You can be prosecuted for breaking H&S Law, even if no one is harmed

When things have gone wrong, people sometimes respond by saying things like "I don't know what the fuss is about, nobody got harmed". Good Health and Safety practise is about protecting people from harm and it means that companies need to act to protect employees from harm, as the case below demonstrates.

Aylesbury Magistrates' Court sentenced a microbrewery in October 2012 for failing to take sufficient action to prevent unsafe work at height and failing to improve manual handling at its Marsh Gibbon production plant.  The brewery was warned back in May 2010 that it needed to improve after the Health and Safety Executive (HSE) served an Improvement Notice requiring action to protect workers transferring materials from racking to processing machinery.  The HSE inspector raised concerns about manual handling operations, principally the filling of hoppers with malt and barley, which involved employees lifting heavy sacks weighing up to 25kg in awkward circumstances. The notice required the company to carry out a thorough assessment of the (manual) handling risks and to take appropriate action.
 
The court heard that the HSE revisited the brewery in November 2010 and again in February 2011, but on both occasions little had changed. Concerns were also expressed about a mezzanine floor that was accessible via inadequate steps and a second Improvement Notice was served in March 2011.

The brewery was fined £6,000 and ordered to pay costs of £8,623 after pleading guilty to breaching Section 2(1) of the Health and Safety at Work etc Act 1974 and Regulation 6(3) of the Work at Height Regulations 2005.

The HSE Inspector (Stephen Manley) said:
 
"The response of Oxfordshire Ales to the original Improvement Notice was disappointing to say the least. The improvements were necessary in order to protect workers from injury and prevent falls, yet the company took far too long to take appropriate action.  Thankfully no employees were hurt, but there were clear risks that could easily have been remedied a lot sooner."

Need help? Visit our website

Coming soon, potentially to a company near you

Have you heard a rumour of another potential charge on a business?

This is more than rumour: The HSE (Health and Safety Executive) will charge companies if they visit them if that visit results in some form of enforcement action. This will start from 01 October 2012 and it is not something that the HSE will have discretion about; it will be mandatory and could affect any company, including those reading this article.  Gordon MacDonald (the HSE's programme director), said:

"The Government has agreed that it is right that those who break the law should pay their fair share of the costs to put things right - and not the public purse.  These proposals provide a further incentive for people to operate within the law, levelling the playing field between those who comply and those who don't. Compliant firms will not pay a penny in intervention fees."

So, how much might a company be charged by the HSE?

Cost recovery is almost certainly going to be at £124. The actual costs that will recovered by the HSE (when the Health and Safety (Fees) Regulations 2012 come into force) will be dependent on the complexity of the investigation that is required to follow all reasonable lines of enquiry, but some guideline figures have been offered:

•               Inspection with no action taken - No costs will be recovered

•               Inspection which results in a letter - Approximately £750

•               Inspection which results in Enforcement Notice - Approximately £1500

•               Investigations carried out by the HSE - Ranging from approximately £750 through to several thousands of pounds to, in extreme cases, tens of thousands of pounds

Looking for some simple steps to avoid such charges?

The obvious answer is to do the common-sense things and ensure that you are (and remain) compliant with the relevant Health and Safety legislation and this will help you to avoid attracting the unwanted attention of the HSE:

•               Keep your health and safety policy and associated procedures up to date.

•               Keep your risk assessments reviewed and up to date.

•               Ensure that you have adequate control over your contractors.

•               Take prompt action to prevent situations developing that may attract the interest of the HSE.

•               Ensure that you keep suitable records.

•               Keep your employee training records up to date.

Your actions may protect your employees, but it is your records that will protect your Company and provide you with peace of mind.

Michael Ellerby

Director, LRB Consulting Limited
Tel: 01509 550023 www.Lrbconsulting.co.uk  

Ignorance of asbestos continues to be a problem

A contractor has been found guilty of potentially exposing workers and shoppers to asbestos on a busy high-street construction site because he flouted the rules on working with this hazardous material.

The contractor was fined for several breaches of asbestos and construction design legislation on the Bromley High Street site. In this case the contractor was a private individual. An HSE inspector who investigated the case, commented that the project had not been properly planned. The project involved the demolition of a building that comprised a restaurant on the ground floor with flats above it. Three workers, whose qualifications could not be proved, were overseen by the contractor.

During the demolition, the workers, who did not recognise that the insulating boards in the restaurant’s ceiling contained asbestos and they used sledgehammers and hand-operated tools to break them up, so they were “more than likely” to have been exposed to asbestos fibres (according to the Inspector).

The investigating HSE Inspector said: 

“Sadly, this kind of incident is all too familiar. The dangers of asbestos are well known; it is the single greatest cause of work-related deaths in the UK, with around 1000 tradesmen dying each year from asbestos-related diseases ... Anyone working with these sorts of materials must commission an asbestos survey to ascertain the level of work needed and then have asbestos removed in a controlled manner by a licensed contractor.”

The contractor pleaded guilty to breaching the following Regulations, for which he was fined a total of £19,300 and ordered to pay full HSE costs of £7654:

• reg.8(1) of the Control of Asbestos Regulations 2006, by undertaking work with asbestos without a licence – fine £8000; 


• reg.5 of the same Regulations, by not conducting an asbestos survey – fine £6000; 


• reg.4(1) of the Construction (Design and Management) Regulations 2007, by not appointing a competent site manager – fine £2650; and 


• reg.22(1) of the same Regulations by not managing construction work to ensure safety – fine £2650.

In mitigation, the contractor commented that he had made a mistake of ignorance and had not acted for profit motives. He had not deliberately broken the law on asbestos, but had not been aware of it. He had done what he had been asked to do to improve matters since the incident.

The site was cleared after the investigation and has since stood empty behind a first-floor façade. Inspector Seabrook explained that the site is located next to a Sainsbury’s store, which would have potentially exposed shoppers to asbestos while the demolition had been taking place. 

Need help with Health and Safety? Contact us through our website!

Birmingham-based university fined following exposure to asbestos fibres

A Birmingham-based university has been fined, along with a security systems firm, after two workers were exposed to dangerous asbestos fibres while fitting CCTV cameras.

The worker and a 17-year-old trainee were installing the cameras in the reception area at the university's Recreation Centre on 21 July 2009 when they drilled into material containing asbestos fibres.  Both the university and the contractor carrying out the work were prosecuted by the Health and Safety Executive (HSE) following the incident.

Birmingham Magistrates' Court heard the university failed to follow its own procedures on managing, planning and preparing for the installation and the arrangements were unclear and not widely known within the university.

The university pleaded guilty to breaching Regulation 5(1) of the Management of Health and Safety Regulations 1999 and Regulation 4(9)(c) of the Control of Asbestos Regulations 2006 and was fined £4,000 and ordered to pay £2,000 costs.

The contractor pleaded guilty to breaching Regulation 5(a) of the Control of Asbestos Regulations 2006 and was fined £1,000 and ordered to pay £1,000 costs.

The investigating inspector from the HSE said:

"While the amount of asbestos involved in this incident was small, two people now have to live with the knowledge that they may become ill from lung disease in the future.

"The university failed to ensure employees and others working across the site were aware of the presence of asbestos fibres.

"Surveys on the location and conditions of asbestos and materials containing asbestos had been carried out across the university but there was no procedure for communicating the details to contractors.

"The contractor, who had been working for the university for many years, had never been given any information about asbestos - and had never asked for it. They also failed to assess whether asbestos was present, what type of asbestos was involved and what condition it was in, before undertaking work."

If you need help with the management of health and safety in your workplace, please visit our website.

Do I need a gas safety certificate?

If you are a Landlord (or Managing Agent) and if you are responsible for gas plant and equipment (such as a gas boiler or a gas fire), you should have the equipment serviced and maintained by a competent person (Gas Safe).  Further to this, you should arrange for the equipment to be checked and for a Gas Certificate to be issued. A copy of this Gas Certificate should be made available on request.

Poorly maintained gas appliances can cause carbon monoxide poisoning, which can kill and can also cause serious long-term health problems. Symptoms of carbon monoxide poisoning include nausea, dizziness, tiredness, vomiting, collapse and loss of consciousness.

Recent prosecution involving the lack of a gas certificate
A Walsall landlord has been sentenced for failing to provide a gas safety certificate.The Health and Safety Executive prosecuted the landlord following a complaint from a tenant, who rents a house at Raleigh Street, Walsall from him.

The Magistrates heard that the boiler was replaced in October this year, despite having broken down in January.  Until recently the landlord did not have a landlord’s gas safety certificate for the appliances in the property, despite having being issued with an Improvement Notice from the HSE in March requiring him to provide the certificate by May. The court also heard that when the new boiler was installed, the gas engineer condemned the cooker in the property as dangerous and isolated it. The Landlord was fined £2000 and ordered to pay costs of £3000.

Contact LRB Consulting through the website if you need help in understanding your duties as a landlord.

Asbestos prosecution for High Street Retailer

Marks and Spencer plc, along with 3 of its contractors, have been fined for putting people (including members of the public, staff and construction workers) at risk of exposure from asbestos-containing materials during the refurbishment of two of its stores in Reading and Bournemouth.

M&S were fined £1 million and ordered to pay costs of £600,000. In addition, three contractors were fined £200,000 £100,000 and £50,000 and were also ordered to pay costs.

During the 3-month trial which ended in July 2011, the Crown Court heard that construction workers at the two stores removed asbestos-containing materials that were present in the ceiling tiles and elsewhere. The court heard that the client, Marks and Spencer plc, did not allocate sufficient time and space for the removal of asbestos-containing materials at the Reading store. The contractors had to work overnight in enclosures on the shop floor, with the aim of completing small areas of asbestos removal before the shop opened to the public each day. The HSE also alleged that Marks and Spencer plc failed to ensure that work at the Reading store complied with the appropriate minimum standards set out in legislation and approved codes of practice. The company had produced its own guidance on how asbestos should be removed inside its stores, and the court heard that this guidance was followed by contractors inappropriately during major refurbishment.  One contractor failed to reduce to a minimum the spread of asbestos to the Reading shop floor. Witnesses said that areas cleaned by the company were re-contaminated by air moving through the void between the ceiling tiles and the floor above, and by poor standards of work.

The principal contractor at the Reading store, admitted that it should not have permitted a method of asbestos removal which did not allow for adequate sealing of the ceiling void, which resulted in risks to contractors on site. The principal contractor at the Bournemouth store failed to plan, manage and monitor removal of asbestos-containing materials. It did not prevent the possibility of asbestos being disturbed by its workers in areas that had not been surveyed extensively.

The HSE's Southern Head of Operations for Construction, Richard Boland said:
"This outcome should act as a wake up call that any refurbishment programmes involving asbestos-containing materials must be properly resourced, both in terms of time and money - no matter what.
"Large retailers and other organisations who carry out major refurbishment works must give contractors enough time and space within the store to carry out the works safely. Where this is not done, and construction workers and the public are put at risk, HSE will not hesitate in taking robust enforcement action."

Confined spaces - A couple of cases

Case 1
A silo cleaning company was fined £15,000 each of two breaches of the Confined Spaces Regulations 1997 (with costs of £15,000) after pleading guilty to breaching Regulations 4(2) (failing to provide a safe system of work) and 5(1) (insufficient emergency arrangements). A worker who had not been trained in confined-space access and egress, nor provided with adequate equipment, died of heat exhaustion inside a feed silo.

Case 2
A metal-treatment company has been fined £533,000 (with costs of £200,000) following a double fatality at its manufacturing plant. The Crown Court heard that a works manager and a maintenance manager died of asphyxiation and were found unconscious on stairs leading to a concrete-lined pit after argon gas had leaked from a large pressure vessel. Following a number of false alarms, the pit’s oxygen alarm system had been silenced. This was coupled to the fact that the ventilation system was also not in operation after the machine had lost power during a power cut. The power cut happened a month prior to the incident and had not been switched back on. The HSE inspector commented “... the risks from confined spaces and asphyxiation due to the presence of argon were well-known to the company, which had experienced of a similar double fatality. Despite this warning the company failed to undertake a proper risk assessment for entry into the confined space. Although they had implemented a safe system of work and permit-to-work procedure, they had not properly trained employees in their use, or ensured that these systems and procedures were being followed through their auditing procedure.”

If you need help to manage your Health and Safety, please contact us via our website

Company fined £210,000 after driver killed at landfill site

The death of a driver at a landfill site in Northamptonshire led to a waste management and recycling company being prosecuted by the Health and Safety Executive and being fined £210,000.

The Driver arrived at the site to empty his refuse lorry and had to be assisted onto and off the tipping area as wet weather had led to soft ground conditions at the site. A bulldozer towed the refuse lorry to the tipping area where he discharged part of his load, in order to shed the rest of the load, the lorry needed to move forward but had become bogged sown in the soft ground. The Driver was radioed by the driver of the compactor who was spreading rubbish behind his lorry, to say he would drive up behind the Driver’s lorry and push it forward using the compactor. The bulldozer in front of the Driver reversed up to the front of the lorry to give him a tow.

Both vehicles tried to help the lorry move, without communicating with each other.

As the compactor began to push the lorry forward, the Driver was attaching a tow rope from the bulldozer to the front of his lorry. He was crushed to death between his lorry and the back of the bulldozer.

Northampton Crown Court heard that the landfill company had not defined supervisory roles for the staff at the site and that there were ambiguous site rules concerning the pushing of lorries. It also heard how new working arrangements had been introduced at the site a few days before the incident without being properly assessed for risk.

The company was fined £210,000 and ordered to pay costs of £38,000 after pleading guilty to breaching Section 3(1) of the Health and Safety at Work etc Act 1974.

A HSE Inspector said:

"Every company has a legal responsibility to take care of people working on their site, whether they are employed by them or not, in whatever circumstances they are asked to operate. Assessing risks, mitigating them wherever possible or stopping work as appropriate is the least people should expect from companies. Employers need to ensure their staff understand their roles and responsibilities in making sure sites like this operate to clear site safety rules."

"In this case, the prosecution shows that this has not happened and the Driver’s family have lost him as a result."

This sort of accident could have been avoided through conducting an appropriate risk assessment. Find out more about risk assessments and how we can help you by telephoning us on 01509 550023.

Website

Shocking! - Manufacturer fined £10,330

A stationery manufacturer has been fined after admitting exposing a worker to a high voltage shock that left him permanently disabled. The man was investigating a fault on a plastic welding machine in June 2007 when his fingers came into contact (or very close contact) with components carrying several thousand volts.

The shock severely burned his right hand and forearm, and damaged several muscles. He was hospitalised for 14 days and has since had to undergo skin grafts. He has not regained full use of his right hand and has been unable to return to work.

A Health and Safety Executive (HSE) investigation into the incident revealed that guard panels which should have prevented access to live circuits had been removed. Inspectors discovered that no record of maintenance checks was kept for any of the machines at the factory. The company also had no first aiders.

The company pleaded guilty to breaching Section 2(1) of the Health and Safety at Work etc. Act 1974 at the City of London Magistrates' Court. It was fined £4,000 and ordered to pay costs of £6,330.

A HSE Inspector said:

"A man's life has been turned upside down because of entirely preventable and basic safety failings. It is the responsibility of all managers to make sure that all maintenance work is properly planned and recorded and that adequate guards are fitted to all machinery when it is in use.

"If these simple things had been done it is unlikely that he would have suffered these horrendous injuries. But this incident could have been much worse - instead of losing the feeling in his fingers, he could have lost his life."

A store owner is fined £12,567 after being held responsible for an accident in which a three-year-old girl suffered second degree burns. The child’s dress caught fire as she walked past a propane space heater in the store. It was only the bravery of the child's father (who was also treated in hospital for burns to his hands as he tried to put out the flames) that prevented his daughter from suffering even more serious injuries.

Lancashire Fire and Rescue Service Fire Safety Enforcement Officers and Environmental Health Officers from West Lancashire Borough Council launched a joint prosecution against the fabric store. The business owner was found to be in breach of Regulatory Reform (Fire Safety) Order 2005 .

Fire service investigators who visited the business in the aftermath of the incident were said to be “appalled” by the lack of fire safety in this commercial site and the fire service concluded that the owner:

"failed to put the safety of the public first"

The store owner failed to initiate basic risk assessments, failed to fit fire or smoke detectors and alarms, failed to provide escape routes with suitable lighting and failed to ensure fire escapes could be used safely and quickly.

A spokesman for the Lancashire Fire and Rescue Service Fire said:

"Under fire safety regulations every ‘responsible person’ is required to carry out a Fire Risk Assessment. This may be done as part of the general Health and Safety Risk Assessment, or as a separate and specific Fire Risk Assessment.

Regrettably in this instance the responsible person had failed to undertake a Fire Risk Assessment which would have identified the unsuitable use of the space heater along with the lack of general fire precaution, and steps required to ensure public safety."

The store owner was also found guilty of offences under the Health and Safety at Work Act brought by West Lancashire Council.