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|Responding to serious workplace accidents||22/05/2023|
WHEN A serious incident happens at work, it can be difficult to know what to do. Here, Tom McNeill offers practical guidance to help you navigate through what can be a complex legal minefield.
Workplace incidents resulting in fatalities, serious injuries, or dangerous occurrences often trigger criminal regulatory investigations. These investigations have the potential to lead to prosecutions of organisations, directors, managers, or other individuals. While organisations value their safety responsibilities and strive to cooperate with enforcing authorities, they also aim to safeguard against prosecution and other regulatory risks. These goals can be pursued simultaneously.
The manner in which cooperation is provided, for example, can significantly impact the final outcome. Providing voluminous records for the enforcing authority to review is one approach. Alternatively, conducting a thorough internal investigation to understand both documented and undocumented systems, and effectively explaining systems to the enforcing authority when providing relevant records may be far more effective.
Similarly, implementing "improvements" without fully comprehending the safe system of work or seeking expert opinions on complex systems or equipment may miss the point or introduce new risks. In contrast, appropriate and effective remediation can be a powerful tool in persuading an enforcing authority not to prosecute.
To form an effective response, a proper understanding of the facts, legal duties, and likely approach of the enforcing authority is essential. Organisations should seek legal advice following a serious incident and consider the following factors:
Tom McNeill is partner and health and safety regulatory specialist at BCL Solicitors. For more information, visit www.bcl.com
|Digital and connected safety||27/02/2023|
RECENT DEVELOPMENTS in digitalisation and connectivity have transformed the way we work, with the potential to make workplaces not only smarter but safer. David Head provides an insight.
Industry 4.0 and the ongoing automation of traditional industrial practices using smart technology has played a prominent role in the evolution of workplace safety in the past decade, and recent developments in digitalisation and connectivity are further transforming the way we work, with the potential to make workplaces not only smarter but safer.
Nearly half (49%) of all respondents in the Dräger Safety at Work research last year found the use of digital and connected safety technology reassuring, and 38% of those interviewed said that such technology has already improved outcomes and led to better safety.
More broadly, the potential benefits are significant, and there have been some major advances in innovation over the past few years.
For example, sectors where gases present a risk (and this includes a very wide range of industries, not least manufacturing, oil and gas and utilities) are now able to use real-time monitoring of hazardous environments which link inter-connecting portable devices that communicate and respond to one another to safeguard personnel.
Harnessing innovation, such systems can now be linked, transforming individual portable gas detectors into a connected smart safety system.
This offers a number of key benefits, including live monitoring; whereby key information is displayed in real time via an online user interface. This interface is available to anyone who has the appropriate permissions, meaning that workers on site, or managers in a central location, can pinpoint the position of their colleagues and the status of their gas safety at any given moment. If an alarm is activated by any individual device, colleagues and managers would be immediately alerted to the risk and be able to see the key information displayed on the management dashboard. Furthermore, emergency services can be granted access to the data which allows them to manage an emergency situation, if needed, and the data is also logged for later analysis.
On the subject of monitoring, it is worth repeating an observation made by thought leader, Keith Hole when commenting on the latest Dräger research into digitalisation and e-commerce in safety. He observed that the changing working practices post pandemic, which support remote working, means that the safety and supervision of staff is undertaken less often face-to-face and more through management information and performance indictors using connected devices.
He believes that improvements in the way that data is collected and processed enables businesses to have a clearer understanding of the challenges their workforce faces on the ground and therefore managers can provide supervision remotely through the adoption of new technologies. This has the potential to make businesses more agile, enabling better risk-based decision making, and, most importantly, keeping everybody safe at work. Historically, this level of information has been reserved for the C-suite but with recent changes there are indications that this being shared more widely throughout a business, ensuring transparency around the data collected and enabling staff to have a greater ownership of their own safety information.
However, despite these indications of progress, there remains considerable scope for businesses to convince people that interacting digitally can improve safety: While the feeling overall is that the introduction of new technology is largely positive, the fact that just over a fifth (22%) of people expressed privacy concerns and the same number believe that there is an increased risk of cybercrime, must not be ignored.
David Head is head of safety marketing at Draeger Safety UK. For more information, visit www.draeger.com/en_uk/Safety
|Is it time to upgrade your fall protection PPE?||02/11/2022|
WHEN IT comes to fall protection PPE (personal protective equipment), is compliance with legal standards enough? Alfonso Fernandez of MSA Safety explains why it pays to go the extra mile when protecting your employees.
PPE standards make a vital contribution to safety at work, by legally enforcing a reasonable level of quality and capability for all products. However, they do have limitations. For example, can they cover every possible workplace scenario, keep up with rapid changes taking place in industry, and adapt quickly enough to take recent PPE innovations into account?
Certification and standards processes in fall protection PPE
To understand these issues, we should first consider the process for certification. All fall protection PPE needs to be legally certified. New products are independently tested and quality-checked by an accredited third party known as a ‘notified body’. The standards against which PPE is assessed are decided, in the case of fall protection, by a committee of specialists in this area.
Every five years, the committee decides whether to continue with the same certification standards for another five years or to update them. In practice, a standard typically lasts for ten years. Some standards may stay in place for 15 or 20 years. In that time, there is scope for many things to change in the workplace and the PPE market.
When updated standards are introduced, employers are allowed to continue using older PPE which was bought when previous standards applied, provided they follow the manufacturer’s instructions. They will still be complying with legislation, but they should think carefully about whether a newer product will be safer for their teams.
While legal standards may change slowly or not at all, constant developments and breakthroughs are being made by fall protection PPE manufacturers in terms of new technologies, materials and designs. In addition to improving safety, these advances bring practical and productivity advantages. To benefit from these, and to maintain safety as their highest priority, buyers should not always wait for the law to change before upgrading their PPE. At all times, they should seek to be more than just compliant.
Making the decision easier when choosing the right fall protection PPE
For many businesses and PPE buyers, there is no lack of willingness to comply, and more, with fall protection legislation. Their problem is with the complexity of the rules, the quantity of documentation, and the difficulty in fully understanding what it all means for real-life applications. Any change in standards can add to the confusion. Meanwhile, they may feel bewildered by the information and choices offered by competing PPE suppliers.
As a result, businesses might find it difficult to know whether they are compliant, whether new PPE would be beneficial, and what PPE products would best meet their needs. Insufficient knowledge, biased advice, or misinformation from others with an incomplete understanding of the issues, can lead to indecision or wrong decisions.
Thankfully, there are good sources of information on evolving legislation and innovations in fall protection PPE, if you know where to look. Trade associations, training agencies and health and safety organisations, for instance, can help to keep you up to date. Look out, in addition, for webinars and seminars on fall protection. It’s also well worth finding PPE suppliers who you feel you can trust for impartial guidance on whether and how to upgrade. Amongst other support, MSA provides easy-to-understand fact sheets and publications on the key issues to aid awareness.
One good example of an area with potential for misunderstanding is load capacity limits. The current EU standard for a body harness, which is an essential piece of fall protection PPE, is 100 kg. The user himself or herself may weigh under 100 kg, but we also need to consider the additional weight of heavy tools and other PPE. For this reason, MSA certifies its harnesses to 140 kg.
If the harnesses used by a business are several years old, they are likely to be certified to 100 kg. Their owner may be unaware that harnesses with the added safety factor of a 140 kg limit are now available and may therefore see no reason to upgrade.
When an old harness reaches the end of its service life, the owner will compare potential replacement products. Presented with two harnesses, both of which comply with the EU standard, he or she might logically choose the lower-priced product without looking for differences in load capacity.
MSA’s other fall protection PPE products are similarly certified to 140 kg rather than the EU standard of 100 kg. They include fall arrest systems, such as self-retracting lifelines (SRLs). The same load capacity limit is applied to MSA temporary horizontal lifelines, tripods and other anchorages. Clearly, all parts of a fall protection system need to have the same load capacity if weak links are to be avoided.
MSA provides clear and simple information with each product and system to help users understand how it should be used and in what circumstances. Crucially, this includes warnings on situations in which the load weight or other factors will make its use unsafe.
Time is money
A key gain to be made from upgrading fall protection PPE is savings in time. Every minute spent on activities other than the job in hand amounts to lost productivity. Donning, set-up, inspection and maintenance of PPE all take time. Any design improvement which reduces that lost time can be seen as an ongoing operational cost saver. Viewed from a different angle, any design improvement which makes safety procedures quicker and easier to perform helps ensure they are always carried out properly.
Correct use of a fall protection system is complicated by the interaction of its component parts. It may consist of, for instance, a harness, an SRL and a temporary horizontal lifeline. Each has a different set of features and functions, as well as its own certification. Each also has a user manual. Combining these elements optimally for each specific set of application circumstances can involve a lot of reading.
To simplify this process, MSA is now producing user-friendly system guidance, including charts with pre-calculated values, drawing together information from the separate manuals. This time-saving aid is available, for example, with MSA’s latest temporary horizontal lifeline.
The same product also illustrates how good design can save time on the physical setting up of a system. It can be deployed by a single worker, aided by its inbuilt, toolless locking and tensioning mechanisms. For absolute certainty, coloured indicators confirm when the device has been correctly locked and tensioned. The whole process is 75% faster than that of traditional cable systems.
A further bonus of clear guidance and simple procedures is that new users can learn to use a system very quickly. This saves on training time and budgets.
In addition, good design can simplify and speed up daily, pre-shift, annual and other periodic equipment checks and inspections. Combined with robust construction, it can also reduce servicing needs and downtime. MSA has developed quick maintenance procedures which allow some products to be routinely serviced in the field, rather than sent to a workshop.
Feel good factors
The way PPE looks and feels is another area in which constant improvements are being made. The importance of these aspects must never be underestimated. Does the appearance of the harness and other PPE items worn by the worker make him or her feel awkward and self-conscious? Or has it been designed to make the wearer look and feel professional? Is it comfortable to wear, or is the user limited and distracted by it?
If the user doesn’t like wearing the item, there’s a risk that he or she will avoid using it – at least occasionally – and choose to work without protection. If its use causes discomfort or restriction of movement, the worker’s ability to carry out tasks effectively and safely may be compromised.
An important and worrying issue in this respect is that traditional PPE designs often fail to cater for the diversity of users. Workers’ sizes and body shapes vary greatly. There are also fundamental differences between men and women in terms of PPE design needs.
A recent PPE survey1 by the trade union Prospect highlighted this problem. It found, for instance, that 44.7% of female respondents but just 15.3% of male respondents reported poor-fitting overalls. This is just one simple example of a much wider difficulty which designers of fall protection and other PPE are working to address.
When comparing PPE products, you should think about the whole user experience felt by your employees – both short term and long term. Does the PPE give a positive feeling, visually, ergonomically and comfort-wise? Does it help the wearer to do his or her job well? Do its design and operating features save time for the worker?
Is compliance enough?
Any consideration of fall protection measures should include a recognition that falling from heights is industry’s biggest cause of fatal accidents2 for workers.
Your fall protection PPE may be compliant, but does it have sufficient load capacity? Does it in any way hinder your workers and their productivity? Are they happy to wear it or are they sometimes tempted to skip its use? Could it be more robust? Is hanging on to your existing PPE, when improved products may now be available, a false economy?
MSA’s designers and engineers continue to push the boundaries of PPE durability and performance. The company regularly introduces new time-saving features, along with improvements in ergonomics, comfort and style. The result is a product range that does much more than comply with the latest legal standards – aimed at employers for whom safety is truly a priority.
To find out more, click here.
|Let’s never stop being ‘starry eyed’ about safety and health||26/04/2022|
HALF A century ago a controversial committee report was published by the government in Britain, which led to momentous change and radically altered our approach to occupational health and safety. NEBOSH CEO Chris Payne offers his thoughts on the Robens Report and its lasting legacy.
Fifty years on, it’s easy to get nostalgic and “starry eyed” about the Robens Report of 1972. After all it was a report that led to the ground-breaking Health and Safety at Work Act (HSWA) 1974, which has influenced regulatory approaches around the world. It took work-related deaths in Britain from an undoubtedly underestimated figure of over 1,000 in the early 1970s, to around one tenth of that now. Of course, it also ultimately led to the creation in 1979 of the organisation I’m now proud to be part of, NEBOSH.
However, at the time of publication, and ever since to some extent, the report has had an air of controversy about it. For example, author Patrick Kinnersly once argued that the report pedalled a “dangerous myth” that accidents can be eliminated if we all just “pull together”1. In his book ‘Rules & Government’ Robert Baldwin, claimed the Robens Report offered a “distorted” view of rules and enforcement and he too used the phrase “starry eyed”, but in a negative rather than positive context.
In the main, criticism surrounded a key aspect of the report, that “those who create the risks are best placed to manage it.” At the time, this firmly placed the onus on employers and employees to work together towards an over-arching aspirational goal of providing a safe place of work. Some regarded this as seeking to blame and shift responsibility away from regulators. However, I would argue that history has shown this not to be the case at all. Through NEBOSH, I see regulators, employers and employees cooperating every day to improve safety and health and a tremendous willingness to succeed.
Of course, it would be naïve for me to say this feeling is universal and that we do not have a significant way to go in reducing workplace deaths, injuries and ill health. However, I firmly believe in the tripartite system of cooperation proposed by Lord Alfred Robens fifty years ago and most importantly the example it sets. We all have a responsibility to keep each other safe and healthy. It’s that simple!
Let’s use the 50th anniversary of the Robens Report to re-emphasise this message, particularly as we emerge from a global crisis that has threatened us all in one way or another. If ever there was a time for “pulling together” around a “starry eyed” vision for better safety and health, it is now.
|A greener future||15/11/2021|
EDUCATING INDIVIDUALS and workforces is key to ensuring a greener future says Brenig Moore.
Guy Ryder, director-general of the International Labour Organisation, stressed that climate education is central to making a transition to greener economies that guarantee a "sustainable future for current and new generations." Ryder also pointed out that the transition to a carbon-neutral economy will require new skills, training, and qualifications: "Many new jobs will emerge. Others will have to adapt. This makes climate education for the current and future workforce a priority."
It's essential that individuals and businesses take steps to improve climate education – and pressing. Not least because it's the ethical thing to do, but also because becoming more environmentally friendly is often deeply entrenched in companies' values and business strategy. Corporate Social Responsibility (CSR) targets, for instance, are public for all to see – including stakeholders – and often underwritten by law. For example, the UK's Climate Change Act 2008 and the European Climate Law made the bloc's goal of reaching climate neutrality by 2050 irreversible and legally binding.
The fact is, we all need to do our bit to ensure a greener future and amplify the conversation on sustainable development. But not everyone has necessarily been given the right tools and support to help deal with these global challenges. That's why training that helps shape competent, confident environmental sustainability professionals is so necessary. Completing courses certified by highly reputable organisations (like IEMA and NEBOSH) demonstrates a commitment to developing crucial skills that will help make the world of business more sustainable.
But how, as a training provider, do we pique and maintain interest and stimulate people to, firstly, want to learn, and secondly, learn better? Let's take a look.
Strike the right balance
Workers need to feel motivated to learn new skills, and those who can be most vulnerable to labour market changes are not always receptive or willing to reskill. So uncovering what drives motivation to learn – and designing courses accordingly – is crucial.
Many factors, of course, drive people to learn. On the one hand, learners are motivated by external rewards, such as improved job opportunities or approval from a manager. On the other, learning also needs to be personally rewarding to feel worthwhile. This is why, regardless of external rewards like accreditation or incentives, it must strike the right balance of being enjoyable, challenging and exciting.
Central to achieving this is keeping course material relevant. According to adult learning theorist Jack Mezirow, a "defining condition of being human is that we have to understand the meaning of our experience." From a neurological perspective, that means that when the brain receives new information, it searches existing neural networks for a place for the data to "fit." If there's a connection, the latest information makes sense.
It's why training providers should work with businesses to tailor course material for their own unique needs. Courses that are customised for individual companies, the sector(s) they operate in, and the specific challenges workers face daily will help ensure students can relate to the importance – and relevance – of what they're learning. This will likely improve learner motivation, which can subsequently contribute to better results.
Keep it engaging
The best courses are the ones that keep learners engaged. It's why, as far as possible, an "active learning" approach should be adopted. This will ensure students remain cognitively active – something that helps learners form connections between existing knowledge and new experiences and reflect on how their understanding has changed.
For several reasons, adopting elements of gamification can help with this. Gamification in learning involves using game-based features such as point scoring, peer competition, teamwork, and score tables to drive engagement. All of which can help students assimilate new information and test their knowledge. It works for several reasons:
Gamification also lends itself to our previous point: customisation. Training providers can implement simulation training using real-life workplace examples and gamification elements by working closely with businesses. This provides a greater sense of authenticity, helping to bring courses to life for learners.
The time is now to invest in climate education
I've walked you through just some of the principles that guide us (Astutis) when we design and deliver environmental training courses. Arguably, they're all as important as each other – but what's most important is that businesses and individuals do take steps to upskill their workforce/themselves when it comes to climate education. It's never been more important or pressing – so choose a provider you can rely on. One whose courses will always remain relevant and keep learners engaged by being entertaining as well as educational.
Brenig Moore is founding member and technical director at Astutis. For more information, visit www.astutis.com
|Gas leak hazards: the development of safety and sustainable strategies||14/10/2021|
Refrigeration gas plays a critical role in many facilities and in many sectors, most commonly in heating, ventilation and air conditioning (HVAC) systems. These systems operate to maintain equipment’s cooling or heating capacity. Shaun Evers discusses the inherent risks of refrigerant leaks, ongoing health and safety concerns, and the latest gas detection and alarm system technology that leading businesses are adopting.
Businesses in the facilities management sector understandably look for the best price but don’t always consider the suppliers’ safety standpoints. The refrigerant gases used in all refrigerant systems can pose a significant threat to the health and safety of workers should a leak occur. For example, if exposed to these leaking gases for prolonged periods of time employees may be at risk of frostbite, chemical burns and even organ damage. However, it is not just the gases that are a concern as extended periods of time in cold environments, without the suitable protective clothing, can lead to arthritis, rheumatism, bronchitis and more seriously, hypothermia.
Poor ventilation is another concern and potential hazard. Any gases or contaminants in the atmosphere, will not easily escape and could be dangerous for those working in the room.
These dangers are often the result of poorly maintained equipment, leading to a gas leak, or from human error and employees becoming trapped within the affected space.
The regulation of refrigeration
In early 2020 the European Commission brought in F-gas regulations as part of a policy to combat climate change. The plan is to phase down the CO2 equivalent emissions from Hydrofluorocarbons (HFCs) by 79% (relative to 2015) by 2030. As the UK has now left the EU, the UK government has specified that businesses will have to apply for a new GB HFC quota while they follow the same CO2 phase down as was specified by the European Commission.
As refrigeration manufacturers commit to developing environmentally compliant products without compromising on performance they are also seeking to address health and safety concerns as are their customers.
These regulations place a greater focus on carrying out regular gas leak checks on refrigeration systems. Operators of stationary refrigeration equipment, heat pumps, air conditioners and refrigeration units of refrigerated trucks and trailers that contain F-gases in quantities of 5 tonnes CO2 equivalent, or more, must ensure that equipment is routinely monitored. For apparatus without gas leak detection installed, the period between mandatory gas leak checks lessens.
While most legislation seems to focus more on the environment there are mandatory regulations to protect employees specifically, such as the Workplace (Health, Safety and Welfare) Regulations 1992.
A technology led future
The key to limiting exposure to F-gas and risk of injury lies in the early detection of any gas release. The latest generation of sophisticated yet compact gas leak detectors can pinpoint a comprehensive range of refrigerants including Hydrofluorocarbons (HFCs), Chlorofluorocarbons (CFCs) and Hydrochlorofluorocarbons (HCFCs). This ensures not only a company’s workforce remains safe but also the environment.
It is worth considering that a small continuous leak, left unrepaired for three months, could use an extra 10kW in electricity – equivalent to approximately £1,400 in energy bills – once the leak becomes critical. This is why some leading detection systems on the market have a proven return-on-investment of just two years, and that is without taking into consideration the cost of repairs to an existing faulty system.
Refrigerant gas leaks are the foremost contributor to energy loss in modern HVAC stores. When a leak occurs, an HVAC system or cold store needs to work harder to maintain the equipment’s cooling or heating capacity, using more energy than normal, leading to a potentially large rise in electricity bills.
As well as leak detectors, sophisticated refrigerant sensors equipment is available with signalling alarms, LED lights that indicate the presence and status of each sensor and also audio/visual alarms to alert staff of trapped personnel.
A gas detection system will help ensure that leaks are quickly identified and repaired at the first opportunity. This minimises the risk to the health and safety of employees, complies with the requirements of the EU F-Gas Regulations, supports the DSEAR legislation and can save businesses money.
In an age where so many businesses are being made accountable for general health, safety and environmental concerns it makes sense to invest in robust gas detection and alert systems to help manage ongoing risk, maintain compliance and maintain a strong positive reputation.
Sustainability competences and environmental awareness is a priority in many organisations now.
Integrating health and safety into sustainability provides an opportunity to better protect workers, improve productivity and achieve a truly sustainable organisation. In short, sustainability looks to protect our natural environment, human and ecological health, while driving innovation for your business.
Shaun Evers is managing director of Stonegate Instruments. For more information, visit www.stonegate-instruments.com
|Rent or buy?||15/07/2021|
Richard Ryan explores the case for renting over buying safety equipment.
INVESTMENT IN safety equipment for businesses, particularly those operating in more hazardous environments, is an essential expenditure to secure both employee and corporate wellbeing.
Here we explore the economic and operational considerations involved in hiring rather than purchasing corporate safety gear. This is particularly important as more of the UK workforce start heading back to work facilities following the lifting of Covid-restrictions.
Historically safety equipment, such as gas detectors and fire safety equipment, has been purchased outright, with businesses owning and storing safety kit on their own premises, and managing tasks such as the maintenance and calibration of safety equipment.
However, many businesses take a different approach when it comes to other key equipment. Take company vehicles for example: most companies now lease vehicles on short-term basis, or they may have used asset finance to acquire large ticket items like production lines, recognising the cash flow benefits of doing so.
As with leasing vehicles, using hiring rather than buying has a range of economic benefits, namely that it gives more control over cashflow, particularly in times of business uncertainty, and preserves working capital. This is particularly important at a time when greater flexibility and access to cash is likely to have significance. While an individual gas detector may cost £25,000 rather than a seven-figure sum for plant and equipment, if you need multiple detectors the cost will soon add up to a point where it is significant to company cash flow.
So instead of raising capital to buy safety equipment every few years, an option open to UK businesses could be to use a rental service.
Considerable innovation has taken place in the space over recent years. ‘Rental robots’ - an automated warehouse for safety equipment is one such example. It reliably supplies registered users with the correct safety technology from its shelves, near the place of use, perhaps within a large plant or an industrial area, offering 24/7 availability, and clear tracking of all assets. This saves on both time, cost and resources while providing complete transparency and accountability.
The equipment in the rental robot is also updated regularly – the responsibility of doing so resting with the equipment hire company – ensuring the very latest, fully working technology on site exactly when it is needed.
Operational and Training Aspects
Another fundamental benefit of hiring vs buying – whether using a rental robot service or simply hiring the kit for a specific project or period – is that while a company’s own equipment will date, using rental equipment provides access to the latest models and means that it is also often possible to access higher specification kit.
An additional benefit is that newer equipment is often less complex and easier to use, dramatically reducing training requirements and allowing staff to get up to speed quickly as training can be carried out easily and swiftly online.
Some may question how accessible rental equipment is if you need an item at short notice. After all, you are relying on a third party to supply essential equipment rather simply going to your own storeroom. However, particularly when hiring from a safety manufacturer, access to the equipment is almost immediate. With many companies holding considerable fleets of equipment available for rent, delivery can often be much faster – in some cases 24 hours – than if a company purchased the same product outright. While, if you use the rental robot service, you’re likely to have ready access to most items. So, by accessing safety equipment to meet business needs, renting allows companies in the sector to be more flexible and responsive to their safety needs.
When it comes to maintenance, calibration and testing of equipment, this can be very labour intensive, taking up valuable employee time. Maintenance can also be very costly once the warranty has expired.
Rented equipment, such as gas detectors or breathing apparatus, means that devices arrive fully serviced and calibrated to ensure accurate readings and performance, in other words, ready to be used immediately. As a result, employees can focus on their core role, rather than getting involved in the distraction of maintenance.
So when you next need to replace your safety equipment, whether hydrogen detection devices within science parks, or fire and escape equipment in heavy industry, it is worth weighing up the options.
Richard Ryan is marketing manager, Dräger Safety UK, and Dräger Hire. For more information, visit www.draeger.com/en_uk
|The forgotten risk to safety||29/03/2021|
EMPLOYERS ARE still responsible for the health and safety of their workers while they work from home, which is particularly relevant as many still do so due to the pandemic. Charlotte Dowson looks at their legal responsibilities.
Just over a year ago, businesses up and down the country hastily downed tools as the lockdown came into effect and working from home was actively encouraged. For many businesses, this meant a scramble to ensure employees had the right equipment to do their job from home, as well as assessing privacy risks, testing technology infrastructures and getting to grips with Zoom.
By law, employers remain responsible for their staff’s health and safety at work, even if that work is taking place from home. This means that risk assessments should be carried out to ensure the employee’s safety.
With social distancing, these risk assessments can be carried out virtually or self-assessed by employees, and should consider physical and mental health and the impact of working from home. For example, the Health and Safety Executive recommends employees using laptops or other display screen equipment should be advised to take regular breaks, change position, get up and stretch and change focus and rest eyes to prevent eye strain or fatigue. For those employees with specialist needs, the employer should think about providing dedicated equipment, such as ergonomic chairs or height-adjustable desks.
However, with the circumstances of the lockdown and enforced working from home for many, employers have sometimes neglected these important risk assessments – especially as many hoped the arrangements would only have to be for a few months, rather than a year and counting. As a result, risks have been missed. The charity Versus Arthritis found that 35 per cent of office workers received no equipment, support, or advice from their employer on home working and four in five who are homeworking as a result of lockdown had developed some form of musculoskeletal pain. 89% of those suffering with back, shoulder or neck pain have not told their employer about it and the charity pointed to nervousness over job security and uncertainty over employment rights as a reason behind the lack of conversations about this issue.
Employees that are working from home should ensure that their desk chair, monitor, keyboard and mouse are set up ergonomically correctly. If they haven’t had an assessment of their work station they should request one from their employer.
It’s not just physical injury which employers and employees need to be mindful of, but mental wellbeing too. Both bosses and their staff should be making sure they’re regularly talking about stresses and strains as a result of working from home. Employers need to make sure they’re following the law on working hours too – which is harder to monitor with everyone based remotely. Domestic abuse has also sadly risen over the past year and again, employers need to be aware of this issue, fulfil their legal duty of care and ensure their employees are properly supported. ACAS recommends arranging code words and alternative places of work if home isn’t safe, for example.
If it was found that an employee had been injured while homeworking as a result of an employer’s negligence, a claim could be made. This could be due to faulty equipment, but it could also be if a repetitive strain injury is sustained for instance and it could be proved that this was due to a lack of proper training from the employer.
Whilst it could be difficult to make a claim against an employer concerning injuries sustained while working from home, especially with the unusual circumstances of the pandemic, it is not impossible and both employees and employers need to be aware of the risks and their responsibilities.
Working from home is likely to be a lasting legacy of the pandemic. Recent figures from the Office of National Statistics found that 29 per cent of working adults will continue to undertake their jobs from home more often in the future. Both employers and employees need to be aware of the potential risks to health this poses, and take action to keep safe.
Charlotte Dowson is a senior solicitor at Bolt Burdon Kemp. For more information, visit www.boltburdonkemp.co.uk
|Avoidable cases of negligence that caused harm||16/03/2021|
WORRYING ABOUT damaging our health at work should be the least of anyone’s problems. When going to a place of work, we should be guaranteed safety regardless of the situation. However, in cases of negligence, employers can fail to properly protect their employees. Here, Lucy Victoria Desai looks at companies that failed to protect their employees.
Marks and Spencer’s duty of care failure
In 2011, major multinational retailer Marks and Spencer was faced with a £1m fine for exposing customers and employees to asbestos in Reading and Bournemouth stores during refurbishments. The judge accused the retailer of choosing profit over health and safety and neglecting to ensure a safe environment.
The UK’s asbestos industry ended on 24th August 1999 after being used heavily from the 1950s to 80s. Over 20 years on, we’re starting to see the delayed latency period taking effect as asbestos deaths have peaked over the last year or so.
Although asbestos was banned in the UK two decades ago, the dangerous carcinogen lingers. It is the leading cause of occupational death, with 5,500 deaths caused last year. A new report revealed that there are an estimated six million tons remaining inside around 1.5 million buildings. Some of these buildings include schools and hospitals built before 24th August 1999.
Negligence like this can be more costly than conducting an asbestos audit. It can tarnish an organisation’s reputation by failing to provide a duty of care. If you’re a duty holder and are unsure of the risk in your building, find out more about asbestos survey types.
Amazon’s failure to protect
People working for Amazon have faced significant health and safety risks during the COVID-19 pandemic. According to a report by Amnesty International that investigated the treatment of employees across the UK, France, Poland, and the US, surveillance technologies have been used to track workers and failed to act on important health and safety issues.
In October last year, Amazon commented that 19,816 of its workers in the US had been infected with COVID-19 since March. Amazon has been faced with backlash from employees, unions, and politicians for risking employees’ lives. The company was hit with a lawsuit after a former employee accused Amazon of failing to provide personal protective equipment (PPE) to Black and Latina workers in New York City.
Employers are responsible for carrying out an assessment of the risk of COVID-19 transmitting to others in the workplace. Suitable controls must be put in place to reduce the likelihood of transmission taking place. In the UK, employers could be at risk of prosecution and potential litigation.
Delphi Diesel Systems’ failure of risk assessment
A common theme in negligence appears to be a lack of risk assessment.
Last year, Delphi Diesel Systems was fined £1m and ordered to pay £10k in costs after two employees were severely burnt in an explosion while cleaning a distillation tank.
The vapour of a flammable chemical used to clean the distillation tank ignited and caused an explosion. Both of the employees suffered injuries, with one employee unable to return to work for over two months.
An investigation by the Health and Safety Executive (HSE) reported that the incident occurred because a risk assessment wasn’t carried out before cleaning the distillation tank. There was also no planning for the use of the flammable chemical which ultimately caused the explosion. This incident could have been avoided if a risk assessment was carried out and employees were given a proper plan.
Often, accidents at work occur due to negligence. With proper risk assessment carried out, lives can be saved and pain prevented.
Lucy Victoria Desai is a copywriter at Asbestos Audit, which provides asbestos surveying, sampling, and removal across the North of England and Scotland. For more information, visit www.asbestosaudit.co
|Cognitive bias and defending health and safety investigations||15/02/2021|
MUCH IS now understood about cognitive bias and the implications for decision-making. Unfortunately, that understanding is rarely applied in the criminal justice process, says Tom McNeill.
The Health and Safety Executive (‘HSE’) is more advanced than some investigating authorities in that it recognises and even provides some limited guidance on the issue. Their guidance ‘Investigating accidents and incidents’ (aimed principally at organisations but also reflective of HSE practices) provides: “The investigation should be thorough and structured to avoid bias and leaping to conclusions. Don’t assume you know the answer and start finding solutions before you complete the investigation. A good investigation involves a systematic and structured approach.”
But how far does a structured investigation go in combatting cognitive bias?
Health and safety investigations are particularly susceptible to bias because they are frequently more subjective and complex than other criminal investigations. The fundamental question is usually ‘why’ (rather than for example ‘who’); and the ‘why’ concerns the behaviour of organisations and not merely individuals. As Daniel Kahneman explained in his brilliant book, Thinking, Fast and Slow, the brain is a machine for jumping to conclusions; and while difficult problems are by their nature hard to solve, the brain is no less inclined to use cognitive shortcuts to ‘solve’ them. Indeed, complex problems may produce additional shortcuts (such as substituting a simpler question to the one being asked).
Particular problems arise when emotions are involved, such as in relation to policy preferences. Kahneman writes: “Your political preference determines the arguments that you find compelling. If you like the current health policy, you believe its benefits are substantial and its costs more manageable than the costs of alternatives…Your emotional attitude to such things as irradiated food, red meat, nuclear power, tattoos, or motorcycles drives your beliefs about their benefits and their risks. If you dislike any of these things, you probably believe that its risks are high and its benefits negligible…[A] search for information and arguments is mostly constrained to information that is consistent with existing beliefs, not with an intention to examine them.”
It is, therefore, instructive that the HSE ‘Investigating accidents and incidents’ guidance provides: “Investigations that conclude that operator error was the sole cause are rarely acceptable. Underpinning the ‘human error’ there will be a number of underlying causes that created the environment in which human errors were inevitable. For example, inadequate training and supervision, poor equipment design, lack of management commitment, poor attitude to health and safety…The root causes of adverse events are almost inevitably management, organisational or planning failures.”
If the guidance should be understood to mean ‘Do not assume that an individual is to blame, assume that an organisation is’, that at least would be consistent with how health and safety cases are usually investigated and prosecuted. In any event, it seems hardly the recipe for an open-minded and unbiased search for what went wrong.
Fortunately, health and safety cases do not often result in the dramatic miscarriages of justice where an entirely innocent person is convicted, such as might happen in a murder enquiry (when detectives pursue a suspect based on a hunch to the exclusion of all evidence to the contrary). However, that does not mean that blame cannot be allocated unfairly. In addition to the commonplace where employees recklessly breach established safe systems of work but only their employers are prosecuted, there are not uncommonly cases where more than one organisation has breached its very onerous duties under the Health and Safety at Work etc. Act 1974 to similar degrees but where one organisation avoids prosecution altogether.
What causes such differing outcomes? There may be myriad reasons, not all of them irrational, and these may differ from one case to the next. A constant however is that where investigators have formed a view about your organisation, it is very difficult to change that view. As with the blinkered murder detective, evidence will be searched for and interpreted to confirm that view (‘confirmation bias’). Once a decision to prosecute is made, even if it can be proved that the investigating authority’s entire understanding of what happened was wrong, they may move from one theory to another without reversing that decision or even reducing the seriousness of the breaches alleged.
Investigations gain momentum and the longer they go unchecked the less likely they are to change direction. Accordingly, organisations should defend their position from the outset. They will be required to respond to information requests. They may be required to respond to an enforcement notice. They will have opportunities to instruct expert witnesses. In due course, there will be an invitation to an interview under caution, and opportunity to make representations before charge. In short, there will be opportunities for organisations to persuade to their view of what went wrong and why at a time when it is most likely to shape the view of investigators.
If there is a decision to prosecute your organisation, ‘hindsight bias’ poses particular difficulties. This is where knowledge of the outcome causes people to overestimate the likelihood of past events. As Kahneman puts it with comic understatement: “When an unpredictable event occurs, we immediately adjust our view of the world to accommodate the surprise.”
There are numerous studies on hindsight bias. Kahneman cited a study of students predicting the likelihood of various potential outcomes of President Nixon’s visits to China and Russia in 1972: “The results were clear. If an event had actually occurred, people exaggerated the probability that they had assigned to it earlier. If the possible event had not come to pass, the participants erroneously recalled that they had always considered it unlikely.” In addition, “Further experiments showed that people were driven to overstate the accuracy not only of their original predictions but also of those made by others.” In summary: “The tendency to revise the history of one’s beliefs in light of what actually happened produces a robust cognitive illusion.”
Hindsight bias can be manifest throughout the investigation stage and impact a charging decision; but it is at court that its impact is most felt. The sentencing guideline for health and safety offences requires an assessment of harm risked and the likelihood of harm, upon which all else follows. The first question a judge must determine when sentencing an organisation for corporate manslaughter is ‘How foreseeable was serious injury?’ The potential for a “robust cognitive illusion” to adversely impact the sentencing exercise is plain. For large organisations, that impact could be hundreds of thousands or millions of pounds.
Sentencing judges are no more immune to hindsight bias than investigators; and have been known for example to rationalise their way around decades of safe operation to find an ‘accident waiting to happen’. Hindsight bias goes hand-in-hand with outcome bias, where an evaluation of pre-accident systems is coloured by the fact that they did not prevent the accident. Combine these factors with a predisposition to blame organisations and not individuals (on the assumption that it is almost inevitable that root causes are management, organisational or planning failures), and it can explain why organisations even with reasonable health and safety systems risk being aggressively prosecuted following a serious incident.
The challenge for those defending health and safety investigations is to persuade and counterbalance with evidence, with a view to investigations and prosecutions not being biased. But be warned: like negotiating Brexit, in serious cases this is usually a process, not an event.
Tom McNeill is senior associate at BCL Solicitors LLP. For more information, visit www.bcl.com