Forty percent of businesses are not doing their Fire Risk Assessments

According to information posted by Aviva Risk Management Solutions, about forty percent of businesses are failing to conduct fire risk assessments in accordance with current legislation (The Regulatory Reform (Fire Safety) Order 2005 or RRO).

Based on this poor level of compliance with the RRO, the Fire and Rescue Services have been taking action against offending businesses (the have issued businesses with 34,500 informal notifications, 3,200 enforcement notices, 442 prohibition notices and 84 alterations notices). It is also understood that the fire authorities prosecuted 43 per cent more organisations last year for failing to comply with the RRO.

The Fire and Rescue services are visiting more organisations and checking their fire safety arrangements, particularly their fire risk assessments. Lack of a Fire Risk Assessment is leading to enforcement action . Failure to address the basic responsibilities of completing fire risk assessments means that businesses are not only breaking the law, but also failing to manages the hazards at their premises.

If you need help in understanding your fire safety duties or completing your Fire Risk Assessment, please contact us through our website.

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."

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Free Seminar, 30th October, Loughborough

We have teamed up with a firm of county solicitors to offer you some free advice on employment law, as well as on workplace health and safety. We will be hosting the event jointly with the law firm Edward Hands and Lewis at Loughborough Town Hall on October 30th October.

The event is open to all employers and has been deliberately timed to meet the needs of companies looking to take on temporary seasonal workers in the run up to Christmas. The employment aspect is focus on “Hiring and Firing”, while the Health and Safety aspect focusses on “Simple Steps to Safety”. There will be plently of time after the event to discuss any matters of interest in more detail.  If you need an informal discussion on any aspect of Health and Safety ot Food Safety, please come along and talk to me.

Employment lawyer Paul Stubbs of EHL said: “This seminar will provide valuable advice to all employers and will particularly useful to those seeking to recruit extra workers over the festive period”, while Health and Safety Expert Michael Ellerby, of LRB Consulting, said “too many people make health and safety complicated. I am here to promote the pragmatic and common-sense approach”.

The seminar runs from 8am until 10am with the opportunity to network during the first half hour of the morning.  For further information or to book a place please email Anita Kaur Takhar at anita.k@ehlsolicitors.co.uk or call her on 0116 2688953

After the event
I'm pleased to report that the Seminar went well. People turned up on time and seemed to enjoy themselves. There were plenty of questions afterward and I managed to arrange a few meetings and added some new contacts to the email Newsletter database. It would seem that we will also have some people signing up for our forthcoming training courses.
 

Contractor's death results in large fine for construction firm

Falls from height remain one of the most common causes of fatalities and major injuries in the construction sector. In the period 2011 to 2012, 49 workers lost their lives on construction sites in the UK, with falls from height being a major cause.  Following the death of a man  after falling through a roof while working on the construction of a shopping centre in North Wales, a building firm has been ordered to pay £450,000 in fines and £98,000 costs after being found found guilty of breaching Section 3(1) of the HSWA 1974.

The Crown Court in Mold (North Wales) heard that Watkin Jones & Son Ltd was the principal contractor during the building of the Menai Centre in Bangor and that Thomas Whitmarsh, (aged 21) was working for a company that was sub-contracted to carry out roofwork at the site.

In December 2009, Thomas Whitmarsh was fitting a rubber membrane to a flat concrete roof when he fell nearly six metres through an unguarded opening in the roof to the floor below, sustaining serious head injuries.  He then spent several months in hospital and was making a gradual recovery. Unfortunately, the brain injury he suffered exposed him to a much higher degree of infection and he later died after contracting acute meningitis. The court heard that there was more than an 80-per-cent chance that the injuries from the fall contributed to his death.



An HSE inspector commented that there had been adequate edge protection around the void, but that this had been removed and not put back in place until after the incident. He went on to comment that: 

“Poor coordination between the principal and the roofing contractors on this particular part of the site led to the edge protection being removed from around the roof opening without alternative safeguards in place.

Falls from height are an alarmingly common cause of death and serious injury in construction. All too often, straightforward practical precautions are not considered and workers are put needlessly at risk. Poor management of risk in this industry is unacceptable and HSE will take strong action when necessary.

This tragic case should remind all contractors that work at height must be managed effectively and adequate safeguards should be in place to prevent falls.”



 By way of mitigation, the firm said it takes health and safety seriously but accepts failings took place in relation to this incident. Following the incident, it modified its procedures to ensure that work is safely handed over to contractors.

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Safety: Managers need to manage

Part 1: Machinery Safety
There is a problem with safety features: they can often be bypassed. Many safety professionals will have seen instances of safety interlock systems on equipment, such as CNC machines, being defeated by fixing the key into the lock part of the system either by using a spare key or by detaching the main key from the frame of the equipment. Often this is justified by the site management as being the “only way the work can be done”. This state of mind does not stand scrutiny as many other companies manage to achieve safe operation with same equipment doing the same job. The failing is often the attitude or approach to safety management in the minds of the managers, supervisors and workers.

This (lack of safety) practise has recently cost a manufacturing firm over £26,000 in fines and costs. The company was fined after pleading guilty to breaching Regulation 11(1) of the Provision and Use of Work Equipment Regulations 1998. This regulation requires employers to ensure effective measures are taken to prevent access to dangerous parts of machinery.

Part 2: Fire Safety
The fire safety arrangements of businesses are under scrutiny from the Fire and Rescue services. The fire safety risk assessment for the premises is a starting point, but it needs to be acted upon and turned into something meaningful. Poundland has recently been fined more than £20,000 for having obstructed or blocked fire escape routes. A fire officer found three of the four potential exit routes from a three storey premises were blocked from the outside by stock crates. As a result, the fire officer took the unusual step of evacuating the premises until the situation had been made safe and the exit routes were cleared. The Company pleaded guilty to three charges of failing to keep the fire exits clear (as required by Article 14(1) of the Regulatory Reform (Fire Safety) Order 2005). The Company was also fined for not properly training the temporary manager (as required under Article 21(1)(b)) and was subject to costs of over £7000.

Part 3: Food Safety
Although Food Safety is often seen as a different discipline to health and safety, many of the principles are the same. Good management involves looking at what is going on in the business, understanding the implications (i.e. the risks) and responding in an appropriate and proportionate manner. When warning letters are received from the local authority highlighting some food hygiene failures within the business and also suggesting some simple and low cost ways of rectifying the situation it is not appropriate or proportionate to ignore the situation. As a result of such (lack of) action, the operator of a takeaway outlet in North Wales has been jailed for eight months following an outbreak of E. coli attributed to the premises.

Part 4: Control of Contractors
Many people assume that when they appoint a contractor to carry out work for them that they have not further responsibility for the safety of the contractor. There have been many cases over the last few years that involve organisations paying out large fines for failing to ensure the safety of contractors. In a recent case, a paper maker was fined £260,000 (under Section 3 of the Health and Safety at Work Etc. Act 1974) following the death of a contractor who felt through a fragile roof. When being appointed, the contractor said that crawling boards would be used. After the accident occurred, it was established that crawling boards were not used and it was also established that the paper maker had not made reasonable efforts to ensure that the contractors were carrying out the work safely, in the manner proposed. “Companies must make sure work contractors do for them is properly planned and organised, and monitor what actually happens when the work takes place”.

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Breaks under the Working Time Regulations 1998 (in brief)

There is a lot of (unnecessary) confusion about workers rights and employers duties under the Working Time Regulations 1998, in particular in relation to rest breaks.The Regulations create the following provision for rest breaks at work and time off:
Rest breaks at work
A worker is entitled to an uninterrupted break of 20 minutes when daily working time is more than six hours. This break should be taking during working time and should not be taken at either the start or at the end of the working day.
 
Daily rest
Under the Regulations, a worker is entitled to a rest period of 11 consecutive hours rest in each 24 hour period during which they work for their employer. There are, however, a number of special circumstances in which the entitlement to rest periods does not apply. These include: where the activities involve a need for continuity of service or production, or where there is a foreseeable surge of activity. Also, if a shift worker changes shift, it may not be possible for them to take their full rest entitlement before starting the new pattern of work. In such a case the entitlement to daily and weekly rest does not apply.

Weekly rest
An adult worker is also entitled to one day off a week; this can be averaged over two weeks.

Young or adolescent workers If a young worker is required to work more than four and a half hours at a time, then they are entitled to a break of 30 minutes. A young worker is also entitled to 12 uninterrupted hours in each 24-hour period in which they work. Both these entitlements can only be altered or excluded in exceptional circumstances. Young workers are also entitled to two days off each week and this cannot be averaged over two weeks.

HSE - Fee for Intervention, 01 October 2012

The Fee for Intervention (FFI) scheme is now in full operation, and has been since it was introduced on the 1st October 2012. The HSE now levy charges against companies if they visit them and if that visit results in some form of enforcement action. This is not something that the HSE have discretion about, it is now mandatory.  How much money will the HSE raise and where will this money go are questions that are addressed in this short blog article. We also consider simple steps that organisations can take to stay on the right side of the law and avoid these charges, as well as avoiding prosecution.

 
How much may these charges be?
The cost recovery aspect for Fee for Intervention is set at £124/hour for 2012. The actual costs that will recovered by the HSE (under the Health and Safety (Fees) Regulations 2012 force) will be dependent on the complexity of the investigation that is required to follow all reasonable lines of enquiry, but some guideline figures are:

• 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 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.
• Keep your policies and procedures up to date.
• Consider taking professional Health and Safety advice.

So, who gets this money?
It now appears that the HSE won’t be keeping the full amount recovered under the scheme, the top layer is being skimmed off by the treasury.

The Health & Safety Executive will keep £10 million of the first six months’ revenue, rising to 17 of the projected £37 million recovery in 2013/14 (the scheme’s first full year of operation), and £23 million of the projected £39 million in 2014/15.

Part of the HSE’s original justification for FFI, which will enable it to recover the cost of inspectors’ time wherever they find a “material breach” of Health & Safety law justifying a letter or enforcement notice, was that it would support the executive at a time of budget cuts. The government’s 35% cut in the HSE’s funding will leave the regulator around £80 million a year worse off from 2014–15.

During the consultation period last autumn, the HSE advised that FFI, the introduction of which was delayed from April, could bring as much as £43.6 million a year from non-compliant businesses and operators of onshore boreholes.

It has since revised these estimates to reflect both the change in the hourly FFI rate and revisions to the expected cost recoverable activity.

This is good news for businesses as because the HSE will only gain a set amount from the FFI scheme, there will be no incentive to over-enforce to raise additional funds. However, in line with the reduction in the HSEs budget the overall staff numbers are still likely to decrease.

Parting Message
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