Tag Archives: Stroud

Case Law: Diversion of workers to maintenance tasks

It can be tempting to allow staff, particularly those who are helpful and keen, to undertake others tasks within your workplace.  You can sometimes hear a staff member state “I could have sorted that for you!”

When you have staff which have worked in other roles through  a diverse career and the work seems reasonably straightforward it can seem like you’re able to make a significant saving or get the work carried out more quickly.

However, you should also consider the lessons which can be learnt from the case below and many like it.

Kent based Erith Haulage Company Limited pleaded guilty to breaching Regulation 4(1) of The Work at Height Regulations 2005, was fined £215,000 and ordered to pay full costs of £10,622 after an employee fell four and a half metres through a fragile skylight onto a concrete floor while cleaning a roof.

The cleaning was undertaken by two drivers, requested by the company’s foreman and took place on the weekend of the 17 and 18 January 2015.

A Mobile Elevated Work Platform (MEWP) was hired for the cleaning, but when one of the drivers could not reach a section of the roof from the MEWP he got out and stood on the roof not realising that the roof contained fragile skylights.

The Health and Safety Executive (HSE) prosecuting told the court the roof in question was metal with gutters running along it. The skylights were located in strips over the portion of roof but were covered in dirt discolouring them and making them appear similar colour to the roof itself.

After some time cleaning, the driver noticed a section of roof left uncleaned and while walking along a section of the roof he fell through one of these skylights. He landed on a concrete floor some 4.5 metres below.

HSE prosecuted the company for its failure to ensure that work at height was properly planned, appropriately supervised and carried out in a manner which was safe, so far as reasonably practicable.

The court heard neither driver had received training or information regarding the use of the MEWP, no edge protection was in place around the roof edges to prevent falls from height, no harness or netting was used (e.g. harnesses or netting) to minimise the distance or consequences of a fall, the fragile roof lights were not covered or edge protected to prevent falls from height.

The fall caused the man to spend a month in hospital sustaining significant injuries including a fracture to the base of his skull, multiple facial fractures, and whiplash. He also suffered damage to bones in both arms which needed pins and plates, as well as leg injuries.  He was, in fact, lucky to still be alive.

After the hearing, HSE inspector Megan Carr said:

“This easily preventable incident resulted in life changing injuries to this man.  I want this case to raise awareness within the industry and amongst companies in general, that proper planning and operation of work at height is imperative. This case highlights the very serious consequences that may arise from oversight.”

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Health and Safety Vs the Hipsters – are beards to be outlawed on site?

We’ve been carrying out face fit tests and advising our clients on the selection and use of RPE (face masks and similar) for many years now.

Our position as occupational hygiene specialists means that we have been more exposed to this issue more than many of our peers and it has always been a difficult one to address.

The issue surrounding beards lies in both their current popularity and their incompatibility with good practice when it comes to protecting workers from dusts.  A simple mantra we keep returning to in our toolbox talks and support work for clients across the UK is that you won’t see a fire fighter with a beard.

We’ve been reading about the case of  Mears and the response from Unite (the Union) recently and whilst we do have sympathy with each party, overall we have to side with Mears rather than Unite.  The simple truth is that beards and RPE don’t mix well, and whilst you can use air fed helmets they’re not always the right choice.

See below for comments from both Mears and from Unite.  If you have your own questions please contact us to discuss what you can do.

Unite National Health and Safety Adviser Susan Murray said:

“An employer should first assess the risks presented by exposure to hazardous substances, then identify the steps needed to adequately control the risks; put them into operation and ensure they remain effective.

The use of Respiratory Protective Equipment (RPE) may be one of the control measures, but the wearing of face masks should be a last resort and priority should always be given to eliminating the risk.

Before any policy is introduced there should be full and proper consultation. It is crucial that the policy recognises the diversity of the workforce and the principle that workers should be consulted and given a choice of several correctly specified types of RPE so they can choose the one they like.”

Seal not possible with beard or heavy stubble

Mark Elkington, Group Health and Safety Director of Mears Group responded as follow:

“We are pretty surprised that Unite, who claim to have the safety of workers at heart have taken this disappointing stance.

Every employer in the UK has a legal responsibility to ensure that employees working in dusty or otherwise potentially hazardous environments are properly protected and in recent years employers have been prosecuted for failing to fulfil this duty.

The simple fact is that no dust mask can work effectively unless it forms a seal against the skin. That is not possible with a beard or even heavy stubble. If the Health and Safety Executive did a spot site visit and found workers wearing dust masks that were not sealed against the face then we would be liable to prosecution.

The alternative to a dust mask is a full hood over the head, which brings its own risks. For example many of our operatives do not like wearing a full hood and it can affect hearing and line of sight. It can also be uncomfortable to wear and can raise concerns with our clients who do not like to see workers in such hoods because of how it looks to customers.

It is vital to note, however, that if a risk assessment shows that the hood is a better option for a job or a worker insisted on having one, then we will supply that hood so Unite’s reference to cost saving is absolute nonsense.

If one of our workers suffers respiratory illness as a result of a poor fitting mask then that is our responsibility and we place the safety of our workers at the top of the priority list. Finally it is worthy of note that this affects a very small percentage of our workers who would be in that environment.”

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Clients receives huge fine after self employed contractor falls from MEWP

falls from heightYou are most probably aware of the duties you have as a client to select contractors which are competent and adequately resourced for safety.  Sometimes you will also need to convince others within your supply chain or business of the need to complete a thorough assessment and the case below may offer assistance.

In this case a major company had employed a self employed contractor to carry out work installing updated fire detection equipment at its Yate factory site. Due to a failure to plan and supervise the work correctly an overhead conveyor was started which ultimately led to a fall of over 5 metres for from the Mobile Elevating Work Platform (MEWP) which the contractor was using.

Maintenance workers employed by Whirlpool UK Appliances Ltd were unaware that starting the conveyor system would results in this tragedy as they had not been told that this work was taking place.  An HSE investigation found that there were no effective controls or supervision in place to prevent these conflicting work tasks from being undertaken at the same time.

The company pleaded guilty at Bristol Crown Court to breaching section 3 of the Health and Safety at Work Act 1974 and was fined £700,000 and ordered to pay costs of £11,466.

Speaking after the hearing HSE inspector Matt Tyler said:

“This is a tragic case where the incident could have been prevented if the company had planned and controlled the work properly.”

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Jail sentence for both company directors and the main contractor following death

HSEHSE now has a policy of ‘looking beyond the garden gate’ in construction accidents.  in this particular case the directors of a roofing business, and also the director of the business which contracted this work out to them, have seen custodial sentences (see our earlier blog for another example of this type of prosecution).

HSE has made plain its intention to look further up the supply chain and drive home the message that contractors are responsible for decisions they make when subcontracting work.  The duty to ensure that the subcontractor is competent and adequately resourced for safety is becoming a recurring theme and is one which deserves further consideration for any construction based business.

The cases which will begin to filter through which occurred after the CDM 2015 changes will likely see this intensify with HSE able to look even further up the supply chain to target clients and designers more effectively in the coming years.

Read the story below to find out more details as report in Safety & Health Practitioner (link) and if you need support please click on Contact Us above

Three company bosses have been jailed following the death of 25-year-old father of one, Benjamin Edge, who fell from a roof he was working on, without safety equipment and in windy conditions.

Following the incident safety failings were covered up, a new risk assessment was written and an employee was “sent home to collect harnesses to make it look like the accident was Mr Edge’s fault, because he had not worn safety equipment” it was reported.

Credit: Greater Manchester Police

Credit: Greater Manchester Police

The fatal incident

On 10 December 2014, Mr Edge, fell from the roof of a metal structure he was helping to dismantle in Ramsbottom, Bury.

He died hours later at Salford Royal Hospital, after suffering catastrophic head injuries.

At the time of the fall, Mr Edge was working for SR and RJ Brown and was working on a site run by Marshalls Mono.

Investigation

A joint investigation by the Greater Manchester Police alongside the Health and Safety Executive (HSE) looked into the circumstances surrounding Mr Edge’s death.

It was heard in court how MA Excavations Ltd, contracted out the work to brothers Christopher and Robert ‘James’ Brown, directors at SR and RJ Brown Limited.

Mark Aspin, director at MA Excavations Ltd said he believed the Browns were ‘competent’ and could complete the job safely, but the court heard he did not check their qualifications.

Manchester Evening News reported that RobertJames’ Brown composed a ‘grossly inadequate’ risk assessment before the job which he did not show to anyone.

After Mr Edge was rushed to hospital he then typed up another risk assessment, which should have been done beforehand.

Peter Heap, 34, who had been working alongside Mr Edge was asked by Christopher Brown, 25, to go home and collect harnesses to make it look like the accident was Mr Edge’s fault, because he had not worn safety equipment.

“Foolishly, weakly and criminally – as he now realises – Peter Heap went along with what he was told to do,” Mr Justice Openshaw said.

The Browns maintained that the harnesses had been there before the incident, although they did admit falsifying the risk assessment.

Sentencing

During sentencing, addressing Christopher Brown and Robert ‘James’ Brown Ben’s mother said that when she saw her son’s coffin at the funeral she wanted to drag those responsible to the coffin so they could see what they had done.

She said: “Ben’s death was totally avoidable. He had everything to live for, but his future was stolen from him.”

Mrs Edge added: “Benjamin Edge, known affectionately as Ben, was my son and his father, Tim’s, son. We are so proud of Ben, not just what he achieved, but who he was.”

  • SR and RJ Brown Limited, of which brothers Christopher and Robert Brown are directors, was fined £300,000 at Manchester Crown Court after admitting corporate manslaughter.
  • Christopher Brown and Robert Brown pleaded guilty to perverting the course of justice and two counts of health and safety breaches. They were jailed for 20 months. A count of manslaughter for the brothers is to lie on file.
  • Mark Aspin, 37, was sentenced to a year in jail after admitting health and safety offences.
  • MA Excavations Ltd, of Garden Street, Ramsbottom, which contracted out the work – was fined £75,000 after pleading guilty to two health and safety breaches.
  • Employee Peter Heap, 34, was spared jail after he followed orders to bring safety harnesses to the site after his colleague had fallen to try to conceal what had happened. His four-month sentence for perverting the course of justice, which he had admitted, was suspended for two years.

Ben’s family have issued a tribute to their son, who leaves behind a three year-old daughter, a loving mother and father, twin brother, and partner.

“Ben was taken from us in tragic circumstances aged only 25, and our family and all of his friends are totally grief stricken by his loss.

“We miss him so very, very much.

“He was a loving, caring son, twin brother and family man. Ben was a much loved partner and father and will always remain a huge part of everyone’s lives”.

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University experiment safety error almost costs two students their lives

We work for a number of education establishments and the risks within them are diverse, its a challenge for a person or a small team to manage each of them.

This example represents a situation which could arise in any number of similar organisations when risk isn’t adequately controlled, the consequences here could have been very serious, all the way to a very possible dual fatality.

University makes near fatal error

The experiment involved the study of the effects of caffeine, a substance which we typically experience in tea and to a larger extent coffee.  Caffeine is a stimulant which affects the central nervous system and is a good example of a chemical which we sometimes given less respect to than it deserves (largely due to our continued use of it within society, suffice to say that too much can have serious effects on your health.

Caffeine has uses within sports science and it was within that department that the exposure took place.  The two students were intended to be part of an experiment which studied the effects of the substance, in terms of sports performance, on two volunteers.

Each cup of coffee contains, on average, 0.1mg of caffeine and the intention was to administer 0.3mg of caffeine through a drink.  However, we understand that two issues lead to a near fatal mistake.

  1. The method required the use of caffeine in tablet form and none being available a powdered alternative was found;
  2. The staff did not posses the necessary competence to follow the method, were inexperienced in similar work and had received no instruction on the method from others;
  3. An error was made in the calculation which meant that the dose was measured as 30mg, 100X the intended amount of 0.3mg which is equivalent to 3 cups of coffee

To put this in perspective, a death had previously been reported after ingestion of 18mg of pure caffeine and the effects on the two students were almost immediate including;

  • dizziness
  • blurred vision
  • vomiting
  • shaking
  • rapid heartbeat.

They were rushed to hospital where their conditions were considered life threatening, dialysis was required to rid their bodies of the excessive levels of caffeine.

One student was kept in hospital for six days, reported short-term memory loss and lost 26.5lb (12kg) in weight, the second student treated for two days in intensive care and losing 22lb (10kg) in weight.

The key issue here was a failure to see the real risk.  An error of this type could easily result in death, given that this, the highest of risks was a real possibility the University should have put far more controls in place.  in truth, the two students were likely only saved by their youth and physical fitness.

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HSE to Issue Construction Sector Plan for 2017 – 2022: emphasis on CDM 2015 compliance

HSEThe Board of HSE met in December to discuss draft sectors plans for construction for the coming 3-5 year period, the summary of the points for consideration are listed below with the emphasis being placed on Health, Smaller Business and CDM 2015;

HSE Priorities

  1. Health Hazards – reducing incidents of ill-health, with a particular focus on occupational lung disease and musculoskeletal disorders;
  2. Small Businesses – supporting small businesses to achieve improved risk management and control; and
  3. CDM Regulations 2015 – embedding the principles of the Construction (Design and Management) Regulations 2015 (CDM).

HSE will secure effective management and control of risk by:

  • Project Regulation – directing inspection and enforcement at those failing to manage and control risks, focusing on health risks refurbishment, and licenced asbestos removal;
  • Central interventions – visiting dutyholders to review their health risk management arrangements using leading indicators in the Construction Health Risks Toolkit; and
  • CDM 2015 Pre-Construction Phase – intervening with construction clients, principal designers and designers to ensure proportionate CDM understanding and compliance, working with or through other health and safety regulators (eg ONR) where necessary.

HSE will lead and engage with others to improve workplace health and safety by:

  • Health Ownership – working with the Health in Construction Leadership Group in promoting the ownership by industry of good health risk management, and the development of case studies and health-specific leading indicators;
  • Awareness Research – funding communication insight research enabling improved risk awareness, management and mitigation in small and micro businesses;
  • CDM 2015  for SMEs – helping small businesses to comply proportionately with CDM, eg case studies on social media;
  • Designer Risk Mitigation – working with professional bodies to enhance the competence of designers through the effective teaching of design risk mitigation across built environment higher education courses;
  • BIM Promotion – demonstrating the effective use of building information modelling (BIM) to improve risk information sharing, coordination and collaboration throughout the construction process; and
  • Manual Handling – working with supply chains to reduce risks from manual handling.

HSE will reduce the likelihood of low-frequency, high-impact catastrophic incidents by:

  • Major Projects – early and strategic interventions with major projects, including Crossrail, HS2, Thames Tideway, power generation decommissioning and new build; and
  • Risk Leadership – working with industry to develop clear standards of construction risk leadership and leading performance.

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English as a foreign language

Firstly, a Happy New Year to all our clients, friends and contacts.  Sitting over the Christmas period gives you time to think on a few things and with Brexit still being a point of discussion I was thinking of the foreign workers who continue to provide a huge amount of resource in our country.

From our health service to construction and agriculture there exists a diverse community or workers to whom we owe a duty of care.  Some of these staff can read and write English as well as us native speakers but many struggle with the finer points of understanding.  This presents a problem for us safety professionals in terms of communication.

To help us to gain perspective on this I found the list of peculiarities of the English language below, have a read through and you will start to appreciate the challenges faced by colleagues who are don’t have English as their first language.  If you can share this with your managers and supervisors it might help make us all more aware and, with that, more understanding and willing to help.

Happy New Year.

  1. The bandage was wound around the wound.
  2. The farm was used to produce produce.
  3. The dump was so full it had to refuse more refuse.
  4. We must polish the Polish furniture.
  5. He could lead if he would get the lead out.
  6. The soldier decided to desert his dessert in the desert.
  7. Since there was no time like the present, he thought it was time to present the present.
  8. A bass was painted on the head of the bass drum.
  9. When shot at, the dove dove into the bushes.
  10. I did not object to the object.
  11. There was a row among the oarsmen on how to row.
  12. They were too close to the door to close it.
  13. The buck does funny things when does are present.
  14. A seamstress and a sewer fell down into a sewer line.
  15. To help with planting, the farmer taught his sow to sow.
  16. The wind was too strong to wind the sail.
  17. After a number of injections my jaw got number.
  18. Upon seeing the tear in the painting I shed a tear.
  19. I had to subject the subject to a series of tests.

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CDM Client and their Contractors fined more than £1.5m

A local authority and its two contractors have been fined in excess of HSE£1.5 million following two incidents involving roadworks on a busy Liverpool city centre road. A man died and another was seriously injured while attempting to cross Queens Drive in Liverpool during major resurfacing works which happened in the summer of 2012.

In the case, heard at Liverpool Crown Court, it was reported that on the 3 July 2012 a 74-year-old man suffered head injuries after he was hit by a car while using a crossing at temporary lights. One side of the Queen’s Drive dual carriageway had been put into a contraflow to allow vehicles to travel in both directions but temporary pedestrian lights were not working and no alternative was provided.

The Court also heard that on the 19th August 2012, 69-year-old Ernest Haughton died when he was struck by a car whilst crossing a single lane of traffic on the same road using a temporary pedestrian crossing.

Following complaints from motorists changes were made to the traffic control lights to alleviate congestion but this  resulted in the removal of the natural break in traffic flow needed to allow pedestrians to safely cross the carriageway.

When Mr Haughton died the temporary lights were removed but no alternative control measures were put in place to enable pedestrians to cross. In addition, a large A-frame sign was placed on the crossing which obscured the view of both pedestrians and motorists.

Liverpool City Council pleaded guilty to breaching Regulation 9(1) of the Construction (Design and Management) Regulations 2007 (CDM) and were fined £15,000 and ordered to pay £100,000 costs.

HSE investigators found that Liverpool City Council had failed to ensure that the arrangements for managing the roadworks were suitable, including failing to appoint a suitable co-ordinator for the work. Instead the council sought to delegate responsibilities to Enterprise Liverpool Limited who pleaded guilty to breaching Regulation 22(1) of the Construction (Design and Management) Regulations 2007 (CDM) and were fined £25,000 and ordered to pay £80,000 costs.

HSE found that Enterprise Liverpool Limited failed to ensure the designs for the traffic management were checked or approved and failed to check that the construction plan for pedestrian routes and provision of barriers was being followed.  At the time of the incidents they were found not to have provided a safe means of pedestrians crossing the works area or the carriageway.

Tarmac Trading Limited of Solihull, pleaded guilty to Section 3(1) of the Health and Safety at Work etc. Act, 1974 and were fined £1.3 million and ordered to pay £130,000 costs.

Tarmac Trading Limited, who were responsible for the provision and installation of the traffic and pedestrian management, failed to provide alternative assistance for pedestrians at the time of the first incident despite it being known that the temporary lights were broken. A temporary bus stop had also been placed in the middle of the road at the crossing.

HSE Inspector Jacqueline Western commented:

“The risks associated with road works are well known in the industry and specific guidance is available to assist with the planning and implementation. It is not unreasonable to expect that those who regularly engage in this type of construction work should be well aware of their roles and responsibilities.

The combined failure of all three dutyholders to comply with their duties on more than one occasion during the Queens Drive resurfacing project, led to one man losing his life and another suffering serious injury. It could quite easily have been two fatal incidents.

By engaging with the entire project team at the very start of a project, clients like Liverpool City Council, can ensure that a good health and safety culture is embodied throughout the life of the project. Ongoing communication and cooperation between the principal contractors and sub-contractors ensures that the project is being adequately planned, managed and monitored.”

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HSE enforcement under review, could HSE cover offices, shops and small business?

HSEIn a move which we suspected might come to pass some years ago it has been announced that health and safety enforcement may change for smaller businesses.

During July 2016 the HSE ran a consultation on health and safety enforcement allocation.  Chiefly, it looked at the role of the local authorities.  A range of options were considered, ranging from completely absorbing the LAs’ regulatory powers for health and safety, to allocating them greater duties.

This is something which we discussed on our Breakfast Club sessions for clients and on this blog some years ago.  We believe that this is likely to come to pass and the reason will be to bring the lucrative Fee for Intervention (FFI) scheme into play for smaller businesses.

Passing the enforcement role to HSE from overworked EHO’s achieves three goals of the government as we see it;

  1. It eases the burden on councils at a time when their budgets are under stress from central government funding;
  2. It enables the introduction of Fee for Intervention (fee based enforcement) for the remainder of UK workplaces enabling it to reach smaller businesses and drive in additional revenue;
  3. The current situation for sectors such as the motor trade / motor vehicle repair are split untidily between HSE and the LA’s, this change would enable a simpler co-ordinated approach to this type of business which currently falls between HSE and FFI fines and the LA EHO’s and no FFI.

Likely timescales

So, when is this likely to happen?  Well, nothing in government moves quickly and so we won’t see any update on the consultation until 2017 with any changes happening in late 2017.  However, we do think a change is on the way and HSE are recruiting, watch this space…

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Takeaway owner sentenced for Fire Safety Offences

The owner of a Gloucester takeaway (Best Takeaway, 136 Eastgate Street, Gloucester) has this week been prosecuted for serious breaches of fire safety legislation.best_takeaway_interior

Ilhami Ince, originally of London,  appeared at Cheltenham Magistrates Court on the 15th August 2016 for failing to comply with the Regulatory Reform (Fire Safety) Order 2005.

This hearing followed an earlier failure to appear resulting in a warrant being issued for his arrest. Throughout the investigation the lack of co-operation from Mr Ince repeatedly frustrated the process of making the premises safe in the event of fire thereby failing to protect the persons who had been placed at risk.

In July 2014, a multi-agency inspection of the premises was carried out supported by Gloucester City Council and Gloucestershire Constabulary. Fire Safety Enforcement Officers found that unauthorised sleeping accommodation for staff had been provided on the first and second floors and that a fire alarm system had not been provided and the structural fire precautions were insufficient to allow safe escape in the event of fire.

The Fire Safety breaches identified in the premises were so serious that death or serious injury would be imminent in the event of fire. This resulted in the first and second floors being prohibited from use.

Further investigations found that the ‘prohibition notice’ was being breached and staff were sleeping on the first and second floors.

The defendant pleaded guilty to the following matters:

  1. Failure to comply with the prohibition notice on 3 occasions 24th September 2014, 8th October 2014, 7th July 2015.
  2. Ground floor door between the takeaway and escape route was not fire-resisting.
  3. Employees were not provided with fire safety training.
  4. Two bedroom doors on the first floor were not fire-resisting.
  5. Two bedroom doors on the second floor were not fire-resisting.
  6. One bedroom door was so small a person had to crawl through it to exit and enter.
  7. A kitchen was situated within the first floor escape route.
  8. Emergency lighting was not provided.
  9. No fire alarm and smoke detectors were provided.
  10. A Fire Risk Assessment had not been completed.
  11. No fire safety information provided to employees

Ince was sentenced to 4 months imprisonment suspended for 24 months and was also ordered to pay full costs of £11,228.04 plus victim surcharge.

Cllr Nigel Moor, cabinet member responsible for fire, said:

“Fire safety law is there to ensure that occupants of premises are safe.

“Although we would prefer to work alongside business owners to make sure they comply with law, sometimes prosecution is the only reasonable outcome. Our priority is to ensure that Gloucestershire a safe place to live, work and visit.

“This prosecution sends a strong message to the business community to ensure that fire regulations are taken seriously.”

Chief fire officer Stewart Edgar said: “The targeted inspections highlighted some serious fire safety concerns in a number of premises that provided staff accommodation, so immediate action has been taken.

“The fire service is now working with these businesses to make sure their fire safety is brought up to standard. A fire in a commercial premises would have a devastating impact on both the employer and employee and the outcome could be a large fine or imprisonment in serious cases.”

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