HSE INFOLINE TO DISAPPEAR

Added 22/9/11. This information updates s.40.1.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Health & Safety Executive's infoline at 0845 345 0055, which I always found really helpful, disappeared on 30 September 2011 and we now have to depend on the HSE website at www.hse.gov.uk. I think the website is excellent, but it can't replace a real person at the end of a phone line.

In a press release on 12 September HSE said, "Various improvements have been made to HSE's website to coincide with the closure of Infoline. There is clearer information on what HSE does and doesn't do, so people can check that HSE is the right organisation to assist them, and expanded 'question & answer' sections for the most frequent health and safety enquiries such as those on RIDDOR reporting and first aid."

NEW H&S POSTER AND LEAFLET

Added 14/6/09. This information is included in s.40.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
A new version of the HSE poster was published on 6 April 2009, setting out in numbered lists (and with photographs) the obligations of employers and workers in relation to health and safety, and what to do if there is a problem. The H&S leaflet, which has had to be given to employees at workplaces where the employer does not prominently display the poster, has been replaced by a pocket card.

The existing poster and leaflet can be used until 5 April 2014, provided they are readable and the addresses of the enforcing authority and the Employment Medical Advisory Service (both available from the HSE infoline on 0845 345 0055) are up to date.

Welsh, easy read and large print leaflets will be produced, and an MP3 version will be available on the HSE talking leaflets website.

Posters and leaflets can be purchased from bookshops or from the HSE Books on 01787 881165.

Further details are at www.hse.gov.uk/contact/faqs/lawposter.htm.

RISK, LIABILITY AND THE SOCIAL VALUE OF ACTIVITIES

Added 25/5/11. This information updates ss.22.3.1 & 40.2.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The House of Lords decision in Tomlinson v Congleton Borough Council & others (www.bailii.org/uk/cases/UKHL/2003/47.html) in 2003 introduced into negligence cases the concept of balancing the likelihood and potential seriousness of injury from an activity, against the social value of the activity. This was incorporated into s.1 of the Compensation Act 2006, which says that "a court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or discourage persons from undertaking functions in connection with a desirable activity".

This means that if a person is negligent or in breach of a statutory duty and as a result a person is injured, the court will be able to take into account that the activity was, for example, being run by a volunteer or a not-for-profit organisation — and that without the volunteers or the organisation, the "desirable activity" might not have taken place at all.

Some cases in recent years illustrate how this principle is interpreted — and sometimes reinterpreted — by the courts, or illustrate other factors taken into account in negligence cases or cases involving breach of health and safety law.

Charlotte Shaw, aged 14, was preparing for the Ten Tors training expedition in March 2007 when she fell into a swollen stream and drowned. Some of the 11 students in the group had asked for the trek to be stopped because of bad weather but it was decided it should go ahead. In the inquest into her death, considerable emphasis was given to the value of the Ten Tors, and the fact that this was believed to be the first death since the Ten Tors was started in 1960.

However, at the time of Charlotte's fall the three teachers accompanying the group were having breakfast at a cafe in a nearby town; for various reasons none of the teachers went to the checkpoints where the students were to have been met; there were no teachers with the students when they crossed the stream, although a passing Scout leader had stopped to help. The teachers, however, said that the students decided unanimously to continue the trek, and were told not to cross the stream.

The crown prosecution service decided there was not enough evidence to bring a manslaughter charge against Kingsley College, Bideford (called Edgehill College when Charlotte attended) and the two teachers who were overseeing the expedition. But Charlotte's mother is now bringing a civil claim against the school and one teacher, claiming they were negligent in their care. The case will be heard in the high court, probably in 2012, and the "social value" argument may be a factor.

Uren v Corporate Leisure (UK) Ltd and Ministry of Defence emphasises the importance of risk assessments. Taking part in an RAF fun day in 2005, Robert Uren dove headfirst into an inflatable pool with 18 inches of water, to retrieve pieces of plastic fruit from the bottom. Other competitors had done so safely, but Uren broke his neck, is now tetraplegic and sued the MoD and Corporate Leisure (UK) Ltd, the contractor who had supplied the pool.

The high court initially said that even though health and safety risk assessments had not been carried out, failure to do so did not in this case mean there was a breach of duty of care, because the danger of diving into a small pool was so obvious that participants should have acted accordingly, and the social value of the game outweighed the very small risk of injury. The court of appeal disagreed, and on 2 February 2011 referred the case back to a high court judge to reconsider the level of risk.

The original high court decision is at www.bailii.org/ew/cases/EWHC/QB/2010/46.html, and the court of appeal decision is at www.bailii.org/ew/cases/EWCA/Civ/2011/66.html.

In Scout Association v Barnes (www.bailii.org/ew/cases/EWCA/Civ/2010/1476.html), 13-year-old Mark Barnes was injured in 2001 in a game similar to musical chairs where the lights were turned off as the boys ran to grab wooden blocks. Even with the lights off the room was not in total darkness, and the Scout Association argued that risks from the game were balanced by its social value. The court of appeal disagreed, saying that turning off the lights increased the excitement of the game, but did not increase its social or educative value and thus did not justify the foreseeable risks.

When 25-year-old Gary Poppleton fell on a youth centre climbing wall, was paralysed and sued the centre, the high court found the centre was 25% liable for not warning him that matting at the foot of the climbing wall did not provide full protection against injury. The court of appeal overturned the high court, saying the centre was not liable, because it should be obvious to adults who engage in such activities that there is a degree of unavoidable risk, and that matting cannot completely protect against possibly severe injury.

The court of appeal decision in Trustees of the Portsmouth Youth Activities Committee (A Charity) v Poppleton is at www.bailii.org/ew/cases/EWCA/Civ/2008/646.html.

In a case brought by the Health and Safety Executive against John Summerfield, former headteacher of a sixth form college in Liverpool, the crown court accepted that his motives were well intentioned — but this could not override his ignoring the risks of his actions. At an end of term party celebrating A-level results, Summerfield took a dozen students, who the court said were "possibly slightly inebriated", onto the roof of the school to look at new buildings. Although he warned them about a skylight, student Joel Murray fell through the skylight, resulting in a fractured skull, several broken ribs, a perforated eardrum and damage to both eyes. Summerfield was fined £20,000 and ordered to pay £22,000 legal costs for ignoring, in breach of the Health and Safety at Work etc Act 1974, the school's rule that the roof was off-limits.

In another case brought by HSE, Mental Health Matters, based in Sunderland, was fined £30,000 and ordered to pay £20,000 costs in February 2010 after employee Ashleigh Ewing was stabbed to death by a service user in 2006. The charity admitted it knew the service user had a history of violence and refusing to take his medication and knew his mental health was deteriorating, but Ewing was sent to visit him at his home on her own, on the last day of her six-month probationary period. It was acknowledged that even if risk assessments had been carried out Ewing might still have been killed, but the likelihood could have been reduced. HSE's head of operations said, "This is an unusual case which shows the need for employers to assess risks to employees who visit individuals in their homes and for arrangements to be revised when changes occur. We believe that if Mental Health Matters had carried out a risk assessment, it would have resulted in the visiting arrangements being reviewed."

Following the case, HSE made the point that working alone is not in itself against the law, but the law requires employers and others to think about and deal with any health and safety risks before people should be allowed to work alone. HSE's guidance on lone working is at www.hse.gov.uk/pubns/indg73.pdf. The TUC also has a guide to lone working, at ww.tuc.org.uk/h_and_s/tuc-17252-f0.cfm.

For summaries and articles about cases, do a Google search on key words in the case name or content.
Go to archived items about liability (VSLH3 chapter 22)

H&S POLICIES AND RISK ASSESSMENTS

Updated 25/5/11. This information updates ss.40.2.6 & 40.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The HSE website now includes a downloadable risk assessment and policy template which brings together an organisation's risk assessment, health and safety policy and record of health and safety arrangements in one document.

The template can be accessed via tinyurl.com/64fafj5. I recommend that volunteer-using organisations change the second item in the template's statement of general policy to "To provide adequate training to ensure employees and volunteers are competent to do their work", and the third item to "To engage and consult with employees and volunteers on day-to-day health and safety conditions and provide advice and supervision on occupational health".

Example risk assessments on the HSE website — including for charity shops, food preparation and service, and village halls (also suitable for small community centres and similar premises) — can be used as guides for completing the template, or can be used separately from the template. The example risk assessments can be accessed via www.hse.gov.uk/risk/casestudies/index.htm.

Common sense, common safety, the report on health and safety legislation by Lord Young in October 2010, made a number of recommendations on low hazard workplaces such as offices, classrooms and shops. As part of implementing these recommendations:

• HSE launched an online risk assessment tool for offices in October 2010, which takes only about 20 minutes to complete (www.hse.gov.uk/risk/office.htm);


• a draft version of a similar online risk assessment tool for shops was issued in December 2010, with the consultation ending on 8 March 2011 (www.hse.gov.uk/consult/condocs/risk-assessment/shop.htm;)


• HSE launched on 28 March 2011 Health and safety made simple, a website bringing together its guidance for small and low risk employers (www.hse.gov.uk/simple-health-safety/index.htm; there is a link to a PDF printable version);


• Voluntary organisations: Managing low risk was launched on 31 March, to bring together links to resources of specific relevance not to voluntary organisations as such, but to organisations that use volunteers (www.hse.gov.uk/voluntary/index.htm.

RISK ASSESSMENT FOR PREGNANT WORKERS

Added 26/4/10. This information updates s.40.3.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
In Hardman v Mallon (trading as Orchard Lodge Nursing Home), the employment appeal tribunal found in 2002 that failure to carry out a health and safety risk assessment in relation to a pregnant employee was not only a breach of health and safety law, but also direct discrimination under the Sex Discrimination Act 1975.

However, in the case of O'Neill v Buckinghamshire County Council in January 2010, the employment appeal tribunal ruled that there is no general obligation under H&S law to carry out a specific risk assessment in relation to a pregnant woman unless three preconditions are met: the employee has notified the employer in writing that she is pregnant; the work is of a kind which could involve a risk of harm or danger to the health and safety of the pregnant woman or her child; and the risk arises from the workplace processes, working conditions, or physical, chemical or biological agents in the workplace.

If these preconditions are met, a specific risk assessment must be carried out and the employee must be provided with comprehensive information on the identified risks. Failure to do this is a breach of H&S law and could constitute sex discrimination. Even where it may not be clear that the work is of a kind which could involve a risk of harm or danger, it is still sensible for the employer to carry out a risk assessment because of the general duty to assess risk, and because a tribunal could find that in fact the work did meet the preconditions.

The O'Neill decision is at www.bailii.org/uk/cases/UKEAT/2010/0020_09_0501.html.
The Health and Safety Executive's website on new and expectant mothers is at www.hse.gov.uk/mothers/index.htm.

For summaries and articles about cases, do a Google search on key words in the case name or content.