety Offences Act 2008. This stipulates that the maximum financial penalty for most h&s offences is a £20,000 fine at the Magistrates’ Court (the lower court) and an unlimited fine at the Crown Court.

These penalties sound severe – and so they are – but I wonder how many people think that they are somehow academic, and that the courts will never really go to these limits, even though they’re on the statute book?

Well, if you are of that optimistic school of thought here’s a true story that may cause you to change your mind.

 In 2009 the Crown Court in London tried a case resulting from an accident on a building site in London, an accident in which an employee had been injured. This had only come to light when the employee, who had been left unable to work, had gone to the local Social Security office to claim State sickness benefit. The office was unable to trace the accident (because, as it later transpired, it had never been reported) and the matter was handed over to the Health & Safety Executive (HSE).

HSE inspectors visited the site unannounced and found that h&s was apparently an alien concept as far as the site management was concerned. In other words - it just didn’t exist!

Matters were not helped by the attitude of the company’s owner and sole director who tried to frustrate the enquiry at every turn. However, it seems he went a little too far when he decided to play at being a lawyer. He realised that under English law a “limited company” such as his has a separate legal identity, and that gave him an idea.

He reasoned that since the HSE were investigating his company he could thwart the enquiry by closing his existing company down, transferring all the assets to a new company, and then carrying on as before. The HSE investigation would grind to a halt because the target of the enquiry would have ceased to exist, and the new company could not be held liable for the alleged mistakes of the old. Simples!

Unfortunately for the would-be “legal eagle” he hadn’t read Section 37 of the Health & Safety at Work Act 1974. Which was a shame, because the section says that it is possible to prosecute a director of a company if it can be shown that the offence was due to his “consent, connivance, or neglect” (such lovely phraseology, don’t you think?)

So that’s what the HSE did – they prosecuted the director and not his company.

He lost his subsequent trial at the Crown Court and had to face the legal consequences. The Judge fined him £99,500 for various breaches of health & safety, and then, in addition, ordered him to pay legal costs amounting to a further £150,000.

Do the sums and you’ll see he received a personal financial penalty of just under a quarter of a million pounds!

As if that were not enough to make his eyes water the Judge rounded off his day perfectly by warning him that, should he fail to pay up in full, he would go to jail.

So, when the law says “unlimited fine” it seems that’s just what it means.

Of course, I could be wrong ….. but I don’t think so. Do you?

Property development – the hidden dangers?

Judging by the plethora of programmes on television it seems that many people are turning to property development as a way to make a second (or even a first) income.

On the face of it, and if the TV is to be believed, the procedure is simple. You buy a run-down property at auction for a minimal price; give it an overhaul; and then sell it on for a profit.

Then you take the profits back to the auction room; buy a run-down property ….. and repeat the process until sufficient wealth has been accumulated.

What could possibly go wrong?

Well, quite a bit actually. Especially if you decide to cut costs by becoming your own project manager, because once you put that hard hat on and call yourself “project manager” you assume responsibility for health & safety across the site. Yet how many property developers, whether full time or part time, have any idea about health & safety management?

Let me make clear at this point that I’m talking in the main about people who meet the following criteria:

• They are developing the property for profit, i.e. they are not developing their own residence but a second property which they will sell rather than live in
• They are taking day-to-day responsibility for the project rather than just buying a property, appointing a builder, and telling him (or her) to get on with it.

It is also worth pointing out that any development project done for a profit has health & safety implications, especially when you are asking the builder to implement your design changes, such as moving walls around, or if the project will involve more than 500 “man days” of work. However this article is aimed primarily at those developers who wish to assume personal control of the site.

So, what h&s responsibilities could be assumed by default by becoming project manager? Each site will vary, of course, but in general the novice manager could be held liable for items such as:

• Control of vehicles entering/ leaving site [HSE statistics show that during 2008-9 approximately 56% of fatal workplace accidents involving vehicles were caused by people being hit by low-speed manoeuvering vehicles]
• Falls from height
• Accidents due to slips and trips
• Accidents caused by their recruiting incompetent contractors
• Failure to provide a safe workplace
• Failure to provide adequate site welfare facilities
• Failure to provide adequate fire risk assessments/ fire fighting equipment
• Breaches of their “duty of care” to sub-contractor’s employees/ site visitors/ general public

And, of course, if they are renovating an old property, then there is also the serious problem of managing any asbestos which may be found in the building. Asbestos is a highly dangerous substance and is not a matter for the amateur. To identify, remove and dispose of asbestos materials you need to be specially trained and qualified because getting it wrong can lead to people suffering a slow, painful death.

No doubt some readers, having got this far, will be muttering unkind phrases such as “jobsworth” and “‘elf and safety gone mad” under their breath – and that is their right. But, to avoid any risk of confusion, let me just explain why I’ve posted this article.

I’m not trying to dissuade people from trying their hand at property development, and I fully support such entrepreneurs (after all, I am an entrepreneur myself and have my own h&s training company – see www.managementandsafety.co.uk). However, contrary to the image generated by TV, property development is a serious business and has to be taken seriously.

Put another way, if you want to wear the hard hat, and an accident happens, it will do you no good telling the Court that you were just an amateur and didn’t understand your responsibilities. They will take the view that since you are doing property development as a business you have to behave like a business, and that means understanding your responsibilities – especially when they affect other people’s safety.