We’re committed to offering our community unique, thought-provoking content to keep them notified on all things ‘health and safety technology’. This month we’re super excited to introduce our new Subject Matter Expert, Tristan Meears-White, hailed as a “key individual” by Chambers UK and a “first-class health and safety lawyer” by Legal 500 2018/2019.
Tristan will be providing his take on the hottest Health and Safety topics each month, as well as sharing guidance around some of the most significant underlying principles of Health & Safety law and enforcement.
He’ll also be helping our team at Notify HQ to continually improve the Notify platform and modules, to ensure we continue to help our clients keep on top of best practice and stay ahead of the crowd. He’ll be advising on ways to make our tools even smarter, a huge benefit to our clients as they look to develop a first class Health & Safety culture, and to their colleagues whose health, safety and mental wellbeing we’re striving to protect.
In his first blog, Tris takes a look at the matter of risk and how, even in 2019, so many businesses end up in court due to a poor Risk Assessment process.
Without further ado, over to you, Tris…
When I first qualified as a lawyer I was warned by a sage silver-haired hack at Leeds Magistrates Court that the criminal justice system was fraying at the seams and there was very little future for a mellifluous and gifted young advocate. Or for me.
G4S had recently been awarded a contract to guard remand prisoners, legal aid contracts were bedding in and after two years of battling an infrastructure trapped in 1973 and benches of magistrates whose bewildering decision-making drove me near demented, I made good my escape. It seemed to me a miracle that justice was ever served.
However, due to a basic lack of imagination, I shuffled sideways into becoming a regulatory lawyer with a particular set of skills in Health & Safety law, which is of course enforced through those same criminal courts.
As a result, most of my cases fall victim to a framework which continues to enrage and frustrate most of those who participate in it – a position made more uncomfortable by those who enforce the law and the popular perception of health and safety as the apotheosis of “political correctness gone mad”.
So, in truth, I did not so much escape, as crawl along an escape tunnel until I became stuck behind a rusty metal grate covering the exit out onto the sunlit uplands of commercial practice.
On the plus side, I have managed to carve out a fascinating 20-odd year career which has taken me all over the UK and into every type of business you can think of; now hopefully affording me the chance to pass on some of what I’ve learned to you with at least a semblance of credibility.
Having been invited to contribute to the Notify blog, I thought long and hard about what might be the single most important piece of guidance I could give to anyone trying to manage their organisation’s health and safety. Something which would cut right to the heart of it all – but then I worried that this might stop me being asked to write any more posts, so instead, I’m going to pick out a few; starting with this:
“Understand the risks that you’re trying to manage.”
I agree that this sounds completely obvious, but my experience is that in virtually every fatality or serious injury case I have been instructed in which has found itself in court, the failure of an organisation to conduct a suitable and sufficient risk assessment has been a cornerstone of the prosecution case and frequently at the root of the incident.
So how do organisations get it wrong?
A few examples and a suggestion as to how they might translate themselves at court
1- Regarding them as a box to tick – “as long as there’s something there, we’ll be fine”.
This accident is predicated on the company failing to properly examine or identify the risks which arose from this activity, instead believing that a correctly completed form was enough to protect its workers from harm
It is all very well is it not, to have a robust risk assessment which carefully identifies the measures required to mitigate and manage risks, but what use is that if the individuals exposed to those risks are not informed how they are to be avoided
A risk assessment which talks of risk arising from operating a heavy plant in fields but ignores the existence of overhead power lines in said field is of no help whatsoever to the driver whose vehicle hits those lines.
4- Not enacting risk control recommendations – “it’s just not practical”.
“The company drafted a risk assessment which made clear recommendations for operatives to isolate and lock off the machine with padlocks before entering it to carry out cleaning activities, but it did not distribute those padlocks because they frequently got lost. This makes a mockery of the entire risk assessment process”.
The key to effective risk assessment is to look beyond strict legal requirements and HSE’s famous five steps. For example, if a risk assessment launches straight into the recommended first step: “identify the hazards” without defining the task, location, equipment or role for which the risk assessment is being produced, it is unlikely to be suitable.
To undertake a suitable and sufficient risk assessment takes time and a competent multi-disciplinary team who are adequately resourced. There are no shortcuts.
Good practice is about making a commitment to ensuring that risks are kept as low as is reasonably practicable and maintaining that commitment by reviewing the evolution of risk and its mitigation throughout the life of whatever activity is being undertaken.
If you do not understand your risk, how can you ever properly manage it?
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