Legal matters

Associate solicitor in Weightmans’ Regulatory Services Unit, Glyn Thompson, carries on the theme of falls from height by adding a legal perspective to the problem and looking at the duties and particular obligations the regulations bring to the workplace and to employers.

March 2008 saw the launch of HSE’s “Shattered Lives” campaign. It is aimed at reducing death and personal injury from slips, trips and falls in the workplace.

Specifically targeted at the food retail, food manufacturing, catering, building and plant maintenance and construction sectors, the campaign has a universal goal of reducing what HSE regards as an unacceptable death and injury rate from an easily managed risk source.

The poignancy of the campaign was reinforced on 14 April 2008 by the release of the death and personal injury statistics consequent to falls from height.

During 2006/2007 45 workers died and 3409 suffered major injuries following falls from height.

Statistics for slips and trips were recorded separately. While that death rate is the lowest on record for this accident type, falls from height remains the highest cause of workplace death across UK industry accounting for almost 19% of the 241 workplace deaths recorded last year.

The 6% fall on the preceding year (48 deaths out of 217) was not enough to satisfy the authorities and the MQR sectors can expect active regulation from HSE on this issue.
So what can the MQR sectors do to avoid a visit from Her Majesty’s Inspectorate of Health and Safety and, potentially, a hefty financial penalty? Well here are a few suggestions.

The Regulations

As seems to be the trend in the Health and Safety field of late, the Government has fairly recently brought the law in this area up to date with the Work at Height Regulations 2005.

Those regulations were amended two years later but without relevance to the MQR sector. The ‘new regulations’, as they continue to be called, have sought to make compliance clearer and easier to achieve but the clarity in definition offered has caused some surprise.

Section 2 of the regulations detail that a place of work – from which a fall from height can occur – can include a place at or below ground level.

The rational is a conscious shift away from allowing people to think of “height” in the traditional sense – of being above ground – towards considering height as state in which there is the potential to ‘fall’ a distance.

For the MQR sector in particular, which ordinarily works at or below ground level and could historically have been forgiven for adopting a ‘traditional’ way of thinking about work at height, compliance with these regulations might well have understandably fallen down the priority list. This is the chance and now is the time to get things right.

The Duties

The regulations are fairly succinct and can be quickly read. Of the 20 sections that make up the regulations only 12 are substantive with just 10 being of general application. And it is worth repeating from the previous article that the regulations lay down the following principles for duty holders:

• avoid work at height altogether where possible
• if unavoidable, use work equipment or other measures to prevent falls with a view to eliminating risk
• where risk cannot be eliminated, use work equipment or other measures to minimise the distance and consequences of a fall should one occur.

Where work at height is unavoidable, obligations are achieved by ensuring that:

• all work at height is properly planned and organised
• all work at height takes account of weather conditions that could endanger health and safety
• those involved in work at height are trained and competent
• the place where work at height is done is inspected and declared safe
• equipment for work at height is appropriately inspected
• the risks from fragile surfaces are properly controlled, and
• the risks from falling objects are properly controlled.

Particular Obligations

The MQR sectors should be particularly aware of Sections 9 and 10 which relate to ‘fragile surfaces’ and ‘falling objects’ respectively.

Fragile surfaces are an ever present risk. The regulations outlaw working from or near such unless it is not reasonably practicable to avoid doing so. If work from such a place is unavoidable, steps – such as platforms, coverings and guardrails must be fitted and warnings as to danger must be given.

For those working below ground level, falling objects from above is an ever present threat. Where they present a risk of personal injury, reasonably practicable steps must be taken to prevent items falling. Where items cannot be prevented from falling, workers must be prevented from being struck.

These obligations apply as much to the intentional tipping and even storage – such as heaps of material – as they do to inadvertent falling in the traditional sense.

Finally, where – owing to the nature of the work – a workplace is inherently risky as far as work from height is concerned, access must be restricted and clearly restricted as such.

Conclusion

Regulations of this nature, which feel straightforward and familiar, are something of a double edged sword.

On the one hand they are easily read, understood and implemented but on the other, that familiarity can lead to contempt.

The number of company directors who respond to a HSE investigation with “Who needs training on how to use a ladder?” is equalled only by the number of companies that have face fines for failing to comply with these simple regulations.

With HSE red hot on this issue at present, sound advice for the MQR sectors is to get your rungs in a row!

Glyn: 0151 227 2601