Duty of care: 5 questions you might need to answer to keep you or your directors out of jail
A House of Lords judgement in 1932 determined that organisations owe a duty of care, not just to their own employees and direct customers, but to anyone who could be affected by the organisation. Case law has shown that employers must protect people from harm to their health through exposure to noise, vibration, asbestos and other harmful substances as well as from accidents. Increasingly, employers have learned that they also have a duty of care to protect people’s mental health.
Some organisations have attempted to ‘contract out’ their responsibilities to consultants or contractors. However, case law shows that organisations remain responsible. For example, when a quarrying company was charged with having inadequate risk assessments for respirable silica exposure, the management thought that the consultant appointed to look at health risks would be wholly responsible. The consultant was fined, but so was the employer. The HSE Principal Inspector pointed out: “You cannot outsource your responsibilities — the duty of care remains with you as an employer.”
Since the change in the sentencing guidelines for health and safety offences issued by the Sentencing council in 2018, there has been a noticeable increase in fines, and in the number and duration of custodial penalties. More people are going to jail for longer for health and safety offences. Jail sentences commonly range from a few weeks up to three years, although the courts have the power to jail people for up to 18 years. If the worst happens and someone dies at work, the more evidence you have that all reasonable measures have been taken to prevent harm, the lower the sentence –
Here, we look at 5 questions you might need to answer to keep you or your directors out of jail.
1. Can you find all your risk assessments and show they have been reviewed appropriately?
It is a legal requirement to identify hazards and appropriate controls, and to document the significant findings. Most people do this through tabulated risk assessments. But where are they stored, and how are they used? Have the risk assessments been reviewed recently? Who was involved? I’ve challenged some suppliers about the suitability of their risk assessments, only to be told that the writer no longer works for the organisation, and no one else is prepared to defend the assessment! You need to be able to show that risk assessments have taken account of any changes to the way things are done, and to any new evidence of risk that comes from accidents or near misses.
2. How quickly could you pull together a list of all the regulations that you apply in your organisation?
You cannot ‘risk assess’ your way out of complying with regulations that have specific requirements. If you don’t already have a list of the legal requirements that apply to your business, create one, and use it to audit the controls you have in place. If any buildings within your control could have asbestos, you need to follow the Control of Asbestos Regulations (CAR); if you have machinery, the Provision and Use of Work Equipment Regulations (PUWER) will apply, and specific regulations such as the Lifting Operations and Lifting Equipment Regulations (LOLER) and the Pressure Systems Safety Regulations (PSSR) might also be relevant. The best way to do this is to create a legal register, held centrally, accessible by all.
3. What evidence do you have that controls identified as essential in risk assessments are in place?
Too many organisations see risk assessments as a compliance exercise, to be locked away until someone asks to see them. Good risk assessments include practical controls, such as a reference to instructions on how to do a job safely, or to training requirements for people doing a task. You need to be able to show that people know how to do the job safely. Build the controls from your risk assessments into your procedures and safe systems of work, and reinforce this with training. Where controls are dependent on periodic actions, like inspections or refresher training, records need to be systematic and available for review.
4. How easily could you bring together evidence that you have reviewed and acted on near misses and minor accidents?
Most organisations understand the importance of reporting and investigating near misses and minor accidents. If you can identify underlying causes, you can take corrective action to prevent major accidents. However, too many reporting systems rely on emails, paper or Word forms, and spreadsheets where details have to be copied from reports. With a manual system, it is difficult to manage every incident report with sufficient detail, and to identify trends which might help prevent further mishaps. Centralise all incident information into one, managed location and use incident management software to identify patterns, review risk assessments and improve controls.
5. Can you prove that you are meeting all the requirements in the regulations for reviews and inspections?
Many of the regulations mentioned require documented examinations, inspections and reviews. For example, PSSR requires a written scheme of examination to be prepared and followed for higher risk pressurised systems such as autoclaves and LPG storage systems; LOLER requires thorough examination of all lifting equipment, with maximum intervals defined in the legislation for different types of equipment; PUWER requires a process for preventative maintenance and for inspection at suitable intervals; CAR requires regular reinspection of asbestos. Your risk assessments will also have identified maintenance and inspection actions as controls. Actions will arise from these reviews and inspections, so you must be able to show that these have been followed up in a reasonable period of time.
Hopefully, by making sure you can answer these questions positively, you can avoid accidents leading to a civil claim or a prosecution. But if the worst happens you will be in a better position to avoid large fines – and time in jail – if you can bring the evidence together smoothly.