A SPECIALLY COMMISSIONED REPORT NAVIGATING HEALTH AND SAFETY LAW pot

A SPECIALLY COMMISSIONED REPORT
NAVIGATING HEALTH
AND SAFETY LAW
Ensuring compliance and
minimising risk
Chris Pope
THOROGOOD
PROFESSIONAL
INSIGHTS
THOROGOOD
PROFESSIONAL
INSIGHTS
A SPECIALLY COMMISSIONED REPORT
NAVIGATING HEALTH
AND SAFETY LAW
– Ensuring compliance and
minimising risk
Chris Pope
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Other Thorogood
Professional Insights
Corporate Governance: Guidance
on accountability requirements
David Martin FCIS FCIPD FIoD
Discrimination Law and

Employment Issues
David Martin FCIS FCIPD FIoD
Effective Recruitment: A practical
guide to staying within the law
Professor Patricia Leighton and
Dr Giles Proctor
Employee Sickness and Fitness for
Work
Gillian Howard
Employment Law Aspects of
Mergers and Acquisitions
Michael Ryley
Strategic Customer Planning
Alan Melkman
Tax Planning for Businesses and
their Owners
Peter Hughes
Waste Management: The changing
legislative climate
Caroline Hand
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contact Thorogood by telephone on
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The author
Chris Pope is an active Chartered Member of the Institute of Occupational Health
& Safety with 16 years experience in health and safety and over 30 years in the

construction industry. He also has a role locally and regionally in other health
and safety associations. He manages a small training consultancy and is a
consulting editor for three publications for Wolters Kluwer (formerly Croner)
and has his work regularly published. Chris travels widely advising small to
medium-sized enterprises in chemical, education, engineering, entertainment,
construction and retail.
NAVIGATING HEALTH AND SAFETY LAW
iii
THOROGOOD PROFESSIONAL INSIGHTS
Contents
1 ENFORCEMENT AND INSURANCE 1
Introduction 2
Who are the inspectors? 2
How to respond to a visit from an inspector 3
What are the powers of an inspector? 4
How to respond to enforcement paperwork 5
Insurer’s viewpoint 6
Responding to conditions of insurance 7
A working relationship with the insurer 8
Compensation and civil law 8
Gross negligence and personal responsibility 9
Contributory negligence 10
Constructive dismissal 10
Summary 11
2 DOCUMENTATION 12
Health and safety law 13
Civil law 13
Criminal law 14
The duty of care 14
Finding out about the law 15

Management of Health and Safety at Work Regulations 16
Reasonable forseeability 17
Safe system of work 19
Purchasing 19
Risk assessment 20
Manufacturer’s handbook 21
Maintenance logbook 22
Statutory inspection records 22
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THOROGOOD PROFESSIONAL INSIGHTS
Pre-use inspection 23
Training 23
Legally required training 24
The lottery 25
Safe employees 26
Example health questionnaire form 26
3 POLICY WRITING 28
A typical policy 29
Arrangements 30
Filling in the detail 33
Golden rules 34
Specialist areas of policy writing 34
Access equipment 35
Charity work 35
Charity volunteers 35
Charity specialist knowledge 35
Charity home visits 36
Charity events 36
Emergencies 36

Employing under 16s 37
Employing under 18s 38
Flexible working including agency and foreign workers 38
Food 38
Horseplay 38
Landlords 39
Machinery 39
Older workers 39
Purchasing 39
Premises including stairs and outside areas 40
Special hazards 40
Training 40
Violence and lone working 40
Women 41
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THOROGOOD PROFESSIONAL INSIGHTS
4 ACCIDENT MANAGEMENT 42
Why have accidents? 43
Reporting and recording 43
Immediate actions 44
First aid 44
Fact finding 45
RIDDOR 47
Immediate reporting 48
Reporting within 10 days of the incident 48
Recommendations 49
5 CONTRACTOR CONTROL AND
CONSTRUCTION SAFETY 50
Definitions 51

Risk transfer 51
Who does what? 51
Selection procedure 52
Small contractors 54
Managing and monitoring the work 54
Completion 55
Construction 55
6 RISK ASSESSMENT AND MEASUREMENT 57
Introduction 58
Occupational health and hygiene 58
Manual handling 59
Repetitive Strain Injury (RSI) 60
Occupational asthma 60
Noise 61
Vibration 61
Stress 62
Chemicals, dusts and vapours 63
Hot and cold and wet working environments 64
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THOROGOOD PROFESSIONAL INSIGHTS
Fire 64
Legionella 66
Asbestos 66
Slips and trips 67
Process safety 67
Computers 68
Protective equipment and safety devices 68
Traffic management 69
Other risks 70

7 LEGISLATION, INSPECTIONS 72
Main legislation 73
How to arrange for inspections, and their scope and frequency 76
8 THEORY INTO PRACTICE 80
Human error and improving the safety culture 81
Behavioural safety 83
Risk perception 84
Monitoring tools 84
Health and safety committee 85
Inspection 86
Audits 87
Safety tours 87
Reviews 87
The safety bible: HSG 65 88
Permits 89
Safety people 90
Safety organisations 91
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THOROGOOD PROFESSIONAL INSIGHTS
APPENDIX 93
Choosing a consultant 94
Who does what – some specialists 94
Important reference works 95
Specific risk checklists 95
Catering risk checklist 96
Cleaning checklist 97
Construction risk checklist 98
Engineering workshop checklist 99
Grounds risk assessment checklist 100

Houses of multiple occupation 101
IT department risk assessment checklist 105
Office safety checklist 106
Master hazard checklist 107
Useful websites 108
NAVIGATING HEALTH AND SAFETY LAW
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THOROGOOD PROFESSIONAL INSIGHTS
Chapter 1
Enforcement and insurance
Introduction 2
Who are the inspectors? 2
How to respond to a visit from an inspector 3
What are the powers of an inspector? 4
How to respond to enforcement paperwork 5
Insurer’s viewpoint 6
Responding to conditions of insurance 7
A working relationship with the insurer 8
Compensation and civil law 8
Gross negligence and personal responsibility 9
Contributory negligence 10
Constructive dismissal 10
Summary 11
THOROGOOD
PROFESSIONAL
INSIGHTS
Chapter 1
Enforcement and insurance
Introduction
Health and safety is a vast and expanding subject. New regulations seem to come

into force even before the existing legislation is thoroughly adopted by
employers. This report has been written to help employers avoid finding out
what to do through enforcement action when regulators start asking for
documents and procedures that are not familiar. Every endeavour has been made
to provide information that is absolutely up-to-date. Fortunately in the UK the
regulatory authorities provide for a consultation and lead-in period before the
full adoption of changes. The Health and Safety Executive (HSE), who are charged
with most of the responsibility, are largely concerned with providing assistance
to those employers who are already helping themselves towards compliance.
The other body that interacts with the employer could be the environmental
health and safety department of the local authority. Again the general ethos
is to put significant effort into nudging the employer towards improved health
and safety.
Who are the inspectors?
The exacting standards of health and safety are often clarified through the inter-
pretation of the criminal and civil courts. The criminal courts deal with breaches
of the law, while the civil courts deal with establishing if compensation can be
offered to injured persons. In the case of criminal law, inspectors use the various
acts and regulations enacted by National Government to evaluate Health and
Safety standards. Where compensation is sought, the law will be used by the
aggrieved party and the employer(s) to illustrate acceptable standards of health
and safety.
To enforce criminal law inspectors usually like to deal with the proprietor or respon-
sible manager, for this reason they often make appointments. However, they are
entitled to make unannounced visits. Inspectors may even find themselves caught
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THOROGOOD PROFESSIONAL INSIGHTS
up in a situation by default. Inspector Hywell Jones witnessed an illegal way of
working when stuck in a traffic jam. He spotted five men sitting on the back of

a mechanical excavator acting as counterbalance weights. Together with the driver
they shared penalties totalling £3,830. These men now have a criminal record.
Response guideline 1
Ensure that all of your staff know that any inspector must be directed to
senior management on first arrival.
Inspectors develop skills and instincts for their subject and an unfavourable
first impression – untidiness, an incorrect working practice or failure to wear
Personal Protective Equipment (PPE) will inspire the question why?…and leave
it unanswered. This will influence the inspector’s impressions from the outset
of a visit, and most of them will want to challenge the business representative
as to their understanding and competence in the duties placed on them by law.
How to respond to a visit from an inspector
Proceed with caution! The majority of inspectors are reasonable and are hoping
to find a well-informed manager. They will look at premises, equipment and
work practices to check that the manager has properly evaluated them for health
and safety. Many managers will have obtained documentary evidence of this
evaluation process from an external consultant or suitably trained and compe-
tent member of staff. The inspector will be interested to see that the process
is understood by the manager and that the findings of any risk assessment or
record keeping have been followed up.
Response guideline 2
Do not show documents to an inspector that you do not understand.
If this response guideline leaves you feeling vulnerable then ensure that your
consultant or competent member of staff is to hand to help you answer the
inspector’s questions.
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What are the powers of an inspector?
When inspecting, both the HSE and the local authority will exercise judgement

in deciding the degree of compliance necessary. Many of the regulations allow
for a customised approach. When serving a notice on a non-compliant
employer for health and safety failings they will quote regulations or Acts as
justification. It is therefore important to have sifted through legislation to find
out which parts are applicable to the firm, well before such a visitation. On many
points, provided an employer’s representative is able to show a competent appre-
ciation of how to comply there will be room for negotiation. Obviously there
will need to be evidence that many steps have been taken.
Inspectors have a right to inspect at any time of night or day. Should their entry
be resisted a police officer may be used to assist! Where they have reason to
believe that there is the risk of serious injury from a work activity they can require
work to stop. They have legal powers to issue a formal document to the owner
– a Prohibition Notice. This takes immediate effect and the effects cannot be
deferred even if a formal appeal is made. Failure to comply with the require-
ments of a Prohibition Notice is a contravention of the law. Employers should
be aware that unlike most criminal prosecutions inspectors themselves may
instigate criminal proceedings, they do not have to refer to the Crown Prose-
cution Service.
If the danger is endemic and the inspector regards the risk of injury as not quite
so imminent, an Improvement Notice may be served. This allows the owner to
continue working in a manner considered to be unsafe provided that the health
and safety problems are satisfactorily addressed within a specified time, often
three months. Where the employer feels the notice to be unjustified then an
appeal can be made to an Employment Tribunal within 21 days of receipt of
the notice. During the tribunal the improvement notice is suspended. Unlike
the police the HSE do not have to seek advice or permission in deciding if
bringing a prosecution forward is necessary. Take their views seriously, and
indicate that you appreciate their input and impress them with your willing-
ness to rectify shortcomings promptly.
Response guideline 3

Never obstruct an inspector.
In February 2005 HSE reported that a builder received a four-month custodial
sentence. He was found guilty of injuring an inspector who called him down
from an unsafe work platform.
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THOROGOOD PROFESSIONAL INSIGHTS
In the aftermath of an accident, inspectors are entitled to gather evidence and
may dismantle equipment, either to remove it as evidence or, if they regard
something as very dangerous, they can require immediate steps to be taken
to render it safe. They can ask questions of anyone, and they must be
answered. No one can legally refuse to answer.
How to respond to enforcement paperwork
Following a visit an inspector may write with advice. There will be a clause
indicating that the advice does not have to be followed; it would be wise to
either follow the advice or substitute some alternative but equally effective action.
Response guideline 4
Always respond quickly to correspondence.
All too often an extension to a time limit that has been set is required. If a good
working relationship has been built the inspector will be willing to give more time,
particularly if the application is submitted promptly. If the application is sent in
after the expiry date given in the notice, the application will be rejected.
Example
This successful letter was written on behalf of a family butcher and greengrocer.
Be polite in any response, and demonstrate that you have carried out any
immediate measures to reassure the inspector that you are treating the corre-
spondence intelligently:
Re Butchers
I write in regard to the improvement notice we have received regarding Personal
Protective Equipment.

We have now received delivery of chain-mail gloves. Furthermore four pairs
of safety footwear are on order.
We are searching for a local health and safety adviser and we await 48 hour
delivery of HSE guidance recommended by you.
Would you be kind enough to grant us 21 days extension to the notice?
NAVIGATING HEALTH AND SAFETY LAW
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THOROGOOD PROFESSIONAL INSIGHTS
Insurer’s viewpoint
Insurers need to quantify the risk presented by potential clients. Part of their
assessment of risk may involve a visit to the employer’s premises by their Health
and Safety Department. The tool they use to measure risk will be some form
of audit. Use the visit to demonstrate willingness to make improvements and
begin tentative negotiations where you believe there is room for an alterna-
tive interpretation. It is possible that a letter will be sent after the visit detailing
various shortcomings which may be drafted in fairly uncompromising terms.
As with all insurance the insurer has a vested interest in avoiding a payout, so
do not hide information as this could invalidate the policy.
Example insurer’s letter
We confirm that the liability risk assessment of your premises has now been
completed and we enclose our risk improvement sheet. The requirements are to
be completed by … and confirmed to us when done. You will note that our risk
advisor will carry out another survey on … to review progress of the requirements.
It is most important that you take immediate action to ensure that our require-
ments are completed
This letter was sent to the proprietor of a very small quarry. It followed an audit
carried out on behalf of a national top tier insurer. Among many other unpalat-
able issues the audit drew attention to the lack of Display Screen Equipment
assessment. The solution involved purchasing a pack of five forms, VDU worksta-
tion checklist, ISBN 0 7176 2617 2 (from HSE books tel 01787 881165), and filling

out one of them, perhaps 30 minutes work.
The main body of this report will help you to find your way around the inevitable
jargon and occasional cussedness of such audits.
NAVIGATING HEALTH AND SAFETY LAW
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THOROGOOD PROFESSIONAL INSIGHTS
Responding to conditions of insurance
One rather obvious approach to the audit report is to contact the author and
ask for a more detailed explanation of what needs to be done to achieve compli-
ance. It is unlikely that full compliance is essential, provided a clear effort is
made which can be substantiated with evidence. Actually meeting the condi-
tions is unlikely to merit a revisit unless a significant claim is made. If the report
leaves you in no doubt that health and safety in your organisation is in serious
disorder, credibility may be achieved by employing a consultant to liaise with
the insurer. In the appendix there are guidelines on how to choose a consultant.
On some occasions insurers ask for the impossible, or expect much higher
standards than the enforcement agencies. Don’t be afraid to prepare a
reasoned argument, based on the principles of risk assessment, which are
described later. Provided you are effectively preventing loss the insurer
should be satisfied, after all you could choose to take your business elsewhere.
Example
(Note: a flare stack discharges surplus flammable gas during gas manufacture)
We are in receipt of your schedule of requirements, which we are endeavouring
to resource. We would like to suggest an alternative solution to the problem
of access to the flare stack. You will appreciate that the whole of our site is fully
fenced with a 2m high security fence. Your schedule rightly requires another
barrier around the flare stack, which is very hot when operating. We have consid-
ered the need for this additional 2m high fence you suggest. Our risk
assessment for this risk, however, highlights that only well informed personnel
and supervised visitors will access the area around the flare stack. The flare

stack only operates in exceptional circumstances. We feel it appropriate to install
1m high fencing to act as demarcation around this intermittent hazard.
NAVIGATING HEALTH AND SAFETY LAW
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THOROGOOD PROFESSIONAL INSIGHTS
A working relationship with the insurer
Insurers need to be kept informed and consulted. The insurer will have entered
into a contract with the employer to provide cover for a known level of risk.
Understandably there may be a fear that informing the insurer of a change of
circumstances will inevitably lead to an increase in premiums. If the circum-
stances change then the insurance cover may be inadequate; and it could be
that the insurer may offer free advice on compliance if this happens. Seeking
advice from the insurer is not a sign that the insured is incompetent; on the
contrary, it indicates that risk is proactively managed. Failure to keep the insurer
advised before re-inspection indicates to the insurer that health and safety is
not being adequately managed. This may suggest that the enterprise is in need
of a higher premium or refusal to insure.
It is very important to have in place an efficient procedure to follow when there
is an accident. This ensures that if necessary proper investigation can be made
to pre-empt a potential liability claim. In Chapter 4 of this report the protocol
to follow in response to an accident is explained.
Compensation and civil law
It is not certain that all claims will result in an award of compensation. It must
be proven that the person, persons or corporate body (by which they act) who
was responsible for the method of working was negligent. A small proportion
of cases are taken to the courts, the insurer’s normally minimise loss by agreeing
to settle. The size of the settlement and the apportioning of who is to pay is
determined by the severity of any loss and the sharing out of responsibility for
the loss.
Health and safety, when implemented systematically can narrow the scope and

impact for these compensation claims. The importance of documentation in
litigation proceedings cannot be overstressed. My colleague Mike Browne
CFIOSH, RSP, Chartered MCIPD expresses this fundamental mechanism, “No
records, no proof, no defence.”
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THOROGOOD PROFESSIONAL INSIGHTS
Gross negligence and personal responsibility
In the last couple of decades society has begun to adopt the concept that the
cause of injury is always attributable to someone else. The Health and Safety
at Work Act emphasises a degree of personal responsibility for safety. There
have been prosecutions taken against individual employees and the self
employed who have shown total disregard for statutory safety provisions or
who have contravened in-house safety rules.
Example
A secondary school teacher, Brian Watkins, undertook a fairly normal but never-
theless hazardous casting operation without keeping pupils at a safe distance.
He also failed to wear the safety visor required by his employer. Not only did
Mr Watkins suffer burns and an eye injury resulting in him taking medical retire-
ment, he was also fined £250 and required to pay £4,232.05 in costs.
Often the degree of accountability is proportional to the level of responsibility.
Under civil law the employer is regarded as vicariously liable for the negligent
acts of his employee, provided the employee was engaged in work. There are
some hazy boundaries to the apportioning of responsibility. As an example, a
teacher engaged in ‘unpaid’ extra curricular activity linked to his employer would
be regarded as working for his employer, and therefore covered by his insur-
ance. An employee who, against company instructions, used works equipment
might find his employer’s insurer would contest responsibility for any liabili-
ties arising from an accident.
Health and safety legislation takes precedence over other considerations. Perhaps

for religious or medical grounds an employee cannot comply with in-house safety
rules, such as the wearing of safety footwear. The employer, having explored
any suitable alternative employment where the requirement is relaxed, is permitted
to terminate employment.
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THOROGOOD PROFESSIONAL INSIGHTS
Contributory negligence
Where an employee suffers an injury and sets in motion a claim for damages, it
may proceed to court where the insurer contests responsibility for the accident.
If a judge finds that some part of the responsibility for the injury may be ascribed
to the injured person he is entitled to make a settlement for compensation for the
injury, less a figure determined by the degree of fault. Employees should be made
aware of the effects of this decision which is termed contributory negligence.
Example
In Leask v. City of Glasgow District Council (1992) SCLR 792, Mr Leask injured
his back when he slipped while lifting a pump from a bench. He claimed that
an oil spillage was present. It was suggested that a system ought to have been
in place to deal with the removal of such contamination. Later Mr Leask accepted
in evidence that he might have caught his heel rather than slipping on oil or
grease.
He was awarded damages for the injury as it arose from his work activity but
because he failed to report the slipping to his doctor, there was no evidence
of the presence of oil or grease, and there was a system (i.e. employees were
responsible for the cleanliness of their own workplaces!) the figure awarded
was reduced by 50%.
Constructive dismissal
Employees are entitled to their own opinions on health and safety. If their
opinions are shared by the legislation then they will be rightly indignant about
breach of safety, and of course they should express these concerns. The Manage-

ment of Health and Safety at Work Regulations actually confer a duty on
employees to do just that. Furthermore, legislation is in place, which will be
explained later, to require employers to consult with employees before changes
are made to work which affect health and safety. There are of course times when
employers seem to ignore such advice. Where an employee considers that failing
to make improvements is putting them at a significant risk of injury or ill health
they may choose to notify anonymously the relevant enforcement agency: either
the HSE or the local authority. An employee may feel, however, that despite
NAVIGATING HEALTH AND SAFETY LAW
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THOROGOOD PROFESSIONAL INSIGHTS
making the relevant noises nothing is being done. If the employee chooses to
resign, they may seek compensation through an employment tribunal for
constructive dismissal. For a claim to succeed the employee will need to demon-
strate to the satisfaction of the tribunal that the precautions that were taken
were not those that would have been taken by a reasonable employer. For
example, a claustrophobic employee who had managed to successfully manage
her claustrophobia for ten years was construed to have been constructively
dismissed when she was offered no assistance following a panic attack.
Example
In Freer Bouskell v C Brewster [2003] LTL, Freer Bouskell had been given a light
and airy office to help her cope with her claustrophobia but on her return from
the Christmas break she found her situation untenable because she had been
moved to a much smaller office where she could not manage her condition.
Despite making representations through the correct channels to her employer
Freer was signed off work by her doctor due to anxiety. This was a joint issue
case involving disability discrimination and her right to compensation was upheld
because the employer failed to make reasonable adjustments.
Summary
The law on health and safety and the judgements passed in the civil courts have

jointly contributed to extensive and well documented health and safety
standards. An employer is likely to be judged deficient if there are failings in
the way work is managed which result in accidents if they could have been
prevented, had the safety standards been implemented and maintained.
Personal liability has to be addressed where employees are deemed negligent,
but in general the employer is liable for the negligent actions of their ‘servants’
provided the adverse consequences can be proven to have arisen in the course
of their employment, and not whilst engaged in activities not authorised by
the employer.
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Chapter 2
Documentation
Health and safety law 13
Civil law 13
Criminal law 14
The duty of care 14
Finding out about the law 15
Management of Health and Safety at Work Regulations 16
Reasonable forseeability 17
Safe system of work 19
Purchasing 19
Risk assessment 20
Manufacturer’s handbook 21
Maintenance logbook 22
Statutory inspection records 22
Pre-use inspection 23
Training 23
Legally required training 24

The lottery 25
Safe employees 26
Example health questionnaire form 26
THOROGOOD
PROFESSIONAL
INSIGHTS
Chapter 2
Documentation
Health and safety law
After receiving training in health and safety some managers become fearful.
Courses might suggest to them that health and safety prosecutions lurk around
the corner for even the most diligent, and that prosecutions generally perse-
cute a named individual. Another fear concerns the potential effect of
prosecution on insurance premiums, and indeed the likely difficulty in securing
insurance cover in the aftermath of an accident. In Chapter 1 the concept of
health and safety duties was explained in terms of the expectations of inspec-
tors and insurers. In this chapter the demands of criminal law as exercised by
inspectors is placed in context with civil law, which interests insurers and their
legal representatives. This is an area of practice that searches for proof that
sufficient preventative measures were taken prior to an accident. The laws of
health and safety include both the strict interpretation of statutes such as the
COSHH regulations and the decisions made in the courts about apportioning
blame when deciding on compensation.
Civil law
Individuals who have suffered loss will endeavour to receive compensation,
generally through the negotiations held between insurers and the claimant’s
legal representative. The outcome of these negotiations will depend on the
evidence that both parties are able to muster. This should be regarded as one
of the key drivers towards encouraging employers to keep comprehensive health
and safety records. If disputes are unresolved by the opposing parties they may

choose to take the dispute before the courts. In the court it must be established
on the balance of the probabilities that the employer failed to discharge his duty
of care. The duty of care may be regarded as the employer’s obligations to his
employee or other aggrieved party.
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Documentation guideline 1
Obtain signatures.
Make sure that individuals mentioned in health and safety documenta-
tion sign for the receipt of safety equipment, safety instruction etc. This
may later be crucial evidence that the employer has discharged his duty
of care.
Criminal law
There are many health and safety laws. This should be no surprise as there are
several thousand HSE employees working ceaselessly to generate and harness
the latest research on the causes of occupational ill health and accidents. Along-
side this prodigious work there is the influence of the European Community.
The net effect of all these advances is a plethora of official guidance and regula-
tion. For a prosecution to succeed, it must be established by the courts that,
beyond all reasonable doubt, the accused failed to fulfil their statutory duties.
This seems to be on a par with the structure of the law as applied to other illegal
activities. For an individual alleged to have stolen property the evidence gathered
by the prosecution must be beyond all reasonable doubt in order to convict.
In health and safety prosecutions the accused must prove their innocence.
Normally accidents do not go unnoticed and they are clearly linked to the
arrangements for safety which prevailed at the time of the accident. For a case
to be successfully defended the employer must prove that, despite the obvious
consequences, he nevertheless fulfilled his legal duties to try to prevent the
accident. The proof should show that the accident did not arise as a result of

the employer’s negligence.
The duty of care
Under the terms of the Occupiers Liability Acts of both 1957 and 1984, an
occupier (in many cases the employer) is required to exercise reasonable care
for the safety of those who are on his premises. Similarly, under the doctrine
of vicarious liability, the employer is responsible for the acts of his employees,
and to a degree, any agency or casual workers engaged by him, at all material
times when they are engaged on his business. This may be despite the fact that
the employee is incompetent. The fact that a person is incompetent is not their
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THOROGOOD PROFESSIONAL INSIGHTS
fault. The fact that an employer has failed to match the skill of the employee
to the task is the employer’s fault.
Legal minds tend to have their own view on what is reasonable. The layman
can appreciate the varying characteristics of reasonableness by reviewing the
archive of cases previously settled which the legal profession employ to deter-
mine what is reasonable care.
Example
In Hogg v. Historic Buildings and Monuments Commission for England [1989]
3 CL 285, the custodian of Pendennis Castle, a Mr Hogg, fell while negotiating
ancient granite steps because of the siting of a gully in the steps to carry away
rainwater. Mr Hogg claimed damages against his employer. It was decided that
the employer had discharged his duty of care to maintain the steps, which
although not conforming to modern building regulations (they dated back to
1540) were nevertheless maintained in a good state of repair considering their
antiquity and the gully in question was not obscured. This case emphasises that
all the circumstances of a case have to be taken into account.
Documentation guideline 2
Keep records.

Keep records of all actions taken which have a positive influence on health
and safety. The castle owners in Hogg would have found it useful to produce
records of regular maintenance to strengthen their position.
Finding out about the law
An employer who engages the services of a safety consultant could request a
safety audit of the business to highlight shortcomings. A satisfactory audit will
highlight the laws that are applicable to the work of the employer, and the accom-
panying report could include a set of recommendations on methods of
complying. These suggestions could include supplying personal protective equip-
ment such as gloves or carrying out 14 monthly inspections of fume extraction
equipment (usually referred to as LEV).
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Documentation guideline 3
Store information.
Keep every bit of information you find about compliance with the law in
a filing system. Make sure that the guidance you keep is from a trusted
source – accredited to an authoritative body such as the HSE or IOSH (Insti-
tute of Occupational Health and Safety). There is no shortage of sales staff
willing to bait the hook for the sale of safety equipment with so called legal
requirements.
Beware of internet-derived information: some of it can be attributed to
sources that have an axe to grind. However, the HSE website can be trusted
to give an authoritative statement on many issues.
Management of Health and Safety
at Work Regulations
The Management Regulations apply to all work activities. They set the require-
ment for risk assessment. Risk assessments are used to analyse the dangers
involved in the work carried out for an employer. A risk assessment does not

need to be complex to reach the standard expected. The standard is suitable
and sufficient. Suitable means relevant to the task. Sufficient means applying
enough analysis to identify the likely causes of injury, and ways of preventing
injury. Generally, risk assessments must be in writing only where the organi-
sation has five or more employees. Where a task is often repeated, perhaps in
different locations, but with essentially the same level of risk (danger) a generic
risk assessment is sufficient. The generic risk assessment can adapted to encom-
pass any variable risks, by acting as a template. The site specific risk assessment
should mention the specific location and actual level of risk at that location,
and any special dangers and precautions. For example, a cleaner might have
to clean in the same way as normal but the premises might house potentially
violent people – the risk assessment would need to show how that specific risk
was controlled.
The fundamental reason for measuring risk is to enable the employer to priori-
tise their resources. High risks are those with a potential to cause serious injury,
and these need to be controlled as top priority. The highest risk is where serious
injury is likely to happen, such as may occur during some aspects of police work.
If there are aspects of a task that cause only superficial injuries and which are
particularly unlikely to happen then they will be accorded a lower risk, or may
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