We are all familiar with finding the law in Acts of Parliament and regulations but is that the only place to find the law in relation to health and safety – and does it matter?
In health and safety, the main Act is the Health and Safety at Work etc Act 1974, and the plethora of Regulations under it. Shipping’s equivalent is the Merchant Shipping Act 1995. Is it enough to comply with Acts and Regulations or do you need to go further?
Codes and Guidance
The HSE publishes Approved Codes of Practice (ACOPs) and guidance. ACOPs are approved by the HSE and give practical guidance on how to comply with the law. Following the advice given will generally allow a party to demonstrate compliance with the law, although it can of course use alternative methods. HSE Guidance advises how to comply with the law and may include technical detail and information to be found elsewhere. The Maritime and Coastguard Agency (MCA) publishes Merchant Shipping Notices (MSNs), which convey mandatory information that must be complied with under UK legislation. MSNs tend to relate to Regulations (made by Statutory Instrument) and provide more corresponding technical detail. MCA also issues Marine Guidance Notices (MGNs) which give advice and guidance, sometimes referring to Codes, relating to the improvement of the safety of shipping and life at sea, among other things.
Why it matters
If a prosecutor proves that a party charged with an alleged breach of health and safety legislation did not follow the applicable ACOP, then that party needs to show that it complied in another way. Similarly, any ACOP or Guidance may be used to show the appropriate standard expected in an industry, in the event of a civil claim.
In the marine sphere, MCA uses MGNs to provide guidance even though there is no statutory requirement for compliance. In a recent MGN dealing with the recovery of persons from the water, it was made clear that although it deal primarily with mandatory requirements under the International Convention for the Safety of Life at Sea 1974 (SOLAS); it was also used to provide guidance for vessels to which SOLAS did not apply – thus demonstrating that these international provisions should be regarded as industry guidance. MCA provided that the MGN “should, as far as practicable, be observed by the owners and operators of non-SOLAS vessels”. It included a non-exhaustive list of 12 types of non-SOLAS vessels including workboats, pilot boats, fishing vessels and mobile offshore drilling units.
In a recent determination in a Fatal Accident Inquiry into the death of a fisherman who was not wearing a personal floatation device, the Sheriff made a specific recommendation to the industry that all small fishing vessel owners, operators and managers, employers of fishermen and skippers and fishermen on small vessels should make themselves aware of specified MSNs and MGNs on the subject and stated they should “ensure that they are followed”. The Sheriff indicated, however, that despite a substantial quantity of material being published by MCA and others for the benefit of fishermen, the relevant publications did not appear to be making their way to the intended recipients. Although her Determination was not directed towards any individual party and is therefore not binding, the strong language used does demonstrate the courts’ expectation that people will refer to guidance.
Compliance with guidance is key
Safety of employees and workers is paramount, so awareness of and compliance with guidance, or compliance that achieves an equivalent standard, is the only safe course of action. Failure to do so may result in an organisation being the subject of scrutiny by the court. The scale of the task should not be underestimated. The four documents referred to by the Sheriff on this one subject alone run to over 100 pages and are directed to all manner of fishing vessels and crews across the country. Enabling communication of the message is therefore key.