Health & Safety Law and Risk Assessment
Prior to the recent government H & S review the ongoing effects of which are yet to be consolidated, to be successfully sentenced under the Health & Safety at Work Act, the prosecution must prove that a risk was ‘reasonably foreseeable’ and that all actions deemed ‘reasonably practicable’ were not taken by the Duty Holder, resulting in unnecessary exposure or injury from that risk.
In reality, the interpretation of such phrases as ‘reasonably foreseeable’ are at best difficult and continue to occupy numerous column inches and court room discussions usually ending in the conclusion of there being no ‘hard and fast’ rules. Indeed, the most recent H & S review has suggested that the HSWA itself may need re visiting.
In the first instance a risk must be material, that is it cannot be remote or fanciful in anyway AND it must be reasonably foreseeable. To give an example, were a ceiling tile to fall from a recently refurbished office / factory roof and hit an employee causing injury – is this reasonably foreseeable? Probably not, your lawyer would argue. An employer would have to provide evidence that they had considered material risks in the form of a risk assessment.
Then comes the issue of ‘reasonably practicable’, over a number of recent cases we have seen that local authority inspectors deem almost anything and everything to fall within the realms of ‘reasonably practicable,’ whilst the HSE tend take a more circumspect view. One issue that keeps cropping up is that of HSE technical guidance – many would view this as the HSE interpretation of ‘reasonably practicable,’ though not always the case, a good example being removal of pack from cooling towers.
However, should the prosecution be successful in proving both of the above, the penalties, both fiscal and personal, are certainly not to be laughed at. A Magistrate’s Court can fine up to 20K and imprison for up to 6 month for H & S offences, while a Crown Court enjoys sentencing powers of unlimited fines and 2 years imprisonment (aside from the Corporate Homicide bill). Added to this, it used to be the case that the Court would take into account whether or not a substantial fine would put a Company out of business when determining the final amount. Not so anymore, the view now is very much that if an organisation is unable to operate safely then they are better off not operating at all!
The most common reason for the imposition of fines is the lack of appropriate risk assessment or a failure to act on the findings. Either way, the most basic and fundamental step to staying out of Court is proper and comprehensive risk assessment.
As a closing thought, the prosecution does not even have to prove injury / damages simply that a risk was created or there has been unnecessary exposure to risk. With that in mind, can you afford not to conduct a thorough risk assessment of your property!?!
For more information about risk assessment or managing risks, please contact Nemco Utilities at www.nemco-utilities.co.uk
