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The Management of Health and Safety
Health and Safety requirements are one of the largest and most complex areas to face Managing Agents when they are looking after and controlling a property; Health and Safety impacts on almost every area of occupation and activity for residents, contractors, members of the public and any employees of the Managing Agents.
Because of its complex involvement in so many areas, Health and Safety legislation is relevant to lots of specific issues and activities but also worth looking at from a macro view and in its own right.
The bigger picture
Did you know the fatal injury rate in the construction industry is 1.62 per 100,000 workers, over three times the rate of death compared to all other industries in the UK? Common causes of death include falls from height, entrapment and being struck by a slow-moving vehicle. In 2005, the construction industry was also responsible for the largest number of occupational cancer deaths – a total of 3,700 – out of 8,000 work-related cancer deaths with the main cause being asbestos exposure.
The penalties for breaking health and safety law are much tougher now than they were previously with new sentencing guidelines introduced on 1st February 2016 for Health and Safety offences as well as corporate manslaughter. The imposition and severity of the sentence will hinge almost exclusively on the culpability of a defendant company and in March 2016, the HSE (Health and Safety Executive) prosecuted 46 company directors and senior managers, 12 of which received prison sentences, up from a figure 15 the year before.
The statistics make for sobering reading and so an understanding of health and safety legislation and the management of these issues in terms of how they impact the role of Managing Agent or landlord is essential.
One of the requirements of Health and Safety legislation is that those appointed to assist Managing Agents or landlords with any aspect of health and safety regulation are themselves competent to carry out the task and have the requisite and relevant qualifications. The appointed person should be able to demonstrate that they know and understand the work involved and can apply the principles of risk assessment and are given the necessary information and support to carry out their role.
External services are usually appointed in an advisory capacity only and do not absolve the landlord or managing agent from the discharge of their legal duties and responsibilities. How much third party assistance and advice is provided may depend on the issue in question and the existing measures in place to manage it safely. Third-party specialists by their very appointment can support the premise that the managing agents have made efforts to correctly discharge their obligations.
Check carefully the appointment of health and safety experts particularly the veracity of their qualifications and experience and their membership of an appropriate or industry-specific professional body. The landlord is responsible for assessing and selecting a suitably qualified and competent professional adviser. There are independent registers which can provide a good and impartial starting point to find a specialist to help manage health and safety risks.
Health and Safety Law
The principal piece of legislation in this area is the 1974 Health and Safety at Work Act which governs occupational health and safety in Great Britain. The requirements and duties are governed throughout by the principle of ‘so far as is reasonably practicable’ which recognises that it can be almost impossible to remove every last vestige of risk or danger in certain situations.
Reducing a risk ‘as far as is reasonably practicable’ gave birth to the concept of the risk assessment which formalises the process of measuring the risk against the implications of reducing it further. A good example of this would be the risk involved to contractors of removing asbestos compared to the risks presented to the residents of the building if it remained in place. That is why asbestos is often left undisturbed if it is securely covered up and is checked and monitored but if then accidentally disturbed and exposed, could require specialist removal as the risk outweighs the alternative of leaving it in place.
The decision is always weighted in favour of health and safety. To contravene this, the decision-maker or duty holder would need to be able to demonstrate that it would be grossly disproportionate to the benefits of risk reduction that would be achieved. At the point of prosecution, it is worth understanding that it is not incumbent on the HSE to prove their case, the burden of proof falls to the defendant to show or prove that it was not reasonably practicable to take further steps than those which were taken and which have since been deemed inadequate.
The primary duties under the 1974 Health and Safety Act include:-
- Ensuring the health and safety at work of employees
- Minimising so far as is reasonably practicable, the exposure to health and safety risks
The legislation is enforced by the Health and Safety Executive (HSE) in collaboration with local authorities. There is a large quantity of primary and secondary legislation which surrounds the main statute.
What are Statutory Instruments?
Statutory Instruments are often called Regulations and add to the original statute, the 1974 Health and Safety at Work Act following proposals made by the Health and Safety Commission (HSC). The proposals can be based on European Union Directives as well as born out of issues arising within the UK.
Both the Statutory Instruments (SIs) and the governing legislation allow a lot of freedom of interpretation but in some situations, the risk is so great that it would not be appropriate to leave it the interpretation of an individual or Managing Agent so some Regulations set out and identify these risks and detail the specific action which must be taken. Often these are absolute whether it is reasonably practicable or not.
Approved Codes of Practice (ACOPs)
ACOPs are there to offer practical advice and guidance about how best to comply with the law. They are approved by the Health and Safety Executive and carry the full weight of the law in the specific area in which the code is giving advice. The codes can also be used to demonstrate that an individual or organisation has not complied with the best advice and in the case of a prosecution, it would be necessary to demonstrate that compliance was achieved in a different but equally comparable and effective way to that dictated by the relevant code.
Guidance and Updates
The HSE publishes regular guidance and updated information on a range of relevant subjects to assist in the interpretation of the law and to help manage novel situations or new risks. These can help you comply with the law and would be considered demonstrable evidence that you are in compliance with the legislation in a court of law.
A good Health and Safety protocol should include regular reviews of the latest HSE guidance.
Enforcement can be due to general inadequacy or related to a specific breach of the law. Enforcement can come directly from the Health and Safety Executive or the Local Authority. A Health and Safety Inspector can visit premises and may do after an accident or incident as part of the investigation to determine whether there has been a breach of legislation and to prevent the incident from reoccurring. Inspectors can issue an informal warning either if the law has been broken or if they see activities which are giving rise to serious risk. Warnings can be either verbal or in writing. The inspector can also issue an improvement notice if they fear repetition or continuation of the contravention.
Compliance with Health and Safety legislation requires a robust and detailed policy which outlines procedures and protocols to be followed across all relevant areas of risk. This will include generic health and safety policies plus more specific information for certain situations. ARMA expect all Managing Agents to have a written policy irrespective of their size.
It is essential that the policy can respond to changes in legislation and incorporate regular reviews to ensure that compliance is continuous and relevant. Each area must have a written risk assessment and in addition, individual circumstances and events will require bespoke risk assessments as they arise.
Documentation and record-keeping are vital to demonstrate compliance and to act as a referral point for Managing Agents and stakeholders and these should be integrated into the provision of relevant training which may be ongoing or new. Maintaining correct and up to date training records is an essential element of Health and Safety policy and record keeping.
Third-party Health and Safety professionals can offer general advice to assist with an overview of Health and Safety obligations and specialists can be called in for individual areas to offer expert advice. Demonstrating the control and monitoring of the Health and Safety policies is just as important as the detail and content of individual protocols and risk assessments.
Managing Agents have health and safety responsibilities to any employees, to third party contractors, to members of the public and the residents of the building. Fulfilling Health and Safety responsibilities is an all-embracing ethos which impacts on almost every area of the occupancy of any building.
For further information and the HSE website, click here.