A Sensible and Proportionate approach to Health and Safety

The year 2014 was memorable for many reasons but for a health and safety professional working in the UK a definite highlight was the 40th anniversary of the Health and Safety at Work etc Act. This ground breaking piece of legislation ushered in a very different way of looking at occupational health and safety and many of us would regard it as an unqualified success.

In this article, though, I want to look at how and why complying with health and safety law has been seen as a problem for our emergency services and what HSE, working with stakeholders, has done to address concerns.

First, though, let’s set the scene by looking at the Act and reminding ourselves about some of its special features.

The 1974 Act was ground breaking because it moved occupational health and safety away from the prescriptive and towards a more goal setting approach. Look at pre 1974 legislation and you will be struck by how it sought to control every aspect of health and safety in the workplace. The Factories Act 1961 alone consisted of 185 sections in 14 parts with an additional seven schedules. Everything from guarding of machinery to special precautions in match making factories was covered by this single act. Numerous other acts and regulations added to a bewildering array of rules that harked back in many ways to Victorian times.

Although the 1974 Act didn’t entirely sweep away the old style legislation (it would be many years before the Factories Act was finally repealed), it did begin a process of harmonisation and simplification. The Act set out a number of general duties to be achieved by employers and employees and in doing so compressed a number of the old style regulations into something a lot simpler such as the goal of ensuring the health, safety and welfare of employees.

The new Act was also grounded in reality. It recognised that risk could never be totally eliminated and duties were qualified with the term “so far as is reasonably practicable”. This allowed employers to concentrate on real, significant risks and find ways of dealing with these in a practical way.

The move to “modernise” health and safety legislation also meant extending its application to include whole classes of employees previously not covered including, of course, employees of Fire and Rescue Services (FRS).

Over the following thirty years or so, the Act and legislation made under it, proved to be a big success as British work places came to be amongst the safest in the world. HSE nationally established a formidable capability as a responsible and responsive regulator and internationally, a reputation as a leader in research and development.

So, whilst there were no grounds for complacency, the future did at least look promising. Why then did our emergency services not share in the optimism?

I think there are two things to consider in answering that question. The first is to do with how, over the last ten years or so, the health and safety brand has become tainted by those who see it as somehow having contributed to a general decline in society. The stiff upper lip of yesterday has been replaced by the compensation culture, the nanny state, the desire to wrap our children in cotton wool so that nothing nasty could possibly happen to them.

Many thousands of words have been written about “slaying the health and safety monster” to return us to a golden time when men were men etc. It’s not the purpose of this article to add to that particular argument but suffice to say that a climate was created in which many began to regard health and safety as part of the problem rather than part of the solution. Certain politicians, supported by allies in the media, fanned the flames of indignation and scarcely a week went by without claims of how health and safety had banned this and that: a memorable example being the use of the traditional fire fighters pole in fire stations. The lack of a factual basis was not allowed to get in the way of the message! (Incidentally, those interested in how HSE has fought back should go to our website and check out our “Myth busters” pages).

The second reason was far more “real world”.

By 2008, a number of high profile events involving the emergency services had given rise to a perceived conflict between complying with health and safety law and operational duties.

Two unsuccessful prosecutions by HSE of the Metropolitan Police and the high profile use, by the Crown Prosecution Service, of health and safety law in a prosecution following the fatal shooting of Jean Charles De Menezes at Stockwell tube station prompted some senior police officers to say that health and safety law should no longer be applied to police activities.

There were similar feelings of disquiet among some senior officers in FRS following events such as the joint police and HSE investigation into the deaths of four fire fighters at a factory in Warwickshire and the adverse media response to the perceived failure by an Incident Commander to order the rescue of a motorist from shallow water following a road traffic accident.

Clearly, something had to be done to address these concerns whilst also ensuring that fire fighters and other emergency service workers properly remained protected by health and safety law.

HSE responded by inviting leaders of FRS and Police Services to a meeting to collectively discuss possible ways forward. It’s to the credit of all involved that a number of important points were agreed:

• All participants wanted to work together to provide clarity on the application of health and safety law
• HSE should clarify what it expected of the emergency services particularly with regard to their management of fast moving, high risk situations
• This clarity would help emergency services comply with their legal duties and aid consistency in decision making by HSE, particularly when it came to taking enforcement action. It would also help individual officers and the public understand the limitations of what the emergency services should and should not do.

HSE made a number of proposals that leaders of the emergency services accepted:

• HSE should organise a workshop to jointly explore the balancing of safety and operational duties
• The results of the workshop should be set out in a published “high level” statement
• Employee representatives should contribute fully to this consultative process
• Further guidance should be developed to give substance to the decisions made and agreements reached.

There then followed a series of productive meetings, workshops and consultations and to cut a long story short, the result was the publication of new guidance entitled “Striking the balance between operational and health and safety duties in the Fire and Rescue Service”

A similarly entitled document was published for the Police Service and both can be viewed on the HSE web site.

If you look at “Striking the balance” you will see that in many ways it distils, confirms and puts down in black and white what I said earlier about the realism and flexibility built into the 1974 Act.

The document establishes a set of principles that acknowledge how the application of health and safety law is challenging for FRS in relation to their operational activities because (and here it is worth quoting directly from the document):

• They have to send firefighters into dangerous situations in order to save lives when anyone else would be seeking to get away from the danger
• There is often an unrealistic public expectation that firefighters will put themselves at risk even when such risks outweigh any potential benefits to be gained
• Many incidents firefighters face can develop at speed, some can develop in unexpected ways – and firefighters may, from time to time, be confronted with situations outside their experience
• They have to prepare individual employees to be able to make decisions in dangerous, fast moving, emotionally charged and pressurised situations even when there may sometimes be incomplete or inaccurate information about the incident
• They have to respond to dangerous situations which are not of their own making – this is different to most other sectors where it is the employer’s own business that creates the hazards and
• They may not be able to control or mitigate some aspects of the working environment

The document reassures the reader on that important point that duties under the 1974 Act are qualified by the test of what is reasonably practicable. The Act does not require all risks to be eliminated and HSE recognises that even when all reasonably practicable precautions have been taken, harm could still occur.

“Striking the balance” also commits HSE to promoting health and safety management in FRS through a range of activities such as:

• Communicating and listening to interested parties
• Working with those interested parties through joint initiatives
• Inspecting, investigating and enforcing in a consistent, appropriate, fair and balanced manner.

The FRS Striking the balance statement was launched on 12 March 2010 and was well received. The Government’s Chief Fire and Rescue Advisor at the time said “I welcome this statement which seeks to clarify the HSE expectations on fire and rescue services with regard to health and safety management and aims to provide a consistent approach to applying health and safety enforcement and safety audits within the fire and rescue services work”.

A national officer of the Fire Brigades Union added that “The FBU is glad to see that HSE recognises there is a balance between placing unacceptable expectations on firefighters and making sure they are trained and equipped to safely carry out the job they are expected to do – save lives”.

The Government also supported the approach taken in “Striking the balance” but asked that further guidance be issued to reassure firefighters (and police officers) that they will not be investigated or prosecuted for undertaking an act of genuine heroism.

I am certain that HSE would never have considered prosecuting individual heroic firefighters but to avoid doubt, we published an additional document called “Heroism in the fire and rescue services”. This provided the reassurance asked for as well as a number of realistic case studies of heroic actions by firefighters. You can read this document on our web site alongside “Striking the balance”.

Health and safety law and the way we enforce it have come a long way in forty years. Firefighting remains a difficult and at times dangerous job but those who do it should be in no doubt that HSE does not exist to add to their burden. Ours is a collaborative approach and long may we all continue to make every attempt to work together to help brave men and women stay healthy and safe.

For further information, go to www.hse.gov.uk