The Health and Safety Executive have published what they consider to be the top ten most bizarre health and safety bans or restrictions coming to their attention over the last year.
The list follows the long running “Myth of the Month” series and the continued attempt to remind employers and the public that health and safety law should be applied in a proportionate, common sense way.
Topping the list is the story that Wimbledon officials tried to close Murray Mount after rain because of fears that spectators may slip on the grass.
On a strict analysis of the Health and Safety at Work etc Act 1974 it is arguable that they were right to do so. Section 3 of that Act places a legal duty on employers to conduct their business in a way that avoids, so far as reasonably practicable, exposing people not in their employment to risk to their health and safety. It is foreseeable that somebody could slip on wet grass and suffer an injury and it is a reasonably practicable measure to prevent access to the grass.
However, that strict analysis does not factor in the need to apply the legislation in a way that is proportionate. The law requires employers to carry out risk assessments and there is a great deal of free guidance on the HSE website to help employers understand what a risk assessment is and how it should be undertaken. Having identified a hazard (such as wet grass) the employer must then consider how likely it is that an accident or incident will result from the hazard and how serious the likely consequences will be. If the outcome of that thought process is that it is likely that there will be a lot of accidents but the consequences will be minor then it would be appropriate to take some steps to protect against the accidents. Similarly, if the outcome is that accidents will rarely happen but the consequences will be serious then the risk of harm must be tackled. If the outcome is that accidents will rarely happen and the consequences will be very minor then the employer need do very little. The cautious may choose to put up some notices warning that the grassed areas may be slippery and asking visitors to proceed carefully.
Coming in at number four on the list is the story of a pensioner, aged 85, paying for the local authority to collect an unwanted television set from her home that she was unable to dispose of herself only to be told that she must move it herself to an agreed collection point at the kerbside. The council are alleged to have told her that their employees could not enter her house to remove the television set because of health and safety regulations and fears of insurance claims.
No doubt the council would have had Section 2 of the Health and Safety at Work etc Act in mind when they drew up this policy. That piece of legislation stipulates that an employer must ensure, so far as is reasonably practicable, the health, safety and welfare of its employees. There are also more specific provisions in the Manual Handling Operations Regulations 1992 that tell employers how to control the risk of harm that can result from physical handling of loads at work.
Again, the starting point is risk assessment. In fairness to the council the law does tell employers that manual handling of loads should be avoided where possible but where it is not possible (for example, where your core business or activity is providing the service of moving loads for customers) then steps must be taken to reduce the risk of injury. That can be achieved in various ways. In some cases it may be possible to use mechanical aids. An obvious example of this would be the systems that we see regularly for refuse collection where bins have wheels to make them easier to move towards a refuse collection vehicle that mechanically lifts the bin to empty it. Where mechanical aids cannot be used then another measure that may help employers to comply with their duty would be to provide employees who are going to be undertaking lifting as part of their work with training in safe lifting techniques. The point is that the risk of injury from lifting a television set ought to be easily managed by an employer without the need to resort to banning the activity and placing the risk of harm onto the customer.
The list goes on to include a ban on deliberate dodgems collisions, bans on Royal Wedding street parties, preventing pupils from playing on monkey bars without supervision and a ban on games of football at school unless the ball is made of foam.
The flip side of the coin is that there are still employers who are falling far short of the common sense standard that the law requires.
Earlier this week a Livingston company were fined £36,000 following an accident causing serious injury to an employee. In this case a forklift truck was loaded and operated in a way that restricted the driver’s vision. The driver was unaware that two fellow employees were working in the area and as he drove the vehicle forward he was alerted to a problem by a colleague shouting to him. He reversed the vehicle unaware that he had already struck another colleague and unfortunately reversed the vehicle over him again. The HSE investigation revealed that the company had failed to adequately assess the risks associated with operating fork lifts in the workplace and had not put in place simple measures such as training, high visibility work wear and systems to segregate pedestrians and vehicles.
Our legal regime for health and safety aims to prevent accidents like this but it is also apparent that there are some employers either misinterpreting what they must do to comply with the law or perhaps using health and safety as an excuse for unpopular decisions. As a result the whole system has been under intense scrutiny over the last year and most recently it has been subject to the “Red Tape Challenge” where individuals were invited to tell government which health and safety laws should be kept and which should be scrapped. The consultation period has now closed and we anticipate hearing the views of Professor Lofstedt later in the year.
Whatever your own views on the subject of health and safety it is certainly an area of the law where there are interesting times ahead.