“A dangerous gap in the regulatory framework”

I was not alone in feeling disappointed when, despite a majority of respondents to public consultation opposing the idea, the Health and Safety Executive (HSE) board decided eventually to withdraw the ACoP to the MHSWR in favour of a new suite of lower level guidance dealing with various aspects of the management of health and safety.

In his recent review of health and safety regulations, Professor Ragnar Löfstedt merely recommended that because it did not seem to meet the needs of many stakeholders, the ACoP should be reviewed rather than scrapped entirely. While many of his other ideas made good sense, RoSPA’s National Occupational Safety and Health Committee (NOSHC) felt that the complete abolition of the ACoP would be quite unhelpful. Along with many other professional and industry bodies they agreed that, while not fit for purpose in its current form, a Code was still needed at this level to explain key principles.

But it turns out that such a discussion was never really on the cards. Despite many of the major trade associations pressing for a revised ACoP, most of their arguments were dismissed by HSE officials as being misinformed or inappropriate. There will probably be no going back, but without the ACoP communicating the essential duties that underpin the systematic management of health and safety, it may be more difficult.

ACoPs are intended to provide benchmarks to indicate to duty-holders what the requirements of goal setting regulations mean in practice. They are supported by subsidiary guidance to help establish exactly what is required in particular circumstances, but because it doesn’t have the same legal status as an ACoP (and also usually includes a careful legal disclaimer about "only being guidance”), this guidance is often seen as just "nice-tohave” good practice.

As a result of the ACoP’s withdrawal, the absence of this "capstone code” now leaves a dangerous gap in the regulatory framework between the duties in the regulations themselves and a number of general and potentially loosely worded sets of alternative guidance documents. This may seriously weaken the authority of advice that needs to be available for employers on specific health and safety management challenges, such as leadership, organisation, workforce involvement, competence, communication, co-ordination, risk assessment, hierarchy of control, active monitoring, investigation, health surveillance, periodic review and so on.

A good example to illustrate this point would be the duty to investigate and learn from accidents, incidents and work-related ill health cases. In practice this is just as important as (and indeed complements) risk assessment. At present there is only an implied duty to investigate in the MHSW regulations themselves, but this is elaborated in the ACoP. If reliance is placed instead on very basic, loose and generally worded guidance documents, internal accident and incident reporting and investigation by employers may well become seen as optional and not absolutely essential.

The HSE, however, has argued that ACoPs cannot be used in this way since they can only legitimately indicate very precise standards of compliance. But this was not what was envisaged in Chapter 5 of the Robens Report of 1972 from which the basic architecture of our current health and safety legislation sprang.

In RoSPA’s view, what is still required is a set of broad but authoritative risk management principles which are easy to understand (particularly for delegates on health and safety management courses), but which can also be applied proportionately by duty-holders – a sort of "Highway Code” for managing safety, which is easily scalable to any organisation’s circumstances, including risk, size, complexity and so on.

No-one doubts that employers, particularly small and medium enterprises (SMEs), need clarity as well as confidence that the advice they follow will help them comply fully with health and safety law. But respondents to the consultation exercise were asked to agree to remove the ACoP without actually being able to judge whether the guidance referred to as an alternative would actually be a satisfactory substitute or indeed sufficiently SME friendly (there is already a bewildering amount of guidance available from different sources). The last thing busy SMEs need now is to be faced with finding their way through a labyrinth of advice on websites, however good the internal links.

The reason we feel so strongly about this is because what actually keeps people safe at work is not just the particular preventive or protective measures that duty-holders put in place following risk assessment to safeguard people from specific hazards, but the policies, organisation and arrangements which together give organisational assurance that significant risks can be tackled on an on-going basis.

This is why, in our view, a simplified and updated ACoP should actually have been regarded as the key text in the regulatory canon, and not an obscure document which could simply be dispensed with. But this does not seem to be the likely direction of travel.

As ever, I would welcome views from readers, who can email me at: rbibbings@rospa.com