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SAFETY LEGISLATION Richard Hill 1.0 1.1 INTRODUCTION It is important that both an employer and its staff understand their responsibilities under the legislation and in particular for the health & safety of other personnel eg contractors' employees. The legislation is framed in such a way that each circumstance will require a separate assessment of the action required to comply with it. It is therefore impossible to have rules which can be universally applied. However, basic knowledge and understanding of the legislation will equip staff to make the necessary professional assessment of the situation and take the appropriate action. Much health and safety legislation is prescriptive in that it applies to specific hazards and prescribes methods for dealing with them for example the Control of Substances Hazardous to Health (COSHH) regulations applies to chemical handling and codes of practice which apply to, for example, the design of electrical and pressure containing equipment. However there are two acts which are more philosophical in that they seek to establish a health and safety conscious attitude. They are the Health & Safety at Work Act 1974 and the Construction (Design and Management) Regulations 1994 and both impact directly on how construction projects are managed. 2.0 2.1 CRIMINAL LAW v CIVIL LAW A common misunderstanding revolves around the legal position or "liability" as it is often referred to. Health and safety and all its associated legislation are CRIMINAL LAW ie the law of the land. Failure to comply with such legislation could be regarded as a "crime", and the miscreant could be prosecuted in a Magistrates or Crown Court, ending up with a criminal record. Any contractual obligations, (eg under the ICE Conditions of Contract), regarding health and safety are CIVIL LAW ie part of a private agreement between 2 or more parties. Failure to comply with a contract can only be redressed by an action for breach of contract. Similarly a party who has suffered injury or loss may choose to pursue an action under the CIVIL LAW for compensation due to the negligence of another. So for the same incident eg an accident on site, it is not uncommon for there to be a prosecution under the CRIMINAL LAW for failure to comply with statutory law, and separate action under CIVIL LAW for breach of contract &/or negligence. The standard of proof required for a successful action under the CRIMINAL LAW is usually much higher than under the CIVIL LAW. The two should not be confused, and these notes will consider the CRIMINAL LAW ie the HSW Act as it applies to an employer and its staff. HEALTH & SAFETY AT WORK ACT 1974 The Health and Safety at Work Act 1974 (HSW Act) is the most important and wide ranging item of safety legislation and applies equally to any work location including factories, offices, construction sites and so on. It superseded an assortment of specific acts like the Shops and Offices Act and the Factories Act.
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3.0 3.1.
The main aims of the Act are set out in Section 1. In plain words, an employer has a statutory duty to care for the health, safety and welfare of. a) b) 3.2. their employees and, other people who may be affected by their activities (eg the employees of contractors or members of the public).
Most staff will be aware of the above but to understand how that duty should be implemented, it is necessary to look at the legislation in more detail Duties Of An Employer To Its Employees
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Section 2(1) of HSW Act sets out the duties of employers to their employees to ensure, so far as is reasonably practicable, the health, safety and welfare of its employees at work, The principle of this Section is generally understood but the interpretation is often difficult. Section 2(2) details the areas to which the duty particularly extends, namely: a) b) c) d) e) the provision and maintenance of plant and systems of work the safe use, handling, storage and transport of articles and substances the provision of sufficient information, instruction, training and supervision for employees the maintenance of a safe place of work with means of access and egress the provision and maintenance of a safe working environment, and arrangements for welfare.
By applying the "reasonably practicable" concept to the relevant areas, we can decide what action should be taken to comply with the HSW Act. 3.4 A key concept in the HSW Act is that those under a duty should ensure the safety etc of persons "so far as is reasonably practicable". An assessment should be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble, involved to avoid the risk is placed in the other. If it can be shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, then compliance with that duty would not be reasonably practicable. Duties Of An Employer To Persons Not Its Employees 3.5 Section 3(1) of HSW Act requires an employer to conduct its undertaking in such a way as to ensure so far as is reasonably practicable, that persons not in its employment who may be affected are not exposed to risks to their health and safety. It is this section which creates most uncertainty particularly with regard to the employees of a contractor. It should be understood that Section 3(1) will be applicable to all your activities, either in your design work, your advice to a Client, or whilst on site. (it should however be remembered that other employers, eg a contractor, would have a similar duty under Section 3(1) for the safety of your staff.) The best way to ensure compliance with this section is to be seen to be acting in a professional manner. Construction News, 22 February 1990 "Health and Safety Executive Warns clients may now face prosecution" Daily Telegraph, 15 June 1991 "BR fined 1/4 million for errors that led to Clapham disaster" New Civil Engineer, 25 July 1991
"Legal shock waves - Verdict in building collapse prosecution contains serious implications for consultants and site safety" Responsibilities Of Persons In Control Of Premises 3.6 Section 4 sets out the duties of persons concerned with premises to person other than their employees. Although not named specifically the occupier is normally considered to be the "persons in control of the premises". Such persons who have to any extent control of or access to/from the premises should take such measures as is reasonable to ensure, so far as is reasonably practicable, that the premises (including any plant or substance) is safe without risk to health. Responsibilities Of Individuals 3.7 Sections 7, 8 and 37 of the HSW Act set out the obligation of individual employees, directors and managers. The first two of these lay down general duties applicable to all employees. The third does not impose any specific duties but enable individuals to be prosecuted in respect of offences committed by employers. Section 7 Duties of employees at work to take reasonable care for health and safety of himself and others. Co-operation as necessary to enable employers to fulfil duties. New Civil Engineer, 30 March 1989 Engineer fined 2000 over A55 Bridge Death 3.9 3.10 Section 8 Duties of employees not to interfere with or misuse things provided for health and safety. Section 37 Where a body corporate has committed an offence and it was committed with the consent, connivance, or due to neglect, of any director, manager, secretary or similar office, he as well as the body corporate shall be liable to proceedings. If a company, local authority or other corporate body is in breach of a health and safety requirement then if it can be proved that the breach of the requirement was due to a director, manager, company secretary, consenting (in the sense of allowing something wrong to take place or continue) conniving (turning a blind eye) or neglecting (failure to do all act safety) then the director, manager or company secretary can be prosecuted instead of or as well as the company. Site Safety News, Summer 1987 "Asbestos offender narrowly misses gaol" Safety Management, January 1990 "Dragged head-first into an unguarded machine - man's death brings 47,000 penalty. Director guilty of manslaughter New Builder, 2 July 1992 "Director Banned for Health and Safety Breach" Manslaughter 3.11 Following a fatal accident, the Police attend the site to satisfy themselves that there is no prima facie evidence of manslaughter ie that the accident resulted from the wilful negligence of an individual. If they find out this is so - or HSE's own investigations lead towards the same
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conclusion, details are passed on to Crown Prosecution Service. HSE is not empowered to prosecute for manslaughter. Conclusions 3.12 The HSW Act places a responsibility on employers,. its directors and staff. It is hoped that these notes will help you to understand those responsibilities and what should be done to ensure compliance. The act is dynamic and can be applied to any work activity. With thought and a professional attitude both the spirit and the letter of the Act can be met. THE CONSTRUCTION (DESIGN & MANAGEMENT) REGULATIONS 1994 Construction Professionals are beginning to ask themselves some basic health and safety questions: "How will the EC Construction Directive affect me?", "How do I manage health and safety?", "What do I do if I see unsafe working?". As well as extending the obligations of Contractors the Directive will have a considerable effect on Commissioning Clients, Architects, Engineers, Surveyors, and other Construction Professionals who do not actually undertake construction work. The EC Construction Directive places a legal obligation on everyone involved in the construction process, including the Client, to provide for site safety at every stage of a project. The Contractor will no longer take sole responsibility. This means that Commissioning Clients and other Construction Professionals Consulting Engineers, Project Managers, Surveyors, Architects and Landscape Architects - need to prepare themselves now to ensure they can meet their legal obligations. To understand the effect on the construction industry we should look not at the Directive itself but at the HSE's Regulations which implement the Directive. These are known as the Construction (Design & Management) Regulations (CDM). There can be no doubt that "noncontractor" Construction Professionals will have to change considerably the way in which they deal with health and safety. No longer will they be able to view health and safety as being solely the responsibility of the contractor. Clients and Designers have little time to appreciate how the newly-acquired obligations will affect them, and how they can influence health and safety in a positive way. The Regulations came in to force in October 1994. The figures below illustrate the relationships between the various duty-holders and the importance of the Health & Safety Plan which is the main link between the Planning Supervisor and the Principal Contractor. The plan must be initiated by the Planning Supervisor and developed sufficiently for it to form part of the tendering process. Before construction work begins, the plan should be passed from the Planning Supervisor to the Principal Contractor who should adjust it to the site activities and the contractors involved. The Client also has to ensure that a plan has been prepared before construction begins.
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CLIENT
PLANNING SUPERVISOR
H&S PLAN
PRINCIPAL CONTRACTOR
DESIGNER
CONTRACTORS SELF-EMPLOYED
PLANNING
EXECUTION
COMMISSIONING
PLANNING SUPERVISOR
PRINCIPAL CONTRACTOR
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The main requirements of the Regulations, many of which are qualified by reasonable practicability are: (a) Client to appoint: i) a competent person as the Planning Supervisor ii) a competent contractor as the Principal Contractor. (b) Planning Supervisor to notify HSE it construction phase will: i) be longer than 30 days or ii) involve more than 500 person days of construction work. (c) Client to satisfy himself that Planning Supervisor, Designer and contractor are competent to comply with their statutory obligations and will make adequate provision for health & safety. Client to ensure that Planning Supervisor is provided with all information relevant to his functions about the state or condition of the premises or land. Client to take steps to ensure a Health and Safety File on the finished structure is kept available for inspection by persons who may need such information. The Designer (whether an individual or organisation) to: i) ii) iii) (g) ensure so far as is reasonably practicable that the design avoids foreseeable risks to persons who do construction or cleaning work. ensure so far as reasonably practicable that the design includes adequate information about structure or materials which might affect health and safety co-operate with the Planning Supervisor.
the Planning Supervisor to: i) ii) iii) iv) v) ensure so far as reasonably practicable that the design includes considerations and information required in duties on Designers take reasonable steps to ensure co-operation between Designers ensure that a health and safety plan is prepared before the construction phase give adequate advice to client and contractor on competency and provision of adequate resources in appointments to ensure Health and Safety File is delivered to client on completion of project.
(h)
the Health and Safety Plan is started by Planning Supervisor, then developed and implemented by Principal Contractor. It must: i) ii) iii) contain information on the project and its risks include information which Planning Supervisor knows will be needed by Principal Contractor include arrangements for the management of construction work and monitoring of compliance in practice.
(i)
the duties of the Principal Contractor include: i) ii) iii) iv) co-ordination of the activities of all contractors ensuring that contractors comply with rules in the Health and Safety Plan ensuring that all contractors are provided with relevant information on risks and also that training is provided. consultation as necessary with employees on site.
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(j)
the duties of other Contractors include: i) ii) iii) co-operation with the Principal Contractor provision of information to the Principal Contractor as needed complying with directions given by the Principal Contractor.
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Construction Professionals concerned at the possibility of being sued for damages as a result of breaches of these regulations should note that the Regulations do not confer a right of action in civil proceedings. "Structures" covered by the Regulations are: (a) any building, railway line or siding, tramway line, dock, harbour, inland navigation, shaft, tunnel, bridge, viaduct, waterworks, reservoir, pipe or pipe-line (whatever, in either case, it contains or is intended to contain), cable, aqueduct, sewer, sewage works, gasholder, road, airfield, sea defence works, river works, drainage works, earthworks, lagoon, dam, wall, caisson, mast, tower, pylon, underground tank, earth retaining structure or structure designed to preserve or alter any natural feature, and any other structure similar to any of the foregoing, any formwork, falsework, scaffold or other structure designed or used to provide support or means of access during construction work, any fixed plant in respect of which work which would be construction work it the plant was a structure involves a risk of failing more than 2 metres.
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The concept of the Health and Safety at Work (HSW) Act as being dynamic legislation is commendable. Recently there has been a proliferation of related legislation which has proved difficult for the knowledgeable and bewildering to the less well informed. Regulations covering Electricity, Noise, Head Protection have been introduced along with the difficult Control of Substances Hazardous to Health (COSHH) Regulations. More recently there has been the so called 'six pack' of Regulations derived from the Framework Directives and its daughter Directive. Lack of resources, expertise or inclination are not valid defences for not taking steps to comply with these requirements. Clients may well recognise the legal and moral needs for the Directive to be complied with, A not unreasonable question is "How much will it cost?" If the safety input is timed correctly the cost can be minimal. Indeed taking account of health & safety during design can avoid costly problems later and actually save the Client money in both construction and maintenance. We are all aware of examples in the industry where good safety procedures have prevailed. Safety is usually only expensive if it is introduced at too late a stage. If managed correctly safety can be inexpensive and cost effective. Accidents invariably result in delays and therefore large costs. Good safety can be a sound investment it carried cut as all integral part of the project. Failure to comply with the Regulations may expose both corporate bodies and individuals in certain cases to unlimited fines and/or imprisonment tot a term not exceeding two years. There are growing calls for tougher enforcement action, particularly against individuals. The prosecution of Derby City Council in 1989 as a "Client" caused a great deal of consternation. The arrival of the new Regulations will no doubt lead to prosecutions. Another significant concern is the possibility of manslaughter charges being brought following fatalities on construction sites. A company director received a suspended prison sentence following his conviction for manslaughter as a result of a fatal accident at a factory in Lancashire in 1988. Future court actions cannot be predicted but the legislation is to be made clearer via the Directive, and it would be unwise to disregard it.
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CONSTRUCTION (DESIGN & MANAGEMENT) REGULATIONS 1994 - SUMMARY REGULATION 2 Interpretation "Construction or Cleaning Work" means a) b) construction work or the cleaning of any window or any transparent or translucent wall, ceiling or roof in or on a structure where such cleaning involves a risk of a person failing more than 2 metres
REGULATION 2 Interpretation NOTIFIABLE project is notifiable if construction phase a) b) will be longer than 30 days or will involve more than 500 person days of construction work
REGULATION 3 Application of regulations Apply to ALL construction work Non-notifiable projects with less than 5 on construction work (except demolition) are exempt except for Regulation 13 (designers) Do not apply where Local Authority is enforcing authority Do not apply except for Regulation 13 to work for domestic client
REGULATION 4 Clients and agents of clients Client(s) or agent(s) may make declaration to Executive as to who will undertake, responsibilities Declaration to comply with this Regulation In absence of declaration, duties on Client fall on agent on matters in his authority
REGULATION 5 Requirements on developer In defined situation duties in Regulations 6, 8-12 on Client fall on developer
REGULATION 6 Appointments of planning supervisor and principal contractor Client to appoint Planning Supervisor and Principal Contractor for each project Appointments to be made as soon as practicable Appointments to remain filled until end of construction phase Client may appoint self or same person(s) as Planning Supervisor and Principal Contractor if competent
REGULATION 7 Notification of project Planning Supervisor to ensure notifiable projects are notified to Executive Two stage notification of information in schedule 1 Special arrangements for projects for domestic Clients
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REGULATION 8 Competence of planning supervisor, designers and contractors Appointment of Planning Supervisor, designers and contractors not to be made unless satisfied they are competent Person making appointment to satisfy himself they are competent Competent = capable of complying with Relevant Statutory Provisions (R.S.P.)
REGULATION 9 Provision for health and safety Person appointing Planning Supervisor, designers and Principal Contractor to be satisfied they will allocate adequate resources Adequate resources = to enable compliance with R.S.P
REGULATION 10 Start of construction phase Client not to let construction phase start without Health and Safety Plan having been prepared
REGULATION 11 Client to ensure information is available To ensure Planning Supervisor is provided with information on state or condition of premises Information that is relevant to Planning Supervisors functions Information is that which Client has or should have by reasonable inquiry
REGULATION 12 Clients to ensure health and safety file is available for inspection Client to ensure information in file is available Where Client disposes of interest in structure file to be passed to acquires
REGULATION 13 Requirements on designer To ensure so far as reasonably practicable. that design avoids foreseeable risks To combat risk at source To give priority to collective measures To see design includes adequate information To co-operate with Planning Supervisor and other designers
REGULATION 14 Requirements on planning supervisor To ensure so far as reasonably practicable design includes considerations and information required in Regulation 13 To ensure co-operation between designers To give adequate advice to Client and contractor as to competency and provision of adequate resources, in appointments To ensure health and safety file is prepared for each structure, reviewed and delivered to Client
REGULATION 15 Requirements relating to the Health and Safety Plan (1) Duties of Planning Supervisor: To ensure Health and Safety Plan is prepared at required time
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Plan to contain information on project and risks Planning Supervisor to make reasonable inquiries
REGULATION 15 Requirements relating to the Health & Safety Plan (2) Duties of Principal Contractor: To see plan has required features to end of construction phase To see it sets out arrangement for managing and monitoring compliance Includes information on welfare arrangements
REGULATION 16 Requirements on and powers of Principal Contractor To take reasonable steps to secure co-operation between contractors so far as reasonably practicable to see contractors and employees comply with rules in Health and Safety Plan To take reasonable steps to allow in only authorised persons To ensure particulars in Notification are displayed Provide Planning Supervisor with information he requires To give directions or include rules in Health and Safety Plan
REGULATION 17 Information and training Principal Contractor to ensure so far as reasonably practicable Contractors have information on risks Contractor/employers provide employees with information required by Regulation 8 of the 1992 Management Regulations Contractor/employers provide employees with health and safety training required under Regulation 11 of 1992 Management Regulations
REGULATION 18 Advice from, and views of, persons at work Principal Contractor to ensure employees/self-employed can discuss and advise him on health and safety matters Principal Contractor to ensure arrangements to co-ordinate views of employees on construction work or their representatives
REGULATION 19 Requirements and prohibitions on contractors (1) To co-operate with the Principal Contractor To provide Principal Contractor with information on their risk assessments under 1992 Regulations To comply with directions of Principal Contractor and rules in Health and Safety Plan To provide Principal Contractor with information on incidents reportable under RIDDOR 1985
REGULATION 19 Requirements and prohibitions on contractors (2) To provide information which Principal Contractor needs to pass to Planning Supervisor for health and safety file Employee/self-employed not to do construction work without information on Planning Supervisor, Principal Contractor and Health and Safety Plan
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REGULATION 20 Extension outside Great Britain CDM applies to construction work in Territorial Waters
REGULATION 21 Exclusion of civil liability Other than Regulations 10 and 16(1) (c) CDM do not give right of action in civil proceeding
REGULATION 23 Transitional provisions Projects which have started but construction phase HAS NOT ENDED, when CDM Regulations come into force, subject to Schedule 2
REGULATION 24 Repeals, revocations and modifications Notification requirements in Section 127 of the Factories Act 1961 repealed Regulations 5 and 6 CON(GP) (Safety Supervisors) revoked Form 10 notification requirement revoked Health and Safety (Enforcing Authority) Regulations 1989 amended to ensure all work subject to CDM is notified to HSE