Lincolnshire hospital fined more than £100000 after elderly patient suffered major burns after fall’ (ITV News, 2022), ‘Hospital worker injured when building work and poor path forces her onto uneven ground’ (Thompsons Solicitors, 2012) and ‘NHS faces £200000 damages claim from injured employee’ (Stephensons, 2011). These are just three headlines detailing incidents in medical facilities.
Without delving into each, it is clear that health and safety law is now central to commercial success. However, this was not always so, and myths have become entrenched in operations, leaving some unable to tell fact from fiction. However, as soon as an incident occurs, management quickly sees the myth-based traps that they have just walked into.
In seeking to counter some of these myths, five senior lawyers from Eversheds Sutherland gave their views on why they should be debunked.
Myth number one: we can delegate our liability to our contractor
Many firms see the attraction of using contractors. However, for Phil Crosbie, the ability to pass on liability is not one of them, observing that, for decades, there have been prosecutions of those who have failed to properly manage contractors.
As he explains, ‘the use of contractors forms part of a client's ‘undertaking’—that is, the way it runs its business—and, therefore, invokes a duty of care under Section 3 of the Health and Safety at Work etc Act 1974’.
The natural question that is raised is that, if the appointment of contractors does little to mitigate liability, why are they used at all? There are, of course, two good reasons: contractors are often the experts in what they do, and they may be able to ‘bulk buy’ labour in a way that a client cannot.
Nevertheless, Crosbie sees a conundrum: accepting a duty of care in a situation when the client does not have the expertise and/or the resource necessary to provide constant specialist support. Helpfully, he says that ‘the legal duty of care requires clients to do only what is ‘reasonably practicable’’. To this, he adds: ‘There is an acceptance that clients need to rely on the expertise of a contractor in the right circumstances and that a client may need to trust a contractor to ‘do the right thing’ when they are not around’.
As to what is regarded as ‘reasonably practicable’, Crosbie points to what has been laid out by the Health and Safety Executive (HSE): the need to plan work appropriately; select the most suitable contractor; ensure the contractor is provided with the right information; provide suitable monitoring and supervision; and regularly review the contractor's performance.
Myth number two: mental health at work is not regulated
In the past few years, awareness and education around mental health and wellbeing have improved societal attitudes. According to Sarah Valentine, an assistant coroner for the Inner South London Circuit, this ‘has assisted in reducing the stigma and prejudice associated with these unseen illnesses; the shift in attitudes has encouraged organisations to direct focus on the ‘health’ in health and safety management.’
None of this should be new to management for, as Valentine says, ‘ensuring workplace health, safety and welfare has long been a requirement under 1974 legislation, and organisations have a duty to assess levels of work-related mental health issues and implement measures to remove or reduce identified risks as far as reasonably practicable’.
She details how guidance from the HSE focuses on work-related stress but also acknowledges that work can aggravate pre-existing conditions and bring on symptoms or make them worse. ‘Organisations’, says Valentine, ‘often fail to address these risks and frequently wellbeing in the workplace is forgotten’. She continues, noting: ‘This absent mindlessness can have far-reaching consequences. Statistically, the number of suicides has increased year on year since 2013. As an unnatural death, they are referred to the Coroner's Service for investigation’.
» Guidance from the Health and Safety Executive focuses on work-related stress but also acknowledges that work can aggravate pre-existing conditions and bring on symptoms or make them worse «
Valentine tells how, in her work, when considering such cases, enquiries will often extend to the suitability and implementation of workplace wellbeing frameworks: ‘A focus on training, signposting of services, disciplinary communications and line manager check-ins to consider workloads and concerns are all matters that I would seek to explore’. Additionally, if there are inadequate procedures and assessments, failures in training managers and educating the workforce on mental wellness, she warns that an organisation may find itself subject to a Prevention of Future Death Report.
Myth number three: only companies that do not care about health and safety have accidents
Any organisation can have an accident and, as Amy Sadro knows, they happen when a series of events or circumstances come together. Referring to what is known as Reason's Swiss cheese model, Sadro explains that ‘an organisation that prioritises health and safety will often have more layers of defence to those factors lining up, but it does not mean that they cannot or will not line up’.
As she says, ‘no employer can eliminate all risks—as in life, they exist in work, and are to be managed and minimised … even the best workplaces are vulnerable to unwanted events and sometimes the events that lead to an incident are only a hair away from no incident happening at all’.
So, why do incidents happen? In answer, Sadro says that there is never usually one reason, but there is usually complacency, stagnation or a culture that the health and safety job is done. That is why she says that ‘it is so important for organisations to regard health and safety as an ongoing business-critical risk, monitored at the highest levels and periodically revisited’. In her view, ‘the real measure of an organisation is how it evolves its culture after an accident to make what is an awful situation into one which puts health and safety at the heart of everything it does’.
Myth number four: good health and safety advisers just tell people off when things go wrong
Catherine Henney thinks that references to health and safety conjure up negative stereotypes, and ‘quite often’, she says, ‘this includes descriptors about health and safety advisers being ‘fun spoilers’, ‘killjoys’ or ‘bureaucrats’’. However, in Henney's view, ‘it is an unfair, misleading and unhelpful myth that needs busting’.
She refers to an occurrence in 1972, when Lord Robens published his report on health and safety regulation in the UK. Written in the wake of the Aberfan disaster that took place 6 years earlier, ‘the report recommended wholesale revisions to the old Factory Inspectorate regime, which led to the introduction of new health and safety regulations in the 1990s, as well as an increase in corporate governance, leadership and a standards-driven approach to health and safety’.
Furthermore, Henney notes, ‘the Management of Health and Safety at Work Regulations 1992 introduced responsibilities upon employers to carry out risk assessments and health surveillance, as well as requirements relating to the sharing of information with employees, competence, capabilities and training’.
Turning to the role of the health and safety adviser, Henney says it is ‘to assist organisations in implementing strategies and control measures that appropriately address risks arising in the workplace, and to ensure that hazards are controlled’.
Notably, she says, the regime requires that advisers ‘ensure that all employees understand the health and safety systems in place within the business; importantly, why and how these are designed to protect them, and what they must do to protect themselves’. The role, says Henney, necessarily requires ‘engagement and cooperation with the workforce, to secure their buy-in to those safety arrangements, and thereby encourage compliance with the organisation's safety policies and procedures’.
From her perspective, good health and safety management systems recognise that compliance cannot be achieved by ‘unilaterally imposing rules and seeking to enforce them’. Rather, they seek to engage, discuss and involve the workforce in those rules and procedures.
Myth number five: even if the Health and Safety Executive investigates, unless it prosecutes, we will not be hit with costs
Following a conviction for a health and safety offence, the HSE will seek to recover its investigation and legal costs. However, it often comes as a surprise that it can also charge for time spent investigating matters that do not result in legal proceedings.
Paul Verrico says that, since its controversial introduction in 2012, ‘when the HSE inspects a company and identifies a material breach of the law, the company will have to pay a fee for intervention (FFI)’. He details how work undertaken by the HSE is recorded on an hourly basis. This includes the time spent identifying the breach, investigating and taking enforcement action, as well as the provision of advice to rectify the breach.
Verrico explains that a material breach occurs where ’the HSE inspector deems it to be serious enough to notify the company in writing.’. That said, HSE inspectors are required to apply HSE guidance to their decisions, and any enforcement decision should be based on the principles of the HSE's enforcement decision-making frameworks. Even so, Verrico says that ‘the subjective nature of the FFI regime has attracted much criticism. After all, if the breaches identified are not considered by the HSE inspector to be material, no FFI invoice will be issued for any time spent by the HSE’.
He tells how many labelled the scheme as unfair and argues that ‘it was particularly unjust for the HSE to play judge, jury and executioner’. However, having faced the threat of a Judicial Review in 2017, the HSE introduced an independent panel to decide invoice disputes.
His advice to companies is to carefully scrutinise FFI invoices upon receipt and raise any queries promptly with the HSE: ‘With a current hourly rate of £160, FFI invoices can be significant, particularly where multiple site inspections or specialist support is engaged by the HSE for complex issues’.
Summary
It is very clear that health and safety law is taken very seriously by the HSE, and it should be considered in the same light by organisations. Those that are in any doubt of their legal position should not gamble on the veracity of a myth.