The Approved Codes of Practice are a specific set of guidelines with special legal status that help an employer and employees achieve the level of health, safety and welfare required. These guidelines cover a wide range of work practices and hazardous materials however they do not cover all hazards that may arise. If the duty holder follows an approved code of practice they would, in most cases, be compliant with Health and Safety at Work etc Act. however this would only be in the situation regarding the code. Duty holders would therefore need to consider all risks that may be associated with the tasks that are due to take place and not just focus on the ones listed in the guidelines. (WorkSmart, 2016)
The HSE explains:
Each ACOP is approved by the Health and Safety Executive, with the consent of the Secretary of State. It gives practical advice on how to comply with the law. If you follow the advice you will be doing enough to comply with the law in respect of those specific matters on which the Code gives advice. You may use alternative methods to those set out in the Code in order to comply with the law. (HSE, n.d.)
Due to the legal implications if duty holders fail to uphold the ACOP, they need to pay attention when applying the codes as the regulations use different words such as ‘suitable and sufficient’, ‘should’ and ‘may’. Should indicates that duty holders must follow the code while may indicates that it is an optional course of action. This therefore gives duty holders freedom to decide how to mitigate the risks which they identify.
CDM Regulations 2015 and the Health and Safety at Work Act set out the roles and responsibilities required by not just the employer but also the employees. Employers are responsible for protecting people from any potential harm caused by work activities; this includes the responsibility not to harm contractors and sub-contractors on site. However employees and contractors have a duty of care not to unnecessarily endanger themselves, their colleagues or others affected by their work.
The HASAWA was formed in 1974, it is a primary piece of legislation as many other pieces of legislation are based on in, and its primary role is to protect employees and the public from work activities. The HASAWA covers just about every industry in the UK from construction to manufacture. Everyone has a duty to comply with the Act, including employers, employees, trainees, self-employed, manufacturers, suppliers, designers, importers of work equipment.
The Act places a general duty to:
‘ensure so far as is reasonably practicable the health, safety and welfare at work of all their employees’ (HSE, n.d.)
Employers have a legal requirement to comply with the Act. It is forbidden for an employer to charge employees for any item that is required to comply with health and safety regulations. They must also:
• Provide/maintain safety equipment and safe systems of work
• Ensure materials used are correctly stored, handled, used and transported
• They must provide information, training, instruction and supervision
• Provide a safe place of employment
• Provide a safe working environment
• Provide a written safety policy/risk assessment
• Look after the health and safety of others
• Talk to appropriate safety representatives
However the Employees also have specific responsibilities, they must:
• take care of their own health and safety and that of other persons
• co-operate with their employers
• not interfere with anything provided in the interest of health and safety
(HSE, n.d.)
While health and safety is a concern for everyone, while on site different people will play their own role and have responsibilities regarding H&S.
The Employers role and responsibilities on health and safety are meticulous and are they are required by law in order to comply with government rules and regulations. An Employer is required to make sure all health and safety policies are relevant and up to date. The Employer must make sure that the people working for them are safe when at work, the piece of legislation that covers this ‘Health and Safety at Work Act’ (HASAWA) 1974.
Under HASAWA employers must:
1. Ensure the health and safety of all employees
2. Provide a health and safety policy of there are 5 or more employees
3. Must not charge for personal protective equipment (PPE)
4. Must provide safe systems of work for handling, storage and transport of materials and equipment
5. Must provide the necessary training and information for safe working practice
6. To consult and cooperate with employees on safety measures
(HSE, n.d.)
Though the Employer’s responsibilities are vast it is also down to the Employee to consider their own safety within their role. Under HASAWA it states that it is the employees responsibility to act with due care for themselves as well as collaborating with their employer in such methods such as a Talk Box. A talk box is where everyone ‘downs tools’ for a period of time to talk about the safety aspects of their job and how they are conducting themselves to comply with regulations.
Under HASAWA the employees have the following responsibilities when carrying out work:
1. To act with due care to the safety of themselves and others at all times
2. Not to misuse or damage any equipment provided for health and safety
3. To correctly use all the equipment provided for safety purposes
4. To cooperate with the employer regarding health and safety
(HSE, n.d.)
Even though designers and architects will not be on the construction site they still have a duty of care to reduce or remove any potential hazards related to the construction project. This could include designing how the windows are cleaned safely after construction works are completed or if there are enough fire escape routes on site.
The Principle Contractor (also known as the main contractor) has to submit a form known as the F10 to the HSE to let them know that works are about to commence on site. They also have specific duties under HASAWA and Construction (Design and Management) regulations 2016 (CDM) which include:
1. To prepare and put in place a written health and safety plan which includes site rules
2. Ensure all workers undertake a site induction
3. Make sure that the site is secure
4. Plan, monitor and manage the construction phase of the contract
5. Give contractors relevant parts of the health and safety plan
6. Check the competence all people involved with construction activities
7. Make sure suitable welfare facilities are provided
8. Liaise with the CDM Coordinator regarding ongoing design changes
(HSE, n.d.)
Another of the duties you may see the Principal Contactor doing is making sure everyone on site has permission to be there and ensuring constant contact with the health and safety executive. Another main issue is ensuring the health and safety policy of a sub-contractor passes inspection enabling work to commence.
Contractors (or sub-contractors as they’re also known as) are employed by the main contractor and usually consist of roofers, general labourers, electricians, etc. On a large construction site there can be many different contractors, it is therefore the principal contractor’s responsibility to ensure that all the sub-subcontractors are following the same rules and regulations as their own employees. While sub-contractors do not necessarily have a direct connection with health and safety issues they are still required by law to be provided with appropriate safety information, PPE (personal protective equipment) and an initial site induction before they proceed on site. (HSE, n.d.)
The HSE are an organisation set up by the government to advise, inspect and enforce health and safety measures across a wide range of industries in the UK, these included railways, school and are not just limited to the construction of buildings. They have the power to inspect a site and can prosecute if they find that health and safety measure are not being followed, they will also investigate after an accident. (HSE, n.d.)
It’s the client’s responsibility to demonstrate an acceptable standard of health and safety. This will include appointing a planning supervisor, providing health and safety information and appointing a main contractor. The client can be an individual or a company. Under the CDM regulations they need to carry out the following:
1. Appoint a principle contractor
2. They must ensure that the main contractor has produced the health and safety plan
3. They have to store the health and safety file on completion
(HSE, n.d.)
To ensure compliance with the ACOP the HSE must be notified of construction work if the construction site is predicted to last:
• more than 30 days and have more than 20 workers working at the same time at any point on the project or
• exceed 500 person days of construction work
The HSE state that Regulation 6 of the CDM 2015 requires that the client must give notice in writing to the HSE as soon as is practicable before the construction phase begins, or arrange for someone else to do this on their behalf. This will need to include a brief description of the project and the construction work that it entails. The information can then help to assess the competence of organizations and individuals involved in the work and will help to improve the co-operation and co-ordination of the workforce.
Under CDM 2015 the law states that the client and contractor are responsible for providing welfare facilities on site. The pre construction information is prepared by the client, or they nominate a suitable person, who has to ensure that welfare provisions have been arranged, projects should not go to construction phase unless the client is satisfied with the facilities provided for the length of the project.
The nature and extent of facilities required will depend on the size, location and type of project. For example welfare facilities for transient sites will be different to fixed sites. This type of work is for a short period of time such as road works or emergency work. Therefor welfare facilities are often provided by an equipped vehicle or a fixed installation set out at various points throughout the length of the site.
In the case of the small housing development I would expect the facilities to include:
Toilets – Toilets should be, so far as is reasonably practicable, kept ventilated, lit and clean. Separate sanitary conveniences should be provided for males and females.
Washing facilities – Suitable and sufficient washing facilities should be provided which should include showers if the nature of the work or for health reasons requires it. The facilities should include hot and cold running water, soap and towels or other means of drying.
Drinking water – Must be provided or made available at easily accessible places. Cups must be provided unless the supply is in a jet which people can easily drink from.
Changing rooms and lockers – Changing rooms must be provided when workers have to wear particular PPE. The rooms must have seating, lockers to keep clothing and personal items secure and ways of drying.
Facilities for rest – Rest areas/rooms must be provided and equipped with tables and backed seating that will be sufficient for the number or people likely to use them at any one given moment. There should be provisions for meals to be prepared and eaten including boiling water. In cold weather, heating must be provided.
Falls from height continue to be a major contributor to accidents within the workplace, in 2013/14 falls from height were the most common cause of fatalities, accounting for 29% fatal injuries to workers. The figure below shows the amount of reported injuries to both employees and self-employed workers.
Figure 1 – RIDDOR Falls from Height
In the scenario provided John fell from his ladder while climbing the scaffolding on site. At the time of the incident no one was holding the ladder and according to the report the ladder had been placed on uneven ground. The following page outlines the investigation report and any recommended corrective measures.
While the report has been completed and indicates a level of compliance with RIDDOR 2013 the form shows that more needs to be done in terms of reporting. The form is also sparsely completed and important details are missing from the report. There is no detail as to:
• Why was John up the ladder in the first place?
• Where on his back he was injured?
• Who called the ambulance?
• Where on site did it happen?
• Why was he using ‘his’ ladder
• Is he directly employed by the company or a sub-contractor
• Was he working alone and if so why
This information is fundamental in building a complete picture as to what happened and how this can be prevented from happening again. The investigation also leaves the responsibility for the accident in a grey area.
While they have complied with RIDDOR in regards to the accident, the incident with the electrician shows where the company is failing in its legal requirements to ensure the health and safety of its employees.
The HSE states:
“Recording non-reportable near misses … may help to prevent a re-occurrence. Recording these near misses can also help identify any weaknesses in operational procedures as deviations from normal good practice may only happen infrequently but could have potentially high consequences. A review of near misses over time may reveal patterns from which lessons can be learned.” (HSE, n.d.)
The HSE defines a near miss as “any incident, accident or emergency which did not result in an injury”. Under RIDDOR the incident with the electrician would classify as a dangerous occurrence and must be reported to the HSE as this could have resulted in a fatal accident, luckily the electrician chose to check the line herself. (HSE, n.d.)
Briefing Document for Victoria Saunders – Managing Director of Hertfordshire Homes:
Legal Implications of John Smiths fall on 29th July 2016
Purpose
The purpose of this document is to inform the Managing Director of the site incident on 29th July 2016 and the legal repercussions from the accident. As the accident has resulted in a potential life altering injury Victoria will be facing questions from John Smiths solicitors.
Current Situation
On the 29th July 2016 John Smith was climbing his ladder up the scaffolding on Hertfordshire Homes: Broadwater Way site. The ladder was not secured and had been placed on uneven ground. As John Smith climbed, the ladder wobbled and John then fell from the ladder and sustained a spinal injury. According to John his injury may be life altering.
What’s Gone Wrong
Reviewing the accident report the blame seems to initial in the ladder not being secured, however the report also indicates that the ladder belongs to the claimant.
Unfortunately under the Law of Tort a duty of care has been breached and we could potentially be sued. However clearer information needs to be established as we could potentially counter sue both the claimant and the scaffolding firm we employed.
Next Steps
My first point of investigation would be to establish whether Mr J Smith was qualified to be on site, administration will need to check for a copy of his CSC card and any relevant qualifications. We will then need to establish whether he is a Sub Contractor or whether he is a direct employee of Hertfordshire Homes, this is important in understanding where the blame lies as if he is a Sub-Contractor, under our contract; it is down to the Sub-Contractors bosses to ensure Mr Smith has received the relevant information to start on site. However if Mr Smith is a direct employee then we will need to check whether he was given a site specific induction including a toolbox talk and a site safety briefing. We also will need to check when the site was last safety inspected, what risk assessments and method statements are in place and whether there is a rescue plan in place regarding working at height.
With regards to the claimant we need to establish whether the ladder was a site specific ladder that has been signed off for use. The accident report states it is the claimants own ladder so we need to question why the claimant felt the need to use his own ladder when there are ladders on site that have been erected for this job.
If the ladder was indeed his own ladder we will potentially be able to counter sue under CDM Regulations 2015 which states that:
“Workers have a duty to take care of their own health and safety and that of others who may be affected by your actions at work. Workers must co-operate with employers and co-workers to help everyone meet their legal requirements” (HSE, n.d.)
The final issue I would consider is whether the scaffolding certified and erected correctly in the initial instance with the correct ladders.