Health and Safety for Senior Executives

What it was:

A day of talks and discussions followed by a written test, held in London on 30 October 2018.

What I learned:

H&S leadership:

  • A leader sets culture, directs activity. Leadership is more people focused than a manager. A leader thinks long term and strategically, is proactive rather than reactive.
  • A leader can take risks that a manager then manages.
  • Management is doing things right. Leadership is doing the right things.
  • Management is mainly about process. Leadership is mainly about behaviours.
  • Leadership is “getting people to do what you want them to do, because they want to do it” – Dwight Eisenhower
  • Leaders are absolutely key to health and safety. Health and safety regulators look to the leadership first.

Contrary to popular and press opinion, very few things are prohibited by health and safety legislation. Most risks can be managed.

Good health and safety management has numerous benefits aside from keeping people healthy and safe:

  • Productivity
  • Efficiency, financial
  • Confidence and empowerment
  • Reputation
  • Good Health and safety management allows you to do riskier things!

Health and safety requires consultation.

Three reasons for good standards of health and safety management:

  • Moral: having a mind for others
  • Legal: achievement of minimum standards, statute and case law
  • Financial: fines, insured and uninsured costs, insurance premiums, customer expectations.

Note that MOD has crown immunity and is underwritten by the treasury!

Video case study – “the call” :

What costs (in the widest sense) were involved?

  • Human costs of all involved
  • Time and effort for the investigation and potentially prosecution
  • Legal costs and fines
  • Distraction from the business, unable to function normally
  • Loss of business

Bad things will happen. It is possible to do too much on health and safety, at the expense of other things.

What lessons can be taken forward?

  • Have a plan for if things go badly wrong
  • Don’t  be complacent, take action after an accident
  • Consider conducting spot checks – trust but verify
  • In health and safety law, you are effectively guilty until proven innocent
  • Need to be wary of internal checking, it can lead to complacency and box-ticking

The Accident Iceberg

  • For every £1 in insured costs (injury, ill health, damage)
  • …There is £8-£36 in uninsured costs (product damage, plant/building damage etc.)
  • What goes challenged eventually becomes the norm.

Investigating accidents

  • Loss causation
  • Accidents and incidents
  • The ‘multiple causation tree’
  • Outcomes of an event:
    • A1. Injury
    • A2. Loss
    • B1. Near miss

Near misses are hugely valuable. Very few get reported, although the aviation industry is better at doing it.

Investigating an event: Event > Immediate causes > Underlying causes > Root causes
People often don’t get beyond the immediate cause

Immediate causes:
• Unsafe actions
• Unsafe practices

Underlying causes:
• Job
• Organisationn
• Environment

Root causes:
• Management and leadership failures

Not every event can be tracked back this far.

RIDDOR: reporting of injury diseases and dangerous occurrences regulations, set which sorts of injuries etc must be reported by law. E.g. fractures. Reported internally and then in block to the HSE
HSE estimate that only 25% of RIDDOR reportable incidents in industry get reported

Corporate governance

  • HSE: ” for many organisations, health and safety is a corporate governance issue…”
  • Best practice approach: “leading health and safety at work” INDG417
  • This is guidance not law. But could be used as a proxy to best practice in court.

Key actions:

  • Have a health and safety policy
  • health and safety represented on the board
  • Communication of the policy
  • Non exec scrutiny may be useful

Page 16, Paragraph 4 – implies that a jury world consider this guidance in a case even though it is not law. In effect, following this guidance would help you to ‘prove your innocence’

HSE research report 450 – these are case studies that identify and exemplify boards of directors who have championed health and safety

The HSE is a hugely useful source of information and advice on health and safety for senior leaders

Common law duty of care:

  • The duty of every person to take reasonable care over their acts and omissions with regards to themselves and others
  • Failure to do enough may constitute Tort (civil wrong) of negligence, based on:
  • Duty owed (you have a duty to people under your control when they are at work)
  • Duty breached
  • Loss resulted (must be actual loss, not potential)
  • Usually people sue (not prosecute) the employer not the line manger
  • Reasonable foreseeability is important
  • The harmed claimant may be awarded compensation for loss
  • Applies to you in your personal life as well as professional life, E.g. you leave a hole in your driveway and someone breaks their leg!

Employer’s duty of care:

Employer’s obligation to provide:
Safe plant and equipment (and premises)
Safe systems of work and adequate supervision
Competent staff

Tests of liability as regards negligence as above: duty owed, duty breached, loss

Vicarious liability – employers carry liability for the Torts (e.g. negligent actions) of their staff that take place during the course of employment (or under their control)

The overall legal framework:

Health and safety is a mixture of both common and statute law:

Common law:

  • Made by judges. Case law
  • Based on precedent
  • The injured party sues.
  • Civil law
  • Concerns the rights of persons

Statute law:

  • Made by parliament
  • Acts and regulations
  • The crown prosecutes.
  • Criminal law
  • Concerns the rights of society

The Health and Safety at Work Etc. Act 1974 aimed to apply to everyone working (even if unpaid), replacing the existing raft of legislation that was industry-specific. Came into force 1 April 1975.

Health and safety criminal law: Employer responsibility

Generally based on:
” So far as is reasonably practicable” – SFAIRP
Which is deemed equivalent to “as low as reasonably practicable”. – ALARP

…which means a balance between cost and risk. It does not require risk to be zero, only minimised.

Under the act, employers are to ensure, so far as is reasonably practicable, the health, safety and welfare of employees;
• Provision and maintenance of safe plants and systems of work
• safe use, handling, storage and transport of articles and substances
• provision of information, instruction, training and supervision
• places of with with safe access and egress maintained in a safe condition (note, this applies to all work locations even if outside)
• a safe and healthy working environment with adequate welfare facilities (e.g. showers, lockers etc)
• also, to conduct their undertaking with a duty to non-employees e.g. visitors, public, contractors

The managing health and safety at work regulations set out what is recommended in more detail.

Practical means useful, effective, usable (a practical stage chair)
Practicable means doable, achievable

Every employer with >5 employees must have a health and safety policy statement, and arrangements for health and safety

Defence H&S policy

Defence Safety Authority publication, DSA01.1 “Defence policy for health, safety and environmental protection”
Sets overarching policy on:

  • Responsibilities in defence activities
  • Risk management
  • Checking and performance reporting
  • Competence, information and training

DSA01.2 “Implementation of defence policy for for health, safety and environmental protection” covers the implementation. This includes guidance on culture. Essentially these publications expand on the secretary of state’s health and safety statement

DSA01.2 sets out the Defence safety and environmental management system, which is itself based on INDG417, the national and international standard

Four steps to implementation

  • Plan
  • Do
  • Check
  • Act

Designers and suppliers and employee responsibility

Designers and suppliers have a responsibility for equipment etc. And if you alter a piece of equipment you may have liability.

Health and safety at work act says these responsible apply:

Designers, manufacturers, importers and suppliers:
Safe by design and in provision i.e. fit for purpose
Adequate training and examination
Provision of suitable information for use, etc

Duty to themselves and others
Duty to cooperate with employer
Duty to report any hazard they become aware of (this is key, and new)

Personal responsibility

HASWA section 37: senior managers have responsibility if consent connivance or neglect can be proven, and are guilty of an offence

HASWA section 36: act or default: if a senior person directs a junior person to do something that beaches health and safety, both parties are potentially guilty of the same offence

The Directors Disqualification Act – potentially 15 years, although not applicable to public authorities

HASWA enforcement in MOD

HSE cannot issue Improvement or Prohibition notices on MOD or its agencies add they are an exempt crown body. However:

HSE can issue Crown Enforcement Notices – these are adminstrative notices which in practice have the same effect as Improvement or Prohibition Notices

HSE cannot take prosecution action in a criminal court but can take a Crown Censure – an adminstrative sanction that is taken very seriously by Crown Bodies

HSE target enforcement areas across all organisations:

  • Work at height
  • Management of legionella potential
  • Management of asbestos
  • Pedestrian and vehicle interaction
  • Unplanned maintenance work
  • Management of vibration

MOD personal responsibility

Duty Holding

  • This is essentially how MOD ensures personal responsibility for health and safety down the command chain.
  • Based on controls, ‘risk to life’ and ALARP
  • Duty Holders must have a formal letter of delegation and a valid course certificate
  • Some specific “risk to life” activities always require a duty holder due to their high risk nature.

Personal responsibility – general reminders

  • Challenge yourself in relation to your role and responsibilities against INDG417
  • Ask yourself – am I doing enough? Am I meeting the MOD need?
  • Read the small print – look for shall / will / must
  • Remember good communication is essential, including job descriptions
  • If you are not going to do it, don’t say it
  • Remember ‘NA, FOF!’ – never assume, find out first!

Gross negligence and fatalities

Possible charges available for individual:
Gross negligence manslaughter (rare apart from ‘one man bands’)
Note: it is generally not the policy of the courts to put the firm out of business

Corporate manslaughter and corporate homicide act 2007

This applies to public authorities

  • Gross breach of duty of care
  • Conduct that falls far below what can reasonably be expected of the organisation in the circumstances
  • Reckless behaviour
  • Breach by senior management in organising or managing activities

MOD has some exemptions:

  • Operations where the armed forces come under attack or threat of attack
  • Activities in support of such operations
  • Training of a hazardous nature, necessary to maintain effectiveness of the armed forces

Management regulations 1999

These require the Employer to have suitable arrangements for health and safety in place
Record > planning > organisation > control > monitoring > review of protective and preventative measures

Risks resulting from MOD activities *must* be risk assessed
• Are based on initial hazard identification
• Must be suitable and sufficient

*Hazard is the potential for harm
*Risk is the chance of damage combined with the harm that could result i.e. impact times probability or likelihood versus severity
Controls and mitigation are to be SFAIRP / ALARP

ERIC.PD – mnemonic for risk mitigation:

  • Eliminate
  • Reduce
  • Isolate
  • Competent person
  • PPE
  • Discipline (safe place, safe person)

Health, as well as safety

  • Five times as many cases of ill health as of safety
  • 1.2 million suffer work related ill health annually
  • Workplace injuries and ill health (excluding cancer) cost UK society an estimated £14.3bn in 2014/15
  • The main issue is ill health not accidents, e.g.
    • Asbestos related disease
    • Noise and vibration
    • Asthma
    • Stress issues
    • Dermatitis

Human factors and behaviours

  • Defined by the HSE in HSG48: “environmental, organisational. Job factors are human characteristics which influences behaviour at work in a way that can affect health and safety
  • SQEP: having knowledge and experience to undertake a task safely
  • Some roles may require ongoing verification of competence
  • Engagement and communication
  • Safety culture has a serious effect
  • Visible leadership is key
  • Ignore human factors at your peril!

Summary: Key principles that underpin good health and safety performance:

  • Assessment and review
  • Worker involvement
  • Strong and active leadership – peer influence is very strong
  • Things to consider – Are near misses being reported?

What I will aim to do differently as a result:

  • Read the HSE guiee in full and consider any local actions
  • Read DSA01.1 and DSA01.2. Use the plan-do-check-act methodology to recover my actions
  • Use next team day to check that everyone understands the people and processes for reporting health and safety incidents
  • Set tone for reporting accidents, reporting and acting on concerns, and fire drills
  • Have a wellbeing focus at next team day
  • Seek advice from internal authorises around reasonable actions for health and safety in my area