News for 2008
August
HSE publish case studies on working with computers
The HSE has published some case studies on its website to show employers and managers how others have tackled health problems relating to working with computers. Musculoskeletal disorders (MSDs) are the most common occupational illness in Great Britain, affecting 1m people a year. They include problems such as low back pain, joint injuries and repetitive strain injuries of various sorts. Computer workstations or equipment can be associated with neck, shoulder, back or arm pains, fatigue and eyestrain.
According to the British Chiropractic Association, sedentary PC posture causes more back problems than excessive lifting and carrying. However, the HSE says these problems can be avoided by following good practice, such as the examples outlined in its case studies:
Reducing MSDs in keyboard users
Problem: Office staff employed on shift work were hotdesking while doing prolonged repetitive keyboard work. Several staff had taken time off work with upper limb disorders.
Solution: Workstation set ups were investigated. Problems were identified where there were mis-matches between individual’s body size and the work equipment. Chairs with better adjustments were obtained where necessary and staff trained in setting them up. Keyboard and mouse arrangements evaluated and acceptable settings identified for individuals. Carefully designed and integrated changes to workstations, work environments and working practices reduced the risks and cut sickness absences and staff turnover.
Computer use in news media organisation
Problem: There was an increase in upper limb disorders after new computer software was installed.
Solution: Following an assessment changes to workstation layout, software and working practices helped to reduce the duration and repetitive nature of tasks.
Upper limb disorders in an office environment
Problem: An office employee developed carpal tunnel syndrome and neck pain which affected her work.
Solution: Individual adjustments to her workstation and work tasks meant that the employee could still work productively without pain or the need for surgery.
Last year’s European Week for Safety and Health at Work was dedicated to raising awareness of MSDs. The HSE has published a statement listing the regulations due to come into force during 2008 and 2009. The HSE implements changes to regulation that arise from the UK on the two Common Commencement dates - 6 April and 1 October.
There is only one change currently due to commence on 1 October 2008, which is the second Adaptation to Technical Progress (ATP) to the Dangerous Preparations Directive (DPD), which adjusts the ‘rules’ for classifying and labelling preparations (mixtures) of chemicals based on the classification of the constituent substances and their concentrations in the preparation.
On 6 April 2009, these three following changes are due to come into force:
- Health and Safety (Miscellaneous Amendments and Revocations) Regulations - these regulations are intended to correct issues that have arisen since the new regulations on the manufacture and storage of explosives came into force in April 2005. They also take the opportunity to reduce the administrative burden resulting from explosives legislation by extending the maximum periods of validity of explosives certificates and storage licences. They will also revoke redundant and outdated local mining regulations and correct an omission in the Control of Noise at Work regulations.
- Factories Act 1961 and Offices, Shops and Railway Premises Act 1963 (Repeals and Modifications) Regulations – these regulations, currently being consulted upon, would remove several legislative form filling requirements that currently apply to most businesses operating from a factory, office or shop (and certain railway premises) in Great Britain, such as premises notification. The regulations would introduce no new requirements.
- Health and Safety Information (Amendment) Regulations - these amendments will allow HSE to approve and publish new posters and leaflets which do not require the addition or updating of enforcing authority and Employment Medical Advisory Service contact information by businesses displaying them.
It is also anticipated that the Globally Harmonised System of Classification and Labelling of Chemicals (GHS) Regulations, which is European legislation, will enter into force around the end of 2008. The GHS aims to provide world-wide harmonised criteria for classifying substances and mixtures according to their health, environmental and physical hazards; and world-wide harmonised hazard communication elements, including requirements for labelling and data safety sheets.
Court of Appeal uphold claim for workplace injury
The claimant was sent by his employer to replace a card in a computer installation. The computer belonged to a local authority and was situated, in a cabinet eight feet above floor level, with other computers in a server room owned and managed by the Part 20 defendants. In order to reach the cabinet, the claimant, who had not been provided with a ladder of his own, used a ladder he found in the room. The ladder was not long enough, and in reaching up the claimant fell, sustaining spinal injuries.
On his claim for damages against, inter alia, his employer and the Part 20 defendants, the judge held:
- that, as the ladder was too short to provide proper and safe access to the cabinet, the claimant’s employer was in breach of regulation 5 of the Construction (Health, Safety and Welfare) Regulations 1996;
- that the ladder was “work equipment” and was unsuitable for the purpose under regulation 4 of the Provision and Use of Work Equipment Regulations 1998; but
- that the Workplace (Health, Safety and Welfare) Regulations 1992 did not apply, by virtue of regulation 3(1)(b), since the only activity taking place in the server room was the work being performed by the claimant.
He, accordingly, held the claimant’s employer in breach of statutory duty and guilty of negligence in failing to provide a safe system of work, assessing the employer’s liability at two-thirds and holding the claimant one-third to blame for his accident.
Though unable to determine who owned the ladder, in the Part 20 proceedings brought by the employer, the judge found that the Part 20 defendants had control over it in the terms of regulation 3(3) of the 1998 Regulations and could have moved it elsewhere or placed a warning notice on it; and he ordered that they should contribute to the extent of 25% to the damages to be paid by the employer.
The Part 20 defendants appealed and the employer cross-appealed, contending that, if the Part 20 defendants were not liable under the 1998 Regulations, they were in breach of a duty to prevent the claimant’s fall under regulation 13 of the 1992 Regulations.
The Court of Appeal held:
- In determining the liability of a non-employer for work equipment by virtue of regulation 3(3)(ii) of the Provision and Use of Work Equipment Regulations 1998, it was necessary to ascertain the purpose for which he had control of the work equipment, since the Regulations applied only to the extent of his control. On the facts found by the judge, the Part 20 defendants were not, for the purposes of regulation 3(3), persons having relevant control of the ladder used by the claimant, and, in any event, the extent of any such control they might have did not reach as far as determining its suitability for the use the claimant made of it. Accordingly, there could be no breach of regulation 4 by the Part 20 defendants.
- Where possible the Workplace (Health, Safety and Welfare) Regulations 1992, the Construction (Health, Safety and Welfare) Regulations 1996 and the Provision and Use of Work Equipment Regulations 1998 should be construed so as not to overlap. Dangers of work equipment should be dealt with under the 1998 Regulations, dangers in construction work under the 1996 Regulations and dangers in the workplace under the 1992 Regulations. Regulation 13 of the Workplace (Health, Safety and Welfare) Regulations 1992 referred to the risk of falling as a result of a danger inherent in the workplace, rather than a danger arising from equipment brought into the workplace, and falls from ladders should be dealt with as work equipment under the 1998 Regulations. Accordingly, the 1992 Regulations did not apply to regulate the claimant’s use of the ladder.
The appeal was allowed and the cross-appeal was dismissed.
Cinema criticised for lack of wheelchair access
A cinema has been the centre of protests after a teenage wheelchair user had to crawl up the stairs because of the lack of wheelchair access to the building. Amy Clements, 15, who has spina bifida, organised the protest of more than 20 people outside Hereford's Odeon after her experience, which left her feeling “embarrassed”.
Jim Lawes, president of Hereford's Access for All scheme, told the BBC they had been campaigning "for years" to get the cinema to improve disabled access: "Just because a kid is in a wheelchair shouldn't mean they can't enjoy the same things as others. They should not segregate people in this way."
According to Fire and Disability 2008: special report, service providers and employers are required to take reasonable steps to modify physical features of premises that make it difficult for disabled people to use the service or work in the premises. Physical features include the fabric of the building or the built environment, its facilities, fittings and furnishings.
This duty does not override any requirement to obtain any consent which may be necessary, such as planning consent, listed building consent, or landlord’s consent. The Disability Discrimination Act (DDA) itself does not contain any guidance as to the type of adjustments that might be needed, but sets out five matters to be considered when determining whether it is reasonable for an employer to have a duty to take a particular step in order to comply with the duty. They are:
- the extent to which taking the step would prevent the effect in question;
- the extent to which it is practical for the employer to take the step;
- the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;
- the extent of the employer’s financial and other resources; and
- the availability to the employer of financial or other assistance with respect to taking the step.
The DDA only requires service providers to do what is reasonable in the circumstances in each individual situation. To do this, factors such as the size of the business, the organisation and the financial resources available to it should be taken into account.
Odeon said in a statement released to the Hereford Times: “After a full inspection, Odeon regrets that it is not feasible at present to include facilities (at Hereford) providing access for people in wheelchairs.”
The cinema chain says it is now looking for new premises in Hereford so this can be rectified.
Response to fire alarms questioned
A fire safety expert has raised concerns about changes to fire alarm responses over the past few years, after it was revealed that the fire which destroyed Weston-Super-Mare pier had been burning for five hours before the fire service was alerted. Avon Fire and Rescue says a fire alarm was activated at 1.35am on 28 July, but crews were not called out until about 6.45am.
The alarm system was linked to a private company which alerts pier employees to check if the alarm is genuine before the fire service is called, a spokesperson told the Telegraph. Investigators, who have yet to establish the cause of the blaze, are examining the firm's call logs to try to discover whether any alert was passed on, and if so to whom.
Alan Cox, fire safety consultant and one of the authors of the newly published Fire Safety 2009: special report, says that although it is unusual for a fire to have been burning for five hours before the alarm is sounded, it does happen because of the changes within the industry: “When automatic fire alarms were starting to be installed they were routed from the protected premises straight to the local fire station and the fire brigade responded immediately. Over the years the number of alarm systems grew and together with this was a high incidence of false alarms. The Home Office, following pressure from the Fire Service, had them removed and commercial companies took up the receiving of alarm calls. It was not just fire alarms, as security alarms followed the same path.
“I always thought that this was the wrong way to go because, whatever happened [with the old system], the Fire Service still had to respond to the alarm, and this new system introduced a delay into the time that it takes for the alarm to reach the Fire Service. Under normal circumstances the delay is minimal but I have direct experience of prolonged transmission times and of calls not reaching the Fire Service.”
So if a business has a similar system, where a private company notifying employees if the fire alarm goes off, how should this be managed to make sure notifications aren't overlooked or ignored? Cox believes there are many questions to be asked in this situation: “When you introduce a third party into the alarm transmission scenario you are looking for trouble - for a start you have to look at the equipment and the way the signal is sent. Then you have to look at the Alarm Receiving Centre - is it registered, is it secure, is it reliable and how does it pass the signal on to the Fire Service, etc.
“Assuming that you have got past this hurdle - how does the recipient respond? Do they have someone on site where the delay is minimal or do they respond from home, and if so what is the time delay and has it been agreed with the Fire Service and Insurance Company?”
The Chief Fire Officers Association is set to introduce a new false fire alarm policy in 2010 based around three different levels of response, in a similar way to that which applies to intruder alarms and other security systems:
- 'Attendance level one' results in an immediate emergency response, with an initial attendance based on a risk assessment of the fire fighting requirements of not less than one fire appliance.
- 'Attendance level two' - in the absence of a confirmation call via the 999 system - results in attendance by the fire service, but possibly under non-emergency conditions, thereby maintaining the availability of the resources for other confirmed emergencies.
- 'Attendance level three' sees no emergency response until confirmation of a fire is received from the premises via the 999 system or from some other acceptable source. The type of response depends upon the information received.
As the Weston-Super-Mare pier fire demonstrates, this may mean that businesses need to give careful consideration to how a genuine alarm is raised if a fire breaks out on the premises.
Firm fined for scaffolding collapse
A scaffolding company has been fined for failing to ensure a safe system of work and proper training and supervision, after three men were seriously injured when the scaffolding they were erecting collapsed onto a busy road in Staffordshire. Pedley Scaffolding Ltd was fined a total of £3,300 and ordered to pay costs of £5,318 after pleading guilty to breaching sections 2(1) and 3(1) of the Health and Safety at Work Act 1974.
The incident occurred on 22 June 2007 when three men (two aged 24 and one aged 25) were erecting scaffolding. The scaffolding collapsed onto the road, causing the workers to fall approximately six metres. HSE inspector Tariq Khan says: "Pedley Construction failed to provide a safe system of work and adequate training and supervision associated with the erection of scaffolding.
"All employers have a responsibility to ensure that safe working practices are in place, because failure to do so could well cost lives, as well as enforcement action from HSE. These three men suffered serious injuries, which kept them from work - but it could have been much worse.
"Falls from height at work resulted in 45 deaths last year, of which 23 were in the construction industry. In addition, 3,750 workers were seriously injured after falling from height and 3,409 of those were employed in the construction sector."
All three scaffolders suffered serious injuries - one broke his hip, ankle and foot and fractured both knees, another fractured his skull, and the third man broke his elbow. The incident also placed pedestrians and road users at risk.
Details on Corporate Manslughter publicity orders revealed
Details of the next stages of implementing the Corporate Manslaughter and Corporate Homicide Act have been revealed in Parliament. In a written ministerial statement, Maria Eagle, Parliamentary Under-Secretary for the Ministry of Justice, said that the Government is waiting for guidelines to be issued by the Sentencing Guidelines Council later this year before the section of the Act on publicity orders is implemented.
When that part of the Act comes into force a court will be able to impose a publicity order, requiring an organisation prosecuted of corporate manslaughter to publicise:
- the fact that it has been convicted;
- the particulars of the offence;
- the amount of any fine; and
- the terms of any remedial order.
Eagle also said that the procedures for caring for some of society’s most vulnerable or volatile people are highly complex, which is why the Government has given 3-5 years for custody providers to prepare for the implementation of the section of the Act dealing with deaths in custody: “We are publishing a report today which discusses the progress made to date by the various custody providers and what remains to be done.
“While implementing the Act provides a useful catalyst and driver, reducing deaths in custody is a core part of long-term work by the Government together with custody providers, and this long-term agenda is reflected in the report.”
No review for 'reasonable practicability'
The Government has categorically ruled out a review of 'reasonable practicability' and how it applies to health and safety law. In April, a committee of MPs said the requirement on UK employers to ensure the safety and health of workers "so far as is reasonably practicable" introduced "a lack of clarity that can increase the burden on employers in meeting their health and safety obligations."
The Work and Pensions Committee recommended that the Law Commission review the test of 'reasonable practicability' and how it applied to the Health and Safety at Work Act 1974. However, the Government said it did not believe there would be any value in a further review. It said the committee itself had concluded that the current regulatory regime for health and safety was fit for purpose, and that 'reasonable practicability' was at the heart of the regime.
Last year the European Commission (EC) challenged the British Government in the European Court over 'reasonable practicability'. The EC complained that UK law allowed employers to escape responsibility if they could prove that the sacrifice involved in taking health and safety measures, whether in money, time or trouble, would be grossly disproportionate to the risk. This, it said, contravened EU health and safety law. However, the European Court ruled in Britain's favour.
In its broad review of health and safety, the Work and Pensions committee also said it was not convinced that guidance for directors, rather than a specific legal duty, was sufficient to ensure board-level prioritisation of health and safety issues. In its response, the Government said it believed there was currently an "appropriate balance" of legislative and voluntary responsibilities on directors for health and safety: "The new leadership guidance for directors does not stand alone. It is just one aspect of the current arrangements, involving a mix of legislation, enforcement and voluntary guidance, which serve to focus directors' attention on their responsibilities for health and safety, and to influence their behaviour."
However, the Government went on to say that it was committed to revisit the question of director duties following a "timely, thorough and independent evaluation of the impact of the voluntary approach." This evaluation, led by the HSE, but also involving businesses and trade unions, is due to begin in the latter half of 2009.
Chippies told to clean up
Carpenters and woodworkers have been told not to use brooms to sweep up sawdust because they are considered dangerous under "ridiculous" new health and safety guidelines. The HSE claims that sweeping up wood chippings in dusty workplaces can provoke asthma attacks and long term exposure lead to nose cancer.
Instead they are advising carpentry firms to buy state-of-the-art vacuum cleaners and air purification systems which can cost thousands of pounds. Small companies say they cannot afford the equipment but are repeatedly nagged to upgrade during safety checks.
A HSE spokesman said the guidance is designed to protect UK joiners - who are four times more likely to get asthma than the average worker.
SIA's power to prosecute confirmed
A judgement handed down by the High Court has confirmed the Security Industry Authority's (SIA) powers to prosecute offences under the Private Security Industry Act 2001. The judgement follows a challenge by two security firms investigated by the SIA for providing unlicensed security staff, which claimed that the body had no statutory power or authority to launch prosecutions.
The SIA is an independent organisation established under the terms of the Private Security Industry Act 2001 to license, monitor and inspect those providing security services. As part of this, it introduced compulsory licensing for people working in several sectors of the private security industry in England and Wales.
The Court held that the Authority had the power to do "anything that it considers is calculated to facilitate, or is incidental or conducive to, the carrying out of its functions".
Commenting on the judgement, Andy Drane, Deputy Chief Executive of the SIA said: "I am pleased that this judgement has confirmed our understanding. As we have always said, prosecution is not our preferred option but we will initiate proceedings when we think it is appropriate to do so.
"Our normal compliance approach, which falls short of going to the Courts, is made more effective by the threat and reality of prosecution."
Representing workers in the security industy, the GMB Union also supported the judgement. Gary Smith, GMB National Secretary, said: "It makes the industry and especially the small security companies, accountable under law ... it's often the smaller firms that drive down terms and conditions across the industry because of the way they do business."
