Some good news for our clients, section 69 of the Enterprise and Regulatory Reform Act 2013 has been in place for several months now, since October 1st 2013 in fact. A small but significant change introduced as part of the Act now makes it impossible for civil litigants to bring actions against their employer for a breach of duty under the regulations.

What does this mean to you?

In simple terms there we previously two routes to making a claim:

1. the injured party could assert that either the employer was negligent in their actions or arrangements, or;
2. they could argue that their employer hadn’t complied with health and safety regulation (often the easier route to a claim).

Now there is only the first option which is good news for employers.  This change will make it more difficult for claims to be successful as claimants can no longer simply rely on a technical breach of health and safety law. They will have to prove that the employer did not take “reasonable care” and prove that lack of care led to their injury, damage or loss.

Whilst it is going to take some time before we see any reduction in terms of litigation or insurance premiums this remains good news for all of our clients and another nail in the coffin of No Win No Fee actions and the compensation culture which this encourages.

The amendments are likely to reduce civil claims and will make employers feel less exposed to the risk of a claim. But don’t forget that claims are still both possible and are likely to continue to some time yet, particularly those which relates to incidents which occurred before the changes we made (01/10/2013).

Safety failings led Bristol City Council being fined after a park keeper suffered serious injuries when she was thrown from a tractor as it overturned.

The 51 year-old worker, broke her pelvis and badly damaged an Achilles tendon in the incident occurred in Netham Park, Bristol on 30 May 2012. Her injuries led to her remaining off work for a year but has since returned and is now employed as an office worker.
The Health and Safety Executive (HSE) investigation led to a prosecution yesterday (15 Jan) of Bristol City Council at the city’s Magistrates’ Court.

The court was told that the park keeper, who was carrying out maintenance work, was driving the tractor with a trailer attached and had braked as the tractor descended a slope. The vehicle began to skid and the driver turned to avoid a fence but it overturned, throwing her from the seat.

The tractor was not fitted with a seat belt or any type of restraint and the Council had failed to ensure their employee had received adequate training on the use of the tractor the HSE discovered.

The nearly new tractor and trailer had been acquired by Bristol City Council shortly before the incident but not within the normal procurement procedures and no supplier training was provided as a result, the investigation also revealed.

Bristol City Council was fined a total of £20,000 and ordered to pay £4,700 in costs after admitting two breaches of the Provision and Use of Work Equipment Regulations 1998.
After the hearing, HSE inspector Kate Leftly, said:

“This incident was entirely preventable and has caused the worker considerable suffering and distress. She had trained three years for her park keeper role but is now office-bound and will need further surgery on the tendon requiring a 12-18 month recovery”.

“Every year, there are accidents involving transport in the workplace, some of which result in people being injured or even killed. People fall from vehicles, are knocked down, run over, or crushed against fixed parts, plant and trailers”.

“Bristol City Council had inadequate systems in place to ensure operators were suitably trained in the use of this equipment and failed to identify the need for a suitable seat restraint.”

Some huge changes have taken place in the past 40 years in terms of industry and the service sector.  Our economy has grown and changed from one based on manufacturing to one more aligned to high-tech and the service / financial sectors.  Through all of this the Health and Safety at Work Act has continued to apply to a very changed world.

What has helped in this is the way in which it is structured.  The Robens report changed legislation from being industry and item specific into a goal setting type of legislation which put the emphasis back at the door of the businesses managing risk.

You can see this as a blessing or a curse but the fact is that by doing this the Act enables us to implement safety in a way which works with our businesses.  Wait – I can feel a huge groan in the background!  Don’t be too hard on the Act itself or the HSE or others who enforce it.  What needs to change is not the Act itself but what has built up around it; no win no fee cases and ambulance chasers.  Without these influences we are free to implement common sense – so on the 40th anniversary of the Act lets all work together to do what everyone actually wants.  Reasonable measure to make sure everyone goes home safe today an every day.

Read on below for the HSE press release.

This year mark 40 years since Health and Safety at Work Act received Royal Assent. Arguably it is one of the best pieces of legislation on the statute books – although we know it is often misunderstood and misinterpreted. It has protected millions of British workers, and driven sharp reductions in incidents of occupational death, serious injury and ill health.

In 1974, fatalities to employees covered by the legislation in place then stood at 651. The latest figure for 2012/13 was down to 148 for employees and self-employed combined. The actual reduction is probably more than this as data for sectors not covered by health and safety law pre 1974 was not collected. In the same time frame (and with the same caveat) non-fatal injuries have dropped by more than 75 percent. There is still room for improvement clearly, but the change in the last 40 years is quite remarkable.

Before the 1974 Act there was a host of different regulations – some industries swamped with prescriptive rules and others with little or no regulation at all. Something needed to be done.

The 1972 Robens Report concluded there were too many regulations and that what was needed was a regulatory regime that set broad, non-prescriptive goals for dutyholders, underpinned by a fundamental principle: ‘those that create risk are best placed to manage it’.

The Act that emerged from his review swept away detailed and prescriptive industry regulations; it created a flexible system where regulations describe goals and principles, supported by codes of practice and guidance. Based on consultation and engagement, the new regime was designed to deliver a proportionate, targeted and risk-based approach.

Forty years on this approach still applies. Despite having diversified away from an economy based predominantly on heavy industry and manufacturing, much of the original vision and framework of the Health and Safety at Work Act 1974 remains relevant. The principles have been applied time and again to new and emerging technologies and sectors. The legacy is a safety record envied around the world.

Much of the current reform agenda is aimed at: stripping out unnecessary or duplicated regulation and helping smaller businesses to understand how to take a proportionate approach to managing their risks – but the basic principles remain the same.

Forty years on the Health and Safety at Work Act has demonstrated it can be applied to new responsibilities and new demands, creating the framework for people to come home safe and well from a day’s work in any sector of the economy.

Builders’ merchants Jewson Limited has been fined £14,000 for selling hard hats which failed to meet safety standards.

Jewson Limited appeared at Northampton Magistrates Court on Monday after an investigation by Northamptonshire County Council.

The hard hats failed a test against Personal Protective Equipment Regulations 2002 by trading standards officers in a proactive survey in January, 2012.

This included a Jewson Safety Helmet purchased from the Jewson premise in Pilot Road, Corby which did not comply with the shock absorption test in EN 397.

A further six helmets were purchased from Jewsons at St James Mill Road, Northampton and three of these also failed the same test.

Jewson Limited were informed of the results and advised that they had withdrawn the product from sale but another helmet was purchased from their Northampton branch when a sales assistant overrode the withdrawn from sale notification on the till.

This helmet was also tested and found to pass the shock absorption test.

The helmets stated “complies with : EN397” and had been imported from China by the company.

Jewson were only able to produce a test certificate from 2001 despite selling over 63,000 of them over an 11 year period.

Councillor Andre Gonzalez de Savage, county council cabinet member for strategic infrastructure, economic growth and public protection said: “I’m pleased that Trading Standards have investigated and prosecuted this case.

“It is impossible for users to detect this kind of issue for themselves and therefore it is vital that our officers proactively monitor the safety of products on sale.

“All manufacturers and importers need to carry out regular testing to ensure their products meet safety standards.

“We are always willing to work with our county businesses to ensure that they are fully compliant with applicable regulations and safety codes. We firmly believe in being proactive and supporting our communities”

Magistrates fined the Coventry-based business £2,500 on each of four offences and £4,000 for the latter offence. Costs of £7,500 were awarded to trading standards.

Anyone with concerns about the safety of products can inform Trading Standards by contacting the Citizens Advice consumer service on 08454 040506.

If you’ve got questions or need support on safety in the industrial, contracting or construction sectors please contact us for sensible and proportionate advice on 01453 800100

The safety of loads on vehicles is something which many of our clients, outside of the logistics sector, have a fairly limited knowledge of.  Because of this unfamiliarity this is a risk area which often goes without assessment or challenge but is one which can cause accidents with serious consequences, read on t find out how to assess and manage your risks.

Securing loads on vehicles – good practice

When loads are being transported they must be secured at all times to the vehicle they are being transported on. It is the driver’s and company’s responsibility to ensure that this is carried out safely.

The basic principle is that the combined strength of the vehicle’s load restraint systems must be sufficient to withstand a force not less than the total weight of the load in a forwards direction and half the weight in a backwards and sideways direction. Please do bear in mind that this does not take into account a road traffic accident where the forces generated are much higher than in normal transportation.

Lateral and longitudinal forces are generated on the load when the vehicle accelerates, brakes, corners and travels over uneven terrain. Once the vehicle is in motion, loads can move in any direction even if the journey is a short one.

The Code of Practice, Safety of Loads on Vehicles states that:

When securing an item of plant or machinery for transport there should NEVER be less than four anchorage points used.

The restraining system should be arranged so that failure or slackening of a single component does not render the remainder of the system ineffective.

This means that if, for example, two chains are used to secure a load (one front and one rear) four anchorage points are achieved however if one chain fails two anchorage points are lost and load security is compromised.

We would strongly suggest that loads transported on your vehicles are secured with at least four separate restraints at all times – irrespective of the size, shape or weight of the load.

With this procedure in place if a chain, hook, strap, binder or ratchet experiences a failure of loosening there are still three other restraints securing the load in a forwards, backwards and sideways direction.

If you’ve got questions or need support on safety in the industrial, contracting or construction sectors please contact us for sensible and proportionate advice on 01453 800100

Basement conversions in London fall well below safety standards

“This illustrates that lessons have been learned, and we hope the latest failings that required action will have a similar impact,” Mr Beal added.

If you’ve got questions or need support on safety in the industrial, contracting or construction sectors please contact us for sensible and proportionate advice on 01453 800100

In something of a strange turn of events the construction industry is standing (mainly) in defiance of the coalitions cutting of red tape.

Technically, the Construction Site Waste Management Plan Regulations (2008), have no longer been in force since October 1st 2013.  But the majority of major construction companies, 55 of them in total, have said that they will continue to use the plans in spite of this repeal.

It makes interesting reading to see that of the 169 respondents to the consultation the split was equal between those supporting and opposed to the repeal with 82 in each camp.  There seems to be a split between those who feel that the repeal was a positive move for contractors and those who felt this was a backwards step and did not represent best practice for the industry.

ONe complication is that the plans are still required for projects aiming for certain BREEAM (BRE Environmental Assessment Method) and the Code for Sustainable Homes ratings. The UK Contractors Group (UKCG) also indicated they would still use the plans on their sites representing the majority of major sites in the UK.

The government countered that its calculations estimated a saving of £3.9m per year from the move but it should be noted that this calculation made no mention of any money saved through application of the waste management plans – something which could be a sum many times this amount.

So all in all a confused message which seems both at odds with the governments committment to green issues and its attempts to reduce the overall burden on business when you account for such a small return across the whole of the UK construction industry.

So is this move something of a white elephant?  Yes, we think so.

If you’ve got questions or need support on safety in the industrial, contracting or construction sectors please contact us for sensible and proportionate advice on 01453 800100

Judith Hackett, Chair of HSE, recently addressed the Westminster Legal Policy Forum (5th December 2013) and had the following to say about the CDM (Construction (Design and Management) Regulations).

“2014 will also see us embark upon some changes to CDM as part of the guidance overhaul. It will not significantly change the technical standards which underpin the Regulations – they are not controversial and have stood the test of time. We are simply intending to streamline their delivery. “The revision which we are preparing to consult upon is underpinned by four priorities: simplify the package to make them easier to understand and comply with; achieve satisfactory transposition of the parent Directive; improve their accessibility for small sites; improve standards of worker protection through the above. “Overall we believe that the revised package will deliver significant savings to businesses through the streamlining of processes and the removal of the CDM co-ordinator role will be much more accessible to those involved on small construction sites due to the simpler structure of the regulations. The production of guidance has the needs of small businesses at its heart to deliver satisfactory transposition of the parent Directive and improve worker protection. “Current plans are for the revised Regulations to come into force in April 2015 and formal consultation is expected to start early in 2014.”

The facts on the proposed CDM changes

The question which follows on from this is what does this mean to you as our clients and to us as your CDM Coordinators?  I’ll try to answer this as simply as I can by first presenting some facts.

1. The government (rather than the industry or HSE) seem keen to see the role of CDM Coordinator disappear from the regulations.
2. The directive from Europe does not explicitly state that the role of CDM Coordinator is required
3. The directive does not state that the application of the regulations is restricted to larger projects
4. The directive applies,technically, to ALL projects including domestic ones which perhaps just have a single contractor at site.

All of us are used to the spin doctors presenting information in a way that sounds positive but hides some important facts.  A headline that reads ‘CDM Regulations slashed’ plays out very well like this.  The subheading which reads ‘and all domestic and small projects now under CDM’ doesn’t have quite the same cachet.

So, where are we headed?

The likelihood is that the CDM Coordinator role might no longer exist by early or mid 2015.  The likelihood is also that CDM will apply to many, many more projects that it does currently including all domestic projects.  The outcome looks to us like large sites doing something very similar to current arrangements and smaller site doing the best they can while the smallest of sites get hit by a flurry of Fee For Intervention (FFI).

The CDM Regulations have not always been popular, we’re under no illusion about that.  But, they have been effective and are now pretty well understood by everyone involved in the process and that’s the key benefit and the problem which they set out to tackle.

A change of this magnitude upsets the system to such an extent that you wonder what good might come of it bar a brief headline trumpeting the slashing of another regulation linked to elf and safety.

We’ll keep you updated but expect some CDM changes in 2015.

If you’ve got questions or need support on safety in the industrial, contracting or construction sectors please contact us for sensible and proportionate advice on 01453 800 100

We were interested to see a press release from Judith Hackett, current chair of the Health and Safety Executive in which she praises the writings of one Jeremy Clarkson – perhaps the most vocal critic of the “elf n safety” culture.

Personally, we’re delighted that she’s tackling this straight on.  We have countless moans and groans from ou varied mix of clients and have to say we agree with all of them when they tell us that health and safety can be a pain.

A little knowledge can be a dangerous thing but we do get the blame for everything and sometimes (just sometimes) that’s not fair – read on to find out more and if you’d like to speak to a health and safety consultant who is also a “normal person” then please give us a try, just call 01453 800100 to talk or contact us using the links at the top of this page.

and on that bombshell…

Jeremy Clarkson has never been shy about offering an opinion on health and safety, and I’ve not often agreed with him.

But consider these latest comments in the Sun: “Like many people, I’ve spent the past few years lambasting the clipboard wielding health and safety morons who are turning this country into a risk averse nanny state. But the truth is the real culprits are actually the insurance companies.”

What sparked his wrath is a civil court case in which an insurance company is contesting a compensation payout to a teenage girl who was knocked down and injured by a motorist. The driver’s insurers, he says, have argued that the girl should have been wearing a high viz jacket and in doing so are in danger of setting a precedent that means “every single pedestrian will be told that they can’t go out at night unless they’re dressed up like a riot policeman”.

Is he right? Certainly others will look at the result and worry about what they might need to do now to reduce their risk of civil claims.

We see this all the time in everyday life. Every cup you take away from a coffee shop these days has a warning that the contents are hot. All because somebody sued after being burnt by a drink. Is it really necessary? No, of course not. Coffee should be hot. Is it health and safety? Absolutely not.

But these sort of stories often end up with health and safety getting the blame for something which has nothing to do with the actual regulations. And they are not just stories. They have unintended consequences – activities get watered down because people are nervous about getting sued and want to minimise all risks, not matter how trivial. Others conclude it is just not worth the hassle and abandon events altogether.

I’d like to think that in a small measure, Jeremy Clarkson has picked up on some of the work we have been doing to bust the health and safety myths apart, and the encouragement we have been offering people to question who is really causing this risk aversion.

So if you are reading Jeremy, you made my day. If you want to get me into that reasonably priced car, I’d be happy to show you what managing risk means.

If you’ve got questions or need support on safety in the industrial, contracting or construction sectors please contact us for sensible and proportionate advice on 01453 800100

We work with a number of landscaping businesses and we have known for a long time now that the use of the flail like attachments which can still be found is highly dangerous and should always be avoided.

The HSE has now made progress through Europe to get the use of these attachments banned.  the original accident which alerted authorities to the danger was a fatal incident in Sweden in 2010 when a link of the chain failed and flew at very high speed killing a nearby worker.

Please check to ensure that you do not have any of these types of attachments in use and use this article to spread the word amongst your peers, the risks are very serious and their use could result in a fatality – read on for more information or if you would like to speak to a consultant about these risks and how we can work with you please contact us on 01453 8000100

Introduction:

Brush cutter with typical manufacturers’ cutting attachments

A serious risk has been identified with this type of attachment for brush cutters. This problem was first identified in Sweden a few years ago (see below). In 2010 a fatal injury occurred in the UK following which the UK obtained voluntary agreement from the UK distributor to stop supply of this particular device. The UK also issued a safety alert to warn industry, workers and the public of the risk of this type of device and ask that they no longer be used.

Previously, Sweden had warned Member States about the sale of brush cutter attachments of various types and origin that were made up of linked parts (e.g. an attached chain) instead of the single one-piece metal blade or nylon string dispenser supplied by the manufactures of the brush cutter.

The harmonised standard EN ISO 11806 does not cover this type of device as only nylon strimmers and single piece metal brush cutting blades are in scope for fitting to the basic brush cutter.

Portable, hand-held, combustion engine driven brush cutters are commonly used for cutting weeds, brush and similar vegetation, and are frequently utilised in ground-clearance operations, including those connected with construction work, using a variety of standard cutting attachments.

The Health and Safety Executive (HSE) has become aware of a dangerous practice involving the fitting of non-standard accessories, not approved by the manufacturers, to brush cutting machines. In particular, HSE are aware of the UK supply of chain flail attachments comprising a cutting head incorporating lengths of metal chain. This alert is relevant to any metal brush cutter accessory manufactured or assembled from more than one component.

Background:

Chain flail attachment with two chains

In contrast with dedicated chain flail machinery, brush cutters typically lack the robust guarding arrangements required to control the risk from articles (including fragments of chain) being ejected with high energy. The guarding supplied with brush-cutters is predominantly aimed at protecting the operator from inadvertent contact with the cutting accessory.

The fatal incident involved the use of a twin-chain attachment, similar designs have also been encountered having 4 chains, swinging metal blades and one which utilises shot lengths of chainsaw cutting chains as the cutting implement.

Flail attachment fitted to the brush cutter

The presence of a CE mark should not be regarded as a reliable indication that such attachments are safe to use.

Issues

• The high output shaft speed of a brush cutter creates the potential for significant energy to be transferred to the cutter head. The chains affixed to non-standard cutter heads are subject to high stresses and impacts during normal use, and the risk from breakage and ejection of chain components at high speed is significant.
• The use of non-standard cutting attachments not approved by the manufacturer may, because of their geometry and mass, induce excessive stresses which could result in premature failure and possible break-up of the brush cutter, thereby increasing the risk of injury from any ejected component.
• Manufacturers’ original cutting equipment such as nylon cords, metal cutting blades and saw blades are designed to be used in combination with specifically designed safeguarding systems. The chain flail attachments are not supplied with any compatible safeguard/deflector.
• The harmonised standard for specifying the safety requirements for such machinery, EN ISO 11806, excludes from its scope brush cutters equipped with metallic blades having more than one part (such as chain links.)

Decision of the European Commission

Following a Safeguard Action brought by HSE under Article 11 of 2006/42/EC, the European Commission – advised by the Machinery Committee, required Member States to prohibit the placing on the market of flail-type cutting attachments, consisting of several linked metal parts (eg chains), for portable hand-held brush cutters, see European Commission Decision on the marketing of flail-type cutting attachments for portable hand-held brush cutters

Action required:

Users

• Any brush cutters fitted with flail or similar non-standard attachments, consisting of several linked metal parts (eg chains) should be taken out of service immediately and the attachments removed and replaced with the manufacturer’s approved accessory.
• Manufacturers’ advice should be followed as to the appropriate combinations of cutting tools and guards. Such advice is typically available within the instruction books accompanying the machine.

Suppliers

• UK suppliers should immediately cease the supply of cutting attachments consisting of several linked metal parts (eg chains) whether or not intended for “professional use.”

Relevant legal references:

• Health and Safety at Work etc Act (1974)
• Management of Health and Safety at Work Regulations (1999)
• Provision and Use of Work Equipment Regulations (1998)
• Supply of Machinery (Safety) Regulations (2008)
• European Commission Decision on the marketing of flail-type cutting attachments for portable hand-held brush cutters

Note: The EU Commission is of the view that chain flail attachments are interchangeable equipment within scope of the Machinery Directive as listed in Art 2(b)

If you’ve got questions or need support on safety in the industrial, contracting or construction sectors please contact us for sensible and proportionate advice on 01453 800100