David Cameron seems committed to releasing the Police from the ‘burden’ of health and safety rules that might impede their duty to the public, while Lord Young believes that all emergency services should be excluded from the HSWA. Peter Atkinson considers whether the same rigorous health and safety workplace standards exercised in non-emergency situations should apply to the blue-light services in a crisis.
Just as it does for all other employers, the Health and Safety at Work, etc. Act 1974 (HSWA) requires the emergency services to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees, and that their activities do not adversely affect the health and safety of others.
The HSWA also requires employees to take reasonable care of themselves and others. But how do emergency servicemen and women do so when they are often responding to incident scenes from which most reasonable people would make every effort to escape? By definition, emergency incidents occur without warning and change at speed. Strategic operational decisions and assessments of risk to employees and the public have to be made on the spot and on the basis of incomplete, or inaccurate information.
These situations are often compounded by society’s unrealistic expectation (fuelled by tabloid righteousness) that emergency servicemen should put themselves at inordinate risk to protect the public. How would you feel as a policeman, or fire officer when you read in the Daily Mail that you won’t rescue drowning victims, or climb ladders? In May this year, newspaper reports surfaced that health and safety guidelines had prevented PC Robert Bolt from diving into the River Exe to save a drowning man. The reports failed to mention the fact that a large crowd of onlookers, as untrained in water rescue as Bolt (a law enforcement officer, not a lifeguard), thought the man was faking it and did nothing either.
The public and media backlash following the tower-block fire in Camberwell in July last year, in which six people died, is another tragic example. The fire spread in a rapid and completely unexpected way, owing to alterations to the building’s structure. Newspapers reported onlookers’ dismay at the perceived lack of use of ladders and the order to withdraw before all the residents were rescued. In fact, the ladders would not have reached the height of the blaze, and the strategy in that situation is to fight the fire from inside the building, out of the public’s view.
However, this strategy could not be implemented as it was discovered that a large gas pipe had fractured inside the block, making it too dangerous to enter. It is a sound operational risk decision, rather than ‘’elf and safety gone mad’ that, if an explosion is expected, the building must be immediately evacuated. It is also common sense – a ‘have-a-go-heroes’ mentality is not required because your colleagues are at risk if you get it wrong.
It is inevitable that individual officers may, from time to time, be confronted with situations outside their experience and training and, in fighting crime or fire, an officer’s actions may be aimed at reducing the overall risk to the public but may cause more immediate risk in the short term. While, in most other jobs, it is the employer’s own business that has caused the risk, servicemen and women must be equipped and trained to respond to dangers not of their own making.
There can be few managers’ jobs that routinely require complex decisions to send colleagues into dangerous situations. They cannot act solely to protect their staff but must consider the services’ wider purpose of protecting the public. They must make sure their officers are adequately trained and equipped safely to carry out the job expected of them, free of unacceptable expectations and unreasonable safety requirements. For managers to be able to make the best possible operational decisions, the HSE must have a reasonable and consistent approach to both health and safety enforcement and routine safety audits.
Following a warehouse fire in Atherstone-on-Stour in November 2008, in which four fire-fighters were killed, the HSE investigated and issued Warwickshire Fire and Rescue Service (WFRS) with an Improvement Notice. Since then, six employees of WFRS have been questioned on suspicion of gross-negligence manslaughter and other HSWA offences in relation to the incident.
But is this merely an indication of the investigating authorities following the protocol applied to cases that focus on risks created by non-emergency services employers in the workplace? In R v Associated Octel  Lord Justice Stuart-Smith said: “If there is a risk of injury. . . and a fortiori, if there is actual injury as a result of the conduct of that operation, there is prima facie liability, subject to the defence of reasonable practicability.”1
This approach has been confirmed more recently in R v Chargot, in which Lord Hope said: “Prima facie, a breach of section 2 arises where an employee is injured. . .” The onus is then on the defence to prove it did all that was reasonably practicable to avoid the risk, and the prosecution must prove “that the result that these provisions describe was not achieved, or prevented”.2
With such an approach the emergency services are always going to be vulnerable to enforcement and prosecution where an officer is injured while on duty. The onus is on them to prove they have done all that is reasonably practicable to keep their officers safe. But, if the judges in the cited cases had been required to consider the risk of injury in an emergency situation, they might have modified their approach.
Policy and the health and safety regulators must seek to minimise the possibility of tragic preventable incidents but health and safety requirements cannot leave officers’ hands tied so that they are unable to make on-the-spot operational decisions in response to evolving emergency situations. This, by its nature, is risky.
Surely, the Chargot line of reasoning cannot be translated to emergency situations, in which unavoidable tragedies do happen, however hard servicemen and women battle to save lives? The HSE must accept that, as long as employees are well-trained and equipped, their actions and decisions during operations cannot be dealt with in the same way as non-emergency situations.
In September 2009, the HSE published a policy statement to clarify how health and safety law will be applied to the operational circumstances of the Police Service.3 It was intended to assist senior police officers to balance their duties to fight crime and protect the public with their obligations to their employees.
Earlier this year, the HSE agreed a similar policy statement in support of a sensible and proportionate approach to risk in the Fire and Rescue Service (FRS).4 In stark contrast to the practice when fatalities occur in non-emergency situations, as demonstrated in Chargot, the policy statements recognise that “even when all reasonably practicable precautions have been taken to deal with foreseeable risks, injuries and deaths could still occur; and it may be necessary to take some risks to secure a wider benefit to public safety”. It is hoped that this policy will become regular practice, so that when any tragic disaster does occur, the HSE’s default position is not to prosecute the emergency services.
Both policy statements have the exact same objectives:
- to help officers, other staff and the public understand the practical application of health and safety law to the operational works of the Police/FRS;
- to ensure consistency of approach and in decision-making by HSE inspectors;
- to promote a culture within the Police/FRS where hazards are dealt with in a sensible, proportionate and thought-through manner;
- to set out expectations on the FRS and Police authorities as employers, in relation to management of those operations that can be hazardous, fast-moving and emotionally charged; and
- to provide mechanisms for ensuring early and wide learning from incidents, new developments and research.
The policy statements confirm that, to ensure a consistent and fair approach to the assessment of health and safety duties in emergency situations, all HSE investigators will have the requisite training to provide them with an understanding of the often-complex environment in which policing and/or fire-fighting is delivered. All HSE investigations will take into consideration relevant features of the emergency, including the extent to which the service had control over the operational environment, the robustness of command, the lack of preparedness that contributed to the risks, the extent and accuracy of the information that was available at the time, the wider duties of the service, the training of individual officers, and the provision of equipment.
The principles set out in the policy statements are to be underpinned by practical guidance, which has not yet been published, but both the Police and FRS have welcomed the statements. If, previously, the HSE has worked on a policy of ‘where there is a body, there is fault’, the policy statements provide the HSE with considerable discretion on whether or not to take enforcement action. Until there is practical guidance, however, it is not clear how that discretion will be exercised.
From experience we have found that, on the whole, the emergency services strike the right balance between the inherent risks associated with their service and the need to protect the public and their employees. Great efforts are made to train officers and to provide them with the right equipment in a time of constant budget-cutting. For the Fire Service, the reduction in the actual number of fires in recent years has affected firefighters’ experience. This, together with the move away from practical tests for promotion, means that controlled realistic practical training is imperative.
The emergency services are adapting all the time to new sorts of crimes and threats to the public, with terrorism one such concern that is high on the agenda. The previous government warned that the level of terrorist threat at the London Olympic Games in 2012 is expected to represent “the greatest security challenge since the Second World War”.
In 2008, the Metropolitan Police announced that security measures will be in place for three months around the timing of the Games, and the Force hopes to coordinate its 10,000 CCTV cameras with the other 500,000 cameras around London, by feeding them into a purpose-built command centre. However, this approach seems to sit uncomfortably with the Government’s proposed Freedom (Great Repeal) Bill,5 which promises to tighten regulation on the use of such cameras.
Civil-liberty issues are also raised by the proposed use of ticket-tracking technology, where a spectator will be tracked from the venue to his home; biometric fingerprinting for the workforce building the venues; and the potential use of section 44 of the Terrorism Act 2000 at every underground and railway station nationwide during the Games, to enable the Police to stop and search members of the public without any suspicion of an offence having been committed.
The Games will also bring added risks of crime, safety hazards, crowd management, and potential protests. To manage all these issues, the Police and Home Office strategy is to increase the number of special officers in London from 2000 to 6700.
With such resources, including finance and equipment, likely to be diverted to the capital, other districts may be left struggling to meet required coverage and standards. A report by Her Majesty’s Inspectorate of Constabulary (HMIC) found that one in ten forces did not have robust plans to mobilise officers in a time of civil emergency, while 40 per cent had failed to test the plans they did have in place. Concluding that shortcomings in emergency plans are not acceptable, the report called for the Association of Chief Police Officers (ACPO) to “map out, accurately, the ability of forces to support one another at major incidents or events, and at the Olympics”.6
Lord Young’s review
In December last year, David Cameron spoke of the now ‘classic’ examples of children wearing goggles when playing conkers; village fêtes cancelled owing to too much red tape; and transport staff prevented from lifting prams. He claimed that “what began as a noble intention to protect the people from harm has mutated into a stultifying blanket of bureaucracy, suspicion and fear that has saturated our country, covering the actions of millions of individuals as they go about their daily lives”. He argued that a Conservative government would prioritise the risk to the public over that to police officers, allowing them to act with their “traditional heroism”.7
We await with interest Lord Young’s imminent review of health and safety legislation, and the apparent ‘compensation culture’ but, so far, comments from the peer indicate that he will recommend the emergency services be excluded from health and safety law.
It can be argued that the HSWA is a broadly sensible Act based on proportionality, so perhaps it is its application that requires review. Hopefully, any policy or legislation change that does come about will be based neither on myth nor the media’s unhelpful caricature of the HSE.
As is reflected in the HSE policy statements, emergency situations and their associated operational decisions must always be taken in context. It is hoped that the emergency services and the HSE can continue to work together to produce practical guidance that underpins this policy, yet is flexible to accommodate the situations that servicemen and women routinely find themselves in, but which we hope never to experience.
1 R v Associated Octel Ltd  4 All ER 1051
2 R v Chargot Ltd  (HL) UKHL 73
5 For more information about the Bill, visit www.number10.gov.uk/queens-speech/2010/05/queens-speech-freedom-great-repeal-bill-50647
6 The report was issued to the BBC under the Freedom of Information Act – see www.bbc.co.uk/news/10294400
7 See SHP January, News or online at www.shponline.co.uk/news-content/full/cameron-blames-health-and-safety-for-people’s-frustration-with-politics
Peter Atkinson is a consultant in the Regulatory Team at national law firm, Walker Morris.
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