Out-Law Analysis | 01 Jun 2020 | 9:08 pm | 3 min. read
Despite the current coronavirus pandemic, two recent cases handled by the British Health and Safety Executive (HSE) show that businesses must not lose sight of their general health and safety obligations to their employees and others.
Following HSE investigations, courts handed down two fines of over £1 million in May for past health and safety failures by firms. The HSE has made it clear that it expects employers to adhere to their obligations during the current crisis too.
Workplace safety, in all its guises, is central to the plan to get business back working and the UK government has stated that the HSE will be monitoring compliance. While health and safety risk assessments will inevitably concentrate on the coronavirus pandemic as businesses grapple with the realities of returning to work, it is crucial that other risks are not ignored or inadvertently downgraded.
Businesses must pay due cognisance to all risk associated with their operations and apply reasonable mitigating measures accordingly. It would be naive to think that the executive will look only for social distancing measures.
In the first of the two cases Modus Workspaces was fined £1.1m after it was found guilty of failing to take reasonable care for the health and safety of others not in its employment as a result of life-changing injuries sustained by an engineer following a fall from height.
Luton Crown Court heard that while testing a sprinkler system for leaks an engineer climbed onto an internal roof and was inspecting a leak from an extension ladder. The ladder slipped away from him and he fell almost three metres into the gap between the internal roof and the external wall.
An HSE investigation found that no reasonably practicable measures had been taken to prevent a fall from the internal roof for both the engineer and other contractors working on the roof, and that the company had failed to discharge its duty to ensure those not in its employment were not exposed to risks, in particular falling from height.
HSE figures show that falls from height accounted for over 25% of fatal injuries at work in 2018/19 and were the cause of non-fatal injuries sustained by more than 40,000 workers over the same period.
Falls from height remain one of the biggest causes of death, disability and injury in construction with five fatalities as a result of falls from height in the construction industry this year alone. The human cost is one of avoidable tragedy; the economic cost is immense.
The HSE and HSE Northern Ireland (HSENI) see the prevention of falls from height as a priority. HSENI recently launched its ‘Internals Falls Are Preventable’ campaign, aimed at sending out a clear message to the construction industry, with the statement that: “Work at height will be a standing item on all construction inspections where relevant.”
Where failures are discovered, as the Modus Workspace case underlines, increasingly large fines should be expected.
After the Modus case HSE inspector John Berezansky said: “This serious incident and devastation could have been avoided if basic safety measures had been put in place.” However, it is not enough simply to have a health and safety policy in place, even one that covers all the bases, if the reality is it is not adhered to on the ground.
This was the situation in the second case involving a large fine last month. Oil refinery company Phillips 66 was fined £1.2m after two workers suffered life-threatening burn injuries from an uncontrolled release of high pressure and high temperature steam.
The HSE's investigation found a series of failures with Phillips 66’s “safe system of work procedure” which the workers adhered to. It said a number of personnel involved in the implementation of the company’s safe isolation procedure of the steam system had failed to complete all the required checks and verifications to reduce the associated risks.
“Safe systems of work procedures are in place to ensure the health and safety of workers. Companies should ensure that all relevant employees and personnel who are involved in their operation and execution are suitably trained and competent to complete their roles within the system,” the HSE said.
The consequences of failing to ensure this are clear.
Significantly, and in contrast to the position in the Modus Workspace case, Phillips 66 pleaded guilty to the charges against it. The fine therefore is likely to reflect the 30% reduction normally given for a guilty plea, and would likely have been much higher had no such plea been entered.
Whilst the emphasis just now is on ensuring that the risks associated with a return to work amidst the continuing threat of the coronavirus are adequately assessed and mitigated, employers must not forget their other general duties. There can be no one-size-fits-all approach to compliance policies and risk assessments must be properly tailored. As important, however, is ensuring there is a culture of compliance where deviation will not be tolerated.
16 May 2020