No ifs, no buts. If you run a business or are responsible for employees, customers or visitors to a place of work, then you have a duty of care to keep sites safe during winter weather. Even if no injury has occurred as a result of slips or trips in icy conditions, bosses are still at risk of prosecution under the new stricter enforcement of Health & Safety Executive (HSE) regulations.
Despite this, it’s likely that many people in this position may still not be fully aware of the extent of their responsibilities relating to clearing snow and ice: Research by the British Institute for Facilities Management found that almost a quarter of organisations do not have a winter maintenance plan in place – and of those that do, 26 per cent fail to review it annually.
Let’s look at how the HSE would consider this state of affairs: “Companies and individuals should be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards.” Reported by the Manchester Evening News, this blunt statement from the HSE, reflects an increasingly tough new reality facing businesses today: In other words, when it comes to safety, it’s your neck on the line.
That Health and Safety Executive quote came from a story about a roofer charged with criminal negligence for failing to ensure safe working practices. When a photo from a concerned passer-by showed him and a colleague working without scaffolding or edge protection, a successful case was brought: As the director of the roofing firm, the individual in question found himself with a six month suspended sentence and ordered to undertake 240 hours of unpaid work.
And although that case didn’t relate to winter weather, it shares the exact same legal context. The severity and nature of the sentencing is an important reminder that breaches of the Health and Safety at Work Act fall under criminal rather than civil law. As such individuals can still be liable even – as in the case of the roofing firm - when no harm has actually occurred.
According to the Health and Safety at Work Act, “an employee may commit an offence if he contravenes the general duties imposed [by relevant laws]… by failing to take reasonable care for the health and safety of himself and other persons who may be affected by their acts or omissions at work”. That bears repeating – it is the failure to take reasonable care that can result in a criminal charge – not just when something goes terribly wrong.
Businesses face a tougher climate
Although the legislation has been in place from 1974, this issue has become even more critical for businesses to consider in recent years due to two significant developments – a change in the guidelines for enforcing the law and a change at the HSE itself.
The first of these relates to the recent removal of limits to fines imposed by magistrates courts. Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (effective as of March 2015) has increased the level of most fines available for magistrates’ courts. Where the maximum fine for most health and safety offences was previously set at £20,000, there is no limit.
The second key factor contributing to this newly hostile environment is the more commercial orientation of the HSE. Facing swingeing austerity era cuts to government funding, the HSE is now driven by aggressive commercial targets. Combined with the tougher legal framework, this shift in orientation has made a stark difference: According to consultants Willis Towers Watson, during 2014/15 – the last full year prior to the introduction of the new sentencing guidelines – the HSE “secured fines totally £16.5m, an average of £25,384.61 per case”. Yet figures for the last year reveal how things have changed. For example, in April 2017 alone fines of £8,369,333.00 were secured with an average fine per case of £398,539.66, which Willis Towers Watson notes is an increase of 1,570%.
With fines of this size, it is clear that the consequences of “failing to take reasonable care” could have a catastrophic impact on both the individuals deemed responsible and on the bottom line of the business. Remember too, that it is not possible to insure against criminal prosecution.
The importance of a proper plan and process
Given all this, it is important to understand what constitutes “reasonable care” when it comes to clearing snow and ice. There’s no simple answer to this as every business and every site presents different challenges. Ultimately, however, it comes down to putting in place adequate processes for risk assessment and developing and implementing an appropriate plan (see box below), the execution of which has to be meticulously recorded.
It is also vital to ensure that you keep any plans and processes under review to ensure they’re actually working. Like any aspect health and safety, best practice in winter maintenance involves a cultural step change and a continuous iterative process of improvement. So while purchasing top of the line equipment or vehicles for gritting is laudable, failing to maintain machinery year round – particularly when corrosive salt is involved – would leave you wanting when the bad weather arrives. Major incidents may have significant impacts, and it can often be very simple component failures that can instigate this. For example, a warning beacon failure may result in someone being hit by a reversing vehicle.
Similarly, it may be prove effective to deploy your existing staff to also take on gritting tasks, but those employees have to be adequately trained and employers have a duty of care to assess the risks they will face when doing so. Any effective plan also needs to take into account what happens when the staff trained for clearing snow and ice happen to be off sick – is there an alternative option available?
Let’s consider a hypothetical example: Suppose you have directed an employee to carry out gritting but they wear inadequate footwear, slip and bang their head. In this case, the culpability could be greatest for you as the person managing the salt spreading if all the systems for correct footwear and PPE were documented but had been left sitting in a folder and not communicated to the employee. It’s not only planning and training – monitoring too is crucial. The HSE would also look for evidence of directives from senior management or the board on safety policies and how rigorously these were followed through and checked. As these parties would be expected to be aware of these policies, they too could be seen to be in neglect of duties.
Naturally, many of these practical matters can be addressed by outsourcing winter maintenance to a third party contractor, but this still will not remove the ultimate responsibility of the business to ensure this provider is undertaking work in a responsible fashion.
This could involve taking steps to confirm that the contractor has reporting processes in place to effectively evidence their activity (which is key to demonstrating that reasonable care has been taken). And, just as in the case of a sick employee, if a contractor apparently fails to show up on site, you are still responsible for providing a safe working environment. That would involve checking the safety of the site and then making a call to close off areas as needed until it is made safe. This checking and monitoring is made easier when using a contractor you can trust, supported by instant access to tracking and live reporting on portals and apps.
As a final point, always keep in mind that in the case of a prosecution, the search for culpability won’t be limited to the operatives on the ground. If your staff have been let down by poor planning, resourcing or training then it really could be your neck on the line.
For further advice contact the GRITIT team: www.gritit.com