Time to put safety first

Specialist solicitor Catherine Henney, from Eversheds, highlights five common pitfalls that 
health-and-safety lawyers frequently see

1. Insufficient 
risk assessments

Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR)

The risk assessment itself is one 
of the first documents a regulator will scrutinise. Quite often, the risk assessment is not reviewed in years, or it is not updated to take into account changes in the particular operation or any new equipment that is being used. 

Organisations should ensure 
that they include regular reviews 
in their diaries (at a minimum every 12 months) of all operational risk assessments to ensure they are still current and effective. Additional reviews should also be carried out 
if ever an incident or near-miss occurs, or if employees raise any issues. A record should be kept detailing each review – even if no changes are made – so that there 
is a clear documentary trail demonstrating that risks were regularly being considered.

2. Ineffective work systems

Section 2 Health and Safety at Work, etc. Act 1974 (HSWA)

In many cases, safe working procedures either do not go far enough or are not in place at all, leaving the company exposed to prosecution if an incident occurs. By way of example, Manchester-based company Duco International Limited was recently fined £200,000 under Section 2 and Regulation 3 MHSWR for failing to plan, risk-assess and monitor one 
of its machines after modifications had been made to it.

Operational procedures and safe systems of work should be reviewed regularly, in the same way as for 
risk assessments. Any changes in the risk assessment for the operation should be reflected in 
the safe working procedure, if appropriate, and employees 
should be retrained on that amended procedure.

3. Lack of training

Section 2 HSWA

Many organisations will have (1) 
and (2) in place, but records show that not all employees have been adequately trained according to them, particularly employees who have been with the company for 
a number of years. However, it is often long-standing employees 
who suffer an incident, as they become complacent and adopt their own ways of carrying out an operation, which may not necessarily be in accordance with the relevant safety training. 

Training records are the next documents subject to close scrutiny by a regulator. They will expect 
to see that employees have had sufficient induction as well as operational training, with regular refresher training or toolbox talks 
to demonstrate that employees’ competencies are frequently being checked and proven. Details of the training modules should be kept, together with records of attendance signed by attendees.

4. Supervision 
and monitoring

Sections 2 and 3 HSWA
Effective supervision and monitoring is key.

Often there is no clear delegation of responsibility for checking compliance. Many foremen, for example, will see their role as overseeing productivity, but will not necessarily focus on how the work is being done, and whether it is being done safely. Close supervision is important in engendering the right attitude and culture among employees.

HSE guidance, such as HSG65 
and INDG417, should be consulted and its principles adopted. 
INDG417 recommends that overall responsibility for health-and-safety monitoring should lie at a senior management level, with appropriate delegation down through the management chain. This should 
be supported by appropriate disciplinary action against employees repeatedly found to 
be noncompliant or running risks.

5. Ignoring previous warnings

Sections 2, 3, 22 HSWA

Common issues that are often encountered in relation to ignoring previous warning signs of safety issues include:

  • failing to respond to problems 
highlighted by previous incidents or near misses;

  • failing to act upon issues identified during health-and-safety audits and inspections; and

  •  failing to comply with 
enforcement notices served by the authorities.

Meat-producer Tulip Ltd was recently fined £16,000 after one 
of its workers lost two fingers in a mincing machine. The machine had previously been identified as unsafe by the company’s health-and-safety manager during internal audits, but the warning had been ignored. 
The company also had a previous conviction relating to a failure to guard machinery, which led to a fine of £65,000, yet it had not carried out a further review of all other machinery to avoid other incidents.

A failure to heed warnings will 
be considered an aggravating feature of any offence, but failure 
to comply with an enforcement notice is a separate offence that could lead to imprisonment. 

The maximum fines for offences committed either under the general duties or the regulations are £20,000 per offence in the Magistrates’ Court, or unlimited if referred to the Crown Court. In the cases of individual offences (such 
as Section 37), imprisonment is 
also a possibility (for a maximum 
of 12 months if convicted in the Magistrates’ Court, or up to 2 years if convicted by the Crown Court). 

The seriousness of health-and-safety offences and the potential impact upon an employer’s business should not be underestimated.