Health and Safety - What is the minimum that I can get away with?

Some employers take Health and Safety seriously and are prepared to invest to keep their workers healthy and safe. Some other employers wish to do the minimum that they can get away with With respect to risk assessments (in particular) and health and safety (in general), it’s 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…”
• “What can I get away with doing…?”

The minimum

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).  There are some cases where a higher standard is required, but most cases fall under the auspices of Section 2 and Section 3 of the Health and Safety at Work Act, Etc 1974, which may be paraphrased as “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).  The minimum (legal) standard, then, is to do what is reasonably practicable.

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. 

What does all this mean?

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.  

Control measures (to reduce risk to ALARP)

Schedule 1 to the Management of Health and Safety at Work Regulations 1999 specifies a hierarchy 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.  By way of example, consider the hierarchy above in respect to the use of a highly toxic chemical in come sort of coating process.  It is clearly not adequate to merely provide a respirator.  The reasonably practicable approach may involve the use of a safer substance used within a suitable enclosure provided with suitable, maintained and tested extraction system coupled to workplace monitoring and health surveillance, etc.  Typical control measures that may be proposed and which the employer will need to make (informed) decisions about include:

a	avoiding the need to do the coating operation – such as by the use of a different substrate (plastic in place of metal, etc.)  doing without the benefit that the coating provides
b	risk assessment covering all risks:  chemical fire and explosion risks manual handling  pressurised systems machinery, mechanical, etc etc
c	full or partial enclosure of the coating operation  coupled to provision of extraction  coupled to provision of scrubbing system
d	consideration of posture in spraying consideration of loads to be lifted, held, manoeuvred, etc space, including headroom workplace temperature, lighting, ventilation, etc.
e	Staying in touch with changing technology and best practice and introducing them as appropriate to the workplace, such as: low-air/high-solids applicators that reduces the amount of material sprayed and the amount of substance that may be released as overspray lower pressure spraying systems
f	replacing the toxic coating chemical with  a less dangerous substance (such as one that is toxic, harmful, etc.)  or (better still) with one that is not classified as hazardous;
g	Active management of the issues arising and avoidance of control by only one approach review of risk assessments active workplace monitoring (are control measures working, are they used, are they enforced, etc.) checking the operation of extraction equipment (daily, weekly, monthly operator checks, etc. and 14-monthly statutory examinations, etc)
h	ensuring that exposure to (for example) inhalation of toxic materials are controlled by enclosure (full or partial) and by local exhaust ventilation (extraction) rather than by reliance on personal protective equipment (such as respirators)
i	training  principles of control, risk assessment, COSHH assessment safe working practices use and provision of welfare facilities the needs for good standards of personal hygiene, etc.

Summary

Even doing the minimum means doing a lot, with respect to health and safety.  Consideration must be given to the risks presented by a task, workplace, operation, etc.  After the risk assessment, suitable control measures must be identified and implemented that address the risks identified and work in accordance with the hierarchy of control.  Risk assessment needs to be holistic: all factors need to be considered, including any new risks created by the introduction of the control measures.  For example: 

• a small reduction in the toxicity of a substance should be weighed against the increased risks associated with 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 and mechanical risks, etc.

Those who state “I only want to do what I have to …” probably do not realise how much is involved.  In many cases, achieving the minimum means going a long way!

Michael Ellerby

LLB BSc CMIOSH MIIRSM MIFSM CChem MRSC CSci

Director

LRB Consulting Limited