Viewpoint – Early days

The new register of safety consultants born out of Lord Young’s review is all well and good, say John Lacey and Bob Arnold, but much more needs to happen around and alongside it if the credibility of the health and safety profession really is to improve.

The poor image of health and safety portrayed in the media in recent years has had unfortunate consequences for the profession, in that the work of all practitioners is gradually becoming less valued. If this media-bashing and myth-perpetration continues, in all likelihood it will get to the stage where our advice will become merely tolerated, or even treated with disdain.

As health and safety practitioners our role is to provide the advice and guidance that people need to ensure that they are doing all that is reasonably practicable to protect those engaged in, or affected by their work activities. But in doing so, we must also ensure that the law is being observed and complied with. Consequently, practitioners can be placed in a particularly precarious position, should an incident occur and be investigated by the enforcing authority, owing to the reverse burden of proof under the Health and Safety at Work, etc. Act – i.e. where the duty-holder must be able to show they have done everything reasonably practicable to avoid a breach.

It is because of such situations that the perception has arisen that advice given by practitioners on risks arising from everyday, apparently normal situations is hugely out of proportion. Examples are plentiful and now infamous: the village in Gloucestershire that banned swings in a children’s playground; the local council in Suffolk that banned hanging baskets from lamp posts lest they fell on someone’s head; and health and safety officers in Bognor Regis, who insisted on kiddies wearing crash helmets when riding donkeys on the beach.

Lord Young cited these and many others in his recent report, Common Sense, Common Safety, which laid much of the blame for this “faulty advice” at the feet of unqualified health and safety practitioners. To combat this problem, Lord Young proposed to “professionalise health and safety” by setting up an independent register of suitably qualified and accredited consultants.

The proposal was broadly welcomed within and outside of the profession but setting up the register and determining qualification criteria are the easy parts. Without any accompanying guidance on how these “properly qualified” consultants should handle the types of situations mentioned above, such incidences can only continue to occur.

As we see it, a number of other things needs to happen if the aim of the register – to ensure the provision of correct and proportionate advice across the board – is to be realised and the credibility of health and safety practitioners is to grow.

Professional codes of conduct

Starting with our own, the IOSH Professional Code of Conduct (which is currently under review) includes this paragraph in connection with advice provision: “Members having good reason to believe that their professional advice is not followed shall take reasonable steps to ensure that persons overruling or neglecting their advice are formally made aware of potential adverse consequences which may result.”

However, there is no guidance in the code about the advice itself. This issue is covered to some degree in the Management of Health and Safety at Work Regulations 1999 (reg.7 on ‘health and safety assistance’) and the accompanying ACoP, but there are many other issues to take into account. Clearly, a Professional Code of Conduct and guidance should be concise, and it would not be appropriate to devote pages to this single issue, but we think the following, at least, are at the heart of the matter and, in the revision of the IOSH Professional Code of Conduct, we feel they should be taken into account.

The responsibilities of others

In most cases, the practitioner either reports to an employer, or a third-party client. In either case, the health and safety professional (and possibly their team) reports to a senior manager in the organisation. For effective health and safety management, this process should include a degree of engagement with the board but, in practice, this is not always the case. The senior manager generally will not be an expert in health and safety, although such a manager often has a good appreciation of what is involved.

Professional managers are represented by various professional institutions, and it is interesting to note how the relevant professional codes of conduct look at the issue of receiving advice and how members should respond. For example, the Chartered Management Institute’s (CMI) code includes the following reference to health and safety: “In my management of others, I will have regard for their physical and mental health, safety and well-being.”

This falls considerably short of giving any direction to the manager in how he or she should respond to the expert advice that is given. It would be helpful to say, for example, that the advice received should be studied seriously, efforts made to fully understand the context in which the advice is given and how it may be acted on in the best interests of stakeholders, and that care should be taken to avoid being totally risk-averse, which could have negative repercussions for both the CMI and health and safety. 

The Professional Code of Conduct for the Institute of Directors is even less convincing. Its Article 5 says: “Particular attention should be paid to the environment, questions of occupational health and safety, employee relations, equal opportunity for employees, the impact of competition rules and consumer protection rules, and other legislative and regulatory initiatives that may arise from time to time.”

This gives no indication at all of how directors should attend to the advice they receive. It could, for example, usefully make reference to the need for a director to exert an influence that brings about compliance with the HSE/IOD document Leading Health and Safety at Work, which is very relevant to this issue.

The media

Looney health and safety stories sell newspapers and have now become a national sport but, in most cases, it is the party providing the health and safety advice who comes off worst. As argued above, there are two sides to the management of health and safety: experts who advise, and line managers who act as executives within their organisation and who are responsible for interpreting the advice in the interests of their employees and others affected by their undertaking. 

In this context, the majority of prosecutions are made against companies, or directors. It is therefore not acceptable that the media should always take the side of the executive while painting a dubious picture of the professional advisor. It is this idea that health and safety practitioners are the ‘fun police’, who act independently of the executives of the organisations to which they report, that needs strong rebuttal. Health and safety practitioners do not dictate policy in companies and that needs to be made clear.

The courts

The R v Porter [2007] case is a good example of the difficulties practitioners face. The case concerns the death of a pupil at a school in North Wales, whose headmaster, James Porter, was prosecuted for a breach of section 3(1) of the HSWA 1974. He was originally found guilty on the grounds of inadequate supervision in the playground, which contributed to (note: not ‘caused’) the child’s death. The conviction was subsequently overturned on appeal.¹

Briefly, the facts of the case are that the four-year-old child was playing in the yard with other children, under the supervision of an experienced teacher. At some point, the child moved into an area that, for practical and historic reasons, was designated as out of bounds. This area included a set of steps. The child was seen to negotiate – safely – the first few steps but when he reached the fourth from bottom, he jumped towards the base of the steps, falling forward and bumping his head.

He was taken to hospital, where it was determined he had suffered a relatively minor head injury. He did suffer some intercranial bleeding, which led to brain swelling (not uncommon in minor head injuries). However, he subsequently contracted pneumonia and the MRSA virus and died, some five weeks after the incident.²

The key issue in the trial was that the steps were part of the employer’s undertaking and thus the blame was placed on Mr Porter. On overturning the conviction, however, the appeal judge said: “We acknowledge that the fact that an accident is unavoidable goes primarily to the reasonable practicability of the measures which a defendant might take, rather than the risk to safety. But that is not exclusively so. As we have said, that the risk is part of the everyday incidence of life goes to the issue as to whether an injured person was exposed to risk. Where the risk can truly be said to be part of the incidence of everyday life, it is less likely that the injured person could be said to have been exposed to risk by the conduct of the operations in question.”

So, in terms of the practitioner’s dilemma, were the steps part of the employer’s undertaking (as believed by the first court) or are they a part of “the everyday incidence of life”? The aforementioned playground swings and hanging baskets, etc. were all used as examples of how the health and safety profession “got it wrong”, yet all of them could also conceivably result in a fatality, or serious injury – indeed, last October, a 49-year-old woman suffered horrific head injuries that required immediate cranial surgery, after she was hit on the head by a falling flower basket outside a pub in London.³

How does the health and safety practitioner advise in such cases? Are swings in playgrounds, hanging flower baskets in the high street, and donkey rides at the seaside all part of the “everyday incidence of life”? The newspapers certainly seem to think so, the law doesn’t help, and the courts are not so sure.

The government

Prior to the publication of Common Sense, Common Safety, Lord Young was quoted as saying: “Schools should no longer be liable for accidents on such trips, nor for injuries suffered by children playing organised games, unless there has been ‘reckless disregard’ for safety”. This is confusing language to use. If an injury to a child during a trip is due to carelessness on the part of the supervising teacher – which is a lesser grade of negligence than recklessness – then presumably, the Government is suggesting this is a risk worth taking, and criminal action will not be brought forward.

This clearly cannot be the case, so the Government has some more thinking to do in this area. Any such decree that is intended as direction to the courts would make the situation far more confusing and difficult for everyone, including health and safety practitioners, who might be advising schools on their policy towards trips.

Summary and conclusion

It is obvious that clarification in how to approach difficult areas such as those mentioned would benefit the profession – as well as government and the enforcing authorities – enormously. Simply setting up a register and designating everybody on it as ‘qualified’ because they meet a set of agreed criteria is not going to be enough on its own. To bring about real change and improve the standing of health and safety, IOSH and its members need to do the following:
 

• Lobby institutions to require their members, via their Professional Codes of Conduct, to take a positive approach to the management of health and safety;
• Work even more closely with the media to foster a better understanding of how health and safety policy decisions are made and acted on in organisations;
• Improve understanding among practitioners of how the courts handle health and safety cases and decisions, and ensure that this is reflected in their advice – perhaps by way of suitable ‘briefings’ for all members from the IOSH Professional Affairs department;
• Consider the development of a list that would be commonly accepted by the courts, government and IOSH of activities that are deemed to be part of the “everyday incidence of life”, i.e. capable of causing injury, but which do not require further health and safety control; and
• Continue efforts to lobby the Government against introducing simplistic and poorly thought-through standards of behaviour for teachers and others in ‘low-risk’ workplaces in an attempt to remove the perceived over-zealous approach to health and safety risk.    

References

1    To read coverage of the appeal and the original case on the SHP website, visit www.shponline.co.uk/incourt-content/full/headmaster-s-health-and-safety-conviction-overturned
2    Summarised from ‘Child’s play’, a paper by Patrick Harrington QC and Gerard Forlin QC, who led Mr Porter’s appeal in 2008
3    www.metro.co.uk/news/844054-drinker-in-intensive-care-after-hanging-basket-accident-at-london-pub

John Lacey is chair of the IOSH Construction Group and Bob Arnold is the health and safety director for Brookfield Europe – see page 4 for more information