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Posted By Smiff
I reckon a good proportion of questions posted on this forum can be paraphrased to “what exactly is the law or legal requirements for (insert subject)”
In my (long) experience, advice from safety people always seems to start with “under reg. blah of the blardy-blah of nineteen-whatever….”
IOSH courses devote so much time to the law that there is not much time for actual safety, I mean the kind that helps keep people safe.
My belief is that this approach and the image that it projects is one of weakness. It’s as though the safety guy is either unconvinced of the moral duty to protect other humans or has no confidence in his own ability to issue advice or instruction without showing the big stick.
On environmental matters it seems sufficient to “do the right thing”, and rarely does anyone justify environmental measure with “section blah of EPA ’90 blah”. Only on very precise things like permitting, licencing etc. do I ever hear mention of the law; the principles of prevention of pollution and minimisation of resource consumption are so ingrained as to almost need no further mention.
Will we ever get safety to be about principles (which people tend to respect) not the law?
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Posted By John A Wright
Smiff,
Whenever I tell a manager or supervisor about a safety matter or an instance of non-compliance that they did not know about they will usually say 'where does it say that'. If I can immediately say WHERE it says blah-de-blah then I have their attention and we can continue to talk about it and deal with it.
If I were to say 'well somewhere there's a regulation but I don't know top of my head but it says so somewhere.....' they would just walk away saying I don't know what I'm talking about.
John W
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Posted By Chris Pope
Law is seen by non specialists as black and white.
Advice might be seen as opinion.
We know better Smiffy !
It is a pity when those asking for advice get the law as a starting point though.
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Posted By Mitch
I agree with Smiffy if you take a reasonable practicatl (moral?) approach you will fnd it is coverd bty the legislation. In in doubt ask m'learned friends on the site you can't beat a mass debate.
Mitch
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Posted By garyh
I don't agree that IOSH courses (which I deliver such as Managing Safely) contains too much law stuff at all. This is simply not true (if you don't believe me, check the syllabus).
However, the obsession of NEBOSH (the diploma) with case law is beyond me. In my considerable experience as a safety manager and senior manager case law is irrelevant in the real world, unless you are a lawyer.
I do agree that any safety bod who spout regulations is probably not competent - any fool can do that, management if safety (IMHO) is NOT about slavishly following regulations.
The clue is in the word "managing"!
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Posted By Smiff
"However, the obsession of NEBOSH (the diploma) with case law is beyond me"
Exactly. I can't remember learning much about safety when I did mine.
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Posted By John A Wright
The point I was trying to make, above, is that most safety laws are in fact very much common sense. I'll give very practical and common-sense advice to employees about a safety issue, but sometimes it will be regarded just as 'my opinion' and they might feel that implementing the advice would interfere with production, process, engineer's time etc., so I often feel the need to say at the same time that there is a regulation covering that issue.
In my experience saying 'do the right thing' isn't always enough. Some production managers for example will resist good advice about installing new guards, or changing a process for safety reasons, if they see this as creating a lot of work or causing temporary interruptions to production, and will give it low priority. Quoting the law/regs can help justify good safety improvements.
John W
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Posted By Linda Westrupp
I'm not sure that all of us are obsessed with the letter of the law rather than the spirit. I rarely quote specific regs at people. The managers I deal with tend to trust my judgement and respect advice which is practical and follows good principles. In most cases they have already reached a conclusion for which they are looking for back up from someone pragmatic and realistic.
Case law is fascinating though and can inform our own professional judgement since it sometimes throws up interesting anomalies!
Linda
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Posted By Chris Packham
Pain avoidance or benefit?
Something I learned long ago (1969!) when on a behavioural science course is that we should try to concentrate on benefit as opposed to pain avoidance. If you want more on this just read Herzberg's "Work and the nature of man".
Compliance with the law to avoid prosecution is, in my opinion, pain avoidance. The employer will tend to do the least he possibly can get away with in order not to be the wrong side of the law.
On the other hand, if we can show that doing the best he can he will reap significant benefits, then hopefully (and in my experience realistically) he will see the advantage of doing the best he can.
So whilst there is a role for legal compliance, if we really want health and safety to take its rightful place we need to work out how to market it as a benefit. How we do that is another story - but if we do not address it we will continue to be seen as just another nuisance to be tolerated when needs must.
Chris
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Posted By Mitch
I have to say in my experience quoting rules and reg'd normally gets the derisory elf & safety response and contributes to the negative perception people hold about your profession.
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Posted By db
I disagree.
While spouting reg numbers will only get non-H&S bods backs up, a knowledge of the regs and case law is essential for the h&s professional for example to know how far "so far as reasonably practicable" goes for certain scenarios or for legal definitions and duties etc.
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Posted By BethR
we had the HSE in a "proactive" visit, and they said they would prefer to see a site that is run safely than a site that it run to the letter of the law. sometimes surely commonsense has to prevail.
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Posted By Tabs
In times of plenty, it is easy to follow the moral line. While money is tighter than usual, it will come down to "Where does it say that?" syndrome.
We should know the people we are talking to on the whole. So pitch whichever approach suits them best.
Here on the forum, it is natural to quote rules and regs, because we are trying to show the root of our response.
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Posted By Mitch
What is the legal definition of reasonably practicable?
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Posted By John A Wright
Oh Mitch, just when this thread was getting interesting.....
'Reasonably parcticable' is a term I very nuch avoid with employees, in fact I cannot remember the last time I spoke those words out loud.
Common sense, do the right thing, and the law to support it. Have we done enough? That's where monitoring comes in, see if any safety actions or changes in work practices are effective in reducing near misses, accidents etc.
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Posted By Mitch
John,
Up there, look!
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Posted By John Allen
The law provides the framework within which we all work. It is an outer shell in which all company policies, procedures and practices must be contained. Put another way the law provides a baseline or minimum standard below which we must not fall. If you do not know what those boundaries are how can you advise anyone?
In working within a legal framework a company’s health and safety specialist is no different from its accountant or HR specialist, or indeed any architect, engineer or surveyor. The board of directors do not all swoon if the accountant states that the company’s financial procedures must comply with the Finance Act.
We are often too defensive of legislation, which we should be proud of. The Health and Safety at Work etc Act 1974 came about because thousands of people died needlessly in accidents that could have been prevented. The fact that accident rates have fallen dramatically in the last thirty years and that other countries have copied the legislation suggests that it hit the right spot. We have a better and richer society because of it.
The one thing that really irks me is safety people quoting the phrase "common sense". There is no such thing!
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Posted By Chris Packham
At the risk of being tedious remember that "reasonably practicable" does not always apply where exposure to chemicals is concerned. COSHH requires the employer to "prevent exposure or, where this is not reasonably practicable, adequately control". In other words, reasonably practicable only concerns prevention and not adequately control.
Chris
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Posted By Malcolm Hogarth
Excellent thread and interesting reading. Just one comment (and I have got my metaphorical hard hat ready), John A Wright said...Common sense, do the right thing, and the law to support it.
The only problems with the common sense debate are that Common Sense is not that common, and what is common to one is not common to all.
How could we defend a workplace accident - injury by saying that the injured party should have used their 'common sense'? It wouldn't wash in my opinion.
Malcolm
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Posted By Smiff
"In working within a legal framework a company’s health and safety specialist is no different from its accountant or HR specialist, or indeed any architect, engineer or surveyor. The board of directors do not all swoon if the accountant states that the company’s financial procedures must comply with the Finance Act."
Sorry John, you seem to have missed my point. The CFO NEVER says that. He doesn't need to.
Safety seems to stand out like a sore thumb amonst the other disciplines as being not only defined by it's laws but communicated in the language of it's laws. I refer you to my environmental example. Environmental initiatives can be justified by being a "good thing". Care for fellow humans is, in my view, a GOOD THING.
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Posted By garyh
Sorry Chris your response seems odd to me.
As part of COSHH you follow a hierarchy of control and if your can't prevent exposure you control it - this is the purpose of having WELs is it not, to give an indication of what level of control is required (ie to achieve a level of expsoure under the WEL)?
For Carcinogens you have to look very hard at prevention, but you can still control (and therefore permit) exposure. Proof of this is that although ALARP applies, some carcinogens have WELs (eg Benzene).
In all this reasonable practicability comes in. Isn't this the basis of risk management?
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Posted By Mitch
Some of 'em Smiffy only some of'em.
Koking aside I agree with you and the effectivenes of the message is the way it is received, that's why companies advertise. Perhaps that's what's needed a good PR company for the H&S profession.
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Posted By John A Wright
John A and Malcolm,
You may not like the term 'common sense' but it's the language used by engineers, fitters and manager that I deal with. There's not much argument if they commonly agree on an obvious safety issue, but I take your point and I suppose that 'common sense' is in fact the "application of a suitable and sufficient risk assessment" and indeed I use that phrase a lot.
John W
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Posted By Mitch
Joking not Koking, it's not Saturday night!!!
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Posted By John Allen
smiff,
I have an Environmental Statement open on my desk at the moment which quotes 51 separate pieces of legislation. As a director of a small company I receive regular advice from my accountant on legal compliance. In fact I'd consider him derelict in his duty if he didn't keep me right on these matters.
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Posted By Malcolm Hogarth
Hello JW,
Thank you for taking my point, but where exactly did I say that I did not like the term common sense? It is not that I don't like it, more to the point is that it is open to different interpretations, unlike say 'Suitable and Sufficient' which is defined.
To go back to my question, how would you defend the common sense argument in a legal framework.(Sounds like a NEBOSH question!)
Malcolm.
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Posted By John A Wright
Malcolm,
You say "what is common to one is not common to all", but then you are not talking about 'common' sense if not all agree. :o)
When we use the term 'common sense' it is in regard to a corrective action decision that no-one would argue with, but the words 'common sense' are not in the documented RAs or PUWER assessments.
John W
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Posted By Fornhelper
'Reasonably practicable' anybody got a common sense interpretation for this phrase ? :-)
FH
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Posted By Malcolm Hogarth
JW - it's like a game of tennis!
Anyway, I give up as you have lost me - and you still haven't answered my question.
As we are in danger of hijacking the thread this is my last on the matter.
Kind regards,
Malcolm
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Posted By Chris Packham
GaryH
Re your mention of WELs:
WELs only apply to inhalation exposure. They are not valid for skin exposure. In fact, there are no occupational exposure limits for skin exposure - it is technically impossible to produce them, for a whole variety of reasons.
Airborne contact dermatitis is common. It is possible to be below the WEL and still have enough exposure to elicit an allergic reaction in a previously sensitised person.
Also, how often do I see a worker wearing a half-mask to protect from inhaling airborne chemical that is also a skin sensitiser, leaving the rest of the face exposed? How will the health and safety professional explain the allergic contact dermatitis that then results? In many cases full head protection is required to achieve adequate control, even though a half mask might adequately control inhalation.
Chris
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Posted By Mitch
Back to basics then, Smiffy asked -
"Will we ever get safety to be about principles (which people tend to respect) not the law?"
Respect has to be earned this comes down to people management.
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Posted By John A Wright
Malcolm, we're not hijacking the thread, though there are about three discussions going on.
Sorry I missed your original question which I look back and think it was "How could we defend a workplace accident/injury by saying that the injured party should have used their 'common sense'? "
Yes of course we would not defend that use of the term. If the injured party did not follow safe practices learned in his training then he would have committed an unsafe act, and the law would prosecute him. Of course, in his training I will have explained the law :o)
JOhn W
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Posted By Steve Cartwright
Smiff
The problem with principles is that some people do have them, however there are a lot who don't, especially if they think its going to cost them some money.
Unfortunately it is a fact of life that there are a lot of people out there who will only do something if it is a legal requirement. I often get asked why have we got to do this or that. If I told them it was because you have a moral duty or that it is because of principles we would not get a lot done especially if its going to cost them money.
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Posted By Raymond Rapp
I think we would be deluding ourselves if we thought that management are prepared to invest in plant and equipment if there was not a legal imposition to do so. Moreover, with something like 100 regulations enacted under HSWA, companies are driven by legal compliance.
However, the challenge for safety practitioners is the interpretation of the law. This is where we can use industry best practice to our advantage. Relevant case law can also help in the decision making process.
So, whilst I agree that compliance with the law is not the best model, very little would be achieved without it.
Ray
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Posted By Chris Packham
Now I am really depressed. What a pessimistic lot health and safety specialists appear to be.
If I were to try to gain new business merely on the need for legal compliance, in my particular field I would quickly go out of business.
Most of my clients are companies who can understand and accept the message that what I can do for them makes good business sense in that it helps keep their workforce healthy and productive.
Perhaps I am different from most of the posters on this thread, but I find it relatively easy to sell the benefits of what I can do for the client. They seem then to be happy to pay for my services.
In fact, I have a simple argument. Most managers understand preventative maintenance. They take their car in for service at the prescribed intervals rather than wait for it to break down on the M25 in the rush hour! They have preventative maintenance programmes for machinery and buildings. However, they usually have not thought about preventative maintenance for that most essential of assets, their workforce. However, when this concept is explained to them it seems to fall on fertile ground.
Am I doing something wrong - or what?
It seems to work for me!
Chris
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Posted By Jay Joshi
Overall, we have a very good system, as long as we, the safety professionals can influence the managers/directors.
Only recently, the EC had to accept the "so far as is reasonabaly practicable" basis in HASAWA and Management Regulations in context of transposition of the Framework Directive.
Although the EU directives have resulted in more prescriptive regulations, a lot of our regulation are "objective" and it is the ACoP's, HSE Guidance, Industry Guidance, British, European and Internationa Standards that support us in our interpretation of Acts of parliament and regulations.
Last, but not least, the nature of questions raised in this forum need not mean that all these questions are from HS Practitioners.
Only if the majority had the experinece, knowledge, resources and training to research effectively the information in context of providing competent advice !
Having headed the Technical Health and Safety Information Help-line of a well known safety organisation, it was obvious to me that there is a "gap" in this area.
Case law gives direction in context of what is reasonably practicable etc, but in a majority of cases, the bread & butter resources tend to be the ACoP's, HSE Guidance, Industry Guidance, British, European and Internationa Standards AND our own competence in interpreting the information gathered to advice on a problem or to advice on control measures required in a risk assessment.
Obviously, the un-informed tend to ask "where in law does it state......???.
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Posted By Chris Packham
Jay
Yes, but some of the documentation needs careful interpretation.
For example the ACoP for COSHH actually contradicts itself! COSHH defines a substance hazardous to health in a number of ways, including "any substance depending upon its toxicological and chemical properties and the way it is used or present at the workplace." In practice this means that any substance, with or without a risk phrase, can be a 'substance hazardous to health'. This is correct, since even water (wet work) can cause dermatitis.
Yet the ACoP guidance on risk assessment bases its approach on risk phrases, thus excluding the many substances that I see that do not have a risk phrase but are causing occupational contact dermatitis!
So the uninitiated could well conduct a risk assessment based on this and come up with a negligible risk, whereas the opposite could be the real situation. I can quote numerous examples of this actually happening.
Chris
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Posted By Smiff
Like Chris Packham I am quite depressed by what I read here.
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Posted By Mitch
You started it!!
Keep the faith QA professional have turned things around over the last 20 years
Mitch
Pint and pork scratchings for me
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Posted By Rob T
Why does it have to be either or? A fully qualified H&S Advisor should have a background which encompasses both the law and the experience. Case law has decided positions which can influence the advice we give based on judgements quoted. In my opinion, the legal arguments should only ever be quoted if all moral and "common sense" approaches fail however it would be really difficult to do this if you haven't got the legal background. Those who appear to be most against learning the law as it applies to safety, in a lot of cases, are those who don't think it necessary to take the exams (NEBOSH, degree etc.) and think that pure experience is sufficient (it ain't - you need both). My industry (oil and gas) is one of the worst for this.
Understanding "reasonably practicable", "practicable" and "absolute duty" are probably the most important parts of H&S for the professional and if you are not aware of the interpretations (by case law!) then you may well find yourselves in the deep doo dah.
All that said I still reiterate, I never quote the law until all else has failed.
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