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October 25, 2011

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Legislation and compliance – H&S unplugged

Health and safety legislation in the UK is not only too complex but, on occasions, also runs contrary to the goal of protecting employees in the workplace, says Michael Cooke, who wonders whether stripping back certain regulations and supporting employers through best-practice guidance might be simpler and more effective.

One consequence of the ever-increasing tide of economic globalisation is that safety and environmental professionals can nowadays be faced with a bewildering array of complex legislation.

Even in the UK, the legislation relating to health and safety alone runs to thousands of pages. Do you need to know the details of all these regulations to do your job as a safety professional well?

Stretch this to multinational and global work and the potential for having to understand thousands of pages of legislation, often drafted in ways one is not familiar with, could easily become a bit of a nightmare. However, in reality, achieving one’s primary goal as a safety professional, which is the safety of all persons who might be impacted by the operations and activities taking place, does not rely on this complex web of legislation.

Rather, by approaching safety from the viewpoint of removing risk, making workplaces safer, creating a positive safety culture, etc., could remove the need to focus on the legislative side as, by default, the legislative intention would be addressed. Also, by subtracting some of the complexity created by the legislation, time could be freed up and redirected towards making a more positive impact on improving safety performance and standards.

Let us look at a couple of examples where the focus on legislative compliance ran counter to ensuring the safety of employees, and where a simpler approach could have brought added benefits to the organisation.

When the regulator says jump. . .
My first example comes from the USA. While in the country on a business trip, I visited a large chemical site and carried out a site audit. Chemical risks had been very well identified, but something was missing. The focus in all the actions taken by the site management had been “legal compliance”, and, on that score, they did very well. All the OSHA (US Occupational Safety and Health Administration) and EPA (US Environmental Protection Agency) documentation looked really good.

So, when we went to the area where bulk road tankers were unloaded and filled, the site had complied with the OSHA code and constructed safe working platforms for the operators to use. This allowed operators to open manholes safely from an enclosed platform.

Later on the site tour, we saw rail-cars used for shipment and receipt of bulk chemicals. As OSHA had not mandated the same safety access for rail tankers as road tankers, the level of protection for workers operating on the former was much lower. The risk of falls and injury had, in fact, been demonstrated in the not-so-distant past by an unfortunate incident in which an employee had slipped off the rail tanker in wet weather, suffering major injuries.
When I asked why the company had adopted different standards of protection for almost identical risks, its first response was surprisingly that this had been accepted by OSHA. Fortunately, the site team was open to discussion and soon realised that this argument did not make sense in the context of preventing accidents.

We found a simple and cost-effective solution to make access to the rail tankers safe. It comprised a set of mobile steps and a platform, light enough to be moved by one person but with a cage where the work can be carried out safely without risk of falls. Thanks to its mobility, the operators could line up the access platform exactly with each rail car.

Sometime afterwards, when I revisited the site, I spoke to some of the operators involved in the tanker loading/unloading operations. Not only were they pleased that the management had made efforts to make their work safer they were also very happy to report that it had made their job easier and more efficient.

Foam proposal
The second example comes from Europe. The site I was visiting handled large quantities of flammable liquids. The purpose of the visit was to review the site’s safety and environmental management systems and practices. Based in a rural location, the site had addressed many environmental risks. The authorities in this region were very conscious of environmental protection and, over several years, had mandated improvements to the site costing hundreds of thousands of euros, using national and state laws to justify this process.

One area of risk that still needed to be addressed, however, was fire control. The company had been persuaded by the authorities to install a carbon-dioxide extinguishing system for the site operating areas and warehouse. The decision was backed up by referring to legislation requiring protection of the environment, and the same approach had been taken for all types of industry in this region.

But, when we reviewed this approach in terms of safety, we came to a very different conclusion. Being a very large warehouse storing finished product, there was a risk that if the CO2 system was activated, the workers might not be able to exit the building safely in sufficient time. Once a CO2 system has been activated, there are only a few seconds to get out of the building before the risk of asphyxiation arises. In addition, from an environmental point of view, releasing tonnes of CO2 into the atmosphere in the case of a false alarm is not a good thing.

While CO2 fire-protection systems are suitable for fighting fires in certain situations, such as where there is sensitive electrical or computing equipment, in this case the CO2 system had limitations from a property-protection perspective. Owing to the need to have high air flows in the work areas where flammable liquids were being handled, the CO2 system could easily have been compromised by open vents, exhaust extraction systems, or even a fire-escape door left open by employees evacuating in case of an alarm.

Rather than accepting the regulator’s interpretation of the law, we made a counter proposal to install a foam fire-extinguishing system. This type of system poses much less risk to employees’ safety, and is more effective in putting out flammable liquid fires, as long as the right type of foam is selected. Also, because the volume of foam needed is relatively small, if the system is designed properly, the risks of fire water run-off are limited, thereby assuring protection of the environment. After some deliberation, our arguments were accepted and this became the first plant in that region to make use of foam fire-extinguishing systems on a major-hazards site.

First principles
Of course, there has to be a reasonable degree of knowledge about what the legislation demands for us to feel comfortable that we are “in compliance”. So, how might it work in terms of, say, a COSHH assessment?

Well, if you approached this from first principles you would arrive at the same conclusion: we use chemicals; we need to know what the hazards are; we need to know how the risks need to be controlled; and it would be a good idea if we wrote this down for us to refer to and ensure that we keep it up to date, as well as carrying out any improvements we have identified. COSHH is not called COSHH in other countries – but the same risks apply and the same controls should be in place for the same situation, regardless of where our employees are, or how the legislation is written.

Having carried out many audits in numerous countries, I find that using a simple view of what is “good” for health and safety works very well, and is applicable regardless of where the site that is being audited is located. Yes, there have been occasions when the local safety manager would say: “But we have local regulations governing this”. However, when we looked at the proposed controls and actions, almost without exception, the outcome did not change from the one recommended before we started looking at the legislation in detail.

As a result, I could train auditors to carry out audits internationally and feel confident that they would help the businesses they were auditing identify risks and find solutions without the need for detailed legislative knowledge. Also, instead of being drawn into a legislative-based discussion, they can have a much more productive discussion on what the hazards are, whether they pose a real risk and, if so, how this should be most effectively controlled.

An opportunity for Löfstedt?
At the time of writing, Professor Löfstedt’s report into health and safety legislation has yet to be published. The purpose of the review is to look at “opportunities to reduce the burden of health and safety legislation on UK businesses while maintaining the progress made in improving health and safety outcomes”.1 In particular, the review was intended to “consider the scope for combining, simplifying, or reducing the – approximately 200 – statutory instruments”.

Could we get away with just the HSWA 1974? After all, it covers all aspects of safety and health as it applies to management, employees and third parties. Instead of hundreds of different sets of supporting legislation applying to different situations, employers could refer to best-practice guidance on how to control the risks and, if they think they have a better solution, they could deploy it. Surely, that would remove some of the complexity and allow for a more efficient focus on making the UK’s workplaces safer and healthier for everyone?


When legislation collides
Conflict between environmental and health and safety legislation led to two delivery workers being overcome by toxic fumes from rotting animal waste at a Scottish rendering plant.

Forfar Sheriff Court heard on 25 June 2009 that Charles Anderson and Richard Dow were poisoned by potentially lethal hydrogen sulphide on 18 July 2007, as they delivered freshly slaughtered cattle from an abattoir to a waste pit for incineration.

The men collapsed and lay unconscious on the floor in the enclosed waste intake area of the plant before being rescued and taken to hospital, where Mr Anderson was in a critical condition for some time. They both eventually recovered.

Investigating HSE inspector John Radcliffe explained that Sacone Environmental, the operator of the plant at Brechin, Angus, had been trying to comply with orders from the Scottish Environment Protection Agency (SEPA) but, in doing so, created avoidable health and safety risks.

“The environmental legislation kicked in because the process is very smelly,” said the inspector. “SEPA had made the firm create a virtual confined space by specifying that doors should be put on the receiving area to stop odours emanating into the general atmosphere. But by keeping the smells in, this also kept the gas in the breathing zone of workers.”

The company had used the fact that it had to comply with environmental legislation as part of its mitigation. It said it had also provided monitoring alarms and ventilation since the incident.

But inspector Radcliffe said: “Clearly, the company needs to comply with health and safety, as well as environmental, legislation. There can be a conflict between SEPA and the HSE, but it is possible to comply with both bodies by installing carbon-pack filters to take the smell away before it goes into the atmosphere. The company had been somewhat preoccupied by environmental considerations and had overlooked the health and safety aspects.”

The inspector concluded: “This accident was entirely foreseeable and preventable, as it was foreseeable that hydrogen sulphide could accumulate in this plant. Such areas should be well ventilated, and gas-monitoring equipment – designed to provide an alert in the event of a gas build-up – should have been provided. There was no quick means of escape from this area of the plant, nor was protective respiratory equipment provided.”
Sacone Environmental pleaded guilty to breaching s3(1) of the HSWA 1974 by failing to ensure the safety of non-employees and was fined £12,000. No costs are awarded in Scottish courts.

1    DWP (2011): ‘The Löfstedt review, an independent review of health and safety legislation – terms of reference’ –

Michael Cooke is managing director of ENSA-Services Ltd

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12 years ago

In 2009 Britain passed eighty, new occupational safety legal changes; nearly all ‘EU’

The results of post 1990 legislation interesting because occupational accidents have steadily risen, weighted against the numbers exposed to risk.

It proves the author’s points. Accidents are controlled by training and attitude, not by Regulation . We have exported most of Britain’s occupational accidents!

12 years ago

My experience of carrying out audits on a global basis also led me to look at risk rather than laws in diverse territories, relying on local expert knowledge to refine the findings and corrective actions to incorporate local legal requirements. I agree that HASAWA should be sufficient if backed up by authorititive guidance and Codes (we already have plenty) but unfortunately UK businesses still appear to want to be led by the nose as to what they must do to comply.

PS: Control risk, not remove!

12 years ago

I agree, Michael, and have suggested just this on behalf of BCC to Prof Löfstedt and his team during his evidence collecting. The 1974 Act was brought in because we were drowning in too many, sometimes conflicting, Regulations and Orders. Ask a specialist H&S professional how many sets of regulations typically apply to construction, say, and they are very unlikely to know. How can busy operational staff possibly get to grips with the complexity of it all?

12 years ago

The concept of ‘reasonably practical’ is nebulous, to say the least, and further blurred due to inconsistenties in prosecutions and case law. Indeed, to such an extent that very few practitioners really understand the boundaries of what is acceptable or tolerable.

I also agree that the health and safety laws, ACoPs and guidance has become too prescriptive and complex. The HSE have gone completely OTT in some aspects, particularly guidance. Risk – the regulators are scared of their own shadow!

12 years ago

As a H&S professional the complexity of H&S is too much, I do the practical and ground work for health and safety to be effective, however this is not helped by the lazy workers and the even more shrewed no fee lawyers who look for any excuse to have an accident and claim.

The burden on the insurers and the BOD is then to try and risk proof the company to avoid being sued, this is impossible and impracticable for firms.