With respect to health and safety it is not uncommon to hear phrases (from employers) such as: “I only want to do what I have to …”, “What’s the minimum I must do to be legal…” and “What can I get away with doing…”? The most common duty, with respect to health and safety at work, is to reduce the level of risk to as low a level as is reasonably practicable (ALARP). Although there are some cases where a higher standard is required, most cases fall under the auspices of Section 2 or Section 3 of the Health and Safety at Work Act, Etc 1974. This may be paraphrased as creating the duty on the employer to “ensure the health and safety of employees (and non-employees who may be effected by the undertaking), so far as is reasonably practicable (SFARP)”. This means that the minimum legal standard is to do what is reasonably practicable.
What does Reasonably Practicable mean?
The term "so far as is reasonably practicable" (SFARP) means that the degree of risk in a particular situation can be balanced against the time, trouble, cost and physical difficulty of taking measures to avoid the risk, as decided by the Court of Appeal in Edwards v The National Coal Board 1949. If these resources are so disproportionate to the risk that it would be unreasonable to expect any employer to have to incur them to prevent it, the employer is not obliged to do so unless there is a specific requirement that he does. The greater the risk, the more likely it is that it is reasonable to go to very substantial expense, trouble and invention to reduce it. If, however, the consequences and extent of a risk are small, insistence on great expense would not be considered reasonable. It is important to remember that the judgement is an objective one and the size or financial position of the employer are immaterial.
How does this relate to Risk Assessments within the workplace?
All employers are required (by Regulation 3 of the Management of Health and Safety at Work Regulations 1999, as amended) to undertake assessments of the risks (to employees and to non-employees) arising from their undertaking. After determining the level of risk, SFARP has the effect of helping to determine how far to go with the control measures that need to be introduced to reduce the risks does to ALARP. When considered in this light, the question’s that were raised at the start of this article become poignant. Doing the minimum actually means reaching quite a high standard of health and safety as the only defence to not doing more is that it is not reasonably practicable to do so.
Is there an order that needs to be considered when determining the measures that are needs to reduce risks to as low a level as is reasonably practicable?
Schedule 1 to the Management of Health and Safety at Work Regulations 1999 specifies a hierarchy that is to be followed when contemplating and introducing measures to control the risks:
(a) avoiding risks
(b) evaluating the risks which cannot be avoided
(c) combating the risks at source
(d) adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health
(e) adapting to technical progress
(f) replacing the dangerous by the non-dangerous or the less dangerous
(g) developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment
(h) giving collective protective measures priority over individual protective measures and
(i) giving appropriate instructions to employees
Other pieces of legislation, such as the Work at Height Regulations 2005, Control of Substances Hazardous to Health Regulations 2002, Dangerous Substances and Explosive Atmospheres Regulations 2002, Manual Handling Operations Regulations 1992, etc. create similar hierarchies.
What about the “knock-on” effects of control measures into other areas?
Risk assessments need to be well thought through and they need to be holistic: all factors need to be considered, including any new risks created by the introduction of the control measures designed to reduce the existing risk. For example:
• a small reduction in the toxicity of a substance should be weighed against the increased risks that might be associated with a flammability or explosion risk, etc.
• the reduction in manual handling risks brought about by the use of mechanical handling (such as a fork lift truck or a conveyor system) need to be balances against the increased risks arising from vehicle movement, falling loads, machinery guarding and mechanical risks, etc.
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