Safety Standards?

Why Standards? 

Everybody has standards that they work to, whether they realise it or not. With the introduction of ISO 45001 in 2018, the issue of standards was again in the news and people asked which standards are right for them. However this ignored the bigger question about all the other standards that also exist that people should consider. Standards in health and safety are often more complex than people consider, so four years on from the introduction of IOS 45001 has anything changed? 

There is considerable confusion about the potential liabilities (civil and criminal) that people may face if they fail to follow what the law requires. Standards can aid considerably in demonstrating what and how a company intended to comply with the requirements, or they could simply prove guilt if they were inadequately defined or not followed. 

Cases fail when people do not take full regard of the standards that have been adopted (knowingly, or by default), or fail to recognise the standards that are imposed (ignorance not being a defence in the eyes of the law). 

What are the voluntary standards about? 

Both HSG65 (the HSE’s recommended standard for health and safety management systems) and ISO 45001 are voluntary standards that people may adopt to demonstrate their competence in managing health and safety in the workplace. They are both robust standards offering the opportunity to audit against known standards and offer a way to measure compliance with the organisations objectives. They both aid companies generating evidence of their competency. 

The flip side of this is that they also enable companies to specify a higher standard of health and safety management than is strictly required by law, with which they must then comply. They effectively extend the law (voluntarily) setting internal rules and procedures as the companies own definition of what ‘so far as is reasonably practicable’ means in the company. This has been used in HSE prosecutions to demonstrate that the statutory compliance was not reached, because the companies own standards were not complied with in full, so effectively becoming a statutory breach. 

By adopting IOS45001 companies may have generated a market for their goods and services and so increased their customer base, but they may have also set standards that must be complied with internally for both criminal and civil actions. 

So Far As Is Reasonably Practicable (SFAIRP) 

This flexible phrase is at the heart of health and safety law, and has been so since 1974. It originated in civil cases in the 1940’s, most famously in the case of Edwards v NCB [1949] but had also been referred to in other cases before that time. It expressed the balance of costs (in time, effort, resources and money) against the outcomes intended (reduced suffering and loss) and in modern interpretations the balance should not be grossly disproportionate (different industries will look to different proportions of up to 10:1 ratios of cost:benefit). 

This is a standard that is imposed by law and should underlie all management decisions. Therefore, when a decision is made that the company will do something (and that is documented in the safety management system) the decision that those actions are ‘so far as is reasonably practicable’ has been made. Failing to reach that self appointed standard therefore can represent a breach of the law, or an admission of a civil liability. 

Just to make life truly interesting, the SFAIRP test also responds to changes in the workplace and trading environment. Any changes in the costs of actions (such as the advent of a newer and lower cost technology) will move the balance of what is SFAIRP because it has amended the cost side of the ratio. Any changes in the understanding of the outcomes of an incident (or an occupational ill health) will also move that balance because it changes the benefit side of the ratio. The recent redefinition of welding fume as a carcinogen is such an example, where overnight all companies engaged in welding of mild steel materials suddenly found the SFARP ratio had moved a long way, and they now needed to install local exhaust ventilation and use high efficiency respirators to protect workers from a threat to life that had not previously been fully understood. 

Suitable and Sufficient 

The legal requirement placed on every company in deciding how to manage an activity is that the actions they decide to take must be “suitable and sufficient” to effectively manage the risk to people from their activities. The test is therefore one that you can apply to your own decisions to decide if you have done “enough of the right stuff” to control the risks you have identified.  

Once made, this assessment (for example in a risk assessment) must be complied with, as failure to comply represents a failure to provide ‘suitable and sufficient’ protection of the people involved. 

More Than Law 

Many companies also find that they are subject to an ‘Approved Code of Practice’ which stipulates standards to be achieved. This is another non-voluntary standard that must be complied with even though it is not law. I have seen several cases fail when people have not taken due regard to these mandatory standards, considering that they are ‘only best practice’ or are like other ‘codes of practice’ and need an ‘opt in’ to apply. 

Naturally there are also many explicit legal standards required, with about 200 sets of Regulations (plus Acts), many of which overlap, and many decided cases that can significantly change the interpretation of critical phrases. The classic health and safety law reference book “Redgrave’s Health and Safety” (now in the 10th edition) runs to over 3000 pages, without extensive discussion of the interpretation of health and safety law, or the text of the approved codes of practice or the key guidances published by any of the dozen or so Government agencies responsible for detailed enforcement and advice on these matters. It is hardly surprising that many companies do not appreciate the full legislative weight that they need to face, especially when they operate across several disciplines. 

What Standards Do You Use? 

So decisions are key in the management of risk in the workplace. But what measures constitute a ‘suitable and sufficient’ control in the risk management of a particular workplace? This is a much more complex question than it appears at first. How those controls are implemented also matters, and is at the core of any safety management system. This often requires consideration of the intended (paper) system as well as the ‘on-the-ground’ implementation. It is the latter that is often only visible in the company’s safety culture and which can be significantly different to the management system intended solutions. 

Source: HSE guidance on ‘Human Factors’. 

Therefore, built into the safety culture are all the accepted failings, such as the failure to wear protective equipment, the acceptance of short cuts, the bad practices taught by experienced workers to trainees, and so much more. These form part of the implicit standards, things that are accepted and perpetuated without actually questioning, they rapidly become the norm and form the standard that is worked to, whether desired or not. 

It is imperative that these are understood when facing a health and safety case, as they can undermine defences or pose opportunities in actions considering deficient safety management. 

Implicit v Explicit 

Many organisations have a substantial conflict between their implicit and explicit standards. This is frequently at the root of accidents, industrial disputes, productivity problems, quality issues etc. The solution is often to address the problems with the implicit standards – where the company has accepted ‘bad practice’ in the past, and also to address unrealistic expectations in the explicit standards. If something is to be done in a particular way, then it is beholden on the management to make ‘that way’ the easiest way to do the job. If this is not done, then the implicit system will take over very fast, and people will short cut their way (and the company) back to danger. 

Competency 

Clearly a highly competent workforce will need less direction and will be able to identify their own standards in many cases. This is the case of the traditional craftsman working by hand with very sharp tools versus the modern factory worker who loads materials into a computer controlled machine before unloading a completed item. But even in the most highly skilled workforces there is still a need for explicit standards to be defined.  

Take the scaffolders constructing a large scaffold in town. They will be highly trained and competent, but they will still have the design standards, the requirements for protective equipment, the need to control the space under the scaffold, the need to ensure that everybody is working in the right way at any given moment. This is potentially dangerous work and needs to be managed well. Implicit standards are included at every step of the process and in most of the larger scaffolding companies these standards will have been made explicit, to aid communication, assist with protecting trainees etc. 

Compare this with the frequent abuse of small tower scaffolds, where erecting the scaffold is a much lower risk task, but frequently there is a lack of skill and appreciation of the danger by the people doing the work. This means that many small tower scaffolds are lethally dangerous to all involved. The lack of competency in the form of a working appreciation of the correct standards involved in erecting a tower scaffold is then at the root of many other failures.  

In short, when less competent people, or higher risks are involved, the more important it is to have defined explicit standards for work. Explicit standards for the level of training and the way in which it is recorded may also be advantageous when trying to demonstrate competence. 

4 What is the Impact on Cases? 

Many cases involve questions about the standards of health and safety without explicitly referencing them. Many civil claims will revolve around the standards that should have or did actually apply to the protection of the injured person. If the standards that were in place cannot be demonstrated it is up to the Court to decide what should have been in place or the ‘reasonableness’ of what was present. However, if a policy, risk assessment, procedure or instructions can be identified then the intended standard may be derived from that.  

Audits can go a long way to demonstrating that the standards existed, and were being applied, making defence of a case much easier. Likewise, (if undertaken reasonably soon after the event in question) inspections of actual conditions (or reasonably contemporaneous photographic evidence from the site) can also demonstrate that the standards that have been set on paper are not being applied on site. Where there is a difference between the paperwork and the reality, the implication is often that the standards were not being followed, and where this could have been causal or a contributory factor, this can be significant in the case being constructed. Interpreting the evidence can be complex. 

A good expert witness should be able to assist the Court in making sense of what standards should have been in place, what were present (explicit and implicit) and whether they were compliant with legal requirements or the balance ‘SFAIRP’. This can become especially complex when looking at issues like Personal Protective Equipment, since boots, hats, gloves and masks are all designed to protect against specific hazards. One item may be suitable for some situations and useless in other seemingly similar situations. This is especially true with gloves and masks / respirators, which are designed to protect against chemical hazards. Because of the nature of the barriers they present a detailed knowledge of the protection offered, the suitability for the user, and the nature of the hazard are all required. Chemicals can pass through gloves in a matter of minutes (with no superficial or visible damage), whilst the same glove can offer hours of protection against another apparently similar chemical.  

Standard Summary! 

Safety management is critical to any organisation (whether they realise it or not). At the base of this is the identification of the standards that are to be applied. If both the implicit and explicit standards have not been considered then the system will fail, regardless of the official ‘method’ followed. 

Companies can set their own standards. This is best done collaboratively and transparently, then the safety culture of the workplace itself can become the implicit enforcer of standards. Once the actual standards are known, they can be measure and improved (and even audited). If they are not stated, then they cannot be measured, and a state of ‘blissful ignorance’ will continue until the ‘accidents’ inevitably happen. 

Lawyers need to be careful of the standards that exist (especially the implicit and hidden ones) as they can destroy carefully planned cases. Sometimes standards have been set so high that they are effectively unobtainable in the actual workplace, which is an invitation to claims (or prosecution), and at other times the standards demonstrated in the workplace are so low that they are patently below the legal minimum (making a defence very difficult). However, the most insidious of all is the standard that was acceptable in the past but has become no longer ‘suitable and sufficient’ because of changes in the balance of what is able to be done, ‘so far as is reasonably practicable’, to protect people. 

So Has Anything Changed? 

Basically no. New standards documents have not really made any difference to the need to actually consider the work involved when examining a case. They should make it easier for companies to achieve good management of health and safety, but only if they are implemented carefully, considering the actual work, the safety culture of the workplace, the competency of the people involved and the explicit needs of law. This has not really changed since 1949, even though workplaces are now very different, and the management approaches are far more sophisticated. It still boils down to considering what is needed, making decisions, setting your standards, and doing the job accordingly.