Workplace Law Magazine: Mug's Game?
This feature article first appeared in issue 19 of Workplace Law Magazine (July/August 2006). More information on Workplace Law Magazine can be found at: http://www.workplacelaw.net/magazine/
In a culture where £200 is spent on teaching employees how to make a cup of tea safely it seems that employers are becoming increasingly risk averse in order to prevent being sued. Is this a sensible precaution, or health and safety overkill? Katy Brown reports.
East Hertfordshire Council has recently employed a health and safety consultant to draw up rules for how to make a cup of tea safely. The expert's £200 fee gave the council a 17-page report on the hazards involved in making tea, and helpful suggestions including sealable flasks for hot liquids, a tea trolley, and hot drink dispensing machines to eliminate any risks from staff making their own drinks. The council said that the cash laid out on the consultant - and the drinks machines - was well spent, as it avoided spending thousands on any potential lawsuits. How many other businesses are making similar decisions because they fear being sued? In this age of ‘no win no fee’ lawyers and compensation culture is this a sensible precaution to take or another example of what has been dubbed excessive risk aversion?
The idea of risk aversion raises fundamental questions about what health and safety should be. Most health and safety professionals would agree that health and safety is not about eliminating all risks but about effectively managing them. Even the HSE agree, and on its website it comments:
"Our approach [to health and safety] is to seek a balance between the unachievable aim of absolute safety and the kind of poor management of risks that damages lives and the economy. In a nutshell: risk management, not risk elimination.”
If this is the case why does it seem that so many companies are going to extreme lengths in order to stamp out any risk, and so avoid being sued?
We’ve all heard the stories of hanging baskets being banned in case they fall on someone, trapeze artists being made to wear hard hats and signs put up on Snowdon to warn of slippery areas. One of the most recently publicised cases was the headmaster who said that children could only play conkers if they were wearing goggles. Work and Pensions Minister Lord Hunt described that decision as: "A painfully good example of an excessive risk-averse decision made with the best of intentions". Are these stories clear examples of how some people are now going too far in the name of health and safety? Or are they merely an example of the media recognising a good story, and blowing things out of proportion? Of these types of stories the HSE comments that fortunately some of them are just that, stories. However, it also admits: “worryingly, whilst they go well beyond what is required by law, others are based in fact”.
On the other hand last year 220 people were killed at work, over 30,000 suffered major injuries (broken bones etc.) and 28 million working days were lost due to ill health caused or made worse by work. Many of the injuries and cases of ill health resulted from very well-known and preventable causes. So should we really be worrying about the idea of some companies going too far? According to Lord Hunt we should:
“Whether it’s a matter of fact or perception, there is a culture in which too many people expect regulatory action and/or compensation whenever anything goes wrong. Someone gets hurt – so someone must be to blame. In every single instance. And what is the reaction to all this? Excessive risk aversion. Risk aversion causes damage in a number of ways. It hits organisational efficiency and delivery of services. It restricts personal freedom particularly for children and young people. And it damages our ability to improve management of the serious risks.”
The issue is growing in importance as both the HSE and Government focus on it. In a speech last year the Prime Minister commented: “we cannot guarantee a risk-free life. We cannot respond to every accident by trying to guarantee ever more tiny margins of safety. We cannot eliminate risk. We have to live with it, manage it. Sometimes we have to accept: no-one is to blame.” Could that really be true? And more importantly is the idea of no one being to blame one that employers do – or can – buy into. Before they reach the point of having a risk assessment for everything from making tea to how to use a revolving door, can and should employers say enough is enough?
Workplace Law asked the people on the front line of health and safety to help answer that question.
Bill Scholes, Health and safety consultant
My observations over the last couple of years are that there seems to be an inordinate fear of being sued, and that measures have been taken by various companies that are far in excess of legislative requirements. It’s almost reaching the point where people are becoming paralysed by the fear of being sued despite there not being that much objective evidence to suggest that this is a big problem. If you ask those people “have you had any claims?” or “is there a claims culture in your organisation/” they almost invariably say there isn’t. They’re going to great lengths just in case, and it seems to be a misuse of resources both in terms of money and in management time; it also perpetuates the culture.
I think excessive risk aversion is a problem that is here now, and one that has the huge potential - in terms of cost - in the future. If everything we are doing is being driven by the fear of being sued we end up reinforcing this perverse culture that we’re moving towards; a culture where no one takes any responsibility for doing anything themselves, we don’t accept that things can happen, and that providing the things that happen are relatively minor then there’s no big deal. It is an issue that has to be addressed at this level because it is only going to get worse.
Employers are often victims of their employer’s liability insurance; insurers will always take the commercially viable option of settling out of court. The cost is then passed on to employers in increased premiums the next year. The media tends to highlight these cases and are pretty selective about the facts they present, so you have this idea being perpetuated that you can be sued for anything, which is not the truth. Unfortunately this fear is gripping employers, and insurers - to some extent - are perpetuating that myth because it is in their own interest to put premiums up. When insurers settle out of court it betrays a lack of will on their part because ultimately going to court you would hope to have some judgments in your favour. I don’t see any evidence that employers are able to actually fight the insurers, there doesn’t seem to be evidence of a cohesive stance on behalf of employers from the CBI or from the manufacturers’ organisation EEF, to actually take on the insurers and say “why don’t you fight some of these things for us?” It is literally out of your hands; as an employer you don’t have any say as to whether or not a case is fought. Young loss adjustor people who maybe don’t have the understanding of the overall implications of their decision are often making those decisions.
For a number of years I looked after 1,200 service engineers. One of the issues there was the unions would periodically say, “we want safety shoes”. My response was “where is the evidence that I have a problem?” For me to achieve legal compliance I have to make a judgement as to whether I’m doing what is reasonably practicable and I make that judgement on the data that is available to me. The data available to me was that I didn’t have a problem. I had 1,200 people and in five years I’d only had one broken toe. The costs would have been between £30,000-£35,000 a year and I came to a view that I didn’t think it was reasonably practicable. The guys probably wouldn’t wear them anyway so in terms of risk control it would have a fairly limited effect. Now I can make a decision like that and be compliant with the law, but I would and I did have people saying to me “you’ve got to do it in case we get sued”. So that’s what it means in practice, that’s why it bothers a lot of other health and safety professionals and I because you think “well that money could have been spent on real risk”. Businesses are potentially into a endless cycle of “right we will throw this at protecting ourselves, oh that’s not enough we’ll throw something else at it” and you get this constant stream of no one ever deciding “we’ve done enough”.
Neil Budworth, IOSH President
Risk aversion in society is an issue that has been growing, to the alarm of the health and safety profession.
The problem with risk aversion is that it makes people scared to do things. You only have to look at the way school trips have diminished to know people are shying away from anything that has even the slightest risk about it.
In this instance, education authorities and/or headteachers are fearful that if they take their pupils on an activities week and one of the pupils gets hurt, that they’ll be sued. But in molly-coddlying youngsters like this, we’re depriving them of important life lessons – not least, the ability to manage risks.
Young people need to be allowed to experience things for themselves. The greatest learning opportunities in life are from trying new things. By denying youngsters these opportunities, we’re hindering their ability to learn for themselves.
But it’s not just the young who are suffering because of risk aversion. Risk averse decisions hinder business, wrap companies up in needless bureaucratic red tape, and cost us all time and money.
Health and safety practitioners are also suffering. It is often ‘elf ‘n’ safety’ that is blamed for risk averse decision-making – even though most of the time a health and safety person has not been involved in taking the decision to ban something!
Despite what you might read or hear in the media, health and safety is not about stopping things. Good health and safety professionals don’t actually want to stop any activity – we believe you should be able to do whatever it is that you want to do, but in a safe way.
That may involve a delay, while a way to do something without risking life and limb is discovered. Most of the time, with a few minutes thought and a few minutes activity, the job can be got on with in a safe and ultimately more productive manner.
Being risk averse is not a good way to run anything, be it a school, business or club. Risk will always exist, it cannot be avoided. The only way is to manage risk more effectively.
John Shaw, Facilities manager
Risk assessments are to be carried out by a "competent person" and must be "suitable and sufficient". Competency is judged to be a combination of knowledge, skills and experience.
All well and good but as with many things related to health and safety there are two arbiters as to who is "competent" and what constitutes "suitable and sufficient" - firstly the HSE and secondly the courts.
I am sure everyone involved in health and safety could look at someone else's Risk assessments and suggest improvements, additions or deletions, as there probably is no such thing as the perfect document. If it isn't perfect in one person's eyes then to them it may not be "suitable and sufficient". Similarly it would be easy to question whether someone was "competent" or not given their range of experience knowledge and skills. These are all subjective rather than objective measures.
If there has been a serious accident or someone is making a claim against a company then it would not be at all difficult for the HSE to show that a risk assessment is neither "suitable and sufficient" nor produced by a "competent" person given the subjectivity of the opinion. The courts would (normally) agree with the HSE as they are essentially expert witnesses.
It should be no surprise therefore that people go to such lengths to produce risk assessments that include every conceivable hazard, whether real or imaginary, in order to show suitability and sufficiency.
Trying to make Risk Assessments that cover every eventuality is only the start. People also try to write documents that are "bomb proof" for issues like safe methods of work, disability discrimination, legionella control, asbestos plans, manual handling, personal protective equipment, driving on company business, COSHH and so on ad infinitum.
What some companies are attempting is to cover all eventualities because:
- They don't know any better, or are afraid of falling foul of the law, or have not the confidence to argue their case with the HSE or Courts, or believe that producing comprehensive documents is the answer to avoiding prosecution.
- "Reasonably practical" is the benchmark for what is required. The problem remains that the only arbiter of "reasonably practicable" remains the Courts and their view may not be the same as the defendants. I believe this is why many companies go to such lengths to demonstrate that they have looked at every conceivable angle - however pointless this exercise may be.
It can be easy to become paralysed by health and safety measures and the sad thing is that they are probably all being done simply as a best effort to comply with the law rather than with too much concern for employees' safety and welfare. The actual aims of the legislation are lost in the rush to comply!
Roger Bibbings, RoSPA Occupational health and safety advisor
Safety decision makers (whether individual or corporate) have always to tread a difficult path, taking care to ensure that preventive measures are neither excessive (leading to wasted resources) nor insufficient (leading to unnecessary risk).
When individuals or sections of society seem to be getting certain risks out of proportion, it hardly makes sense for our press and broadcasters to simply urge them to throw caution to the winds. The challenge must be one of patient dialogue and education, helping people to put risk in context and to make balanced judgments about how to deal with small but nonetheless worrying uncertainties.
RoSPA certainly do not favour banning things just because they are dangerous. We’re in agreement with the need for ‘sensible safety’ and have 15 points posted on our website which guide our approach to safety and risk.
However, from a wider perspective, we need to be sure that we are not getting the problem of 'risk aversion' out of proportion. In a recent speech Tony Blair said, quite rightly, that in dealing with hazards, we should be trying to analyse the evidence and get some sense of balance between risks and precautions.
What I feel quite strongly is that we also need to apply this same approach to the perceived danger of Britain becoming too risk averse. Yes, there are cases of poor safety decision-making; there is clearly a large amount of anecdotage about risk averse practice and, on the principle of there never being smoke without fire, there is thus evidence of a problem. On the other hand, does it mean that British society is becoming ever more risk averse and that health and safety really is beginning to sap the moral fibre of the nation? I have my doubts.
We hear a lot about all the cases where people get the balance between risk and precaution hopelessly wrong, but what about the great mass of people and organisations who are making safety decisions daily and getting the balance broadly right? If we accept the need for evidence-based policy making, then surely the scale, causes and consequences of this problem need to be bottomed out with some rigorous research rather than accepting anecdotage as proof of a deep and all pervasive social trend.
The other problem is that by focusing too much on ‘risk aversion’, ‘over-regulation’, the ‘nanny state’ etc., we might end up putting legitimate health and safety 'on the back foot'. The traditional message, which one expects to come from the top, is “there’s still an important job to do on safety”. If it is perceived however that this has changed to “the health and safety community are out of control”, many sceptics will feel emboldened to challenge quite legitimate, consultation-based precautions that are being promoted to tackle serious issues.
The whole debate needs to focus much more vigorously on the importance of enhancing safety and risk education. There is an urgency to promote effective safety and risk education across the nation and at all levels: from workers, safety reps and managers in the workplace; to senior managers and directors in the board room; in colleges; in undergraduate education; in business schools; among teachers; among politicians and media commentators and; above all, in schools (integrating safety and risk as a spiral thread within the whole curriculum).
Reactions from Workplace Law members
When the story regarding East Hertfordshire Council and making tea safely was run on the Workplace Law Network it prompted some lively, and varied, discussion in the online forum. To read the other comments, or to have your say, go to: www.workplacelaw.net/forum
The article merely demonstrates the ability of the media to twist a story to fit a particular angle. There is no evidence the consultant was 'teaching' people how to make a cup of tea at all. What was being addressed was a concern that since taking away the tea lady service people were having accidents with hot drinks. The consultant - hardly expensive at £200 - identified that walking up and down stairs with trays of hot drinks was an issue that needed addressing as well as housekeeping issue like keeping walkways clear of tripping hazards. Sounds to me like the council got value for money however I am puzzled as to why their own safety advisors could not have identified the same issues, or indeed a risk assessment by the staff working in the affected building.
Chief HSE Officer
Overkill or common sense?
- Last Christmas a property management firm advised the Department for Work and Pensions that ceiling and wall decorations posed a health and safety risk. A small Christmas tree was fine as long as new lights either with a 12-month warranty or tested in the past year were used.
- Earlier this year a pensioner in was thrown off a Cardiff bus because he was carrying a tin of paint. New health and safety rules governing public transport list paint as a “hazardous article”. It can be taken on the bus only if it is “carried in two containers - such as a sealed pot and a bag - and is not left unattended on a parcel shelf where it could slide and tip, burst open and spread across the floor”.
- After a woman caught her foot in the new doors at BBC Birmingham the corporation issued a memo “Revolving Security Door User Instructions”, advising staff on how to use a revolving door.
- Police called to investigate a broken stained-glass window at a church in Rochdale in March 2005 refused to inspect the damage because they did not have specialist “ladder training”
- Plans to chop down 20 horse chestnut trees were announced by Norwich City Council because it claimed that passers-by risked head injuries from sticks thrown up by children to knock down conkers.
- Earlier this year a postman had to end his doorstop delivery of letters because he was told that the hilly route he walked posed too much danger. These dangers included climbing over a stile, under the heading “harm potential”, the report states: “Slip/trip/fall. Muscle/tendon strains or broken bones, cuts, grazes, bruising. Hit by moving vehicle.”
Under the Health and Safety at Work Act 1974 it is not only employers who have a duty to ensure a safe working environment - employees do too.
Duties of employers at work
2. (1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
Duties of employees at work.
7. It shall be the duty of every employee while at work to take reasonable care for the health and safety of themselves and of other persons who may be affected by his acts or omissions at work.
Sources of information