Health and Safety - Guilty Until Proven Inocent?

Risk manager John Neil, from business insurance specialists Alan Boswell Group, takes a look at the 2010 IOSH (Institute of Occupational Safety and Health) conference and the debate to reverse the Burden of Proof principle.

At this year's IOSH conference a panel of high profile lawyers suggested that one of the next major developments in health and safety law could be further consideration of the ‘reverse burden of proof’ principle (i.e. guilty until proven innocent).

Delegates were told that the Health & Safety (Offences) Act has created a “criminal feel” by making imprisonment an option for a wider range of health and safety offences in the lower and higher courts. Under the Act, if an individual as an employer is convicted of breaching sections 2 or 3 of the Health and Safety at Work Act (HSWA) for failing to ensure the health and safety of employees or non-employees, they could face a custodial sentence of up to two years.

In such cases, once proven that an exposure to risk existed, section 40 of the HSWA kicks in and the burden of proof falls on the defendant to prove that they acted in a reasonably-practicable manner to manage the risk.

It is a firm belief in some legal circles that the fact imprisonment is now possible for more offences means it is fairly certain that a future decision, in which an individual is found guilty, will be challenged on the grounds that the ‘reverse burden of proof’ principle is disproportionate.

In David Janway Davies v HSE, in 2003, the defence challenged the lawfulness of section 40 on human-rights grounds, arguing that it was not in line with the principle of ‘innocent until proven guilty’. The Court of Appeal rejected the argument and upheld that section 40 was indeed proportionate, citing, as one of the main reasons for its decision, the fact that the offence did not carry a potential prison sentence

As prison is now a more likely scenario a new human rights dimension could be argued and the general feel was that this will again be referred to court and a new decision will need to be made.

Other speakers however were less hopeful stating that the ‘reverse burden of proof’ principle is also applied to other regulatory areas, such as proving to the Police that you hold a driving licence.

For more information on risk management and for expert business insurance advice, speak to Alan Boswell Insurance Brokers on 01603 218000, or visit our web site – http://www.alanboswell.com/business-insurance/risk-management-services.aspx

HSE relaunches its "Shattered Lives" campaign

Risk manager John Neil, from business insurance specialists Alan Boswell Group, reviews the relaunch of the HSE’s "Shattered Lives" campaign.

Despite the previous amount of time and space given to the subject of slips, trips and falls this area of workplace accidents and incidents still remain the most common cause of injuries at work in Britain today. In fact, according to official workplace health and safety figures, more workplace deaths are the result of falls from height than any other cause.

Other major campaigns have been seen to have a significant effect on the areas where they have targeted with a noticeable reduction in accidents and incidents but for some strange reason the slips, trips and falls figures remain stubbornly high; Because of this the HSE is launching a new phase of its Shattered Lives campaign, aimed at reducing slips, trips and falls in the workplace to improve work safety.

The new phase of the Shattered Lives campaign will target those sectors where a high number of slips, trips and falls occur each year and will specifically target areas such as education, construction, building and plant maintenance, food manufacturing, food retail and hospitality. The hard hitting campaign involves raising awareness of the impact of slips, trips and falls in the workplace and directs people to the new Shattered Lives website (www.hse.gov.uk/shatteredlives) for practical advice and guidance.

On the new campaign website, people will be able to find out information on how they can easily and cost effectively, reduce the risk of slips, trips and falls in the workplace. They will be able to see what other organisations, such as Sainsbury's and First Line Digital, have done. Also included on the site is an online tool (STEP – Slips and Trips Elearning Package) and a work at height access equipment toolkit (WAIT – Work at height Access equipment Information Toolkit). Advice ranges from how to deal with spills and other slip risks, to the importance of using ladders correctly to reduce the risk of falling from height.

The HSE stated, "making improvements doesn't need to cost the earth and we are encouraging people to visit the Shattered Lives site, where they will be able to get simple and cost effective solutions to help manage slips, trips and falls hazards in their workplace."

Fully supported by the TUC, General Secretary Brendan Barber said "Every one of the 40 deaths caused by slips, trips and falls were preventable...Unions will warmly welcome this practical hard-hitting campaign and will be raising the issue with employers wherever and whenever they can."

All slips trips and falls can be prevented by undertaking suitable and sufficient risk assessments and implementing cost effective risk management solutions but a fundamental part of success is engaging employees in the process so they take control of their own safety and understand what control measures they need to employ.

For more information on risk management and for expert business insurance advice, speak to Alan Boswell Insurance Brokers on 01603 218000, or visit our web site – http://www.alanboswell.com/business-insurance/risk-management-services.aspx

Health and safety again becomes a political football

In a major speech this month David Cameron pledged to crack down on Britain’s excessive health and safety rules and regulations which he described as “the great knot of rules, regulations, expectations, and fears that I would call the over-the-top health and safety culture”.

Cameron, in his quest for votes, surely had the wrong profession in his sights. The media which perpetuate the myth that somehow health and safety is to blame for much of society’s ills, should surely be his target for its part in falsely reporting on health and safety issues.

However, he actually highlighted an important cultural issue by announcing that something has gone seriously wrong with the spirit of health and safety in the past decade. He acknowledged that the biggest problem is the way health and safety rules are interpreted and applied, and attacked the commercialisation of lawyers’ incentives to generate litigation and the growth of ‘ambulance-chasing’. He said “Businesses, organisations and individuals operate under the shadow of the worst-case scenario. The more vulnerable they feel, the more cautiously they act – and the more stringent their health and safety processes become.”

Reaction to the speech has been varied. Brendan Barber, general secretary of the TUC said that employers were not over zealous in their application of health and safety regulation and the figure of over 246,000 people being injured at work last year indicates the opposite. He added that in the UK we had more health and safety regulation 35 years ago than we do today and regulation today is simpler and easier to understand

IOSH (Institute of Occupational Safety and Health) welcomed the opportunity to move away from a culture of blame to one that’s based on better risk intelligence and said it would welcome any serious debate about risk and responsibility.

St John Ambulance, also welcomed the debate Cameron has opened saying as it stands at the moment, there is a great deal of confusion about the regulations. All of us working in health and safety need to do more to make clear how they should be interpreted. Organisations want to do the right thing, but don’t always know how. Somehow common sense gets lost, and we end up with the stories we all see about ‘health and safety gone mad’.

For more information on risk management and for expert business insurance advice, speak to Alan Boswell Insurance Brokers on 01603 218000, or visit our web site – http://www.alanboswell.com/risk-management/

HSE Asbestos Campaign Re-Launched

Working with asbestos? Know the risks; check you are up to date with your risk management and business insurance.

Asbestos was used in hundreds of different products and buildings from the 1950’s to the mid 1980’s. Asbestos cement was used up until 1999 in a variety of different premises and materials. Any building that was constructed or had major refurbishment between the 1950’s and mid 80’s is likely to contain some type of asbestos containing material. Use of asbestos peaked in the 60’s and early 70’s – premises built or refurbished during this time are the most likely to contain some form of asbestos.

When asbestos fibres are inhaled they can cause serious diseases which are responsible for around 4000 deaths a year, the single greatest cause of work related deaths in the UK. There are four main diseases caused by asbestos:

• mesothelioma (which is always fatal) 
• lung cancer (almost always fatal) 
• asbestosis (not always fatal, but it can be very debilitating) and  
• diffuse pleural thickening (not fatal).

On 2 November 2009 the HSE re-launch their campaign “Asbestos – The Hidden Killer” and its message is very clear – take asbestos very seriously.

The Control of Asbestos Regulations 2006 came into force on 13 November 2006 and affected owners, occupiers, and managers of and those responsible for non-domestic premises. These people are referred to as “the dutyholders”. The regulations require the dutyholders to:

• Manage the risk from asbestos or place a duty on them to co-operate with whoever manages the risk.
• The dutyholder must identify if there is asbestos in the premises, the amount and its condition. (It is to be presumed that materials contain asbestos unless there is strong evidence to the contrary).
• The asbestos risk must be suitably and sufficiently assessed and a management plan prepared detailing how the risk is to be managed.
• All steps needed to put the plan into action must be taken by the dutyholder and the plan and arrangements must be reviewed and monitored.
• Anyone who is liable to work on the asbestos or disturb it must be provided with information on its location, condition and where work with asbestos is being undertaken, the enforcing authority must be notified
• The dutyholder must ensure adequate information, instruction and training is given to employees
• Every dutyholder must prevent exposure to asbestos or reduce it to as low as reasonably practicable and provide adequate personal protective equipment.

In most cases, if you are working with asbestos you will need a licence to do so.

Summing up, any work that may involve exposure to asbestos needs to be very carefully planned and carried out. Penalties for failure can be business threatening with very large fines being imposed by courts.

For more information on risk management and for expert business insurance advice, speak to Alan Boswell Insurance Brokers on 01603 218000, or visit our web site – http://www.alanboswell.com/risk-management/

Managing Risk for Work Experience Placements

John Neil, Risk Management Consultant at business insurance specialists Alan Boswell Insurance Brokers, looks at the things businesses need to think about when they take on young people as part of a work experience programme.
It's back to school time and for many year 10 and 11 students this means getting ready for work experience. These workplace visits can be a bit of a health and safety minefield for businesses...
There's a lot to think about when a child arrives at your business premises from a local school for a short period of work experience. All too often young people are involved in accidents and experience shows that they must be carefully managed and supervised whilst on a work experience placement.

One thing you may not realise is there are a few extra health and safety regulations when employing people under the age of 18 and far as health and safety law goes, students on work experience placements are employees.

The main thing to note is you must assess the risks to anyone under 18 years old before they start work experience. You must also tell the young person what these risks are.

There's no need for a new risk assessment every time someone arrives for work experience. A generic assessment covering young workers is fine, so long as it's relevant however the assessments needs to take into account the young people's "psychological or physical immaturity, inexperience, and lack of awareness of existing or potential risks."

Of course, as with all risk assessments, employers have to follow up with some control measures.

The Management of Health and Safety at Work Regulations include an additional requirement which prohibits the employment of young people where the risk assessment identifies harmful exposure to toxic substances, radiation, extreme cold or heat, vibration, noise, work which is considered beyond their physical or physiological capacity, or work where the risk of accidents will not be recognised by young people, because of their carelessness, lack of experience, training or awareness. There are also some specific prohibitions on the employment of young persons in certain trades or the use of particular plant and machinery.

There is one other regulation worth noting. This applies to children below the minimum school leaving age. Here, parents or carers must be told about the findings of the risk assessment and the control measures being put in place before the child starts work experience.

For more information on risk management and for expert business insurance advice, speak to Alan Boswell Insurance Brokers on 01603 218000, or visit our web site – http://www.alanboswell.com/risk-management/

Risk Assessments – Not interesting but very necessary

Revisiting your risk assessments could reduce accidents in the workplace by up to 75% and lead to lower business insurance premiums.

I have always stated that the most important part of any health and safety regime is the correct identification of risk and highlighting methods of control, then documenting this in the form of an easily understood risk assessment that is properly communicated to staff.

When you then pass this message on enthusiasm seems to wane, eyes roll and people seem to lose the will to live. I could talk about how risk assessments lie at the heart of all health and safety legislation and practice or about how they are a legal requirement, but instead to highlight their importance I will share with you some details of research from a major UK insurer.

Aviva took a detailed look at around 7,500 employers' liability insurance claims - incidents where someone was killed or injured at work.

In particular they wanted to know what was behind most of these cases. The thing most employers hadn't done to stop these incidents happening was “failure to carry out a proper risk assessment." This finding was attributed to 38% of all business insurance liability claims.

The next two most common failings after risk assessments were "lack of training" - found in 27% of cases - and "poor housekeeping" – found in 11% of cases.

So as you can see, despite the apparent lack of interest the words risk assessment conjure up, they are very important.

When next asked what's really important when it comes to health and safety, I'm going to say "risk assessment, training and housekeeping".

Because by Aviva’s reckoning that should cover just over three-quarters of all incidents where someone ends up losing their life or suffering an injury at work.

So probably the best piece of health and safety advice anyone can give is make sure you do your risk assessments.

For more information and advice on business insurance and risk management, please visit: http://www.alanboswell.com/business_insurance/

Hauliers Beware

It has been revealed that reported lorry crime has doubled over the past year, with 4,171 incidents detailed by mid-December 2008. Less than 15% of lorries stolen are ever recovered.

Organised crime is now targeting the freight industry, according to Truckpol.( Truckpol is a national intelligence unit which forms part of the national ACPO Vehicle Crime Intelligence Service, collating and disseminating statistical data and intelligence on road freight crime within the UK)

The theft of large goods vehicles and their loads causes significant economic and logistical harm to manufacturers, operators and retailers alike and the estimated cost to the UK economy is up to £250 million.

"One of the problems that we have is that when we have anything of value, that could be stolen or sold on, we have to make it secure," Don Armour, of the Freight Transport Association, told the BBC.

Alan Boswell Risk Management advises that those responsible for ensuring the safety of drivers, vehicles and loads should plan ahead, consider secure and safe parking areas, fitting tracking devices, providing adequate security training & advice, risk assessment for all drivers, as well as displaying deterrent notices on vehicles. An effective risk managment programme makes good business sense and could reduce your motor fleet insurance costs.

For further information on types of criminal activity and the latest reported incidents visit http://www.truckpol.com/

Forklift truck inspections – How often?

The Lifting Operations and Lifting Equipment (Regulations) 1998 (LOLER) classify forklift trucks as lifting equipment and place a responsibility on the employer to maintain them in safe condition and ensure they are suitable for their intended use. Additionally they require a thorough examination.

Many people assume that thorough inspections are an annual requirement but that is not always the case. The frequency between inspections depends on the type of truck, how often it is used and what it is used for.

Below is a guide for inspection frequency:

• Trucks used up to 40 hours per week - Annually
• Trucks used from 41 to 80 hours per week – Every 6 months
• Trucks used over 80 hour per week – Every 4 months
• Trucks used to lift personnel such as in a basket on forks – Every 6 months
• Trucks fitted with an attachment other than a sideshift – Every 6 months
• Trucks working in arduous conditions – Every 4 months irrespective of use

Modern forklifts normally have onboard computers that record usage so anyone who inspects the truck will know how much it has been used.

So remember if your forklift truck inspector tells you that annual inspections are not adequate he may not be trying to just get more work!

For more information on risk management and business insurance, visit www.alanboswell.com